Security Trust Deed
PERPETUAL TRUSTEES VICTORIA LIMITED
PERPETUAL TRUSTEE COMPANY LIMITED
INTERSTAR SECURITISATION MANAGEMENT PTY LIMITED
Interstar Millennium Trusts
Interstar Millennium Series 2004-2G Trust
ALLENS ARTHUR ROBINSON
The Chifley Tower
2 Chifley Square
Sydney NSW 2000
Australia
Tel 61 2 9230 4000
Fax 61 2 9230 5333
(C) Copyright Allens Arthur Robinson 2003
Security Trust Deed Allens Arthur Robinson
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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Definitions in Master Trust Deed and Series Notice and
Transaction Document amendments 4
1.3 Interpretation 4
1.4 Determination, statement and certificate sufficient evidence 5
1.5 Document or agreement 5
1.6 Rights and obligations of Mortgagees 5
1.7 Transaction Document 5
1.8 Chargor as trustee 5
1.9 Knowledge of the Chargor 6
1.10 Knowledge of Security Trustee 6
1.11 Knowledge of Note Trustee 6
2. APPOINTMENT OF SECURITY TRUSTEE 6
2.1 The Security Trustee 6
2.2 Resolution of Conflicts 6
2.3 Duration of Trust 7
3. CHARGE 7
3.1 Charge 7
3.2 Security 7
3.3 Prospective liability 7
4. NATURE OF CHARGE 7
4.1 Priority 7
4.2 Nature of Charge 8
4.3 Dealing with Mortgaged Property 8
4.4 Crystallisation 8
4.5 De-crystallisation 9
5. COVENANTS AND WARRANTIES 9
5.1 Covenant 9
5.2 Negative Covenants 10
5.3 Warranty 10
5.4 Trust Manager's Undertakings 11
6. FURTHER ASSURANCES 11
6.1 Further assurances 11
7. NOTE TRUSTEE 12
7.1 Capacity 12
7.2 Exercise of rights 12
7.3 Instructions or directions 12
7.4 Payments 12
7.5 Notices 12
8. EVENTS OF DEFAULT 12
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8.1 Events of Default 12
8.2 Rights of the Security Trustee upon Event of Default 14
8.3 Notify Events of Default 14
9. ENFORCEMENT 15
9.1 Power to enforce 15
9.2 No obligation to enforce 15
9.3 Obligation to convene meeting 15
9.4 Security Trustee to act in Accordance with Directions 15
9.5 Security Trustee must receive Indemnity 16
9.6 Limitation on rights of Mortgagees 16
9.7 Immaterial waivers 16
9.8 Acts pursuant to Resolutions 17
9.9 Overriding Provision 17
10. APPOINTMENT OF RECEIVER 17
10.1 Appointment 17
10.2 Agent of Chargor 18
10.3 Receiver's powers 18
10.4 Receiver appointed after commencement of winding up 20
10.5 Powers exercisable by the Security Trustee 21
10.6 Withdrawal 21
11. REMUNERATION OF SECURITY TRUSTEE 21
11.1 Costs 21
11.2 Fee 21
11.3 Cessation of Fee 21
12. POWER OF ATTORNEY 21
13. COMPLETION OF BLANK SECURITIES 22
14. PERFORMANCE OF CHARGOR'S OBLIGATIONS 22
15. STATUTORY POWERS 22
15.1 Powers in augmentation 22
15.2 Notice not required 23
16. APPLICATION OF MONEYS RECEIVED 23
16.1 Priorities 23
16.2 Moneys actually received 23
16.3 Amounts contingently due 23
16.4 Notice of subsequent Security Interests 23
16.5 Satisfaction of debts 24
16.6 Proportionate Sharing 24
17. OTHER SECURITY INTERESTS OVER MORTGAGED PROPERTY 25
18. PROTECTION OF MORTGAGEES, RECEIVER AND ATTORNEY 25
19. PROTECTION OF THIRD PARTIES 25
19.1 No enquiry 25
19.2 Receipt 26
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20. EXPENSES, INDEMNITY 26
20.1 Expenses 26
20.2 Indemnity 27
21. CURRENCY INDEMNITY 27
22. STAMP DUTIES 27
23. INTEREST ON OVERDUE AMOUNTS 27
23.1 Accrual 27
23.2 Payment 28
23.3 Rate 28
24. CERTIFICATE AS TO AMOUNT OF SECURED MONEYS, ETC. 28
25. SURVIVAL OF REPRESENTATIONS 28
26. INDEMNITY AND REIMBURSEMENT OBLIGATIONS 28
27. CONTINUING SECURITY 29
28. OTHER SECURITIES 29
29. DISCHARGE OF THE CHARGE 29
29.1 Release 29
29.2 Contingent Liabilities 29
29.3 Charge reinstated 29
30. AMENDMENT 30
30.1 Approval of Trust Manager 30
30.2 Extraordinary Resolution of Voting Mortgagees 30
30.3 Distribution of Amendments 30
31. LIABILITY 31
31.1 Liability of Chargor limited to its right of indemnity 31
31.2 Unrestricted remedies 31
31.3 Restricted remedies 31
31.4 Liability of Security Trustee limited to its right of indemnity 31
31.5 Advice from Professional Advisers 32
32. WAIVERS, REMEDIES CUMULATIVE 32
33. CONSENTS AND OPINION 32
34. SEVERABILITY OF PROVISIONS 32
35. MORATORIUM LEGISLATION 33
36. ASSIGNMENTS 33
37. NOTICES 33
38. RELATIONSHIP OF MORTGAGEES TO SECURITY TRUSTEE 34
38.1 Instructions; extent of discretion 34
38.2 No obligation to investigate authority 34
38.3 Delegation 35
38.4 Reliance on documents and experts 35
38.5 Notice of transfer 35
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38.6 Notice of default 35
38.7 Security Trustee as Mortgagee 36
38.8 Indemnity to Security Trustee 36
38.9 Independent investigation 36
38.10 No monitoring 36
38.11 Information 36
38.12 Conflicts 37
38.13 No Liability 37
39. RETIREMENT AND REMOVAL OF SECURITY TRUSTEE 37
39.1 Retirement 37
39.2 Removal 37
39.3 Replacement 38
40. MEETINGS OF MORTGAGEES 39
40.1 Limitation on Security Trustee's Powers 39
40.2 Convening of Meetings 39
40.3 Notice of Meetings 40
40.4 Chairman 40
40.5 Quorum 40
40.6 Adjournment 41
40.7 Voting Procedure 41
40.8 Right to attend and speak 42
40.9 Appointment of Proxies 42
40.10 Corporate Representatives 43
40.11 Rights of Representatives 43
40.12 Extraordinary Resolutions 43
40.13 Extraordinary Resolution binding on Mortgagees 44
40.14 Minutes and Records 45
40.15 Written Resolutions 45
40.16 Further Procedures for Meetings 45
40.17 Noteholder Mortgagees' rights 45
41. AUTHORISED SIGNATORIES 46
42. GOVERNING LAW AND JURISDICTION 46
43. COUNTERPARTS 46
44. SET-OFF 47
45. ACKNOWLEDGEMENT BY CHARGOR 47
46. INFORMATION MEMORANDUM 47
47. SECURITY TRUSTEE'S LIMITED LIABILITY 47
47.1 Reliance on certificates 47
47.2 Security Trustee may assume signed documents to be genuine 48
47.3 Security Trustee's reliance on Trust Manager, Approved Seller,
Note Trustee or Servicer 48
47.4 Compliance with laws 49
47.5 Taxes 49
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47.6 Reliance on experts 49
47.7 Oversights of others 49
47.8 Powers, authorities and discretions 49
47.9 Impossibility or impracticability 49
47.10 No liability except for negligence etc. 50
47.11 Legal and other proceedings 50
47.12 No liability except for negligence etc. 50
47.13 Further limitations on Security Trustee's liability 51
47.14 Conflicts 52
47.15 Information 52
47.16 Investigation by Security Trustee 53
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DATE
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PARTIES
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1. PERPETUAL TRUSTEES VICTORIA LIMITED (ABN 47 004 027 258) of Level 4,
333 Collins Street, Melbourne, Victoria in its capacity as trustee of
the Interstar Millennium Series 2004-2G 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); and
3. INTERSTAR SECURITISATION MANAGEMENT PTY LIMITED (ABN 56 100 346 898)
of Level 28, 367 Collins Street, Melbourne, Victoria (the TRUST
MANAGER).
RECITALS
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A The Chargor is the trustee, and the Trust Manager is the manager, of
the Trust.
B Under the terms of the Master Trust Deed, the Chargor is authorised to
enter into this deed to charge the Trust Assets to secure the due and
punctual performance of the obligations of the Chargor under the
Transaction Documents and the payment in full of the Secured Moneys to
the Mortgagees.
C The Security Trustee enters into this deed as Mortgagee and as trustee
for each other Mortgagee.
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IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
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1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
ATTORNEY means any attorney appointed under this deed or any Collateral
Security.
CHARGE means the charge created by this deed.
CHARGE RELEASE DATE means, subject to clause 29.3, the date the Security
Trustee discharges the Charge and this deed under clause 29.1.
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
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(b) all equitable liens and other Security Interests which the Chargor
has over the Trust Assets.
CLASS A MORTGAGEES has the meaning given in the Series Notice.
COLLATERAL SECURITY means any Security Interest, Guarantee or other
document or agreement at any time created or entered into in favour of
the Security Trustee as security for any Secured Moneys.
EVENT OF DEFAULT means any of the events specified in clause 8.
