SCHEDULE 1 - INVESTMENT AGREEMENT

 

 

PARTIES:

1. Investor; and

2. Easy Step Investing Pty Ltd ACN 650 354 500

 

RECITALS:

1. The company is incorporated and carries on the Business and shares have been or are to be issued in the Investment in accordance with this agreement.

2. The Shareholders have subscribed for Shares in the Investment on or before the date of this agreement. 

3. The parties wish to set out in this agreement the terms and conditions upon which the business is to be conducted and the rights and obligations which will attach to their shares in the Investment.

 

OPERATIVE PART

1. Interpretation

This agreement is governed by the laws of New South Wales and the parties submit to the nonexclusive jurisdiction of the courts of that state.

In the interpretation of this agreement:

1. References to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;

2. Words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, references to documents or agreements also mean those documents or agreements as changed, novated or replaced, and words denoting one gender include all genders;

3. Grammatical forms of defined words or phrases have corresponding meanings;

4. Parties must perform their obligations on the dates and times fixed by reference to the capital city of New South Wales;

5. Reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;

6. If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next business day;

7. References to a party are intended to bind their executors, administrators and permitted transferees; and

8. Obligations under this agreement affecting more than one party bind them jointly and each of them severally.

1. Definitions

In this agreement, unless the context otherwise requires:

Accounts mean the consolidated financial statements comprising the statement of financial position and the statement of financial performance of the trust prepared as at 30 June each year in accordance with the accounting standards and practices approved for the purpose of the Corporations Act;

Associate in relation to a body corporate means:

1. A director, secretary or shareholder of the body corporate;

2. A related body corporate of the body corporate;

3. A director, secretary or shareholder of a related body corporate;

4. The trustee or trustees of any trust under which the persons described in paragraphs (a), (b) and (c) or any of them may benefit; and

5. Any person or body corporate in concert with whom the body corporate is acting or proposes to act or is or proposes to become associated, whether informally or formally, in any other way in respect of the matter to which the reference relates;

Business means the business of purchasing, developing and on-selling land for the Project and any other business approved by special resolution of the directors from time to time;

Dispose means to grant options or rights of pre-emption over, sell, transfer, assign, part with the benefit of, declare a trust of, encumber or deal with;

 

Expert means an accountant specialising in and having wide experience in company valuations;

Encumbrance means mortgage, pledge, lien, charge, assignment, or any other security arrangement;

Insolvency event means in relation to a body corporate:

1. An administrator of the body corporate being appointed under the Corporations Act;

2. The body corporate executing a deed of company arrangement;

3. The body corporate being insolvent within the meaning of the Corporations Act;

4. The appointment of a receiver or receiver and manager in respect of the body

corporate or any part of its property; Ordinary resolution means:

1. In relation to a board meeting, a resolution approved by more than 50% in number of those directors present, whether in person or by telephonic or audio-visual means, and entitled to vote at a duly convened and held board meeting at which a quorum is present;

2. In relation to a shareholder meeting, a resolution approved by the holders of more than 50% of the issued shares present, whether in person or by proxy or by representative, and entitled to vote at a duly convened and held shareholder meeting at which a quorum is present;

Related body corporate means a body corporate which is deemed under the

Corporations Act to be related to a party which is a body corporate; and

Special resolution means:

1. In relation to a board meeting, a resolution approved by more than 75% in number of those directors present, whether in person or by telephonic or audio-visual means, and entitled to vote at a duly convened and held board meeting at which a quorum is present; and

2. In relation to a shareholder meeting, a resolution approved by the holders of more than 75% of the issued shares present, whether in person or by proxy or by representative, and entitled to vote at a duly convened and held shareholder meeting at which a quorum is present.

1. Share capital

   1. The share capital of the company shall be divided into different classes at such issue price as the directors may from time to time determine. Without prejudice to any rights previously conferred on the holders of any existing share, shares in the Investment may be issued by the directors with such rights privileges and conditions as the directors determine, up to a maximum of 100 shares. Unless as otherwise approved by the directors, the price for any issued Investment share must be paid on or before the date of this form. If at any time the issued share capital is divided into different classes of shares, the rights attached to any class may be varied with the consent in writing of the holders of three-quarters or more of the issued shares of that class.

   2. The capital of the Investment comprises:

Investment class Shares.

1. The holders of Investment class shares hold such shares subject to the following rights, privileges and conditions:

   1. The right to attend and vote at all meetings of the Investment on a show of hands to one vote for every share held and on every poll to one vote for every share held;

   2. Subject to the availability of funds after payment of any relevant dividend to the holders of Investment class shares, the right to participate in the dividends declared on that class of share at the end of each financial year or upon the sale of any real property asset of the Investment; and

   3. On winding up of the Investment they rank pari passu and have the right to repayment of capital and the participation in the division of any surplus assets or profits of the Investment.

1. Shareholding structure

   1. Shareholders

The shareholdings of the shareholder as at the date of this agreement are as set out in the Shareholding Schedule and, to the extent that any of these shares have not yet been allotted, the parties agree to do all acts and things necessary to cause those shares to be allotted as soon as possible.

The parties acknowledge and agree that the parties set out in the Shareholding Schedule have or will execute in counterpart versions of this agreement. 

