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DATED30th Day of June 2018
LIVESTOCK MORTGAGE
In favour of
FUNDS PROVIDER
(“Lender”)
given by
PASTORAL COMPANY PTY LTD A.C.N. 098 685 664
("Mortgagor")
THIS MORTGAGE is made on 1st day of August2018
BY / the Person or Persons named in Item 2 of the Schedule ("Mortgagor")IN FAVOUR OF / Caroline Margaret Lender of the address specified in Item 3 of the Schedule in Item 2 of the Schedule (“Lender")
OPERATIVE PART:
1.CONSIDERATION AND MORTGAGE
1.1Consideration
The mortgagor acknowledges entering into and incurring obligations under this document tot bona fide and valuable consideration received from Lender including the consideration (if any) expressed in Item 10 of the Schedule.
1.2Mortgage
The mortgagor assigns to Lender all the mortgaged property to secure the due and punctual payment of the secured money and the due and punctual performance of each of the mortgagors other obligations in this document and in any other relevant document.
1.3After acquired property
Legal title to any livestock (legal title to which is acquired by the mortgagor after the date of this document) to the extent it has not already vested in Lender will pass to Elders upon the first to occur of:
(a)the mortgagor paying for that livestock;
(b)the mortgagor recording the acquisition of that livestock in its records or accounts;
(c)the mortgagor or its agents obtaining possession or control of that livestock;
(d)that livestock appearing in any statement report list or loan application given to Lender by the mortgagor;
(e)the livestock depasturing on the land; and
(f)the livestock being branded or earmarked with a brand or earmark owned or used by 'the mortgagor.
1.4Possession
The mortgagor may retain possession of the livestock and the other mortgaged properly until an event of default or potential event of default occurs If an event of default or potential event of default occurs Lender may immediately without any no ice to the mortgagor take possession of the mortgaged property and the equipment.
1.5Reconveyance
Upon all the secured money being paid n full to Lender, Lender must at the mortgagors cost reassign the livestock and the other mortgagee/ property to the mortgagor unless in me reasonable opinion of Lender there is a prospect that any moneys paid to Lender could be avoided or be required to be repaid under any law relating to insolvency or for any other reason.
1.6Prospective liability
For the purposes of Section 280 to 282 inclusive of the Corporations Act only the maximum prospective liability secured by this document does not exceed the amount specified in Item 6 of the Schedule and this sub clause does not otherwise limit the amount secured by this document.
1.7Legal interest
For the purposes of section 5 of the Chattel Securities Act 1987 (Vic) and for any other purpose the mortgagor and Lender agree that the security interest created by this document in the mortgaged property is a legal interest.
2.DEALING WITH MORTGAGED PROPERTY
2.1Restrictions
The mortgagor must not grant any security interest over or dispose of or deal with any interest in the mortgaged property unless, in the case of any livestock and subject to clause 2.4:
(a)the mortgagor does so by a sale in the ordinary course of its ordinary business and for fair market value; and
(b)the mortgagor immediately pays the proceeds of sale to Lender; or
(c)Lender otherwise consents in writing to the disposal or other dealing.
2.2Purchaser
Any purchaser of livestock from the mortgagor will acquire its interest in the livestock subject to the interest of Lenderunder this document unless:
(a)Lender approves the amount of, and actually receives (in cleared and immediately available funds), the proceeds of sale; or
(b)Lender otherwise consents in writing to the sale on the basis that Lender does not require the proceeds of sale to be paid to Lender.
2.3No Disposal
The mortgagor may no dispose of any livestock in the manner authorised by clause 2.1 if:
(a)the mortgagor has received notice from Lender to that effect;
(b)Lender makes any demand for payment of any of the secured money;
(c)an event of default or potential event of default occurs; or
(d)in respect of that livestock, a government body may rank ahead of Lender over that livestock upon the mortgagor failing to pay any taxes.
2.4Subsequent security interest
Despite anything contained in the relevant documents Lender, until priority arrangements acceptable to it are entered into with all relevant persons, is not obliged to provide any further financial accommodation to, or at the request or direction of, the mortgagor if it becomes aware of the existence of a security interest over the mortgaged property to which it has not consented. Lender's other rights under this document are not affected by this clause.
3.OBLIGATIONS IN RELATION TO LIVESTOCK
The mortgagor must
(a)not, without the prior written consent of Lender:
i.change the general quality, character or description of the livestock; or
ii.remove any of the livestock from the land;
(b)ensure that all livestock are, at Lender's request, branded, marked or earmarked as directed by Lender and that all livestock other than livestock already bearing an existing brand, earmark or mark when purchased or acquired:
iii.bears the brands, earmarks and marks (if any) specified in the annexure;
iv.does not bear any other brand, earmark or mark (other than any existing at the time of purchase or acquisition), and
v.are and remain easily identifiable;
(c)maintain all livestock in a clean and healthy condition and ensure that all livestock is properly fed, sheltered and cared for;
(d)deliver on demand to Lender a written statement containing details of all livestock and the location of that livestock, such statement to be in, or substantially in, the same form as the annexure;
(e)provide all medicines and veterinary assistance to the livestock which, according to good husbandry, should be provided;
(f)keep separate certain parts of the livestock which according to good husbandry should be kept separate;
(g)properly maintain the land including the control of vermin and weeds and construction and maintenance of proper fencing;
(h)Immediately replace any of the livestock which die or become lost with other stock of like nature and of similar value.