EXTRAORDINARY RESOLUTION in relation to the Voting Mortgagees means:
(a) a resolution passed at a meeting of the Voting Mortgagees duly
convened and held in accordance with the provisions contained in
this deed by a majority consisting of not less than 75% of the votes
capable of being cast at that meeting by Voting Mortgagees present
in person or by proxy; or
(b) a resolution in writing pursuant to clause 40.15 signed by all the
Voting Mortgagees.
GUARANTEE means any guarantee, indemnity, letter of credit, legally
binding letter of comfort or suretyship, or any other obligation or
irrevocable offer (whatever called and of whatever nature):
(a) to pay or to purchase;
(b) to provide funds (whether by the advance of money, the purchase of
or subscription for shares or other securities, the purchase of
assets, rights or services, or otherwise) for the payment or
discharge of;
(c) to indemnify against the consequences of default in the payment of;
or
(d) to be responsible otherwise for,
an obligation or indebtedness of another person, a dividend,
distribution, capital or premium on shares, stock or other interests, or
the insolvency or financial condition of another person.
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 has the meaning given in the Series Notice and includes the
Trust Manager in relation to its rights as Trust Manager under the
Transaction Documents for the Trust.
NOTE TRUSTEE means the person (if any) defined in the Series Notice as
the Note Trustee and who accedes to this deed under the Series Notice.
NOTEHOLDER MORTGAGEE has the meaning given in the Series Notice.
NOTICE OF CREATION OF TRUST means the Notice of Creation of Trust dated
on or about the date of this deed issued under the Master Trust Deed in
relation to the Trust.
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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 US$ Noteholder, the Note Trustee (as its
representative or any other person appointed as a proxy for the US$
Noteholders in accordance with this deed);
(b) in the case of any other Mortgagee, a person who is appointed as a
proxy for that Mortgagee pursuant to clause 40.9; and
(c) without limiting the generality of paragraph (a), in the case of a
Voting Mortgagee which is a body corporate, a person who is
appointed pursuant to clause 40.10 by the Mortgagee,
or as otherwise specified in the Series Notice.
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 Andrew Jinks.
TRUST means the trust known, initially, as the Interstar Millennium
Series 2004-2G Trust (as it may be renamed from time to time) established
under the Notice of Creation of Trust, the Master Trust Deed and the
Series Notice.
TRUST ASSETS means the Assets of the Trust from time to time as defined
in the Master Trust Deed, and includes the rights of the Chargor under
the Transaction Documents in respect of the Trust and under the
Collection Account and the US$ Account.
TRUST FUND means each amount held by the Security Trustee under clause
2.1 of this deed together with any other property and benefits which the
Security Trustee receives, has vested in it or otherwise acquires to hold
on the trust established under this deed including, without limitation,
all the right, title and interest of the Security Trustee in connection
with the Charge and any property which represents the proceeds of sale of
any such property or proceeds of enforcement of the Charge.
US$ NOTEHOLDER has the meaning given in the Series Notice.
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VESTING DATE means the day preceding the earliest of:
(a) the 80th anniversary of the date of this deed;
(b) the 21st anniversary of the date of the death of the last survivor
of the lineal descendants of King George V living on the date of
this deed; and
(c) the day after the Charge Release Date.
VOTING MORTGAGEE has the meaning given in the Series Notice.
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), despite their
respective times of execution, 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 and paragraph (c), 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.
(c) This deed may be expressly amended by the Series Notice, and shall
be read subject to any such amendment. No such amendment will
constitute a revesting of the trust constituted under this deed.
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;
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(ii) is in accordance with a lawful court order or direction or
otherwise required by law; or
(iii) is in accordance with an instruction or direction from the
Note Trustee or the Voting Mortgagees.
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
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(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.
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.
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(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 Mortgagees as set out in the
Series Notice, and subject to the relevant limitations of liability
set out in the Series Notice.
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.
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.
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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,
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) section 218 or section 255 of the Income Tax
Assessment Act 1936 (Cth) and the Income Tax
Assessment Act 1997 (Cth);
(B) section 260-5 of the Taxation Administration Act 1953
(Cth); or
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(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:
(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.
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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) engage in any business or activity in relation to
the Trust other than as contemplated in the Transaction Documents;
(d) (BANK ACCOUNTS) open any bank account not specified in the
Transaction Documents; and
(e) (SECURITY INTEREST) 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.
(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
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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 becomes a party to this deed in its capacity as trustee
for the US$ Noteholders from time to time under the Note Trust Deed.
7.2 EXERCISE OF RIGHTS
Except as otherwise provided in this deed and in the Note Trust Deed:
(a) the rights, remedies and discretions of the US$ Noteholders under
this deed including all rights to vote or give instructions or
consent to the Security Trustee and to enforce any undertaking or
warranty under this deed, may only be exercised by the Note Trustee
on behalf of the US$ Noteholders in accordance with the Note Trust
Deed; and
(b) the US$ Noteholders may only exercise enforcement rights in respect
of the Mortgaged Property through the Note Trustee and only in
accordance with this deed and the Note Trust Deed.
7.3 INSTRUCTIONS OR DIRECTIONS
The Security Trustee may rely on any instructions or directions given to
it by the Note Trustee as being given on behalf of a Class of US$
Noteholders from time to time and need not inquire whether the Note
Trustee or a Class of the US$ Noteholders from time to time have complied
with any requirements under the Note Trust Deed or as to the
reasonableness or otherwise of the Note Trustee.
7.4 PAYMENTS
Any payment by the Chargor or the Security Trustee to be made to a US$
Noteholder under this deed may be made to the Note Trustee or a Paying
Agent on behalf of that US$ Noteholder and any such payment is a good
discharge to the Chargor or the Security Trustee (as appropriate).
7.5 NOTICES
Any notice to be given to a US$ Noteholder under this deed may be given
to the Note Trustee on behalf of that US$ Noteholder. The Chargor will
indemnify the Note Trustee for any costs of providing such notice to the
US$ Noteholders.
8. EVENTS OF DEFAULT
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8.1 EVENTS OF DEFAULT
Subject to the Series Notice, 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:
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(i) any Interest within 10 Business Days of the Payment Date on
which the Interest was due to be paid, together with all
Interest accrued and payable on that Interest; and
(ii) any other Secured Moneys, within 10 Business Days of the due
date for payment (or within any applicable grace period
agreed with the Mortgagee to whom the Secured Moneys relate
or, where the Mortgagee is a US$ Noteholder, the Note Trustee
on behalf of that US$ Noteholder),
(iii) sub-clauses (i) and (ii) above will not constitute Events of
Default:
(A) if the Secured Moneys which the Chargor failed to pay
are subordinated to payment of amounts due to Class A
Noteholders while any Secured Moneys remain owing:
(1) to Class A Noteholders; or
(2) to any other person, which rank in priority
to amounts due to Class A Noteholders; or
(B) where the Chargor had sufficient available funds with
its bankers with which the bank accounts of the Trust
are held and had given instructions to those bankers
to make that payment, and that the payment would have
been made but for temporary technical or
administrative difficulties outside the control of the
Chargor.
(b) (BREACH OF OBLIGATION) The Chargor fails to perform or observe any
other provisions (other than an obligation referred to in paragraph
(a)) of a Transaction Document (including any representation,
warranty or undertaking) and that default (if in the opinion of the
Security Trustee is capable of remedy, that opinion, subject to
clause 40.17(b), having been approved in writing by the Noteholder
Mortgagees) is not remedied for 30 days after written notice (or
such longer period as may be specified in the notice, that longer
period subject to clause 40.17(b), having been approved in writing
by the Noteholder Mortgagees) from the Security Trustee requiring
the failure to be remedied.
(c) (INSOLVENCY) An Insolvency Event occurs in relation to the Chargor
(in its capacity as trustee of the Trust).
(d) (PRIORITY OF CHARGE) The Charge is not or ceases to be a first
ranking charge over the Trust Assets, or any other obligation of
the Chargor (other than as mandatorily preferred by law) ranks
ahead of or pari passu with any of the Secured Moneys.
(e) (ENFORCEMENT OF SECURITY) Any Security Interest over the Assets of
the Trust is enforced.
(f) (INTEREST RATE SWAP OR CURRENCY SWAPS) An Interest Rate Swap or
Currency Swap is terminated and a replacement Interest Rate Swap or
Currency Swap (as the case may be) on terms that will not lead to a
withdrawal or downgrade of the rating assigned to any Notes, is not
put in place.
(g) (VITIATION OF TRANSACTION DOCUMENTS)
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(i) All or any part of any Transaction Document (other than an
Interest Rate Swap or a Currency Swap) is terminated or is or
becomes void, illegal, invalid, unenforceable or of limited
force and effect; or
(ii) a party becomes entitled to terminate, rescind or avoid all
or part of any Transaction Document (other than an Interest
Rate Swap or a Currency Swap).
(h) (TRUST) Without the prior consent of the Security Trustee (that
consent, subject to clause 40.17(b), having been approved in
writing by the Noteholder Mortgagees):
(i) the Trust is wound up, or the Chargor is required to wind up
the Trust under the Master Trust Deed or applicable law, or
the winding up of the Trust commences;
(ii) the Trust is held or is conceded by the Chargor not to have
been constituted or to have been imperfectly constituted;
(iii) unless another trustee is appointed to the Trust under the
Transaction Documents, the Chargor ceases to be authorised
under the Trust to hold the property of the Trust in its name
and to perform its obligations under the Transaction
Documents.
8.2 RIGHTS OF THE SECURITY TRUSTEE UPON EVENT OF DEFAULT
At any time after an Event of Default occurs, the Security Trustee may,
and shall (subject to clauses 9.2, 9.3, 9.4 and 9.5) if so directed by an
Extraordinary Resolution of the Voting Mortgagees:
(a) declare the Charge immediately enforceable; and/or
(b) declare the Secured Moneys immediately due and payable; and/or
(c) give a notice crystallising the charge in relation to any or all of
the Mortgaged Property under clause 4.4; and/or
(d) appoint a Receiver over the Trust Assets, or exercise the powers
that a Receiver would otherwise have if appointed under this deed.
The Security Trustee may exercise its rights under this clause
notwithstanding any delay or previous waiver.
8.3 NOTIFY EVENTS OF DEFAULT
Each of the Chargor and the Trust Manager must promptly notify the
Security Trustee, the Note Trustee and each Designated Rating Agency if,
to the knowledge of its officers who are responsible for the
administration of the Trust, it becomes aware of the occurrence of an
Event of Default, Trustee's Default, Servicer Transfer Event or Trust
Manager's Default including full details of that Event of Default,
Trustee's Default, Servicer Transfer Event or Trust Manager's Default (as
the case may be).
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9. ENFORCEMENT
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9.1 POWER TO ENFORCE
At any time after the Charge becomes enforceable, the Security Trustee
may, at its discretion and without further notice (subject to the terms
of this deed including, without limitation, clause 8.2) take such
proceedings as it may think fit to enforce any of the provisions of this
deed.
9.2 NO OBLIGATION TO ENFORCE
Subject to clause 9.3, pending the receipt of directions from the Voting
Mortgagees as contemplated by clauses 9.3 and 9.4, the Security Trustee
shall not be bound to take any action or give any consent or waiver or
make any determination under this deed (including, to appoint any
Receiver, to declare the Charge enforceable or the Secured Moneys
immediately due and payable pursuant to clause 8.2 or to take any other
proceedings referred to in clause 9.1). Nothing in this clause shall
affect the operation of clause 4.4 or the Charge becoming enforceable
prior to the Security Trustee receiving directions from the 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), including any
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indemnity provided under clause 9.5. The Note Trustee is in no
circumstance required to give an indemnity to the Security
Trustee.
(c) If an Event of Default is a payment default in respect of a
subordinated Class of Notes, as long as there are Notes outstanding
that rank prior to those subordinated Notes, the Security Trustee
shall not take any action without the consent of each Class of
Noteholders in respect of each Class of prior ranking Notes (or, in
the case of a Class of US$ Noteholders, the Note Trustee) by
Extraordinary Resolution.
(d) If the Security Trustee becomes bound to take steps and/or proceed
under this deed and it fails to do so within a reasonable time and
such failure is continuing the Voting Mortgagees may exercise such
powers as they determine in accordance with the Series Notice and
(where relevant) the Note Trust Deed and then only if and to the
extent they are able to do so under Australian law.
9.5 SECURITY TRUSTEE MUST RECEIVE INDEMNITY
If:
(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
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Rating Agency, but without the consent of the Mortgagees and
without prejudice to its rights in respect of any subsequent
breach, to any waiver or authorisation of any breach or proposed
breach of any of the terms and conditions of the Transaction
Documents or any of the provisions of this deed which is not, in
the reasonable opinion of the Security Trustee, materially
prejudicial to the interests of the Mortgagees and may determine
that any event that would otherwise be an Event of Default shall
not be treated as an Event of Default for the purpose of this
deed.
(b) No such waiver, authorisation or determination shall be made in
contravention of any directions contained in an Extraordinary
Resolution of Voting Mortgagees.
(c) No waiver, authorisation or determination may, once given, be
overridden or withdrawn by an Extraordinary Resolution of Voting
Mortgagees but the Security Trustee may (subject to clause
40.17(b), with the prior written consent of the Noteholder
Mortgagees) give a waiver, authorisation or determination on terms
that allow it to be overridden or withdrawn.
(d) Any waiver, authorisation or determination shall, if the Security
Trustee so requires, be notified to the Voting Mortgagees by the
Trust Manager as soon as practicable thereafter in accordance with
this deed.
9.8 ACTS PURSUANT TO RESOLUTIONS
The Security Trustee shall not be responsible for having acted in good
faith upon any resolution purporting to have been passed at any meeting
of the Voting Mortgagees in respect of which minutes have been made and
signed, even though it may subsequently be found that there was some
defect in the constitution of that meeting or the passing of that
resolution or that for any reasons that resolution was not valid or
binding upon the Voting Mortgagees.
9.9 OVERRIDING PROVISION
Notwithstanding any other provision of this deed:
(a) the Security Trustee is not obliged to do or omit to do anything
including entering into any transaction or incurring any liability
unless the Security Trustee's liability is limited in a manner
satisfactory to the Security Trustee in its absolute discretion;
and
(b) the Security Trustee will not be under any obligation to advance or
use its own funds for the payment of any costs, expenses or
liabilities, except in respect of its own fraud, negligence or
wilful default.
10. APPOINTMENT OF RECEIVER
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10.1 APPOINTMENT
To the extent permitted by law and subject to clause 9, at any time after
the Charge becomes enforceable under this deed the Security Trustee or
any Authorised Signatory of the Security Trustee may:
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(a) appoint any person or any 2 or more persons jointly or severally or
both to be a receiver or receiver and manager of all or any of the
Mortgaged Property;
(b) remove any Receiver;
(c) appoint another Receiver in addition to or in place of a Receiver;
and
(d) fix or vary the remuneration of a Receiver.
10.2 AGENT OF CHARGOR
(a) Subject to clauses 10.2(b) and 10.4, every Receiver is the agent of
the Chargor. The Chargor alone is responsible for the Receiver's
acts and defaults.
(b) (i) Any Receiver will be the agent of the Chargor in its capacity
as trustee of the Trust only; and
(ii) notwithstanding anything else in this deed or at law, the
Chargor in its personal capacity is not responsible for any
negligent act or negligent omission of the Receiver.
10.3 RECEIVER'S POWERS
In addition to any powers granted by law, and except to the extent
specifically excluded by the terms of his appointment and in accordance
with the interests of the Mortgagees in accordance with this deed, every
Receiver has power to do anything in respect of the Mortgaged Property
that the Chargor could do (including, without limitation, having regard
to its powers and the extent of its liability under the Master Trust
Deed). However, every Receiver acknowledges that the Chargor's liability
in relation to the Receiver's exercise of those powers is limited to the
assets of the Trust. His powers include the following.
(a) (TAKE POSSESSION AND MANAGE) He may take possession of, get in and
manage the Mortgaged Property.
(b) (LEASE) He may lease any of the Mortgaged Property for any term
(whether or not the Receiver has taken possession).
(c) (CARRY ON BUSINESS) He may carry on or concur in carrying on any
business.
(d) (ACQUIRE ANY ASSET) He may acquire in any manner any asset
(including to take it on lease). After that acquisition it will be
included in the Mortgaged Property.
(e) (MAINTAIN AND IMPROVE THE MORTGAGED PROPERTY) He may do anything to
maintain, protect or improve any of the Mortgaged Property or to
obtain income or returns from any of the Mortgaged Property
(including by development, sub-division, construction, alteration,
or repair, of any property or by pulling down, dismantling or
scrapping, any property).
(f) (RAISE MONEY) He may:
(i) borrow or raise any money from any Mortgagee or any other
person approved by the Security Trustee;
(ii) give Guarantees; and
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(iii) grant any Security Interest over any of the Mortgaged
Property to secure that money or Guarantee. That Security
Interest may rank in priority to or equally with or after,
the security created by this deed. It may be given in the
name of the Chargor or otherwise.
(g) (LEND) He may lend money or provide financial accommodation.
(h) (SELL)
(i) He may sell any of the Mortgaged Property (whether or not the
Receiver has taken possession).
(ii) Without limitation, any sale may be made:
(A) by public auction, private treaty or tender;
(B) for cash or on credit;
(C) in one lot or in parcels;
(D) either with or without special conditions or
stipulations as to title or time or mode of payment of
purchase money or otherwise;
(E) with power to allow the whole or any part of the
purchase money to be deferred (whether with or without
any security); and
(F) whether or not in conjunction with the sale of any
property by any person.
(i) (OPTIONS) He may grant or take put or call options.
(j) (SEVER FIXTURES) He may sever fixtures.
(k) (EMPLOY) He may employ or discharge any person as employee,
contractor, agent, professional adviser, consultant or auctioneer
for any purpose.
(l) (COMPROMISE) He may make or accept any arrangement or compromise.
(m) (GIVE RECEIPTS) He may give receipts for money and other assets.
(n) (PERFORM AND ENFORCE AGREEMENTS) He may:
(i) perform or enforce;
(ii) exercise or refrain from exercising the Chargor's rights and
powers under; or
(iii) obtain the benefit in other ways of,
any documents or agreements or rights which form part of the
Mortgaged Property and any documents or agreements entered into in
exercise of any Power.
(o) (VARY AND TERMINATE AGREEMENTS) He may vary, rescind or terminate
any document or agreement (including surrender or accept the
surrender of leases).
(p) (AUTHORISATIONS) He may apply for, take up, transfer or surrender
any Authorisation or any variation of any Authorisation.
(q) (TAKE INSOLVENCY PROCEEDINGS) He may make, commence and pursue
insolvency proceedings against any person and do any thing in
relation to any actual or contemplated Liquidation (including
attend and vote at meetings of creditors and appoint proxies).
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(r) (TAKE PROCEEDINGS) He may commence, defend, conduct, settle,
discontinue or compromise proceedings in the name of the Chargor or
otherwise.
(s) (EXECUTE DOCUMENTS) He may enter into and execute documents or
agreements on behalf of himself or the Chargor.
(t) (OPERATE BANK ACCOUNTS) He may operate any bank account comprising
part of the Mortgaged Property and open and operate any further
bank account.
(u) (SURRENDER MORTGAGED PROPERTY) He may surrender, release or
transfer any of the Mortgaged Property.
(v) (EXCHANGE MORTGAGED PROPERTY) He may exchange with any person any
of the Mortgaged Property for other property.
(w) (PROMOTE COMPANIES) He may promote the formation of companies with
a view to purchasing any of the Mortgaged Property or assuming the
obligations of the Chargor or otherwise.
(x) (DELEGATE) He may delegate to any person approved by the Security
Trustee any of his Powers (including delegation).
(y) (HAVE ACCESS) He may exercise all the rights of the Chargor under
the Transaction Documents with respect to the Trust Assets.
(z) (VOTE) He may exercise any voting or other rights or powers in
respect of any of the Mortgaged Property and do anything in
relation to shares or marketable securities.
(aa) (OTHER OUTGOINGS) He may pay any outgoing or indebtedness of the
Chargor or any other person.
(bb) (SECURITY INTERESTS) He may redeem any Security Interest or acquire
it and any debt secured by it.
(cc) (INSURE) He may take out insurance.
(dd) (INSURANCE CLAIMS) He may make, enforce, compromise and settle all
claims in respect of insurance.
(ee) (INCIDENTAL POWER) He may do anything incidental to the exercise of
any other Power.
All of the above paragraphs are to be construed independently. None
limits the generality of any other.
10.4 RECEIVER APPOINTED AFTER COMMENCEMENT OF WINDING UP
The power to appoint a Receiver may be exercised even though:
(a) an order may have been made or a resolution may have been passed
for the Liquidation of the Chargor; and
(b) a receiver appointed in those circumstances may not, or may not in
some respects specified by the Receiver, act as the agent of the
Chargor.
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10.5 POWERS EXERCISABLE BY THE SECURITY TRUSTEE
Whether or not a Receiver has been appointed, the Security Trustee may
exercise any Power of a Receiver at any time after the Charge becomes
enforceable under this deed in addition to any Power of the Mortgagees
and without giving notice. It may exercise those Powers and its Powers
without taking possession or being liable as mortgagee in possession.
Without limitation, it may exercise those Powers and its Powers directly
or through one or more agents. In the latter event, anything done or
incurred by such an agent will be taken to be done or incurred by the
Security Trustee provided that the Security Trustee will have no
liability in respect of the negligence or default of any agent appointed
by the Security Trustee with reasonable care for the purpose of
performing functions of a type which are not reasonably capable of
supervision by the Security Trustee.
10.6 WITHDRAWAL
The Security Trustee may at any time (provided it does not have an
Adverse Effect) give up possession of any Mortgaged Property and may at
any time withdraw any receivership.
11. REMUNERATION OF SECURITY TRUSTEE
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11.1 COSTS
In accordance with the Series Notice, the Chargor shall reimburse the
Security Trustee for all costs and expenses of the Security Trustee
properly incurred in acting as Security Trustee.
11.2 FEE
(a) The Security Trustee shall be entitled to a fee from the proceeds
of the Mortgaged Property at the rate agreed from time to time by
the Chargor, the Security Trustee and the Trust Manager. This fee
shall accrue from day to day.
(b) The Security Trustee's fee under sub-clause (a) shall be payable
quarterly in arrears for the relevant period on the same dates as
the Chargor's fee under the Master Trust Deed for the Trust or as
agreed from time to time by the Chargor, the Security Trustee and
the Trust Manager.
11.3 CESSATION OF FEE
The Security Trustee shall not be entitled to remuneration under clause
11.2 in respect of any period after the Charge Release Date or after it
has resigned or been removed as Security Trustee.
12. POWER OF ATTORNEY
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(a) For valuable consideration and by way of security the Chargor
irrevocably appoints each Authorised Signatory of the Security
Trustee severally its attorney to do anything, following the
occurrence of an Event of Default, which:
(i) the Chargor is obliged to do under or in relation to any
Transaction Document; or
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(ii) any Mortgagee or any Receiver is authorised or empowered to
do under any Transaction Document or any law but only at
the times that the Mortgagee or Receiver (if a Receiver had
been appointed) would have been able to do it.
(b) Without limitation, the Attorney may, following the occurrence of
an Event of Default, at any time:
(i) do anything which in the opinion of the Security Trustee or
Attorney is necessary or expedient to secure, preserve,
perfect, or give effect to the security contained in this
deed (including anything under clauses 13 or 14). For this
purpose, without limitation, he may execute any legal
mortgage, transfer, assignment and other assurance of any
of the Mortgaged Property in favour of any Mortgagee, any
purchaser or any nominee; and
(ii) delegate his powers (including delegation).
(c) No Attorney appointed under this deed may act inconsistently with
this deed or any other Transaction Document.
13. COMPLETION OF BLANK SECURITIES
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The Security Trustee, any Authorised Signatory of the Security Trustee,
any Receiver or any Attorney may complete any document which at any time
is executed by or on behalf of the Chargor and deposited with the
Security Trustee. It may complete it in favour of any Mortgagee, any
purchaser or any nominee. It may not do so inconsistently with this deed
or any other Transaction Document.
14. PERFORMANCE OF CHARGOR'S OBLIGATIONS
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If at any time the Chargor fails duly to perform any obligation in any
Transaction Document the Security Trustee or any person it authorises may
do anything which in its opinion is necessary or expedient to make good
or to attempt to make good that failure to its satisfaction.
15. STATUTORY POWERS
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15.1 POWERS IN AUGMENTATION
The powers conferred on a mortgagee by law:
(a) are in addition to the Powers conferred by this deed;
(b) (to the extent permitted by law and after prior consultation with
the Class A Mortgagees) may be exercised by the Security Trustee
immediately after the Charge becomes enforceable under this deed
and at any time subsequently; and
(c) are excluded or varied only so far as they are inconsistent with
the express terms of this deed or any Collateral Security.
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15.2 NOTICE NOT REQUIRED
To the extent permitted by law:
(a) the Chargor dispenses with any notice or lapse of time required by
any law before enforcing this deed or any Collateral Security or
exercising any Power; and
(b) subject to this deed, no Mortgagee is required to give notice to
any person before enforcement or exercise; and
(c) any law requiring the giving of notice or the compliance with a
procedure or the lapse of time before enforcement or exercise is
excluded.
16. APPLICATION OF MONEYS RECEIVED
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16.1 PRIORITIES
The proceeds from the enforcement of the Charge are to be applied in the
order of priority set out in the Series Notice for that purpose, subject
to any other priority which may be required by statute or law.
16.2 MONEYS ACTUALLY RECEIVED
In applying any moneys towards satisfaction of the Secured Moneys, the
Chargor will be credited only with the money available for that purpose
which is actually received by the relevant Mortgagee or, where the
Mortgagee is a US$ Noteholder, the Note Trustee. The credit will date
from the time of receipt.
16.3 AMOUNTS CONTINGENTLY DUE
If any of the Secured Moneys is contingently owing to any Mortgagee at
the time of a distribution of an amount under clause 16.1, the Security
Trustee may retain any of that amount. If it does, it shall place the
amount retained on short term interest bearing deposit until the relevant
Secured Moneys become actually due or cease to be contingently owing, or
it becomes reasonably apparent that the relevant contingency will not
occur and the Security Trustee shall then:
(a) pay to that Mortgagee, or (where the Mortgagee is a US$ Noteholder)
to the Note Trustee, the amount which becomes actually due to it;
and
(b) apply the balance of the amount retained (together with interest
earned on the deposit) in accordance with clause 16.1.
16.4 NOTICE OF SUBSEQUENT SECURITY INTERESTS
(a) If any Mortgagee receives actual or constructive notice of a
subsequent Security Interest affecting any of the Mortgaged
Property it may open a separate account in the name of the Chargor
in the books of that Mortgagee.
(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:
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(i) all advances and accommodation made available by that
Mortgagee to the Chargor;
(ii) all payments and repayments made by the Chargor to that
Mortgagee; and
(iii) moneys to be applied towards the Secured Moneys under
clause 16.1,
will be or will be taken to be debited or credited, as
appropriate, to the new account. Payments, repayments and other
moneys will only be applied in reduction of other Secured Moneys
owing to that Mortgagee to the extent that there is no debit
balance in that account.
16.5 SATISFACTION OF DEBTS
Without limiting clause 31, each Mortgagee shall accept the distribution
of moneys under this clause in full and final satisfaction of all Secured
Moneys owing to it, and any debt represented by any shortfall that exists
after any final distribution under this clause is extinguished.
16.6 PROPORTIONATE SHARING
(a) SHARING
Whenever any Mortgagee receives or recovers any money in respect of
any sum due from the Chargor under a Transaction Document in any
way (including without limitation by set-off) or through
distribution by the Security Trustee under this deed (the RECEIVED
MONEYS).