1. Allotment of additional shares

   1. No unissued shares may be allotted by the Investment unless such shares have first been offered to each shareholder in proportion to their existing shareholding. In the event that any shareholder does not wish to acquire its proportion of the said unissued shares, the other shareholders will be entitled to acquire those shares in equal parts or as otherwise agreed between those shareholders.

   2. In the event that some or all of the shares are not acquired by the shareholder, the Investment may allot those shares to a person who is not a shareholder on terms which are no more favourable than those offered to the shareholder.

2. Allottee to be bound

Before any unissued shares may be allotted to a person who does not hold shares in the Investment, each of the shareholders and the Investment must ensure that the proposed allottee first enters into the then current version of this agreement.

1. Company Officers

   1. Appointment

The Company Officers of the Investment shall be those persons set out on the cover page until they resign, retire, die or are replaced by a special resolution of the board. They will be responsible for the management and operation of the Investment. No action or decision may be taken by the managing director in relation to any matter which requires a resolution of the board or the shareholders until such resolution has been passed.

1. Alternate directors

A director may appoint a person to be an alternate director in their place during any period in which the director is incapacitated or is unable to attend a meeting by reason of illness or injury, or is on scheduled vacation or is absent from New South Wales on work-related business.

1. Conflict of interest – Company officers Subject to clause 16, a company officer may not vote or make any decision where a conflict of interest exists and must advise the board immediately a conflict becomes apparent.

2. Conflict of interest – Shareholder

Subject to clause 16, a shareholder may vote at a meeting of shareholders notwithstanding a conflict of interest provided that the conflict of interest is disclosed to the meeting.

1. Meetings and voting

   1. Equality of Votes

The chairman of a board meeting or a shareholder meeting will mediate a further meeting of the directors or shareholders in the event of an equality of votes.

1. Voting at shareholder meetings

Subject to the rights attaching to any class of shares, at a shareholder meeting every shareholder of the Investment or as a representative, proxy or attorney of a shareholder and who is entitled to vote will:

1. On a show of hands have one vote; and

2. On a poll have one vote for each share held by that person.

3. Decisions by ordinary resolution

Subject to any provision to the contrary in this agreement or the Corporations Act, all resolutions of the shareholders and directors are to be by ordinary resolution.

1. Board meetings

Unless the directors otherwise agree, a board meeting must be convened at least once every calendar month and each director is to be given at least five business days’ notice of the date and agenda of each meeting.

1. Calling of meetings

Any director may at any time convene a meeting of the board and unless the directors otherwise specially agree, notice of all board meetings must be communicated to all directors by the secretary in writing by fax or email.

1. Minutes

The company must cause minutes of:

1. Each shareholder meeting to be promptly prepared and copies

circulated to the shareholders; and

1. Each board meeting to be promptly prepared and tabled for approval at the next board meeting and, if approved by the directors present at that board meeting, the chairman is to sign those minutes which then are prima facie evidence of the proceedings and decisions of the board meeting to which they relate.

1. Quorum requirements

The Quorum requirement for:

1. A shareholder meeting is the number of shareholders holding at least 75% of the total issued shares in the Investment including Kingdom Property

Holdings Pty Ltd ACN 639 946 811; and (ii) A board meeting is 2 directors.

• Adjournment where quorum not present

  1. If within 30 minutes from the time appointed for a shareholder meeting or board meeting, a quorum is not present, the meeting will stand adjourned to the same day in the next week at the same time and place, except if that day is a public holiday in which case the meeting will be adjourned to the same time and place on the next business day after that day. No notice of the adjourned meeting is required to be given to those entitled to notice of the meeting.

  2. If at such adjourned shareholder meeting or board meeting a quorum is not present, then any two or more shareholders or any two directors present will constitute a quorum and may transact the business for which the meeting was called except in respect of any matters which require a special resolution.

• Telephone meetings

If all shareholders or directors agree, their meetings may be held by telephone or by audio-visual means.

• Written resolutions

Subject to the Corporations Act, if all of the directors or all of the shareholders send to the directors and all other shareholders an email or sign a document containing a statement that they are in favour of a resolution in the terms set out in the document, a resolution in those terms is deemed to have been passed at a board meeting or a shareholder meeting held at the date and time at which the last required email was sent to the shareholders or the document was last signed by a director or shareholder.

• Reports to Shareholders

At least once per quarter, the Company must provide to the Shareholders an email or electronic report including:

1. The current value of every asset held, acquired or disposed of by the Company having either a book or market value in excess of $50,000;

2. Salary and other relevant expenditure of the Company in relation to the Business for the preceding calendar month; 

3. Details of any contract entered into or terminated by the Company during the preceding calendar month; and

4. Details of any Resolution of the Board or the Shareholders made during the preceding calendar month. 

1. Management of the Investment

   1. Principal activity

The shareholders agree that the Investment's principal activity will be to engage in the Business.

1. Shareholder covenants

Each shareholder covenants with the other shareholders:

1. To co-operate and use its reasonable endeavours to ensure that the Investment and its subsidiaries successfully carry on the Business;

2. Not to use confidential information of the Investment or any of its subsidiaries in a way which damages, or is reasonably likely to damage the Investment, or any of the other shareholders or any of the Investment's subsidiaries;

3. Not to unreasonably delay any action, approval, direction, determination or decision required of it;

4. To make approvals or decisions that are required of it in good faith, in the best interests of the Investment, its subsidiaries and the carrying on of the

Business as a commercial venture; and

1. To be just and faithful in its activities and dealings with the other shareholders and not to act contrary to the interests of the Investment, any of the Investment's subsidiaries or the Business.

2. Matters requiring a special resolution of shareholders

Each of the following matters must not be acted upon by the Investment or any shareholder, director or other officer or employee of the Investment unless it has first been approved by a special resolution of shareholders:

1. Except as specifically contemplated by this agreement, the entering into of any agreement or arrangement between the Investment and any shareholder or associate of a shareholder or any third person, which is not at arm's length with any of them, or any agreement or arrangement made other than in the normal course of the Business;

2. The incurring of any costs in excess of

$10,000 not disclosed to the shareholders by the Company on or before the date of this Agreement; and

1. The acceptance of any offer to purchase any property owned by the Company during the course of conducting the business for less than the asking or market price for that property. 

2. Execution of documents

   1. Any document to be executed by the Investment must be executed by two directors.

   2. The directors may by an ordinary resolution of the board authorise a person who is not a director to sign a document on behalf of the Investment provided that at least one director also signs the relevant document.

1. Accounts

   1. Proper accounts

The company must keep proper accounting records and accounts as required by the Corporations Act.

1. Financial year

Subject to an ordinary resolution of shareholders to the contrary, the financial year for the Investment will be 1 July to 30 June.

1. Frequency of preparation of accounts

The company must prepare and provide to each director in respect of the Investment and its subsidiaries, as soon as practicable after, and in any event within 30 days after the end of each three month period of a financial year, an unaudited statement of financial performance, an unaudited statement of financial position, an unaudited monthly cash flow statement for the preceding calendar month, and for the then current financial year to date prepared in reasonable detail using generally accepted accounting principles consistently applied.

1. Annual accounts

The company must:

1. Cause the accounts to be prepared in relation to each financial year and forwarded to each shareholder within three months after the end of the relevant financial year;

2. Ensure that the accounts are prepared in accordance with approved accounting standards and audited by the Investment's auditor; and

3. Forward copies of the draft form of the accounts to each director as soon as practicable after receipt from the Investment's auditor.

4. Signing of accounts

Subject to approval of the accounts by the board, the accounts referred to are to be signed by at least one director.

1. Constitution

The shareholder and the Investment agree that:

1. To the extent of any inconsistency between the terms of this agreement and the constitution, the terms of this agreement shall prevail; and

2. The constitution shall be interpreted as being modified by and subject to the express terms of this agreement.

1. Encumbering shares

Subject to a special resolution of the shareholders to the contrary, no shareholder shall allow any shares held by it in the Investment to be encumbered.

1. Transfer of shares

   1. Restriction on transfer

No shares may be disposed of and the Investment must not register a transfer of shares, nor acknowledge that any person has any right in respect of any shares unless and until:

1. The transferee replaces any existing shareholder loans made by the

transferor shareholder; and

1. The transferee first executes and delivers to each of the other shareholders a deed with the shareholders and the Investment, agreeing to be bound by the terms and conditions of this agreement, and agreeing to assume the obligations of the transferor shareholder under the constitution and this agreement.

2. Waiver by shareholder

The company is bound to register any transfer of shares if such transfer has been approved in writing by all the shareholders.

1. Pre-emptive rights

   1. Transfer notices

      1. Before disposing of its shares, the transferor shareholder must give in writing a transfer notice to the

Investment that it desires to dispose of its shares. The transfer notice must specify:

1. The number of transfer shares it wishes to dispose of, which may be part only of the shares it holds; and

2. Subject to clause 12(b), the price at which the transferor shareholder is willing to sell the transfer shares.

3. The transfer notice will constitute the Investment, the agent of the transferor shareholder for the sale of the transfer shares at the transfer price during the transfer period to the other shareholders, and will not be revocable except with the consent of the other shareholders.

4. Within ten business days after the receipt of any transfer notice, the Investment must serve a copy of it on all the shareholders other than the transferor shareholder.

1. Transfer price

   1. In the event that a loan agreement remains in place between the Investor and the Investment, the price stated in the transfer notice must be the same price at which the shareholder purchased the shares, unless otherwise approved by the directors. Otherwise, the price stated in the transfer notice must be approved by the directors. 

2. Transfer period

The transfer period will be 10 days after acceptance of the price.

1. Offer          of         transfer            shares to         other shareholders

Promptly following determination of the transfer price, the transfer shares must be offered by the Investment by notice in writing to the other shareholders pro rata to their shareholdings. Such offer will be open for acceptance at any time within the transfer period. Every such offer must specify the total number of transfer shares, the number of transfer shares in that shareholder’s pro rata transfer entitlement, and the transfer price. Each offer must be accompanied by a form of application for use by the shareholder in applying for its pro rata entitlement and for any shares in excess of such pro rata transfer entitlement which it wishes to purchase.

1. Acceptance of offer by other shareholder

   1. A shareholder may apply for some only of the transfer shares within the transfer period, and the transferor shareholder will be bound upon payment to transfer that number of transfer shares to the shareholder as it has applied for.

   2. If not all shareholders accept the full amount of transfer shares in their pro rata transfer entitlement, any transfer shares not so accepted will be used to satisfy requests from other shareholders as nearly as may be in proportion to their requests for transfer shares in excess of their pro rata transfer entitlement.

   3. The directors must forthwith give notice of such allocations to the transferor shareholder and the shareholders, to whom the transfer shares have been allocated and must specify in the said notice the place and time, being within 60 days after the date of such notice at which the sale of the transfer shares so allocated will be completed. The transferor shareholder will be bound upon payment to transfer the transfer shares so allocated to the relevant shareholders.

2. Transfers to third parties

If by the end of the transfer period, the directors have not received acceptances from shareholders for all the transfer shares then they must forthwith give notice in writing of that fact to the transferor shareholder. The transferor shareholder will then be entitled at any time within 90 days after the date of the directors' notice to sell and transfer all of the remaining transfer shares, which have not been accepted to any person at any price, being not less than the transfer price.

1. Attorney for transferor shareholder

   1. A transferor shareholder, having become bound to transfer any shares pursuant to this agreement, must deliver to the shareholders duly executed transfers in respect of such shares in favour of the shareholders against payment by them of the price due in respect thereof. If the transferor shareholder makes default in transferring the same, any director is hereby irrevocably and unconditionally appointed as the attorney of the transferor to complete and execute the necessary instrument of transfer of such shares and may deliver them on its behalf; the Investment will receive the purchase money on trust for the transferor shareholder, and will thereupon cause the shareholders to be registered as the holder of such shares.

   2. The company will not be bound to earn or pay interest on any money so held on behalf of the transferor shareholder, and will not pay such money to the transferor shareholder until it has delivered its share certificates, or an appropriate indemnity in respect of any lost certificates, to the Investment. The receipt of the Investment for such purchase money will be a good discharge to the shareholders, who will not be bound to see to the application thereof, and after the name of the shareholders have been entered in the register of members in purported exercise of the aforesaid power, the validity of the proceedings will not be questioned by any person.

   3. Upon the transfer of any shares pursuant to the provisions of this agreement, the transferor shareholder will not be entitled to any dividend or interest accrued in relation to those shares up to the date of transfer.

1. Compulsory transfer of shares

   1. Deemed transfer

Upon the occurrence of a compulsory transfer event in respect of a shareholder, that shareholder will at the election of the remaining shareholders be deemed to have given a transfer notice in respect of all of its shares in the capital of the Investment, to the other shareholders at the transfer price calculated in accordance with clause 12(b) and otherwise subject to those provisions hereof relating to pre-emptive rights as are appropriate.

1. Compulsory transfer events

   1. Subject to clause 13(b)(ii), a compulsory transfer event occurs when a shareholder fails to observe or perform the provisions of this agreement in a way which has, or could reasonably be expected to have, a substantial adverse effect upon the Investment or the shareholders, and where that failure continues unremedied for a period of 30 days after receipt of a notice from the remaining shareholders requiring that it be remedied.

   2. A compulsory transfer event occurs when a shareholder fails to pay the issue price for any issued share on or before the date at which such share is issued to the shareholder, and where that failure continues unremedied for a period of 14 days after receipt of a notice from the directors requiring that such price be paid. 

   3. The identity of the shareholders being a matter of fundamental importance to the shareholders, a compulsory transfer event occurs if there is a change in the persons having the effective control of a shareholder that is a corporation or trust.

   4. A compulsory transfer event occurs when a shareholder dies, unless the shareholder holds the shares as a joint tenant, is declared bankrupt, or of unsound mind, or being a corporation goes into liquidation or receivership.

1. Drag along and tag along options

   1. In the event that shareholders with 75% or more of the shares in the Investment wish to sell their shares in an arm’s length transaction at valuation, determined in accordance with the provisions hereof, or a better price, and the other shareholders having been notified of the bona fide offer have not exercised their pre-emptive rights to acquire such shares, then they may require the holders of the other shares (minority shareholders) to join in the sale and sell their shares on the same terms and conditions. Likewise the minority shareholders, or any one of them, may require that their shares be included in the sale.

   2. To provide the minority shareholders with the opportunity to assess the proposed transaction, at least 14 days written notice containing comprehensive details of the sale must be given, and within 14 days of the expiry of that 14 day period notice of the exercise of the drag along, or the tag along right must be given.

   3. In the event that insufficient details of the sale are provided in the notice, then the 14 day period for exercise of the drag along or tag along rights shall extend to 14 days after full details of the sale are provided sufficient to enable the minority shareholders to properly assess the proposed sale, the credentials, reputation and financial standing of the purchaser, and the price and other terms of sale.

   4. In the event of the exercise of the drag along rights then the minority shareholders must join in the sale, unless they are able to establish that the proposed sale is an oppression of a minority according to the principals understood in the law relating to corporations.

2. Mediation

   1. Dispute

If the directors or shareholders are unable to agree on a matter of fundamental importance with regard to the operation of the Investment or the business including, but not limited to:

1. A matter which requires a special resolution of shareholders; or

2. A matter which the directors cannot determine by a vote at a board meeting; or

3. A matter which has been referred by the directors to the shareholders for

resolution;

(the dispute) and are unable to resolve the dispute within 30 business days of it first arising, they must in good faith endeavour to resolve the dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation or determination or similar techniques agreed by them. If the dispute is not promptly resolved, any shareholder may give notice to the other shareholders of their intention to refer the dispute to mediation.

1. Shareholder to seek resolution in good faith

Where a shareholder gives notice of their intention to refer a dispute to mediation under (a) that shareholder must with that notice provide to the other shareholders a memorandum setting out its position on the dispute and its reasons for adopting such a position.

1. Compulsory mediation

If the shareholders do not agree within five business days of receipt of that notice as to:

1. The dispute resolution technique and procedures to be adopted;

2. The timetable for all steps in those procedures; and

3. The selection and compensation of the independent person required for such technique;

the shareholders must mediate the dispute in accordance with the mediation rules of the Australian Disputes Centre, with the mediator to be selected and the mediation organised by them or a similar organisation agreed to by all parties.

1. Cost of mediation

The shareholders must bear their own costs of dealing with any dispute and the costs of any expert or mediator will be borne equally by the shareholders.

1. Non competition

   1. Conflicts of interest

Each shareholder and director must declare any conflict of interest which they may have or may potentially have with the Investment.

1. Referral of work

While they are a shareholder or director, each shareholder or director must refer all work and services in the nature of the business which is capable of being done by the Investment to the Investment.

1. Employment contracts, consultancy agreements and other agreements

The shareholders acknowledge that it is their intention that the Investment enter into:

1. a services agreement with Kingdom Management Services Pty Ltd ACN 639 862 212 to provide management, board, property development and other services to the Investment and/or its subsidiaries; and

2. loan agreements with each holder of Investor class shares as required from time to time.

The shareholders agree that they will procure the Investment to enter into such contracts, as soon as practicable, after the date of this agreement on terms which are reasonably acceptable to the Investment.

1. Covenants by the Investment The Investment covenants:

   1. That the books and accounts of the Investment truly and fairly reflect the Investment’s affairs, and accurately record the details of all of the Investment's transactions, finances, assets and liabilities;

   2. That no claim has been made against the Investment for payment by the Investment pursuant to the provisions of the Income Tax Assessment Act 1936 of any tax, which is not shown or included as a liability or provision in the balance sheet contained in the accounts;

   3. That the Investment has not breached, or caused a breach of:

      1. The company's memorandum or articles of association; 

      2. Any judgment, order, injunction or decree of any court, commission or administrative body relating to the Investment or to the shares.

   4. That neither the Investment nor any of its officers, agents or employees, while performing their duties for the Investment, have breached the law. The company has not been notified that it has, or may have, breached the law regulating its affairs or the conduct of its business;

   5. That the Investment is not a party to, or threatened with, any claim, litigation, prosecution or arbitration in any court, tribunal or otherwise;

   6. That there are no unsatisfied judgments or arbitral awards against the Investment;

   7. That the Investment has met all deadlines for repayment of its debts; and

   8. That no petitions, notices or proceedings have come to the Investment's notice, which could result in it being wound up. No orders or resolutions have been made or passed to place the Investment in liquidation or provisional liquidation.

2. Confidentiality

   1. Each shareholder severally agrees with each other shareholder, that all information in relation to:

      1. The other shareholder’s business; or

      2. The Investment or any related body corporate of the Investment or any business conducted by such entity, including, without limitation, any trade secrets, operations know-how, or any information concerning the organisation, management and finance of the other shareholder or the

Investment, or any of its related bodies corporate, which is exchanged between them under this agreement, or acquired during the negotiations prior to the execution of this agreement, is confidential and must not be disclosed, divulged or otherwise placed at the disposal of any person not being a party to this agreement except:

1. To employees, legal advisers, auditors and other consultants requiring the information for the purposes of this agreement; or

2. With the consent of the party who supplied the information; or

3. If the information is prior to the execution of this agreement, lawfully in the possession of the recipient of the information through sources other than the party who supplied the information; or

4. If required by law or a stock exchange regulations;

5. If the information is or becomes generally and publicly available other than through the default of a party who divulges the information; or

6. To any prospective purchaser OR assignee of a share after such person has signed a confidentiality agreement acceptable to all shareholders.

7. The provisions of this clause continue in full force and effect for a period of two years after the termination of this agreement.

1. Mutual covenants

Each shareholder warrants to the other shareholders that:

1. It has the capacity to enter into and to perform and complete its obligations under this agreement;

2. It has taken all necessary legal action to authorise the entry into and performance of this agreement and its obligations under this agreement; and

3. It will punctually discharge all its obligations under this agreement and the constitution.

1. Exclusion of implied relationships The shareholders agree that:

   1. Their rights, duties and obligations under this agreement are several and not joint, or joint and several;

   2. Nothing in this agreement constitutes or may be construed as constituting any shareholder as the partner, agent, employee or representative of any other shareholder or the Investment;

   3. No shareholder has power to incur obligations on behalf of, or pledge the credit of, the other shareholders in any way;

   4. Except as provided in this agreement, no shareholder has authority to act for, or to create, and or assume any responsibility or obligation for the other shareholders;

   5. Each shareholder agrees to indemnify the other shareholders and the Investment from and against any and all losses and liabilities arising out of any breach of this agreement.

2. Term of agreement

   1. Term

This agreement continues in force and effect until:

1. Terminated by written agreement between the shareholders and the Investment; or

2. All of the shares are beneficially held by one party; or

3. The liquidation of the Investment.

4. Continuing rights

Termination of this agreement does not extinguish, or otherwise affect, any rights of any party to this agreement against the other which:

1. Accrued before the time at which this agreement terminated; or

2. Otherwise relate to or may arise at any future time from any breach, or no observance of obligations under this agreement, which arose before the time at which this agreement terminated.

3. Non-merger

Clauses of this agreement which are expressed to survive termination will do so.

