Security Trust Deed
PERPETUAL TRUSTEES VICTORIA LIMITED
PERPETUAL TRUSTEE COMPANY LIMITED
INTERSTAR SECURITISATION MANAGEMENT PTY LIMITED
THE BANK OF NEW YORK, NEW YORK BRANCH
Interstar Millennium Trusts
Interstar Millennium Series 2003-1G Trust
ALLENS ARTHUR ROBINSON
The Chifley Tower
2 Chifley Square
Sydney NSW 2000
Australia
Tel 61 2 9230 4000
Fax 61 2 9230 5333
(C) Copyright Allens Arthur Robinson 2003
Security Trust Deed Allens Arthur Robinson
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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Master Trust Deed definitions and Transaction
Document amendments 5
1.3 Interpretation 5
1.4 Determination, statement and certificate sufficient
evidence 6
1.5 Document or agreement 6
1.6 Rights and obligations of Mortgagees 6
1.7 Transaction Document 6
1.8 Chargor as trustee 6
1.9 Knowledge of the Chargor 7
1.10 Knowledge of Security Trustee 7
2. APPOINTMENT OF SECURITY TRUSTEE 7
2.1 The Security Trustee 7
2.2 Resolution of Conflicts 7
2.3 Duration of Trust 8
3. CHARGE 8
3.1 Charge 8
3.2 Security 8
3.3 Prospective liability 8
4. NATURE OF CHARGE 9
4.1 Priority 9
Nature of Charge 9
4.2 Dealing with Mortgaged Property 9
4.3 Crystallisation 9
4.4 De-crystallisation 10
5. COVENANTS AND WARRANTIES 10
5.1 Covenant 10
5.2 Negative Covenants 11
5.3 Warranty 11
5.4 Trust Manager's Undertakings 12
6. FURTHER ASSURANCES 12
6.1 Further assurances 12
7. NOTE TRUSTEE 13
7.1 Capacity 13
7.2 Exercise of rights 13
7.3 Instructions or directions 13
7.4 Payments 13
7.5 Notices 13
8. EVENTS OF DEFAULT 13
8.1 Events of Default 13
8.2 Rights of the Security Trustee upon Event of Default 15
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8.3 Notify Events of Default 15
9. ENFORCEMENT 16
9.1 Power to enforce 16
9.2 No obligation to enforce 16
9.3 Obligation to convene meeting 16
9.4 Security Trustee to act in Accordance with Directions 16
9.5 Security Trustee must receive Indemnity 17
9.6 Limitation on rights of Mortgagees 17
9.7 Immaterial waivers 17
9.8 Acts pursuant to Resolutions 18
9.9 Overriding Provision 18
10. APPOINTMENT OF RECEIVER 18
10.1 Appointment 18
10.2 Agent of Chargor 19
10.3 Receiver's powers 19
10.4 Receiver appointed after commencement of winding up 21
10.5 Powers exercisable by the Security Trustee 22
10.6 Withdrawal 22
11. REMUNERATION OF SECURITY TRUSTEE 22
11.1 Costs 22
11.2 Fee 22
11.3 Cessation of Fee 22
12. POWER OF ATTORNEY 22
13. COMPLETION OF BLANK SECURITIES 23
14. PERFORMANCE OF CHARGOR'S OBLIGATIONS 23
15. STATUTORY POWERS 23
15.1 Powers in augmentation 23
15.2 Notice not required 24
16. APPLICATION OF MONEYS RECEIVED 24
Priorities 24
16.2 Moneys actually received 25
16.3 Amounts contingently due 25
16.4 Notice of subsequent Security Interests 25
16.5 Satisfaction of debts 26
16.6 Proportionate Sharing 26
17. OTHER SECURITY INTERESTS OVER MORTGAGED PROPERTY 27
18. PROTECTION OF MORTGAGEES, RECEIVER AND ATTORNEY 27
19. PROTECTION OF THIRD PARTIES 27
19.1 No enquiry 27
19.2 Receipt 27
20. EXPENSES, INDEMNITY 28
20.1 Expenses 28
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20.2 Indemnity 29
21. CURRENCY INDEMNITY 29
22. STAMP DUTIES 29
23. INTEREST ON OVERDUE AMOUNTS 29
23.1 Accrual 29
23.2 Payment 30
23.3 Rate 30
24. CERTIFICATE AS TO AMOUNT OF SECURED MONEYS, ETC. 30
25. SURVIVAL OF REPRESENTATIONS 30
26. INDEMNITY AND REIMBURSEMENT OBLIGATIONS 30
27. CONTINUING SECURITY 31
28. OTHER SECURITIES 31
29. DISCHARGE OF THE CHARGE 31
29.1 Release 31
29.2 Contingent Liabilities 31
29.3 Charge reinstated 32
30. AMENDMENT 32
30.1 Approval of Trust Manager 32
30.2 Extraordinary Resolution of Voting Mortgagees 32
30.3 Distribution of Amendments 33
31. LIABILITY 33
31.1 Liability of Chargor limited to its right of indemnity 33
31.2 Unrestricted remedies 33
31.3 Restricted remedies 33
31.4 Liability of Security Trustee limited to its right
of indemnity 33
31.5 Advice from Professional Advisers 34
32. WAIVERS, REMEDIES CUMULATIVE 34
33. CONSENTS AND OPINION 34
34. SEVERABILITY OF PROVISIONS 34
35. MORATORIUM LEGISLATION 35
36. ASSIGNMENTS 35
37. NOTICES 35
38. RELATIONSHIP OF MORTGAGEES TO SECURITY TRUSTEE 36
38.1 Instructions; extent of discretion 36
38.2 No obligation to investigate authority 36
38.3 Delegation 36
38.4 Reliance on documents and experts 37
38.5 Notice of transfer 37
38.6 Notice of default 37
38.7 Security Trustee as Mortgagee 38
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38.8 Indemnity to Security Trustee 38
38.9 Independent investigation 38
38.10 No monitoring 38
38.11 Information 38
38.12 Conflicts 39
38.13 No Liability 39
39. RETIREMENT AND REMOVAL OF SECURITY TRUSTEE 39
39.1 Retirement 39
39.2 Removal 40
39.3 Replacement 40
40. MEETINGS OF MORTGAGEES 41
40.1 Limitation on Security Trustee's Powers 41
40.2 Convening of Meetings 41
40.3 Notice of Meetings 42
40.4 Chairman 42
40.5 Quorum 42
40.6 Adjournment 43
40.7 Voting Procedure 43
40.8 Right to attend and speak 44
40.9 Appointment of Proxies 44
40.10 Corporate Representatives 45
40.11 Rights of Representatives 45
40.12 Extraordinary Resolutions 45
40.13 Extraordinary Resolution binding on Mortgagees 46
40.14 Minutes and Records 47
40.15 Written Resolutions 47
40.16 Further Procedures for Meetings 47
40.17 Noteholder Mortgagees'rights 47
41. AUTHORISED SIGNATORIES 48
42. GOVERNING LAW AND JURISDICTION 48
43. COUNTERPARTS 48
44. SET-OFF 49
45. ACKNOWLEDGEMENT BY CHARGOR 49
46. INFORMATION MEMORANDUM 49
47. SECURITY TRUSTEE'S LIMITED LIABILITY 49
47.1 Reliance on certificates 49
47.2 Security Trustee may assume signed documents to be
genuine 50
47.3 Security Trustee's reliance on Trust Manager,
Approved Seller, Note Trustee or Servicer 50
47.4 Compliance with laws 51
47.5 Taxes 51
47.6 Reliance on experts 51
47.7 Oversights of others 51
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47.8 Powers, authorities and discretions 51
47.9 Impossibility or impracticability 51
47.10 No liability except for negligence etc. 52
47.11 Legal and other proceedings 52
47.12 No liability except for negligence etc. 52
47.13 Further limitations on Security Trustee's liability 53
47.14 Conflicts 54
47.15 Information 54
47.16 Investigation by Security Trustee 55
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DATE 2003
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PARTIES
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1. PERPETUAL TRUSTEES VICTORIA LIMITED (ABN 47 004 027 258) of Level
4, 333 Collins Street, Melbourne, Victoria in its capacity as
trustee of the Interstar Millennium Series 2003-1G Trust (the
CHARGOR);
2. PERPETUAL TRUSTEE COMPANY LIMITED (ABN 42 000 001 007) of Level 7,
39 Hunter Street, Sydney, New South Wales (the SECURITY TRUSTEE);
3. INTERSTAR SECURITISATION MANAGEMENT PTY LIMITED (ACN 100 346 898)
of Level 28, 367 Collins Street, Melbourne, Victoria (the TRUST
MANAGER); and
4. THE BANK OF NEW YORK, NEW YORK BRANCH of 101 Barclay Street, 21W,
New York, New York 10286 in its capacity as trustee for the US$
Noteholders (the NOTE TRUSTEE).
RECITALS
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A The Chargor is the trustee, and the Trust Manager is the manager,
of the Trust.
B Under the terms of the Master Trust Deed, the Chargor is
authorised to enter into this deed to charge the Trust Assets to
secure the due and punctual performance of the obligations of the
Chargor under the Transaction Documents and the payment in full of
the Secured Moneys to the Mortgagees.
C The Security Trustee enters into this deed as Mortgagee and as
trustee for each other Mortgagee.
D The Note Trustee enters into this deed for itself and as trustee
for each US$ Noteholder.
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IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
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1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
ATTORNEY means any attorney appointed under this deed or any Collateral
Security.
CHARGE means the charge created by this deed.
CHARGE RELEASE DATE means, subject to clause 29.3, the date the
Security Trustee discharges the Charge and this deed under clause 29.1.
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CHARGOR'S INDEMNITY means:
(a) the Chargor's right of indemnity under the Master Trust Deed from
the Trust Assets in respect of liabilities incurred by the
Chargor acting in its capacity as trustee of the Trust; and
(b) all equitable liens and other Security Interests which the
Chargor has over the Trust Assets.
CLASS A MORTGAGEES means together:
(a) the Note Trustee on behalf of the Class A2 Noteholders, and, if
the Note Trustee has become bound to take steps and/or to proceed
under this deed and fails to do so within a reasonable time and
such failure is continuing, the Class A2 Noteholders, and then
only if and to the extent the Class A2 Noteholders are able to do
so under Australian law; and
(b) the Class A1 Noteholders.
CLASS B MORTGAGEES means together:
(a) the Note Trustee on behalf of the Class B1 Noteholders, and, if
the Note Trustee has become bound to take steps and/or to proceed
under this deed and fails to do so within a reasonable time and
such failure is continuing, the Class B1 Noteholders, and then
only if and to the extent the Class B1 Noteholders are able to do
so under Australian law; and
(b) the Class B2 Noteholders.
COLLATERAL SECURITY means any Security Interest, Guarantee or other
document or agreement at any time created or entered into in favour of
the Security Trustee as security for any Secured Moneys.
EVENT OF DEFAULT means any of the events specified in clause 8.
EXTRAORDINARY RESOLUTION in relation to the Voting Mortgagees means:
(a) a resolution passed at a meeting of the Voting Mortgagees duly
convened and held in accordance with the provisions contained in
this deed by a majority consisting of not less than 75% of the
votes capable of being cast at that meeting by Voting Mortgagees
present in person or by proxy; or
(b) a resolution in writing pursuant to clause 40.15 signed by all
the Voting Mortgagees or all of the relevant Class of Voting
Mortgagees (as the case may be).
GUARANTEE means any guarantee, indemnity, letter of credit, legally
binding letter of comfort or suretyship, or any other obligation or
irrevocable offer (whatever called and of whatever nature):
(a) to pay or to purchase;
(b) to provide funds (whether by the advance of money, the purchase
of or subscription for shares or other securities, the purchase
of assets, rights or services, or otherwise) for the payment or
discharge of;
(c) to indemnify against the consequences of default in the payment
of; or
(d) to be responsible otherwise for,
an obligation or indebtedness of another person, a dividend,
distribution, capital or premium on shares, stock or other interests,
or the insolvency or financial condition of another person.
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LIQUIDATION includes receivership, compromise, arrangement,
amalgamation, administration, reconstruction, winding up, dissolution,
assignment for the benefit of creditors, bankruptcy or death.
MASTER TRUST DEED means the Master Trust Deed for the Interstar
Millennium Trusts dated 2 December 1999 between the Chargor as Trustee
and Interstar Securities (Australia) Pty Limited (ABN 72 087 271 109).
MORTGAGED PROPERTY means the property and rights mortgaged or charged
by this deed or any Collateral Security.
MORTGAGEE means:
(a) the Security Trustee in relation to its rights (held in its own
right or for the benefit of other Mortgagees) under this deed;
(b) any Noteholder in relation to its rights under the Notes held by
it;
(c) any Approved Seller in relation to any relevant Interest
Adjustment and any Approved Seller's Fees under the Transaction
Documents for the Trust;
(d) the Trust Manager in relation to its rights as Trust Manager
under the Transaction Documents for the Trust;
(e) the Servicer in relation to its rights as Servicer under the
Transaction Documents for the Trust;
(f) any Support Facility Provider (other than any Mortgage Insurer)
in relation to its rights under each Support Facility for the
Trust to which it is a party;
(g) the Note Trustee in relation to its rights (held in its own
right) under the Transaction Documents for the Trust;
(h) the Mortgage Insurers in relation to payments by way of
reimbursement of Timely Payment Cover (as defined in the Mortgage
Insurance Policies);
(i) each Paying Agent in relation to its rights under the Transaction
Documents for the Trust;
(j) the Calculation Agent in relation to its rights under the
Transaction Documents for the Trust; and
(k) each Note Manager in relation to its rights under the Transaction
Documents for the Trust.
NOTEHOLDER MORTGAGEES means, together:
(a) the Class A Mortgagees; and
(b) the Class B Mortgagees.
NOTICE OF CREATION OF TRUST means the Notice of Creation of Trust dated
on or about the date of this deed issued under the Master Trust Deed in
relation to the Trust.
POWER means a power, right, authority, discretion or remedy which is
conferred on the Security Trustee, a Mortgagee or a Receiver or
Attorney:
(a) by this deed or any Collateral Security; or
(b) by law in relation to this deed or any Collateral Security.
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RECEIVER means a receiver or receiver and manager appointed under this
deed or any Collateral Security.
RELEVANT TRUST means a trust other than the Trust, constituted under
the Master Trust Deed and the Series Notice for that trust, of which
the Chargor is a trustee.
REPRESENTATIVE means:
(a) in the case of a US$ Noteholder, the Note Trustee (as its
representative or any other person appointed as a proxy for the
US$ Noteholders in accordance with this deed);
(b) in the case of any other Mortgagee, a person who is appointed as
a proxy for that Mortgagee pursuant to clause 40.9; and
(c) without limiting the generality of paragraph (a), in the case of
a Voting Mortgagee which is a body corporate, a person who is
appointed pursuant to clause 40.10 by the Mortgagee.
SECURED MONEYS means all money which the Chargor (whether alone or with
another person) is or at any time may become actually or contingently
liable to pay to or for the account of any Mortgagee (whether alone or
with another person) for any reason whatever under or in connection
with a Transaction Document.
It includes money by way of principal, interest, fees, costs,
indemnities, Guarantee, charges, duties or expenses, or payment of
liquidated or unliquidated damages under or in connection with a
Transaction Document, or as a result of any breach of or default under
or in connection with, a Transaction Document.
Where the Chargor would have been liable but for its Liquidation, it
will be taken still to be liable.
SERIES NOTICE means the Series Notice dated on or after the date of
this deed relating to the Trust.
SETTLOR means Nicolette Andrews.
TRUST means the trust known as the Interstar Millennium Series 2003-1G
Trust established under the Notice of Creation of Trust, the Master
Trust Deed and the Series Notice.
TRUST ASSETS means the Assets of the Trust from time to time as defined
in the Master Trust Deed, and includes the rights of the Chargor under
the Transaction Documents in respect of the Trust and under the
Collection Account and the US$ Account.
TRUST FUND means each amount held by the Security Trustee under clause
2.1 of this deed together with any other property and benefits which
the Security Trustee receives, has vested in it or otherwise acquires
to hold on the trust established under this deed including, without
limitation, all the right, title and interest of the Security Trustee
in connection with the Charge and any property which represents the
proceeds of sale of any such property or proceeds of enforcement of the
Charge.
VESTING DATE means the day preceding the earliest of:
(a) the 80th anniversary of the date of this deed;
(b) the 21st anniversary of the date of the death of the last
survivor of the lineal descendants of King George V living on the
date of this deed; and
(c) the day after the Charge Release Date.
