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 2003-3G 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 LOGO]
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Table of Contents
1. Definitions and interpretation 1
1.1 Definitions 1
1.2 Definitions in Master Trust Deed and Series Notice 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
1.11 Knowledge of Note 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
4.2 Nature of Charge 9
4.3 Dealing with Mortgaged Property 9
4.4 Crystallisation 9
4.5 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
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8. Events of Default 13
8.1 Events of Default 13
8.2 Rights of the Security Trustee upon Event of Default 15
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 21
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 23
16. Application of Moneys Received 24
16.1 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
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19.2 Receipt 28
20. Expenses, Indemnity 28
20.1 Expenses 28
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 31
30. Amendment 32
30.1 Approval of Trust Manager 32
30.2 Extraordinary Resolution of Voting Mortgagees 32
30.3 Distribution of Amendments 32
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 34
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
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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 37
38.8 Indemnity to Security Trustee 38
38.9 Independent investigation 38
38.10 No monitoring 38
38.11 Information 38
38.12 Conflicts 38
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 42
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 46
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 48
45. Acknowledgement by Chargor 48
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 49
47.3 Security Trustee's reliance on Trust Manager, Approved Seller, Note Trustee
or Servicer 50
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47.4 Compliance with laws 50
47.5 Taxes 50
47.6 Reliance on experts 50
47.7 Oversights of others 51
47.8 Powers, authorities and discretions 51
47.9 Impossibility or impracticability 51
47.10 No liability except for negligence etc. 51
47.11 Legal and other proceedings 51
47.12 No liability except for negligence etc. 52
47.13 Further limitations on Security Trustee's liability 52
47.14 Conflicts 53
47.15 Information 54
47.16 Investigation by Security Trustee 54
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Date 2003
Parties
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 2003-3G 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 (ABN 56 100 346 898)
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 Non-A$
Noteholders (the Note Trustee).
Recitals
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 Non-A$ 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.
A$ Equivalent means, in relation to an amount denominated in US$ at any
time, that amount converted into A$ as the spot exchange rate in New York
City for US$ purchases of A$ at that time.
Attorney means any attorney appointed under this deed or any Collateral
Security.
Charge means the charge created by this deed.
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Charge Release Date means, subject to clause 29.3, the date the Security
Trustee discharges the Charge and this deed under clause 29.1.
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 the Class
A3 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 the Class A3 Noteholders, and then only if and to the
extent those Noteholders are able to do so under Australian law;
(b) the Class A1 Noteholders; and
(c) the Class A4 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.
(euro) Equivalent means, in relation to an amount denominated in US$ at any
time, that amount converted into (euro) at the spot exchange rate in New
York City for US$ purchases of (euro) at that time.
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.
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;
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(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.
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;
(k) the Note Registrar in relation to its rights under the Transaction
Documents for the Trust; and
(l) 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 [*]
2003 issued under the Master Trust Deed in relation to the Trust.
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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.
Receiver means a receiver or receiver and manager appointed under this deed
or any Collateral Security.
Representative means:
(a) in the case of a Non-A$ Noteholder, the Note Trustee (as its
representative or any other person appointed as a proxy for the Non-A$
Noteholder 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 2003-3G
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 and the Euro 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
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(c) the day after the Charge Release Date.
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 Definitions in Master Trust Deed and Series Notice 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
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(iii) is in accordance with an instruction or direction from the Note
Trustee or the Voting Mortgagees.
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.
1.11 Knowledge of Note Trustee
For the purposes of this deed, the Note Trustee will only be considered to
have knowledge, notice of or to be aware of any thing if the Note 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 Note
Trustee who have day to day responsibility for the administration of the
trust established by the Note Trust 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$10.00 received on the date of this deed from
the Settlor; and
(ii) will hold the benefit of the Charge, the Mortgaged Property and
the benefit of each of the Transaction Documents to which the
Security Trustee is a party,
in each case, on trust for each Mortgagee, in accordance with the terms and
conditions of this deed.
2.2 Resolution of Conflicts
(a) The Security Trustee shall, as regards the exercise of all discretion
vested in it by this deed and all other Transaction Documents, except
where expressly provided otherwise, have regard to the interest of the
Mortgagees.
(b) Subject to this deed, if there is at any time, with respect to
enforcement, a conflict between a duty owed by the Security Trustee to
any Mortgagee or class of Mortgagee, and a duty owed by it to another
Mortgagee or class of Mortgagee, the Security Trustee must give
priority to the interests of the Noteholders (which, in the case of a
Class of Non-A$ Noteholders, shall be determined by the Note Trustee
acting on their behalf as provided herein and in the Note Trust Deed).
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(c) 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 Non-A$ Noteholders, the
Security Trustee may rely on a determination of the Note Trustee),
there is a conflict between the interests of the Class A Noteholders
and the interests of the Class B Noteholders or the interests of the
other Mortgagees.
(d) Subject to this deed, if, in the Security Trustee's opinion, there is
a conflict between the interests of the Class A1 Noteholders, the
Class A2 Noteholders, the Class A3 Noteholders and the Class A4
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).
(e) 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.
4.2 Nature of Charge
The Charge operates, subject to clause 4.4, as a floating charge only, over
all Mortgaged Property.
4.3 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.
4.4 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.