1. Notices

A notice or other communication to a party must be in writing and delivered to that party or that party’s practitioner in one of the following ways: (a) Delivered personally; or

1. Posted to their address when it will be treated as having been received on the second business day after posting; or

2. Faxed to their facsimile number when it will be treated as received when it is transmitted; or

3. Sent by email to their email address, when it will be treated as received when it enters the recipient’s information system.

1. Miscellaneous

   1. Remedies

Each party to this agreement acknowledges and agrees that if any of them breach the warranties, representations, indemnities, covenants, agreements, undertakings and obligations, for the purposes of this clause

 

referred to as the agreed terms, on each of this agreement, comprises the entire their parts contained in this agreement, agreement between the parties with respect damages may not be an adequate remedy to the subject matter of this agreement and and the agreed terms will be enforceable by supersedes all prior understandings, injunction, order for specific performance or agreements, representations and such other equitable relief as a court of correspondence with respect to the same. competent jurisdiction may see fit.

                                                                                                                  (i)    Further assurances

1. Waiver

Each party to this agreement will, at its own

A waiver of a provision of, or right under, this expense and without additional agreement is effective only if it is in writing consideration, upon receipt of a request by signed by the party granting the waiver. another party promptly do such further acts and will execute, acknowledge, deliver and

1. Invalidity record     such     other     documents        and Any provision of this agreement which is         instruments      as         may      be         reasonably invalid or unenforceable in any jurisdiction        necessary, or desirable from time to time, to will, as to that jurisdiction only, be read down    give full effect to this agreement and any or severed to the extent of that invalidity or transaction contemplated by this agreement.

unenforceability. The remaining provisions of this agreement which are self-sustaining and capable of separate enforcement without regard to the read down, or severed provision in that jurisdiction, are and will continue to be valid and enforceable in accordance with their terms.

1. Amendment

This agreement may be amended only by an instrument in writing signed by all the parties to this agreement.

1. Counterparts

This agreement may be executed in any number of counterparts and all such counterparts taken together will be deemed to constitute one and the same instrument, and the date of the agreement will be the date on which it is executed by the last party.

1. Assignment

No shareholder may assign its rights or obligations under this agreement to any person, without the prior written consent of all the shareholders and the Investment.

1. Costs

Each party to this agreement must bear its own costs of preparing and executing this agreement, and each shareholder must pay in their respective proportions all stamp duty on this agreement, and on any document executed to give effect to this agreement.

1. Entire Agreement

This            agreement,        together            with       any documents referred to in this agreement, or executed simultaneously in connection with SCHEDULE 2 – LOAN AGREEMENT TERMS

 

 

RECITALS

1. The Investor has agreed, at the request of the Investment, to provide a loan facility to the Investment up to a maximum principal amount not exceeding the Facility Limit to assist with the Purpose.

2. The Investment has requested the Investor to make the loan facility available to the Investment and the Investor has agreed to do so subject to the terms of this Agreement and to the Investment providing a first ranking and registered general security interest over the assets and undertaking of the Investment.

3. The parties hereby acknowledge that the Investor has already provided a Loan of an amount equal to the Facility Limit to the Investment and the Investment will repay the Loan in accordance with this Agreement. 

 

OPERATIVE PROVISIONS:

1. Definitions and Interpretation

 

1.1. In this Agreement, unless the context otherwise requires:

 

1. Advance means an amount provided or to be provided under this Agreement by the Investor to, or at the direction of, the Investment on a Drawdown Date;

 

1. Agreement means this agreement and any schedule, attachment or annexure to it;

 

1. Authorised Officer means:

 

1. in respect of the Investment, a director or secretary of the Investment or any other person authorised by the Investment to act as an

Authorised Officer under this

Agreement; and

 

1. in respect of the Investor, those persons or any other person authorised by the Investor to act as an

Authorised Officer under this

Agreement;

 

1. Business means the business of developing and on-selling the Project and associated functions of the

Investment; 

 

1. Business Day means a day on which banks are open for business in Sydney, other than a Saturday, Sunday or public holiday in Sydney;

 

1. Corporations Act means the

Corporations Act 2001

 

1. Drawdown Date means:

 

1. The date set out on the covering page of this agreement; or 

 

1. such other date or dates as the Investor and Investment agree in writing on which the Advance is, or is to be, provided under this Agreement by the Investor to, or at the direction of, the Investment;

 

1. Event of Default means any of the events, omissions or occurrences specified in clause 7.1;

 

1. Facility means the loan facility made available under this Agreement;

 

1. Facility Limit means an amount specified as the Investment Amount on the cover page of this Agreement by the

Investor to, or at the direction of, the

Investment;

 

1. Interest Rate means an amount calculated as follows:

Variable Return

 

Where:

P = The total profits of the

Investment derived from the Purpose calculated as at the date of completion of the Purpose. S = Number of “Investment Class” shares in the Investment held by the Investor.

T = Total issued “Investment Class” shares in the Investment.

Interest = P x (  )

Fixed Return

 

The Interest payable by the Borrower is [Fixed Return Rate] of the Facility Limit.

