Exhibit 4.4
WESTPAC SECURITIES ADMINISTRATION LIMITED
(Chargor)
PERPETUAL TRUSTEE COMPANY LIMITED
(Security Trustee)
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
(Note Trustee)
and
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED
(Trust Manager)
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SERIES ▇▇▇▇-▇▇ ▇▇▇ ▇▇▇▇▇
SECURITY TRUST DEED
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(C) ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Ref: AEJ [ ]
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T A B L E O F C O N T E N T S
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1. DEFINITIONS AND INTERPRETATION ...................................... 1
1.1 Definitions ................................................ 1
1.2 Master Trust Deed definitions and Trust Document
amendments ................................................ 5
1.3 Interpretation ............................................. 5
1.4 Determination, statement and certificate sufficient evidence
5
1.5 Document or agreement ...................................... 5
1.6 Rights and obligations of Mortgagees ....................... 6
1.7 Transaction Document ....................................... 6
1.8 Trustee as trustee ......................................... 6
2. APPOINTMENT OF SECURITY TRUSTEE ..................................... 6
2.1 The Security Trustee ....................................... 6
2.2 Resolution of Conflicts .................................... 7
2.3 Duration of Trust .......................................... 7
2.4 Covenant ................................................... 7
3. CHARGE .............................................................. 7
3.1 Charge ..................................................... 7
3.2 Security ................................................... 7
3.3 Prospective liability ...................................... 8
4. NATURE OF CHARGE .................................................... 8
4.1 Priority ................................................... 8
4.2 Nature of Charge ........................................... 8
4.3 Dealing with Mortgaged Property ............................ 8
4.4 Crystallisation ............................................ 8
4.5 De-crystallisation ......................................... 9
5. COVENANTS AND WARRANTIES ............................................ 9
5.1 Covenant ................................................... 9
5.2 Negative covenants .........................................10
5.3 Warranty ...................................................10
5.4 Trust Manager's undertakings ...............................11
6. FURTHER ASSURANCES ..................................................11
6.1 Further assurances .........................................11
7. NOTE TRUSTEE ........................................................12
7.1 Capacity ...................................................12
7.2 Exercise of rights .........................................12
7.3 Instructions or directions .................................12
7.4 Payments ...................................................12
7.5 Notices ....................................................12
7.6 Bearer Noteholder as Couponholder ..........................12
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8. EVENTS OF DEFAULT ...................................................12
8.1 Events of Default ..........................................12
8.2 Rights of the Security Trustee upon Event of Default .......13
8.3 Notify Events of Default ...................................14
9. ENFORCEMENT .........................................................14
9.1 Power to enforce ...........................................14
9.2 No obligation to enforce ...................................14
9.3 Obligation to convene meeting ..............................14
9.4 Security Trustee to act in accordance with directions ......15
9.5 Security Trustee must receive indemnity ....................15
9.6 Limitation on rights of Mortgagees .........................15
9.7 Immaterial waivers .........................................16
9.8 Acts pursuant to resolutions ...............................16
9.9 Overriding provision .......................................16
10. APPOINTMENT OF RECEIVER .............................................16
10.1 Appointment ................................................16
10.2 Agent of Chargor ...........................................17
10.3 Receiver's powers ..........................................17
10.4 Receiver appointed after commencement of winding up ........19
10.5 Powers exercisable by the Security Trustee .................20
10.6 Withdrawal .................................................20
11. REMUNERATION OF SECURITY TRUSTEE ....................................20
11.1 Costs ......................................................20
11.2 Fee ........................................................20
11.3 Cessation of Fee ...........................................20
12. POWER OF ATTORNEY ...................................................20
13. COMPLETION OF BLANK SECURITIES ......................................21
14. PERFORMANCE OF CHARGOR'S OBLIGATIONS ................................21
15. STATUTORY POWERS ....................................................21
15.1 Powers in augmentation .....................................21
15.2 Notice not required ........................................21
16. APPLICATION OF MONEYS RECEIVED ......................................22
16.1 Priorities .................................................22
16.2 Moneys actually received ...................................23
16.3 Amounts contingently due ...................................23
16.4 Notice of subsequent Security Interests ....................23
16.5 Satisfaction of debts ......................................24
16.6 Payments into US$ Account ..................................24
16.7 Payments out of US$ Account ................................24
16.8 Excluded amounts ...........................................24
17. OTHER SECURITY INTERESTS OVER MORTGAGED PROPERTY ....................25
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18. PROTECTION OF MORTGAGEES, RECEIVER AND ATTORNEY .....................25
19. PROTECTION OF THIRD PARTIES .........................................25
19.1 No enquiry .................................................25
19.2 Receipt ....................................................26
20. EXPENSES, INDEMNITY .................................................26
20.1 Expenses ...................................................26
20.2 Indemnity ..................................................26
21. CURRENCY INDEMNITY ..................................................27
22. STAMP DUTIES ........................................................27
23. INTEREST ON OVERDUE AMOUNTS .........................................27
23.1 Accrual ....................................................27
23.2 Payment ....................................................27
23.3 Rate .......................................................28
24. CERTIFICATE AS TO AMOUNT OF SECURED MONEYS, ETC. ....................28
25. SURVIVAL OF REPRESENTATIONS .........................................28
26. INDEMNITY AND REIMBURSEMENT OBLIGATIONS .............................28
27. CONTINUING SECURITY .................................................28
28. OTHER SECURITIES ....................................................28
29. DISCHARGE OF THE CHARGE .............................................29
29.1 Release ....................................................29
29.2 Contingent liabilities .....................................29
29.3 Charge reinstated ..........................................29
30. AMENDMENT ...........................................................29
30.1 Approval of Trust Manager ..................................29
30.2 Extraordinary Resolution of Voting Mortgagees ..............30
30.3 Distribution of amendments .................................30
31. CHARGOR'S LIABILITY .................................................30
31.1 Capacity of Chargor under this deed ........................30
31.2 Limitation on Chargor's liability ..........................30
31.3 Rights against Mortgaged Property preserved ................30
31.4 Waiver of personal liability ...............................31
31.5 Unrestricted remedies ......................................31
31.6 Restricted remedies ........................................31
32. WAIVERS, REMEDIES CUMULATIVE ........................................31
33. CONSENTS AND OPINION ................................................32
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34. SEVERABILITY OF PROVISIONS ..........................................32
35. MORATORIUM LEGISLATION ..............................................32
36. ASSIGNMENTS .........................................................32
37. NOTICES .............................................................33
38. RELATIONSHIP OF MORTGAGEES TO SECURITY TRUSTEE ......................33
38.1 Instructions; extent of discretion .........................33
38.2 No obligation to investigate authority .....................33
38.3 Delegation .................................................34
38.4 Reliance on documents and experts ..........................34
38.5 Notice of transfer .........................................34
38.6 Notice of default ..........................................34
38.7 Security Trustee as Mortgagee ..............................34
38.8 Indemnity to Security Trustee ..............................35
38.9 Independent investigation ..................................35
38.10 No monitoring ..............................................35
38.11 Information ................................................35
38.12 Conflicts ..................................................35
38.13 No Liability ...............................................36
39. RETIREMENT AND REMOVAL OF SECURITY TRUSTEE ..........................36
39.1 Retirement .................................................36
39.2 Removal ....................................................36
39.3 Replacement ................................................37
40. MEETINGS OF MORTGAGEES ..............................................37
40.1 Limitation on Security Trustee's powers ....................37
40.2 Convening of meetings ......................................38
40.3 Notice of meetings .........................................38
40.4 Chairman ...................................................39
40.5 Quorum .....................................................39
40.6 Adjournment ................................................39
40.7 Voting procedure ...........................................40
40.8 Right to attend and speak ..................................40
40.9 Appointment of Proxies .....................................41
40.10 Corporate Representatives ..................................41
40.11 Rights of Representatives ..................................41
40.12 Extraordinary Resolutions ..................................41
40.13 Extraordinary Resolution binding on Mortgagees .............43
40.14 Minutes and records ........................................43
40.15 Written resolutions ........................................43
40.16 Further procedures for meetings ............................43
40.17 Note Trustee rights ........................................44
41. AUTHORISED SIGNATORIES ..............................................44
42. GOVERNING LAW AND JURISDICTION ......................................45
43. COUNTERPARTS ........................................................45
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44. SET-OFF .............................................................45
45. ACKNOWLEDGEMENT BY CHARGOR ..........................................45
46. INFORMATION MEMORANDUM ..............................................45
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SERIES ▇▇▇▇-▇▇ ▇▇▇ ▇▇▇▇▇
SECURITY TRUST DEED
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DEED dated 1998 between:
1. WESTPAC SECURITIES ADMINISTRATION LIMITED (ACN 000 049 472) of ▇▇▇▇▇
▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, in its capacity as
trustee of the Series ▇▇▇▇-▇▇ ▇▇▇ ▇▇▇▇▇ (▇▇▇ ▇▇▇▇▇▇▇);
2. PERPETUAL TRUSTEE COMPANY LIMITED (ACN 000 001 007) of ▇▇▇▇▇ ▇, ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ (the Security Trustee, which
expression includes its successor for the time being as security
trustee under this deed);
3. WESTPAC SECURITISATION MANAGEMENT PTY LIMITED (ACN ▇▇▇ ▇▇▇ ▇▇▇) of
▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ (the Trust
Manager); and
4. ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK acting through its office
at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ (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
A. The Chargor is the trustee, and the Trust Manager is the manager,
of the Trust.