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VOTING MORTGAGEE means:
(a) with respect only to the enforcement of the security under this
deed, for so long as the Secured Money owing to the Class A
Noteholders and Class B Noteholders comprise 75% or more of the
total Secured Moneys, the Noteholder Mortgagees alone; and
(a) at any other time (subject to clause 40.17):
(i) the Class A Mortgagees; and
(ii) each other Mortgagee (other than a Class A Mortgagee).
1.2 MASTER TRUST DEED DEFINITIONS AND TRANSACTION DOCUMENT AMENDMENTS
(a) Words and expressions which are defined in the Master Trust Deed
(as amended by the Series Notice) and the Series Notice
(including in each case by reference to another agreement) have
the same meanings when used in this deed unless the context
otherwise requires or unless otherwise defined in this deed.
(b) Subject to clause 30, no change to the Master Trust Deed or any
other document (including the order of payment set out in the
Series Notice) after the date of this deed will change the
meaning of terms used in this deed or adversely affect the rights
of the Security Trustee under this deed unless the Security
Trustee (subject to clause 40.17(b), with the prior written
consent of the Noteholder Mortgagees) has agreed in writing to
the changes.
1.3 INTERPRETATION
Clause 1.2 of the Master Trust Deed applies to this deed as if set out
in full, except that any reference to A TRUST is replaced by a
reference to THE TRUST,:
(a) a reference to an ASSET includes any real or personal, present or
future, tangible or intangible property or asset and any right,
interest, revenue or benefit in, under or derived from the
property or asset;
(b) an Event of Default SUBSISTS until it has been waived in writing
by the Security Trustee provided that no such waiver will be
capable of taking effect unless the Security Trustee has first
consulted with the Note Trustee;
(c) a reference to an amount for which a person is CONTINGENTLY
LIABLE includes an amount which that person may become actually
or contingently liable to pay if a contingency occurs, whether or
not that liability will actually arise; and
(d) WILFUL DEFAULT means, in respect of the Security Trustee, any
wilful failure to comply with or wilful breach of any of its
obligations under this deed, other than a wilful failure or
wilful breach which:
(i) is caused by the failure by another person to act where
that act is a precondition to the act of the Security
Trustee;
(ii) is in accordance with a lawful court order or direction
or otherwise required by law; or
(iii) is in accordance with an instruction or direction from
the Note Trustee or the Voting Mortgagees.
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1.4 DETERMINATION, STATEMENT AND CERTIFICATE SUFFICIENT EVIDENCE
Except where otherwise provided in this deed any determination,
statement or certificate by the Security Trustee or an Authorised
Signatory of the Security Trustee provided for in this deed is
sufficient evidence of each thing determined, stated or certified in
the absence of manifest error or proof to the contrary.
1.5 DOCUMENT OR AGREEMENT
A reference to:
(a) an AGREEMENT includes a Security Interest, Guarantee,
undertaking, deed, agreement or legally enforceable arrangement
whether or not in writing; and
(b) a DOCUMENT includes an agreement (as so defined) in writing or a
certificate, notice, instrument or document.
A reference to a specific agreement or document includes it as amended,
novated, supplemented or replaced from time to time, except to the
extent prohibited by this deed.
1.6 RIGHTS AND OBLIGATIONS OF MORTGAGEES
(a) Each Mortgagee is entitled to the benefit of the obligations
(including warranties) of each of the Security Trustee, the
Chargor and any other person under this deed and any Collateral
Security.
(b) No Mortgagee is entitled to enforce this deed or any Collateral
Security other than through the Security Trustee.
(c) Each Mortgagee is bound by this deed and each Collateral
Security.
(d) No Mortgagee is responsible for the obligations of the Security
Trustee or any other Mortgagee.
The provisions of this deed are binding on the Security Trustee, the
Chargor and the Mortgagees and all persons claiming through them,
respectively.
1.7 TRANSACTION DOCUMENT
This deed is a TRANSACTION DOCUMENT for the purposes of the Master
Trust Deed.
1.8 CHARGOR AS TRUSTEE
In this deed, except where provided to the contrary:
(a) a reference to the Chargor is a reference to the Chargor in its
capacity as trustee of the Trust only, and in no other capacity;
and
(b) a reference to the assets, business, property or undertaking of
the Chargor is a reference to the assets, business, property or
undertaking of the Chargor only in the capacity described in
paragraph (a) above.
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1.9 KNOWLEDGE OF THE CHARGOR
In relation to the Trust, the Chargor will be considered to have
knowledge or notice of or be aware of any matter or thing if the
Chargor has knowledge, notice or awareness of that matter or thing by
virtue of the actual notice or awareness of the officers or employees
of the Chargor who have day to day responsibility for the
administration of the Trust.
1.10 KNOWLEDGE OF SECURITY TRUSTEE
For the purposes of this deed, the Security Trustee will only be
considered to have knowledge, notice of or to be aware of any thing if
the Security Trustee has knowledge, notice or awareness of that thing
by virtue of the actual knowledge, notice or awareness of the officers
or employees of the Security Trustee who have day to day responsibility
for the administration of the security trust established by this deed.
2. APPOINTMENT OF SECURITY TRUSTEE
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2.1 THE SECURITY TRUSTEE
The Security Trustee:
(a) is appointed to act as trustee on behalf of the Mortgagees on the
terms and conditions of this deed; and
(b) acknowledges and declares that it:
(i) holds the sum of A$10.00 received on the date of this
deed from the Settlor; and
(ii) will hold the benefit of the Charge, the Mortgaged
Property and the benefit of each of the Transaction
Documents to which the Security Trustee is a party,
in each case, on trust for each Mortgagee, in accordance with the terms
and conditions of this deed.
2.2 RESOLUTION OF CONFLICTS
(a) The Security Trustee shall, as regards the exercise of all
discretion vested in it by this deed and all other Transaction
Documents, except where expressly provided otherwise, have regard
to the interest of the Mortgagees.
Subject to this deed, if there is at any time, with respect to
enforcement, a conflict between a duty owed by the Security
Trustee to any Mortgagee or class of Mortgagee, and a duty owed
by it to another Mortgagee or class of Mortgagee, the Security
Trustee must give priority to the interests of the Noteholders
(which, in the case of a Class of US$ Noteholders, shall be
determined by the Note Trustee acting on their behalf as provided
herein and in the Note Trust Deed).
(b) Subject to this deed (other than paragraph (b)), the Security
Trustee must give priority to the interests only of the Class A
Noteholders if, in the Security Trustee's opinion, (in relation
to which, in determining the interests of a Class of US$
Noteholders, the Security Trustee may rely on a determination of
the Note Trustee), there is a conflict between the
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interests of the Class A Noteholders and the interests of the
Class B Noteholders or the interests of the other Mortgagees.
(c) Subject to this deed, if, in the Security Trustee's opinion,
there is a conflict between the interests of the Class A1
Noteholders and the Class A2 Noteholders, the Security Trustee
must convene a meeting of the Class A Noteholders (in relation to
which in determining the interests of the Class A Noteholders,
the Security Trustee must rely on the instructions given by an
Extraordinary Resolution of Class A Noteholders in a meeting held
in accordance with clause 40).
(d) Provided that the Security Trustee acts in accordance with a
determination of the Note Trustee (where it receives a
determination from the Note Trustee) or in good faith (in each
other case), it shall not incur any liability to any Mortgagee
for giving effect to clauses 2.2(b), 2.2(c) or 2.2(d).
2.3 DURATION OF TRUST
The trust established under this deed commences on the date of this
deed and ends on the Vesting Date unless determined earlier.
3. CHARGE
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3.1 CHARGE
(a) Subject to paragraph (b), the Chargor charges to the Security
Trustee, for the Security Trustee and as trustee for the
Mortgagees all of the present and future Trust Assets and
undertaking of the Trust.
(b) The Charge does not charge any Trust Assets as at the date of
this deed which on the date of this deed are, or are taken, under
the applicable stamp duties legislation of the relevant
jurisdiction, to be situated in any State or Territory of
Australia other than the Australian Capital Territory or the
Northern Territory.
3.2 SECURITY
(a) The security created by this deed secures the due and punctual
payment of the Secured Moneys.
(b) This deed is given in consideration of the Security Trustee and
the Mortgagees entering the Transaction Documents and for other
valuable consideration received.
3.3 PROSPECTIVE LIABILITY
For the purpose of the Corporations Act the maximum prospective
liability (as defined in the Corporations Act) secured by this deed at
any time is A$5,000,000,000 or its equivalent and the total amount
recoverable under this deed is limited to A$5,000,000,000.
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4. NATURE OF CHARGE
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4.1 PRIORITY
The Charge is a first charge and takes priority over all Security
Interests that have been granted over the Mortgaged Property.
NATURE OF CHARGE
The Charge operates, subject to clause 4.4, as a floating charge only,
over all Mortgaged Property.
4.2 DEALING WITH MORTGAGED PROPERTY
(a) Except with the prior written consent of the Security Trustee and
(subject to clause 40.17(b)) the Noteholder Mortgagees, or as
expressly permitted in any Transaction Document, the Chargor
shall not, and the Trust Manager shall not direct the Chargor to:
(i) create or allow to exist any Security Interest over any
Mortgaged Property; or
(ii) in any other way:
(A) dispose of;
(B) create or allow any interest in; or
(C) part with possession of,
any Mortgaged Property, except, subject to the
Transaction Documents, any disposal of or dealing with
any asset for the time being subject to the floating
charge in the ordinary course of its ordinary business.
(b) Where by law a Mortgagee may not restrict the creation of any
Security Interest over an asset ranking after the Charge,
paragraph (a) will not restrict that creation. However, the
Chargor shall ensure that before that Security Interest is
created the holder of that Security Interest enters into a deed
of priority in form and substance specified by the Security
Trustee.
4.3 CRYSTALLISATION
The floating charge referred to in clause 4.2 will automatically and
immediately crystallise and operate as a fixed charge:
(a) in respect of any asset:
(i) upon notice to the Chargor from the Security Trustee
(which it may only give following an Event of Default);
(ii) if without the prior written consent of the Security
Trustee (and, subject to clause 40.17(b), the
Noteholder Mortgagees), the Chargor:
(A) creates or allows any Security Interest over;
(B) sells, leases or otherwise disposes of;
(C) creates or allows any interest in; or
(D) parts with possession of,
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that asset in breach of a Transaction Document, or
agrees or attempts to do so or takes any step towards
doing so;
(iii) on the Commissioner of Taxation or his delegate or
successor signing a notice under:
(A) s218 or s255 of the Income Tax Assessment Act 1936
(Cth) and the Income Tax Assessment Act 1997
(Cth);
(B) s260-5 of the Taxation Administration Act 1953
(Cth); or
(C) any similar legislation,
which will affect that asset; or
(iv) on a Government Agency taking any step which may result
in an amount of Tax or an amount owing to a Government
Agency ranking ahead of the floating charge with
respect to that asset; or
(b) in respect of all the Mortgaged Property:
(i) if an Insolvency Event occurs with respect to the
Chargor; or
(ii) on the security constituted by this deed being enforced
in any way.
Except where expressly stated, no notice or action by any Mortgagee is
necessary for the charge to crystallise.
4.4 DE-CRYSTALLISATION
The Security Trustee may, at the direction of the Trust Manager at any
time release any asset which has become subject to a fixed charge under
clause 4.4 from the fixed charge by notice to the Chargor. That asset
will then again be subject to the floating charge and to the further
operation of that clause. The Security Trustee must notify each
Designated Rating Agency of any such release.
5. COVENANTS AND WARRANTIES
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5.1 COVENANT
(a) The Chargor acknowledges its indebtedness to each Mortgagee in
respect of the relevant Secured Moneys. The Chargor shall duly
and punctually pay the Secured Moneys. After an Event of Default
(whether or not it subsists) it will pay the Secured Moneys when
due in accordance with the Transaction Documents, including in
accordance with clause 8.2.
(b) Subject to the limitations on the obligations and liability of
the Chargor under the Master Trust Deed and the other Transaction
Documents, the Chargor shall use its reasonable endeavours to
ensure that no Event of Default occurs.
(c) The Chargor will ensure that it complies with its material
obligations under the Transaction Documents.
(d) The Chargor will give to the Security Trustee any information
relating to the Trust in the power or possession of the Chargor
that the Security Trustee reasonably requests in
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connection with the exercise and performance of its powers and
obligations under this deed, including without limitation:
(i) the identity, and notice details of, each Mortgagee and
Beneficiary; and
(ii) the amount and details of any Secured Moneys owing to
each Mortgagee.
(e) The Trust Manager shall cause this deed to be lodged for
registration with the Australian Securities and Investments
Commission before the Chargor issues a Note.
5.2 NEGATIVE COVENANTS
The Chargor shall not do, nor shall the Trust Manager direct the
Chargor to do, any of the following without the prior written consent
of the Security Trustee (and, subject to clause 40.17(b), the
Noteholder Mortgagees) and without prior written confirmation from each
Designated Rating Agency of the rating (if any) assigned by it to any
Class of Notes in relation to the Trust except as permitted by this
deed or the Master Trust Deed or the Series Notice for the Trust:
(a) (NO FINANCIAL INDEBTEDNESS) create, incur, assume, permit or
suffer to exist any Financial Indebtedness except for:
(i) the Notes;
(ii) Financial Indebtedness arising under the Transaction
Documents in relation to the Trust (including under a
Support Facility); or
(iii) Financial Indebtedness which is fully subordinated to
the Secured Moneys or is non-recourse other than with
respect to proceeds in excess of those needed to pay
the Secured Moneys, and which does not constitute a
claim against the Chargor in the event that those
excess proceeds are insufficient to pay that
subordinated Financial Indebtedness; or
(iv) Financial Indebtedness when the Chargor has received
written confirmation from each Designated Rating Agency
that it will not result in any reduction or withdrawal
of the rating assigned to any Class of Notes rated by
that Designated Rating Agency;
(b) (NO RELEASE UNDER TRANSACTION DOCUMENTS) give any release or
discharge (whether full, partial or conditional) to any person in
respect of their obligations under any of the Transaction
Documents relating to the Trust, except as permitted by the
Transaction Documents;
(c) (OTHER ACTIVITIES) not engage in any business or activity in
relation to the Trust other than as contemplated in the
Transaction Documents;
(d) (BANK ACCOUNTS) not open any bank account not specified in the
Transaction Documents; and
(e) (SECURITY INTEREST) not create or permit or suffer to exist any
other Security Interest over the Mortgaged Property other than
the Chargor's Indemnity.
5.3 WARRANTY
The Chargor makes the following representations and warranties:
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(a) (TRANSACTION DOCUMENTS REPRESENTATIONS AND WARRANTIES) All
representations and warranties of the Chargor in the Transaction
Documents are true or, if not yet made, will be true when made.
(b) (GOOD TITLE) The Chargor is the legal owner of the Mortgaged
Property and has the power under the Master Trust Deed and the
Series Notice to enter into this deed and to charge in the manner
provided in this deed the Mortgaged Property. Subject only to the
Master Trust Deed (including, without limitation, the Chargor's
Indemnity) and this deed, the Mortgaged Property is free of all
other Security Interests.
(c) (TRUST VALIDLY CREATED) The Trust has been validly created and is
in existence at the date of this deed.
(d) (SOLE TRUSTEE) The Chargor has been validly appointed as trustee
of the Trust and is presently the sole trustee of the Trust.
(e) (MASTER TRUST DEED) The Trust is constituted pursuant to the
Master Trust Deed, the Notice of Creation of Trust and the Series
Notice.
(f) (RIGHT OF INDEMNITY) Except as expressly provided in the Master
Trust Deed or the Series Notice or statute it has not limited in
any way, and it has no liability which may be set off against,
the Chargor's Indemnity.
(g) (NO PROCEEDINGS TO REMOVE) No notice has been given to the
Chargor and, to the Chargor's knowledge, no resolution has been
passed or direction has been given, removing the Chargor as
trustee of the Trust.
5.4 TRUST MANAGER'S UNDERTAKINGS
The Trust Manager undertakes to the Security Trustee promptly to give
to the Security Trustee, each Designated Rating Agency and the Note
Trustee:
(a) a copy of each Trust Manager's Report given in relation to the
Trust (if any);
(b) each audit report issued by the Auditor in relation to the Trust;
and
(c) upon request from the Security Trustee or the Note Trustee (as
the case may be), a copy of each Transaction Document and details
and information relating to:
(i) the identity, and notice details of, each Support
Facility Provider; and
(ii) the Secured Moneys owing to each Support Facility
Provider.
6. FURTHER ASSURANCES
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6.1 FURTHER ASSURANCES
Whenever the Security Trustee reasonably requests the Chargor to do
anything in order:
(a) more satisfactorily to mortgage, assure or secure the Mortgaged
Property to the Mortgagees or the Security Trustee's nominee in a
manner not inconsistent with this deed or any Transaction
Document; or
(b) to aid in the execution or exercise of any Power,
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the Chargor shall do it immediately, subject to any liability it incurs
(other than from its own negligence, fraud or wilful default) being
covered by the Chargor's Indemnity. It may include registering this
deed, executing or registering any other document or agreement,
delivering Transaction Documents or evidence of title and executing and
delivering blank transfers.
7. NOTE TRUSTEE
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7.1 CAPACITY
The Note Trustee is a party to this deed in its capacity as trustee for
the US$ Noteholders from time to time under the Note Trust Deed.
7.2 EXERCISE OF RIGHTS
Except as otherwise provided in this deed and in the Note Trust Deed:
(a) the rights, remedies and discretions of the US$ Noteholders under
this deed including all rights to vote or give instructions or
consent to the Security Trustee and to enforce any undertaking or
warranty under this deed, may only be exercised by the Note
Trustee on behalf of the US$ Noteholders in accordance with the
Note Trust Deed; and
(b) the US$ Noteholders may only exercise enforcement rights in
respect of the Mortgaged Property through the Note Trustee and
only in accordance with this deed and the Note Trust Deed.
7.3 INSTRUCTIONS OR DIRECTIONS
The Security Trustee may rely on any instructions or directions given
to it by the Note Trustee as being given on behalf of a Class of US$
Noteholders from time to time and need not inquire whether the Note
Trustee or a Class of the US$ Noteholders from time to time have
complied with any requirements under the Note Trust Deed or as to the
reasonableness or otherwise of the Note Trustee.
7.4 PAYMENTS
Any payment to be made to a US$ Noteholder under this deed may be made
to the Note Trustee or a Paying Agent on behalf of that US$ Noteholder
and any such payment is a good discharge to the Chargor or the Security
Trustee.
7.5 NOTICES
Any notice to be given to a US$ Noteholder under this deed may be given
to the Note Trustee on behalf of that US$ Noteholder. Any costs to the
Note Trustee of publishing such notice to the US$ Noteholders will be
reimbursed by the Chargor to the Note Trustee.
8. EVENTS OF DEFAULT
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8.1 EVENTS OF DEFAULT
Each of the following is an Event of Default (whether or not it is
within the control of the Chargor).
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(FAILURE TO PAY) The Chargor fails to pay:
(i) any Interest within 10 Business Days of the Payment
Date on which the Interest was due to be paid, together
with all Interest accrued and payable on that Interest;
and
(ii) any other Secured Moneys, within 10 Business Days of
the due date for payment (or within any applicable
grace period agreed with the Mortgagee to whom the
Secured Moneys relate or, where the Mortgagee is a US$
Noteholder, the Note Trustee on behalf of that US$
Noteholder),
(iii) sub-clauses (i) and (ii) above will not constitute
Events of Default:
(A) if the Secured Moneys which the Chargor failed to
pay are subordinated to payment of amounts due to
Class A Noteholders while any Secured Moneys
remain owing:
(1) to Class A Noteholders; or
(2) to any other person, which rank in priority
to amounts due to Class A Noteholders; or
(B) where the Chargor had sufficient available funds
with its bankers with which the bank accounts of
the Trust are held and had given instructions to
those bankers to make that payment, and that the
payment would have been made but for temporary
technical or administrative difficulties outside
the control of the Chargor.
(b) (BREACH OF OBLIGATION) The Chargor fails to perform or observe
any other provisions (other than an obligation referred to in
paragraph (a) of a Transaction Document (including any
representation, warranty or undertaking) and that default (if in
the opinion of the Security Trustee is capable of remedy, that
opinion, subject to clause 40.17(b), having been approved in
writing by the Noteholder Mortgagees) is not remedied for 30 days
after written notice (or such longer period as may be specified
in the notice, that longer period subject to clause 40.17(b),
having been approved in writing by the Noteholder Mortgagees)
from the Security Trustee requiring the failure to be remedied.
(c) (INSOLVENCY) An Insolvency Event occurs in relation to the
Chargor (in its capacity as trustee of the Trust).
(d) (PRIORITY OF CHARGE) The Charge is not or ceases to be a first
ranking charge over the Trust Assets, or any other obligation of
the Chargor (other than as mandatorily preferred by law) ranks
ahead of or pari passu with any of the Secured Moneys.
(e) (ENFORCEMENT OF SECURITY) Any Security Interest over the Assets
of the Trust is enforced.
(f) (INTEREST RATE SWAP OR CURRENCY SWAPS) An Interest Rate Swap or
Currency Swap is terminated and a replacement Interest Rate Swap
or Currency Swap (as the case may be) on terms that will not lead
to a withdrawal or downgrade of the rating assigned to any Notes,
is not put in place.
(g) (VITIATION OF TRANSACTION DOCUMENTS)
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(i) All or any part of any Transaction Document (other than
an Interest Rate Swap or a Currency Swap) is terminated
or is or becomes void, illegal, invalid, unenforceable
or of limited force and effect; or
(ii) a party becomes entitled to terminate, rescind or avoid
all or part of any Transaction Document (other than an
Interest Rate Swap or a Currency Swap).
(h) (TRUST) Without the prior consent of the Security Trustee (that
consent, subject to clause 40.17(b), having been approved in
writing by the Noteholder Mortgagees):
(i) the Trust is wound up, or the Chargor is required to
wind up the Trust under the Master Trust Deed or
applicable law, or the winding up of the Trust
commences;
(ii) the Trust is held or is conceded by the Chargor not to
have been constituted or to have been imperfectly
constituted;
(iii) unless another trustee is appointed to the Trust under
the Transaction Documents, the Chargor ceases to be
authorised under the Trust to hold the property of the
Trust in its name and to perform its obligations under
the Transaction Documents.
8.2 RIGHTS OF THE SECURITY TRUSTEE UPON EVENT OF DEFAULT
At any time after an Event of Default occurs, the Security Trustee may,
and shall (subject to clauses 9.2, 9.3, 9.4 and 9.5) if so directed by
an Extraordinary Resolution of the Voting Mortgagees:
(a) declare the Charge immediately enforceable; and/or
(b) declare the Secured Moneys immediately due and payable; and/or
(c) give a notice crystallising the charge in relation to any or all
of the Mortgaged Property under clause 4.4; and/or
(d) appoint a Receiver over the Trust Assets, or exercise the powers
that a Receiver would otherwise have if appointed under this
deed.
The Security Trustee may exercise its rights under this clause
notwithstanding any delay or previous waiver.
8.3 NOTIFY EVENTS OF DEFAULT
Each of the Chargor and the Trust Manager must promptly notify the
Security Trustee, the Note Trustee and each Designated Rating Agency
if, to the knowledge of its officers who are responsible for the
administration of the Trust, it becomes aware of the occurrence of an
Event of Default, Trustee's Default, Servicer Transfer Event or Trust
Manager's Default including full details of that Event of Default,
Trustee's Default, Servicer Transfer Event or Trust Manager's Default
(as the case may be).
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9. ENFORCEMENT
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9.1 POWER TO ENFORCE
At any time after the Charge becomes enforceable, the Security Trustee
may, at its discretion and without further notice (subject to the terms
of this deed including, without limitation, clause 8.2) take such
proceedings as it may think fit to enforce any of the provisions of
this deed.
9.2 NO OBLIGATION TO ENFORCE
Subject to clause 9.3, pending the receipt of directions from the
Voting Mortgagees as contemplated by clauses 9.3 and 9.4, the Security
Trustee shall not be bound to take any action or give any consent or
waiver or make any determination under this deed (including, to appoint
any Receiver, to declare the Charge enforceable or the Secured Moneys
immediately due and payable pursuant to clause 8.2 or to take any other
proceedings referred to in clause 9.1). Nothing in this clause shall
affect the operation of clause 4.4 or the Charge becoming enforceable
prior to the Security Trustee receiving directions from the Mortgagees.
9.3 OBLIGATION TO CONVENE MEETING
Following the Security Trustee becoming actually aware of the
occurrence of an Event of Default in accordance with clause 38, it
shall, subject to clause 9.7, promptly convene a meeting of the Voting
Mortgagees in accordance with this deed, at which it shall seek
directions from the Voting Mortgagees by way of an Extraordinary
Resolution of the Voting Mortgagees (or a written resolution signed by
all Voting Mortgagees) regarding the action it should take as a result
of that Event of Default including whether to do any of the things
referred to in clauses 8.2(a) to 8.2(d) inclusive.
9.4 SECURITY TRUSTEE TO ACT IN ACCORDANCE WITH DIRECTIONS
(a) Subject to sub-clause (b), the Security Trustee shall take all
action necessary to give effect to any Extraordinary Resolution
of the Voting Mortgagees or to any direction of the Note Trustee
(where it is the only Voting Mortgagee) and shall comply with all
directions contained in or given pursuant to any Extraordinary
Resolution of the Voting Mortgagees or to any direction given by
the Note Trustee (where it is the only Voting Mortgagee).
(b) The obligation of the Security Trustee pursuant to sub-clause (a)
is subject to:
(i) this deed; and
(ii) the Security Trustee being adequately indemnified from
the Trust Funds or the Security Trustee receiving from
the Voting Mortgagees (other than the Note Trustee) an
indemnity in a form reasonably satisfactory to the
Security Trustee (which may be by way of an
Extraordinary Resolution of the Voting Mortgagees)
against all actions, proceedings, claims and demands to
which it may render itself liable, and all costs,
charges, damages and expenses which it may incur, in
giving effect to an Extraordinary Resolution of the
Voting Mortgagees.
The Security Trustee shall first claim on its indemnity from the
Trust Assets before it claims on any indemnity from the
Mortgagees (other than the Note Trustee), including any
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indemnity provided under clause 9.5. The Note Trustee is in no
circumstance required to give an indemnity to the Security
Trustee.
(c) If an Event of Default is a payment default in respect of a
subordinated Class of Notes, as long as there are Notes
outstanding that rank prior to those subordinated Notes, the
Security Trustee shall not take any action without the consent of
each Class of Noteholders in respect of each Class of prior
ranking Notes (or, in the case of a Class of US$ Noteholders, the
Note Trustee) by Extraordinary Resolution.
(d) If the Security Trustee becomes bound to take steps and/or
proceed under this deed and it fails to do so within a reasonable
time and such failure is continuing the Voting Mortgagees may
exercise such powers as they determine in accordance with the
Series Notice and (where relevant) the Note Trust Deed and then
only if and to the extent they are able to do so under Australian
law.
9.5 SECURITY TRUSTEE MUST RECEIVE INDEMNITY
If:
the Security Trustee convenes a meeting of the Voting Mortgagees, or is
required by an Extraordinary Resolution to take any action
under this deed, and advises the Voting Mortgagees that the
Security Trustee will not act in relation to the enforcement
of this deed unless it is personally indemnified by the Voting
Mortgagees (other than the Note Trustee) to its reasonable
satisfaction against all actions, proceedings, claims and
demands to which it may render itself liable, and all costs,
charges, damages and expenses which it may incur, in relation
to the enforcement of this deed and put in funds to the extent
to which it may become liable (including costs and expenses);
and
(a) the Voting Mortgagees refuse to grant the requested indemnity,
and put it in funds,
then the Security Trustee will not be obliged to act in relation to
that enforcement. In those circumstances, the Voting Mortgagees may
exercise such Powers as they determine by Extraordinary Resolution and
the Security Trustee is not liable in any manner whatsoever in relation
to, or in connection with, such an exercise of those powers. The Note
Trustee is in no circumstance required to give any indemnity to the
Security Trustee.
9.6 LIMITATION ON RIGHTS OF MORTGAGEES
Subject to this deed, the powers, rights and remedies conferred on the
Security Trustee by this deed are exercisable by the Security Trustee
only, and no Mortgagee is entitled without the written consent of the
Security Trustee to exercise some or any of them. Without limiting the
generality of the foregoing, but subject to clause 9.5, no Mortgagee is
entitled to enforce the Charge or the provisions of this deed or to
appoint or cause to be appointed a Receiver to any of the Mortgaged
Property or otherwise to exercise any power conferred by the terms of
any applicable law on charges except as provided in this deed.
9.7 IMMATERIAL WAIVERS
(a) The Security Trustee may agree, on any terms and conditions as it
may deem expedient, having first consulted with the Class A
Mortgagees and given notice to each Designated
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Rating Agency, but without the consent of the Mortgagees and
without prejudice to its rights in respect of any subsequent
breach, to any waiver or authorisation of any breach or proposed
breach of any of the terms and conditions of the Transaction
Documents or any of the provisions of this deed which is not, in
the reasonable opinion of the Security Trustee, materially
prejudicial to the interests of the Mortgagees and may determine
that any event that would otherwise be an Event of Default shall
not be treated as an Event of Default for the purpose of this
deed.
(b) No such waiver, authorisation or determination shall be made in
contravention of any directions contained in an Extraordinary
Resolution of Voting Mortgagees.
(c) No waiver, authorisation or determination may, once given, be
overridden or withdrawn by an Extraordinary Resolution of Voting
Mortgagees but the Security Trustee may (subject to clause
40.17(b), with the prior written consent of the Noteholder
Mortgagees) give a waiver, authorisation or determination on
terms that allow it to be overridden or withdrawn.
(d) Any waiver, authorisation or determination shall, if the Security
Trustee so requires, be notified to the Voting Mortgagees by the
Trust Manager as soon as practicable thereafter in accordance
with this deed.
9.8 ACTS PURSUANT TO RESOLUTIONS
The Security Trustee shall not be responsible for having acted in good
faith upon any resolution purporting to have been passed at any meeting
of the Voting Mortgagees in respect of which minutes have been made and
signed, even though it may subsequently be found that there was some
defect in the constitution of that meeting or the passing of that
resolution or that for any reasons that resolution was not valid or
binding upon the Voting Mortgagees.
9.9 OVERRIDING PROVISION
Notwithstanding any other provision of this deed:
(a) the Security Trustee is not obliged to do or omit to do anything
including entering into any transaction or incurring any
liability unless the Security Trustee's liability is limited in a
manner satisfactory to the Security Trustee in its absolute
discretion; and
(b) the Security Trustee will not be under any obligation to advance
or use its own funds for the payment of any costs, expenses or
liabilities, except in respect of its own fraud, negligence or
wilful default.
10. APPOINTMENT OF RECEIVER
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10.1 APPOINTMENT
To the extent permitted by law and subject to clause 9, at any time
after the Charge becomes enforceable under this deed the Security
Trustee or any Authorised Signatory of the Security Trustee may:
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(a) appoint any person or any 2 or more persons jointly or severally
or both to be a receiver or receiver and manager of all or any of
the Mortgaged Property;
(b) remove any Receiver;
(c) appoint another Receiver in addition to or in place of a
Receiver; and
(d) fix or vary the remuneration of a Receiver.
10.2 AGENT OF CHARGOR
(a) Subject to clauses 10.2(b) and 10.4, every Receiver is the agent
of the Chargor. The Chargor alone is responsible for the
Receiver's acts and defaults.
(b) (i) Any Receiver will be the agent of the Chargor in its
capacity as trustee of the Trust only; and
(ii) notwithstanding anything else in this deed or at law,
the Chargor in its personal capacity is not responsible
for any negligent act or negligent omission of the
Receiver.
10.3 RECEIVER'S POWERS
In addition to any powers granted by law, and except to the extent
specifically excluded by the terms of his appointment and in accordance
with the interests of the Mortgagees in accordance with this deed,
every Receiver has power to do anything in respect of the Mortgaged
Property that the Chargor could do (including, without limitation,
having regard to its powers and the extent of its liability under the
Master Trust Deed). However, every Receiver acknowledges that the
Chargor's liability in relation to the Receiver's exercise of those
powers is limited to the assets of the Trust. His powers include the
following.
(a) (TAKE POSSESSION AND MANAGE) He may take possession of, get in
and manage the Mortgaged Property.
(b) (LEASE) He may lease any of the Mortgaged Property for any term
(whether or not the Receiver has taken possession).
(c) (CARRY ON BUSINESS) He may carry on or concur in carrying on any
business.