 

• Liability means any liability or obligation (whether actual, contingent or prospective), including for any Loss irrespective of when the acts, circumstances, events or matters giving rise to the liability occurs;

 

1. Loan means all funds advanced by the Investor to the Investment under this Agreement or, at any time, the principal amount of the Advance outstanding at

that time; 

 

• Loss means all damages, losses, costs, claims, charges, liabilities, obligations, fees or expenses, including any consequential or indirect losses, economic losses or loss of profits and legal costs and expenses of any kind;

 

• Parties means the parties to this

Agreement;

 

1. Purpose means the purpose of

developing and on-selling the Project and associated functions of the

Investment; and

 

1. Repayment Date means:

 

1. The date of completion of the Purpose being the date that the Project has been on-sold in its entirety with all funds

delivered to the Investment; or 

 

1. Any time as agreed between the parties from time to time, 

 

subject to the provisions of this Agreement relating to earlier or accelerated repayment of the Loan.

 

1.2. In this Agreement, unless the context requires otherwise:

 

1. words in the singular include the plural and words in the plural include the singular;

 

1. any reference to a person includes a reference to a corporation, firm, authority, government or governmental agency;

 

1. a reference to a legislation or legislative provision is a reference to it as amended, modified or re-enacted and any subordinate legislation or regulations, orders, or proclamations issued under that legislation or legislative provision including any regulations and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them; 

 

1. a defined word or expression has

corresponding effect in relation to its other grammatical forms;

 

1. any reference to a party to any agreement or document includes the party’s executors, administrators, legal personal representatives, successors and permitted assigns and substitutes by way of assignment or novation;

 

1. any reference to any agreement or document includes that agreement or document as amended, ratified, supplemented, novated or replaced at

any time;

 

1. the words “include”, “including”, “for example” and similar expressions are used without limitation;

 

1. headings and subheadings are for convenience only and do not affect

interpretation;

 

1. a reference to "owing" means actually or contingently owing, and "owe" and "owed" have an equivalent meaning;

 

1. any Liability, representation or warranty undertaken by, or right conferred on, 2 or more persons binds or benefits all of those persons jointly and each of them severally; and

 

1. any action required to be performed under any provision of this Agreement on or before a day which is not a Business Day must be performed on or before the immediately following Business Day.

 

1.3. The covenants and provisions in this Agreement exclusively and completely state the rights of the Investment with respect to the Loan. This Agreement supersedes all negotiations and prior agreements, whether written or oral, in respect of the Loan.  If there is any conflict or inconsistency between the terms, conditions and provisions of this Agreement and other terms, the terms, conditions and provisions of this Agreement will prevail.

 

1. Provision of Advance

 

1. The Investor:

 

1. agrees to provide the financial accommodation requested by the Investment under this Agreement solely for the Purpose;

 

1. subject to clause 2.1(c), must, on the date of this Agreement, provide the Advance to the Investment by way of cash advance on the Drawdown Date on the terms and subject to the conditions set out in this Agreement;

and

 

1. must comply with any direction by the Investment to pay the Advance or any portion of it directly to suppliers of goods and services required for the Purpose.

 

1. The maximum total amount of the Loan made available to the Investment and outstanding at any time and from time to time is the Facility Limit, unless varied by agreement in writing between the parties. For the avoidance of doubt, the parties hereby agree that the Investor shall not be required to increase the Facility Limit or to provide any further Loan amounts in excess of the Facility Limit unless the Investor approves such increase and the terms of repayment of any further Loan amounts in writing. 

 

1. The Investor will on the terms and subject to the conditions set out in this Agreement provide the Advance to the Investment on the Drawdown Date by way of bank transfer or bank cheque drawn payable to the Investment or as the Investment directs.

 

1. Payment of Interest

 

1. The Investment must pay interest on the Loan at the Interest Rate.

 

1. Interest is to be paid by the Investment as a lump-sum payment on the Repayment Date, or any other reasonable date as advised by the Investment to the Investor from time to time.

 

1. Repayment

 

1. The Investment must make repayment of the Loan by the Repayment Date.  In the case of interest payments payable by the Investment to the Investor, the Investment must pay interest on the Loan as determined under clause 3.

 

1. The Investment must repay in full and finally discharge the Loan and all interest accrued on the Loan but not paid together with all other amounts payable under this Agreement to the Investor on or before the Repayment Date.  

 

1. The Investment may at any time request the Investor to accept repayment of all or any part of the Loan then outstanding (interim repayment) before the Repayment Date by providing notice to the Investor not less than 5 Business Days before the proposed interim repayment date, unless otherwise agreed with the Investor. 

 

1. Representations and Warranties

 

1. The Investment represents and warrants to the Investor that:

 

1. it is, or is taken to be, registered as a company under the Corporations Act, and has the power to carry on its business and to own its property in the manner and in the locations in which such business is presently being carried on or property owned;

 

1. it has full power and authority to enter into and perform its obligations under this Agreement; 

 

1. it has taken all necessary action to authorise the execution and performance of this Agreement in accordance with its terms; and 

 

1. this Agreement constitutes legal, valid and binding obligations of the Investment and is enforceable in accordance with its terms and the transactions contemplated by this Agreement are for its benefit.

 

1. Each of the representations and warranties in this clause 5 are separate and independent and, except as expressly provided to the contrary in this Agreement, are not limited by reference to any other representations and warranties.