B. Under the terms of the Master Trust Deed, the Chargor is authorised
to enter into this deed to charge the Trust Assets to secure the due
and punctual performance of the obligations of the Chargor under the
Trust Documents and the payment in full of the Secured Moneys to the
Mortgagees.
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 Bearer Noteholder and Couponholder.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
The following definitions apply unless the context requires
otherwise.
Attorney means any attorney appointed under this deed or any
Collateral Security.
Bearer Noteholder means a Class A Noteholder or a Class B Noteholder.
Note Trustee means ▇▇▇▇▇▇ Guaranty Trust Company of New York, London
Branch, in its own capacity and as agent for the Bearer Noteholders
from time to time.
Charge means the charge created by this deed.
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Chargor's Indemnity means:
(a) the Chargor's right of indemnity 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.
Collateral Security means any Security Interest, Guarantee or other
document or agreement at any time created or entered into in favour
of the Security Trustee as security for any Secured Moneys.
Event of Default means any of the events specified in clause 8.
Extraordinary Resolution in relation to the Voting Mortgagees means:
(a) a resolution passed at a meeting of the Voting Mortgagees
duly convened and held in accordance with the provisions
contained in this deed by a majority consisting of not
less than three quarters of the votes capable of being
cast at that meeting by Voting Mortgagees present in
person or by proxy; or
(b) a resolution in writing pursuant to clause 40.15 signed
by all the Voting Mortgagees or all of the class of
Voting Mortgagees (as the case may be).
Guarantee means any guarantee, indemnity, letter of credit, legally
binding letter of comfort or suretyship, or any other obligation or
irrevocable offer (whatever called and of whatever nature):
(a) to pay or to purchase;
(b) to provide funds (whether by the advance of money, the
purchase of or subscription for shares or other
securities, the purchase of assets, rights or services,
or otherwise) for the payment or discharge of;
(c) to indemnify against the consequences of default in the
payment of; or
(d) to be responsible otherwise for,
an obligation or indebtedness of another person, a dividend,
distribution, capital or premium on shares, stock or other interests,
or the insolvency or financial condition of another person.
Liquidation includes receivership, compromise, arrangement,
amalgamation, administration, reconstruction, winding up,
dissolution, assignment for the benefit of creditors, bankruptcy or
death.
Master Trust Deed means the Master Trust Deed for the WST Trusts
dated 14 February 1997 between the Chargor as Trustee and the Trust
Manager.
Mortgaged Property means the property mortgaged or charged by this
deed or any Collateral Security.
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Mortgagee means:
(a) the Security Trustee in relation to its rights (held in
its own right or for the benefit of other Mortgagees)
under this deed;
(b) any Bearer Noteholder, in relation to its rights under
the Notes held by it;
(c) any Registered Noteholder, in relation to its rights
under the Notes held by it;
(d) any Approved Seller in relation to any relevant Accrued
Interest Adjustment;
(e) Westpac in relation to any Redraws;
(f) the Trust Manager in relation to its rights as Trust
Manager under the Trust Documents for the Trust;
(g) 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;
(h) the Note Trustee in relation to its rights (held on its
own right or for the benefit of any Bearer Noteholders or
Couponholders) under the Transaction Documents; or
(i) each Paying Agent in relation to its rights under the
Transaction Documents.
Notice of Creation of Trust means the Notice of Creation of Trust
dated [*] 1998 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, of which the Chargor is a trustee.
Representative means:
(a) in the case of a Bearer Noteholder, the Note Trustee (as
its representative);
(b) in the case of any other Mortgagee, a person who is
appointed as a proxy for that Mortgagee pursuant to
clause 40.9; and
(c) without limiting the generality of paragraph (a), in the
case of a Voting Mortgagee which is a body corporate, a
person who is appointed pursuant to clause 40.10 by the
Mortgagee.
Secured Moneys means all money which the Chargor (whether alone or
with another person) is or at any time may become actually or
contingently liable to pay to or for the account of any Mortgagee
(whether alone or with another person) for any reason whatever under
or in connection with a Trust Document.
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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.
Where the Chargor would have been liable but for its Liquidation, it
will be taken still to be liable.
Series Notice means the Series Notice dated on or after the date of
this deed relating to the Trust.
Settlor means Leith Wintour.
Trust means the trust known as the Series ▇▇▇▇-▇▇ ▇▇▇ ▇▇▇▇▇
established under the Notice of Creation of Trust, the Master Trust
Deed and the Series Notice.
Trust Assets means the Assets of the Trust from time to time as
defined in the Master Trust Deed, and includes the rights of the
Trustee under the Trust Documents in respect of the Trust and under
the Collection Account and the US$ Account.
Trust Document means each of:
(a) this deed;
(b) the Master Trust Deed;
(c) the Series Notice;
(d) the Notice of Creation of Trust;
(e) the Servicing Agreement in respect of the Trust;
(f) each Note;
(g) each Support Facility for the Trust;
(h) the Agency Agreement; or
(i) the Note Trust Deed.
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 ▇▇▇▇▇▇ V
living on the date of this deed; and
(c) the day after the Charge Release Date.
Voting Mortgagee means:
(a) for so long as the Secured Moneys of the Bearer
Noteholders are 75% or more of total Secured Moneys, the
Note Trustee alone; and
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(b) at any other time (subject to clause 40.17):
(i) the Note Trustee, acting on behalf of the Bearer
Noteholders under the Note Trust Deed and clause 7;
and
(ii) each other Mortgagee (other than a Bearer
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 Series Notice) and the
Series Notice (including in each case by reference to
another agreement) have the same meanings when used in
this deed unless the context otherwise requires or unless
otherwise defined in this deed.
(b) No change to the Master Trust Deed or any other document
(including the order of payment set out in the Series
Notice) after the date of this deed will change the
meaning of terms used in this deed or adversely affect
the rights of the Security Trustee under this deed unless
the Security Trustee (subject to clause 40.17(d), with
the prior written consent of the Note Trustee) has agreed
in writing to the changes.
1.3 Interpretation
Clause 1.2 of the Master Trust Deed applies to this deed as if set
out in full 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;
(c) a reference to an amount for which a person is
contingently liable includes an amount which that person
may become actually or contingently liable to pay if a
contingency occurs, whether or not that liability will
actually arise; and
(d) wilful default means, in respect of the Security Trustee,
any wilful failure to comply with or wilful breach of any
of its obligations under this deed, other than a wilful
failure or wilful breach which:
(i) is in accordance with a lawful court order or
direction or otherwise required by law; or
(ii) is in accordance with an instruction or direction
from the Note Trustee or the Voting Mortgagees.
1.4 Determination, statement and certificate sufficient evidence
Except where otherwise provided in this deed any determination,
statement or certificate by the Security Trustee or an Authorised
Signatory of the Security Trustee provided for in this deed is
sufficient evidence of each thing determined, stated or certified
until proven wrong.
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
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(b) a document includes an agreement (as so defined) in
writing or a certificate, notice, instrument or document.
A reference to a specific agreement or document includes it as
amended, novated, supplemented or replaced from time to time, except
to the extent prohibited by this deed.
1.6 Rights and obligations of Mortgagees
(a) Each Mortgagee is entitled to the benefit of the
obligations (including warranties) of each of the
Security Trustee, the Chargor and any other person under
this deed and any Collateral Security.
(b) No Mortgagee is entitled to enforce this deed or any
Collateral Security other than through the Security
Trustee.
(c) Each Mortgagee is bound by this deed and each Collateral
Security.
(d) No Mortgagee is responsible for the obligations of the
Security Trustee or any other Mortgagee.
(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 Trustee 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.
2. APPOINTMENT OF SECURITY TRUSTEE
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 $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 it 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) Subject to the provisions of this deed, if there is at any
time a conflict between a duty owed by the Security
Trustee to any Mortgagees or class of Mortgagees, and a
duty owed by it to another Mortgagee or class of
Mortgagee, the Security Trustee must give priority to the
interests of the Noteholders (which in the case of the
Bearer Noteholders shall be determined by the Note Trustee
acting on their behalf (as provided in clause 40.17)).
(b) Subject to the provisions of this deed (other than
paragraph (a)), the Security Trustee must give priority to
the interests only of the Class A Noteholders and the
holders of Registered Notes if, in the Security Trustee's
opinion, there is a conflict between the interests of the
Class A Noteholders and the holders of the Registered
Notes and the interests of the Class B Noteholders or the
other persons entitled to the benefit of the Charge.
(c) Provided that the Security Trustee acts in good faith, it
shall not incur any liability to any Mortgagee for giving
effect to paragraph (a) or (b).