4.REPRESENTATIONS AND WARRANTIES
4.1Representations and warranties
The mortgagor represents and warrants that:
(a)its obligations under this document and any other relevant document are enforceable;
(b)all information provided by it to Lender at any time is and was true and correct and is not and was not false or misleading;
(c)it has complied with all laws and directions of any government bodies concerning the mortgaged property;
(d)it has obtained all consents from all government bodies necessary for the execution delivery and registration of this document and all other relevant document;
(e)it has complied with all environmental legislation which affects it the mortgaged property and the conduct of its business;
(f)there are no environmental liabilities affecting t the mortgaged property or arising from the conduct of its business;
(g)it is the owner of the mortgaged property free of all security interests other than in favour of Lender or as previously notified to Lender in writing;
(h)the representations and warranties given by it in each other relevant document are true and correct;
(i)unless it has disclosed the contrary to Lender in writing prior to the date of this document it is not the trustee of any trust; and
(j)no representation warranty promise assurance or other statement has been made to it by any person (including Lender and its servants and agents) concerning or relating to any relevant document other than those contained in the relevantdocuments;
4.2Reliance
The mortgagor acknowledges that Lender relies on the representations warranties covenants and acknowledgements set out in this mortgage and the other relevant documents in agreeing to provide financial accommodation to or at the request of the mortgagor and that Lender would not have done so but for those representations warranties covenants and acknowledgements.
4.3Survival and repetition
Each representation and warranty in this clause aid elsewhere in this document survives the execution of this document and is deemed to be repeated with reference to the facts and circumstances then existing on the first business day of each month andon ea h date that Lender provides financial accommodation to or at the request or direction of the mortgagor.
5.COVENANTS
5.1General obligations
The mortgagor must:
(a)punctually perform all of its obligations under each relevant document;
(b)provide to Lenderrevised cash flow statements and budgets if those previously provided to Lender have materially altered;
(c)keep and maintain proper books of account (in accordance with the Corporations Act if applicable) and make true and correct entries of all its dealings and make its accounts and financial records available for inspection by Lender;
(d)provide any information Lender may reasonably request in relation to its financial condition and its business operations;
(e)take all action necessary to obtain and promptly renew all authorities approvals consents licences, waterentitlements and exemptionsrequired under any applicable law to conduct its business operations and to perform its obligations under or required on its part for me validity and enforceability of each relevant document including makeall payments when due under any lease, licence o other arrangements made by the mortgagor for these of an/ property;
(f)notify Lenderin writing as soon as it becomes aware of:
i.an event of default t or a potential event of default;
ii.any actual or threatened litigation arbitration or mediation proceeding relating to it or the mortgaged property where the amount involved is greater than $10 000;
iii.any notification to it of a proposal to compulsory acquire any of the mortgaged property; and
iv.any other thing which might result or has resulted in a material adverse change in its financial condition or ability to perform any of its obligations under this document or any other relevant document;
(g)comply with the provisions of the Corporations Act (if applicable), all environmental legislation and all other laws;
(h)remedy every defect in its ownership of any part of the mortgaged property and take or defend any legal proceedings Lender thinks advisable toprotect or recover any of the mortgaged property;
(i)punctually comply with all requirements of any government body;
(j)keep the mortgaged property free from liability to forfeiture, cancellation, avoidance or loss;
(k)punctually pay all rents instalments of purchase money, stud fees, interest, rates, taxes and other money in respect of the mortgaged property and at the request of Lender deliver evidence of its payment;
(l)punctually perform all its obligations to any other person under any agreement or document;
(m)not without the prior written consent of Lender, which Lender must not unreasonably withhold or delay:
i.permit any debt which is due for payment to it to remain unpaid;
ii.increase the amount secured by a security interest in the mortgaged property to a person other than Lender;
iii.permit the registration of a transfer or transfers of any share or shares, or make allotments of shares in the capital of the mortgagor which has or will have the effect of changing effective control of the mortgagor, or
iv.change the general character of its business;
(n)carry on and conduct its businesses in a proper and efficient manner;
(o)not permit its interest (if any) in the land to be transferred;
(p)allow Lender, its servants and agents access at all times to the mortgaged property and the land to view the condition of the mortgaged property and exercise any right or power of Lender or perform any obligation or duty which the mortgagor should have performed under this document or any relevant document; and
(q)maintain all water entitlements and authorities and not, without the prior written consent of Lender, permit any water entitlements and authorities to be surrendered, forfeited, sold, transferred, cancelled, encumbered or otherwise dealt with.
