[▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇]
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ GROUP
SECURITY TRUST DEED
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PERPETUAL TRUSTEES CONSOLIDATED LIMITED
(Chargor)
P.T. LIMITED
(Security Trustee)
WILMINGTON TRUST COMPANY
(Note Trustee)
CRUSADE MANAGEMENT LIMITED
(Manager)
Crusade Global Trust No. 1 of 2001
▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇
The Chifley Tower
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Tel ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Fax ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
(C) Copyright ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ 2001
SECURITY TRUST DEED ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇
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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 2
1.1 Definitions 2
1.2 Master Trust Deed definitions and Trust Document amendments 6
1.3 Interpretation 7
1.4 Determination, statement and certificate sufficient evidence 7
1.5 Document or agreement 7
1.6 Rights and obligations of Mortgagees 7
1.7 Transaction Document 8
1.8 Chargor as trustee 8
1.9 Knowledge of the Chargor 8
1.10 Knowledge of Security Trustee 8
2. APPOINTMENT OF SECURITY TRUSTEE 8
2.1 The Security Trustee 8
2.2 Resolution of Conflicts 9
2.3 Duration of Trust 9
2.4 Covenant 10
3. CHARGE 10
3.1 Charge 10
3.2 Security 10
3.3 Prospective liability 10
4. NATURE OF CHARGE 10
4.1 Priority 10
4.2 Nature of Charge 10
4.3 Dealing with Mortgaged Property 11
4.4 Crystallisation 11
4.5 De-crystallisation 12
5. COVENANTS AND WARRANTIES 12
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5.1 Covenant 12
5.2 Negative covenants 13
5.3 Warranty 13
5.4 Manager's undertakings 14
6. FURTHER ASSURANCES 15
6.1 Further assurances 15
7. NOTE TRUSTEE 15
7.1 Capacity 15
7.2 Exercise of rights 15
7.3 Instructions or directions 15
7.4 Payments 15
7.5 Notices 16
8. EVENTS OF DEFAULT 16
8.1 Events of Default 16
8.2 Rights of the Security Trustee upon Event of Default 17
8.3 Notify Events of Default 17
9. ENFORCEMENT 18
9.1 Power to enforce 18
9.2 No obligation to enforce 18
9.3 Obligation to convene meeting 18
9.4 Security Trustee to act in accordance with directions 18
9.5 Security Trustee must receive indemnity 19
9.6 Limitation on rights of Mortgagees 20
9.7 Immaterial waivers 20
9.8 Acts pursuant to resolutions 20
9.9 Overriding provision 21
10. APPOINTMENT OF RECEIVER 21
10.1 Appointment 21
10.2 Agent of Chargor 21
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10.3 Receiver's powers 22
10.4 Receiver appointed after commencement of winding up 24
10.5 Powers exercisable by the Security Trustee 24
10.6 Withdrawal 24
11. REMUNERATION OF SECURITY TRUSTEE 25
11.1 Costs 25
11.2 Fee 25
11.3 Cessation of Fee 25
12. POWER OF ATTORNEY 25
13. COMPLETION OF BLANK SECURITIES 26
14. PERFORMANCE OF ▇▇▇▇▇▇▇'S OBLIGATIONS 26
15. STATUTORY POWERS 26
15.1 Powers in augmentation 26
15.2 Notice not required 27
16. APPLICATION OF MONEYS RECEIVED 27
16.1 Priorities 27
16.2 Moneys actually received 28
16.3 Amounts contingently due 29
16.4 Notice of subsequent Security Interests 29
16.5 Satisfaction of debts 29
16.6 Payments into US$ Account 30
16.7 Payments out of US$ Account 30
16.8 Excluded amounts 30
16.9 Proportionate Sharing 31
17. OTHER SECURITY INTERESTS OVER MORTGAGED PROPERTY 31
18. PROTECTION OF MORTGAGEES, RECEIVER AND ATTORNEY 32
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19. PROTECTION OF THIRD PARTIES 32
19.1 No enquiry 32
19.2 Receipt 33
20. EXPENSES, INDEMNITY 33
20.1 Expenses 33
20.2 Indemnity 33
21. CURRENCY INDEMNITY 34
22. STAMP DUTIES 34
23. INTEREST ON OVERDUE AMOUNTS 34
23.1 Accrual 34
23.2 Payment 35
23.3 Rate 35
24. CERTIFICATE AS TO AMOUNT OF SECURED MONEYS, ETC. 35
25. SURVIVAL OF REPRESENTATIONS 35
26. INDEMNITY AND REIMBURSEMENT OBLIGATIONS 35
27. CONTINUING SECURITY 36
28. OTHER SECURITIES 36
29. DISCHARGE OF THE CHARGE 36
29.1 Release 36
29.2 Contingent liabilities 37
29.3 Charge reinstated 37
30. AMENDMENT 37
30.1 Approval of Manager 37
30.2 Extraordinary Resolution of Voting Mortgagees 38
30.3 Distribution of amendments 38
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31. ▇▇▇▇▇▇▇'S LIABILITY 38
31.1 Limitation of liability 38
31.2 Rights against Mortgaged Property preserved 39
31.3 Obligation Express 40
32. ▇▇▇▇▇▇▇, REMEDIES CUMULATIVE 40
33. CONSENTS AND OPINION 40
34. SEVERABILITY OF PROVISIONS 40
35. MORATORIUM LEGISLATION 41
36. ASSIGNMENTS 41
37. NOTICES 41
38. RELATIONSHIP OF MORTGAGEES TO SECURITY TRUSTEE 42
38.1 Instructions; extent of discretion 42
38.2 No obligation to investigate authority 42
38.3 Delegation 42
38.4 Reliance on documents and experts 43
38.5 Notice of transfer 43
38.6 Notice of default 43
38.7 Security Trustee as Mortgagee 43
38.8 Indemnity to Security Trustee 44
38.9 Independent investigation 46
38.10 No monitoring 46
38.11 Information 46
38.12 Conflicts 46
38.13 No Liability 47
39. RETIREMENT AND REMOVAL OF SECURITY TRUSTEE 47
39.1 Retirement 47
39.2 Removal 47
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39.3 Replacement 48
39.4 Rating Agencies Approval 49
40. MEETINGS OF MORTGAGEES 49
40.1 Limitation on Security Trustee's powers 49
40.2 Convening of meetings 49
40.3 Notice of meetings 50
40.4 Chairman 50
40.5 Quorum 50
40.6 Adjournment 51
40.7 Voting procedure 51
40.8 Right to attend and speak 52
40.9 Appointment of Proxies 53
40.10 Corporate Representatives 53
40.11 Rights of Representatives 53
40.12 Extraordinary Resolutions 54
40.13 Extraordinary Resolution binding on Mortgagees 55
40.14 Minutes and records 55
40.15 Written resolutions 56
40.16 Further procedures for meetings 56
40.17 Note Trustee rights 56
41. AUTHORISED SIGNATORIES 57
42. GOVERNING LAW AND JURISDICTION 57
43. COUNTERPARTS 57
44. SET-OFF 58
45. ACKNOWLEDGEMENT BY ▇▇▇▇▇▇▇ 58
46. INFORMATION MEMORANDUM 58
47. SECURITY TRUSTEE'S LIMITED LIABILITY 58
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47.1 Reliance on certificate 58
47.2 Security Trustee's reliance on Manager, Note
Trustee or Servicer 59
47.3 Compliance with laws 59
47.4 Reliance on experts 59
47.5 Oversights of others 60
47.6 Powers, authorities and discretions 60
47.7 Impossibility or impracticability 60
47.8 Legal and other proceedings 60
47.9 No liability except for negligence etc. 61
47.10 Further limitations on Security Trustee's
liability 61
47.11 Conflicts 63
47.12 Information 63
47.13 Investigation by Security Trustee 63
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DATE 2001
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PARTIES
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1. PERPETUAL TRUSTEES CONSOLIDATED LIMITED (ABN 81 004 029 841) of
Level 3, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ in its
capacity as trustee of the Crusade Global Trust No. 1 of 2001
(the CHARGOR);
2. P.T. LIMITED (ABN 67 004 454 666) of Level 7, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ 2000 (the SECURITY TRUSTEE);
3. CRUSADE MANAGEMENT LIMITED (ABN 90 072 715 916) of ▇-▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ (the MANAGER);
and
4. WILMINGTON TRUST COMPANY of ▇▇▇▇▇▇ Square North, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇ (the NOTE TRUSTEE, which
expression shall, wherever the context requires, include any
other person or company for the time being a note trustee under
the Note Trust Deed).
RECITALS
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A The Chargor is the trustee, and the 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
(other than Excluded Assets) to secure the due and punctual
performance of the obligations of the Chargor under the Trust
Documents and the payment in full of the Secured Moneys to the
Mortgagees and to charge the Excluded Assets to secure the due
and punctual payment in full of the Secured Money (other than
Excluded Advances).
C The Security Trustee enters into this deed for itself and as
trustee for each other Mortgagee.
D The Note Trustee enters into this deed for itself and as trustee
for each Noteholder.
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IT IS AGREED as follows.
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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.
▇▇▇▇▇▇▇'S INDEMNITY means:
(a) the Chargor's right of indemnity under the Master Trust Deed from
the Trust Assets in respect of liabilities incurred by the
Chargor acting in its capacity as trustee of the Trust; and
(b) all equitable liens and other Security Interests which the
Chargor has over the Trust Assets.
CHARGE RELEASE DATE means, subject to clause 29.3, the date the
Security Trustee discharges the Charge and this deed under clause 29.1.
CLASS A TOTAL INVESTED AMOUNT means, at any time, the sum of:
(a) the aggregate Invested Amounts of all US$ Notes; and
(b) the US$ Equivalent of the aggregate Invested Amount of the Class
A-3 Notes,
at that time.
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.
EXCLUDED ADVANCE means the provision or obtaining of funds by way of
financial accommodation, on or after 1 July 2001, by means of:
(a) a loan that is:
(i) an advance of money;
(ii) the payment of money for or on account of or on behalf of,
or at the request of, any person;
(iii) a forbearance to require the payment of money owing on any
account; or
(iv) any transaction in any form that in substance effects a
loan of money; or
(b) a bill facility that is one or more agreements, understandings or
arrangements because of which a bill of exchange or promissory
note:
(i) is drawn, accepted, endorsed or made; and
(ii) is held, negotiated or discounted to obtain funds,
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whether or not the funds are obtained from the person who
draws, accepts, endorses or makes the bill of exchange or
promissory note or from a person who is a party to any such
agreement, understanding or arrangement, but does not include
any such financial accommodation which the Trust Manager
agrees is not an Excluded Advance and the inclusion of which,
as an Excluded Advance, would not result in the downgrade or
withdrawal of ratings of any Notes.