(d) (ACQUIRE ANY ASSET) He may acquire in any manner any asset
(including to take it on lease). After that acquisition it will
be included in the Mortgaged Property.
(e) (MAINTAIN AND IMPROVE THE MORTGAGED PROPERTY) He may do anything
to maintain, protect or improve any of the Mortgaged Property or
to obtain income or returns from any of the Mortgaged Property
(including by development, sub-division, construction,
alteration, or repair, of any property or by pulling down,
dismantling or scrapping, any property).
(f) (RAISE MONEY) He may:
(i) borrow or raise any money from any Mortgagee or any
other person approved by the Security Trustee;
(ii) give Guarantees; and
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(iii) grant any Security Interest over any of the Mortgaged
Property to secure that money or Guarantee. That
Security Interest may rank in priority to or equally
with or after, the security created by this deed. It
may be given in the name of the Chargor or otherwise.
(g) (LEND) He may lend money or provide financial accommodation.
(h) (SELL)
(i) He may sell any of the Mortgaged Property (whether or
not the Receiver has taken possession).
(ii) Without limitation, any sale may be made:
(A) by public auction, private treaty or tender;
(B) for cash or on credit;
(C) in one lot or in parcels;
(D) either with or without special conditions or
stipulations as to title or time or mode of
payment of purchase money or otherwise;
(E) with power to allow the whole or any part of the
purchase money to be deferred (whether with or
without any security); and
(F) whether or not in conjunction with the sale of any
property by any person.
(i) (OPTIONS) He may grant or take put or call options.
(j) (SEVER FIXTURES) He may sever fixtures.
(k) (EMPLOY) He may employ or discharge any person as employee,
contractor, agent, professional adviser, consultant or auctioneer
for any purpose.
(l) (COMPROMISE) He may make or accept any arrangement or compromise.
(m) (GIVE RECEIPTS) He may give receipts for money and other assets.
(n) (PERFORM AND ENFORCE AGREEMENTS) He may:
(i) perform or enforce;
(ii) exercise or refrain from exercising the Chargor's
rights and powers under; or
(iii) obtain the benefit in other ways of,
any documents or agreements or rights which form part of the
Mortgaged Property and any documents or agreements entered into
in exercise of any Power.
(o) (VARY AND TERMINATE AGREEMENTS) He may vary, rescind or terminate
any document or agreement (including surrender or accept the
surrender of leases).
(p) (AUTHORISATIONS) He may apply for, take up, transfer or surrender
any Authorisation or any variation of any Authorisation.
(q) (TAKE INSOLVENCY PROCEEDINGS) He may make, commence and pursue
insolvency proceedings against any person and do any thing in
relation to any actual or contemplated Liquidation (including
attend and vote at meetings of creditors and appoint proxies).
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(r) (TAKE PROCEEDINGS) He may commence, defend, conduct, settle,
discontinue or compromise proceedings in the name of the Chargor
or otherwise.
(s) (EXECUTE DOCUMENTS) He may enter into and execute documents or
agreements on behalf of himself or the Chargor.
(t) (OPERATE BANK ACCOUNTS) He may operate any bank account
comprising part of the Mortgaged Property and open and operate
any further bank account.
(u) (SURRENDER MORTGAGED PROPERTY) He may surrender, release or
transfer any of the Mortgaged Property.
(v) (EXCHANGE MORTGAGED PROPERTY) He may exchange with any person any
of the Mortgaged Property for other property.
(w) (PROMOTE COMPANIES) He may promote the formation of companies
with a view to purchasing any of the Mortgaged Property or
assuming the obligations of the Chargor or otherwise.
(x) (DELEGATE) He may delegate to any person approved by the Security
Trustee any of his Powers (including delegation).
(y) (HAVE ACCESS) He may exercise all the rights of the Chargor under
the Transaction Documents with respect to the Trust Assets.
(z) (VOTE) He may exercise any voting or other rights or powers in
respect of any of the Mortgaged Property and do anything in
relation to shares or marketable securities.
(aa) (OTHER OUTGOINGS) He may pay any outgoing or indebtedness of the
Chargor or any other person.
(bb) (SECURITY INTERESTS) He may redeem any Security Interest or
acquire it and any debt secured by it.
(cc) (INSURE) He may take out insurance.
(dd) (INSURANCE CLAIMS) He may make, enforce, compromise and settle
all claims in respect of insurance.
(ee) (INCIDENTAL POWER) He may do anything incidental to the exercise
of any other Power.
All of the above paragraphs are to be construed independently. None
limits the generality of any other.
10.4 RECEIVER APPOINTED AFTER COMMENCEMENT OF WINDING UP
The power to appoint a Receiver may be exercised even though:
(a) an order may have been made or a resolution may have been passed
for the Liquidation of the Chargor; and
(b) a receiver appointed in those circumstances may not, or may not
in some respects specified by the Receiver, act as the agent of
the Chargor.
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10.5 POWERS EXERCISABLE BY THE SECURITY TRUSTEE
Whether or not a Receiver has been appointed, the Security Trustee may
exercise any Power of a Receiver at any time after the Charge becomes
enforceable under this deed in addition to any Power of the Mortgagees
and without giving notice. It may exercise those Powers and its Powers
without taking possession or being liable as mortgagee in possession.
Without limitation, it may exercise those Powers and its Powers
directly or through one or more agents. In the latter event, anything
done or incurred by such an agent will be taken to be done or incurred
by the Security Trustee provided that the Security Trustee will have no
liability in respect of the negligence or default of any agent
appointed by the Security Trustee with reasonable care for the purpose
of performing functions of a type which are not reasonably capable of
supervision by the Security Trustee.
10.6 WITHDRAWAL
The Security Trustee may at any time (provided it does not have an
Adverse Effect) give up possession of any Mortgaged Property and may at
any time withdraw any receivership.
11. REMUNERATION OF SECURITY TRUSTEE
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11.1 COSTS
In accordance with the Series Notice, the Chargor shall reimburse the
Security Trustee for all costs and expenses of the Security Trustee
properly incurred in acting as Security Trustee.
11.2 FEE
(a) The Security Trustee shall be entitled to a fee from the proceeds
of the Mortgaged Property at the rate agreed from time to time by
the Chargor, the Security Trustee and the Trust Manager. This fee
shall accrue from day to day.
(b) The Security Trustee's fee under sub-clause (a) shall be payable
quarterly in arrears for the relevant period on the same dates as
the Chargor's fee under the Master Trust Deed for the Trust or as
agreed from time to time by the Chargor, the Security Trustee and
the Trust Manager.
11.3 CESSATION OF FEE
The Security Trustee shall not be entitled to remuneration under clause
11.2 in respect of any period after the Charge Release Date or after it
has resigned or been removed as Security Trustee.
12. POWER OF ATTORNEY
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(a) For valuable consideration and by way of security the Chargor
irrevocably appoints each Authorised Signatory of the Security
Trustee severally its attorney to do anything, following the
occurrence of an Event of Default, which:
(i) the Chargor is obliged to do under or in relation to
any Transaction Document; or
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(ii) any Mortgagee or any Receiver is authorised or
empowered to do under any Transaction Document or any
law but only at the times that the Mortgagee or
Receiver (if a Receiver had been appointed) would have
been able to do it.
(b) Without limitation, the Attorney may, following the occurrence of
an Event of Default, at any time:
(i) do anything which in the opinion of the Security
Trustee or Attorney is necessary or expedient to
secure, preserve, perfect, or give effect to the
security contained in this deed (including anything
under clauses 13 or 14). For this purpose, without
limitation, he may execute any legal mortgage,
transfer, assignment and other assurance of any of the
Mortgaged Property in favour of any Mortgagee, any
purchaser or any nominee; and
(ii) delegate his powers (including delegation).
(c) No Attorney appointed under this deed may act inconsistently with
this deed or any other Transaction Document.
13. COMPLETION OF BLANK SECURITIES
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The Security Trustee, any Authorised Signatory of the Security Trustee,
any Receiver or any Attorney may complete any document which at any
time is executed by or on behalf of the Chargor and deposited with the
Security Trustee. It may complete it in favour of any Mortgagee, any
purchaser or any nominee. It may not do so inconsistently with this
deed or any other Transaction Document.
14. PERFORMANCE OF CHARGOR'S OBLIGATIONS
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If at any time the Chargor fails duly to perform any obligation in any
Transaction Document the Security Trustee or any person it authorises
may do anything which in its opinion is necessary or expedient to make
good or to attempt to make good that failure to its satisfaction.
15. STATUTORY POWERS
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15.1 POWERS IN AUGMENTATION
The powers conferred on a mortgagee by law:
(a) are in addition to the Powers conferred by this deed;
(b) (to the extent permitted by law and after prior consultation with
the Class A Mortgagees) may be exercised by the Security Trustee
immediately after the Charge becomes enforceable under this deed
and at any time subsequently; and
(c) are excluded or varied only so far as they are inconsistent with
the express terms of this deed or any Collateral Security.
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15.2 NOTICE NOT REQUIRED
To the extent permitted by law:
(a) the Chargor dispenses with any notice or lapse of time required
by any law before enforcing this deed or any Collateral Security
or exercising any Power; and
(b) subject to this deed, no Mortgagee is required to give notice to
any person before enforcement or exercise; and
(c) any law requiring the giving of notice or the compliance with a
procedure or the lapse of time before enforcement or exercise is
excluded.
16. APPLICATION OF MONEYS RECEIVED
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PRIORITIES
(a) The proceeds from the enforcement of the Charge are to be applied
(notwithstanding any order of payment in the Series Notice) in
the following order of priority, subject to any other priority
which may be required by statute or law:
(i) FIRST, to the extent required by law, to pay the holder
of any prior ranking security interest of which the
Security Trustee has notice;
(ii) SECOND, to pay all costs, charges, expenses and
disbursements properly incurred in the exercise of any
power by the Security Trustee, the Note Trustee, a
receiver or an attorney or other amounts (other than
those referred to in paragraph (iv)) payable to the
Security Trustee or the Note Trustee under the Security
Trust Deed or the Note Trust Deed (as the case may be);
(iii) THIRD, to the extent that the moneys received by the
Security Trustee represent the proceeds of any cash
collateral lodged by a Support Facility Provider under
a Support Facility, to pay that Support Facility
Provider (this paragraph (iii) will not apply to the
extent that the relevant moneys received are applied in
accordance with the relevant document to satisfy any
obligation owed to the Chargor by the Support Facility
Provider);
(iv) FOURTH, to pay (pari passu and rateably):
(A) any fees due to the Security Trustee, the Note
Trustee, each Paying Agent and the Calculation
Agent;
(B) any fees and unpaid Expenses due to the Chargor;
and
(C) the Receiver's remuneration;
(v) FIFTH, to pay (pari passu and rateably) any unpaid
Interest Adjustment due to the Approved Sellers;
(vi) SIXTH, to pay (pari passu and rateably):
(A) all Secured Moneys owing to the Support Facility
Providers other than a Class B1 Currency Swap
Provider;
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Security Trust Deed Allens Arthur Robinson
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(B) all Secured Moneys owing to the Class A
Noteholders; and
(C) all Secured Moneys owing in relation to any
Redraws made by the Chargor for which it has not
been reimbursed under the Transaction Documents;
(vii) SEVENTH, to pay (pari passu and rateably):
(A) all Secured Moneys owing to the Class B
Noteholders; and
(B) all Secured Moneys owing to the Class B1 Currency
Swap Provider;
(viii) EIGHTH, to pay (pari passu and rateably) any amounts
not covered above owing to a Mortgagee under a
Transaction Document;
(ix) NINTH, to pay any subsequent security interest of which
the Security Trustee has notice; and
(x) TENTH, to pay any surplus to the Chargor to be
distributed in accordance with the Master Trust Deed.
(b) The surplus will not carry interest. If the Security Trustee, or
a Receiver, Mortgagee or Attorney pays the surplus to the credit
of an account in the name of the Chargor with any bank carrying
on business in Australia, the Security Trustee, Receiver,
Mortgagee or Attorney (as the case may be) will be under no
further liability in respect of it.
16.2 MONEYS ACTUALLY RECEIVED
In applying any moneys towards satisfaction of the Secured Moneys, the
Chargor will be credited only with the money available for that purpose
which is actually received by the relevant Mortgagee or, where the
Mortgagee is a US$ Noteholder, the Note Trustee. The credit will date
from the time of receipt.
16.3 AMOUNTS CONTINGENTLY DUE
If any of the Secured Moneys is contingently owing to any Mortgagee at
the time of a distribution of an amount under clause 16.1, the Security
Trustee may retain any of that amount. If it does, it shall place the
amount retained on short term interest bearing deposit until the
relevant Secured Moneys become actually due or cease to be contingently
owing, or it becomes reasonably apparent that the relevant contingency
will not occur and the Security Trustee shall then:
(a) pay to that Mortgagee, or (where the Mortgagee is a US$
Noteholder) to the Note Trustee, the amount which becomes
actually due to it; and
(b) apply the balance of the amount retained (together with interest
earned on the deposit) in accordance with clause 16.1.
16.4 NOTICE OF SUBSEQUENT SECURITY INTERESTS
(a) If any Mortgagee receives actual or constructive notice of a
subsequent Security Interest affecting any of the Mortgaged
Property it may open a separate account in the name of the
Chargor in the books of that Mortgagee.
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Security Trust Deed Allens Arthur Robinson
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(b) If that Mortgagee does not open a new account it will be treated
as if it had done so at the time it received actual or
constructive notice of the Security Interest.
(c) From the time the new account is opened or is taken to be opened:
(i) all advances and accommodation made available by that
Mortgagee to the Chargor;
(ii) all payments and repayments made by the Chargor to that
Mortgagee; and
(iii) moneys to be applied towards the Secured Moneys under
clause 16.1,
will be or will be taken to be debited or credited, as
appropriate, to the new account. Payments, repayments and other
moneys will only be applied in reduction of other Secured Moneys
owing to that Mortgagee to the extent that there is no debit
balance in that account.
16.5 SATISFACTION OF DEBTS
Without limiting clause 31, each Mortgagee shall accept the
distribution of moneys under this clause in full and final satisfaction
of all Secured Moneys owing to it, and any debt represented by any
shortfall that exists after any final distribution under this clause is
extinguished.
16.6 PROPORTIONATE SHARING
(a) SHARING
Whenever any Mortgagee receives or recovers any money in respect
of any sum due from the Chargor under a Transaction Document in
any way (including without limitation by set-off) or through
distribution by the Security Trustee under this deed (the
RECEIVED MONEYS).
(i) the Mortgagee shall immediately notify the Security
Trustee;
(ii) the Mortgagee shall immediately pay that money to the
Security Trustee (unless the Security Trustee directs
otherwise);
(iii) the Security Trustee shall treat the payment as if it
were a payment by the Chargor on account of all sums
then payable to the Mortgagees; and
(iv) (A) the payment or recovery will be taken to have been
a payment for the account of the Security Trustee
and not to the Mortgagee for its own account, and
to that extent the liability of the Chargor to the
Mortgagee will not be reduced by the recovery or
payment, other than to the extent of any
distribution received by the Mortgagee under
paragraph (iii); and
(B) (without limiting sub-paragraph (A)) immediately
on the Mortgagee making or becoming liable to make
a payment under paragraph (ii), the Chargor shall
indemnify the Mortgagee against the payment to the
extent that (despite sub-paragraph (A)) its
liability has been discharged by the recovery or
payment.
(b) NETTING
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If a Mortgagee receives or recovers any Received Moneys, and does
not pay that amount to the Security Trustee under paragraph (a)
above, the Security Trustee may retain out of amounts which would
otherwise be payable to the Mortgagee under this deed any amounts
which the Security Trustee considers necessary to put all
Mortgagees in the same position as if that Mortgagee had complied
with, or been required to comply with, paragraph (a) above and
the Security Trustee's obligation to apply monies to such
Mortgagee shall be discharged to the extent of such retention.
17. OTHER SECURITY INTERESTS OVER MORTGAGED PROPERTY
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(a) Any Mortgagee and any Receiver or Attorney may rely on the
certificate of a holder of another Security Interest affecting or
purporting to affect the Mortgaged Property as to the amount and
property secured by the Security Interest.
(b) The Security Trustee or any Receiver may at any time pay or agree
to pay the amount certified by the holder of a Security Interest
or purported Security Interest to be necessary to discharge it or
some indebtedness secured by it, or to acquire it. From the date
of payment that amount will be part of the Secured Moneys and the
Chargor shall indemnify the Security Trustee (and if other
Mortgagees indemnify the Security Trustee, those other
Mortgagees) and the Receiver against that amount. This applies
whether or not that Security Interest or purported Security
Interest was valid or prior, equal or subsequent ranking, or the
property or moneys stated in the certificate were secured by it.
18. PROTECTION OF MORTGAGEES, RECEIVER AND ATTORNEY
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To the extent permitted by law, no Mortgagee, Receiver or Attorney will
be liable:
(a) in respect of any conduct, delay, negligence or breach of duty in
the exercise or non-exercise of any Power; nor
(b) for any loss (including consequential loss) which results,
except where it arises from fraud, negligence or wilful default on the
part of any Mortgagee, Receiver or Attorney.
19. PROTECTION OF THIRD PARTIES
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19.1 NO ENQUIRY
No party to any Dealing (as defined below) and no person asked to
register a Dealing:
(a) is bound to enquire:
(i) whether an Event of Default has occurred or whether
this deed has become enforceable;
(ii) whether a person who is, or purports or is purported to
be, a Receiver or Attorney is duly appointed;
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Security Trust Deed Allens Arthur Robinson
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(iii) as to the amount of Secured Moneys or whether Secured
Moneys are due and payable; or
(iv) in any other way as to the propriety or regularity of
the Dealing; or
(b) is affected by express notice that the Dealing is unnecessary or
improper.
For the protection of any party to a Dealing or a person registering a
Dealing, the Dealing will be taken to be authorised by this deed and
will be valid accordingly, even if there is any irregularity or
impropriety in the Dealing.
In this clause a DEALING is:
(a) any payment or any delivery or handing over of an asset to; or
(b) any acquisition, incurring of Financial Indebtedness, receipt,
sale, lease, disposal or other dealing, by,
any Mortgagee or any Receiver or Attorney, or any person who purports
or is purported to be a Receiver or Attorney.
19.2 RECEIPT
The receipt of any Authorised Signatory of any Mortgagee or any
Receiver or Attorney (or person who purports, or is purported, to be a
Receiver or Attorney) for any moneys or assets payable to, or
receivable or received by, it exonerates the person paying those moneys
or handing over that asset from being concerned as to their
application, or from being liable or accountable for their loss or
misapplication.
20. EXPENSES, INDEMNITY
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20.1 EXPENSES
In accordance with the Series Notice, the Chargor, shall reimburse each
Mortgagee or (where the Mortgagee is a US$ Noteholder) the Note
Trustee, Receiver and Attorney for its expenses in relation to:
(a) any consent, agreement, approval, waiver or amendment under or in
relation to the Transaction Documents; and
(i) any actual or contemplated enforcement of the
Transaction Documents or the actual or contemplated
exercise, preservation or consideration of any Powers
under the Transaction Documents or in relation to the
Mortgaged Property; and
(ii) any enquiry by a Government Agency concerning the
Chargor or the Mortgaged Property or a transaction or
activity the subject of the Transaction Documents, or
in connection with which, financial accommodation or
funds raised under a Transaction Document are used or
provided.
This includes legal costs and expenses (charged at the usual commercial
rates of the legal services provider) expenses incurred in any review
or environmental audit, in reimbursing or indemnifying any Receiver or
Attorney or in retaining consultants to evaluate matters of material
concern to that
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Security Trust Deed Allens Arthur Robinson
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Mortgagee and administrative costs including time of its executives
(whose time and costs are to be charged at reasonable rates). This does
not limit the generality of clause 20.2.
20.2 INDEMNITY
Subject to clause 20.1, on demand the Chargor shall indemnify each
Mortgagee and each Receiver and Attorney against any loss, cost,
charge, liability or expense that Mortgagee (or any officer or employee
of that Mortgagee) or any Receiver or Attorney may sustain or incur as
a direct or indirect consequence of:
(a) the occurrence of any Event of Default; or
(b) any exercise or attempted exercise of any Power or any failure to
exercise any Power.
21. CURRENCY INDEMNITY
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The Chargor shall indemnify each Mortgagee against any deficiency which
arises whenever, for any reason (including as a result of a judgment,
order or Liquidation):
(a) that Mortgagee receives or recovers an amount in one currency
(the PAYMENT CURRENCY) in respect of an amount denominated under
a Transaction Document in another currency (the DUE CURRENCY);
and
(b) the amount actually received or recovered by that Mortgagee in
accordance with its normal practice when it converts the Payment
Currency into the Due Currency is less than the relevant amount
of the Due Currency.
22. STAMP DUTIES
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(a) The Chargor shall pay (and reimburse each Mortgagee (other than
any Noteholder) all stamp, transaction, registration and similar
Taxes (including fines and penalties)) in relation to the
execution, delivery, performance or enforcement of any
Transaction Document or any payment or receipt or any other
transaction contemplated by any Transaction Document.
(b) Those Taxes include financial institutions duty, debits tax or
other Taxes payable by return and Taxes passed on to any
Mortgagee (other than any Noteholder) by a bank or financial
institution other than interest withholding tax.
(c) The Chargor shall indemnify each Mortgagee against any liability
resulting from delay or omission to pay those Taxes except to the
extent the liability results from failure by the Mortgagee to pay
any Tax after having been put in funds to do so by the Chargor.
23. INTEREST ON OVERDUE AMOUNTS
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23.1 ACCRUAL
Interest accrues on each unpaid amount which is due and payable by the
Chargor under or in respect of this deed or any Transaction Document
(including interest payable under this clause):
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Security Trust Deed Allens Arthur Robinson
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(a) on a daily basis up to the date of actual payment from (and
including) the due date or, in the case of an amount payable by
way of reimbursement or indemnity, the date of disbursement or
loss, if earlier;
(b) both before and after judgment (as a separate and independent
obligation); and
(c) at the rate provided in clause 23.3,
except where the Transaction Document provides otherwise.
23.2 PAYMENT
The Chargor shall pay interest accrued under this clause on demand by
the Security Trustee and on each Payment Date. That interest is payable
in the currency of the unpaid amount on which it accrues.
23.3 RATE
The rate applicable under this clause is the sum of 2% per annum plus
the higher of the following, each as determined by the Security
Trustee:
(a) the rate (if any) applicable to the amount immediately before the
due date; and
(b) the sum of 2% and the Bank Bill Rate.
24. CERTIFICATE AS TO AMOUNT OF SECURED MONEYS, ETC.
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A certificate signed by an Authorised Signatory of the Security Trustee
will be sufficient evidence against the Chargor and the Mortgagees, in
the absence of manifest error or proof to the contrary:
(a) as to the amount of Secured Moneys stated in the certificate;
(b) that a person specified in that certificate is a Mortgagee;
(c) that a document specified in that certificate is a Transaction
Document; and
(d) that the Security Trustee is of the opinion stated in the
certificate.
25. SURVIVAL OF REPRESENTATIONS
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All representations and warranties in a Transaction Document survive
the execution and delivery of the Transaction Documents and the
provision of advances and accommodation.
26. INDEMNITY AND REIMBURSEMENT OBLIGATIONS
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Each indemnity, reimbursement and similar obligation in a Transaction
Document:
(a) is a continuing obligation;
(b) is a separate and independent obligation;
(c) is payable on demand;
(d) survives termination or discharge of the Transaction Document;
and
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Security Trust Deed Allens Arthur Robinson
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(e) is subject to the order of payment contained in the Series Notice
and clause 16 of this deed and the restriction on remedies
contained in clause 31.
27. CONTINUING SECURITY
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Each of this deed and each Collateral Security is a continuing security
despite any settlement of account, intervening payment or anything else
until a final discharge of this deed and each Collateral Security has
been given to the Chargor.
28. OTHER SECURITIES
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No Power and nothing in this deed or any Collateral Security merges in,
or in any other way prejudicially affects or is prejudicially affected
by:
(a) any other Security Interest; or
(b) any judgment, right or remedy against any person,
which any Mortgagee or any person claiming through any Mortgagee may
have at any time.
29. DISCHARGE OF THE CHARGE
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29.1 RELEASE
Upon the Trust Manager providing a certificate to the Security Trustee
(upon which certificate the Security Trustee may rely conclusively and
with a copy of that certificate to the Note Trustee) stating that:
(a) all Secured Moneys (actually or contingently owing) have been
paid in full; and
(b) all the obligations of the Chargor under the Transaction
Documents have been performed, observed and fulfilled,
then the Security Trustee shall, subject to clause 29.2, at the request
of the Trust Manager or the Chargor, and at the cost of the Trust
Manager, release the Mortgaged Property from the Charge and this deed.
29.2 CONTINGENT LIABILITIES
The Security Trustee shall be under no obligation to grant a release of
the Charge or this deed in respect of the Trust unless at the time such
release is sought the Security Trustee has no contingent or prospective
liabilities in respect of the Trust or otherwise in connection with
this deed whether or not there is any reasonable likelihood of such
liabilities, becoming actual liabilities, including without limitation,
in respect of any bills, notes drafts, cheques, guarantees, letters of
credit or other notes or documents issued, drawn, endorsed or accepted
by the Security Trustee for the account or at the request of the
Chargor for the Trust.
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29.3 CHARGE REINSTATED
If any claim is made by any person that any moneys applied in payment
or satisfaction of the Secured Moneys must be repaid or refunded under
any law (including, any law relating to preferences, bankruptcy,
insolvency or the winding up of bodies corporate) and the Charge has
already been discharged, the Chargor shall, at the expense of the Trust
promptly do, execute and deliver, and cause any relevant person to do,
execute and deliver, all such acts and notes as the Security Trustee
may require to reinstate this Charge unless the Security Trustee agrees
otherwise in writing.
30. AMENDMENT
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30.1 APPROVAL OF TRUST MANAGER
The Security Trustee and the Chargor may, following the giving of
notice to each Designated Rating Agency, and with the written approval
of the Trust Manager and the Note Trustee, by way of supplemental deed
alter, add to or modify this deed (including this clause 30) so long as
such alteration, addition or modification is:
(a) to correct a manifest error or ambiguity or is of a formal,
technical or administrative nature only;
(b) in the opinion of the Security Trustee necessary to comply with
the provisions of any law or regulation or with the requirements
of any Government Authority;
(c) in the opinion of the Security Trustee appropriate or expedient
as a consequence of an amendment to any law or regulation or
altered requirements of any Government Agency (including, an
alteration, addition or modification which is in the opinion of
the Security Trustee appropriate or expedient as a consequence of
the enactment of a law or regulation or an amendment to any law
or regulation or ruling by the Commissioner or Deputy
Commissioner of Taxation or any governmental announcement or
statement, in any case which has or may have the effect of
altering the manner or basis of taxation of trusts generally or
of trusts similar to the Trust); or
(d) in the opinion of the Security Trustee and in accordance with
this deed neither prejudicial nor likely to be prejudicial to the
interest of the Mortgagees as a whole or any class of Mortgagee.
30.2 EXTRAORDINARY RESOLUTION OF VOTING MORTGAGEES
Where in the opinion of the Security Trustee and in accordance with
this deed, a proposed alteration, addition or modification to this
deed, other than an alteration, addition or modification referred to in
clause 30.1, is prejudicial or likely to be prejudicial to the interest
of Mortgagees as a whole or any class of Mortgagees, the Security
Trustee and the Chargor may make such alteration, addition or
modification if sanctioned by an Extraordinary Resolution of the Voting
Mortgagees or that class of Voting Mortgagees.
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30.3 DISTRIBUTION OF AMENDMENTS
The Trust Manager shall distribute to all Mortgagees, a copy of any
amendments made pursuant to clause 30.1 or 30.2 as soon as reasonably
practicable after the amendment has been made.
31. LIABILITY
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31.1 LIABILITY OF CHARGOR LIMITED TO ITS RIGHT OF INDEMNITY
Clause 32.16 of the Master Trust Deed (as amended by the Series Notice)
is incorporated into this deed as if set out in full, except that any
reference to TRUST refers to the Trust.
31.2 UNRESTRICTED REMEDIES
Nothing in clause 31.3 limits a Mortgagee in:
(a) obtaining an injunction or other order to restrain any breach of
this agreement by any party; or
(b) obtaining declaratory relief.
31.3 RESTRICTED REMEDIES
Except as provided in clause 31.1 and subject to clause 31.2, a
Mortgagee shall not:
(a) (STATUTORY DEMAND) issue any demand under s459E(1) of the
Corporations Act (or any analogous provision under any other law)
against the Chargor;
(b) (WINDING UP) apply for the winding up or dissolution of the
Chargor;
(c) (EXECUTION) levy or enforce any distress or other execution to,
on, or against any assets of the Chargor (other than the Trust
Assets);
(d) (COURT APPOINTED RECEIVER) apply for the appointment by a court
or a receiver to any of the assets of the Chargor (other than the
Trust Assets);
(e) (JUDGMENT) obtain a judgment for the payment of money or damages
by the Chargor;
(f) (SET-OFF OR COUNTERCLAIM) exercise or seek to exercise any
set-off or counterclaim against the Chargor (other than in
respect of the Trust Assets); or
(g) (ADMINISTRATOR) appoint, or agree to the appointment of, any
administrator to the Chargor,
or take proceedings for any of the above and the Mortgagee waives its
rights to make those applications and take those proceedings.
31.4 LIABILITY OF SECURITY TRUSTEE LIMITED TO ITS RIGHT OF INDEMNITY
Notwithstanding any other provision of this deed, the Security Trustee
will have no liability under or in connection with this deed or any
other Transaction Document (whether to the Mortgagees, the Chargor, the
Trust Manager or any other person) or the Trust or in respect of the
Notes other than to the extent to which the liability is able to be
satisfied out of the property of the trust established under this deed
out of which the Security Trustee is actually indemnified or is
entitled to be reimbursed for the liability. This limitation will not
apply to a liability of the Security Trustee to the extent that it is
not satisfied because, under this deed, any other Transaction Document
or by
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operation of law, there is a reduction in the extent of the Security
Trustee's indemnification out of the Assets of the Trust as a result of
the Security Trustee's fraud, negligence or wilful default. Nothing in
this clause 30.4 or any similar provision in any other Transaction
Document limits or adversely affects the powers of the Security
Trustee, any receiver or attorney in respect of the Charge or the
Mortgaged Property.
31.5 ADVICE FROM PROFESSIONAL ADVISERS
Neither the Security Trustee nor the Chargor will be regarded as
negligent or in breach of trust to the extent to which the Security
Trustee or the Chargor (as the case may be) accepts and relies on an
opinion, advice or letter from a professional adviser (legal,
financial, audit or otherwise) which contains a dollar amount
limitation on that professional adviser's liability.
32. WAIVERS, REMEDIES CUMULATIVE
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(a) No failure to exercise and no delay in exercising any Power
operates as a waiver. No single or partial exercise of any Power
precludes any other or further exercise of that Power or any
other Power.
(b) The Powers in this deed and each Collateral Security are in
addition to, and do not exclude or limit, any right, power or
remedy provided by law.
33. CONSENTS AND OPINION
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Except where expressly stated any Mortgagee may give or withhold, or
give conditionally, approvals and consents, may be satisfied or
unsatisfied, may form opinions, and may exercise its Powers, at its
absolute discretion.
34. SEVERABILITY OF PROVISIONS
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(a) Any provision of this deed or any Collateral Security which is
prohibited or unenforceable in any jurisdiction is ineffective as
to that jurisdiction to the extent of the prohibition or
unenforceability. That does not invalidate the remaining
provisions of this deed or any Collateral Security nor affect the
validity or enforceability of that provision in any other
jurisdiction.
(b) Without limiting the generality of paragraph (a):
(i) the definition of Secured Moneys does not include any
liability so long as and to the extent that the
inclusion of that liability would avoid, invalidate or
render ineffective clause 3 or 4 or the security
constituted by this deed; and
(ii) the definition of the Mortgaged Property does not
include any asset so long as and to the extent that the
inclusion of that asset would invalidate, avoid or
render ineffective clause 3 or 4 or the security
constituted by this deed.
The Chargor shall use its reasonable endeavours to satisfy any
condition or obtain any Authorisation which relates to it as
trustee of the Trust, but not in respect of the Trust
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generally which may be necessary to include that liability or
asset validly under the Charge or this deed.
35. MORATORIUM LEGISLATION
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To the full extent permitted by law all legislation which at any time
directly or indirectly:
(a) lessens, varies or affects in favour of the Chargor any
obligation under this deed or any Collateral Security; or
(b) delays, prevents or prejudicially affects the exercise by any
Mortgagee, any Receiver or Attorney, of any Power,
is excluded from this deed and any Collateral Security.
