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EXHIBIT 10.4
SIZZLER ASIA HOLDINGS, INC.
WESTPAC BANKING CORPORATION
ARBN 007 457 141
STOCK PLEDGE
MINTER ELLISON
Lawyers
Waterfront Place
1 Eagle Street
BRISBANE QLD 4000
DX 102 BRISBANE
Telephone (07) 3226 6333
Facsimile (07) 3229 1066
GB 1090692
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TABLE OF CONTENTS
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1. INTERPRETATION........................................................1
2. CHARGE................................................................5
3. [INTENTIONALLY OMITTED]...............................................6
4. CHARGOR'S OBLIGATIONS.................................................6
5. CHARGOR'S REPORTING OBLIGATIONS.......................................8
6. ACCESS TO AND INVESTIGATION OF RECORDS................................8
7. BETTER SECURITY AND RIGHTS FOR FINANCIER..............................8
8. REPRESENTATIONS AND WARRANTIES........................................9
9. EFFECT OF EVENT OF DEFAULT...........................................10
10. FINANCIER'S POWERS...................................................10
11. RECEIVER'S POWERS....................................................14
12. POWER OF ATTORNEY....................................................15
13. NOTICES AND DEMANDS FROM THE FINANCIER...............................16
14. PRESERVING THE FINANCIER'S RIGHTS, POWERS AND REMEDIES...............17
15. THIRD PARTY PROVISIONS...............................................18
16. MISCELLANEOUS........................................................20
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STOCK PLEDGE
DEED dated August 21, 2000
BETWEEN SIZZLER ASIA HOLDINGS, INC., A DELAWARE CORPORATION, UNITED
STATES OF AMERICA C/- 16 EDMONDSTONE STREET, NEWMARKET, BRISBANE,
QUEENSLAND, AUSTRALIA
("CHARGOR")
AND WESTPAC BANKING CORPORATION ARBN 007 457 141 OF 260 QUEEN STREET,
BRISBANE, QUEENSLAND, AUSTRALIA
("FINANCIER")
1. INTERPRETATION
1.1 DEFINITIONS
In this document:
"ATTORNEY" means an attorney appointed under a Relevant Agreement.
"AUTHORISED OFFICER" means:
(a) in relation to the Financier, an attorney of the Financier and a
person holding or acting in the office of director, chief
executive or secretary or whose title includes the word 'Manager'
or 'Director'; and
(b) in relation to the Chargor, a person holding or acting in the
office of president, vice president, chief financial officer,
chief executive or secretary.
"BUSINESS DAY" means a day on which banks (as defined in the Banking Act
1959 (Cth)) are open for general banking business in Brisbane, excluding
Saturdays and Sundays and public holidays.
"CHARGE" means the charge over, and security interest in the Charged
Property created under this document.
"CHARGED PROPERTY" means:
(a) 100 shares of the common stock of Sizzler Restaurant Services,
Inc ('SRS') represented by Certificate Number 1;
(b) 100 shares of the common stock of Sizzler South East Asia, Inc
('SSEA'), represented by Certificate Number 1;
(c) 100 shares of the common stock of Sizzler New Zealand, Limited
('SNZ') represented by Certificate Number 1;
(d) all other shares of capital stock of whatever class of SRS, SSEA
and SNZ, that are now or hereafter owned by the Chargor, together
with the certificates representing such shares;
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(e) all shares, securities, moneys or property representing any
dividends, distributions, warrants, rights and options relating
to such shares;
(f) without affecting the provisions of any Relevant Agreement
prohibiting a consolidation or merger, in the event of any
consolidation or merger of SRS, SSEA or SNZ all shares of each
class of capital stock of the successor corporation, together
with the certificates representing such shares; and
(g) all proceeds of the foregoing.
"COLLATERAL SECURITY" means a Guarantee, Security Interest or negotiable
instrument held or given, whether before or after this document is
executed, as security for or otherwise in connection with the Secured
Money.
"DEBTOR" means a Customer or Guarantor as defined in the Negative
Pledge.
"EVENT OF DEFAULT" has the meaning given to it in the Negative Pledge
and includes the Events of Default contained in clauses 13(a)(iii)
(without the word "other" in the first line), (b), (d), (e) (with
respect to the first sentence only), (g) (with respect to the first
sentence only) and (p) of the Negative Pledge as if the Chargor were a
Relevant Company.
"GUARANTEE" means a guarantee, indemnity, letter of credit, letter of
comfort or any other obligation (whatever it is called and whatever its
nature) by which a person is responsible for another person"s obligation
or debt.
"LIQUIDATION" includes official management, receivership, compromise,
arrangement, amalgamation, administration, reconstruction, winding up,
dissolution, assignment for the benefit of creditors, arrangement or
compromise with creditors, bankruptcy or death.
"NEGATIVE PLEDGE" means the Unlimited Cross Guarantee and Indemnity and
Negative Pledge with Financial Ratio Covenants dated on or around the
date of this document between the Financier, Collins Foods Group Pty Ltd
ACN 009 937 900 and others.
"PERMITTED SECURITY INTEREST" means:
(a) a Security Interest which the Financier has consented to. It does
not include a Security Interest which the Financier has consented
to on one or more conditions if those conditions are not complied
with; and
(b) a lien or charge on the Charged Property arising by operation of
law in the ordinary course of the Chargor's ordinary business. It
does not include a lien or charge which secures overdue debts.
"POTENTIAL EVENT OF DEFAULT" means any event, thing or circumstance
which with the giving of notice or passage of time or both would become
an Event of Default.
"PUBLIC AUTHORITY" means the Crown, a government, a minister of a
government, a government department, a statutory corporation, or a
semi-government or judicial entity.
"RECEIVER" means a receiver or receiver and manager appointed under this
document. When two or more persons are appointed, the expression
"Receiver" refers to each of those persons severally as well as to two
or more of them jointly.