EXCLUDED ASSETS means, at any time, any Trust Assets which, at that
time, were or would be regarded, under the applicable stamp duty laws
of Queensland or Victoria as located in either Queensland or Victoria
respectively.
EXTRAORDINARY RESOLUTION means in relation to the Voting Mortgagees:
(c) 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 three
quarters of the votes capable of being cast at that meeting by
Voting Mortgagees present in person or by proxy; or
(d) a resolution in writing pursuant to clause 40.15 signed by all
the Voting Mortgagees, and
otherwise has the meaning given to it in the Master Trust Deed.
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 dated 14 March 1998
between the Chargor as Trustee, the Manager and St. ▇▇▇▇▇▇.
MORTGAGED PROPERTY means the property and rights mortgaged or charged
by this deed or any Collateral Security.
MORTGAGEE means:
(a) the Security Trustee in relation to its rights (held in its own
right or for the benefit of other Mortgagees) under this deed;
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(b) any Class A Noteholder, in relation to its rights under the Class
A Notes held by it;
(c) any Class B Noteholder in relation to its rights under the Class
B Notes held by it;
(d) any Class C Noteholder in relation to its rights under the Class
C Notes held by it;
(e) any Approved Seller in relation to any relevant Accrued Interest
Adjustment and Redraws;
(f) the Manager in relation to its rights as Manager under the Trust
Documents for the Trust;
(g) the Servicer in relation to its rights as Servicer under the
Trust Documents for the Trust;
(h) any Support Facility Provider in relation to its rights under
each Support Facility for the Trust (other than a Mortgage
Insurance Policy) to which it is a party;
(i) the Note Trustee in relation to its rights (held on its own right
or for the benefit of any US$ Noteholders) under the Transaction
Documents;
(j) each Paying Agent in relation to its rights under the Transaction
Documents; or
(k) each Note Manager in relation to its rights under the Trust
Documents.
NOTEHOLDER MORTGAGEES means, together:
(a) the Note Trustee on behalf of the US$ Noteholders save that where
the Note Trustee has become bound to take steps and/or proceed
hereunder and fails to do so within a reasonable time and such
failure is continuing, the US$ Noteholders and then only if and
to the extent permitted by Australian law; and
(b) each A$ Noteholder.
NOTICE OF CREATION OF TRUST means the Notice of Creation of Trust dated
on or about the date of this deed issued under the Master Trust Deed in
relation to the Trust.
POWER means a power, right, authority, discretion or remedy which is
conferred on the Security Trustee, a Mortgagee or a Receiver or
Attorney:
(a) by this deed or any Collateral Security; or
(b) by law in relation to this deed or any Collateral Security.
RECEIVER means a receiver or receiver and manager appointed under this
deed or any Collateral Security.
RELEVANT TRUST means a trust other than the Trust, constituted under
the Master Trust Deed and the Supplementary Terms Notice for the Trust,
of which the Chargor is a trustee.
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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
Noteholders in accordance within 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 that Mortgagee.
SECURED MONEYS means all money which the Chargor (whether alone or with
another person) is or at any time may become actually or contingently
liable to pay to or for the account of any Mortgagee (whether alone or
with another person) for any reason whatever under or in connection
with a Trust Document.
Additionally:
(a) 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 Trust Document, or as a result of any breach of or default
under or in connection with, a Trust Document; and
(b) where the Chargor would have been liable but for its Liquidation,
it will be taken still to be liable.
SETTLOR means ▇▇▇▇▇▇ ▇▇▇▇▇.
ST. ▇▇▇▇▇▇ means St. ▇▇▇▇▇▇ Bank Limited (ABN 92 055 513 070) of ▇-▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
SUPPLEMENTARY TERMS NOTICE means the Supplementary Terms Notice dated
on or after the date of this deed relating to the Trust.
TRUST means the trust known as the Crusade Global Trust No. 1 of 2001
established under the Notice of Creation of Trust, the Master Trust
Deed and the Supplementary Terms 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 Trust Documents in respect of the Trust and under the Collection
Account, the Liquidity Account and the US$ Account.
TRUST DOCUMENT means each of:
(a) this deed;
(b) the Master Trust Deed;
(c) the Supplementary Terms Notice;
(d) the Notice of Creation of Trust;
(e) the Servicing Agreement in respect of the Trust;
(f) the Custodian Agreement in respect of the Trust;
(g) each Note;
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(h) each Support Facility for the Trust;
(i) the Agency Agreement;
(j) the Note Trust Deed; or
(k) the Subscription Agreements.
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 ▇▇▇▇▇▇ ▇ living on the
date of this deed; and
(c) the day after the Charge Release Date.
VOTING MORTGAGEE means:
(a) with respect only to the enforcement of the security under this
deed, for so long as the Secured Moneys of the US$ Noteholders
and the A$ Noteholders represent 75% or more of total Secured
Moneys, the Noteholder Mortgagees alone; and
(b) at any other time (subject to clause 40.17):
(i) the Note Trustee, acting on behalf of the US$ Noteholders
under the Note Trust Deed and clause 7 and, if the Note
Trustee has become bound to take steps and/or to proceed
hereunder and fails to do so within a reasonable time and
such failure is continuing, the US$ Noteholders and then
only if and to the extent the US$ Noteholders are able to
do so under Australian law; and
(ii) each other Mortgagee (other than a US$ Noteholder).
1.2 MASTER TRUST DEED DEFINITIONS AND TRUST DOCUMENT
AMENDMENTS
(a) Words and expressions which are defined in the Master Trust Deed
(as amended by the Supplementary Terms Notice) and the
Supplementary Terms Notice (including in each case by reference
to another agreement) have the same meanings when used in this
deed unless the context otherwise requires or unless otherwise
defined in this deed.
(b) Subject to Clause 30, no change to the Master Trust Deed or any
other document (including the order of payment set out in the
Supplementary Terms 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(d), with the prior
written consent of the Noteholder Mortgagees) has agreed in
writing to the changes.
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1.3 INTERPRETATION
Clause 1.2 of the Master Trust Deed applies to this deed as if set out
in full and:
(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,
subject to clause 40.17(d), obtained the prior written consent of
the Noteholder Mortgagees; and
(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.
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) Subject to Clause 9.5, 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.
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(e) The provisions of this deed are binding on the Security Trustee,
the Chargor and the Mortgagees and all persons claiming through
them, respectively.
1.7 TRANSACTION DOCUMENT
This deed is a TRANSACTION DOCUMENT for the purposes of the Master
Trust Deed.
1.8 CHARGOR AS TRUSTEE
In this deed, except where provided to the contrary:
(a) a reference to the Chargor is a reference to the Chargor in its
capacity as trustee of the Trust only, and in no other capacity;
and
(b) a reference to the assets, business, property or undertaking of
the Chargor is a reference to the assets, business, property or
undertaking of the Chargor only in the capacity described in
paragraph (a) above.
1.9 KNOWLEDGE OF THE CHARGOR
In relation to the Trust, the Chargor will be considered to have
knowledge or notice of or be aware of any matter or thing if the
Chargor has knowledge, notice or awareness of that matter or thing by
virtue of the actual notice or awareness of the officers or employees
of the Chargor who have day to day responsibility for the
administration of the Trust.
1.10 KNOWLEDGE OF SECURITY TRUSTEE
For the purposes of this deed, the Security Trustee will only be
considered to have knowledge, notice of or to be aware of any thing if
the Security Trustee has knowledge, notice or awareness of that thing
by virtue of the actual knowledge, notice or awareness of the officers
or employees of the Security Trustee who have day to day responsibility
for the administration of the security trust established by this deed.
2. APPOINTMENT OF SECURITY TRUSTEE
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2.1 THE SECURITY TRUSTEE
The Security Trustee:
(a) is appointed to act as trustee on behalf of the Mortgagees on the
terms and conditions of this deed; and
(b) acknowledges and declares that it:
(i) holds the sum of A$10.00 received on the date of this deed
from the Settlor; and
(ii) will hold the benefit of the Charge, the Mortgaged Property
and the benefit of each of the Trust Documents to which the
Security Trustee is a party,
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in each case, on trust for each Mortgagee, in accordance with the terms
and conditions of this deed.
2.2 RESOLUTION OF CONFLICTS
(a) The Security Trustee shall, as regards the exercise of all
discretions vested in it by this deed and all other Transaction
Documents, except where expressly provided otherwise, have regard
to the interest of the Mortgagees.
(b) Subject to the provisions of this deed, if there is at any time,
with respect to enforcement, a conflict between a duty owed by
the Security Trustee to any Mortgagee or class of Mortgagees, and
a duty owed by it to another Mortgagee or class of Mortgagees,
the Security Trustee must give priority to the interests of the
Noteholders (which in the case of US$ Noteholders shall be
determined by the Note Trustee acting on their behalf (as
provided in clause 40.17) or the US$ Noteholders, as provided
herein and in the Note Trust Deed and which, in the case of:
(i) the Class A-3 Noteholders shall be determined by the Class
A-3 Noteholders;
(ii) Class B Noteholders shall be determined by the Class B
Noteholders;
(iii) the Class C Noteholders shall be determined by the Class C
Noteholders,
in each case as provided herein.
(c) Subject to the provisions of this deed (other than paragraph
(b)), the Security Trustee must give priority to the interests
only of the Class A Noteholders if, in the Security Trustee's
opinion (in relation to which in determining the interests of the
Class A Noteholders, the Security Trustee may rely on the
instructions given in a resolution passed in a meeting held in
accordance with clause 40, by Class A Noteholders or their
Representatives holding Class A Notes representing at least [75%]
of the Class A Total Invested Amount of the Class A Notes) there
is a conflict between the interests of the Class A Noteholders
and the interests of the Class B Noteholders, the Class C
Noteholders or the other Mortgagees.
(d) Provided that the Security Trustee acts in accordance with clause
40 and in good faith, it shall not incur any liability to any
Mortgagee for giving effect to paragraph (b) or (c).
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.
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2.4 COVENANT
The Security Trustee covenants for the benefit of the Approved Seller
that it will comply with clause 12.4(l)(i) of the Master Trust Deed in
relation to any Receivable Security or Related Security which the
Chargor or the Approved Seller has notified in writing to the Security
Trustee is affected by a Trust Back.
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) Subject to paragraph (b), the security created by this deed
secures the due and punctual payment of the Secured Moneys.
(b) Notwithstanding anything to the contrary in this deed, the
security created by this deed over Excluded Assets does not
secure payment of Excluded Advances.
(c) This deed is given in consideration of the Security Trustee and
the Mortgagees entering into the Trust Documents and for other
valuable consideration received.
3.3 PROSPECTIVE LIABILITY
For the purpose of the Corporations Law the maximum prospective
liability (as defined in the Corporations Law) secured by this deed at
any time is [A$3,000,000,000,000] and the total amount recoverable
under this deed is limited to [A$3,000,000,000,000] or its equivalent
in another currency.