36. ASSIGNMENTS
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(a) Subject to the other Transaction Documents, a Mortgagee may
assign its rights under this deed and each Collateral Security.
If this deed or any Mortgagee's interest in it is assigned, the
Secured Moneys will include all actual and contingent liability
of the Chargor to the assignee, whether or not it was incurred
before the assignment or in contemplation of it.
(b) The Chargor may only assign or transfer any of its rights or
obligations under this deed or any Collateral Security in
accordance with the Transaction Documents and if prior notice has
been given to each Designated Rating Agency and such assignment
or transfer has no Adverse Effect on the ratings of the Notes.
37. NOTICES
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(a) (METHOD OF DELIVERY) Subject to paragraph (d) any notice,
request, certificate, approval, demand, consent or other
communication to be given under this deed must:
(i) except in the case of communications by email, be in
writing and signed by an Authorised Signatory of the
party giving the same; and
(ii) be:
(A) left at the address of the addressee;
(B) sent by prepaid ordinary post to the address of
the addressee;
(C) by facsimile to the facsimile number of the
addressee; or
(D) sent by email by an Authorised Signatory of the
party giving the same to the addressee's specified
email address.
(b) (ADDRESS FOR NOTICES) The address and facsimile number of a party
is the address and facsimile number notified by that party to the
other parties from time to time. However, the Security Trustee
may give notice to a Mortgagee at the address or facsimile number
notified to the Security Trustee by the Chargor or the Trust
Manager as that Mortgagee's address or facsimile number for
notice.
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(c) (DEEMED RECEIPT) A notice, request, certificate, demand, consent
or other communication under this deed is deemed to have been
received:
(i) where delivered in person, upon receipt;
(ii) where sent by post, on the third (seventh if outside
Australia) day after posting;
(iii) where sent by facsimile, on production by the
dispatching facsimile machine of a transmission report
which indicates that the facsimile was sent in its
entirety to the facsimile number of the recipient; and
(iv) where sent by email, on the date that the email is
received.
However, if the time of deemed receipt of any notice is not
before 5.30 pm local time on a Business Day at the address of the
recipient it is deemed to have been received at the commencement
of business on the next Business Day.
(d) (EMAIL) A notice, request, certificate, approval, demand, consent
or other communication to be given under this deed may only be
given by email where the recipient has agreed that that
communication, or communications of that type, may be given by
email.
38. RELATIONSHIP OF MORTGAGEES TO SECURITY TRUSTEE
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38.1 INSTRUCTIONS; EXTENT OF DISCRETION
(a) The Security Trustee will have no duties or responsibilities
except those expressly set out in this deed or any Collateral
Security.
(b) Subject to this deed, in the exercise of all its Powers the
Security Trustee shall act in accordance with any Extraordinary
Resolution of the Voting Mortgagees.
(c) In the absence of an Extraordinary Resolution of the Voting
Mortgagees, the Security Trustee need not act but may act (with
prior written notice to the Noteholder Mortgagees (in the case of
the US$ Noteholders such notice being given in accordance with
the Note Trust Deed) and to each Currency Swap Provider) in the
best interests of the Mortgagees.
(d) Any action taken by the Security Trustee under this deed or any
Collateral Security binds all the Mortgagees.
38.2 NO OBLIGATION TO INVESTIGATE AUTHORITY
(a) The Chargor need not enquire whether any Extraordinary Resolution
has been passed or as to the terms of any Extraordinary
Resolution.
(b) As between the Chargor on the one hand and the Security Trustee
and the Mortgagees on the other, all action taken by the Security
Trustee under this deed or any Collateral Security will be taken
to be authorised.
38.3 DELEGATION
(a) The Security Trustee may employ agents and attorneys, and
provided that the Security Trustee exercises reasonable care in
selecting them and subject to paragraph (b), the Security Trustee
will not be liable for the acts or omissions of any such agent or
attorney.
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The Security Trustee may at the expense of the Chargor obtain
such advice and information from lawyers, accountants, bankers
and other consultants and experts as it considers desirable to
allow it to be properly advised and informed in relation to its
powers and obligations. Before obtaining such advice or
information (unless the advice or information relates to the
Trust Manager) before the occurrence of an Event of Default, the
Security Trustee shall first inform the Trust Manager of the need
for the advice or information and obtain the approval of the
Trust Manager, which approval shall not be unreasonably withheld
or delayed.
(b) Notwithstanding paragraph (a), where the Security Trustee employs
a Related Corporation as agent or attorney, the Security Trustee
shall be liable for all acts or omissions of the agent or
attorney done or omitted whilst acting in its capacity as such.
38.4 RELIANCE ON DOCUMENTS AND EXPERTS
The Security Trustee may rely on:
(a) any document (including any facsimile transmission, telegram or
telex) it reasonably believes to be genuine and correct including
any document given by the Chargor under clause 5.1(d) or by the
Trust Manager under clause 5.4; and
(b) advice and statements of lawyers, accountants, bankers and other
consultants and experts, whether or not retained by it.
38.5 NOTICE OF TRANSFER
The Security Trustee may treat each Mortgagee as the holder of the
Mortgagee's rights under the Transaction Documents until the Security
Trustee has received a substitution certificate or an instrument of
transfer in a form approved by the Security Trustee.
38.6 NOTICE OF DEFAULT
(a) The Security Trustee will be taken not to have knowledge of the
occurrence of an Event of Default unless the Security Trustee has
received notice from a Voting Mortgagee, a Currency Swap
Provider, the Trust Manager or the Chargor stating that an Event
of Default has occurred and describing it.
(b) If the Security Trustee receives notice of, or becomes aware of,
the occurrence of events or circumstances constituting an Event
of Default and that those events or circumstances do constitute
an Event of Default, the Security Trustee shall notify the Voting
Mortgagees, subject to clause 38.11(b). For the purposes of this
clause and the other provisions of this deed, the Security
Trustee will only be considered to have notice of or to be aware
of any thing if the Security Trustee has notice or awareness of
that thing by virtue of the actual notice or awareness of the
officers of the Security Trustee who have day to day
responsibility for the administration of the security trust
established by this deed.
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38.7 SECURITY TRUSTEE AS MORTGAGEE
(a) The Security Trustee in its capacity as a Mortgagee has the same
rights and powers under the Transaction Documents as any other
Mortgagee. It may exercise them as if it were not acting as the
Security Trustee.
(b) The Security Trustee and its Associates may engage in any kind of
business with the Chargor, Trust Manager and any Mortgagee or
other person as if it were not the Security Trustee. It may
receive consideration for services in connection with any
Transaction Document and otherwise without having to account to
the Mortgagees.
38.8 INDEMNITY TO SECURITY TRUSTEE
(a) Subject to the order of payment contained in the Series Notice
and clause 16 of this deed, the Chargor shall indemnify the
Security Trustee (to the extent not reimbursed by the Chargor)
against any loss, cost, liability, expense or damage the Security
Trustee may sustain or incur directly or indirectly under or in
relation to the Transaction Documents. This does not limit the
Chargor's liability under any other provision.
(b) The Chargor is not liable under this sub-clause for any of the
above to the extent that they arise from the Security Trustee's
fraud, negligence or wilful default.
38.9 INDEPENDENT INVESTIGATION
Each Mortgagee confirms that it has made and will continue to make,
independently and without reliance on the Security Trustee or any other
Mortgagee (including the Trust Manager) and based on the Transaction
Documents, agreements and information which it regards appropriate:
(a) its own investigations into the affairs of the Chargor; and
(b) its own analyses and decisions whether to take or not take action
under any Transaction Document.
38.10 NO MONITORING
The Security Trustee is not required to keep itself informed as to the
compliance by the Chargor or the Trust Manager with any Transaction
Document or any other document or agreement or to inspect any property
or book of the Chargor or the Trust Manager.
38.11 INFORMATION
(a) The Chargor authorises:
(i) the Security Trustee to provide any Voting Mortgagee
(and each Currency Swap Provider where the relevant
Currency Swap Provider is not a Voting Mortgagee); and
(ii) the Note Trustee to provide any US$ Noteholder,
with any information concerning the affairs, financial condition
or business of the Chargor which may come into the possession of
the Security Trustee or the Note Trustee (as the case may be).
The Security Trustee need not do so.
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(b) The Security Trustee is not obliged to disclose any information
relating to the Chargor if in the opinion of the Security Trustee
(on the basis of the advice of its legal advisers) disclosure
would or might breach a law or a duty of secrecy or confidence.
38.12 CONFLICTS
(a) Subject to clause 2.2, in the event of any dispute, ambiguity or
doubt as to the construction or enforceability of this deed or of
any other document or the Security Trustee's powers or
obligations under or in connection with this deed or the
determination or calculation or any amount or thing for the
purpose of this deed or the construction or validity of any
direction from the Mortgagees, the Security Trustee may:
(i) obtain and rely on advice from any person referred to
in clause 38.3; and/or
(ii) apply to a court or similar body for any direction or
order the Security Trustee considers appropriate,
and provided the Security Trustee is using reasonable endeavours
to resolve such ambiguity, dispute or doubt, the Security
Trustee, in its absolute discretion, may refuse to act or refrain
from acting in relation to matters affected by such dispute,
ambiguity or doubt.
(b) The Security Trustee has no responsibility for the form or
contents of this deed or any other Transaction Document and will
have no liability arising as a result of or in connection with
any inadequacy, invalidity or unenforceability of any provision
of this deed or the other Transaction Documents.
38.13 NO LIABILITY
Without limitation the Security Trustee shall not be liable for:
(a) any decline in the value or loss realised upon any sale or other
dispositions made under this deed of any Mortgaged Property or
any other property charged to the Security Trustee by any other
person in respect of or relating to the obligations of any person
in respect of the Chargor or the Secured Moneys or relating in
any way to the Mortgaged Property;
(b) any decline in value directly or indirectly arising from the
Security Trustee acting or failing to act as a consequence of an
opinion reached by it; and
(c) any loss, expense or liability which may be suffered as a result
of any assets secured by the Security Trust Deed, Mortgaged
Property or any deeds or documents of title thereto being
uninsured or inadequately insured or being held by or to the
order of the Servicer or any of its affiliates or by clearing
organisations or their operator or by any person on behalf of the
Note Trustee.
39. RETIREMENT AND REMOVAL OF SECURITY TRUSTEE
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39.1 RETIREMENT
Subject to any Transaction Document to which the Security Trustee is a
party, and subject also to the appointment of a successor Security
Trustee as provided in this clause, the Security Trustee may
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retire at any time upon giving not less than three months' notice (or
such shorter period as the parties may agree) in writing to the
Chargor, the Trust Manager and each Designated Rating Agency without
assigning any reason and without being responsible for any costs
occasioned by such retirement.
39.2 REMOVAL
Subject to any Transaction Document to which the Security Trustee is a
party, the appointment of a successor Security Trustee as provided in
this clause, and prior notice being given to each Designated Rating
Agency, the Security Trustee may be removed:
(a) by the Trust Manager if any of the following occurs in relation
to the Security Trustee in its personal capacity:
(i) an Insolvency Event occurring in relation to the
Security Trustee in its personal capacity;
(ii) the cessation by the Security Trustee of its business;
(iii) failure of the Security Trustee to remedy within
fourteen days after written notice by the Trust Manager
any material breach of duty on the part of the Security
Trustee; or
(iv) if without the prior written consent of the Trust
Manager there occurs:
(A) a change in 51% (or such other percentage the
Trust Manager may in its absolute discretion
determine shall constitute a change in the
effective control of the Security Trustee) of the
shareholding of the Security Trustee existing at
the date of this deed (whether occurring at one
time or through a series of succession of
transfers or issues of shares);
(B) a change in the effective management of the
Security Trustee as existing at the date of this
deed such that the Security Trustee is no longer
able to fulfil its duties and obligations in
relation to the Mortgaged Property; or
(C) the establishment by any means of any trust under
which any third party becomes a beneficial owner
of any of the Security Trustee's rights under this
deed; or
(b) at any time by an Extraordinary Resolution of the Voting
Mortgagees.
39.3 REPLACEMENT
(a) Upon notice of resignation or removal the Trust Manager shall
have the right to appoint a successor Security Trustee who has
been previously approved by an Extraordinary Resolution of the
Voting Mortgagees and who accepts the appointment.
(b) If no successor Security Trustee is appointed within 30 days
after notice, the retiring Security Trustee may on behalf of the
Mortgagees appoint a successor Security Trustee (other than the
Trust Manager or a Related Corporation of the Trust Manager) who
accepts the appointment.
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(c) On its appointment the successor Security Trustee will have all
the rights, powers and obligations of the retiring Security
Trustee. The retiring Security Trustee will be discharged from
its rights, powers and obligations.
(d) The retiring Security Trustee shall execute and deliver all
documents or agreements which are necessary or desirable in its
opinion to transfer to the successor Security Trustee this deed
and each Collateral Security or to effect the appointment of the
successor Security Trustee.
(e) After any retiring Security Trustee's resignation or removal,
this deed will continue in effect in respect of anything done or
omitted to be done by it while it was acting as Security Trustee.
40. MEETINGS OF MORTGAGEES
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40.1 LIMITATION ON SECURITY TRUSTEE'S POWERS
Except as provided for in this deed, the Security Trustee shall not
assent or give effect to any matter which a meeting of Voting
Mortgagees is empowered by Extraordinary Resolution to do, unless the
Security Trustee has previously been authorised to do so by an
Extraordinary Resolution of Voting Mortgagees.
40.2 CONVENING OF MEETINGS
(a) (GENERALLY)
(i) Subject to clause 40.17, the Security Trustee or the
Trust Manager at any time may convene a meeting of the
Voting Mortgagees.
(ii) Subject to clause 40.17, and subject to the Security
Trustee being adequately indemnified out of the
property held on trust under clause 2.1(b) against all
costs and expenses occasioned as a result, the Security
Trustee shall convene a meeting of the Voting
Mortgagees if requested to do so:
(A) by the Chargor; or
(B) by Voting Mortgagees being holders of not less
than 30% of the then Secured Moneys.
(b) (TIME AND PLACE)
(i) Every meeting of Voting Mortgagees shall be held at
such time and place as the Security Trustee approves
provided (subject to sub-paragraph (ii) and clause
40.3(b)) that any such meeting shall not be held until
the US$ Noteholders or the relevant Class of US$
Noteholders have, in accordance with the Note Trust
Deed, determined how to vote or how to direct the Note
Trustee to vote (as the case may be) in the meeting of
Voting Mortgagees.
(ii) Upon receiving notice of a meeting of the Voting
Mortgagees, the Note Trustee shall as soon as
practicable notify the US$ Noteholders in accordance
with the terms of the Note Trust Deed.
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(iii) The proviso in sub-paragraph (i) shall not apply if the
US$ Noteholders or the relevant Class of US$
Noteholders' determination under sub-paragraph (i) is
not made in accordance with, and within the time
specified in, the Note Trust Deed.
(c) (CLASS OF MORTGAGEES) The provisions of this clause 40 regarding
a meeting of the Voting Mortgagees shall apply, mutatis mutandis,
to a meeting of any class of Voting Mortgagees.
40.3 NOTICE OF MEETINGS
(a) (PERIOD OF NOTICE) Subject to clause 40.3(b), at least 7 days'
notice (inclusive of the day on which the notice is given and of
the day on which the meeting is held) shall be given to the
Voting Mortgagees, the Beneficiaries and each Designated Rating
Agency.
(b) (SHORT NOTICE) Notwithstanding that a meeting is convened upon
shorter notice than as specified in clause 40.3(a), or a meeting
or details of that meeting are not notified, advised or approved
in accordance with this clause 40, it shall be deemed to be duly
convened if it is so agreed by the Voting Mortgagees representing
a quorum (which quorum must include the Note Trustee or the US$
Noteholders, as the case may be).
(c) (COPIES) A copy of the notice shall in all cases be given by the
party to this deed convening the meeting to the other parties to
this deed.
(d) (METHOD OF GIVING NOTICE) Notice of a meeting shall be given in
the manner provided in this deed.
(e) (CONTENTS OF A NOTICE) Notice of a meeting of Voting Mortgagees
shall specify, unless in any particular case the Security Trustee
otherwise agrees:
(i) the day, time and place of the proposed meeting; and
(ii) the nature of the resolutions to be proposed.