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"RECORDS" means all the information which relates in any way to a
specified person's business or any transaction entered into by the
person, whether the information is recorded electronically, magnetically
or otherwise.
"RELEVANT AGREEMENT" means:
(a) this document; and
(b) a Collateral Security; and
(c) an agreement between:
(i) the Financier and the Chargor; or
(ii) the Financier and a Debtor; or
(iii) the Financier and any combination of the Chargor and one
or more Debtors;
that relates to the Secured Money or another Relevant Agreement
or contains terms on which the Secured Money remains outstanding;
and
(d) a document that the Chargor and the Financier agree is a Relevant
Agreement.
"SECURED MONEY" means all money that the Chargor or a Debtor is liable
to pay to the Financier at or after the date of this document on any
account and in any way whatever, and whether:
(a) the Chargor or Debtor is liable alone or together with another
person; or
(b) the Chargor or Debtor is liable as principal debtor, surety,
partner, trustee, beneficiary or otherwise; or
(c) the relevant liability:
(i) is actual or contingent, ascertained or unascertained,
fixed or fluctuating;
(ii) is in respect of principal, interest, Guarantee
obligations, purchase obligations, fees or damages; or
(iii) is in dollars, another currency or a combination of
currencies,
or is of any other character.
Without limitation, "Secured Money" includes:
(d) all Taxes and all reasonable costs and expenses (including, but
not limited to, legal costs and expenses on a full indemnity
basis) which the Financier or a Receiver or Attorney pays, or is
liable to pay, in connection with:
(i) a Relevant Agreement, or negotiating, preparing,
completing, registering or stamping a Relevant Agreement;
or
(ii) maintaining, preserving or protecting the Charged
Property; or
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(iii) surveying, valuing, inspecting or reporting on the Charged
Property; or
(iv) obtaining or attempting to obtain payment of the Secured
Money from any person; or
(v) protecting, enforcing or exercising a right, power or
remedy of the Financier or a Receiver or Attorney under or
in connection with a Relevant Agreement; or
(vi) an Event of Default or Potential Event of Default; or
(vii) the Financier providing financial accommodation to or at
the request of the Chargor; or
(viii) a receipt or payment of money under, or a transaction
contemplated by, a Relevant Agreement; and
(e) interest on all of the foregoing at the rates specified in the
Relevant Agreements. If no rate is specified, the rate is as
reasonably determined by the Financier. Interest accrues from day
to day, computed from the time:
(i) the Secured Money became owing (whether or not it is
immediately payable); or
(ii) in relation to costs and expenses, the relevant amount was
incurred.
Interest on Secured Money may be capitalised monthly or at the
times agreed between the parties. It then bears interest on
itself. Interest continues to be payable despite the Winding Up
of any person, or any judgement obtained against any person.
"SECURITY INTEREST" means a mortgage, pledge, lien, charge, preferential
right, trust arrangement, agreement or other arrangement given, arising
or created as security.
"TAX" includes a tax, levy, duty or charge (and associated penalty or
interest) imposed by a Public Authority. It includes income,
withholding, stamp and transaction taxes and duties but does not include
income tax on the overall net income of the Financier.
"WINDING UP" includes:
(a) dissolution, liquidation, provisional liquidation and bankruptcy;
and
(b) a procedure which is equivalent or analogous in any jurisdiction.
1.2 OTHER EXPRESSIONS
In this document, unless the contrary intention appears:
(a) the singular includes the plural and vice versa;
(b) other grammatical forms of defined words or expressions have
corresponding meanings;
(c) if this document binds two or more persons, it binds them
severally and jointly;
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(d) a reference to a party to this document includes that party's
successors and permitted assigns;
(e) a reference to a document or agreement includes that document or
agreement as novated, altered or replaced;
(f) when two or more persons are named as Chargor, the term "Chargor"
is a reference to each of them alone and also to any two or more
of them together. The same applies to the term "Debtor";
(g) a reference to any thing includes the whole or any part of that
thing and a reference to a group of things or persons includes
each thing or person in that group;
(h) "dollars" and "$" refer to Australian currency;
(i) words implying natural persons include partnerships, bodies
corporate, associations and Public Authorities;
(j) a reference to any legislation or statutory instrument or
regulation is construed in accordance with the Acts
Interpretation Act 1901 (Cth) or the equivalent State
legislation, as applicable.
2. CHARGE
2.1 CREATING THE CHARGE
The Chargor charges, pledges and grants a security interest in the
Charged Property in favour of the Financier as security for the payment
of the Secured Money.
2.2 FIXED CHARGE
The Charge is a fixed charge.
2.3 CONTINUING SECURITY AND DISCHARGING THE CHARGE
The Charge is a continuing security. It remains in effect until the
Financier gives a final discharge to the Chargor. The Chargor is only
entitled to a final discharge if:
(a) all of the Secured Money has been paid; and
(b) the Financier is satisfied that there are no amounts which will
subsequently fall within the description of the Secured Money.
In satisfying itself under paragraph (b), the Financier may consider any
matters it thinks relevant, including (without limitation) the
possibility that a payment to reduce the Secured Money might be
repayable, void or voidable under a law relating to insolvency or
protecting creditors.
2.4 FIRST PRIORITY SECURITY INTEREST
The Charge is a first charge. With respect to any Charged Property as to
which the law of any state of the United States of America governs the
granting, perfection or effect of perfection of a security interest, the
Charge created hereunder is a first priority perfected security
interest.