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 the Mortgaged Property.
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4.3 DEALING WITH MORTGAGED PROPERTY
(a) Except as expressly permitted in any Trust Document, the Chargor
shall not, and the 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 Trust
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 the occurrence of an Event of Default;
(ii) if 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 Trust Document, or agrees or
attempts to do so or takes any step towards doing so;
(iii) on the Commissioner of Taxation or his delegate or
successor signing a notice under:
(A) s218 or s255 of the Income Tax Assessment Act 1936;
(B) 260-5 of the Taxation Administration Act 1953; or
(C) any similar legislation,
which will affect that asset; or
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(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;
(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 must, at the direction of the 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 the
Designated Rating Agency for each Class of Notes of any such release.
5. COVENANTS AND WARRANTIES
----------------------------------------------------------------
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 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 obligations
under the Trust Documents.
(d) The Chargor will give to the Note Trustee a copy of the Register,
and to the Security Trustee any information in the power or
possession of the Chargor relating to the Trust 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;
(ii) the amount and details of the Secured Moneys owing to each
Mortgagee; and
(iii) the amount and details of any Excluded Advances owing to
any Mortgagee.
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(e) The Manager shall cause this deed to be duly stamped and lodged
for registration with the Australian Securities and Investments
Commission before it issues a Note.
5.2 NEGATIVE COVENANTS
The Chargor shall not do, nor shall the Manager direct or cause the
Chargor to do, any of the following without the prior written consent
of the Security Trustee (and, subject to clause 40.17(d), the
Noteholder Mortgagees) and without prior written confirmation from the
Designated Rating Agency for each Class of Notes of the rating assigned
to the Notes except as permitted by this deed, the Master Trust Deed or
the Supplementary Terms 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 Trust 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 the Designated Rating Agencies
for each Class of Notes that it will not result in any
reduction or withdrawal of the ratings assigned to the
Notes by the Designated Rating Agencies;
(b) (NO RELEASE UNDER TRUST DOCUMENTS) give any release or discharge
(whether full, partial or conditional) to any person in respect
of their obligations under any of the Trust Documents relating to
the Trust, except as permitted by the Trust Documents;
(c) (BANK ACCOUNTS) not open any bank account not permitted in the
Trust Documents; and
(d) (SECURITY INTEREST) not create or permit or suffer to exist any
other Security Interest over the Mortgaged Property.
5.3 WARRANTY
The Chargor makes the following representations and warranties.
(a) (TRUST DOCUMENTS REPRESENTATIONS AND WARRANTIES) All
representations and warranties of the Chargor in the Trust
Documents are true or, if not yet made, will be true when made.
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(b) (GOOD TITLE) The Chargor is the sole equitable owner of the
Mortgaged Property and has the power under the Master Trust Deed
to enter into this deed and to charge in the manner provided in
this deed the Mortgaged Property. Subject only to the Master
Trust Deed and this deed, the Mortgaged Property is free of all
other Security Interests as far as the Chargor is aware.
(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
Supplementary Terms Notice.
(f) (RIGHT OF INDEMNITY) As far as the Chargor is aware, except as
expressly provided in the Master Trust Deed or the Supplementary
Terms Notice or statute the Chargor has not limited in any way,
and the Chargor has no liability which may be set off against,
the Chargor's Indemnity.
(g) (NO PROCEEDINGS TO REMOVE) As far as the Chargor is aware, 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 MANAGER'S UNDERTAKINGS
The Manager undertakes to the Security Trustee when requested promptly
to give to the Security Trustee:
(a) a copy of each custody audit relating to the Trust given under
the Custodian Agreement;
(b) a copy of each Manager's Report given in relation to the Trust;
(c) each audit report issued by the Auditor in relation to the Trust;
and
(d) a copy of each Trust 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.
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6. FURTHER ASSURANCES
----------------------------------------------------------------
6.1 FURTHER ASSURANCES
Whenever the Security Trustee reasonably requests the Chargor to do
anything:
(a) more satisfactorily mortgaging, assuring or securing the
Mortgaged Property to the Mortgagees or the Security Trustee's
nominee in a manner not inconsistent with this deed or any Trust
Document; or
(b) aiding 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 Default being covered by
the Chargor's Indemnity. It may include registering this deed,
executing or registering any other document or agreement, delivering
Trust Documents or evidence of title and executing and delivering blank
transfers.
7. NOTE TRUSTEE
----------------------------------------------------------------
7.1 CAPACITY
The Note Trustee is a party to this deed in its capacity as trustee for
the US$ Noteholders from time to time under the Note Trust Deed.
7.2 EXERCISE OF RIGHTS
Except as otherwise provided in this deed and in the Note Trust Deed:
(a) the rights, remedies and discretions of the US$ Noteholders under
this deed including all rights to vote or give instructions or
consent to the Security Trustee and to enforce any undertakings
or warranties 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 all US$
Noteholders from time to time and need not inquire whether the Note
Trustee or the US$ Noteholders from time to time have complied with any
requirements under the Note Trust Deed or as to the reasonableness or
otherwise of the Note Trustee.
7.4 PAYMENTS
Any payment to be made to a US$ Noteholder under this deed may be made
to the Note Trustee or a Paying Agent on behalf of that Noteholder and
shall constitute a good discharge.
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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 Class A Noteholder. Any costs to
the Note Trustee of publishing such notice to the Noteholders will be
reimbursed by the Chargor to the Note Trustee.
8. EVENTS OF DEFAULT
----------------------------------------------------------------
8.1 EVENTS OF DEFAULT
Each of the following is an Event of Default (whether or not it is
within the control of the Chargor).
(a) (FAILURE TO PAY) The Chargor fails to pay:
(i) any Interest Entitlement within 10 Business Days of the
Quarterly Payment Date on which the Interest Entitlement
was due to be paid, together with all interest accrued and
payable on that Interest Entitlement; or
(ii) any other Secured Moneys, within 10 Business Days of the
due date for payment (or within any applicable grace period
agreed with the Mortgagees, or where the Mortgagee is a US$
Noteholder, with the Note Trustee, to whom the Secured
Moneys relate).
(b) (BREACH OF OBLIGATION) The Chargor fails to perform or observe
any other provisions (other than an obligation referred to in
paragraph (a)) of this deed or a Trust Document where such
failure will have a Material Adverse Effect and that default (if
in the opinion of the Security Trustee capable of remedy) is not
remedied within 30 days after written notice (or such longer
period as may be specified in the notice) from the Security
Trustee requiring the failure to be remedied.
(c) (INSOLVENCY) An Insolvency Event occurs in relation to the
Chargor.
(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 Trust
Assets is enforced.
(f) (VITIATION OF TRUST DOCUMENTS)
(i) All or any part of any Trust Document (other than the Basis
Swap, the Redraw Facility Agreement or, where the Currency
Swap is terminated by the provider of the Currency Swap as
a result of a call exercised by the Trustee under Condition
5(j), the Currency Swap) is terminated or is or becomes
void, illegal, invalid, unenforceable or of limited force
and effect; or
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(ii) a party becomes entitled to terminate, rescind or avoid all
or part of any Trust Document (other than the Basis Swap,
the Redraw Facility or, where the Currency Swap is
terminated by the provider of the Currency Swap as a result
of a call exercised by the Trustee under Condition 5(j),
the Currency Swap)
where that event has or will have a Material Adverse Effect.
(g) (TRUST) Without the prior consent of the Security Trustee (such
consent, subject to clause 40.17(d), having been approved 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;
or
(iii) unless another trustee is contemporaneously and immediately
appointed to the Trust under the Trust 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 Trust 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:
(a) declare the Charge immediately enforceable;
(b) declare the Secured Moneys immediately due and payable;
(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 Manager must promptly notify the Noteholder
Mortgagees, the Security Trustee, and each of the Designated Rating
Agencies 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,
Custodial Transfer Event (as defined in the Custodian Agreement), Title
Perfection Event or Manager's Default including full details of that
Event of Default, Trustee's Default, Servicer Transfer Event, Title
Perfection Event, Custodial Transfer Event or Manager's Default (as the
case may be).
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9. ENFORCEMENT
----------------------------------------------------------------
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, without
limiting the generality of the above, 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
(a) Prior to the Security Trustee becoming actually aware of the
occurrence of an Event of Default and provided that it has been
indemnified to its satisfaction in accordance with this deed, the
Security Trustee may enforce this deed without an Extraordinary
Resolution of the Voting Mortgagees if it believes (in its
absolute discretion) that it is necessary to do so to protect the
interests of the Mortgagees.
(b) Following the Security Trustee becoming actually aware of the
occurrence of an Event of Default in accordance with clause 1.10,
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 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 (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 and shall comply with all directions
contained in or given pursuant to any Extraordinary Resolution of
the Voting Mortgagees.
(b) The obligation of the Security Trustee pursuant to sub-clause (a)
is subject to:
(i) this deed; and
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(ii) the Security Trustee being adequately indemnified from the
property held on trust under clause 2.1(b) 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 property held on trust under clause 2.1(b) before it
claims on any indemnity from the Mortgagees other than the
Note Trustee, including any indemnity provided under clause
9.5. The Note Trustee is in no circumstance required to give
any 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 Class A Notes
outstanding that rank prior to those subordinated Notes, the
Security Trustee shall not take any action without the consent of
the Class A Noteholders contained in or given pursuant to an
Extraordinary Resolution of Class A Noteholders.
(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 by Extraordinary
Resolution and then only if and to the extent the Voting
Mortgagees are able to do so under Australian law.
9.5 SECURITY TRUSTEE MUST RECEIVE INDEMNITY
If:
(i) 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
(ii) those Voting Mortgagees refuse to grant the requested
indemnity, and put it in funds,
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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. 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 (including, without limitation, clauses 9.4(b) and
9.5), 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 the same or any of them. Without limiting the
generality of the foregoing, 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 (subject to clauses 40.17(d), with the
prior written consent of the Noteholder Mortgagees) agree, on any
terms and conditions as it may deem expedient, having first given
notice to any Designated Rating Agency for each Class of Notes,
but without the consent of the other 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 Trust 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) Any such waiver, authorisation or determination shall, if the
Security Trustee so requires, be notified to the Voting
Mortgagees by the 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 reason that resolution was not valid or
binding upon the Voting Mortgagees.
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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
breach of trust.
10. APPOINTMENT OF RECEIVER
--------------------------------------------------------------------------------
10.1 APPOINTMENT
To the extent permitted by law and subject to clause 9, at any time
after the Charge becomes enforceable under this deed the Security
Trustee or any Authorised Signatory of the Security Trustee may:
(a) appoint any person or any 2 or more persons jointly or severally
or both to be a Receiver 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; or
(d) fix or vary the remuneration of a Receiver.
10.2 AGENT OF ▇▇▇▇▇▇▇
(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) Each Mortgagee acknowledges that:
(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.
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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 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) (LEND) He may lend money or provide financial accommodation.
(g) (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.
(h) (OPTIONS) He may grant or take put or call options.
(i) (SEVER FIXTURES) He may sever fixtures.
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(j) (EMPLOY) He may employ or discharge any person as employee,
contractor, agent, professional adviser, consultant or auctioneer
for any purpose.
(k) (COMPROMISE) He may make or accept any arrangement or compromise.
(l) (GIVE RECEIPTS) He may give receipts for money and other assets.
(m) (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.
(n) (VARY AND TERMINATE AGREEMENTS) He may vary, rescind or terminate
any document or agreement (including surrender or accept the
surrender of leases).
(o) (AUTHORISATIONS) He may apply for, take up, transfer or surrender
any Authorisation or any variation of any Authorisation.
(p) (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).
(q) (TAKE PROCEEDINGS) He may commence, defend, conduct, settle,
discontinue or compromise proceedings in the name of the Chargor
or otherwise.
(r) (EXECUTE DOCUMENTS) He may enter into and execute documents or
agreements on behalf of himself or the Chargor.
(s) (OPERATE BANK ACCOUNTS) He may operate any bank account
comprising part of the Mortgaged Property and open and operate
any further bank account.
(t) (SURRENDER MORTGAGED PROPERTY) He may surrender, release or
transfer any of the Mortgaged Property.
(u) (EXCHANGE MORTGAGED PROPERTY) He may exchange with any person any
of the Mortgaged Property for other property.
(v) (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.
(w) (DELEGATE) He may delegate to any person approved by the Security
Trustee any of his Powers (including delegation).
(x) (HAVE ACCESS) He may exercise all the rights of the Chargor under
the Trust Documents with respect to the Trust Assets.
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(y) (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.
(z) (OTHER OUTGOINGS) He may pay any outgoing or indebtedness of the
Chargor or any other person.
(aa) (SECURITY INTERESTS) He may redeem any Security Interest or
acquire it and any debt secured by it.
(bb) (INSURE) He may take out insurance.
(cc) (INSURANCE CLAIMS) He may make, enforce, compromise and settle
all claims in respect of insurance.
(dd) (INCIDENTAL POWER) He may do anything incidental to the exercise
of any other Power.
All of the above paragraphs are to be construed independently. None
limits the generality of any other.
10.4 RECEIVER APPOINTED AFTER COMMENCEMENT OF WINDING UP
The power to appoint a Receiver may be exercised even though:
(a) an order may have been made or a resolution may have been passed
for the Liquidation of the Chargor; and
(b) a receiver appointed in those circumstances may not, or may not
in some respects specified by the Receiver, act as the agent of
the Chargor.
10.5 POWERS EXERCISABLE BY THE SECURITY TRUSTEE
Whether or not a Receiver has been appointed, the Security Trustee may
exercise any Power of a Receiver at any time after the Charge becomes
enforceable under this deed in addition to any Power of the Mortgagees
and without giving notice. It may exercise those Powers and its Powers
without taking possession or being liable as mortgagee in possession.
Without limitation, it may exercise those Powers and its Powers
directly or through one or more agents. In the latter event, anything
done or incurred by such an agent will be taken to be done or incurred
by the Security Trustee provided that the Security Trustee will have no
liability in respect of the negligence or default of any agent
appointed by the Security Trustee with reasonable care for the purpose
of performing functions of a type which are not reasonably capable of
supervision by the Security Trustee.
10.6 WITHDRAWAL
The Security Trustee may at any time (provided it does not have a
Material Adverse Effect) give up possession of any Mortgaged Property
and may at any time withdraw any receivership.
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11. REMUNERATION OF SECURITY TRUSTEE
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11.1 COSTS
In accordance with the Supplementary Terms Notice, the Chargor as
trustee of the Trust 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 Manager. This fee shall
accrue from day to day.
(b) If the Security Trustee is required at any time to undertake
duties which relate to the enforcement of the terms of any
Transaction Document by the Security Trustee upon a default by
any other party under the terms of that Transaction Document, the
Security Trustee is entitled to such additional remuneration as
may be agreed between the Security Trustee and the Manager or,
failing agreement, such amount as is determined by a merchant
bank (acting as an expert and not as an arbitrator) selected by
the Security Trustee. The determination of such merchant bank
shall be conclusive and binding on the Manager and the Security
Trustee so far as the law allows.
(c) The Security Trustee's fee under sub-clause (a) shall be payable
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 Manager.
11.3 CESSATION OF FEE
The Security Trustee shall not be entitled to remuneration under
clauses 11.1 or 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 Receiver and 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
Trust Document; or
(ii) any Mortgagee or any Receiver is authorised or empowered to
do under any Trust Document or any law but only at the
times that Mortgagee or a Receiver (if a Receiver had been
appointed) would have been able to do it.
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(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 Trust 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 Trust Document.
14. PERFORMANCE OF ▇▇▇▇▇▇▇'S OBLIGATIONS
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If at any time the Chargor fails duly to perform any obligation in any
Trust 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, subject to clause 40.17(d),
and provided there is sufficient time to do so, with the prior
written consent of the Noteholder 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
(a) The proceeds from the enforcement of the Charge over the
Mortgaged Property (other than Excluded Assets) (the AVAILABLE
FUND POOL) are to be applied (notwithstanding any order of
payment in the Supplementary Terms Notice) in the following order
of priority, subject to any other priority which may be required
by statute or law:
(i) first, to pay (pari passu and rateably):
(A) any fees and other expenses due to the Security
Trustee or the Note Trustee;
(B) any fees and other expenses due to the Principal
Paying Agent;
(C) any Expenses then due and unpaid with respect to the
Trust; and
(D) the Receiver's remuneration;
(ii) second, to pay all costs, charges, expenses and
disbursements properly incurred in the exercise of any
Power by the Security Trustee, the Note Trustee, a Receiver
or an Attorney or other amounts (other than those referred
to in paragraph (d)) payable to the Security Trustee or the
Note Trustee under this deed;
(iii) third, to pay any unpaid Accrued Interest Adjustment due to
the Approved Seller;
(iv) fourth, to pay to the Swap Provider under the Interest Rate
Swap any Break Payments received by or on behalf of the
Trustee from a Borrower or any Mortgage Insurer and which
have not previously been paid to that Swap Provider.
(v) fifth, to pay (pari passu and rateably):
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(A) all Secured Moneys owing to the Support Facility
Providers (other than the Currency Swap Provider);
(B) all Secured Moneys owing to the Class A Noteholders
(as at the date of payment);
(C) all Secured Moneys owing in relation to any Redraws
made by the Approved Seller for which it has not been
reimbursed under the Trust Documents; and
(D) all Secured Moneys owing to the Currency Swap
Provider under a Confirmation relating to US$ Notes
(but without double counting with payments under
sub-paragraph (ii));
(vi) sixth, all Secured Moneys owing to the Class B Noteholders
(as at the date of payment);
(vii) seventh, all Secured Moneys owing to the Class C
Noteholders (as at the date of payment);
(viii) eighth, to pay (pari passu and rateably) any amounts not
covered above owing to any Mortgagee under any Trust
Document;
(ix) ninth, to pay (pari passu and rateably) all monies owing to
any Mortgage Insurer;
(x) tenth, to pay the holder of any subsequent Security
Interest over Trust Assets of which the Security Trustee
has notice of the amount properly secured by the Security
Interest;
(xi) eleventh, to pay any surplus to the Chargor to be
distributed in accordance with the Master Trust Deed and
the Supplementary Terms Notice.
(b) The surplus will not carry interest. If the Security Trustee or a
Receiver, Mortgagee or Attorney pays the surplus to the credit of
an account in the name of the Chargor with any bank carrying on
business in Australia, the Security Trustee, Receiver, Mortgagee
or Attorney (as the case may be) will be under no further
liability in respect of it.
(c) The proceeds from the enforcement of the charge over the Excluded
Assets (notwithstanding any order of payment in the Supplementary
Terms Notice) are to be applied to pay any amounts (other than
those amounts in respect of Excluded Advances) that would have
been paid under paragraph (a) if there had been sufficient
amounts in the Available Fund Pool with which to pay them, and
that remain unpaid, in the order of priority set out in paragraph
(a).
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
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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:
(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.
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16.6 PAYMENTS INTO US$ ACCOUNT
(a) The Chargor shall direct the Currency Swap Provider to pay all
amounts denominated in US$ payable to the Chargor by the Currency
Swap Provider under the Currency Swap into the US$ Account.
(b) If the Chargor receives any amount denominated in US$ from the
Currency Swap Provider under the Currency Swap it will promptly
pay that amount to the credit of the US$ Account.
16.7 PAYMENTS OUT OF US$ ACCOUNT
(a) The Chargor shall, or shall require that the Paying Agent, on its
behalf, pay all amounts credited to the US$ Account as follows
and in accordance with the Supplementary Terms Notice, the Note
Trust Deed and the Agency Agreement.
(b) All amounts credited to the US$ Account by the Currency Swap
Provider in relation to a payment by the Chargor under clause
16.1(a)(v)(D) or clause 16.1(c), will be applied pari passu to
pay all Secured Moneys owing to US$ Noteholders.
16.8 EXCLUDED AMOUNTS
For the avoidance of doubt, the following amounts shall not be treated
as assets of the Trust available for distribution under clause 16.1.
(a) Any amounts required by law to be paid to the holder of any prior
ranking Security Interest over Trust Assets of which the Security
Trustee has notice which amounts are properly secured by the
Security Interest.
(b) Any of:
(i) the proceeds of cash collateral lodged by the provider of
an Hedge Agreement which are payable to that person under
that Hedge Agreement; and
(ii) the proceeds of any other cash collateral lodged by a
Support Facility Provider under a Support Facility, which
are payable to the Support Facility Provider.
This paragraph (b) shall not apply to the extent that the
relevant moneys are applied in accordance with the relevant
document to satisfy any obligation owed to the Chargor by the
relevant Support Facility Provider.
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SECURITY TRUST DEED ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇
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16.9 PROPORTIONATE SHARING
(a) SHARING
Whenever any Mortgagee receives or recovers any money in
respect of any sum due from the Chargor under a Trust Document
in any way (including without limitation by set-off) except
those referred to in clause 16.8 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). As between each Class of Class A Noteholders,
such payments (if any) are to be made pari passu and
rateably;
(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 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.
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(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
--------------------------------------------------------------------------------
To the extent permitted by law, neither any Mortgagee nor any 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
(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.