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.
2.4 Covenant
The Security Trustee covenants for the benefit of Westpac that it
will comply with clause 8.4(l)(i) of the Master Trust Deed in
relation to any Receivable Security which the Trustee or Westpac has
notified to the Security Trustee is affected by a Trust Back.
3. CHARGE
3.1 Charge
(a) Subject to paragraph (b), the Chargor charges to the
Security Trustee, for the Security Trustee and as trustee
for the Mortgagees all of the present and future Trust
Assets and undertaking of the Trust.
(b) The Charge does not charge any Trust Assets as at the
date of this deed which on the date of this deed are, or
are taken under the applicable stamp duties legislation
of the relevant jurisdiction to be, situated in any State
or Territory of Australia other than the Australian
Capital Territory or the Northern Territory.
3.2 Security
(a) The security created by this deed secures the due and
punctual payment of the Secured Moneys.
(b) This deed is given in consideration of the Security
Trustee and the Mortgagees entering the Trust Documents
and for other valuable consideration received.
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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$1,000,000,000 or its equivalent.
4. NATURE OF CHARGE
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.
4.3 Dealing with Mortgaged Property
(a) Except with the prior written consent of the Security
Trustee and (subject to clause 40.17(d)) the Note
Trustee, or as expressly permitted in any Trust Document,
the Chargor shall not, and the Trust Manager shall not
direct the Chargor to:
(i) create or allow to exist any Security Interest
over any Mortgaged Property; or
(b) 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 notice to the Chargor from the Security
Trustee (which it may only give following an Event
of Default);
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(ii) if without the prior written consent of the
Security Trustee (and, subject to clause
40.17(d), the Note Trustee), 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
▇▇▇ ▇▇▇▇;
(B) s74 of the Sales Tax Assessment ▇▇▇ ▇▇▇▇;
or
(C) any similar legislation,
which will affect that asset; or
(iv) on a Government Agency taking any step which may
result in an amount of Tax or an amount owing to a
Government Agency ranking ahead of the floating
charge with respect to that asset; or
(b) in respect of all the Mortgaged Property:
(i) if an Insolvency Event occurs with respect to the
Chargor; or
(ii) on the security constituted by this deed being
enforced in any way.
Except where expressly stated, no notice or action by any Mortgagee
is necessary for the charge to crystallise.
4.5 De-crystallisation
The Security Trustee may at 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.
After an Event of Default (whether or not it subsists) it
will pay the Secured Moneys when demand is made under
Clause 8.2.
(b) The Chargor shall use its best endeavours to ensure that
no Event of Default occurs.
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(c) The Chargor will ensure that it complies with its
material obligations under the Trust Documents.
(d) The Chargor will give to the Security Trustee or the Note
Trustee a copy of the Register and any information
relating to the Trust that the Security Trustee or the
Note Trustee (as the case may be) reasonably requests in
connection with the exercise and performance of its
powers and obligations under this deed, including without
limitation:
(i) the identity, and notice details of, each
Mortgagee and Beneficiary; and
(ii) the Secured Moneys owing to each Mortgagee.
(e) The Chargor shall cause this deed to be lodged for
registration with the Australian Securities Commission
before it issues a Note.
5.2 Negative covenants
The Chargor shall not do, nor shall the Trust Manager direct the
Chargor to do, any of the following without the prior written consent
of the Security Trustee (and, subject to clause 40.17(d), the Note
Trustee) and without prior written confirmation from the Designated
Rating Agency of the rating for each class of Notes in relation to
the Trust and the Notes except as permitted by this deed or the
Master Trust Deed:
(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 Agency for each Class of Notes that it will
not result in any reduction of the rating 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
contemplated by the Trust Documents;
(c) (other activities) not engage in any business or
activity other than as contemplated in the Trust
Documents;
(d) (bank accounts) not open any bank account not specified
in the Trust Documents; and
(e) (Security Interest) not create any other Security
Interest over the Mortgaged Property.
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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.
(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.
(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.
(f) (Right of indemnity) Except as expressly provided in the
Master Trust Deed or the Series Notice or statute it has
not limited in any way, and it has no liability which may
be set off against, the Chargor's Indemnity.
(g) (No proceedings to remove) No notice has been given to
the Chargor and, to the Chargor's knowledge, no
resolution has been passed or direction has been given,
removing the Chargor as trustee of the Trust.
5.4 Trust Manager's undertakings
The Trust Manager undertakes to the Security Trustee to promptly give
to the Security Trustee and the Note Trustee:
(a) a copy of each custody audit relating to the Trust given
under the Servicing Agreement;
(b) a copy of each Trust Manager's Report given in relation
to the Trust;
(c) each audit report issued by the Auditor in relation to
the Trust; and
(d) upon request from the Security Trustee or the Note
Trustee (as the case may be), 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 in order:
(a) more satisfactorily to mortgage, assure or secure the
Mortgaged Property to the Mortgagees or the Security
Trustee's nominee in a manner not inconsistent with this
deed or any Trust Document; or
(b) to aid in the execution or exercise of any Power,
the Chargor shall do it immediately, subject to any liability it
incurs 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 Bearer Noteholders from time to time under the Note Trust
Deed.
7.2 Exercise of rights
(a) The rights, remedies and discretions of the Bearer
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 Bearer Noteholders in accordance with the Note
Trust Deed.
(b) The Bearer Noteholders may only exercise enforcement
rights in respect of the Mortgaged Property through the
Note Trustee and only in accordance with this 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 Bearer
Noteholders from time to time and need not inquire whether the Note
Trustee or the Bearer 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 Bearer Noteholder under this deed may be
made to the Note Trustee or a Paying Agent on behalf of that Bearer
Noteholder.
7.5 Notices
Any notice to be given to a Bearer Noteholder under this deed may be
given to the Note Trustee on behalf of that Bearer Noteholder.
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7.6 Bearer Noteholder as Couponholder
In this deed, except as expressly stated, a reference to a Bearer
Noteholder includes a reference to Couponholder and the holder of any
Talons.
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 Coupon within 10 Business Days of the Payment
Date on which the Coupon was due to be paid,
together with all interest accrued and payable on
that Coupon; and
(ii) any other Secured Moneys, within 10 Business Days
of the due date for payment (or within any
applicable grace period agreed with the Mortgagee,
or where the Mortgagee is a Bearer Noteholder 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 an Adverse Effect
and that default (if in the opinion of the Security
Trustee capable of remedy (that opinion, subject to
clause 40.17(d), having been approved in writing by the
Note Trustee)) is not remedied within 30 days after
written notice (or such longer period as may be specified
in the notice, that longer period, subject to clause
40.17(d), having been approved by the Note Trustee) 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 and Redraw Facility) is terminated
or is or becomes void, illegal, invalid,
unenforceable or of limited force and effect; or
(ii) a party becomes entitled to terminate, rescind or
avoid all or part of any Trust Document (other
than the Basis Swap and Redraw Facility).
(g) (Trust) Without the prior consent of the Security Trustee
(that consent, subject to clause 40.17(d), having been
approved by the Note Trustee):
(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;
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(ii) the Trust is held or is conceded by the Chargor
not to have been constituted or to have been
imperfectly constituted;
(iii) unless another trustee is appointed to the Trust
under the 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 (subject to clause 40.17(d), with the prior written consent of
the Note Trustee), and shall (subject to clauses 9.2, 9.3, 9.4 and
9.5) if so directed by an Extraordinary Resolution of the Voting
Mortgagees:
(a) declare the Charge immediately enforceable;
(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 Trust Manager must promptly notify the
Note Trustee, 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, Title Perfection Event or Trust Manager's Default
including full details of that Event of Default, Trustee's Default,
Servicer Transfer Event, Title Perfection Event or Trust Manager's
Default (as the case may be).
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) take such proceedings as it may think fit to
enforce any of the provisions of this deed but it may not take any
action referred to in clauses 8.2(a) to (d) (inclusive) unless
directed to do so by an Extraordinary Resolution of Voting Mortgagees
or a written resolution signed by all Voting Mortgagees.
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 Mortgagees.
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9.3 Obligation to convene meeting
Following the Security Trustee becoming actually aware of the occurrence
of an Event of Default in accordance with Clause 38.6, it shall, subject
to clause 9.7, promptly convene a meeting of the Voting Mortgagees in
accordance with this deed, at which it shall seek directions from the
Voting Mortgagees by way of an Extraordinary Resolution of the Voting
Mortgagees (or a written resolution signed by all Voting Mortgagees)
regarding the action it should take as a result of that Event of Default
including whether to do any of the things referred to in clauses 8.2(a)
to (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
(ii) the Security Trustee being adequately indemnified from
the Trust Assets or the Security Trustee receiving
from the Voting Mortgagees an indemnity in a form
reasonably satisfactory to the Security Trustee (which
may be by way of an Extraordinary Resolution of the
Voting Mortgagees) against all actions, proceedings,
claims and demands to which it may render itself
liable, and all costs, charges, damages and expenses
which it may incur, in giving effect to an
Extraordinary Resolution of the Voting Mortgagees.
The Security Trustee shall first claim on its indemnity from the
Trust Assets before it claims on any indemnity from the
Mortgagees, including any indemnity provided under clause 9.5.
9.5 Security Trustee must receive indemnity
If:
(a) the Security Trustee convenes a meeting of the Voting
Mortgagees, or is required by an Extraordinary Resolution to
take any action under this deed, and advises the Voting
Mortgagees that the Security Trustee will not act in relation to
the enforcement of this deed unless it is personally indemnified
by the Voting Mortgagees to its reasonable satisfaction against
all actions, proceedings, claims and demands to which it may
render itself liable, and all costs, charges, damages and
expenses which it may incur, in relation to the enforcement of
this deed and put in funds to the extent to which it may become
liable (including costs and expenses); and
(b) the Voting Mortgagees refuse to grant the requested indemnity,
and put it in funds,
then the Security Trustee will not be obliged to act in relation to that
enforcement. In those circumstances, the Voting Mortgagees may exercise
such Powers as they determine by Extraordinary Resolution.
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9.6 Limitation on rights of Mortgagees
Subject to this deed, the powers, rights and remedies conferred on the
Security Trustee by this deed are exercisable by the Security Trustee
only, and no Mortgagee is entitled without the written consent of the
Security Trustee to exercise the same or any of them. Without limiting
the generality of the foregoing, 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 clause 40.17(d), with the
prior written consent of the Note Trustee) 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 opinion of the
Security Trustee, materially prejudicial to the interests of the
Mortgagees and may determine (subject to clause 40.17(d), with
the prior written consent of the Note Trustee) 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 waiver, authorisation or determination shall be made in
contravention of any directions contained in an Extraordinary
Resolution of Voting Mortgagees.
(c) No waiver, authorisation or determination may, once given, be
overridden or withdrawn by an Extraordinary Resolution of Voting
Mortgagees but the Security Trustee may (subject to clause
40.17(d), with the prior written consent of the Note Trustee)
give a waiver, authorisation or determination on terms that
allow it to be overridden or withdrawn.
(d) Any waiver, authorisation or determination shall, if the
Security Trustee so requires, be notified to the Voting
Mortgagees by the Trust Manager as soon as practicable
thereafter in accordance with this deed.
9.8 Acts pursuant to resolutions
The Security Trustee shall not be responsible for having acted in good
faith upon any resolution purporting to have been passed at any meeting
of the Voting Mortgagees in respect of which minutes have been made and
signed, even though it may subsequently be found that there was some
defect in the constitution of that meeting or the passing of that
resolution or that for any reasons that resolution was not valid or
binding upon the Voting Mortgagees.
9.9 Overriding provision
Notwithstanding any other provision of this deed:
(a) the Security Trustee is not obliged to do or omit to do
anything including entering into any transaction or incurring
any liability unless the Security Trustee's liability is limited
in a manner satisfactory to the Security Trustee in its absolute
discretion; and
(b) the Security Trustee will not be under any obligation to
advance or use its own funds for the payment of any costs,
expenses or liabilities, except in respect of its own fraud,
negligence or breach of trust.
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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 or receiver and manager of
all or any of the Mortgaged Property;
(b) remove any Receiver;
(c) appoint another Receiver in addition to or in place of a
Receiver; or
(d) fix or vary the remuneration of a Receiver.
10.2 Agent of Chargor
(a) Subject to clauses 10.2(b) and 10.4, every Receiver is the
agent of the Chargor. The Chargor alone is responsible for his
acts and defaults.
(b) Any Receiver will be the agent of the Chargor in its capacity
as trustee of the Trust only; and
(i) notwithstanding anything else in this deed or at law,
the Chargor in its personal capacity is not
responsible for any negligent act or negligent
omission of the Receiver.
10.3 Receiver's powers
In addition to any powers granted by law, and except to the extent
specifically excluded by the terms of his appointment, 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). 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).
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(f) (Raise money) He may:
(i) borrow or raise any money from any Mortgagee or any
other person approved by the Security Trustee;
(ii) give Guarantees; and
(iii) grant any Security Interest over any of the
Mortgaged Property to secure that money or Guarantee.
That Security Interest may rank in priority to or
equally with or after, the security created by this
▇▇▇▇.▇▇ may be given in the name of the Chargor or
otherwise.
(g) (Lend) He may lend money or provide financial accommodation.
(h) (Sell)
(i) He may sell any of the Mortgaged Property (whether or
not the Receiver has taken possession).
(ii) Without limitation, any sale may be made:
(A) by public auction, private treaty or tender;
(B) for cash or on credit;
(C) in one lot or in parcels;
(D) either with or without special conditions or
stipulations as to title or time or mode of
payment of purchase money or otherwise;
(E) with power to allow the whole or any part of
the purchase money to be deferred (whether
with or without any security); and
(F) whether or not in conjunction with the sale of
any property by any person.
(i) (Options) He may grant or take put or call options.
(j) (Sever fixtures) He may sever fixtures.
(k) (Employ) He may employ or discharge any person as employee,
contractor, agent, professional adviser, consultant or
auctioneer for any purpose.
(l) (Compromise) He may make or accept any arrangement or
compromise.
(m) (Give receipts) He may give receipts for money and other
assets.
(n) (Perform and enforce agreements) He may:
(i) perform or enforce;
(ii) exercise or refrain from exercising the Chargor's
rights and powers under; or
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(iii) obtain the benefit in other ways of,
any documents or agreements or rights which form part of the
Mortgaged Property and any documents or agreements entered into
in exercise of any Power.
(o) (Vary and terminate agreements) He may vary, rescind or
terminate any document or agreement (including surrender or
accept the surrender of leases).
(p) (Authorisations) He may apply for, take up, transfer or
surrender any Authorisation or any variation of any
Authorisation.
(q) (Take insolvency proceedings) He may make debtors bankrupt,
wind up companies and do any thing in relation to any actual
or contemplated Liquidation (including attend and vote at
meetings of creditors and appoint proxies).
(r) (Take proceedings) He may commence, defend, conduct, settle,
discontinue or compromise proceedings in the name of the
Chargor or otherwise.
(s) (Execute Documents) He may enter into and execute documents or
agreements on behalf of himself or the Chargor.
(t) (Operate bank accounts) He may operate any bank account
comprising part of the Mortgaged Property and open and operate
any further bank account.
(u) (Surrender Mortgaged Property) He may surrender, release or
transfer any of the Mortgaged Property.
(v) (Exchange Mortgaged Property) He may exchange with any person
any of the Mortgaged Property for other property.
(w) (Promote companies) He may promote the formation of companies
with a view to purchasing any of the Mortgaged Property or
assuming the obligations of the Chargor or otherwise.
(x) (Delegate) He may delegate to any person approved by the
Security Trustee any of his Powers (including delegation).
(y) (Have access) He may have access to and make use of the
premises, plant, equipment, and records and accounting and
other services of the Chargor and the services of its
staff.
(z) (Vote) He may exercise any voting or other rights or powers
in respect of any of the Mortgaged Property and do anything
in relation to shares or marketable securities.
(aa) (Other outgoings) He may pay any outgoing or
indebtedness of the Chargor or any other person.
(ab) (Security Interests) He may redeem any Security Interest or
acquire it and any debt secured by it.
(ac) (Insure) He may take out insurance.
(ad) (Insurance claims) He may make, enforce, compromise and settle
all claims in respect of insurance.
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(ae) (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 to wind up 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 give up possession of any Mortgaged
Property and may at any time withdraw any receivership.
11. REMUNERATION OF SECURITY TRUSTEE
11.1 Costs
In accordance with the Series 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 quarterly fee from
the proceeds of the Mortgaged Property at the rate agreed from
time to time by the Chargor, the Security Trustee and the Trust
Manager. This fee shall accrue from day to day.
(b) The Security Trustee's fee under sub-clause (a) shall be
payable quarterly in arrear for the relevant period on the same
dates as the Chargor's fee under the Master Trust Deed for the
Trust or as agreed from time to time by the Chargor, the
Security Trustee and the Trust Manager.
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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
(a) For valuable consideration and by way of security the Chargor
irrevocably appoints each Authorised Signatory of the Security
Trustee severally its attorney to do anything, following the
occurrence of an Event of Default, which:
(i) the Chargor is obliged to do under or in relation to
any 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.
(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
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 CHARGOR'S OBLIGATIONS
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
(subject to clause 40.17(d), and provided there is sufficient time to do
so, with the prior written consent of the Note Trustee) do anything
which in its opinion is necessary or expedient to make good or to
attempt to make good that failure to its satisfaction.
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15. STATUTORY POWERS
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) may be exercised by the
Security Trustee immediately after the Charge becomes
enforceable under this deed and at any time subsequently; and
(c) are excluded or varied only so far as they are inconsistent
with the express terms of this deed or any Collateral Security.