 

1. Investment’s Undertakings and Indemnity

 

1. The Investment undertakes with the Investor:

 

1. to apply the proceeds of the Advance wholly for the Purpose;

 

1. to execute and do, or cause to be executed and done by any person, at the expense of the Investment, all assurances and other things reasonably required or requested at any time and from time to time by the Investor for giving effect to, and the full benefit of, the covenants contained or implied in this Agreement in favour of the Investor or to protect the Investor’s rights, powers and remedies under this Agreement;

 

1. to comply with the requirements of all applicable laws, rules, regulations, orders and decrees, non-compliance with which would, or may in the Investor’s opinion, have a material adverse effect on the Investment’s ability to comply with its obligations under this Agreement;

 

1. to keep its assets and undertaking insured, and to ensure that any major asset leased by it is insured, against such risks and in such amounts as would prudently be insured against by a person carrying on business similar to the Investment and to deliver to the Investor on request written details of such insurances and appropriate evidence that all insurances are in full force and effect and all relevant premiums have been paid;

 

1. to notify the Investor immediately of any event or change in the Investment’s circumstances, the effect of which either would or might render any representation or warranty made in this Agreement untrue or incorrect in any respect; and

 

1. to carry on the Business in a proper and lawful manner with all necessary licences and permits, and not to anything to materially alter the nature of the Business; and

 

1. to keep proper and adequate books and records in accordance with all applicable laws.

 

1. Default and Termination

 

1. Each of the following events is an Event of Default:

 

Investment

 

1. the Investment fails to make repayment on the Repayment Date or fails to pay any instalment of interest or fails to pay any other money payable under this Agreement on the due date for payment [and such failure continues for more than 20 Business

Days]; or

 

1. the Investment fails to perform or observe any of the covenants or provisions of this Agreement to be performed or observed (other than a failure to pay money) and (if capable of remedy) such default continues

for more than 5 Business Days (or such longer period as the Investor in its absolute discretion permits) after notice from the Investor requiring the Investment to remedy the default, unless the non-performance or non-observance has been waived by the Investor in writing; or

 

Investor

 

1. the Investor fails to perform or observe any of the covenants or provisions of this Agreement to be performed or observed and, if such default is capable of remedy, such default continues for more than 5 Business Days after notice from the Investment requiring the Investor to remedy the default, unless the non-performance or non-observance has been waived by the Investment in writing; or

 

1. if the authority or power of the Investor to perform its obligations under this Agreement is revoked or so amended that the Investor is unable to fully and duly perform and observe those obligations; or

 

1. the continued performance of the obligations of the Investor under this Agreement contravenes, or might in the Investment’s opinion contravene, any applicable statute, ordinance, proclamation, rule, order, regulation, moratorium or decree of any governmental or other authority.

 

7.2. If any Event of Default occurs, the party who is not in default may declare at any time by notice to the defaulting party that:

 

1. the Loan, together with all interest accrued on the Loan but not then paid and all other amounts payable under this Agreement is either:

 

1. immediately due and payable; or 

 

1. due and payable on demand by the Investor; or

 

1. the Investor’s or Investment’s obligations imposed by this Agreement and specified in the notice are terminated.

 

1. Notices

 

1. Unless expressly stated otherwise in this Agreement, all notices, certificates, consents, approvals, waivers and other communications in connection with this Agreement (Notices) must be in writing, signed by an Authorised Officer of the sender.

 

1. Notices sent by email must state the first and last name of the sender and are taken to be signed by the named sender.

 

1. Notices must be:

 

1. left at the address set out or referred to in this Agreement; or

 

1. sent by prepaid ordinary post (airmail, if appropriate) to the address set out or referred to in this Agreement; or

 

1. sent by fax to the fax number set out or referred to in this Agreement; or

 

1. sent by email to the email address set out or referred to in this Agreement,

 

however, if the intended recipient has notified a changed address or fax number, then Notices must be to that address or number.

 

1. General

 

1. Non-Merger: None of the terms or conditions of this Agreement, nor any act, matter or thing done under or by virtue of, or in connection with, this Agreement will operate as a merger of any of the rights and remedies of the Investor in or under this Agreement or otherwise. All such rights and remedies of the Investor will continue in full force and effect.

 

1. Assignment: This Agreement is binding on, and operates for the benefit of, both the Investment and the Investor and their respective successors and assigns.  The Investor must not assign this Agreement or any of its rights or obligations under this Agreement without the Investment’s prior written consent.  The Investment may at any time assign, charge or otherwise deal with its

rights under this Agreement. The Investor agrees to do all things necessary, including enter into any deed of novation, to assist the Investment in such assignment, charge or dealing with its obligations under this Agreement. 

 

1. Prohibition on oral amendments: Neither this Agreement nor any provision of this Agreement may be amended, modified, waived, discharged or terminated orally.

 

1. Further Steps: Each Party must, at its own expense, do anything the other Party asks (such as obtaining consents, signing and producing documents and getting documents completed and signed) as may be necessary or desirable to give full effect to the provisions of this Agreement.

 

1. Variation: A provision of this Agreement, or right created under it, may not be waived or varied except in writing signed by the Party or Parties to be bound. 

 

 

1. Execution by attorney: If this Agreement is executed on behalf of the Investment or the Investor by a person authorised to execute it under power of attorney, that person, by his or her execution of this Agreement, states that at the time of such execution he or she had no notice of the revocation of that power of attorney.

 

1. Counterparts: This Agreement may be executed in any number of counterparts, each of which will have the effect of an original.  All counterparts taken together constitute one and the same instrument.

 

1. Governing Law

 

1. This Agreement is governed by, and is to be construed in accordance with, the laws in force in New South Wales.

 

1. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and any courts which may hear appeals from those courts.