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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
--------------------------------------------------------------------------------
20.1 EXPENSES
In accordance with the Supplementary Terms Notice and this deed, the
Chargor shall reimburse each Mortgagee or (where the Mortgagee is a US$
Noteholder who is not a Voting Mortgagee) 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 Trust Documents; and
(b) (i) any actual or contemplated enforcement of the Trust
Documents or the actual or contemplated exercise,
preservation or consideration of any Powers under the Trust
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 Trust Documents, or in connection with
which, financial accommodation or funds raised under a
Trust Document are used or provided.
This includes legal costs and expenses (including in-house lawyers
charged at their usual rates) on a full indemnity basis, 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.
20.2 INDEMNITY
Subject to Clause 16.1, on demand the Chargor shall indemnify each
Mortgagee and each Receiver and Attorney against any loss, cost,
charge,
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SECURITY TRUST DEED ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇
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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
--------------------------------------------------------------------------------
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 Trust 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
--------------------------------------------------------------------------------
(a) The Chargor shall pay (and reimburse each Mortgagee for) all
stamp, transaction, registration and similar Taxes (including
fines and penalties) in relation to the execution, delivery,
performance or enforcement of any Trust Document or any payment
or receipt or any other transaction contemplated by any Trust
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 the Note Trustee and the US$ Noteholders)
by any 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 Trust 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
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reimbursement or indemnity, the date of disbursement or loss,
if earlier;
(b) both before and after judgment (as a separate and independent
obligation); and
(c) at the rate provided in clause 23.3,
except where the Trust 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 Three Month Bank ▇▇▇▇ ▇▇▇▇.
24. CERTIFICATE AS TO AMOUNT OF SECURED MONEYS, ETC.
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A certificate signed by an Authorised Signatory of the Security Trustee
will be sufficient evidence against the Chargor and the Mortgagees, in
the absence of manifest error or proof to the contrary:
(a) as to the amount of Secured Moneys stated in the certificate;
(b) that a person specified in that certificate is a Mortgagee;
(c) that a document specified in that certificate is a Trust
Document;
(d) that the Security Trustee is of the opinion stated in the
certificate; and
(e) as to the amount and details of Excluded Advances stated in the
certificates.
25. SURVIVAL OF REPRESENTATIONS
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All representations and warranties in a Trust Document survive the
execution and delivery of the Trust 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 Trust
Document:
(a) is a continuing obligation;
(b) is a separate and independent obligation;
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(c) is payable on demand;
(d) survives termination or discharge of the Trust Document; and
(e) is subject to the order of payment contained in the Supplementary
Terms Notice and clause 16 of this deed and the restriction on
remedies contained in clause 31.
27. CONTINUING SECURITY
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Each of this deed and each Collateral Security is a continuing security
despite any settlement of account, intervening payment or anything else
until a final discharge of this deed and each Collateral Security has
been given to the Chargor.
28. OTHER SECURITIES
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No Power and nothing in this deed or any Collateral Security merges in,
or in any other way prejudicially affects or is prejudicially affected
by:
(a) any other Security Interest; or
(b) any judgment, right or remedy against any person,
which any Mortgagee or any person claiming through any Mortgagee may
have at any time.
29. DISCHARGE OF THE CHARGE
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29.1 RELEASE
(a) Upon the Manager providing a certificate to the Security Trustee
(upon which certificate the Security Trustee may rely
conclusively) (with a copy of that certificate to the Note
Trustee) stating that:
(i) all Secured Moneys (actually or contingently owing) have
been paid in full; and
(ii) the obligations of the Chargor under the Trust Documents
have been performed, observed and fulfilled,
the Security Trustee shall, subject to clause 29.2, at the
request of the Manager or the Chargor, and at the cost of the
Chargor, release the Mortgaged Property from the Charge and
this deed.
(b) upon the Manager providing a certificate to the Security Trustee
(upon which certificate the Security Trustee may rely
conclusively) stating that:
(i) the only Secured Moneys (actually or contingently owing)
which have not been paid in full are those with respect to
Excluded Advances; and
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(ii) the only obligations of the Charger which have not been
performed, observed and fulfilled are those relating to
repayment of Excluded Advances,
the Security Trustee shall, subject to clause 29.2, at the
request of the Manager or the Chargor, and at the cost of the
Chargor, release the Excluded Assets from the Charge and this
deed.
29.2 CONTINGENT LIABILITIES
The Security Trustee shall be under no obligation to release the Charge
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, without limit, any law relating to preferences,
bankruptcy, insolvency or the winding up of bodies corporate) and the
Charge has already been discharged, the Chargor shall, at the expense
of the Trust, promptly do, execute and deliver, and cause any relevant
person to do, execute and deliver, all such acts and notes as the
Security Trustee may require to reinstate this Charge unless the
Security Trustee agrees otherwise in writing.
30. AMENDMENT
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30.1 APPROVAL OF MANAGER
The Security Trustee and the Chargor may, following the giving of at
least 10 Business Days prior written notice to each Designated Rating
Agency, and with the written approval of the Manager and (subject to
Clause 40.17(d)) the Noteholder Mortgagees and, 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 Agency;
(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, without
limitation, an alteration, addition or modification which is in
the
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opinion of the Security Trustee appropriate or expedient as a
consequence of the enactment of a law or regulation or an
amendment to any law or regulation or ruling by the
Commissioner or Deputy Commissioner of Taxation or any
governmental announcement or statement, in any case which has
or may have the effect of altering the manner or basis of
taxation of trusts generally or of trusts similar to the
Trust); or
(d) in the opinion of the Security Trustee and in accordance with
this deed neither prejudicial nor likely to be prejudicial to the
interest of the Mortgagees as a whole or any class of Mortgagees.
30.2 EXTRAORDINARY RESOLUTION OF VOTING MORTGAGEES
Where in the opinion of the Security Trustee and in accordance with
this deed, a proposed alteration, addition or modification to this
deed, other than an alteration, addition or modification referred to in
clause 30.1, is prejudicial or likely to be prejudicial to the interest
of Mortgagees as a whole or any class of Mortgagees, the Security
Trustee and the Chargor may make such alteration, addition or
modification if sanctioned by an Extraordinary Resolution of the Voting
Mortgagees or that class of Voting Mortgagees.
30.3 DISTRIBUTION OF AMENDMENTS
The Manager shall distribute to all Voting Mortgagees and each
Designated Rating Agency, a copy of any amendments made pursuant to
clause 30.1 or 30.2 as soon as reasonably practicable after the
amendment has been made.
31. ▇▇▇▇▇▇▇'S LIABILITY
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31.1 LIMITATION OF LIABILITY
(a) GENERAL
Clause 30 of the Master Trust Deed applies to the obligations
and liabilities of the Chargor and the Manager under this
deed.
(b) LIMITATION OF ▇▇▇▇▇▇▇'S LIABILITY
(i) The Chargor enters into this deed only in its capacity as
trustee of the Trust and in no other capacity (except where
the Transaction Documents provide otherwise). Subject to
paragraph (iii) below, a liability arising under or in
connection with this deed or the Trust can be enforced
against the Chargor only to the extent to which it can be
satisfied out of the assets and property of the Trust which
are available to satisfy the right of the Chargor to be
exonerated or indemnified for the liability. This
limitation of the Chargor's liability applies despite any
other provision of this deed and extends to all liabilities
and obligations of the Chargor in any way connected with
any representation, warranty, conduct,
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SECURITY TRUST DEED ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇
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omission, agreement or transaction related to this deed or the
Trust.
(ii) Subject to paragraph (iii) below, no person (including any
Relevant Party) may take action against the Chargor in any
capacity other than as trustee of the Trust or seek the
appointment of a receiver (except under this deed), or a
liquidator, an administrator or any similar person to the Chargor
or prove in any liquidation, administration or arrangements of or
affecting the Chargor.
(iii) The provisions of this clause 31.1(b) shall not apply to any
obligation or liability of the Chargor to the extent that it is
not satisfied because under a Transaction Document or by
operation of law there is a reduction in the extent of the
Chargor's indemnification or exoneration out of the Assets of the
Trust as a result of the Chargor's fraud, negligence, or Default.
(iv) It is acknowledged that the Relevant Parties are responsible
under the Transaction Documents for performing a variety of
obligations relating to the Trust. No act or omission of the
Chargor (including any related failure to satisfy its obligations
under this deed) will be considered fraud, negligence or Default
of the Chargor for the purpose of paragraph (iii) above to the
extent to which the act or omission was caused or contributed to
by any failure by any Relevant Party or any person who has been
delegated or appointed by the Chargor in accordance with this
deed or any other Transaction Document to fulfil its obligations
relating to the Trust or by any other act or omission of a
Relevant Party or any such person.
(v) In exercising their powers under the Transaction Documents, each
of the Chargor, the Security Trustee and the Noteholders must
ensure that no attorney, agent, delegate, receiver or receiver
and manager appointed by it in accordance with this deed has
authority to act on behalf of the Chargor in a way which exposes
the Chargor to any personal liability and no act or omission of
any such person will be considered fraud, negligence, or Default
of the Chargor for the purpose of paragraph (iii) above.
(vi) In this clause, RELEVANT PARTIES means each of the Manager, the
Servicer, the Calculation Agent, each Paying Agent, the Note
Trustee, and the provider of a Support Facility.
(vii) Nothing in this clause limits the obligations expressly imposed
on the Chargor under the Transaction Documents.
31.2 RIGHTS AGAINST MORTGAGED PROPERTY PRESERVED
The Mortgaged Property shall secure to the Security Trustee, and the
Security Trustee shall have recourse to the Mortgaged Property for, all
of the liabilities
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SECURITY TRUST DEED ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇
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of the Chargor to the Mortgagees under the Trust Documents
notwithstanding that at general law, under statute or under the
Master Trust Deed the Chargor has not properly incurred such
liability as Chargor or does not have a right of indemnity in
relation to that liability from the Mortgaged Property or has failed
to execute that degree of care, diligence and prudence required of a
trustee (including, without limiting the generality of the foregoing
any fraud, negligence or breach of trust).
31.3 OBLIGATION EXPRESS
The Chargor, is not obliged to enter into any commitment or obligation
under this deed, unless:
(a) in the case of commitments or obligations that are expressly
contemplated by a Transaction Document and are between parties to
a Transaction Document, the Chargor's liability is limited in the
same manner as set out in this clause 31; or
(b) in the case of any other commitments or obligations, the
Chargor's liability is limited in a manner satisfactory to the
Chargor in its absolute discretion.
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
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SECURITY TRUST DEED ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇
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would avoid, invalidate or render ineffective clause 3
or 4 or the security constituted by this deed; and
(ii) the definition of the Mortgaged Property does not include
any asset so long as and to the extent that the inclusion
of that asset would invalidate, avoid or render ineffective
clause 3 or 4 or the security constituted by this deed.
The Chargor shall use its reasonable endeavours to satisfy any
condition or obtain any Authorisation which relates to it as
trustee of the Trust, but not in respect of the Trust
generally which may be necessary to include that liability or
asset validly under the Charge or this deed.