15.2 Notice not required
To the extent permitted by law:
(a) the Chargor dispenses with any notice or lapse of time required
by any law before enforcing this deed or any Collateral
Security or exercising any Power; and
(b) subject to this deed, no Mortgagee is required to give notice
to any person before enforcement or exercise; and
(c) any law requiring the giving of notice or the compliance with
a procedure or the lapse of time before enforcement or exercise
is excluded.
16. APPLICATION OF MONEYS RECEIVED
16.1 Priorities
The proceeds from the enforcement of the Charge are to be applied
(notwithstanding any order of payment in the Series Notice) in the
following order of priority, subject to any other priority which may be
required by statute or law:
(a) first, 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;
(b) second, to pay (pari passu and rateably):
(i) any fees and other expenses due to the Security
Trustee,the Note Trustee or the Principal Paying
Agent;
(ii) any fees, and unpaid Expenses, due to the Chargor;
and
(iii) the Receiver's remuneration;
(c) third, to pay (pari passu and ratably), any unpaid Accrued
Interest Adjustment due to an Approved Seller;
(d) fourth, to pay (pari passu and rateably):
(i) all Secured Moneys owing to the Support Facility
Providers (other than the Currency Swap Provider);
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(ii) all Secured Moneys owing to the holders of RFSs;
(iii) all Secured Moneys owing to the holders of RFS
Class A Notes;
(iv) all the Secured Moneys owing to the Class A
Noteholders (as at the date of payment);
(v) all Secured Moneys owed by the Chargor as trustee
of the Trust to a Relevant Trust;
(vi) all Secured Moneys owing in relation to any Redraws
made by Westpac for which it has not been reimbursed
under the Trust Documents; and
(vii) all Secured Moneys owing to the Currency Swap
Provider under a Confirmation relating to Class A
Notes(but without double counting with payments
under sub- paragraph (iv));
(e) fifth, all Secured Moneys owing to the Class B Noteholders (as
at the date of payment) and to the Currency Swap Provider under
a Confirmation relating to the Class B Notes, but without double
counting;
(f) sixth, to pay (pari passu and rateably) any amounts not
covered above owing to any Mortgagee under any Trust Document;
(g) seventh, 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;
(h) eighth, to pay any surplus to the Chargor to be distributed in
accordance with the Master Trust Deed.
The surplus will not carry interest. If the Security Trustee
pays the surplus to the credit of an account in the name of the
Chargor with any bank carrying on business in Australia, the
Security Trustee, Receiver, Mortgagee or Attorney (as the case
may be) will be under no further liability in respect of it.
16.2 Moneys actually received
In applying any moneys towards satisfaction of the Secured Moneys, the
Chargor will be credited only with the money available for that purpose
which is actually received by the relevant Mortgagee or, where the
Mortgagee is a Bearer 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 Bearer
Noteholder) to the Note Trustee, the amount which becomes
actually due to it; and
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(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.
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 Agents on
its behalf, pay all amounts credited to the US$ Account as
follows and in accordance with 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 Trustee:
(i) under clause 16.1(f)(iv), will be applied pari passu
to pay all Secured Moneys owing to Class A
Noteholders;
(ii) under clause 16.1(g), will be applied pari passu
to pay all Secured Moneys owing to Class B
Noteholders.
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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 the amount
properly secured by the Security Interest.
(b) Any of:
(i) the proceeds of, or amounts credited to, the
Collateral Account as defined in the Liquidity
Facility Agreement, which are payable to the
Liquidity Facility Provider;
(ii) the proceeds of cash collateral lodged by a Swap
Provider under a Swap Agreement, which are payable
to the Swap Provider;
(iii) 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
Liquidity Facility Provider, Redraw Facility Provider, Swap
Provider or Support Facility Provider (as the case may be).
17. OTHER SECURITY INTERESTS OVER MORTGAGED PROPERTY
(a) Any Mortgagee and any Receiver or Attorney may rely on the
certificate of a holder of another Security Interest affecting
or purporting to affect the Mortgaged Property as to the amount
and property secured by the Security Interest.
(b) The Security Trustee or any Receiver may at any time pay or
agree to pay the amount certified by the holder of a Security
Interest or purported Security Interest to be necessary to
discharge it or some indebtedness secured by it, or to acquire
it. From the date of payment that amount will be part of the
Secured Moneys and the Chargor shall indemnify the Security
Trustee (and if other Mortgagees indemnify the Security Trustee,
those other Mortgagees) and the Receiver against that amount.
This applies whether or not that Security Interest or purported
Security Interest was valid or prior, equal or subsequent
ranking, or the property or moneys stated in the certificate
were secured by it.
18. PROTECTION OF MORTGAGEES, RECEIVER AND ATTORNEY
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 or wilful misconduct on the part of
any Mortgagee, Receiver or Attorney.
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19. PROTECTION OF THIRD PARTIES
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,
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 Series Notice, the Chargor, as trustee of the
Trust, shall reimburse each Mortgagee or (where the Mortgagee is a
Bearer Noteholder) the Note Trustee, Receiver and Attorney for its
expenses in relation to:
(a) any consent, agreement, approval, waiver or amendment under
or in relation to the Trust Documents; and
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(b) 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
(i) any enquiry by a Government Agency concerning the
Chargor or the Mortgaged Property or a transaction or
activity thesubject 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
On demand the Chargor shall indemnify each Mortgagee and each Receiver
and Attorney against any loss, cost, charge, liability or expense that
Mortgagee (or any officer or employee of that Mortgagee) or any Receiver
or Attorney may sustain or incur as a direct or indirect consequence of:
(a) the occurrence of any Event of Default; or
(b) any exercise or attempted exercise of any Power or any
failure to exercise any Power.
21. CURRENCY INDEMNITY
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 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 Bearer
Noteholders) by bank or financial institution.
(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.
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23. INTEREST ON OVERDUE AMOUNTS
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 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 ▇▇▇▇ Rate.
24. CERTIFICATE AS TO AMOUNT OF SECURED MONEYS, ETC.
A certificate signed by an Authorised Signatory of the Security Trustee
will be sufficient evidence against the Chargor, in the absence of 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; and
(d) that the Security Trustee is of the opinion stated in the
certificate.
25. SURVIVAL OF REPRESENTATIONS
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
Each indemnity reimbursement, and similar obligation in a Trust
Document:
(a) is a continuing obligation;
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(b) is a separate and independent obligation;
(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 Series
Notice and clause 16 of this deed and the restriction on
remedies contained in clause 31.
27. CONTINUING SECURITY
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
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
29.1 Release
Upon the Trust 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:
(a) all Secured Moneys (actually or contingently owing) have been
paid in full; and
(b) all the obligations of the Chargor under the Trust Documents
have been performed, observed and fulfilled,
then the Security Trustee shall at the request of the Trust Manager or
the Chargor, and at the cost of the Chargor, release the Mortgaged
Property from the Charge and this deed.
29.2 Contingent liabilities
The Security Trustee shall be under no obligation to grant a release of
the Charge or this deed in respect of the Trust unless at the time such
release is sought:
(a) none of the Secured Moneys in respect of the Trust are
contingently or prospectively owing except where there is no
reasonable likelihood of the contingent or prospective event
occurring; and
(b) the Security Trustee has no contingent or prospective
liabilities in respect of the Trust or otherwise in connection
with this deed whether or not there is any reasonable likelihood
of such liabilities, becoming actual liabilities, including
without limitation, in respect of any bills, notes drafts,
cheques, guarantees, letters of credit or other notes or
documents issued, drawn, endorsed or accepted by the Security
Trustee for the account or at the request of the Chargor for the
Trust.
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29.3 Charge reinstated
If any claim is made by any person that any moneys applied in payment or
satisfaction of the Secured Moneys must be repaid or refunded under any
law (including, 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 Chargor's
expense, 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
(subject to clause 40.17(d), with the prior written consent of the Note
Trustee) agrees otherwise in writing.
30. AMENDMENT
30.1 Approval of Trust Manager
The Security Trustee and the Chargor may, following the giving of notice
to each Designated Rating Agency, and with the written approval of the
Trust Manager and (subject to clause 40.17(d)) the Note Trustee, by way
of supplemental deed alter, add to or modify this deed (including this
clause 30) so long as such alteration, addition or modification is:
(a) to correct a manifest error or ambiguity or is of a formal,
technical or administrative nature only;
(b) in the opinion of the Security Trustee necessary to comply with
the provisions of any law or regulation or with the requirements
of any Government Authority;
(c) in the opinion of the Security Trustee appropriate or expedient
as a consequence of an amendment to any law or regulation or
altered requirements of any Government Agency (including,
without limitation, an alteration, addition or modification
which is in the opinion of the Security Trustee appropriate or
expedient as a consequence of the enactment of a law or
regulation or an amendment to any law or regulation or ruling by
the Commissioner or Deputy Commissioner of Taxation or any
governmental announcement or statement, in any case which has or
may have the effect of altering the manner or basis of taxation
of trusts generally or of trusts similar to the Trust); or
(d) in the opinion of the Security Trustee neither prejudicial nor
likely to be prejudicial to the interest of the Mortgagees as a
whole or any class of Mortgagee.