5.2Lender may remedy
Lender may in its discretion (without any obligation to do so) make good or cause to be made good any default on the part of the mortgagor in the performance or observance of any covenant or obligation contained or implied in this document. If Lender does anything under this clause it is not to be deemed a mortgagee in possession acting under this document and all action taken by Lender will be at the mortgagor's cost. All moneys expended by Lender form part of the secured money.
6.INSURANCES
The mortgagor must unless otherwise agreed by Lender in writing:
i.insure and keep insured all the mortgaged property able to be insured against loss or damage by fire and such other risks against which a prudent owner would insure for their full insurable value and other insurances specified by Lender with a solvent and respectable insurer approved by Lender;
ii.ensure that the interest of Lender as mortgagee is noted on each insurance policy;
iii.provide evidence of the currency of all insurances and, following a request by Lender, deposit with Lender all insurance policies and certificates of insurance in connection with the mortgaged property;
iv.not do anything which might prejudice any insurance policy and notify Lender immediately if an event occurs which gives rise or might give rise to a claim under, or which could prejudice, an insurance policy;
v.apply the proceeds of insurance at the option of Lender either towards replacing the mortgaged property or towards payment of the secured money; and
vi.notify Lender if an event occurs which gives rise or might give rise to a claim under an insurance policy where the recoverable amount may exceed $10,000 and in respect of such claim the mortgagor irrevocably authorises Lender to make, enforce, settle, compromise, make demand, sue for, recover and give discharges for payments received in respect of any such claim in the name of the mortgagor and the mortgagor may not take any such steps without Lender' prior written consent.
7.PAYMENT OBLIGATIONS
7.1Pay secured money
The mortgagor must pay the secured money to Lender in accordance with its obligations under any relevant document If the secured money is payable on demand or if there is no stipulated time for payment the mortgagor must pay it to Lender on demand.
7.2Pay interest
The mortgagor must pay interest on the secured money to Lender in accordance with its obligations under any relevant document and, if there are no such obligations, on demand.
7.3Interest rate
The interest rate for the purposes of clause 7.2will be the rate expressed in the relevant documents relating to the relevant portion of the secured money but if no rate is expressed, the rate will be the rate charged by Lenderfrom time to time on its Lender Standard Secured Rate.
7.4Manner of payment
All payments required to be made under or in connection with this document must be made:
(a)in cleared funds free of any set-off, counterclaim or deduction;
(b)on a business day;
(c)in Australian dollars; and
(d)to Lender at its address shown in this document or as subsequently advised to the mortgagor in writing.
7.5Interest on unpaid amounts
The mortgagor must pay interest on any part of the secured money due cut unpaid at the higher of the rates being:
(a)the aggregate of 3% per annum and the interest rate applicable to the unpaid portion of the secured money; and
(b)the aggregate of 3% per annum and the rate charged by Lender from time to time on its Lender Standard Secured Rate.
7.6Calculation of interest
Interest is calculated daily on the basis of a 365 day year Interest on unpaid amounts is calculated from but excluding the date the payment was due to and including the date the payment is made Interest not paid when due will be capitalised monthly.
7.7Early repayment
Lender is not obliged to accept payment of any part of the secured money except at the times and in the manner specified in any relevant document or as otherwise expressly agreed in writing by Lender.
7.8Merger
If the liability of the mortgagor to pay toLender any moneys payable under a relevant document becomes merged in any deed judgement order or other thing then the mortgagor must pay interest on the amount owing from time to time under that deed judgement order or other thing at the higher of the rate payable under the applicable relevant document and that rate fixed by, or payable under that deed judgement order or other thing.
7.9GST
The mortgagor agrees that:
(a)unless otherwise expressly provided any amount referred to in this document which is relevant in determining a payment to be made by one person to another is exclusive of GST; and
(b)if GST is levied or imposed on or in respect of any supply made under or in connection with this document for which the consideration is a monetary payment then the amount payable for that supply is increased by the rate at which GST is levied or imposed.
8.FURTHER ASSISTANCE
8.1Action by mortgagor
When requested by Lender the mortgagor must door cause to be clone anything requested by Lender to provide more effective security over the mortgaged property to Lender to facilitate the realisation of the mortgaged property to aid in the execution or exercise of any right power, remedy or authority under this document and to perfect or preserve the priority or enforceability of this document including anything necessary to renew the registration of this document and by obtaining the consents of each owner of the land in the form of the consent attached to this document.
8.2Action by mortgagor
The mortgagor must if requested byLender and permitted by applicable law assign to or secure in favour of Lender as security for payment of the secured money any authority or water entitlement (whether obtained before or after the date of this document) and for this purpose the mortgagor must execute and deliver to Lender any document Lender may reasonably request The mortgagor must keep each authority and water entitlement free from liability to forfeiture, cancellation, avoidance or loss.
8.3Charge
As a separate and independent obligation the mortgagor charges to Lender all of the following to secure the due and punctual payment of the secured money and the due and punctual performance of each of the mortgagor's other obligations in this document and in any other relevant document: