Interpretation

1.1Definitions

In this document, unless the context requires otherwise:

Agreement means the Petroleum Reserves Supply and Storage Agreement
between the Supplier and the Crown dated [ ].

Attorney means a person appointed under this document as an attorney of the Supplier, and includes any agent or delegate of such a person.

Default means:

1. the occurrence of any Event of Default; or
2. any event or circumstance which, with the giving of notice or lapse of time, would constitute an Event of Default.

Event of Default means any of the events or circumstances specified in clause

8.1 (Events of Default).

PPSA means the Personal Property Securities Act 1999.

Receiver means a person appointed under this document as receiver, or as a receiver and manager.

Secured Obligations means all present and future obligations which the Supplier (whether alone or with any other person and in any capacity) has or owes to the Crown (whether alone or with any other person and in any capacity) under or in connection with this document or the Agreement, including the payment of all indebtedness of the Supplier to the Crown under or in connection with this document or the Agreement.

Secured Property means all present and after-acquired petroleum and petroleum products that comprise Reserve Stocks that are provided and held by the Supplier from time to time in accordance with the Agreement, wherever located (including at the Storage Facilities specified in the Agreement), and includes:

1. refined petroleum products,
2. petroleum in its unrefined natural state,
3. petroleum or petroleum products described or referred to (whether by kind, location, volume or otherwise) in the Agreement, the schedule to this document or any confirmation issued under the Agreement (substantially in the form, or containing the information referred to in, the schedule to this document) on the basis that such description or reference contained in the Agreement or confirmation is deemed to be incorporated into, and form part of, this document and references to “Secured Property” shall be construed accordingly,
4. all present and future rights in relation to any of the above,
5. any part of it, provided that:
6. where Product is removed from a Storage Facility in a manner that is permitted by clauses 10 or 20 of the Agreement, the Product that is removed from the Storage Facility ceases to be Secured Property and any replacement Product that is deposited into the Storage Facility shall become Secured Property (without any further action or notice by the Crown); and
7. where, under clause 15 of the Agreement, Product is held in a tank that also contains other product which is not Secured Property, Secured Property means the portion of the tank’s contents that is equal to the amount of Reserve Stocks that is recorded in Schedule 3 of the Agreement (or any confirmation referred to in paragraph (c) above) as being held in that tank.

1.2 References In this document, unless the context requires otherwise any reference to:

agreement includes a contract, deed, or legally enforceable arrangement, whether present or future, and whether or not in writing.

authorisation includes any consent, authorisation, registration, filing, permit, order, recording, lodgement, agreement, notarisation, certificate, permission, licence, approval, authority or exemption from, by or with a governmental authority.

disposal includes any sale, assignment, exchange, transfer, loan, lease, surrender of lease, licence or parting with possession of, or the granting of any option, right or interest, or any agreement for any of the foregoing (but excludes any such transaction which is a security), and dispose, acquisition and acquire are to be construed accordingly.

expenses includes all expenses, losses, claims, costs (including legal costs on a solicitor and own client basis), disbursements, taxes, travel expenses, out of pocket expenses, and audit, investigative or administrative costs.

indebtedness includes any obligation (whether present or future, actual or contingent, secured or unsecured, joint, several or joint and several, and as principal or surety or otherwise) for the payment or delivery of money, and debt is to be construed accordingly.

perform includes pay.

person includes an individual, a body corporate, any association of persons (whether corporate or not), a trust, and a state and any governmental authority (in each case whether or not having separate legal personality).

right includes any right, power, remedy, authority or discretion.

security includes:

1. any mortgage, charge, encumbrance, lien, pledge, finance lease, sale (or lease) and lease-back, sale and repurchase, assignment by way of security, title retention arrangement or similar interest imposed by statute, or other arrangement of any nature having similar economic effect to any of the foregoing; and
2. any present or future right or interest in personal property that is a security interest for the purposes of the PPSA.

working day means every day except Saturdays, Sundays and days that are statutory holidays in both Auckland and Wellington.

written and in writing include all means of reproducing words in a tangible and permanently visible form including by facsimile transmission.

1.3 Agreement terms incorporated

Any terms that are defined in the Agreement but are not also defined in this document have the same meanings as given to them in the Agreement.

1.4 PPSA terms incorporated

In this document, unless the context requires otherwise, the following words and expressions (and grammatical variations of them) have the same meanings as are given to them in the PPSA, at risk, attach, commingled, financing statement, personal property, proceeds, security interest, transfer, and verification statement.

1.5 Construction

In this document, unless the context requires otherwise:

1. Headings: headings are for convenience only, and do not affect
   interpretation;
2. Singular and plural: the singular includes the plural and the converse;
3. Particular party or person: a reference to a particular party or person includes that party’s or person’s executors, administrators, successors, substitutes and assigns;
4. Agreement or document: a reference to an agreement or a document is to the agreement or document as amended, novated, supplemented or replaced from time to time;
5. Legislation: a reference to legislation or to a provision of legislation includes any amendments and re-enactments of it, a legislative provision substituted for it and a statutory regulation, rule, order or instrument made under or issued pursuant to it;
6. Time to time: anything which may be done at any time may also be done from time to time; and
7. Including: a reference to including, for example or such as, when introducing an example, does not limit the meaning of the words to which the example relates to that example or examples of a similar kind.

2. COVENANT TO PERFORM

2.1 Secured Obligations

The Supplier agrees that it will perform the Secured Obligations in accordance with the Agreement and this document (as the case may be).

3. GRANT OF SECURITY

3.1 Security interest

To secure to the Crown performance of the Secured Obligations the Supplier grants to the Crown a fixed charge in and over, and assigns to the Crown by way of security, the Secured Property.

3.2 Further assurances

The Supplier agrees that it will, at its own cost, promptly do all things that the Crown requires in order:

1. to perfect the Supplier’s title to, or other right or interest in, all or any part of the Secured Property;
2. to maintain, perfect, or otherwise give full effect to the security intended to be created under this document, and the priority of that security (including the making and maintaining of all registrations);
3. to facilitate the exercise of any right by the Crown or any Receiver or Attorney at any time;
4. to facilitate the transfer, delivery and/or other realisation of the Secured Property following the occurrence of an Event of Default; and
5. otherwise to enable the Crown to obtain the full benefit of this document.

3.3 Security continuing and independent

Each of this document, and the security created under it, is:

1. a continuing security and operates despite any exercise of rights or other matter or circumstance;
2. in addition to and enforceable independently of any other security or
   guarantee; and
3. to remain in full force and effect (whether or not at any given time the Supplier is obliged, in favour of the Crown, to perform any obligation) until the execution by the Crown of an unconditional release of this document.

3.4 Release

The Crown is not obliged to execute a release of this document or release any Secured Property from the security created under it, unless all Secured Obligations have been finally performed, the Agreement has been terminated and neither the Crown or the Supplier is under any further obligation to do any thing which would give rise to Secured Obligations.

4. PRIORITY

4.1 Priority of security interest

Except to the extent otherwise expressly agreed in writing by the Crown, the security created under this document is intended to be first ranking in priority.

4.2 No agreement or consent to subordination or attachment

Except to the extent otherwise expressly agreed in writing by the Crown, nothing in this document may be construed as an agreement or consent by the Crown to:

1. subordinate the security created under this document in favour of any person; or
2. defer or postpone the date of attachment of the security created under this document.

5. REPRESENTATIONS AND WARRANTIES

5.1 General representations and warranties

The Supplier represents and warrants to the Crown that:

1. Status: it is a company duly incorporated and validly existing under the laws of its jurisdiction of incorporation;
2. Power and authority: it has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, and performance and delivery of, this document and the Agreement;
3. Binding obligations: the obligations expressed to be assumed by it in this document and the Agreement are legal, valid, binding and enforceable in accordance with their terms, and the security created under this document is validly and effectively created and is enforceable;
4. Non-conflict: its entry into, and the exercise of its rights and compliance with its obligations under, this document and the Agreement do not and will not:
   1. conflict with any law or regulation applicable to it;
   2. conflict with any of its constitutional documents;
   3. conflict with any agreement or document binding upon it or any of its assets; or
   4. exceed any limitation on, or constitute an abuse of, the powers of its directors;
5. Validity and admissibility: all authorisations required or desirable:
   1. to enable it lawfully to enter into, and exercise its rights and comply with its obligations under, this document and the Agreement; and
   2. to make this document and the Agreement admissible in evidence in its jurisdiction of incorporation, have been obtained or effected and are in full force and effect;
6. No default: except as notified in writing by the Supplier to the Crown, no Default has occurred and is continuing; and
7. Solvency: except as notified in writing by the Supplier to the Crown, it is able to pay its debts as they fall due and the value of its assets is greater than the value of its liabilities (taking into account contingent and prospective liabilities).

5.2 Representations and warranties relating to Secured Property

The Supplier represents and warrants to the Crown that, except to the extent otherwise expressly agreed in writing by the Crown, in respect of all Secured Property existing as at the date of this document, or, if later, the Availability Date:

1. it has good title to, and is the sole legal and beneficial owner of, that Secured Property;
2. no security exists over or affects any of that Secured Property;
3. it has not entered into any agreement to give or permit to exist a security over or affecting that Secured Property; and
4. it is lawfully entitled to create, in favour of the Crown, security in that Secured Property.

5.3 Repetition of representations and warranties

Each of the representations and warranties made by the Supplier in:

1. Generally: this clause 5 (Representations and Warranties) will be deemed to be repeated on the first day of each calendar month during the term of this document after the Availability Date, by reference to the facts and circumstances then existing; and
2. After-acquired Property: clause 5.2 (Representations and warranties relating to Secured Property) will be deemed to be made in respect of any Secured Property (including after-acquired property) which comes into existence, or in which the Supplier acquires rights or an interest, after the date of this document, at the time that Secured Property comes into existence or the Supplier acquires rights or an interest in it.

6. UNDERTAKINGS

6.1 General undertakings

The Supplier agrees that, except to the extent otherwise expressly agreed in writing by the Crown, it:

1. Maintain corporate existence:will maintain its corporate existence in its current jurisdiction of incorporation;
2. No amalgamation: will not enter into any amalgamation;
3. c) Comply with laws: will comply with all laws and other requirements of any governmental authority, which are material to:
   1. the Secured Property, or any right or interest of the Supplier or the Crown in the Secured Property; or
   2. the security created under, or rights under, this document; and
4. Authorisations: will obtain, comply with and maintain in full effect all authorisations which are material to:
   1. the Secured Property, or any right or interest of the Supplier or the Crown in the Secured Property; or
   2. the security created under, or rights under, this document.

6.2 Information undertakings

The Supplier agrees that, except to the extent otherwise expressly agreed in writing by the Crown, it:

1. Notify Default: will notify the Crown of any Default (and the steps, if any, being taken to remedy it) promptly on becoming aware of its occurrence;
2. Name change and relocation: will notify the Crown in advance of any change of its name (including any name by which it is known or under which it trades) or if it proposes to relocate its principal place of business from the place previously notified to the Crown as being its principal place of business;
3. Provide other information: will provide to the Crown promptly such further information regarding the Secured Property as the Crown reasonably requests; and
4. Information to be true: will ensure that all information provided by it to the Crown in connection with this document after the date of this document is true and accurate in all material respects as at the date when that information is provided and will not omit to state any fact or circumstance which would make that information untrue, inaccurate or misleading in any material respect.

6.3 Undertakings relating to Secured Property

The Supplier agrees that, except to the extent otherwise expressly agreed in writing by the Crown, it:

1. No other security:will not create or permit to exist any security over or in relation to any Secured Property (other than in favour of the Crown);
2. No disposal:will not use or dispose of, or permit the use or disposal of, any Secured Property, except as permitted under clause 7 (Permitted Dealings);
3. Comply with obligations:will comply in all material respects with all its other obligations under or in relation to the Secured Property; and
4. No prejudice to Secured Property: will not do (or omit to do) anything which might:
   1. result in the Secured Property, any right or interest of the Supplier in the Secured Property, or any security created under this document, being or becoming invalid, unenforceable, liable to forfeiture or cancellation; or
   2. otherwise adversely affect the security created under this document.