(f) (FAILURE TO GIVE NOTICE) The accidental omission to give notice
to or (where such notice was in fact sent) the non-receipt of
notice by any person entitled to receive it shall not invalidate
the proceedings at any meeting.
40.4 CHAIRMAN
A person (who need not be a Voting Mortgagee and who may be a
Representative of the Security Trustee) nominated in writing by the
Security Trustee shall be entitled to take the chair at every such
meeting but if no such nomination is made or if at any meeting the
person nominated is not present within 15 minutes after the time
appointed for the holding of that meeting the Voting Mortgagees present
shall choose one of their number to be chairman.
40.5 QUORUM
At any such meeting any two or more persons present in person holding,
or being Representatives holding or representing, in the aggregate not
less than 51% of the then Secured Moneys shall form a quorum for the
transaction of business (other than passing an Extraordinary Resolution
in which case the quorum shall be not less than 67.5% of the then
Secured Moneys) and no business (other than the choosing of a chairman)
shall be transacted at any meeting unless the requisite quorum is
present at the commencement of business.
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40.6 ADJOURNMENT
(a) (QUORUM NOT PRESENT) If within 15 minutes from the time appointed
for any such meeting a quorum is not present the meeting shall,
if convened on the requisition of the Voting Mortgagees be
dissolved. In any other case it shall stand adjourned (unless the
Security Trustee agrees that it be dissolved) for such period,
not being less than 7 days nor more than 42 days, as may be
appointed by the chairman. At the adjourned meeting two or more
persons present in person holding, or being Representatives
holding or representing 15% of the then Secured Moneys shall
(except for the purpose of passing an Extraordinary Resolution)
form a quorum and shall have the power to pass any resolution and
to decide upon all matters which could properly have been dealt
with at the meeting from which the adjournment took place had a
quorum been present at that meeting. The quorum at any such
adjourned meeting for passing a Extraordinary Resolution shall be
20% of the then Secured Moneys.
(b) (ADJOURNMENT OF MEETING) The chairman may with the consent of
(and shall if directed by) any meeting adjourn the same from time
to time and from place to place but no business shall be
transacted at any adjourned meeting except business which might
lawfully have been transacted at the meeting from which the
adjournment took place.
(c) (NOTICE OF ADJOURNED MEETING) At least 5 days' notice of any
meeting adjourned through want of a quorum shall be given in the
same manner as of an original meeting and such notice shall state
the quorum required at such adjourned meeting. It shall not,
however, otherwise be necessary to give any notice of an
adjourned meeting.
40.7 VOTING PROCEDURE
(a) (SHOW OF HANDS) Every question submitted to a meeting shall be
decided in the first instance by a show of hands and in case of
equality of votes the chairman shall both on a show of hands and
on a poll have a casting vote in addition to the vote or votes
(if any) to which he may be entitled as a Voting Mortgagee or as
a Representative.
(b) (DECLARATION) At any meeting, unless a poll is (before or on the
declaration of the result of the show of hands) demanded by the
chairman, the Chargor, the Trust Manager, the Note Trustee or the
Security Trustee or by one or more persons holding, or being a
Representative or Representatives holding or representing, in
aggregate not less than 15% of the then Secured Moneys, a
declaration by the chairman that a resolution has been carried by
a particular majority or lost or not carried by any particular
majority shall be conclusive evidence of the fact without proof
of the number or proportion of the votes recorded in favour of or
against that resolution.
(c) (POLL) If at any meeting a poll is so demanded, it shall be taken
in such manner and (subject as provided below) either at once or
after such an adjournment as the chairman directs and the result
of such poll shall be deemed to be the resolution of the meeting
at which the poll was demanded as at the date of the taking of
the poll. The demand for a poll shall not prevent the continuance
of the meeting for the transaction of any business other than the
question on which the poll has been demanded.
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(d) (NO ADJOURNMENT) Any poll demanded at any meeting on the election
of a chairman or on any question of adjournment shall be taken at
the meeting without adjournment.
(e) (VOTES) Subject to clause 40.7(a), at any meeting:
(i) on a show of hands, every person holding, or being a
Representative holding or representing other persons
who hold, Secured Moneys shall have one vote except
that the Note Trustee shall represent each US$
Noteholder who has directed the Note Trustee to vote on
its behalf under the Note Trust Deed; and
(ii) on a poll, every person who is present shall have one
vote for each US$10,000 or, in the case of the Class A1
Noteholders, the Class A2 A$ Equivalent of US$10,000
(but not part thereof) or, in the case of the Class B2
Noteholders, the Class B1 A$ Equivalent of US$10,000
(but not part thereof) of the Secured Moneys that he
holds or in respect of which he is a Representative.
Any person entitled to more than one vote need not use
or cast all of the votes to which he is entitled in the
same way.
(f) (EVIDENCE) A certificate from the Note Trustee to the Security
Trustee that the Note Trustee is entitled to vote on behalf of a
US$ Noteholder will be satisfactory evidence to the Security
Trustee that the Note Trustee is so entitled to vote.
For the purpose of determining the amount of Secured Moneys at any
time, the Security Trustee may rely on the Accounts of the Chargor and
any information provided by the Auditor of the Chargor. Clause 24 will
apply to any determination of Secured Moneys for the definition of
VOTING MORTGAGEE and this clause 40.
40.8 RIGHT TO ATTEND AND SPEAK
The Chargor, the Trust Manager, the Security Trustee and each
Beneficiary (through their respective Representatives) and their
respective financial and legal advisers shall be entitled to attend and
speak at any meeting of Voting Mortgagees (and, to the extent that they
are also a Voting Mortgagee, to vote at that meeting). No person shall
otherwise be entitled to attend or vote at any meeting of the Voting
Mortgagees or to join with others in requesting the convening of such a
meeting unless he is a Voting Mortgagee or a Representative.
40.9 APPOINTMENT OF PROXIES
(a) (REQUIREMENTS) Each appointment of a proxy shall be in writing
and shall be deposited at the registered office of the Security
Trustee or in such other place as the Security Trustee shall
designate or approve, together with proof satisfactory to the
Security Trustee of its due execution (if so required by the
Security Trustee), not less than 24 hours before the time
appointed for holding the meeting or adjourned meeting at which
the named proxy proposes to vote, and in default, the appointment
of proxy shall not be treated as valid unless the chairman of the
meeting decides otherwise before that meeting or adjourned
meeting proceeds to business. A notarially certified copy proof
of due execution as specified above (if applicable) shall, if
required by the Security Trustee, be produced by the proxy at the
meeting or adjourned meeting, but the Security Trustee shall not
thereby be obliged to investigate or be concerned with the
validity or the authority of the proxy named in any
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such appointment. The proxy named in any appointment of proxy
need not be a Voting Mortgagee.
(b) (PROXY REMAINS VALID) Any vote given in accordance with the terms
of an appointment of proxy set out in clause 40.9(a) shall be
valid notwithstanding the previous revocation or amendment of the
appointment of proxy or of any of the Voting Mortgagee's
instructions pursuant to which it was executed, provided that no
intimation in writing of such revocation or amendment has been
received by the Security Trustee at its registered office, or by
the chairman of the meeting, in each case within the 24 hours
before the commencement of the meeting or adjourned meeting at
which the appointment of proxy is used.
40.10 CORPORATE REPRESENTATIVES
A person authorised pursuant to sections 250D of the Corporations Act
by a Voting Mortgagee being a body corporate to act for that Voting
Mortgagee at any meeting shall, in accordance with his authority until
his authority is revoked by the body corporate concerned, be entitled
to exercise the same powers on behalf of that body corporate as that
body corporate could exercise if it were an individual Voting Mortgagee
and shall be entitled to produce evidence of his authority (together
with, if required by the Security Trustee, evidence satisfactory to the
Security Trustee of the due execution of the authority) to act at any
time before the time appointed for the holding of or at the meeting or
adjourned meeting or for the taking of a poll at which he proposes to
vote.
40.11 RIGHTS OF REPRESENTATIVES
A Representative shall have the right to demand or join in demanding a
poll and shall (except and to the extent to which the Representative is
specifically directed to vote for or against any proposal) have power
generally to act at a meeting for the Voting Mortgagee concerned. The
Security Trustee and any officer of the Security Trustee may be
appointed a Representative.
40.12 EXTRAORDINARY RESOLUTIONS
(a) (POWERS) A meeting of Voting Mortgagees shall, without prejudice
to any rights or powers conferred on other persons by this deed,
have power exercisable by Extraordinary Resolution:
(i) to direct the Security Trustee in the action that
should be taken by it following the occurrence of an
Event of Default or the Charge or this deed becoming
enforceable;
(ii) to sanction any action that the Security Trustee or a
Receiver proposes to take to enforce the provisions of
this deed;
(iii) to sanction any proposal by the Trust Manager, the
Chargor or the Security Trustee for any modification,
abrogation, variation or compromise of, or arrangement
in respect of, the rights of the Mortgagees against the
Chargor or the Trust Manager whether such rights shall
arise under this deed, the Transaction Documents or
otherwise;
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(iv) to sanction the exchange or substitution of the Secured
Moneys for, or the conversion of the Secured Moneys
into, bonds or other obligations or securities of the
Chargor or any body corporate formed or to be formed;
(v) to assent to any modification of the provisions
contained in this deed which may be proposed by the
Chargor, the Trust Manager, the Note Trustee or the
Security Trustee;
(vi) to give any authority, direction, guidance or sanction
sought by the Security Trustee from the Voting
Mortgagees;
(vii) to appoint any persons (whether Voting Mortgagees or
not) as a committee or committees to represent the
interests of the Voting Mortgagees and to confer on
such committee or committees any powers or discretions
which the Voting Mortgagees could themselves exercise
by Extraordinary Resolution;
(viii) to approve a person proposed to be appointed as a new
Security Trustee for the time being;
(ix) to discharge or exonerate the Security Trustee from any
liability in respect of any act or omission for which
it may become responsible under this deed;
(x) to do any other thing which under this deed is required
to be given by an Extraordinary Resolution of the
Mortgagees;
(xi) to authorise the Security Trustee or any other person
to concur in and execute and do all such documents,
acts and things as may be necessary to carry out and
give effect to any Extraordinary Resolution; or
(xii) to determine whether the Security Trustee should or
should not perform an act and any such Extraordinary
Resolution will (where relevant and in accordance with
clause 40.17) override any determination by the Note
Trustee.
(b) (NO POWER) A meeting of Voting Mortgagees shall not have power in
relation to any Mortgagee to:
(i) release any obligation to pay any of the Secured Moneys
to that Mortgagee;
(ii) alter any date upon which any of the Secured Moneys is
payable;
(iii) alter the amount of any payment of any part of the
Secured Moneys; or
(iv) alter clause 16.1 in relation to that Mortgagee,
without the consent of that Mortgagee.
40.13 EXTRAORDINARY RESOLUTION BINDING ON MORTGAGEES
Subject to clause 40.12(b), an Extraordinary Resolution passed at a
meeting of the Voting Mortgagees duly convened and held in accordance
with this clause 40 shall be binding upon all Mortgagees whether or not
present at such meeting and each of the Mortgagees and the Chargor, the
Trust Manager and the Security Trustee shall be bound to give effect to
it accordingly.
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40.14 MINUTES AND RECORDS
Minutes of all resolutions and proceedings at every meeting of the
Voting Mortgagees under this clause 40 shall be made and duly entered
in the books to be from time to time provided for that purpose by the
Security Trustee and any such minutes purporting to be signed by the
chairman of the meeting at which those resolutions were passed or
proceedings transacted or by the chairman of the next succeeding
meeting of the Voting Mortgagees shall be conclusive evidence of the
matters contained in those minutes and until the contrary is proved,
provided every meeting in respect of the proceedings of which minutes
have been made and signed as provided in this clause 40.14 shall be
deemed to have been duly convened and held and all resolutions passed
or proceedings transacted in that meeting to have been duly passed and
transacted.
40.15 WRITTEN RESOLUTIONS
Notwithstanding the preceding provisions of this clause 40, a
resolution of all the Voting Mortgagees (including an Extraordinary
Resolution) may be passed, without any meeting or previous notice being
required, by an instrument or notes in writing which have:
(a) in the case of a resolution (including an Extraordinary
Resolution) of all the Voting Mortgagees, been signed by all the
Voting Mortgagees; and
(b) any such instrument shall be effective upon presentation to the
Security Trustee for entry in the records referred to in clause
40.14.
40.16 FURTHER PROCEDURES FOR MEETINGS
Subject to all other provisions contained in this deed, the Security
Trustee may without the consent of the Mortgagees prescribe such
further regulations regarding the holding of meetings of the Voting
Mortgagees and attendance and voting at those meetings as the Security
Trustee may in its sole discretion determine including particularly
(but without prejudice to the generality of the above) such regulations
and requirements as the Security Trustee thinks reasonable:
(a) (PERSONS ARE VOTING MORTGAGEES) so as to satisfy itself that
persons are in fact Voting Mortgagees who purport to requisition
a meeting or who purport to make any requisition to the Security
Trustee in accordance with this deed;
(b) (ENTITLEMENT TO VOTE) so as to satisfy itself that persons who
purport to attend or vote at any meeting of Voting Mortgagees are
entitled to do so in accordance with this clause 40 and this
deed; and
(c) (FORMS OF REPRESENTATIVE) as to the form of appointment of a
Representative.
40.17 NOTEHOLDER MORTGAGEES' RIGHTS
(a) Despite any other provision of this deed, at any time while an
Event of Default subsists:
(i) if the Class A Mortgagees are not the only Voting
Mortgagee; and
(ii) if the Class A Mortgagees direct the Security Trustee
to enforce the Charge,
the Security Trustee shall enforce the Charge under clause 8.2 as
if directed to do so by an Extraordinary Resolution of Voting
Mortgagees and paragraph (a) shall apply as if the Class A
Mortgagees were the only Voting Mortgagee.
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(b) Except if the Noteholder Mortgagees are the only Voting
Mortgagees, where the consent of the Noteholder Mortgagees is
required under clause 1.2(b), 4.3, 4.4(a)(ii), 5.2, 8.1(b),
8.1(h), 8.2, 9.7(c) or 38.1(c) in relation to a discretion or act
of the Security Trustee (an ACT):
(i) the Noteholder Mortgagees must:
(A) not unreasonably withhold that consent; and
(B) respond promptly (and in any event within 5
Business Days of a relevant resolution being
passed by the Class A Noteholders) to the Security
Trustee indicating whether the consent is granted
or not (and if it does not reply within that time
its consent shall be taken to have been given);
and
(ii) subject to paragraph (c), if an Extraordinary
Resolution of Voting Mortgagees determines that the Act
should or should not occur, the Extraordinary
Resolution will override any determination by the
Noteholder Mortgagees in relation to any such clause.
(c) Except where in so doing the Security Trustee engages in any
fraud, negligence or wilful default, the Security Trustee shall
not be liable to any Mortgagee for acting, or not acting, on the
directions of the Noteholder Mortgagees, even if the Security
Trustee is actually aware that the Noteholder Mortgagees have
unreasonably withheld their consent in breach of sub-paragraph
(b)(i)(A).
41. AUTHORISED SIGNATORIES
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The Chargor irrevocably authorises each Mortgagee to rely on a
certificate by a person purporting to be its director or secretary as
to the identity and signatures of its Authorised Signatories. The
Chargor warrants that those persons have been authorised to give
notices and communications under or in connection with the Transaction
Documents.
42. GOVERNING LAW AND JURISDICTION
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This deed is governed by the laws of New South Wales. The Chargor
submits to the non-exclusive jurisdiction of courts exercising
jurisdiction there.
43. COUNTERPARTS
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This deed may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
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44. SET-OFF
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No Mortgagee may apply any credit balance in any currency (whether or
not matured) in any account comprised in the Mortgaged Property towards
satisfaction of any sum then due and payable to that Mortgagee under or
in relation to any Transaction Document.
45. ACKNOWLEDGEMENT BY CHARGOR
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The Chargor confirms that:
(a) it has not entered into any Transaction Document in reliance on,
or as a result of, any conduct of any kind of or on behalf of any
Mortgagee or any Related Corporation of any Mortgagee (including
any advice, warranty, representation or undertaking); and
(b) no Mortgagee nor any Related Corporation of any Mortgagee is
obliged to do anything (including disclose anything or give
advice),
except as expressly set out in the Transaction Documents or in writing
duly signed by or on behalf of the Mortgagee or Related Corporation.