(i) the Mortgagee shall immediately notify the Security Trustee;
(ii) the Mortgagee shall immediately pay that money to the
Security Trustee (unless the Security Trustee directs
otherwise);
(iii) the Security Trustee shall treat the payment as if it were a
payment by the Chargor on account of all sums then payable to
the Mortgagees; and
(iv) (A) the payment or recovery will be taken to have been a
payment for the account of the Security Trustee and
not to the Mortgagee for its own account, and to that
extent the liability of the Chargor to the Mortgagee
will not be reduced by the recovery or payment, other
than to the extent of any distribution received by the
Mortgagee under paragraph (iii); and
(B) (without limiting sub-paragraph (A)) immediately on
the Mortgagee making or becoming liable to make a
payment under paragraph (ii), the Chargor shall
indemnify the Mortgagee against the payment to the
extent that (despite sub-paragraph (A)) its liability
has been discharged by the recovery or payment.
(b) NETTING
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
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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;
(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
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(b) is affected by express notice that the Dealing is unnecessary or
improper.
For the protection of any party to a Dealing or a person registering a
Dealing, the Dealing will be taken to be authorised by this deed and will
be valid accordingly, even if there is any irregularity or impropriety in
the Dealing.
In this clause a DEALING is:
(a) any payment or any delivery or handing over of an asset to; or
(b) any acquisition, incurring of Financial Indebtedness, receipt,
sale, lease, disposal or other dealing, by,
any Mortgagee or any Receiver or Attorney, or any person who purports or
is purported to be a Receiver or Attorney.
19.2 RECEIPT
The receipt of any Authorised Signatory of any Mortgagee or any Receiver
or Attorney (or person who purports, or is purported, to be a Receiver or
Attorney) for any moneys or assets payable to, or receivable or received
by, it exonerates the person paying those moneys or handing over that
asset from being concerned as to their application, or from being liable
or accountable for their loss or misapplication.
20. EXPENSES, INDEMNITY
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20.1 EXPENSES
In accordance with the Series Notice, the Chargor, shall reimburse each
Mortgagee or (where the Mortgagee is a US$ Noteholder) the Note Trustee,
Receiver and Attorney for its expenses in relation to:
(a) any consent, agreement, approval, waiver or amendment under or in
relation to the Transaction Documents; and
(i) any actual or contemplated enforcement of the Transaction
Documents or the actual or contemplated exercise,
preservation or consideration of any Powers under the
Transaction Documents or in relation to the Mortgaged
Property; and
(ii) any enquiry by a Government Agency concerning the Chargor or
the Mortgaged Property or a transaction or activity the
subject of the Transaction Documents, or in connection with
which, financial accommodation or funds raised under a
Transaction Document are used or provided.
This includes legal costs and expenses (charged at the usual commercial
rates of the legal services provider) expenses incurred in any review or
environmental audit, in reimbursing or indemnifying any Receiver or
Attorney or in retaining consultants to evaluate matters of material
concern to that 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;
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(b) both before and after judgment (as a separate and independent
obligation); and
(c) at the rate provided in clause 23.3,
except where the Transaction Document provides otherwise.
23.2 PAYMENT
The Chargor shall pay interest accrued under this clause on demand by the
Security Trustee and on each Payment Date. That interest is payable in
the currency of the unpaid amount on which it accrues.
23.3 RATE
The rate applicable under this clause is the sum of 2% per annum plus the
higher of the following, each as determined by the Security Trustee:
(a) the rate (if any) applicable to the amount immediately before the
due date; and
(b) the sum of 2% and the Bank Bill Rate.
24. CERTIFICATE AS TO AMOUNT OF SECURED MONEYS, ETC.
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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
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cause any relevant person to do, execute and deliver, all such acts and
notes as the Security Trustee may require to reinstate this Charge unless
the Security Trustee agrees otherwise in writing.
30. AMENDMENT
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30.1 APPROVAL OF TRUST MANAGER
The Security Trustee and the Chargor may, following the giving of notice
to each Designated Rating Agency, and with the written approval of the
Trust Manager and the Note Trustee, by way of supplemental deed alter,
add to or modify this deed (including this clause 30) so long as such
alteration, addition or modification is:
(a) to correct a manifest error or ambiguity or is of a formal,
technical or administrative nature only;
(b) in the opinion of the Security Trustee necessary to comply with the
provisions of any law or regulation or with the requirements of any
Government Authority;
(c) in the opinion of the Security Trustee appropriate or expedient as
a consequence of an amendment to any law or regulation or altered
requirements of any Government Agency (including, an alteration,
addition or modification which is in the opinion of the Security
Trustee appropriate or expedient as a consequence of the enactment
of a law or regulation or an amendment to any law or regulation or
ruling by the Commissioner or Deputy Commissioner of Taxation or
any governmental announcement or statement, in any case which has
or may have the effect of altering the manner or basis of taxation
of trusts generally or of trusts similar to the Trust); or
(d) in the opinion of the Security Trustee and in accordance with this
deed neither prejudicial nor likely to be prejudicial to the
interest of the Mortgagees as a whole or any class of 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
or clause 1.2, 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 and any reference to TRUSTEE
refers to the Chargor.
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
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adversely affects the powers of the Security Trustee, any receiver or
attorney in respect of the Charge or the Mortgaged Property.
31.5 ADVICE FROM PROFESSIONAL ADVISERS
Neither the Security Trustee nor the Chargor will be regarded as
negligent or in breach of trust to the extent to which the Security
Trustee or the Chargor (as the case may be) accepts and relies on an
opinion, advice or letter from a professional adviser (legal, financial,
audit or otherwise) which contains a dollar amount limitation on that
professional adviser's liability.
32. WAIVERS, REMEDIES CUMULATIVE
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(a) No failure to exercise and no delay in exercising any Power
operates as a waiver. No single or partial exercise of any Power
precludes any other or further exercise of that Power or any other
Power.
(b) The Powers in this deed and each Collateral Security are in
addition to, and do not exclude or limit, any right, power or
remedy provided by law.
33. CONSENTS AND OPINION
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Except where expressly stated any Mortgagee may give or withhold, or give
conditionally, approvals and consents, may be satisfied or unsatisfied,
may form opinions, and may exercise its Powers, at its absolute
discretion.
34. SEVERABILITY OF PROVISIONS
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(a) Any provision of this deed or any Collateral Security which is
prohibited or unenforceable in any jurisdiction is ineffective as
to that jurisdiction to the extent of the prohibition or
unenforceability. That does not invalidate the remaining provisions
of this deed or any Collateral Security nor affect the validity or
enforceability of that provision in any other jurisdiction.
(b) Without limiting the generality of paragraph (a):
(i) the definition of Secured Moneys does not include any
liability so long as and to the extent that the inclusion of
that liability would avoid, invalidate or render ineffective
clause 3 or 4 or the security constituted by this deed; and
(ii) the definition of the Mortgaged Property does not include any
asset so long as and to the extent that the inclusion of that
asset would invalidate, avoid or render ineffective clause 3
or 4 or the security constituted by this deed.
The Chargor shall use its reasonable endeavours to satisfy any
condition or obtain any Authorisation which relates to it as
trustee of the Trust, but not in respect of the Trust generally
which may be necessary to include that liability or asset validly
under the Charge or this deed.
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35. MORATORIUM LEGISLATION
- --------------------------------------------------------------------------------
To the full extent permitted by law all legislation which at any time
directly or indirectly:
(a) lessens, varies or affects in favour of the Chargor any obligation
under this deed or any Collateral Security; or
(b) delays, prevents or prejudicially affects the exercise by any
Mortgagee, any Receiver or Attorney, of any Power,
is excluded from this deed and any Collateral Security.
36. ASSIGNMENTS
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(a) Subject to the other Transaction Documents, a Mortgagee may assign
its rights under this deed and each Collateral Security. If this
deed or any Mortgagee's interest in it is assigned, the Secured
Moneys will include all actual and contingent liability of the
Chargor to the assignee, whether or not it was incurred before the
assignment or in contemplation of it.
(b) The Chargor may only assign or transfer any of its rights or
obligations under this deed or any Collateral Security in
accordance with the Transaction Documents and if prior notice has
been given to each Designated Rating Agency and such assignment or
transfer has no Adverse Effect on the ratings of the Notes.
37. NOTICES
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(a) (METHOD OF DELIVERY) Subject to paragraph (d) any notice, request,
certificate, approval, demand, consent or other communication to be
given under this deed must:
(i) except in the case of communications by email, be in writing
and signed by an Authorised Signatory of the party giving the
same; and
(ii) be:
(A) left at the address of the addressee;
(B) sent by prepaid ordinary post to the address of the
addressee;
(C) by facsimile to the facsimile number of the addressee;
or
(D) sent by email by an Authorised Signatory of the party
giving the same to the addressee's specified email
address 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:
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(i) where delivered in person, upon receipt;
(ii) where sent by post, on the third (seventh if outside
Australia) day after posting;
(iii) where sent by facsimile, on production by the dispatching
facsimile machine of a transmission report which indicates
that the facsimile was sent in its entirety to the facsimile
number of the recipient; and
(iv) where sent by email:
(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 US$ Noteholders such notice being given in accordance with the
Note Trust Deed) and to each Currency Swap Provider) in the best
interests of the Mortgagees.
(d) Any action taken by the Security Trustee under this deed or any
Collateral Security binds all the Mortgagees.
38.2 NO OBLIGATION TO INVESTIGATE AUTHORITY
(a) The Chargor need not enquire whether any Extraordinary Resolution
has been passed or as to the terms of any Extraordinary Resolution.
(b) As between the Chargor on the one hand and the Security Trustee and
the Mortgagees on the other, all action taken by the Security
Trustee under this deed or any Collateral Security will be taken to
be authorised.