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3. [INTENTIONALLY OMITTED]
4. CHARGOR'S OBLIGATIONS
4.1 POSITIVE OBLIGATIONS
The Chargor must:
(a) pay when due the Taxes assessed, levied or imposed on the Charged
Property (other than those being contested in good faith) or the
Financier in connection with the Charged Property; and
(b) comply with all laws and with the mandatory requirements of any
Public Authority concerning the Charged Property except where the
requirement to do so is being contested in good faith; and
(c) operate each Debtor that it owns, directly or indirectly, in a
manner designed to avoid an Event of Default; and
(d) prosecute and defend (at the Chargor's expense) all legal
proceedings which are advisable, or which the Financier advises
the Chargor that it considers advisable, to avoid a material
adverse effect on the Charged Property; and
(e) do everything necessary to ensure that the Charged Property at
all times includes all of the issued and outstanding shares of
capital stock of SRS, SSEA and SNZ.
4.2 NEGATIVE OBLIGATIONS
The Chargor must not, without the consent of the Financier:
(a) deal with or dispose of the Charged Property; or
(b) permit a Security Interest (other than a Permitted Security
Interest) to affect the Charged Property; or
(c) apply for or obtain money, goods or services from a Public
Authority, fail to pay an amount to a Public Authority (unless
the Chargor is contesting the liability to pay in good faith and
has set aside sufficient reserves to meet the liability) or do
anything else which might lead to a liability or Tax being
imposed on the Charged Property; or
(d) do or allow anything to be done which may (other than in an
immaterial way) prejudice the Financier"s security or rights
under a Relevant Agreement.
4.3 OBLIGATIONS CONCERNING CHARGED PROPERTY
The Chargor must:
(a) immediately deposit with the Financier all certificates,
documents of title or other documents that from time to time
represent or evidence the Charged Property, endorsed in blank by
the Chargor by an effective endorsement;
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(b) on demand by the Financier, deposit with it stock powers or
transfers executed in blank by the Chargor;
(c) punctually pay all calls, instalments and other moneys which may
at any time be payable on any of the Charged Property (other than
those being contested in good faith) or which, if unpaid, may
result in the creation of a Security Interest over any of the
Charged Property;
(d) promptly notify the Financier in writing when the Chargor becomes
entitled to any of the rights or property referred to in
paragraphs (c) - (f) of the definition of "Charged Property";
(e) deliver to the Financier, promptly after receipt by the Chargor,
a copy of:
(i) any notice convening a meeting of the holders of any of
the Charged Property; and
(ii) any report, accounts, notice or circular issued to the
holders of any of the Charged Property;
4.4 OBLIGATIONS CONCERNING VOTING RIGHTS AND DIVIDENDS
The Chargor:
(a) may until an Event of Default or Potential Event of Default
occurs exercise voting rights conferred upon it as the holder of
any of the Charged Property, but it must not in doing so permit
or cause anything to occur that would be an Event of Default or
Potential Event of Default or otherwise be inconsistent with the
terms of this document. However, if an Event of Default or
Potential Event of Default occurs, the Chargor may no longer
exercise any of those voting rights, except with the prior
written consent of the Financier; and
(b) may, until an Event of Default occurs and subject to paragraph
(a):
(i) acquire any of the rights or property referred to in
paragraphs (c) - (f) of the definition of "Charged
Property"; and
(ii) receive and use in the ordinary course of its business
cash dividends payable in relation to the Charged
Property.
However, if an Event of Default occurs:
(iii) the Chargor may not do any of the things specified in
paragraphs (i) or (ii) and from then on only the
Financier, a Receiver or Attorney may do those things; and
(iv) the Chargor must (at its cost) do all things necessary to
enable the Financier, Receiver or Attorney to do the
things specified in paragraphs (i) and (ii); and
(c) must immediately pay to the Financier any money it receives in
connection with the Charged Property (other than dividends
referred to in paragraph (b)(ii)). The Financier may apply that
money to reduce the Secured Money in the manner specified in
clause 16.9.
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5. CHARGOR'S REPORTING OBLIGATIONS
5.1 NOTICES TO THE FINANCIER
The Chargor must notify the Financier as soon as an Authorised Officer
of the Chargor becomes aware of:
(a) an Event of Default or Potential Event of Default; or
(b) a representation or warranty in any Relevant Agreement becoming
materially false or misleading (giving full details); or
(c) a material requirement or notice of a Public Authority in
connection with the Charged Property and must give the Financier
a copy of any related document it has and full details of all
relevant facts known to the Chargor concerning the requirement or
notice; or
(d) any other requirement, notice, order or direction relating to the
Charged Property given to the Chargor and must give to the
Financier a copy of any related document served on the Chargor,
giving full particulars of all relevant facts known to the
Chargor.
6. ACCESS TO AND INVESTIGATION OF RECORDS
6.1 GIVING ACCESS TO RECORDS
The Chargor must:
(a) ensure that the Records of the Chargor relating to the Charged
Property are available for inspection at reasonable times by the
Financier and persons acting on the Financier's behalf; and
(b) allow the Financier and persons acting on the Financier's behalf
to inspect and to take copies of or extracts from the Chargor's
Records during business hours and give reasonable assistance to
them.
7. BETTER SECURITY AND RIGHTS FOR FINANCIER
7.1 BETTER SECURITY AND RIGHTS
The Chargor must, at the Chargor's cost, do whatever the Financier
reasonably requires to:
(a) more satisfactorily secure the Charged Property as security to
the Financier for the payment of the Secured Money; or
(b) enable the Financier to better exercise its rights over the
Charged Property,
and must use its best efforts to make anyone else who has an interest in
the Charged Property or claims under or in trust for the Chargor do the
same.
7.2 EXAMPLES
This includes, but is not limited to:
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(a) executing a further Security Interest (including a legal
mortgage) over, or other documents relating to, the Charged
Property; and
(b) delivering the stock certificates or other title documents
representing or evidencing the Charged Property to the Financier,
endorsed in blank by an effective endorsement, or accompanied by
a stock power or transfer in blank,
in a form reasonably satisfactory to the Financier.