7. PERMITTED DEALINGS

7.1 Nothing in this document shall limit the Supplier’s ability or obligation to:

1. turnover Product as required under, but solely in accordance with, clause 10 of the Agreement; or
2. make the Reserve Stocks available to the Crown as required under, but solely in accordance with, clause 20 of the Agreement.

8. ENFORCEMENT

8.1 Events of Default

Each of the following events or circumstances is an Event of Default:

1. Specific obligations: the Supplier does not comply with clause 6.2(a) (Notify Default) or clause 6.3 (Undertakings relating to Secured Property) of this document;
2. Other obligations:the Supplier does not comply with any provision of this document (other than as referred to in (a) above) and the failure to comply, if capable of remedy, is not remedied within 10 business days of its occurrence; or
3. Misrepresentation:any representation or warranty made or deemed to be made by the Supplier in this document, or any other document delivered by or on behalf of the Supplier under or in connection with this document, is or proves to have been incorrect or misleading in any material respect when made or deemed to be made;
4. Vitiation of documents: all or any part of this document or the Agreement:
   1. is or may become, void, illegal, invalid, unenforceable or of limited force and effect;
   2. is or becomes capable of being avoided, rescinded, terminated or cancelled by the Supplier; or
   3. is repudiated or any liability or obligation owed to the Crown under it is limited or reduced, or any person other than the Crown evidences any intention to repudiate, reduce or limit any liability or obligation under it;
5. Creditors’ process: any expropriation, attachment, sequestration, distress or execution affects any Secured Property;
6. Secured Property at risk:in the opinion of the Crown, any material item or items of the Secured Property is or are at risk (as defined in section 109(2) of the PPSA);
7. Unlawfulness: it is or becomes unlawful for the Supplier to perform any of its obligations under this document or the Agreement;
8. Withdrawal of authorisation: any authorisation at any time necessary in connection with this document or the Agreement , or its implementation or performance (including enforcement):
   1. expires;
   2. is revoked, cancelled, withdrawn or modified in a manner unacceptable to the Crown; or
   3. otherwise ceases to remain in full force and effect, and is not replaced by an authorisation acceptable to the Crown;
9. Insolvency:
   1. the Supplier is presumed unable or admits that it is unable to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness;
   2. the value of the assets of the Supplier is or becomes less than the value of its liabilities (taking into account contingent and prospective liabilities); or
   3. a moratorium is declared in respect of any indebtedness or other obligations of the Supplier; and
10. Agreement event of default: without limiting clause 8.1(i), an event occurs that would entitle the Crown to terminate the Agreement under paragraphs (a), (b), (d), (g) or (h) of clause 28.3 of the Agreement.

8.2 Consequences of Event of Default

If an Event of Default occurs then (in addition to any other consequences provided for by this document or the Agreement):

1. Security enforceable: the security created under this document will become immediately enforceable; and
2. The Crown’s rights:the Crown may do either or both of the following:
   1. upon notice to the Supplier terminate any or all of the Crown’s obligations under this document; and
   2. (whether or not a Receiver has been appointed) exercise all or any rights which a person would have if appointed as a Receiver under this document.

9. RECEIVER

9.1 Appointment of Receiver

If:

1. an Event of Default has occurred which has not been remedied to the satisfaction of, or waived by, the Crown; or
2. the Supplier so requests, the Crown may appoint any person or persons (whether jointly, severally or jointly and severally) to be a receiver, or receiver and manager, of all or any of the Secured Property. The Crown may do this whether or not it has exercised any other right and even if dissolution of the Supplier has already commenced. The Crown may do this after the discontinuance of any earlier receivership.

9.2 Additional rights

At any time upon or following the appointment of any Receiver, the Crown may:

1. determine, or vary, the terms of appointment of the Receiver;
2. require any Receiver to give it security or an indemnity for the due performance of the Receiver’s duties;
3. remove any Receiver; and
4. appoint another Receiver in addition to, or in place of, any Receiver.

9.3 Remuneration

The Crown may, subject to the Receiverships Act 1993, determine or vary the remuneration of any Receiver. Such remuneration:

1. may be (or may include) a commission;
2. is payable by the Supplier; and
3. will be secured by the security created under this document.

9.4 Receiver agent of Supplier

Every Receiver is the agent of the Supplier, except where (but only to the extent that) the Receiver is required by notice from the Crown to act as agent of the Crown. The Crown is not responsible for a Receiver's actions (including any misconduct, negligence or default of the Receiver).

9.5 Receiver’s rights

In addition to, and without limiting or affecting, any other rights granted to or conferred on a Receiver (whether under the Receiverships Act 1993, at law or otherwise), and subject to the specific terms of appointment of each Receiver, each Receiver has the right in respect of the Secured Property to do anything (whether alone or with any other person) that the Supplier could do as if the Receiver had full legal and beneficial ownership of the Secured Property.

9.6 Exercise of Receiver’s rights

Every Receiver will, to the fullest extent permitted by law, exercise its rights in compliance with any directions issued by the Crown, and otherwise on such terms and conditions as the Receiver requires.

9.7 Withdrawal

The Crown may at any time give up possession of any Secured Property or discontinue any receivership.

10.APPLICATION OF AMOUNTS

10.1 Order of application

All amounts received or recovered, or applied, by the Crown or any Receiver from the security created under this document will be applied in the manner and order determined by the Crown or any Receiver. In the absence of any determination, those amounts will be applied in the order described in clause 10.2 (Order of application where no determination). This clause is subject to:

1. any claims ranking in priority to the security created under this document; and
2. any mandatory provisions of law (including, in the case of any personal property, any mandatory provisions of the PPSA).

10.2 Order of application where no determination

Subject to clause 10.1 (Order of application), amounts received or recovered by the Crown or any Receiver from the security created under this document will be applied in payment:

1. first, of all expenses incurred by the Crown, the Receiver and any Attorney in the exercise, or attempted exercise, of rights under, or otherwise in connection with, this document or the Agreement;
2. secondly, of the Receiver’s remuneration;
3. thirdly, of all Secured Obligations which comprise indebtedness of the Supplier to the Crown under or in connection with this document or the Agreement;
4. fourthly, to each holder of a security of which the Crown is aware and which ranks after the security created under this document in relation to the relevant Secured Property, to the extent, and in the order, of such priority; and
5. fifthly, of any surplus to the Supplier (including for receipt on behalf of any other persons who may be entitled to the same).

10.3 Crown may retain and apply Secured Property

Nothing in clause 10.1 or 10.2 above shall be construed as limiting the right of the Crown or any Receiver (including under section 120(2) of the PPSA) to take possession of, and/or retain and apply, the Secured Property in satisfaction of the Secured Obligations after an Event of Default. As between the Crown and the Supplier, neither the Crown nor any Receiver shall be obliged to sell the Secured Property after enforcement against the Secured Property under this document.

11. PPSA

11.1 Waiver and section 109

Without limiting any other provision of this document or the Agreement, the Supplier:

1. waives its right to receive any verification statement in respect of any financing statement or financing change statement relating to any security interest created under this document;
2. agrees that, at any time after an Event of Default has occurred, the Crown may:
   1. take possession of any personal property; and/or
   2. retain and apply any personal property in satisfaction of the Secured Obligations; and/or
   3. dispose of any personal property in such manner and generally on such terms and conditions as the Crown thinks desirable, and otherwise do anything the Supplier could do in relation to the personal property.

The Crown and the Supplier agree that section 109(1) of the PPSA is contracted out of in respect of particular personal property if and only for so long as the Crown is not the secured party with priority over all other secured parties in respect of that particular personal property.