35. MORATORIUM LEGISLATION
--------------------------------------------------------------------------------
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
--------------------------------------------------------------------------------
(a) Subject to the other Trust 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) All notices, requests, demands, consents, approvals, agreements
or other communications to or by a party to this deed:
(i) must be in writing;
(ii) must be signed by an Authorised Signatory of the sender;
and
(iii) will be taken to be duly given or made (in the case of
delivery in person, by post, or by facsimile transmission)
when
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delivered, received or left at the address of the
recipient shown in this deed, to any other address it
may have notified the sender, or as provided in clause
37(b) but if delivery or receipt is on a day on which
business is not generally carried on in the place to
which the communication is sent or is later than 4 pm
(local time), it will be taken to have been duly given
or made at the commencement of business on the next day
on which business is generally carried on in that place.
(b) The Security Trustee may give notice to a Mortgagee at the
address notified to the Security Trustee by the Chargor or the
Manager as that Mortgagee's address for notice or, where the
Mortgagee is a Noteholder, at the address of the Note Trustee.
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, if it does
act, it must act (with prior written notice to the Noteholder
Mortgagees) in the best interests of the Mortgagees in accordance
with this deed.
(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) Neither the Chargor nor the Security Trustee need enquire whether
any Extraordinary Resolution has been passed or as to the terms
of any Extraordinary Resolution.
(b) As between the Chargor on the one hand and the Security Trustee
and the Mortgagees on the other, all action taken by the Security
Trustee under this deed or any Collateral Security will be taken
to be authorised.
38.3 DELEGATION
(a) The Security Trustee may employ agents and attorneys, and,
provided that the Security Trustee exercises reasonable care in
selecting them, providing the Security Trustee and the agent or
attorney, as the case may be, are not related bodies corporate
(as defined in the Corporations Law) the Security Trustee will
not be liable for the acts or omissions of any such agent or
delegate. The Security Trustee may at the expense of the Chargor
obtain such advice and information
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SECURITY TRUST DEED ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇
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from lawyers, accountants, bankers and other consultants and
experts as it considers desirable to allow it to be properly
advised and informed in relation to its powers and
obligations. Before obtaining such advice or information
(unless the advice or information relates to the Manager)
before the occurrence of an Event of Default, the Security
Trustee shall first inform the Manager of the need for the
advice or information and obtain the approval of the Manager,
which approval shall not be unreasonably withheld or delayed.
(b) Notwithstanding other provisions in this clause 38.3, where the
Security Trustee employs a related body corporate 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
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 Trust 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 Mortgagee 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
Mortgagees.
38.7 SECURITY TRUSTEE AS MORTGAGEE
(a) The Security Trustee in its capacity as a Mortgagee has the same
rights and powers under the Trust 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, Manager and any Mortgagee or other
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person as if it were not the Security Trustee. It may receive
consideration for services in connection with any Trust Document
and otherwise without having to account to the Mortgagees.
38.8 INDEMNITY TO SECURITY TRUSTEE
(a) Subject to clause 38.8(b) and to the order of payment contained
in the Supplementary Terms 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 Trust
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 breach of trust.
(c) (i) Subject to paragraph (c)(iii) below, a liability arising
under or in connection with this deed or the trust
constituted under this deed can be enforced against the
Security Trustee only to the extent to which it can be
satisfied out of the assets and property of the trust
constituted under this deed which are available to satisfy
the right of the Security Trustee to be exonerated or
indemnified for the liability. This limitation of the
Security Trustee's liability applies despite any other
provision of this deed and extends to all liabilities and
obligations of the Security Trustee in any way connected
with any representation, warranty, conduct, omission,
agreement or transaction related to this deed or the trust
constituted under this deed.
(ii) Subject to paragraph (c)(iii) below, no person (including
any Relevant Party) may take action against the Security
Trustee in any capacity other than as trustee of the trust
constituted under this deed or seek the appointment of a
receiver (except under this deed), or a liquidator, an
administrator or any similar person to the Security Trustee
or prove in any liquidation, administration or arrangements
of or affecting the Security Trustee.
(iii) The provisions of this clause 38.8(c) shall not apply to
any obligation or liability of the Security Trustee to the
extent that it is not satisfied because under a Transaction
Document or by operation of law there is a reduction in the
extent of the Security Trustee's indemnification or
exoneration out of the assets as a result of the Security
Trustee's fraud, negligence or breach of trust.
(iv) It is acknowledged that the Relevant Parties are
responsible under the Transaction Documents for performing
a variety of obligations relating to the Trust and the
trust constituted under this deed. No act or omission of
the Security Trustee
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(including any related failure to satisfy its
obligations under this deed) will be considered fraud,
negligence or breach of trust of the Security Trustee
for the purpose of paragraph (c)(iii) above to the
extent to which the act or omission was caused or
contributed to by any failure by any Relevant Party or
any person who has been delegated or appointed by the
Security Trustee in accordance with this deed or any
other Transaction Document to fulfil its obligations
relating to the Trust or the trust constituted under
this deed or by any other act or omission of a Relevant
Party or any such person.
(v) In exercising their powers under the Transaction
Documents, each of the Chargor, the Security Trustee and
the Noteholders must ensure that no attorney, agent,
delegate, receiver or receiver and manager appointed by it
in accordance with this deed has authority to act on
behalf of the Security Trustee in a way which exposes the
Security Trustee to any personal liability and no act or
omission of any such person will be considered fraud,
negligence or breach of trust of the Security Trustee for
the purpose of paragraph (c)(iii) above.
(vi) The Security Trustee is not obliged to enter into any
commitment or obligation under this deed, unless:
(A) in the case of commitments or obligations that are
expressly contemplated by a Transaction Document and
are between parties to a Transaction Document, the
Security Trustee's liability is limited in the same
manner as set out in this subclause (c); or
(B) in the case of any other commitments or obligations,
the Security Trustee's liability is limited in a
manner satisfactory to the Security Trustee in its
absolute discretion.
(vii) A failure by the Security Trustee to act because it has
not received instructions (or proper instructions) from
the Mortgagees is not fraud, negligence or breach of
trust.
(viii) In this clause, RELEVANT PARTIES means each of the
Manager, the Servicer, the Calculation Agent, each Paying
Agent, the Note Trustee, and the provider of a Support
Facility.
(ix) Nothing in this clause limits the obligations expressly
imposed on the Security Trustee under the Transaction
Documents.
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SECURITY TRUST DEED ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇
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38.9 INDEPENDENT INVESTIGATION
Each Mortgagee confirms that it has made and will continue to make,
independently and without reliance on the Security Trustee, the Chargor
or any other Mortgagee (including the Manager) unless otherwise
provided in the Transaction Documents and based on the Trust Documents,
agreements and information which it regards appropriate:
(a) its own investigations into the Trust, the Notes and other
Mortgagee (including the Manager); and
(b) its own analyses and decisions whether to take or not take action
under any Trust Document.
38.10 NO MONITORING
The Security Trustee is not required to keep itself informed as to the
compliance by the Chargor or the Manager with any Trust Document or any
other document or agreement or to inspect any property or book of the
Chargor or the Manager.
38.11 INFORMATION
The Chargor authorises:
(a) the Security Trustee to provide any Mortgagee; and
(b) the Note Trustee and any Paying Agent to provide any US$
Noteholder,
with any information concerning the Trust and Notes which may come into
the possession of the Security Trustee or the Note Trustee (as the case
may be). Save for the information which is required by any Transaction
Document to be provided by it to the respective persons referred to in
paragraph (a) or (b) (as the case may be), none of the Security
Trustee, Note Trustee or any Paying Agent need otherwise provide any
other person with such information.
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 of any amount or thing for the
purpose of this deed or the construction or validity of any
direction from the Mortgagees, the Security Trustee may:
(i) obtain and rely on advice from any person referred to in
clause 38.3 and may comply with such direction or order;
and/or
(ii) apply to a court or similar body for any direction or order
the Security Trustee considers appropriate,
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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) Neither the Security Trustee nor the Note Trustee has any
responsibility for the form or contents of this deed or any other
Trust Document and will have any liability (except, in each case,
with respect to itself) arising as a result of or in connection
with any inadequacy, invalidity or unenforceability of any
provision of this deed or the other Trust 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
disposition 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 the
Chargor or any person in respect of the Chargor or the Secured
Moneys or relating in any way to the Mortgaged Property;
(b) any decline or loss 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 this 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,
except to the extent caused by the fraud, negligence or breach of
trust of the Security Trustee.
39. RETIREMENT AND REMOVAL OF SECURITY TRUSTEE
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39.1 RETIREMENT
Subject to any Trust Document to which the Security Trustee is a party,
and subject also to the appointment of a successor Security Trustee as
provided in this clause, the Security Trustee may retire at any time
upon giving not less than three months' notice (or such shorter period
as the parties may agree) in writing to the Chargor, the Manager, the
Note Trustee 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 Trust Document to which the Security Trustee is a party,
the appointment of a successor Security Trustee as provided in this
clause, and
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prior notice being given to each Designated Rating Agency, the
Security Trustee may be removed:
(a) by the Manager if any of the following occurs in relation to the
Security Trustee:
(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) the Security Trustee fails to comply with any of its
obligations under any Transaction Document and such action
has had, or, if continued will have, a Material Adverse
Effect, and, if capable of remedy, that failure is not
remedied within 14 days after the earlier of (i) the
Security Trustee having become actually aware of that
failure and (ii) the Security Trustee having received
written notice with respect thereto from the Manager; or
(iv) there is a change in effective control of the Security
Trustee from that subsisting as at the date of this deed
unless approved by the Manager; or
(b) at any time by an Extraordinary Resolution of the Voting
Mortgagees.
39.3 REPLACEMENT
(a) Upon notice of resignation or removal the 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 St.
▇▇▇▇▇▇ or a Related Body Corporate of St. ▇▇▇▇▇▇) who accepts the
appointment. If no such person is willing to accept this
appointment, the Voting Mortgagees may elect a Security Trustee
from among the Voting Mortgagees.
(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, subject to paragraph (e).
(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.
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39.4 RATING AGENCIES APPROVAL
Any resignation or removal of the Security Trustee and appointment of a
successor security trustee will not become effective until acceptance
of the appointment of that successor Security Trustee and confirmation
by the Designated Rating Agencies that such appointment will not cause
a downgrading, qualification or withdrawal of the then current ratings
of the Notes.
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
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
have held a meeting in accordance with the Note Trust Deed
and 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
call a meeting of 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:
(A) the meeting of US$ Noteholders called in accordance
with sub-paragraph (ii) is adjourned more than once;
and
(B) the US$ Noteholders' determination under
sub-paragraph (i) is not made at the meeting or
adjourned meeting (as the case may be).
40.3 NOTICE OF MEETINGS
(a) (PERIOD OF NOTICE) Subject to clause 40.3(b), at least 7 days'
notice (inclusive of the day on which the notice is given and of
the day on which the meeting is held) shall be given to the
Voting Mortgagees, the Beneficiary and all the Designated Rating
Agencies.
(b) (SHORT NOTICE) Notwithstanding that a meeting is convened upon
shorter notice than as specified in clause 40.3(a), or a meeting
or details of that meeting are not notified, advised or approved
in accordance with this clause 40, it shall be deemed to be duly
convened if it is so agreed by the Voting Mortgagees representing
a quorum (which quorum must include the Note Trustee or the US$
Noteholders, as the case maybe).
(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 the non-receipt of notice by any person entitled to receive
it shall not invalidate the proceedings at any meeting.
40.4 CHAIRMAN
A person (who need not be a Voting Mortgagee and who may be a
Representative of the Security Trustee) nominated in writing by the
Security Trustee shall be entitled to take the chair at every such
meeting but if no such nomination is made or if at any meeting the
person nominated is not present within 15 minutes after the time
appointed for the holding of that meeting the Voting Mortgagees present
shall choose one of their number to be chairman.
40.5 QUORUM
At any such meeting any two or more persons present in person holding,
or being Representatives holding or representing, in the aggregate not
less than
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51% of the then Secured Moneys shall form a quorum for the
transaction of business (other than passing an Extraordinary
Resolution in which case the quorum shall be not less than 67.5% of
the then Secured Moneys) and no business (other than the choosing of
a chairman) shall be transacted at any meeting unless the requisite
quorum is present at the commencement of business.
40.6 ADJOURNMENT
(a) (QUORUM NOT PRESENT) If within 15 minutes from the time appointed
for any such meeting a quorum is not present the meeting shall,
if convened on the requisition of the Voting Mortgagees be
dissolved. In any other case it shall stand adjourned (unless the
Security Trustee agrees that it be dissolved) for such period,
not being less than 7 days nor more than 42 days, as may be
appointed by the chairman. At the adjourned meeting two or more
persons present in person holding, or being Representatives
holding or representing 15% of the then Secured Moneys shall
(except for the purpose of passing an Extraordinary Resolution)
form a quorum and shall have the power to pass any resolution and
to decide upon all matters which could properly have been dealt
with at the meeting from which the adjournment took place had a
quorum been present at that meeting. The quorum at any such
adjourned meeting for passing a Extraordinary Resolution shall be
20% of the then Secured Moneys.
(b) (ADJOURNMENT OF MEETING) The chairman may with the consent of
(and shall if directed by) any meeting adjourn the same from time
to time and from place to place but no business shall be
transacted at any adjourned meeting except business which might
lawfully have been transacted at the meeting from which the
adjournment took place.
(c) (NOTICE OF ADJOURNED MEETING) At least 5 days' notice of any
meeting adjourned through want of a quorum shall be given in the
same manner as of an original meeting and such notice shall state
the quorum required at such adjourned meeting. It shall not,
however, otherwise be necessary to give any notice of an
adjourned meeting.
40.7 VOTING PROCEDURE
(a) (SHOW OF HANDS) Every question submitted to a meeting shall be
decided in the first instance by a show of hands and in case of
equality of votes the chairman shall, both on a show of hands and
on a poll, have a casting vote in addition to the vote or votes
(if any) to which he may be entitled as a Voting Mortgagee or as
a Representative.
(b) (DECLARATION) At any meeting, unless a poll is (before or on the
declaration of the result of the show of hands) demanded by the
chairman, the Chargor, the 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
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a resolution has been carried by a particular majority or lost
or not carried by any particular majority shall be conclusive
evidence of the fact without proof of the number or proportion
of the votes recorded in favour of or against that resolution.
(c) (POLL) If at any meeting a poll is so demanded, it shall be taken
in such manner and (subject as provided below) either at once or
after such an adjournment as the chairman directs and the result
of such poll shall be deemed to be the resolution of the meeting
at which the poll was demanded as at the date of the taking of
the poll. The demand for a poll shall not prevent the continuance
of the meeting for the transaction of any business other than the
question on which the poll has been demanded.
(d) (NO ADJOURNMENT) Any poll demanded at any meeting on the election
of a chairman or on any question of adjournment shall be taken at
the meeting without adjournment.
(e) (VOTES) Subject to clause 40.7(a), at any meeting:
(i) on a show of hands, every person holding, or being a
Representative holding or representing other persons who
hold, Secured Moneys shall have one vote except 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$100 or, in the case of A$ Noteholders for each
A$ Equivalent of US$100 (but, in each case, not part
thereof) of the Secured Moneys that he holds or in respect
of which he is a Representative. Any person entitled to
more than one vote need not use or cast all of the votes to
which he is entitled in the same way.
(f) (EVIDENCE) A certificate from the Note Trustee to the Security
Trustee that the Note Trustee is entitled to vote on behalf of a
US$ Noteholder will be satisfactory evidence to the Security
Trustee that the Note Trustee is so entitled to vote.
For the purpose of determining the amount of Secured Moneys at any
time, the Security Trustee may rely on the Accounts of the Chargor and
any information provided by the Auditor of the Chargor. Clause 24 will
apply to any determination of Secured Moneys for the definition of
VOTING MORTGAGEE and this Clause 40.
40.8 RIGHT TO ATTEND AND SPEAK
The Chargor, the Manager, the Security Trustee and the 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
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convening of such a meeting unless he is a Voting Mortgagee or a
Representative.
40.9 APPOINTMENT OF PROXIES
(a) (REQUIREMENTS) Each appointment of a proxy shall be in writing
and shall be deposited at the registered office of the Security
Trustee or in such other place as the Security Trustee shall
designate or approve, together with proof satisfactory to the
Security Trustee of its due execution (if so required by the
Security Trustee), not less than 24 hours before the time
appointed for holding the meeting or adjourned meeting at which
the named proxy proposes to vote, and in default, the appointment
of proxy shall not be treated as valid unless the chairman of the
meeting decides otherwise before that meeting or adjourned
meeting proceeds to business. A notarially certified copy proof
of due execution as specified above (if applicable) shall, if
required by the Security Trustee, be produced by the proxy at the
meeting or adjourned meeting, but the Security Trustee shall not
thereby be obliged to investigate or be concerned with the
validity or the authority of the proxy named in any such
appointment. The proxy named in any appointment of proxy need not
be a Voting Mortgagee.
(b) (PROXY REMAINS VALID) Any vote given in accordance with the terms
of an appointment of proxy set out in clause 40.9(a) shall be
valid notwithstanding the previous revocation or amendment of the
appointment of proxy or of any of the Voting Mortgagee's
instructions pursuant to which it was executed, provided that no
intimation in writing of such revocation or amendment has been
received by the Security Trustee at its registered office, or by
the 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 [126] of the Corporations Law
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
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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 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
Manager whether such rights shall arise under this deed,
the Trust 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 Note
Trustee, the Manager 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
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things as may be necessary to carry out and give effect to
any Extraordinary Resolution; or
(xii) to determine whether the Security Trustee should or should
not perform an act and any such Extraordinary Resolution
will (where relevant and in accordance with clause 40.17)
override any determination by the Note Trustee.
(b) (NO POWER) A meeting of Voting Mortgagees shall not have power in
relation to any Mortgagee to:
(i) release any obligation to pay any of the Secured Moneys to
that Mortgagee;
(ii) alter any date upon which any of the Secured Moneys is
payable;
(iii) alter the amount of any payment of any part of the Secured
Moneys; or
(iv) alter clause 16.1 in relation to that Mortgagee,
without the consent of that Mortgagee.
40.13 EXTRAORDINARY RESOLUTION BINDING ON MORTGAGEES
Subject to clause 40.12(b), an Extraordinary Resolution passed at a
meeting of the Voting Mortgagees duly convened and held in accordance
with this clause 40 shall be binding upon all Mortgagees whether or not
present at such meeting and each of the Mortgagees and the Chargor, the
Manager and the Security Trustee shall be bound to give effect to it
accordingly.
40.14 MINUTES AND RECORDS
Minutes of all resolutions and proceedings at every meeting of the
Voting Mortgagees under this clause 40 shall be made and duly entered
in the books to be from time to time provided for that purpose by the
Security Trustee and any such minutes purporting to be signed by the
chairman of the meeting at which those resolutions were passed or
proceedings transacted or by the chairman of the next succeeding
meeting of the Voting Mortgagees shall be conclusive evidence of the
matters contained in those minutes and until the contrary is proved,
provided every meeting in respect of the proceedings of which minutes
have been made and signed as provided in this clause 40.14 shall be
deemed to have been duly convened and held and all resolutions passed
or proceedings transacted in that meeting to have been duly passed and
transacted.
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40.15 WRITTEN RESOLUTIONS
Notwithstanding the preceding provisions of this clause 40, a
resolution of all the Voting Mortgagees (including an Extraordinary
Resolution) may be passed, without any meeting or previous notice being
required, by an instrument or notes in writing which have:
(a) in the case of a resolution (including an Extraordinary
Resolution) of all the Voting Mortgagees, been signed by all the
Voting Mortgagees; and
(b) any such instrument shall be effective upon presentation to the
Security Trustee for entry in the records referred to in clause
40.14
40.16 FURTHER PROCEDURES FOR MEETINGS
Subject to all other provisions contained in this deed, the Security
Trustee may without the consent of the Mortgagees prescribe such
further regulations regarding the holding of meetings of the Voting
Mortgagees and attendance and voting at those meetings as the Security
Trustee may in its sole discretion determine including particularly
(but without prejudice to the generality of the above) such regulations
and requirements as the Security Trustee thinks reasonable:
(a) (PERSONS ARE VOTING MORTGAGEES) so as to satisfy itself that
persons are in fact Voting Mortgagees who purport to requisition
a meeting or who purport to make any requisition to the Security
Trustee in accordance with this deed;
(b) (ENTITLEMENT TO VOTE) so as to satisfy itself that persons who
purport to attend or vote at any meeting of Voting Mortgagees are
entitled to do so in accordance with this clause 40 and this
deed; and
(c) (FORMS OF REPRESENTATIVE) as to the form of appointment of a
Representative.
40.17 NOTE TRUSTEE RIGHTS
(a) Despite any other provision of this deed, for so long as the
Noteholder Mortgagees are the only Voting Mortgagees they may
direct the Security Trustee to do any act or thing which the
Security Trustee is required to do, or may only do, at the
direction of an Extraordinary Resolution of Voting Mortgagees
including those acts or things referred to in clause 40.12 and
the Security Trustee shall, subject to this deed, comply with
such direction of the Noteholder Mortgagees.