30.2 Extraordinary Resolution of Voting Mortgagees
Where in the opinion of the Security Trustee 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 Trust Manager shall distribute to all Voting Mortgagees, a copy of
any amendments made pursuant to clause 30.1 or 30.2 as soon as
reasonably practicable after the amendment has been made.
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31. CHARGOR'S LIABILITY
31.1 Capacity of Chargor under this deed
The Chargor enters into this deed as trustee of the Trust and in no
other capacity. The Trust Manager and Security Trustee acknowledge that
the obligations of the Chargor under the Trust Documents together with
all other obligations and liabilities arising on the part of the Chargor
under this deed (collectively called the Liabilities) are incurred by
the Chargor solely in its capacity as trustee of the Trust.
31.2 Limitation on Chargor's liability
Except in the case of fraud, negligence or wilful default on the part of
the Chargor in its capacity as Chargor, the Trust Manager and Security
Trustee may enforce their rights against the Chargor, in any way arising
in respect of the Secured Moneys or this deed, only to the extent that
those rights can be satisfied or paid out of the Mortgaged Property.
31.3 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 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).
31.4 Waiver of personal liability
Except in the case of fraud, negligence or wilful default on the part of
the Chargor in its capacity as Chargor, each of the Trust Manager and
the Security Trustee severally waives its rights and releases the
Chargor from any personal liability whatsoever, for any loss or damage
whatsoever in any way arising in respect of:
(a) the liabilities of the Trust; or
(b) this deed,
which cannot be paid or satisfied out of the Mortgaged Property.
31.5 Unrestricted remedies
Nothing in clause 31.2 limits a Voting Mortgagee in:
(a) obtaining an injunction or other order to restrain any breach
of this deed by any party; or
(b) obtaining declaratory relief.
31.6 Restricted remedies
Except as provided in clause 31.2 and 31.5, a Mortgagee shall not:
(a) (statutory demand) issue any demand under s459E(1) of the
Corporations Law (or any analogous provision under any other
law) against the Chargor;
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(b) (winding up) apply for the winding up or dissolution of the
Chargor;
(c) (execution) levy or enforce any distress or other execution to,
on, or against any assets of the Chargor (other than the Trust
Assets);
(d) (court appointed receiver) apply for the appointment by a
court of a receiver to any of the assets of the Chargor (other
than the Trust Assets);
(e) (set-off or counterclaim) exercise or seek to exercise any
set-off or counterclaim against the Chargor (other than in
respect of the Trust Assets); or
(f) (administrator) appoint, or agree to the appointment, of any
administrator to the Chargor,
or take proceedings for any of the above and the Mortgagee waives its
rights to make those applications and take those proceedings.
32. WAIVERS, REMEDIES CUMULATIVE
(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
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
(a) Any provision of this deed or any Collateral Security which is
prohibited or unenforceable in any jurisdiction is ineffective
as to that jurisdiction to the extent of the prohibition or
unenforceability. That does not invalidate the remaining
provisions of this deed or any Collateral Security nor affect
the validity or enforceability of that provision in any other
jurisdiction.
(b) Without limiting the generality of paragraph (a):
(i) the definition of Secured Moneys does not include any
liability so long as and to the extent that the
inclusion of that liability would avoid, invalidate
or render ineffective clause 3 or 4 or the security
constituted by this deed; and
(ii) the definition of the Mortgaged Property does not
include any asset so long as and to the extent that
the inclusion of that asset would invalidate, avoid
or render ineffective clause 3 or 4 or the security
constituted by this deed.
The Chargor shall use its reasonable endeavours to satisfy any
condition or obtain any Authorisation which may be necessary
to include that liability or asset validly under the Charge or
this deed.
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35. MORATORIUM LEGISLATION
To the full extent permitted by law all legislation which at any time
directly or indirectly:
(a) lessens, varies or affects in favour of the Chargor any
obligation under this deed or any Collateral Security; or
(b) delays, prevents or prejudicially affects the exercise by any
Mortgagee, any Receiver or Attorney, of any Power,
is excluded from this deed and any Collateral Security.
36. ASSIGNMENTS
(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 with the
prior written consent of the Security Trustee (and, subject to
clause 40.17(d), the Note Trustee) and if prior notice has been
given to each Designated Rating Agency and the rating assigned
to each Class of Notes is not thereby affected.
37. NOTICES
(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:
(A) (in the case of delivery in person or by
facsimile transmission) when 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; or
(B) (in the case of delivery by post) 3 days
after it is posted to such an address.
(b) The Security Trustee may give notice to a Mortgagee at the
addresses notified to the Security Trustee by the Chargor or the
Trust Manager as that Mortgagee's address for notice or, where
the Mortgagee is a Noteholder, at the address of the Note
Trustee.
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38. RELATIONSHIP OF MORTGAGEES TO SECURITY TRUSTEE
38.1 Instructions; extent of discretion
(a) The Security Trustee will have no duties or responsibilities
except those expressly set out in this deed or any Collateral
Security.
(b) Subject to this deed, in the exercise of all its Powers the
Security Trustee shall act in accordance with any
Extraordinary Resolution of the Voting Mortgagees.
(c) In the absence of an Extraordinary Resolution of the Voting
Mortgagees, the Security Trustee need not act but may act
(with prior written notice to the Note Trustee) in the best
interests of the Mortgagees.
(d) Any action taken by the Security Trustee under this deed or
any Collateral Security binds all the Mortgagees.
38.2 No obligation to investigate authority
(a) The Chargor need not enquire whether any Extraordinary
Resolution has been passed or as to the terms of any
Extraordinary Resolution.
(b) As between the Chargor on the one hand and the Security Trustee
and the Mortgagees on the other, all action taken by the
Security Trustee under this deed or any Collateral Security will
be taken to be authorised.
38.3 Delegation
The Security Trustee may employ agents and attorneys, and shall exercise
reasonable care in selecting them. The Security Trustee may at the
expense of the Chargor obtain such advice and information from lawyers,
accountants, bankers and other consultants and experts as it considers
desirable to allow it to be properly advised and informed in relation to
its powers and obligations. Before obtaining such advice or information
(unless the advice or information relates to Trust Manager) before the
occurrence of an Event of Default, the Security Trustee shall first
inform the Trust Manager of the need for the advice or information and
obtain the approval of the Trust Manager, which approval shall not be
unreasonably withheld or delayed.
38.4 Reliance on documents and experts
The Security Trustee may rely on:
(a) any document (including any facsimile transmission, telegram or
telex) it believes to be genuine and correct including any
document given by the Chargor under clause 5.1(d) or by the
Trust Manager under clause 5.4; and
(b) advice and statements of lawyers, accountants, bankers and
other consultants and experts, whether or not retained by it.
38.5 Notice of transfer
The Security Trustee may treat each Mortgagee as the holder of the
Mortgagee's rights under the Trust Documents until the Security Trustee
has received a substitution certificate or an instrument of transfer in
a form approved by the Security Trustee.
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38.6 Notice of default
(a) The Security Trustee will be taken not to have knowledge of the
occurrence of an Event of Default unless the Security Trustee
has received notice from a Voting Mortgagee or the Chargor
stating that an Event of Default has occurred and describing it.
(b) If the Security Trustee receives notice of, or becomes aware
of, the occurrence of events or circumstances constituting an
Event of Default and that those events or circumstances do
constitute an Event of Default, the Security Trustee shall
notify the Voting Mortgagees, subject to clause 38.11(b). For
the purposes of this clause and the other provisions of this
deed, the Security Trustee will only be considered to have
notice of or to be aware of any thing if the Security Trustee
has notice or awareness of that thing by virtue of the actual
notice or awareness of the officers of the Security Trustee who
have day to day responsibility for the administration of the
security trust established by this deed.
38.7 Security Trustee as Mortgagee
(a) The Security Trustee in its capacity as a Mortgagee has the
same rights and powers under the 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, Trust Manager and any Mortgagee or
other person as if it were not the Security Trustee. It may
receive consideration for services in connection with any Trust
Document and otherwise without having to account to the
Mortgagees.
38.8 Indemnity to Security Trustee
(a) Subject to the order of payment contained in the Series Notice
and clause 16 of this deed, the Chargor shall indemnify the
Security Trustee (to the extent not reimbursed by the Chargor)
against any loss, cost, liability, expense or damage the
Security Trustee may sustain or incur directly or indirectly
under or in relation to the 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 wilful default.
38.9 Independent investigation
Each Mortgagee confirms that it has made and will continue to make,
independently and without reliance on the Security Trustee or any other
Mortgagee (including the Trust Manager) and based on the Trust
Documents, agreements and information which it regards appropriate:
(a) its own investigations into the affairs of the Chargor; and
(b) its own analyses and decisions whether to take or not take
action under any 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 Trust Manager with any Trust Document
or any other document or agreement or to inspect any property or book of
the Chargor or the Trust Manager.