8. REPRESENTATIONS AND WARRANTIES
8.1 THE CHARGOR REPRESENTS AND WARRANTS TO THE FINANCIER THAT:
(a) the Chargor was properly incorporated and validly exists; and
(b) the Chargor has the power to enter into this document and to
carry out any transaction or obligation contemplated by it; and
(c) all necessary actions have been taken to make this document valid
and binding on the Chargor and to enable the Chargor to carry out
any transaction or obligation contemplated by this document; and
(d) no Event of Default or Potential Event of Default has occurred;
and
(e) the Chargor executing and performing this document and any other
Relevant Agreements does not result in a Security Interest (other
than under a Relevant Agreement) being created or crystallised on
an asset of the Chargor; and
(f) neither this document nor any other Relevant Agreement conflicts
with the operation or terms of any document or arrangement which
binds the Chargor; and
(g) all information provided to the Financier by or on behalf of the
Chargor is accurate and not misleading by omission; and
(h) the shares comprised in the Charged Property are duly authorised,
validly existing, fully paid and nonassessable; and
(i) it has the right and power to charge the Charged Property in the
manner set out in this document; and
(j) it is the sole legal and beneficial owner of the Charged Property
and the Charged Property is free from:
(i) all Security Interests or third party rights and interests
of any kind; and
(ii) any restriction on transfer or rights of pre-emption; and
(k) the issuance of shares comprised in the Charged Property does not
contravene any law, rule or directive of any Public Authority or
of any stock exchange.
8.2 THE REPRESENTATIONS AND WARRANTIES IN THIS CLAUSE ARE REPEATED ON EACH
DAY ON WHICH THE REPRESENTATIONS AND WARRANTIES IN THE NEGATIVE PLEDGE
ARE REPEATED.
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9. EFFECT OF EVENT OF DEFAULT
After an Event of Default the Financier may declare the Secured Money
payable. If so, the Secured Money becomes immediately payable, unless
the Financier specifies otherwise.
10. FINANCIER'S POWERS
10.1 GENERALLY
(a) After an Event of Default, the Financier may do the things which
a mortgagee and an absolute owner could do to the Charged
Property and exercise the rights, powers and remedies of a
mortgagee and an absolute owner of the Charged Property. These
include, but are not limited to, the things and powers described
in this clause 10, and the rights, powers and remedies of a
secured party under the Uniform Commercial Code of any
jurisdiction in the United States of America;
(b) The Financier need not make a demand or give notice to anyone
before doing these things or exercising these powers, except if
notice is required as described in clause 10.10.
10.2 TO TAKE POSSESSION OF CHARGED PROPERTY
After an Event of Default the Financier may:
(a) take possession of the Charged Property; and
(b) receive the income, dividends, proceeds and profits from the
Charged Property.
10.3 TO DEAL WITH THE CHARGED PROPERTY
After an Event of Default the Financier may do any of the following:
(a) (EXERCISE RIGHTS) exercise the rights and powers of an absolute
owner and do everything expedient in connection with shares,
securities or other rights which form part of the Charged
Property. The Chargor appoints the Financier and any Authorised
Officer of the Financier nominated by the Financier for this
purpose, severally and jointly, to be the authorised
representative and proxy of the Chargor to do the things
described in this paragraph; and
(b) (TRANSFERS) complete and procure the registration of any
transfers or other documents that may have been lodged with the
Financier in relation to the Charged Property; and
(c) (BANK ACCOUNTS) open and operate bank accounts in the name of the
Chargor (alone or together) to the exclusion of the Chargor; and
(d) (CONTRACTUAL RIGHTS)
(i) perform the Chargor's obligations under; and
(ii) enforce or exercise or not exercise the Chargor's rights
and powers under; and
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(iii) agree to vary or rescind,
a contract, instrument, arrangement or right forming part of the
Charged Property; and
(e) (COMPROMISE) settle, compromise or submit to arbitration a
dispute in connection with the Charged Property; and
(f) (PERFORM CHARGOR'S OBLIGATIONS) do everything it may to comply
with the obligations of the Chargor under a Relevant Agreement;
and
(g) (REMEDY BREACH) do everything it may to make good a breach or
default inherent in an Event of Default, to its own satisfaction;
and
(h) (DEPOSIT MONEY IN SUSPENSE OR OTHER ACCOUNTS) invest, deposit or
hold the Charged Property in any way that, and for as long as,
the Financier thinks fit and vary, transpose or reinvest the
Charged Property; and
(i) (RECOVER, PROTECT CHARGED PROPERTY) do everything the Financier
thinks necessary to recover or protect the Charged Property; and
(j) (LEGAL PROCEEDINGS) commence, prosecute, defend and settle
proceedings which the Financier considers expedient in connection
with this document or the Charged Property in or before a Public
Authority in the name of the Chargor or otherwise; and
(k) (EXCHANGE) exchange the Charged Property for any other property
or rights (with or without giving or receiving any other
consideration for the exchange); and
(l) (TRANSFER OBLIGATIONS) effect a novation of or otherwise transfer
to any person obligations of the Chargor which arise under a
Relevant Agreement or otherwise; and
(m) (IMPROVE CHARGED PROPERTY) do anything which the Financier
considers would help improve the value of the Charged Property,
obtain income or returns from it or make it saleable or more
saleable. Without limitation, the Financier may improve or alter
the Charged Property, acquire additional property in the name of
the Chargor and undertake any marketing or publicity campaign;
and
(n) (EXECUTE DOCUMENTS) enter into agreements and execute documents
itself or on behalf of the Chargor for any purpose in connection
with the Charged Property; and
(o) (BORROW, SECURE) in the name of the Chargor or otherwise:
(i) obtain financial accommodation (including, but not limited
to, from a party associated with the Financier) for any
purpose which the Financier considers expedient in
connection with the Charged Property; and
(ii) secure the payment or repayment of indebtedness relating
to that financial accommodation by a Security Interest
over the Charged
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Property, however it ranks for priority with the Charge or
a Collateral Security; and
(p) (EMPLOY AND APPOINT PERSONS) employ staff and appoint
professionals and consultants for any purpose, and at the
remuneration, that the Financier thinks fit; and
(q) (DELEGATE) delegate to any person for any time that the Financier
thinks fit any of the powers of the Financier under this
document, including this right of delegation; and
(r) (INCIDENTAL POWER) do anything the Financier thinks expedient in
its interests and incidental to any of its powers under this
document, without limiting those powers; and
(s) (SPEND MONEY) spend money in exercising its powers in this
document. That money then forms part of the Secured Money.