4.5 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 connection with the exercise
and performance of its powers and obligations under this deed,
including without limitation:
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(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:
(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.
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(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,
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.
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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
Non-A$ 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 Non-A$ 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 Non-A$ Noteholders in accordance with the Note Trust Deed; and
(b) the Non-A$ 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 Non-A$
Noteholders from time to time and need not inquire whether the Note Trustee
or a Class of the Non-A$ 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 by the Chargor or the Security Trustee to be made to a Non-A$
Noteholder under this deed may be made to the Note Trustee or a Paying
Agent on behalf of that Non-A$ Noteholder and any such payment is a good
discharge to the Chargor or the Security Trustee (as appropriate).
7.5 Notices
Any notice to be given to a Non-A$ Noteholder under this deed may be given
to the Note Trustee on behalf of that Non-A$ Noteholder. The Chargor will
indemnify the Note Trustee for any costs of providing such notice to the
Non-A$ Noteholders.
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).
(a) (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
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(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 Non-A$ Noteholder, the Note Trustee on behalf of
that Non-A$ 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)
(i) For so long as any Secured Moneys are owing to the Class A
Noteholders, an Interest Rate Swap, Class A2 Currency Swap or
Class A3 Currency Swap is terminated and a replacement Interest
Rate Swap, Class A2 Currency Swap or Class A3 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; or
(ii) at any other time, an Interest Rate Swap or Class B1 Currency
Swap is terminated and a replacement Interest Rate Swap or Class
B1 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.
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(g) (Vitiation of Transaction Documents)
(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 Voting 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 38.6, 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
Assets 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 Voting Mortgagees
(other than the Note Trustee),
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including any 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 Non-A$ 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:
(a) 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
(b) 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 Rating Agency, but without the consent
of the Mortgagees and without prejudice to its
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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:
(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
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(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
(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.
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(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).
(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.
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(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.
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.
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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
(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).
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(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.
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.
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16. Application of Moneys Received
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16.1 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 (pari passu and
rateably);
(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 (pari passu and
rateably);
(B) all Secured Moneys owing to the Class A Noteholders (pari
passu and rateably); 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 (pari
passu and rateably); and
(B) all Secured Moneys owing to the Class B1 Currency Swap
Provider;
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(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 Non-A$ 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 Non-A$ 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.
(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,
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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.
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(b) Netting
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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(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 Non-A$ 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 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.
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20.2 Indemnity
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):
(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
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(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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Without limiting clause 1.4, 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
(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.
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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.
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
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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 Mortgagees.
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 the 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
Mortgagees (as the case may be).
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.
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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;
(b) obtaining declaratory relief; or
(c) relation to its rights under this deed.
31.3 Restricted remedies
Except as provided in clauses 31.1 and 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;
(d) (court appointed receiver) apply for the appointment by a court or a
receiver to any of the assets of the Chargor;
(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; 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 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 31.4 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.
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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 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:
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(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 and,
where the Note Trustee is the addressee, with a copy by
facsimile.
(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.
(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;
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(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:
(A) where the Note Trustee is the addressee, on the date that
the copy of the email sent by facsimile is received; and
(B) otherwise, on the date that the email is received.
However, if the time of deemed receipt of any notice is not before
4.00 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 Non-A$
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. The Security
Trustee may at the expense of the Chargor obtain such advice and
information
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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.
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.
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(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.
(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
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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
38.4(b); 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 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.
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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.
(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.
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(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 Non-A$ Noteholders or the relevant
Class of Non-A$ 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 Non-A$
Noteholders in accordance with the terms of the Note Trust Deed.
(iii) The proviso in sub-paragraph (i) shall not apply if the Non-A$
Noteholders or the relevant Class of Non-A$ 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.
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40.3 Notice of Meetings
(a) (Period of Notice) Subject to clause 40.3(b), at least 7 days' notice
of a meeting of Voting Mortgagees (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 of Voting Mortgagees 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 Non-A$
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 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 any two or more persons present in person holding, or being
Representatives holding or representing, in aggregate 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.
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
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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 in
aggregate not less than 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 any two or more persons present in
person holding, or being Representatives holding or representing, in
aggregate not less than 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.
(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
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that the Note Trustee shall represent each Non-A$ 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$10,000 or, in the case of the Class A1 Noteholders, the
Class A4 Noteholders and the Class B2 Noteholders, the A$
Equivalent of US$10,000 (but not part thereof) or, in the case of
the Class A3 Noteholders, the (euro) Equivalent of US$10,000 (but
not part thereof) of the Secured Moneys that he holds or in
respect of which he is a Representative. Any person entitled to
more than one vote need not use or cast all of the votes to which
he is entitled in the same way.
(f) (Evidence) A certificate from the Note Trustee to the Security Trustee
that the Note Trustee is entitled to vote on behalf of a Non-A$
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 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
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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 section 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;
(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
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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.
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.
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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.
(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 or 9.7(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
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(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.
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.
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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
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.
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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.
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.
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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.
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:
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(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
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
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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;
(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, any Note Manager, 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.
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(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 or arrangements with the
Chargor or any other party to any of the Transaction Documents 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
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.
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
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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:
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Witness Signature Attorney Signature
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Print Name Print Name
NOTE TRUSTEE
Executed as a deed by [The Bank of New
York, New York Branch] in the presence
of:
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Witness Signature Signature
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Print Name Print Name
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