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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 from lawyers, accountants, bankers and other
consultants and experts as it considers desirable to allow it to be
properly advised and informed in relation to its powers and
obligations. Before obtaining such advice or information (unless
the advice or information relates to the Trust Manager) before the
occurrence of an Event of Default, the Security Trustee shall first
inform the Trust Manager of the need for the advice or information
and obtain the approval of the Trust Manager, which approval shall
not be unreasonably withheld or delayed.
(b) Notwithstanding paragraph (a), where the Security Trustee employs a
Related Corporation as agent or attorney, the Security Trustee
shall be liable for all acts or omissions of the agent or attorney
done or omitted whilst acting in its capacity as such.
38.4 RELIANCE ON DOCUMENTS AND EXPERTS
The Security Trustee may rely on:
(a) any document (including any facsimile transmission, telegram or
telex) it reasonably believes to be genuine and correct including
any document given by the Chargor under clause 5.1(d) or by the
Trust Manager under clause 5.4; and
(b) advice and statements of lawyers, accountants, bankers and other
consultants and experts, whether or not retained by it.
38.5 NOTICE OF TRANSFER
The Security Trustee may treat each Mortgagee as the holder of the
Mortgagee's rights under the Transaction Documents until the Security
Trustee has received a substitution certificate or an instrument of
transfer in a form approved by the Security Trustee.
38.6 NOTICE OF DEFAULT
(a) The Security Trustee will be taken not to have knowledge of the
occurrence of an Event of Default unless the Security Trustee has
received notice from a Voting Mortgagee, a Currency Swap Provider,
the Trust Manager or the Chargor stating that an Event of Default
has occurred and describing it.
(b) If the Security Trustee receives notice of, or becomes aware of,
the occurrence of events or circumstances constituting an Event of
Default and that those events or circumstances do constitute an
Event of Default, the Security Trustee shall notify the Voting
Mortgagees, subject to clause 38.11(b). For the purposes of this
clause and the other provisions of this deed, the Security Trustee
will only be considered to have notice of or to be aware of any
thing if the Security Trustee has notice or awareness of that thing
by virtue of the actual notice or awareness of the officers of the
Security Trustee who have day to day responsibility for the
administration of the security trust established by this deed.
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38.7 SECURITY TRUSTEE AS MORTGAGEE
(a) The Security Trustee in its capacity as a Mortgagee has the same
rights and powers under the Transaction Documents as any other
Mortgagee. It may exercise them as if it were not acting as the
Security Trustee.
(b) The Security Trustee and its Associates may engage in any kind of
business with the Chargor, Trust Manager and any Mortgagee or other
person as if it were not the Security Trustee. It may receive
consideration for services in connection with any Transaction
Document and otherwise without having to account to the Mortgagees.
38.8 INDEMNITY TO SECURITY TRUSTEE
(a) Subject to the order of payment contained in the Series Notice and
clause 16 of this deed, the Chargor shall indemnify the Security
Trustee (to the extent not reimbursed by the Chargor) against any
loss, cost, liability, expense or damage the Security Trustee may
sustain or incur directly or indirectly under or in relation to the
Transaction Documents. This does not limit the Chargor's liability
under any other provision.
(b) The Chargor is not liable under this sub-clause for any of the
above to the extent that they arise from the Security Trustee's
fraud, negligence or wilful default.
38.9 INDEPENDENT INVESTIGATION
Each Mortgagee confirms that it has made and will continue to make,
independently and without reliance on the Security Trustee or any other
Mortgagee (including the Trust Manager) and based on the Transaction
Documents, agreements and information which it regards appropriate:
(a) its own investigations into the affairs of the Chargor; and
(b) its own analyses and decisions whether to take or not take action
under any Transaction Document.
38.10 NO MONITORING
The Security Trustee is not required to keep itself informed as to the
compliance by the Chargor or the Trust Manager with any Transaction
Document or any other document or agreement or to inspect any property or
book of the Chargor or the Trust Manager.
38.11 INFORMATION
(a) The Chargor authorises:
(i) the Security Trustee to provide any Voting Mortgagee (and
each Currency Swap Provider where the relevant Currency Swap
Provider is not a Voting Mortgagee); and
(ii) the Note Trustee to provide any US$ Noteholder,
with any information concerning the affairs, financial condition
or business of the Chargor which may come into the possession of
the Security Trustee or the Note Trustee (as the case may be). The
Security Trustee need not do so.
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(b) The Security Trustee is not obliged to disclose any information
relating to the Chargor if in the opinion of the Security Trustee
(on the basis of the advice of its legal advisers) disclosure would
or might breach a law or a duty of secrecy or confidence.
38.12 CONFLICTS
(a) Subject to clause 2.2, in the event of any dispute, ambiguity or
doubt as to the construction or enforceability of this deed or of
any other document or the Security Trustee's powers or obligations
under or in connection with this deed or the determination or
calculation or any amount or thing for the purpose of this deed or
the construction or validity of any direction from the Mortgagees,
the Security Trustee may:
(i) obtain and rely on advice from any person referred to in
clause 38.4(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
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retire at any time upon giving not less than three months' notice (or
such shorter period as the parties may agree) in writing to the Chargor,
the Trust Manager and each Designated Rating Agency without assigning any
reason and without being responsible for any costs occasioned by such
retirement.
39.2 REMOVAL
Subject to any Transaction Document to which the Security Trustee is a
party, the appointment of a successor Security Trustee as provided in
this clause, and prior notice being given to each Designated Rating
Agency, the Security Trustee may be removed:
(a) by the Trust Manager if any of the following occurs in relation to
the Security Trustee in its personal capacity:
(i) an Insolvency Event occurring in relation to the Security
Trustee in its personal capacity;
(ii) the cessation by the Security Trustee of its business;
(iii) failure of the Security Trustee to remedy within fourteen
days after written notice by the Trust Manager any material
breach of duty on the part of the Security Trustee; or
(iv) if without the prior written consent of the Trust Manager
there occurs:
(A) a change in 51% (or such other percentage the Trust
Manager may in its absolute discretion determine shall
constitute a change in the effective control of the
Security Trustee) of the shareholding of the Security
Trustee existing at the date of this deed (whether
occurring at one time or through a series of succession
of transfers or issues of shares);
(B) a change in the effective management of the Security
Trustee as existing at the date of this deed such that
the Security Trustee is no longer able to fulfil its
duties and obligations in relation to the Mortgaged
Property; or
(C) the establishment by any means of any trust under which
any third party becomes a beneficial owner of any of
the Security Trustee's rights under this deed; or
(b) at any time by an Extraordinary Resolution of the Voting
Mortgagees.
39.3 REPLACEMENT
(a) Upon notice of resignation or removal the Trust Manager shall have
the right to appoint a successor Security Trustee who has been
previously approved by an Extraordinary Resolution of the Voting
Mortgagees and who accepts the appointment.
(b) If no successor Security Trustee is appointed within 30 days after
notice, the retiring Security Trustee may on behalf of the
Mortgagees appoint a successor Security Trustee (other than the
Trust Manager or a Related Corporation of the Trust Manager) who
accepts the appointment.
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(c) On its appointment the successor Security Trustee will have all the
rights, powers and obligations of the retiring Security Trustee.
The retiring Security Trustee will be discharged from its rights,
powers and obligations.
(d) The retiring Security Trustee shall execute and deliver all
documents or agreements which are necessary or desirable in its
opinion to transfer to the successor Security Trustee this deed and
each Collateral Security or to effect the appointment of the
successor Security Trustee.
(e) After any retiring Security Trustee's resignation or removal, this
deed will continue in effect in respect of anything done or omitted
to be done by it while it was acting as Security Trustee.
40. MEETINGS OF MORTGAGEES
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40.1 LIMITATION ON SECURITY TRUSTEE'S POWERS
Except as provided for in this deed, the Security Trustee shall not
assent or give effect to any matter which a meeting of Voting Mortgagees
is empowered by Extraordinary Resolution to do, unless the Security
Trustee has previously been authorised to do so by an Extraordinary
Resolution of Voting Mortgagees.
40.2 CONVENING OF MEETINGS
(a) (GENERALLY)
(i) Subject to clause 40.17, the Security Trustee or the Trust
Manager at any time may convene a meeting of the Voting
Mortgagees.
(ii) Subject to clause 40.17, and subject to the Security Trustee
being adequately indemnified out of the property held on
trust under clause 2.1(b) against all costs and expenses
occasioned as a result, the Security Trustee shall convene a
meeting of the Voting Mortgagees if requested to do so:
(A) by the Chargor; or
(B) by Voting Mortgagees being holders of not less than 30%
of the then Secured Moneys.
(b) (TIME AND PLACE)
(i) Every meeting of Voting Mortgagees shall be held at such time
and place as the Security Trustee approves provided (subject
to sub-paragraph (ii) and clause 40.3(b)) that any such
meeting shall not be held until the US$ Noteholders or the
relevant Class of US$ Noteholders have, in accordance with
the Note Trust Deed, determined how to vote or how to direct
the Note Trustee to vote (as the case may be) in the meeting
of Voting Mortgagees.
(ii) Upon receiving notice of a meeting of the Voting Mortgagees,
the Note Trustee shall as soon as practicable notify the US$
Noteholders in accordance with the terms of the Note Trust
Deed.
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(iii) The proviso in sub-paragraph (i) shall not apply if the US$
Noteholders or the relevant Class of US$ Noteholders'
determination under sub-paragraph (i) is not made in
accordance with, and within the time specified in, the Note
Trust Deed.
(c) (CLASS OF MORTGAGEES) The provisions of this clause 40 regarding a
meeting of the Voting Mortgagees shall apply, mutatis mutandis, to
a meeting of any class of Voting Mortgagees.