10.4 TO DISCHARGE OR ACQUIRE PRIOR SECURITY
After an Event of Default the Financier may:
(a) purchase the debt secured by a prior Security Interest; or
(b) pay the amount required to discharge or satisfy that debt
(including, but not limited to, a debt secured by a Permitted
Security Interest); or
(c) take a transfer or assignment of that Security Interest and any
Guarantee, document or right ancillary or collateral to it.
10.5 EXERCISE OF RIGHTS UNDER CLAUSE 10.4
If the Financier exercises its rights under clause 10.4:
(a) the Charged Property is security for the same amount paid by the
Financier. This does not limit any other debt acquired by the
Financier; and
(b) that debt is immediately payable to the Financier and forms part
of the Secured Money and interest accrues on the unpaid amount of
that debt under clause 3.2; and
(c) the Financier need not enquire whether the money claimed to be
owing is actually owing in connection with the prior Security
Interest, or an ancillary or collateral document; and
(d) the person with the benefit of the prior Security Interest need
not enquire whether there is any money owing under a Relevant
Agreement; and
(e) the Chargor directs any person with the benefit of a prior
Security Interest to give the Financier any information it
requires in connection with the prior Security Interest. This
includes, but is not limited to, the state of accounts for that
Security Interest.
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10.6 TO SELL AND GIVE OPTIONS
After an Event of Default the Financier may do any of the following:
(a) (SELL) sell or help sell the Charged Property on the terms and in
the manner it thinks fit, whether or not the Financier has taken
possession; and
(b) (OPTIONS) give an option to purchase the Charged Property on the
terms it thinks fit; and
(c) (SELL TOGETHER WITH OTHER PROPERTY) sell the Charged Property
with any other property in any manner that the Financier thinks
expedient; and
(d) (HIVE OFF ASSETS OR OBLIGATIONS) promote the formation of any
company so that the company may purchase or acquire the Charged
Property or assume obligations of the Chargor or both; and
(e) (EFFECT HIVE-OFF) sell or assign the Charged Property or assume
the Chargor's obligations.
10.7 TO APPOINT RECEIVERS
After an Event of Default, the Financier may:
(a) appoint one or more persons to be a Receiver or Receivers of the
Charged Property, with the powers and rights described in this
clause 10 (or such lesser powers as the Financier determines);
and
(b) remove that Receiver or those Receivers; and
(c) if a Receiver is removed, retires or dies, appoint another or
others in his or her place; and
(d) in the case of removal or retirement of a Receiver, reappoint
that person.
10.8 TO APPOINT MORE THAN ONE RECEIVER
If the Financier appoints two or more persons to be the Receiver, the
Financier may appoint them to act jointly, severally or jointly and
severally. If it is not specified in the instrument of appointment, the
Receivers are appointed to act severally.
10.9 TO PAY THE RECEIVER
The Financier may fix the remuneration of a Receiver at an amount agreed
between the Financier and the Receiver.
10.10 NOTICE OR LAPSE OF TIME REQUIRED BEFORE RIGHTS EXERCISED
(a) If notice or lapse of time is required under any statute before
the Financier can exercise its power of sale or any other rights
available to it under this document or by law, then that notice
or lapse of time is dispensed with.
(b) Paragraph (a) only applies if the relevant statute allows notice
or lapse of time to be dispensed with.
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(c) If the relevant statute does not allow notice or lapse of time to
be dispensed with, but allows it to be shortened, then for the
purposes of this document, the period of notice or lapse of time
is one day.
10.11 TO GIVE UP POSSESSION AND TERMINATE RECEIVERSHIP
The Financier may:
(a) give up possession of the whole or any part of the Charged
Property; or
(b) terminate a receivership,
or both.
10.12 PERSONS DEALING NOT BOUND TO ENQUIRE
A person dealing with the Financier or a Receiver or Attorney:
(a) need not enquire whether there has been a default by the Chargor
under a Relevant Agreement or whether the Financier, Receiver or
Attorney has acted properly; or
(b) need not enquire whether the Financier, a Receiver or an Attorney
has executed or registered an instrument or exercised a right,
power or remedy properly or with authority,
and whenever the Financier, a Receiver or an Attorney deals with the
Charged Property, that dealing is authorised and valid as far as anyone
involved with that dealing is concerned. The receipt of the Financier or
a Receiver or Attorney for any money payable to the Chargor discharges
the person paying that money to the extent of the payment.
10.13 RESPONSIBILITY FOR LOSS
The Financier is not responsible for a loss arising in connection with
it exercising or failing to exercise its powers under a Relevant
Agreement nor for an act or failure of an employee or agent of the
Financier or any Receiver. The Financier need not account for more money
than it actually receives.