11.2 PPSA – Part 9 and additional rights

The Supplier and the Crown agree that, to the extent permitted by law and in respect of this document and each security interest created under this document:

1. the Supplier and the Crown contract out of sections 114(1)(a), 133 and 134 of the PPSA;
2. the Supplier and the Crown contract out of the Supplier’s rights to (and the Supplier waives its rights to):
3. receive notice of the Crown’s proposal to retain personal property under section 120(2) of the PPSA;
   1. object to the Crown’s proposal to retain any personal property under section 121 of the PPSA;
   2. (without limiting clause 11.3 (Supplier’s right to redeem personal property)) redeem any personal property under section 132 of the PPSA.

11.3 Supplier’s right to redeem personal property

After an Event of Default has occurred, the Supplier may redeem personal property if:

1. the Crown:

has not sold or agreed to sell that personal property; and

1. has not applied or taken, and is not deemed to have taken, that personal property in satisfaction of the Secured Obligations; and
2. all Secured Obligations have been finally performed, the Agreement has been terminated and neither the Crown or the Supplier is under any further obligation to do any thing which would give rise to further Secured Obligations.

11.4 Other rights

Where the Crown has rights in addition to, or existing separately from, those in

the PPSA, those rights will continue to apply and are not limited or excluded (or

otherwise adversely affected) by any right provided by this document or the

Agreement or by law.

12. POWER OF ATTORNEY

The Supplier irrevocably appoints the Crown, every person who is a Crown’s

Representative and every Receiver, separately, for valuable consideration and by way of security, to be the attorney of the Supplier with power to:

1. at the Supplier’s expense, do anything the Supplier is obliged to do under this document and has failed to do;
2. do anything the Attorney thinks desirable to:
   1. secure performance of the Secured Obligations; and
   2. give effect to the rights conferred on the Crown or any Receiver by this document, or by law or otherwise,

even if the Attorney has a conflict of duty or interest in doing so

3. delegate its rights (including this right of delegation) to any person for any period (and to revoke any such delegation); and
4. appoint any person its agent for any period (and to revoke any such appointment).

The Supplier agrees to ratify everything done by an Attorney, or by any delegate or agent of any Attorney, in accordance with this clause.

13. PROTECTIONS

13.1 Protection of Crown and Receiver

Subject to any mandatory provisions of law, neither the Crown nor any Receiver is:

1. obliged to enforce performance of the Secured Obligations;
2. liable to account as mortgagee in possession in respect of the Secured Property;
3. accountable for any proceeds of enforcement other than those proceeds actually received by it;
4. liable for any loss resulting from or consequential upon the exercise, attempted exercise, or non-exercise of any right; or
5. liable for any loss resulting from or consequential upon any of the other matters set out in this clause.

13.2 Protection of third parties

No person dealing with or entering into a transaction with the Crown or any Receiver or Attorney of the Crown or any Receiver, need enquire:

1. whether an Event of Default has occurred or is continuing or this document or the security created under it has become enforceable;
2. whether any Receiver or Attorney has been properly appointed;
3. whether any right was exercised or is exercisable;
4. as to the propriety or regularity of any transaction or dealing; or
5. as to the application of any amount paid to the Crown or any Receiver, or to any Attorney.

14. COSTS AND INDEMNITIES

14.1 Expenses

The Supplier agrees to pay to the Crown, on demand the amount of all expenses incurred by the Crown in connection with the exercise, enforcement or preservation, or attempted exercise, enforcement or preservation of any rights under this document, or enforcing any Secured Obligation.

14.2 Stamp duty

The Supplier agrees to pay all stamp, documentary, transaction, registration and other similar taxes (if any) which may be payable in relation to this document or the security created under it, and agrees to indemnify and hold harmless the Crown on demand for and against all expenses and liabilities in connection with such taxes.

14.3 Indemnities

The Supplier agrees to indemnify and hold harmless the Crown, each Receiver and each Attorney on demand for and against all expenses and liabilities incurred or sustained by the Crown, any Receiver or any Attorney in connection with:

1. the exercise, enforcement or preservation, or attempted exercise, enforcement or preservation of any rights under this document (including expenses and liabilities resulting from a mistake or error of judgment); and
2. possession of, or any right or interest in, the Secured Property, or any liability, control or right relating to any Secured Property or the Supplier.