(b) Neither the Security Trustee nor the Manager may call a meeting
of Voting Mortgagees while the Noteholder Mortgagees are the only
Voting Mortgagees, unless the Noteholder Mortgagees otherwise
consent.
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(c) Despite any other provision of this deed, at any time while an
Event of Default subsists:
(i) if the Noteholder Mortgagees are not the only Voting
Mortgagee; and
(ii) if Noteholder Mortgagees direct the Security Trustee to
enforce the Charge (whether in the case of the Note Trustee
directed to do so by the Class A Noteholders or as it
determines on behalf of the Class A Noteholders),
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
Noteholder Mortgagees were the only Voting Mortgagee.
(d) The Security Trustee shall not be liable to any Mortgagee for
acting, or not acting, on the directions of the Noteholder
Mortgagee except where in so doing the Security Trustee engages
in any fraud, negligence or breach of trust.
(e) Any reference to the Noteholder Mortgagees where:
(i) they are the only Voting Mortgagees; or
(ii) where the consent of the Noteholder Mortgagees is required
under this deed in relation to a discretion or act of the
Security Trustee,
means so many of the Noteholder Mortgagees who represent more
than 50% of the Total Invested Amount.
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 Trust
Documents.
42. GOVERNING LAW AND JURISDICTION
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This deed is governed by the laws of the 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 Trust Document.
45. ACKNOWLEDGEMENT BY CHARGOR
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The Chargor confirms that:
(a) it has not entered into any Trust Document in reliance on, or as
a result of, any conduct of any kind of or on behalf of any
Mortgagee (other than the Manager and the Servicer) or any
Related Body Corporate of any Mortgagee (including any advice,
warranty, representation or undertaking); and
(b) no Mortgagee nor any Related Body Corporate of any Mortgagee is
obliged to do anything (including disclose anything or give
advice),
except as expressly set out in the Trust Documents or in writing duly
signed by or on behalf of the Mortgagee or Related Body Corporate.
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 Manager, including in connection with the issue of Notes.
Neither the Chargor nor the 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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47.1 RELIANCE ON CERTIFICATE
The Security Trustee shall not incur any liability as a result of
relying upon the authority, validity, due authorisation of, or the
accuracy of any information contained in any notice, resolution,
direction, consent, certificate, receipt, affidavit, statement,
valuation report or other document or communication (including any of
the above submitted or provided by the Manager, by the Trustee or by a
Mortgagee) if the Security Trustee is entitled, under clause 47.2 to
assume such authenticity, validity, due authorisation or accuracy.
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In preparing any notice, certificate, advice or proposal the Security
Trustee shall be entitled to assume, unless it is actually aware to the
contrary, that each person under any Authorised Investment, Support
Facility, Receivable, Receivable Security, Related Securities, other
Transaction Document or any other deed, agreement or arrangement
incidental to any of the above or to the 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'S RELIANCE ON MANAGER, NOTE TRUSTEE
OR SERVICER
(a) (AUTHORISED SIGNATORIES ARE SUFFICIENT EVIDENCE) Whenever any
certificate, notice, proposal, direction, instruction, document
or other communication is to be given to the Security Trustee,
the Security Trustee may assume:
(i) the authenticity and validity of any signature in any such
document and that such document has been duly authorised;
and
(ii) the accuracy of any information contained in any such
documents,
in either case unless the officers of the Security Trustee
responsible for the administration of the Trust are not
actually aware to the contrary.
(b) (TRUSTEE NOT LIABLE FOR LOSS) The Security Trustee shall not be
responsible for any loss arising from any forgery or lack of
authenticity or any act, neglect, mistake or discrepancy of the
Manager, the Note Trustee or a Servicer or any officer, employee,
agent or delegate of the Manager, 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 of such forgery, lack of authenticity or validity, act,
neglect, mistake or discrepancy.
47.3 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 applicable present or future law of any place or
any applicable ordinance, rule, regulation or by law or of any
applicable decree, order or judgment of any competent court or other
tribunal, the Security Trustee shall be prohibited from doing or
performing.
47.4 RELIANCE ON EXPERTS
The Security Trustee may rely on and act on the opinion or statement or
certificate or advice of or information obtained from the Note Trustee,
the 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
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anything done or suffered by it in good faith in reliance on such
opinion, statement, certificate, advice or information except to the
extent of losses, costs, claims or damages caused by the Security
Trustee's fraud, negligence or breach of trust.
47.5 OVERSIGHTS OF OTHERS
Having regard to the limitations on the Security Trustee's duties,
powers, authorities and discretions under 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 or on whom the Security Trustee is entitled to rely under this
deed (other than a Related Body Corporate), attorney, banker, receiver,
barrister, solicitor, agent or other person acting as agent or adviser
to the Security Trustee except to the extent of losses, costs, claims
or damages caused by the Security Trustee's fraud, negligence or breach
of trust, provided that nothing in this deed or any other Transaction
Document imposes any obligations on the Security Trustee to review or
supervise the performance by any other party of its obligations.
47.6 POWERS, AUTHORITIES AND DISCRETIONS
Except as otherwise provided in this deed and in the absence of fraud,
negligence or breach of trust, 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.
47.7 IMPOSSIBILITY OR IMPRACTICABILITY
If for any other reason it becomes impossible or impracticable for it
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 its own fraud, negligence or
breach of trust, nor shall it 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 it or its officers, employees, agents or
delegates.
47.8 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 on a full indemnity basis 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;
(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; and
(iii) obtaining legal advice or opinions concerning or relating
to the interpretation or construction of,
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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 (as the case may be) of the rights referred to in
paragraph (i) or the court proceedings referred to in
paragraph (ii) (including 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:
(iv) has been approved in advance by an Extraordinary Resolution
of the Voting Mortgagees; or
(v) 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 breach of trust 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.
47.9 NO LIABILITY EXCEPT FOR NEGLIGENCE ETC.
Except to the extent caused by the fraud, negligence or breach of trust
on the Security Trustee's part or on the part of any of its officers or
employees, or any agents or delegate, sub-agent, sub-delegate employed
by the Security Trustee in accordance with this deed (and where this
deed provides that the Security Trustee is liable for the acts or
omissions of any such person) to carry out any transactions
contemplated by this deed, the Security Trustee shall not be liable
personally for any losses, costs, liabilities or claims arising from
the failure to pay moneys on the due date for payment to any Mortgagee
or any other person or for any loss howsoever caused in respect of any
of the Trust or to any Mortgagee or other person.
47.10 FURTHER LIMITATIONS ON SECURITY TRUSTEE'S LIABILITY
Subject to clause 47.2, the Security Trustee shall not be liable:
(a) 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
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transactions contemplated by this deed, constitutes fraud,
negligence or breach of trust;
(b) 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, Receivable or
Receivable Security; or
(iii) an Obligor,
except to the extent that it is caused by the fraud,
negligence or breach of trust 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 any Manager's Default, Servicer Transfer Event or Title
Perfection Event;
(d) without limiting the Security Trustee's obligations under the
Transaction Documents, for any act, omission or default of the
Servicer in relation to its servicing duties or its obligations
under the Servicing Agreement;
(e) without limiting the Security Trustee's obligations under the
Transaction Documents, for any act, omission or default of the
Custodian in relation to its custodial duties or its obligations
under the Custodian Agreement;
(f) without limiting the Security Trustee's obligations under the
Transaction Documents, for any act, omission or default of the
Note Trustee in relation to its obligations under the Transaction
Documents;
(g) without limiting the Security Trustee's obligations under the
Transaction Documents, for any act, omission or default of a
Paying Agent in relation to its obligations under the Transaction
Documents;
(h) without limiting the Security Trustee's obligations under the
Transaction Documents, for any act, omission or default of the
Calculation Agent in relation to its obligations under the
Transaction Documents;
(i) for the failure of a person to carry out an agreement with the
Security Trustee in connection with the Trust; or
(j) 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 Manager, the Note Trustee or the Servicer,
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except, in the case of paragraphs (c) to (j) (inclusive), to the extent
that it is caused by the fraud, negligence or breach of trust of the
Security Trustee.
Nothing in this clause 47.10 alone (but without limiting the operation
of any other clause of this deed) shall imply a duty on the Security
Trustee to supervise the Manager or the Note Trustee in the performance
of the Manager's or the Note Trustee's functions and duties, and the
exercise by the Manager or the Note Trustee of its discretions.
47.11 CONFLICTS
(a) (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.
(b) (FIDUCIARY RELATIONSHIP) A Relevant Person shall not by reason of
any fiduciary relationship be in any way precluded from making
any contracts or entering into any transactions with any such
person in the ordinary course of its 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.
47.12 INFORMATION
Except for notices and other documents and information (if any)
expressed to be required to be furnished to any person by the Security
Trustee under this deed or any other Transaction Document, the Security
Trustee shall not have any duty or responsibility to provide any person
(including any Mortgagee) with any credit or other information
concerning the affairs, financial condition or business of the Trust.
47.13 INVESTIGATION BY SECURITY TRUSTEE
Each Mortgagee acknowledges that:
(a) the Security Trustee has no duty, and is under no obligation, to
investigate whether a Manager's Default, Servicer Transfer Event
or Title Perfection 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 Material Adverse
Effect only if it is actually aware of the facts giving rise to
the Material Adverse Effect; and
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(c) in making any such determination, the Security Trustee will seek
and rely on advice given to it by its advisors in a manner
contemplated by this deed.
EXECUTED as a deed in Sydney.
Each attorney executing this deed thereby states that he has no notice of
alteration to, or revocation or suspension of, his power of attorney.
CHARGOR
SIGNED SEALED and DELIVERED )
on behalf of )
PERPETUAL TRUSTEES CONSOLIDATED LIMITED )
by its attorney under Power of Attorney )
dated )
in the presence of: ) -----------------------------------
Signature
----------------------------------------- -----------------------------------
Witness Print name
-----------------------------------------
Print name
SECURITY TRUSTEE
SIGNED SEALED and DELIVERED )
on behalf of )
P.T. LIMITED )
by its attorney under Power of Attorney )
dated )
in the presence of: ) -----------------------------------
Signature
----------------------------------------- -----------------------------------
Witness Print name
-----------------------------------------
Print name
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MANAGER
SIGNED SEALED and DELIVERED )
on behalf of )
CRUSADE MANAGEMENT LIMITED )
by its attorney Power of Attorney )
dated )
in the presence of: ) -----------------------------------
Signature
----------------------------------------- -----------------------------------
Witness Print name
-----------------------------------------
Print name
NOTE TRUSTEE
SIGNED SEALED and DELIVERED )
for and on behalf of )
WILMINGTON TRUST COMPANY LIMITED )
by its attorney Power of Attorney )
dated )
in the presence of: ) -----------------------------------
Signature
----------------------------------------- -----------------------------------
Witness Print name
-----------------------------------------
Print name
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