11. RECEIVER'S POWERS
11.1 GENERAL
Unless the terms of the Receiver's appointment say otherwise, the
Receiver has the following powers over the Charged Property which the
Receiver is appointed to deal with:
(a) all the rights and powers given by law to mortgagees in
possession, receivers or receivers and managers; and
(b) all the rights and powers of the Financier under this document
and at law (other than the power to appoint Receivers); and
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15
(c) power to obtain financial accommodation from the Financier, alone
or together with any other person, for a purpose and on the terms
that the Receiver considers expedient in connection with the
Charged Property; and
(d) power to secure the payment or repayment of indebtedness relating
to that financial accommodation by a Security Interest over the
Charged Property, however it ranks for priority with the Charge
or a Collateral Security.
The Receiver may exercise these rights and powers in the name of the
Chargor or otherwise.
11.2 RECEIVER IS AGENT OF CHARGOR
A Receiver is the agent of the Chargor. The Chargor alone is responsible
for the Receiver's acts and defaults. But the Receiver, to the extent
required by law, ceases to be the agent of the Chargor if a resolution
is passed or an order is made to Wind Up the Chargor. The Receiver may
become the agent of the Financier if the Financier gives a notice to the
Receiver in writing to that effect. The Financier may appoint a further
Receiver, despite that resolution or order.
11.3 ACCOUNTABILITY OF RECEIVER
A Receiver is not responsible for a loss arising in connection with the
exercise or execution of the Receiver's powers, nor for any act or
default of an employee or agent of the Financier or the Receiver. A
Receiver need not account for more money than the Receiver actually
receives.
12. POWER OF ATTORNEY
12.1 APPOINTMENT AND POWERS
The Chargor for valuable consideration irrevocably appoints the
Financier, each Authorised Officer of the Financier and each Receiver
separately as its attorneys to do the following on the Chargor's behalf
and in the name of the Chargor or the Attorney after the occurrence of
an Event of Default or Potential Event of Default:
(a) anything which the Chargor must do under a Relevant Agreement;
and
(b) anything which, in the opinion of the Attorney:
(i) would give effect to a right, power or remedy of the
Financier or a Receiver; or
(ii) the Chargor should do,
under a Relevant Agreement or by law; and
(c) enter into or execute transactions, documents and agreements
which, in the opinion of the Attorney, the Chargor should enter
into or execute under a Relevant Agreement; and
(d) use the Chargor's name to exercise the powers of the Financier or
a Receiver under a Relevant Agreement, the law or otherwise; and
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(e) obtain the issue of duplicate certificates for the shares,
securities or other rights comprised in the Charged Property if
the original certificates are lost or destroyed or believed to be
so; and
(f) direct payment or any delivery of a dividend, notice, scrip or
attend to any other matter relating to the Charged Property; and
(g) give any direction or instruction to any person that the attorney
reasonably considers is necessary or desirable to better secure
the Charged Property to the Financier or to permit or facilitate
the exercise or preservation of a right or power of the Financier
under a Relevant Agreement; and
(h) perfect a security given by the Chargor in favour of the
Financier over the Charged Property; and
(i) exercise voting rights or any other power, right or remedy
relating to the Charged Property,
and the Chargor agrees to ratify anything done by an Attorney under this
power of attorney.
12.2 ATTORNEY MAY DELEGATE POWERS
An Attorney may delegate its powers (including the power to delegate) to
any person for any period and may revoke the delegation.
12.3 PURPOSE
The power of attorney created under this clause is irrevocable and is
granted to secure the performance by the Chargor of the Chargor's
obligations under each Relevant Agreement to which the Chargor is a
party.
13. NOTICES AND DEMANDS FROM THE FINANCIER
13.1 SIGNING
A notice from or demand by the Financier to or on the Chargor may be
signed by an Authorised Officer of the Financier or by a solicitor
acting for the Financier. This signature may be handwritten or printed
or reproduced by other means.
13.2 SENDING
In addition to any method of service provided for by statute, a notice
from or demand by the Financier is given to or made on the Chargor if it
is:
(a) sent by facsimile to the facsimile number of the Chargor last
known to the Financier or, if more than one facsimile number is
known to the Financier, to any of those facsimile numbers; or
(b) left for the Chargor or sent by prepaid mail (and by airmail if
to an address outside Australia) to the Chargor at:
(i) the address of the Chargor set out in this document; or
(ii) the Chargor's usual place of business last known to the
Financier; or
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(iii) the Chargor's registered office; or
(iv) premises owned or occupied by the Chargor.
13.3 VALIDITY
A notice or demand is validly given even if:
(a) the Chargor has been Wound Up or the Chargor is absent from the
place the notice or demand is left at, or delivered or sent to;
or
(b) the notice or demand is returned unclaimed.
13.4 RECEIPT
A notice or demand is taken to have been received by the Chargor:
(a) if delivered personally, on the same day; and
(b) if posted to an address in Australia, on the second Business Day
after it was posted; and
(c) if posted to an address outside Australia, on the fourth Business
Day after it was posted; and
(d) if sent by facsimile, when a transmission report is produced by
the sender's facsimile machine indicating that the notice or
demand has been sent to the relevant number.
14. PRESERVING THE FINANCIER'S RIGHTS, POWERS AND REMEDIES
14.1 PRESERVATION
(a) The fact that the Financier does not exercise, or delays the
exercise of, any right, power or remedy does not affect any of
its other rights, powers or remedies.
(b) The fact that the Financier delays the exercise of any right,
power or remedy does not constitute a waiver of that right, power
or remedy.
(c) The fact that the Financier exercises a right, power or remedy
does not prevent the Financier from exercising that right, power
or remedy again.
(d) This document does not operate to extinguish or prejudice any
right, power or remedy of the Financier under a Relevant
Agreement or in connection with the Secured Money.
14.2 MORATORIUM LEGISLATION
A moratorium does not apply to a Relevant Agreement or the recovery of
the Secured Money except if:
(a) the Financier agrees in writing that it does; or
(b) it cannot be excluded by law.