Each amount due under this indemnity will be secured by the security created under this document.

15. ASSIGNMENT

Neither party may assign or otherwise dispose of, or declare a trust over or otherwise create an interest in, any of its rights under this document without the prior written consent of the other party, provided that such consent is not required where the Crown is also assigning the Agreement under clause 39.2(b) of the Agreement.

16. COMMUNICATIONS

Each notice or other communication under this document:

1. must be in writing and given by delivery, post or facsimile;
2. must be given to the addressee at the address or facsimile number, and marked for the attention of the person or office holder (if any), from time to time designated for the purpose by the addressee to the other party. The initial address, facsimile number and relevant person or office holder of each party is set out beneath its name on the execution page at the end of this document; and
3. will be deemed to be received by the addressee:
   1. if delivered, upon delivery;
   2. if sent by post, on the second business day after posting; and
   3. if sent by facsimile, upon production of a completed transmission report by the machine from which the facsimile was sent. However, if that notice or other communication is received or deemed received after 5.00 p.m. on a business day in the place to which it is sent, or on a non-business day in that place, it will be deemed to be received by the addressee on the next business day in that place.

17. GENERAL

17. Rights

The Crown may take any action it thinks desirable to:

1. remedy any failure by the Supplier to comply with its obligations under this document; or
2. protect the security created under this document.

However, this entitlement does not impose any obligation on the Crown to take any such action, or affect any obligation of the Supplier under this document.

17.2 Indemnities generally

Each indemnity in this document is a continuing obligation, separate and independent of other obligations under this document, and will survive termination of, or any release of or under, this document.

17.3 Discretions

Except to the extent otherwise expressly provided, the Crown or any Receiver may act in its absolute and sole discretion when forming any opinion, exercising (or not exercising) any right, taking (or not taking) any action, giving or withholding consents or releases, dealing with any other matter, or imposing any terms in respect of any such matter.

17.4 No limitation

The Crown’s rights under this document do not limit, and are in addition to, any other right to which the Crown is at any time entitled (whether under this document or by law, agreement or otherwise) and may be exercised by the Crown without prior notice to the Supplier or any other person.

17.5 Waiver

A waiver by the Crown of any provision of this document will only be effective if it is given in writing and signed by the Crown. A waiver will be effective only to the extent that it is expressly stated to be given. A failure to act or delay in exercising or attempting to exercise, or a non-exercise of, any right under this document does not operate as a waiver of that right. A single exercise or partial exercise of any right does not preclude further exercises of that right or the exercise of any other right.

17.6 Certificates and determinations

Any certificate or determination by the Crown as to any fact which might reasonably be expected to be within the Crown’s knowledge will be, in the absence of manifest error, prima facie evidence of the matters to which it relates.

17.7 Immunity

The Supplier waives any immunity (including from any proceeding and enforcement process) it may have in any jurisdiction.

17.8 Moratorium legislation

To the maximum extent permitted by law, all moratorium legislation is negated and excluded from application to this document, to the extent that it directly or indirectly:

1. lessens, varies, or affects, in favour of the Supplier, any Secured
   Obligation; or
2. delays, prevents, or adversely affects the exercise of any right by the
   Crown or any Receiver or Attorney.

17.9 Conflict of provisions

In the event of a conflict between a provision of this document and a provision of the Agreement, the Crown may, in its absolute discretion, determine which prevails.

17.10 Amendments

No amendment to this document will be effective unless it is in writing and signed by both parties.

17.11 Contracts (Privity) Act 1982

For the purposes of the Contracts (Privity) Act 1982, each Receiver and each Attorney is entitled to enforce against the Supplier each provision of this document which confers a benefit upon a Receiver or Attorney (as the case may be). However, none of them need consent to any amendment made to this document.

17.12 Partial invalidity

The illegality, invalidity, or unenforceability of any provision of this document under the law of any relevant jurisdiction will not affect the legality, validity or enforceability of that provision under any other law, or the legality, validity or enforceability of any other provision of this document.