40.3 NOTICE OF MEETINGS
(a) (PERIOD OF NOTICE) Subject to clause 40.3(b), at least 7 days'
notice 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 US$ Noteholders, as the case may be).
(c) (COPIES) A copy of the notice shall in all cases be given by the
party to this deed convening the meeting to the other parties to
this deed.
(d) (METHOD OF GIVING NOTICE) Notice of a meeting shall be given in the
manner provided in this deed.
(e) (CONTENTS OF A NOTICE) Notice of a meeting of Voting Mortgagees
shall specify, unless in any particular case the Security Trustee
otherwise agrees:
(i) the day, time and place of the proposed meeting; and
(ii) the nature of the resolutions to be proposed.
(f) (FAILURE TO GIVE NOTICE) The accidental omission to give notice to
or (where such notice was in fact sent) the non-receipt of notice
by any person entitled to receive it shall not invalidate the
proceedings at any meeting.
40.4 CHAIRMAN
A person (who need not be a Voting Mortgagee and who may be a
Representative of the Security Trustee) nominated in writing by the
Security Trustee shall be entitled to take the chair at every such
meeting but if no such nomination is made or if at any meeting the person
nominated is not present within 15 minutes after the time appointed for
the holding of that meeting the Voting Mortgagees present shall choose
one of their number to be chairman.
40.5 QUORUM
At any such meeting any two or more persons present in person holding, or
being Representatives holding or representing, in 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
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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
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
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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 that the Note
Trustee shall represent each US$ Noteholder who has directed
the Note Trustee to vote on its behalf under the Note Trust
Deed; and
(ii) on a poll, every person who is present shall have one vote
for each US$10,000 or, in the case of Notes denominated in a
currency other than US$, the equivalent of US$10,000 set out
in the Series Notice, of the Secured Moneys that he holds or
in respect of which he is a Representative. Any person
entitled to more than one vote need not use or cast all of
the votes to which he is entitled in the same way.
(f) (EVIDENCE) A certificate from the Note Trustee to the Security
Trustee that the Note Trustee is entitled to vote on behalf of a
US$ Noteholder will be satisfactory evidence to the Security
Trustee that the Note Trustee is so entitled to vote.
For the purpose of determining the amount of Secured Moneys at any time,
the Security Trustee may rely on the Accounts of the Chargor and any
information provided by the Auditor of the Chargor. Clause 24 will apply
to any determination of Secured Moneys for the definition of VOTING
MORTGAGEE and this clause 40.
40.8 RIGHT TO ATTEND AND SPEAK
The Chargor, the Trust Manager, the Security Trustee and each Beneficiary
(through their respective Representatives) and their respective financial
and legal advisers shall be entitled to attend and speak at any meeting
of Voting Mortgagees (and, to the extent that they are also a Voting
Mortgagee, to vote at that meeting). No person shall otherwise be
entitled to attend or vote at any meeting of the Voting Mortgagees or to
join with others in requesting the convening of such a meeting unless he
is a Voting Mortgagee or a Representative.
40.9 APPOINTMENT OF PROXIES
(a) (REQUIREMENTS) Each appointment of a proxy shall be in writing and
shall be deposited at the registered office of the Security Trustee
or in such other place as the Security Trustee shall designate or
approve, together with proof satisfactory to the Security Trustee
of its due execution (if so required by the Security Trustee), not
less than 24 hours before the time appointed for holding the
meeting or adjourned meeting at which the named proxy proposes to
vote, and in default, the appointment of proxy shall not be treated
as valid unless the chairman of the meeting decides otherwise
before that meeting or adjourned meeting proceeds to business. A
notarially certified copy proof of due execution as specified
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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 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
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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 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
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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.
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,
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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
(ii) subject to paragraph (c), if an Extraordinary Resolution of
Voting Mortgagees determines that the Act should or should
not occur, the Extraordinary Resolution will override any
determination by the Noteholder Mortgagees in relation to any
such clause.
(c) Except where in so doing the Security Trustee engages in any fraud,
negligence or wilful default, the Security Trustee shall not be
liable to any Mortgagee for acting, or not acting, on the
directions of the Noteholder Mortgagees, even if the Security
Trustee is actually aware that the Noteholder Mortgagees have
unreasonably withheld their consent in breach of sub-paragraph
(b)(i)(A).
41. AUTHORISED SIGNATORIES
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The Chargor irrevocably authorises each Mortgagee to rely on a
certificate by a person purporting to be its director or secretary as to
the identity and signatures of its Authorised Signatories. The Chargor
warrants that those persons have been authorised to give notices and
communications under or in connection with the Transaction Documents.
42. GOVERNING LAW AND JURISDICTION
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This deed is governed by the laws of New South Wales. The Chargor submits
to the non-exclusive jurisdiction of courts exercising jurisdiction
there.
43. COUNTERPARTS
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This deed may be executed in any number of counterparts. All counterparts
together will be taken to constitute one instrument.
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44. SET-OFF
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No Mortgagee may apply any credit balance in any currency (whether or not
matured) in any account comprised in the Mortgaged Property towards
satisfaction of any sum then due and payable to that Mortgagee under or
in relation to any Transaction Document.
45. ACKNOWLEDGEMENT BY CHARGOR
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The Chargor confirms that:
(a) it has not entered into any Transaction Document in reliance on, or
as a result of, any conduct of any kind of or on behalf of any
Mortgagee or any Related Corporation of any Mortgagee (including
any advice, warranty, representation or undertaking); and
(b) no Mortgagee nor any Related Corporation of any Mortgagee is
obliged to do anything (including disclose anything or give
advice),
except as expressly set out in the Transaction Documents or in writing
duly signed by or on behalf of the Mortgagee or Related Corporation.
46. INFORMATION MEMORANDUM
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The Security Trustee has no responsibility for any statement or
information in or omission from any information memorandum,
advertisement, circular or other document issued by or on behalf of the
Chargor or Trust Manager, including in connection with the issue of
Notes. Neither the Chargor nor the Trust Manager may publish or permit to
be published any such document in connection with the offer of Notes or
an invitation for subscriptions for Notes containing any statement which
makes reference to the Security Trustee without the prior written consent
of the Security Trustee, which consent must not be unreasonably withheld.
In considering whether to give its consent, the Security Trustee is not
required to take into account the interests of the other Mortgagees.
47. SECURITY TRUSTEE'S LIMITED LIABILITY
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Without prejudice to any indemnity allowed by law or elsewhere in this
deed given to the Security Trustee, it is expressly declared as follows.
47.1 RELIANCE ON CERTIFICATES
The Security Trustee shall not incur any liability in respect of any
action taken or thing suffered by it in reliance on any notice,
resolution, direction, consent, certificate, receipt, affidavit,
statement, valuation report or other document (including any of the above
submitted or provided by the Trust Manager, a Mortgagee, the Note
Trustee, an Approved Seller or a Servicer) which it has no reason to
believe is not genuine, signed by the proper parties and with appropriate
authority.
In preparing any notice, certificate, advice or proposal the Security
Trustee shall be entitled to assume that each person under any Authorised
Investment, Support Facility, Loan, Loan Security, Related Securities,
other Transaction Document or any other deed, agreement or arrangement
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Security Trust Deed Allens Arthur Robinson
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incidental to any of the above or to any Trust, will perform their
obligations under those documents in full by the due date and otherwise
in accordance with their terms.
47.2 SECURITY TRUSTEE MAY ASSUME SIGNED DOCUMENTS TO BE GENUINE
(a) (RELIANCE ON DOCUMENTS) Subject to sub-clause (b):
(i) (SECURITY TRUSTEE MAY ASSUME AUTHENTICITY) the Security
Trustee shall be entitled to assume the authenticity and
validity of any signature on any application, request or
other instrument or document delivered to the Security
Trustee (other than a document executed or purporting to be
executed by or on behalf of the Note Trustee, a Servicer, an
Approved Seller or the Trust Manager, as to which clause 47.3
shall apply);
(ii) (SECURITY TRUSTEE NOT LIABLE FOR LOSS ON FORGERIES) the
Security Trustee shall not be in any way liable to make good
out of its own resources any loss incurred by any person in
the event of any signature on any document being forged or
otherwise failing to bind the person whose signature it
purports to be or the person on whose behalf it purports to
be executed.
(b) (LIMITATIONS ON ASSUMPTIONS WHERE ACTUAL KNOWLEDGE) The Security
Trustee shall not be entitled to the benefit of paragraph (a) in
relation to an application, request or other instrument or document
if it was actually aware that the signature was not genuine.
47.3 SECURITY TRUSTEE'S RELIANCE ON TRUST MANAGER, APPROVED SELLER, NOTE
TRUSTEE OR SERVICER
(a) (AUTHORISED SIGNATORIES ARE SUFFICIENT EVIDENCE) Whenever any
certificate, notice, proposal, direction, instruction or other
communication is to be given by the Trust Manager, an Approved
Seller, the Note Trustee or a Servicer to the Security Trustee, the
Security Trustee may accept as sufficient evidence as to the form
and content of a document unless it has reason to believe that the
relevant document was not signed on behalf of the Trust Manager,
the Approved Seller, the Note Trustee or the Servicer (as the case
may be) or by any Authorised Signatory of the Trust Manager, the
Approved Seller, the Note Trustee or the Servicer (as the case may
be).