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14.3 REINSTATING OR REPLACING RIGHTS
If any payment made to the Financier in reduction of the Secured Money
is repaid or void or conceded to be void, voidable or repayable for any
reason, then, despite any release, settlement or discharge in connection
with the Secured Money:
(a) that payment has not discharged the relevant liability; and
(b) the Financier may recover the amount of that payment from the
Charged Property; and
(c) the Chargor must immediately do all acts and things the Financier
requires to replace or reinstate the Charge and any Collateral
Security which has been released in connection with that payment.
14.4 EFFECT OF RELEASE
(a) A full or partial release of this Charge by the Financier does
not release the Charged Property under this document until the
Financier receives the Secured Money, regardless of any:
(i) receipt given, payout figure quoted or other form of
account stated; or
(ii) error or miscalculation by the Financier.
15. THIRD PARTY PROVISIONS
15.1 INDEPENDENT SECURITY
Neither this document nor the obligations of the Chargor under this
document will be abrogated, prejudiced or affected by:
(a) the granting of time or any other indulgence, consideration or
concession to the Chargor, a Debtor or any other person;
(b) the release, discharge, abandonment, waiver, loss, impairment,
relinquishment, transfer or other dealing with (either in whole
or in part and whether with or without consideration) any
Relevant Agreement or any right of the Financier against the
Chargor, a Debtor or any other person;
(c) any transaction or arrangement that may take place between the
Financier and a Debtor or any other person;
(d) the Financier varying, exchanging, renewing or releasing any
Relevant Agreement or refusing to do so;
(e) any variation of a transaction, arrangement or document between
the Financier and any other person (including, but not limited to
any increase in the amount of financial accommodation provided or
agreed to be provided to any Debtor);
(f) the capitalising and adding to principal of all interest accrued
on the Secured Money (or any part of the Secured Money) but not
yet paid;
(g) any Collateral Security or right which the Financier now holds or
in the future may obtain;
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(h) the Financier failing or neglecting to recover any of the Secured
Money by the realisation of any Collateral Security or otherwise;
(i) any laches, acquiescence, delay, and omission or mistake on the
part of the Financier or any other person;
(j) the insolvency, Winding Up or incapacity or change in the legal
capacity of the Chargor or a Debtor;
(k) any judgment or order against the Chargor, a Debtor or other
person;
(l) any lack of power by the Chargor or a Debtor to enter into any
Relevant Agreement or give any Collateral Security either in its
own right or in the capacity in which it is purporting to act;
(m) the liability of the Chargor, a Debtor or any other person to the
Financier ceasing from any cause (including but not limited to
being released or discharged by the Financier);
(n) any Collateral Security or any other security taken or held at
any time by the Financier being in whole or in part void,
defective in form or substance or unenforceable;
(o) property secured under a Collateral Security being destroyed,
forfeited, extinguished, surrendered, resumed or determined;
(p) any impossibility or illegality of performance of any Relevant
Agreement or any provision of any Relevant Agreement;
(q) any default, misrepresentation, negligence, misconduct or other
action or inaction of any kind by any person;
(r) any irregularity or deficiency in the execution of this document
or any Collateral Security by the Chargor or any Debtor or any
lack of authority or power of any person in relation to such
execution;
(s) the failure to give notice to, or the lack of consent of the
Chargor or a Debtor before or after the happening of any of the
acts or events mentioned in this subclause or before the making
of any agreement or transaction between the Financier and the
Chargor, a Debtor or other person;
(t) any other dealing, matter or thing which, but for this provision
could or might operate to affect or discharge the liability of
the Charged Property under this document.
15.2 NO OBLIGATION TO PROCEED
The Financier will not be required to proceed against any Debtor or
exhaust any remedies it may have against any Debtor or enforce any
Collateral Security but shall be entitled to demand and receive payment
from any Debtor or realise upon the Charged Property when any payment is
due under any Relevant Agreement and whether due from that person or
not.
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15.3 NO OBLIGATION TO MARSHAL
The Financier will not be obliged to marshal in favour of the Chargor
any security held by the Financier or any funds or assets that the
Financier may be entitled to receive or have a claim upon.
15.4 WINDING UP OF DEBTOR
On the Winding Up of any Debtor the Chargor authorises the Financier:
(a) to prove for all money which has been paid under any Relevant
Agreement; and
(b) to retain and to carry to a suspense account and appropriate at
the Financier's discretion any dividends received;
until the Financier has been paid in full.
15.5 EXCLUSION OF RIGHTS
The Chargor must not:
(a) until the Financier has received all the Secured Money and the
Financier is satisfied that it will not have to repay any money
received by it in connection with the Secured Money (either
directly or indirectly):
(i) claim or exercise any right of set-off, counter-claim or
other right or release at law or in equity which has or
might have the effect of reducing or discharging the
Secured Money;
(ii) claim or exercise any right of subrogation or otherwise
claim the benefit of any Collateral Security;
(iii) prove or claim in the liquidation or bankruptcy of any
Debtor in competition with the Financier or otherwise
claim or receive the benefit of any distribution, dividend
or payment arising out of the liquidation or bankruptcy of
a Debtor; or
(iv) claim or recover any sum paid by the Chargor pursuant to
this document from any person or commence any action in
respect of any right which may accrue to the Chargor in
respect of sums paid by the Chargor under this document;
or
(b) whether or not the Secured Money has been paid in full call upon
the Financier to sue or take proceedings against any Debtor or
raise a defence, set-off or counter-claim of itself or any Debtor
in reduction of its liability under this document.
16. MISCELLANEOUS
16.1 NO OBLIGATION TO EXERCISE RIGHTS OR GIVE CONSENT
Each of the Financier and a Receiver may:
(a) exercise or not exercise any right, power or remedy; and
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(b) give or not give consent; and
(c) make or not make a decision,
under this document, in its absolute discretion without giving a reason
and without being liable or accountable for the consequences. In
relation to the giving or not giving of consent, the Financier will act
in a manner which the Financier determines in its absolute discretion to
be reasonable. Such determination shall not be questioned by the
Chargor.