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38.11 Information
(a) The Chargor authorises:
(i) the Security Trustee to provide any Voting Mortgagee;
and
(ii) the Note Trustee to provide any Bearer Noteholder or
Couponholder,
with any information concerning the affairs, financial
condition or business of the Chargor which may come into the
possession of the Security Trustee or the Note Trustee (as the
case may be). The Security Trustee need not do so.
(b) The Security Trustee is not obliged to disclose any
information relating to the Chargor if in the opinion of the
Security Trustee (on the basis of the advice of its legal
advisers) disclosure would or might breach a law or a duty of
secrecy or confidence.
38.12 Conflicts
(a) Subject to clause 2.2, in the event of any dispute, ambiguity
or doubt as to the construction or enforceability of this deed
or of any other document or the Security Trustee's powers or
obligations under or in connection with this deed or the
determination or calculation or any amount or thing for the
purpose of this deed or the construction or validity of any
direction from the Mortgagees, the Security Trustee may:
(i) obtain and rely on advice from any person referred
to in clause 38.3; and/or
(ii) apply to a court or similar body for any direction or
order the Security Trustee considers appropriate,
and provided the Security Trustee is using reasonable
endeavours to resolve such ambiguity, dispute or doubt, the
Security Trustee, in its absolute discretion, may refuse to act
or refrain from acting in relation to matters affected by such
dispute, ambiguity or doubt.
(b) The Security Trustee has no responsibility for the form or
contents of this deed or any other Trust Document and will have
no liability arising as a result of or in connection with any
inadequacy, invalidity or unenforceability of any provision of
this deed or the other 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 dispositions made under this deed of any Mortgaged
Property or any other property charged to the Security Trustee
by any other person in respect of or relating to the obligations
of any person in respect of the Chargor or the Secured Moneys or
relating in any way to the Mortgaged Property;
(b) any decline in value directly or indirectly arising from the
Security Trustee acting or failing to act as a consequence of an
opinion reached by it; and
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(c) any loss, expense or liability which may be suffered as a
result of any assets secured by the Security Trust Deed,
Mortgaged Property or any deeds or documents of title thereto
being uninsured or inadequately insured or being held by or to
the order of the Servicer or any of its affiliates or by
clearing organisations or their operator or by any person on
behalf of the Note Trustee.
39. RETIREMENT AND REMOVAL OF SECURITY TRUSTEE
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 Trust 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 prior notice being given to each Designated Rating Agency,
the Security Trustee may be removed:
(a) by the Trust Manager if any of the following occurs in relation
to the Security Trustee:
(i) an Insolvency Event occurring in relation to the
Security Trustee in its personal capacity;
(ii) the cessation by the Security Trustee of its
business;
(iii) failure of the Security Trustee to remedy within
fourteen days after written notice by the Trust
Manager any material breach of duty on the part of
the Security Trustee; or
(iv) if without the prior written consent of the Trust
Manager there occurs:
(A) a change in fifty one per cent (or such other
percentage the Trust Manager may in its
absolute discretion determine shall
constitute a change in the effective
control of the Security Trustee) of the
shareholding of the Security Trustee existing
at the date of this deed (whether
occurring at one time or through a series of
succession of transfers or issues of shares):
(B) a change in the effective management of the
Security Trustee as existing at the date of
this deed such that the Security Trustee is
no longer able to fulfil its duties and
obligations in relation to the Mortgaged
Property; or
(C) the establishment by any means of any trust
under which any third party becomes a
beneficial owner of any of the Security
Trustee's rights under this deed; or
(b) at any time by an Extraordinary Resolution of the Voting
Mortgagees.
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39.3 Replacement
(a) Upon notice of resignation or removal the Trust Manager shall
have the right to appoint a successor Security Trustee who has
been previously approved by an Extraordinary Resolution of the
Voting Mortgagees and who accepts the appointment.
(b) If no successor Security Trustee is appointed within 30 days
after notice, the retiring Security Trustee may on behalf of the
Mortgagees appoint a successor Security Trustee (other than
Westpac or a Related Corporation of Westpac) who accepts the
appointment.
(c) On its appointment the successor Security Trustee will have all
the rights, powers and obligations of the retiring Security
Trustee. The retiring Security Trustee will be discharged from
its rights, powers and obligations.
(d) The retiring Security Trustee shall execute and deliver all
Documents or agreements which are necessary or desirable in its
opinion to transfer to the successor Security Trustee this deed
and each Collateral Security or to effect the appointment of the
successor Security Trustee.
(e) After any retiring Security Trustee's resignation or removal,
this deed will continue in effect in respect of anything done or
omitted to be done by it while it was acting as Security
Trustee.
40. MEETINGS OF MORTGAGEES
40.1 Limitation on Security Trustee's powers
Except as provided for in this deed, the Security Trustee shall not
assent or give effect to any matter which a meeting of Voting Mortgagees
is empowered by Extraordinary Resolution to do, unless the Security
Trustee has previously been authorised to do so by an Extraordinary
Resolution of Voting Mortgagees.
40.2 Convening of meetings
(a) (Generally)
(i) Subject to clause 40.17, the Security Trustee or the
Trust Manager at any time may convene a meeting of
the Voting Mortgagees.
(ii) Subject to clause 40.17, and subject to the Security
Trustee being indemnified to its reasonable
satisfaction 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; and
(B) by Voting Mortgagees being holders of not
less than 20% 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 Bearer
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Noteholders have held a meeting in accordance with
the Note Trust Deed and determined how to direct the
Note Trustee to vote 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 Bearer
Noteholders in accordance with the terms of the
Note Trust Deed.
(iii) The proviso in sub-paragraph (i) shall not apply if:
(A) the meeting of Bearer Noteholders called in
accordance with sub-paragraph (ii) is
adjourned more than once; and
(B) the Bearer Noteholders' determination
under sub-paragraph (i) is not made at the
meeting or adjourned meeting (as the case
may be).
(c) (Class of Mortgagees) The provisions of this clause 40
regarding a meeting of the Voting Mortgagees shall apply,
mutatis mutandis, to a meeting of any class of Voting
Mortgagees, other than meetings of the Bearer Noteholders, in
respect of which the provisions of schedule 4 of the Note Trust
Deed relating to meetings of Bearer Noteholders shall apply.
40.3 Notice of meetings
(a) (Period of Notice) Subject to clause 40.3(b), at least 21
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).
(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
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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 50% of the then Secured Moneys shall form a quorum for the
transaction of business 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. If 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 25% 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 50% of the then Secured
Moneys.
(b) (Adjournment of meeting) The chairman may with the consent of
(and shall if directed by) any meeting adjourn the same from
time to time and from place to place but no business shall be
transacted at any adjourned meeting except business which might
lawfully have been transacted at the meeting from which the
adjournment took place.
(c) (Notice of adjourned meeting) At least 5 days' notice of any
meeting adjourned through want of a quorum shall be given in the
same manner as of an original meeting and such notice shall
state the quorum required at such adjourned meeting. It shall
not, however, otherwise be necessary to give any notice of an
adjourned meeting.
40.7 Voting procedure
(a) (Show of hands) Every question submitted to a meeting shall be
decided in the first instance by a show of hands and in case of
equality of votes the chairman shall both on a show of hands and
on a poll have a casting vote in addition to the vote or votes
(if any) to which he may be entitled as a Voting Mortgagee or as
a Representative.
(b) (Declaration) At any meeting, unless a poll is (before or on
the declaration of the result of the show of hands) demanded by
the chairman, the Chargor, the Trust Manager, the Note Trustee
or the Security Trustee or by one or more persons holding, or
being Representative holding or representing, in aggregate not
less than 2% of the then Secured Moneys, a declaration by the
chairman that a resolution has been carried by a particular
majority or lost or not carried by any particular majority shall
be conclusive evidence of the fact without proof of the number
or proportion of the votes recorded in favour of or against that
resolution.
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(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
Bearer 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 $10,000 (but not part thereof) of the
Secured Moneys that he holds or in respect of which
he is a Representative. Any person entitled to more
than one vote need not use or cast all of the votes
to which he is entitled in the same way.
(f) (Evidence) In order for the Note Trustee to vote on behalf of a
Bearer Noteholder under paragraph (e), it must provide evidence
satisfactory to the Security Trustee that it is authorised so to
vote.
40.8 Right to attend and speak
The Chargor, the Trust 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 Mortgagee, to vote at that meeting). No person shall otherwise be
entitled to attend or vote at any meeting of the Voting Mortgagees or to
join with others in requesting the convening of such a meeting unless he
is a Voting Mortgagee or a Representative.
40.9 Appointment of Proxies
(a) (Requirements) Each appointment of a proxy shall be in writing
and shall be deposited at the registered office of the Security
Trustee or in such other place as the Security Trustee shall
designate or approve, together with proof satisfactory to the
Security Trustee of its due execution (if so required by the
Security Trustee), not less than 24 hours before the time
appointed for holding the meeting or adjourned meeting at which
the named proxy proposes to vote, and in default, the
appointment of proxy shall not be treated as valid unless the
chairman of the meeting decides otherwise before that meeting or
adjourned meeting proceeds to business. A notarially certified
copy proof of due execution as specified above (if applicable)
shall, if required by the Security Trustee, be produced by the
proxy at the meeting or adjourned meeting, but the Security
Trustee shall not thereby be obliged to investigate or be
concerned with the validity or the authority of the proxy named
in any such appointment. The proxy named in any appointment of
proxy need not be a Voting Mortgagee.