46. INFORMATION MEMORANDUM
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The Security Trustee has no responsibility for any statement or
information in or omission from any information memorandum,
advertisement, circular or other document issued by or on behalf of the
Chargor or Trust Manager, including in connection with the issue of
Notes. Neither the Chargor nor the Trust Manager may publish or permit
to be published any such document in connection with the offer of Notes
or an invitation for subscriptions for Notes containing any statement
which makes reference to the Security Trustee without the prior written
consent of the Security Trustee, which consent must not be unreasonably
withheld. In considering whether to give its consent, the Security
Trustee is not required to take into account the interests of the other
Mortgagees.
47. SECURITY TRUSTEE'S LIMITED LIABILITY
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Without prejudice to any indemnity allowed by law or elsewhere in this
deed given to the Security Trustee, it is expressly declared as
follows.
47.1 RELIANCE ON CERTIFICATES
The Security Trustee shall not incur any liability in respect of any
action taken or thing suffered by it in reliance on any notice,
resolution, direction, consent, certificate, receipt, affidavit,
statement, valuation report or other document (including any of the
above submitted or provided by the Trust Manager, a Mortgagee, the Note
Trustee, an Approved Seller or a Servicer) which it has no reason to
believe is not genuine, signed by the proper parties and with
appropriate authority.
In preparing any notice, certificate, advice or proposal the Security
Trustee shall be entitled to assume that each person under any
Authorised Investment, Support Facility, Loan, Loan Security, Related
Securities, other Transaction Document or any other deed, agreement or
arrangement
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incidental to any of the above or to any Trust, will perform their
obligations under those documents in full by the due date and otherwise
in accordance with their terms.
47.2 SECURITY TRUSTEE MAY ASSUME SIGNED DOCUMENTS TO BE GENUINE
(a) (RELIANCE ON DOCUMENTS) Subject to sub-clause (b):
(i) (SECURITY TRUSTEE MAY ASSUME AUTHENTICITY) the Security
Trustee shall be entitled to assume the authenticity
and validity of any signature on any application,
request or other instrument or document delivered to
the Security Trustee (other than a document executed or
purporting to be executed by or on behalf of the Note
Trustee, a Servicer, an Approved Seller or the Trust
Manager, as to which clause 47.3 shall apply);
(ii) (SECURITY TRUSTEE NOT LIABLE FOR LOSS ON FORGERIES) the
Security Trustee shall not be in any way liable to make
good out of its own resources any loss incurred by any
person in the event of any signature on any document
being forged or otherwise failing to bind the person
whose signature it purports to be or the person on
whose behalf it purports to be executed.
(b) (LIMITATIONS ON ASSUMPTIONS WHERE ACTUAL KNOWLEDGE) The Security
Trustee shall not be entitled to the benefit of paragraph (a) in
relation to an application, request or other instrument or
document if it was actually aware that the signature was not
genuine.
47.3 SECURITY TRUSTEE'S RELIANCE ON TRUST MANAGER, APPROVED SELLER, NOTE
TRUSTEE OR SERVICER
(a) (AUTHORISED SIGNATORIES ARE SUFFICIENT EVIDENCE) Whenever any
certificate, notice, proposal, direction, instruction or other
communication is to be given by the Trust Manager, an Approved
Seller, the Note Trustee or a Servicer to the Security Trustee,
the Security Trustee may accept as sufficient evidence as to the
form and content of a document unless it has reason to believe
that the relevant document was not signed on behalf of the Trust
Manager, the Approved Seller, the Note Trustee or the Servicer
(as the case may be) or by any Authorised Signatory of the Trust
Manager, the Approved Seller, the Note Trustee or the Servicer
(as the case may be).
(b) (SECURITY TRUSTEE NOT LIABLE FOR LOSS) The Security Trustee shall
not be responsible for any loss arising from any act, neglect,
mistake or discrepancy of the Trust Manager, an Approved Seller,
the Note Trustee or a Servicer or any officer, employee, agent or
delegate of the Trust Manager, the Approved Seller, the Note
Trustee or the Servicer in preparing any such document or in
compiling, verifying or calculating any matter or information
contained in any such document, if the officers of the Security
Trustee responsible for the administration of the Trust are not
actually aware, or should not reasonably have been aware, that
such document is not genuine and correct, whether or not an error
in any such information, document, form or list is reproduced by
the Security Trustee in any step taken by it.
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47.4 COMPLIANCE WITH LAWS
The Security Trustee shall not incur any liability to anyone in respect
of any failure to perform or to do any act or thing which by reason of
any provision of any relevant present or future law of any place or any
ordinance, rule, regulation or by law or of any decree, order or
judgment of any competent court or other tribunal, the Security Trustee
shall be hindered, prevented or forbidden from doing or performing.
47.5 TAXES
The Security Trustee shall not be liable to account to any person for
any payments made in good faith to any duly empowered Government Agency
of any Australian Jurisdiction or any other place for Taxes or other
charges on the Trust or on any Notes or with respect to any transaction
under or arising from this deed or any other Transaction Document
notwithstanding that any such payment ought or need not have been made.
47.6 RELIANCE ON EXPERTS
The Security Trustee may act on the opinion or statement or certificate
or advice of or information obtained from the Note Trustee or a
Servicer, barristers or solicitors (whether instructed by the Security
Trustee or not), bankers, accountants, brokers, valuers and other
persons believed by it in good faith to be expert or properly informed
in relation to the matters on which they are consulted and the Security
Trustee shall not be liable for anything done or suffered by it in good
faith in reliance on such opinion, statement, certificate, advice or
information.
47.7 OVERSIGHTS OF OTHERS
Subject to this deed, the Security Trustee shall not be responsible for
any act, omission, misconduct, mistake, oversight, error of judgment,
forgetfulness or want of prudence on the part of any person or agent
appointed by the Security Trustee and on whom the Security Trustee is
entitled to rely under this deed (other than a Related Corporation),
attorney, banker, receiver, barrister, solicitor, agent or other person
acting as agent or advisor to the Security Trustee.
47.8 POWERS, AUTHORITIES AND DISCRETIONS
Except as otherwise provided in this deed and in the absence of fraud,
negligence or wilful default, the Security Trustee shall not be in any
way responsible for any loss (whether consequential or otherwise),
costs, damages or inconvenience that may result from the exercise or
non-exercise of any powers, authorities and discretions vested in it.
47.9 IMPOSSIBILITY OR IMPRACTICABILITY
If for any reason whatsoever it becomes impossible or impracticable to
carry out any or all of the provisions of this deed or any other
Transaction Document the Security Trustee shall not be under any
liability and, except to the extent of their own fraud, negligence or
wilful default, nor shall either of them incur any liability by reason
of any error of law or any matter or thing done or suffered or omitted
to be done in good faith by either of them or their respective
officers, employees, agents or delegates.
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47.10 NO LIABILITY EXCEPT FOR NEGLIGENCE ETC.
In the absence of fraud, negligence or wilful default on its part or on
the part of any of its officers, employees, agents or delegates for
whom it is liable under this deed, the Security Trustee shall not be
liable personally in the event of failure to pay moneys on the due date
for payment to any Noteholder, any Beneficiary, the Trust Manager, the
Chargor or any other person or for any loss howsoever caused in respect
of the Trust or to any Noteholder, any Beneficiary, the Trust Manager,
the Chargor or other person.
47.11 LEGAL AND OTHER PROCEEDINGS
(a) (INDEMNITY FOR LEGAL COSTS) The Security Trustee shall be
indemnified out of the Trust for all legal costs and
disbursements and all other costs, disbursements, outgoings and
expenses incurred by the Security Trustee in connection with:
(i) the enforcement or contemplated enforcement of, or
preservation of rights under; and
(ii) without limiting the generality of paragraph (i) above,
the initiation, defence, carriage and settlement of any
action, suit, proceeding or dispute in respect of;
this deed or any other Transaction Document or otherwise under or
in respect of the Trust provided that the enforcement,
contemplated enforcement or preservation by the Security Trustee
of the rights referred to in sub-paragraph (i) or the court
proceedings referred to in paragraph (ii) (other than in each
case the defence of any action, suit, proceeding or dispute
brought against the Security Trustee), and the basis of incurring
any of those costs, disbursements, outgoings and expenses by the
Security Trustee:
(iii) has been approved in advance by an Extraordinary
Resolution of the Voting Mortgagees; or
(iv) the Security Trustee reasonably considers the incurring
of those costs, disbursements, outgoings and expenses
to be necessary to protect the Security Trustee against
potential personal liability.
(b) (DEFENCE OF PROCEEDINGS ALLEGING NEGLIGENCE ETC.) The Security
Trustee shall be entitled to claim in respect of the above
indemnity from the Trust for its expenses and liabilities
incurred in defending any action, suit, proceeding or dispute in
which fraud, negligence or wilful default is alleged or claimed
against it, but on the same being proved, accepted or admitted by
it, it shall from its personal assets immediately repay to the
Trust the amount previously paid by the Trust to it in respect of
that indemnity.
47.12 NO LIABILITY EXCEPT FOR NEGLIGENCE ETC.
In the absence of fraud, negligence or wilful default on the Security
Trustee's part or on the part of any of its officers or employees, or
any agents or delegate, sub-agent, sub-delegate employed by the
Security Trustee in accordance with this deed (and where this deed
provides that the Security Trustee is liable for the acts or omissions
of any such person) to carry out any transactions contemplated by this
deed, the Security Trustee shall not be liable personally for any
losses, costs, liabilities or claims arising from the failure to pay
moneys on the due date for payment to any
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Mortgagee or any other person or for any loss howsoever caused in
respect of any of the Trust or to any Mortgagee or other person.
47.13 FURTHER LIMITATIONS ON SECURITY TRUSTEE'S LIABILITY
Subject to clause 47.3, the Security Trustee shall not be liable:
(a) (FOR LOSS ON ITS DISCRETION) for any losses, costs, liabilities
or expenses arising out of the exercise or non-exercise of its
discretion or for any other act or omission on its part under
this deed, any other Transaction Document or any other document
except where the exercise or non-exercise of any discretion, or
any act or omission, by the Security Trustee, or any of its
officers or employees, or any agent, delegate, sub-agent,
sub-delegate employed by the Security Trustee in accordance with
this deed (and where this deed provides that the Security Trustee
is liable for the acts or omissions of any such person) to carry
out any transactions contemplated by this deed, constitutes
fraud, negligence or wilful default;
(b) (FOR LOSS ON DIRECTION) for any losses, costs, damages or
expenses caused by its acting (in circumstances where this deed
requires it to act or contemplates that it may so act) on any
instruction or direction given to it by:
(i) any Mortgagee under this deed, any other Transaction
Document or any other document;
(ii) by any person under a Support Facility, Loan or Loan
Security; or
(iii) an Obligor,
except to the extent that it is caused by the fraud, negligence
or wilful default of the Security Trustee, or any of its officers
or employees, or an agent or delegate employed by the Security
Trustee in accordance with this deed to carry out any
transactions contemplated by this deed;
(c) (FOR CERTAIN DEFAULTS) for any Trust Manager's Default or
Servicer Transfer Event;
(d) (FAILURE BY PAYING AGENT) without limiting the Security Trustee's
obligations or powers under the Transaction Documents, for any
act, omission or default of a Paying Agent in relation to its
obligations under the Transaction Documents;
(e) (FAILURE BY NOTE TRUSTEE) without limiting the Security Trustee's
obligations or powers under the Transaction Documents, for any
act, omission or default of the Note Trustee in relation to its
obligations under the Transaction Documents;
(f) (FAILURE BY CALCULATION AGENT) without limiting the Security
Trustee's obligations or powers under the Transaction Documents,
for any act, omission or default of the Calculation Agent in
relation to its obligations under the Transaction Documents;
(g) (FAILURE BY SERVICER) without limiting the Security Trustee's
obligations or powers under the Transaction Documents, for any
act, omission or default of the Servicer in relation to its
obligations under the Transactions Documents;
(h) (FOR FAILURE TO CARRY OUT AN AGREEMENT) for the failure of a
person to carry out an agreement with the Security Trustee in
connection with the Trust;
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(i) (FOR FAILURE TO CHECK CALCULATIONS, ETC) for any losses, costs,
liabilities or expenses caused by the Security Trustee's failure
to check any calculation, information, document, form or list
supplied or purported to be supplied to it by the Trust Manager,
Note Trustee or the Servicer,
except, in the case of paragraphs (c) to (i) (inclusive), to the extent
that it is caused by the fraud, negligence or wilful default of the
Security Trustee.
Nothing in this clause 47.13 alone (but without limiting the operation
of any other clause of this deed) shall imply a duty on the Security
Trustee to supervise the Trust Manager or the Note Trustee in the
performance of the Trust Manager's or the Note Trustee's functions and
duties, and the exercise by the Trust Manager or the Note Trustee of
its discretions.
47.14 CONFLICTS
(a) (NO CONFLICT) Nothing in this deed shall prevent the Security
Trustee, the Chargor, the Lead Manager, any Dealer, the Trust
Manager, the Note Trustee or any Related Corporation or Associate
of any of them or their directors or other officers (each a
RELEVANT PERSON) from:
(i) subscribing for purchase, holding, dealing in or
disposing of any Notes;
(ii) entering into any financial, banking, development,
insurance, agency, broking or other transaction with,
or providing any advice or services for the Trust; or
(iii) being interested in any such contract or transaction or
otherwise at any time contracting or acting in any
capacity as representative or agent.
(b) (NOT LIABLE TO ACCOUNT) A Relevant Person shall not be in any way
liable to account to any Mortgagee or any other person for any
profits or benefits (including any profit, bank charges,
commission, exchange, brokerage and fees) made or derived under
or in connection with any transaction or contract specified in
paragraph (a) above.
(c) (FIDUCIARY RELATIONSHIP) A Relevant Person shall not by reason of
any fiduciary relationship be in any way precluded from making
any contracts or entering into any transactions with any such
person in the ordinary course of the business or from undertaking
any banking, financial, development, agency or other services
including any contract or transaction in relation to the placing
of or dealing with any investment and the acceptance of any
office or profit or any contract of loan or deposits or other
contract or transaction which any person or company not being a
party to this deed could or might have lawfully entered into if
not a party to this deed. A Relevant Person shall not be
accountable to any Mortgagee or any other person for any profits
arising from any such contracts, transactions or offices.
47.15 INFORMATION
Except for notices and other documents and information (if any)
expressed to be required to be furnished to any person by the Security
Trustee under this deed or any other Transaction Document, the Security
Trustee shall not have any duty or responsibility to provide any person
(including any
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Mortgagee) with any credit or other information concerning the affairs,
financial condition or business of the Trust.
47.16 INVESTIGATION BY SECURITY TRUSTEE
Each Mortgagee acknowledges that:
(a) the Security Trustee has no duty, and is under no obligation,
to investigate whether a Trust Manager's Default or Servicer
Transfer Event has occurred in relation to the Trust other
than where it has actual notice;
(b) the Security Trustee is required to provide the notices
referred to in this deed in respect of a determination of
Adverse Effect only if it is actually aware of the facts
giving rise to the Adverse Effect; and
(c) in making any such determination, the Security Trustee will
seek and rely on advice given to it by its advisors in a
manner contemplated by this deed.
EXECUTED as a deed in New South Wales.
Each attorney executing this deed states that he has no notice of revocation or
suspension of his power of attorney.
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CHARGOR
SIGNED SEALED AND DELIVERED for PERPETUAL
TRUSTEES VICTORIA LIMITED by its attorney in
the presence of:
- ------------------------------------ ------------------------------------
Witness Signature Attorney Signature
- ------------------------------------ ------------------------------------
Print Name Print Name
SECURITY TRUSTEE
SIGNED SEALED AND DELIVERED for PERPETUAL
TRUSTEE COMPANY LIMITED by its attorney in
the presence of:
- ------------------------------------ ------------------------------------
Witness Signature Attorney Signature
- ------------------------------------ ------------------------------------
Print Name Print Name
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TRUST MANAGER
SIGNED SEALED AND DELIVERED for INTERSTAR
SECURITISATION MANAGEMENT PTY LIMITED by its
attorney in the presence of:
- ------------------------------------ ------------------------------------
Witness Signature Attorney Signature
- ------------------------------------ ------------------------------------
Print Name Print Name
NOTE TRUSTEE
SIGNED SEALED AND DELIVERED for THE BANK OF
NEW YORK, NEW YORK BRANCH by its attorney in
the presence of:
- ------------------------------------ ------------------------------------
Witness Signature Attorney Signature
- ------------------------------------ ------------------------------------
Print Name Print Name
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