16.2 CONSENT MUST BE IN WRITING
A consent given or a right, power or remedy waived by the Financier is
effective only if given or waived in writing.
16.3 NOTIFICATION FROM CHARGOR
If the Chargor is required under this document to notify the Financier
about anything, the Chargor must do so in writing.
16.4 FINANCIER MAY SET OFF
Without any demand or notice, the Financier may set off and apply
indebtedness it owes to the Chargor (whatever the currency) against the
Secured Money:
(a) whether the indebtedness is owed alone or with any other person;
and
(b) whether or not the Secured Money or that indebtedness is
immediately payable.
16.5 CHARGOR MUST NOT SET OFF
The Chargor must not claim, exercise or attempt to exercise a right of
set-off or any other right which might reduce or discharge the Secured
Money.
16.6 NO MARSHALLING
The Financier need not resort to a Collateral Security or other Security
Interest before exercising a power under this document.
16.7 SUSPENSE ACCOUNT
The Financier may credit money received in or towards satisfaction of
the Secured Money to a suspense account. The Financier may keep the
money in that account for as long as the Financier thinks fit. Interest
will not accrue on such account. The Financier may apply the money to
reduce the Secured Money whenever it thinks fit.
16.8 SURPLUS PROCEEDS
If surplus money remains in the hands of the Financier or a Receiver
after payment of all the Secured Money (and satisfaction of any
obligation ranking in priority to the Secured Money or secured by a
Security Interest over the Charged Property):
(a) no trust arises over that surplus money; and
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(b) that surplus money does not carry interest and the Financier or
Receiver may pay it to an account in the name of the Chargor
(whether or not opened by the Financier or Receiver for that
purpose). The Financier or Receiver is then no longer liable for
the surplus money.
16.9 APPLYING RECEIPTS
The Financier may apply or appropriate money received to reduce the
Secured Money in the order, and to satisfy whatever part of the Secured
Money, the Financier sees fit.
16.10 TACKING
For the purpose of applying section 282 of the Corporations Law or any
equivalent provision in any jurisdiction, if the Financier is obliged to
make further advances under a Relevant Agreement, that Relevant
Agreement is taken to be incorporated in this document so that this
document imposes on the Financier an obligation to advance that money.
16.11 THE FINANCIER MAY ASSIGN RIGHTS
The Financier may assign or otherwise deal with its rights and benefits
under this document.
16.12 THE FINANCIER MAY DISCLOSE INFORMATION
The Financier may disclose to a potential assignee or participant any
information about the Chargor, any Debtor or a Relevant Agreement which
it considers appropriate.
16.13 CERTAIN NOTICES OR DEMANDS
A notice from or demand by the Financier stating:
(a) that a specified sum of money is owing or payable (or both) under
a Relevant Agreement; or
(b) that an Event of Default has occurred; or
(c) something relevant to the rights or obligations of the Financier
or the Chargor under a Relevant Agreement,
is admissible in proceedings and is conclusive evidence of the matters
stated except if there is manifest error.
16.14 IF DUE DATE NOT A BUSINESS DAY
If anything should be done under this document on a day that is not a
Business Day, it must be done on the previous Business Day.
16.15 SEVERABILITY
(a) A construction of this document that results in all provisions
being enforceable is to be preferred to a construction that does
not so result.
(b) If, despite the application of paragraph (a), a provision of this
document is illegal or unenforceable:
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(i) and it would be legal and enforceable if a word or words
were omitted, that word or those words are severed; and
(ii) in any other case, the whole provision is severed,
and the remainder of this document continues in force.
16.16 GOVERNING LAW AND JURISDICTION
This document is governed by the law of Queensland except:
(a) as required by mandatory provisions of law; and
(b) to the extent that the validity, perfection or enforceability of
any of the security interests hereunder, or remedies hereunder,
are dependent on the laws of a jurisdiction other than
Queensland, in which case the governing law shall (to that extent
only) be the law of that jurisdiction.
The parties hereto agree and intend that:
(c) a proper forum/jurisdiction for any litigation or process arising
out of or related to this Agreement shall be any court located in
Queensland; and
(d) a proper forum/jurisdiction for any litigation or process in
respect of any of the Charged Property located in a jurisdiction
other than Queensland shall be any court located either in
Queensland or that other jurisdiction.
The Chargor irrevocably and unconditionally submits to the non-exclusive
jurisdiction of the courts of Queensland and/or the other jurisdiction
referred to in paragraph (d) (as the case may be). The Chargor, to the
extent permitted by applicable laws, hereby expressly waives any defence
or objection to jurisdiction or venue based on the doctrine of forum non
conveniens, and stipulates that the courts of Queensland and/or that
other jurisdiction (as the case may be) shall have in personam
jurisdiction and venue over it for the purpose of any such litigation or
process arising out of or related to this document.
16.17 AGENT FOR SERVICE OF PROCESS
The Chargor, having its registered office outside Queensland:
(a) irrevocably appoints Collins Restaurants Management Pty Ltd ACN
093 912 979 ('CRM') as its agent for service of process relating
to any proceedings before the courts and appellate courts of the
State of Queensland in connection with this document;
(b) failure by CRM to notify to the process will not invalidate the
proceedings concerned; and
(c) agrees that nothing shall affect the right to serve process in
any other manner permitted by law.
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16.18 FINANCIER NEED NOT EXECUTE
This document is enforceable by the Financier even if the Financier does
not execute it.
EXECUTED as a deed.
THE COMMON SEAL of SIZZLER )
ASIA HOLDINGS, INC. is affixed in )
accordance with its articles of )
association in the presence of )
Witness Director/Authorised Officer
Name (print) Name (print)