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(b) (Proxy remains valid) Any vote given in accordance with the
terms of an appointment of proxy set out in clause 40.9(a) shall
be valid notwithstanding the previous revocation or amendment of
the appointment of proxy or of any of the Voting Mortgagee's
instructions pursuant to which it was executed, provided that no
intimation in writing of such revocation or amendment has been
received by the Security Trustee at its registered office, or by
the chairman of the meeting, in each case within the 24 hours
before the commencement of the meeting or adjourned meeting at
which the appointment of proxy is used.
40.10 Corporate Representatives
A person authorised pursuant to sections 249(3)-(6) 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 directed to vote for or against any proposal) have power
generally to act at a meeting for the Voting Mortgagee concerned. The
Security Trustee and any officer of the Security Trustee may be
appointed a Representative.
40.12 Extraordinary Resolutions
(a) (Powers) A meeting of Voting Mortgagees shall, without
prejudice to any rights or powers conferred on other persons by this
deed, have power exercisable by Extraordinary Resolution:
(i) to direct the Security Trustee in the action that
should be taken by it following the occurrence
of an Event of Default or the Charge or this deed
becoming enforceable;
(ii) to sanction any action that the Security Trustee or
a Receiver proposes to take to enforce the
provisions of this deed;
(iii) to sanction any proposal by the Trust Manager, the
Chargor or the Security Trustee for any modification,
abrogation, variation or compromise of, or arrangement
in respect of, the rights of the Mortgagees against
the Chargor or the Trust Manager whether such rights
shall arise under this deed, the 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 Trust Manager or the Security Trustee;
(vi) to give any authority, direction, guidance or
sanction sought by the Security Trustee from the
Voting Mortgagees;
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(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
whichit may become responsible under this deed;
(x) to do any other thing which under this deed is
required to be given by an Extraordinary Resolution
of the Mortgagees;
(xi) to authorise the Security Trustee or any other person
to concur in and execute and do all such documents,
acts and things as may be necessary to carry out and
give effect to any Extraordinary Resolution; or
(xii) to determine whether the Security Trustee should or
should not perform an Act (as defined in clause
40.17), 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; or
(iii) alter the amount of any payment of any part of the
Secured Moneys.
40.13 Extraordinary Resolution binding on Mortgagees
Subject to clause 40.12(b), an Extraordinary Resolution passed at a
meeting of the Voting Mortgagees duly convened and held in accordance
with this clause 40 shall be binding upon all Mortgagees whether or not
present at such meeting and each of the Mortgagees and the Chargor, the
Trust Manager and the Security Trustee shall be bound to give effect to
it accordingly.
40.14 Minutes and records
Minutes of all resolutions and proceedings at every meeting of the
Voting Mortgagees under this clause 40 shall be made and duly entered in
the books to be from time to time provided for that purpose by the
Security Trustee and any such minutes purporting to be signed by the
chairman of the meeting at which those resolutions were passed or
proceedings transacted or by the chairman of the next succeeding meeting
of the Voting Mortgagees shall be conclusive evidence of the matters
contained in those minutes and until the contrary is proved, provided
every meeting in respect of the proceedings of which minutes have been
made and signed as provided in this clause 40.14 shall be deemed to have
been duly convened and held and all resolutions passed or proceedings
transacted in that meeting to have been duly passed and transacted.
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40.15 Written resolutions
Notwithstanding the preceding provisions of this clause 40, a resolution
of all the Voting Mortgagees (including an Extraordinary Resolution) may
be passed, without any meeting or previous notice being required, by an
instrument or notes in writing which have:
(a) in the case of a resolution (including an Extraordinary
Resolution) of all the Voting Mortgagees, been signed by all the
Voting Mortgagees; and
(b) any such instrument shall be effective upon presentation to
the Security Trustee for entry in the records referred to in
clause 40.14
40.16 Further procedures for meetings
Subject to all other provisions contained in this deed, the Security
Trustee may without the consent of the Mortgagees prescribe such further
regulations regarding the holding of meetings of the Voting Mortgagees
and attendance and voting at those meetings as the Security Trustee may
in its sole discretion determine including particularly (but without
prejudice to the generality of the above) such regulations and
requirements as the Security Trustee thinks reasonable:
(a) (persons are Voting Mortgagees) so as to satisfy itself that
persons are in fact Voting Mortgagees who purport to requisition
a meeting or who purport to make any requisition to the Security
Trustee in accordance with this deed;
(b) (entitlement to vote) so as to satisfy itself that persons who
purport to attend or vote at any meeting of Voting Mortgagees
are entitled to do so in accordance with this clause 40 and this
deed; and
(c) (forms of Representative) as to the form of appointment of
a Representative.
40.17 Note Trustee rights
(a) Despite any other provision of this deed, for so long as the
Note Trustee is the only Voting Mortgagee it 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.
(b) Neither the Security Trustee nor the Trust Manager may call a
meeting of Voting Mortgagees while the Note Trustee is the only
Voting Mortgagee, unless the Note Trustee otherwise consents.
(c) Despite any other provision of this deed, at any time while
an Event of Default subsists:
(i) if the Note Trustee is not the only Voting
Mortgagee; and
(ii) if the Note Trustee directs the Security Trustee to
enforce the Charge (whether directed to do so by
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 Note Trustee
was the only Voting Mortgagee.
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(d) Except if the Note Trustee is the only Voting Mortgagee, where
the consent of the Note Trustee is required under
clause 1.2(b), 4.3, 4.4(a)(ii), 5.2, 8.1(b), 8.1(g), 8.2,
9.7(a), 9.7(c), 14, 29.3, 36 or 38.1(c) in relation to a
discretion or act of the Security Trustee (an Act):
(i) the Note Trustee must:
(A) not unreasonably withhold that consent,
giving due consideration to the interest of
Bearer Noteholders; and
(B) respond promptly (and in any event within 5
Business Days) to the Security Trustee
indicating whether the consent is granted or
not (and if it does not reply within 5
Business Days its consent shll be taken to
have been given); and
(ii) subject to paragraph (c), if an Extraordinary
Resolution of Voting Mortgagees determines that
the Act should or should not occur, the Extraordinary
Resolution will override any determination by the
Note Trustee in relation to any such clause.
(e) The Security Trustee shall not be liable to any Mortgagee for
acting, or not acting, on the directions of the Note Trustee,
even if the Security Trustee is actually aware that the Note
Trustee has unreasonably withheld its consent in breach of
sub-paragraph (d)(i)(A).
41. AUTHORISED SIGNATORIES
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
This deed is governed by the laws of the Australian Capital Territory.
The Chargor submits to the non-exclusive jurisdiction of courts
exercising jurisdiction there.
43. COUNTERPARTS
This deed may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
44. SET-OFF
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
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 or any Related Corporation of any Mortgagee
(including any advice, warranty, representation or undertaking);
and
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(b) no Mortgagee nor any Related Corporation of any Mortgagee is
obliged to do anything (including disclose anything or give
advice),
except as expressly set out in the Trust Documents or
in writing duly signed by or on behalf of the Mortgagee or
Related Corporation.
46. INFORMATION MEMORANDUM
The Security Trustee has no responsibility for any statement or
information in or omission from any information memorandum,
advertisement, circular or other document issued by or on behalf of the
Chargor or Trust Manager, including in connection with the issue of
Notes. Neither the Chargor nor the Trust Manager may publish or permit
to be published any such document in connection with the offer of Notes
or an invitation for subscriptions for Notes containing any statement
which makes reference to the Security Trustee without the prior written
consent of the Security Trustee, which consent must not be unreasonably
withheld. In considering whether to give its consent, the Security
Trustee is not required to take into account the interests of the other
Mortgagees.
EXECUTED as a deed in the Australian Capital Territory.
Each attorney executing this deed states that he has no notice of revocation or
suspension of his power of attorney.
CHARGOR
SIGNED SEALED and DELIVERED )
on behalf of WESTPAC SECURITIES )
ADMINISTRATION LIMITED by its
attorney in the presence of: )
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) Signature
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SECURITY TRUSTEE
SIGNED SEALED and DELIVERED )
on behalf of PERPETUAL TRUSTEE )
COMPANY LIMITED by its attorney )
the presence of: )
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) Signature
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TRUST MANAGER
SIGNED SEALED and DELIVERED )
on behalf of )
WESTPAC SECURITISATION MANAGEMENT )
PTY LIMITED by its attorney )
the presence of: )
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) Signature
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Witness Print name
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NOTE TRUSTEE
SIGNED SEALED and DELIVERED )
for and on behalf of )
▇▇▇▇▇▇ GUARANTY TRUST COMPANY )
OF NEW YORK as a deed by its )
attorney in the presence of: )
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) Signature
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