(b) (SECURITY TRUSTEE NOT LIABLE FOR LOSS) The Security Trustee shall
not be responsible for any loss arising from any act, neglect,
mistake or discrepancy of the Trust Manager, an Approved Seller,
the Note Trustee or a Servicer or any officer, employee, agent or
delegate of the Trust Manager, the Approved Seller, the Note
Trustee or the Servicer in preparing any such document or in
compiling, verifying or calculating any matter or information
contained in any such document, if the officers of the Security
Trustee responsible for the administration of the Trust are not
actually aware, or should not reasonably have been aware, that such
document is not genuine and correct, whether or not an error in any
such information, document, form or list is reproduced by the
Security Trustee in any step taken by it.
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Security Trust Deed Allens Arthur Robinson
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47.4 COMPLIANCE WITH LAWS
The Security Trustee shall not incur any liability to anyone in respect
of any failure to perform or to do any act or thing which by reason of
any provision of any relevant present or future law of any place or any
ordinance, rule, regulation or by law or of any decree, order or judgment
of any competent court or other tribunal, the Security Trustee shall be
hindered, prevented or forbidden from doing or performing.
47.5 TAXES
The Security Trustee shall not be liable to account to any person for any
payments made in good faith to any duly empowered Government Agency of
any Australian Jurisdiction or any other place for Taxes or other charges
on the Trust or on any Notes or with respect to any transaction under or
arising from this deed or any other Transaction Document notwithstanding
that any such payment ought or need not have been made.
47.6 RELIANCE ON EXPERTS
The Security Trustee may act on the opinion or statement or certificate
or advice of or information obtained from the Note Trustee or a Servicer,
barristers or solicitors (whether instructed by the Security Trustee or
not), bankers, accountants, brokers, valuers and other persons believed
by it in good faith to be expert or properly informed in relation to the
matters on which they are consulted and the Security Trustee shall not be
liable for anything done or suffered by it in good faith in reliance on
such opinion, statement, certificate, advice or information.
47.7 OVERSIGHTS OF OTHERS
Subject to this deed, the Security Trustee shall not be responsible for
any act, omission, misconduct, mistake, oversight, error of judgment,
forgetfulness or want of prudence on the part of any person or agent
appointed by the Security Trustee and on whom the Security Trustee is
entitled to rely under this deed (other than a Related Corporation),
attorney, banker, receiver, barrister, solicitor, agent or other person
acting as agent or advisor to the Security Trustee.
47.8 POWERS, AUTHORITIES AND DISCRETIONS
Except as otherwise provided in this deed and in the absence of fraud,
negligence or wilful default, the Security Trustee shall not be in any
way responsible for any loss (whether consequential or otherwise), costs,
damages or inconvenience that may result from the exercise or
non-exercise of any powers, authorities and discretions vested in it.
47.9 IMPOSSIBILITY OR IMPRACTICABILITY
If for any reason whatsoever it becomes impossible or impracticable to
carry out any or all of the provisions of this deed or any other
Transaction Document the Security Trustee shall not be under any
liability and, except to the extent of their own fraud, negligence or
wilful default, nor shall either of them incur any liability by reason of
any error of law or any matter or thing done or suffered or omitted to be
done in good faith by either of them or their respective officers,
employees, agents or delegates.
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47.10 NO LIABILITY EXCEPT FOR NEGLIGENCE ETC.
In the absence of fraud, negligence or wilful default on its part or on
the part of any of its officers, employees, agents or delegates for whom
it is liable under this deed, the Security Trustee shall not be liable
personally in the event of failure to pay moneys on the due date for
payment to any Noteholder, any Beneficiary, the Trust Manager, the
Chargor or any other person or for any loss howsoever caused in respect
of the Trust or to any Noteholder, any Beneficiary, the Trust Manager,
the Chargor or other person.
47.11 LEGAL AND OTHER PROCEEDINGS
(a) (INDEMNITY FOR LEGAL COSTS) The Security Trustee shall be
indemnified out of the Trust for all legal costs and disbursements
and all other costs, disbursements, outgoings and expenses incurred
by the Security Trustee in connection with:
(i) the enforcement or contemplated enforcement of, or
preservation of rights under; and
(ii) without limiting the generality of paragraph (i) above, the
initiation, defence, carriage and settlement of any action,
suit, proceeding or dispute in respect of;
this deed or any other Transaction Document or otherwise under or
in respect of the Trust provided that the enforcement,
contemplated enforcement or preservation by the Security Trustee
of the rights referred to in sub-paragraph (i) or the court
proceedings referred to in paragraph (ii) (other than in each case
the defence of any action, suit, proceeding or dispute brought
against the Security Trustee), and the basis of incurring any of
those costs, disbursements, outgoings and expenses by the Security
Trustee:
(iii) has been approved in advance by an Extraordinary Resolution
of the Voting Mortgagees; or
(iv) the Security Trustee reasonably considers the incurring of
those costs, disbursements, outgoings and expenses to be
necessary to protect the Security Trustee against potential
personal liability.
(b) (DEFENCE OF PROCEEDINGS ALLEGING NEGLIGENCE ETC.) The Security
Trustee shall be entitled to claim in respect of the above
indemnity from the Trust for its expenses and liabilities incurred
in defending any action, suit, proceeding or dispute in which
fraud, negligence or wilful default is alleged or claimed against
it, but on the same being proved, accepted or admitted by it, it
shall from its personal assets immediately repay to the Trust the
amount previously paid by the Trust to it in respect of that
indemnity.
47.12 NO LIABILITY EXCEPT FOR NEGLIGENCE ETC.
In the absence of fraud, negligence or wilful default on the Security
Trustee's part or on the part of any of its officers or employees, or any
agents or delegate, sub-agent, sub-delegate employed by the Security
Trustee in accordance with this deed (except where this deed provides
that the Security Trustee is liable for the acts or omissions of any such
person) to carry out any transactions contemplated by this deed, the
Security Trustee shall not be liable personally for any losses, costs,
liabilities or claims arising from the failure to pay moneys on the due
date for payment to any
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Mortgagee or any other person or for any loss howsoever caused in respect
of any of the Trust or to any Mortgagee or other person.
47.13 FURTHER LIMITATIONS ON SECURITY TRUSTEE'S LIABILITY
Subject to clause 47.3, the Security Trustee shall not be liable:
(a) (FOR LOSS ON ITS DISCRETION) for any losses, costs, liabilities or
expenses arising out of the exercise or non-exercise of its
discretion or for any other act or omission on its part under this
deed, any other Transaction Document or any other document except
where the exercise or non-exercise of any discretion, or any act or
omission, by the Security Trustee, or any of its officers or
employees, or any agent, delegate, sub-agent, sub-delegate employed
by the Security Trustee in accordance with this deed (and where
this deed provides that the Security Trustee is liable for the acts
or omissions of any such person) to carry out any transactions
contemplated by this deed, constitutes fraud, negligence or wilful
default;
(b) (FOR LOSS ON DIRECTION) for any losses, costs, damages or expenses
caused by its acting (in circumstances where this deed requires it
to act or contemplates that it may so act) on any instruction or
direction given to it by:
(i) any Mortgagee under this deed, any other Transaction Document
or any other document;
(ii) by any person under a Support Facility, Loan or Loan
Security; or
(iii) an Obligor,
except to the extent that it is caused by the fraud, negligence or
wilful default of the Security Trustee, or any of its officers or
employees, or an agent or delegate employed by the Security
Trustee in accordance with this deed to carry out any transactions
contemplated by this deed;
(c) (FOR CERTAIN DEFAULTS) for any Trust Manager's Default or Servicer
Transfer Event;
(d) (FAILURE BY PAYING AGENT) without limiting the Security Trustee's
obligations or powers under the Transaction Documents, for any act,
omission or default of a Paying Agent in relation to its
obligations under the Transaction Documents;
(e) (FAILURE BY NOTE TRUSTEE) without limiting the Security Trustee's
obligations or powers under the Transaction Documents, for any act,
omission or default of the Note Trustee in relation to its
obligations under the Transaction Documents;
(f) (FAILURE BY CALCULATION AGENT) without limiting the Security
Trustee's obligations or powers under the Transaction Documents,
for any act, omission or default of the Calculation Agent in
relation to its obligations under the Transaction Documents;
(g) (FAILURE BY SERVICER) without limiting the Security Trustee's
obligations or powers under the Transaction Documents, for any act,
omission or default of the Servicer in relation to its obligations
under the Transactions Documents;
(h) (FOR FAILURE TO CARRY OUT AN AGREEMENT) for the failure of a person
to carry out an agreement with the Security Trustee in connection
with the Trust;
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Security Trust Deed Allens Arthur Robinson
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(i) (FOR FAILURE TO CHECK CALCULATIONS, ETC) for any losses, costs,
liabilities or expenses caused by the Security Trustee's failure to
check any calculation, information, document, form or list supplied
or purported to be supplied to it by the Trust Manager, Note
Trustee or the Servicer,
except, in the case of paragraphs (c) to (i) (inclusive), to the extent
that it is caused by the fraud, negligence or wilful default of the
Security Trustee.
Nothing in this clause 47.13 alone (but without limiting the operation of
any other clause of this deed) shall imply a duty on the Security Trustee
to supervise the Trust Manager or the Note Trustee in the performance of
the Trust Manager's or the Note Trustee's functions and duties, and the
exercise by the Trust Manager or the Note Trustee of its discretions.
47.14 CONFLICTS
(a) (NO CONFLICT) Nothing in this deed shall prevent the Security
Trustee, the Chargor, 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.
(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.
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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
- --------------------------------- ---------------------------------------
Print Name Print Name
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Security Trust Deed Allens Arthur Robinson
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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
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