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Security Trust Deed
_________________________________________
AXA Trustees Limited
(Chargor)
National Mutual Life Nominees Limited
(Security Trustee)
Bankers Trust Company
(Note Trustee)
Crusade Management Limited
(Manager)
Crusade Global Trust No. 1 of 1999
Xxxxx Xxxxx & Xxxxxxx
The Chifley Tower
0 Xxxxxxx Xxxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
Tel 00 0 0000 0000
Fax 00 0 0000 0000
(C) Copyright Xxxxx Xxxxx & Xxxxxxx 1999
Xxxxx Xxxxx & Xxxxxxx
Allens
Xxxxxx Xxxxxxxx
Group
Security Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
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Table of Contents
1. Definitions and Interpretation 1
1.1 Definitions 1
1.2 Master Trust Deed definitions and Trust Document amendments 5
1.3 Interpretation 6
1.4 Determination, statement and certificate sufficient evidence 6
1.5 Document or agreement 6
1.6 Rights and obligations of Mortgagees 6
1.7 Transaction Document 7
1.8 Chargor as trustee 7
1.9 Knowledge of the Chargor 7
1.10 Knowledge of Security Trustee 7
2. Appointment of Security Trustee 7
2.1 The Security Trustee 7
2.2 Resolution of Conflicts 8
2.3 Duration of Trust 8
2.4 Covenant 8
3. Charge 9
3.1 Charge 9
3.2 Security 9
3.3 Prospective liability 9
4. Nature of Charge 9
4.1 Priority 9
4.2 Nature of Charge 9
4.3 Dealing with Mortgaged Property 9
4.4 Crystallisation 10
4.5 De-crystallisation 11
5. Covenants and Warranties 11
5.1 Covenant 11
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5.2 Negative covenants 11
5.3 Warranty 12
5.4 Manager's undertakings 13
6. Further Assurances 13
6.1 Further assurances 13
7. Note Trustee 13
7.1 Capacity 13
7.2 Exercise of rights 14
7.3 Instructions or directions 14
7.4 Payments 14
7.5 Notices 14
8. Events of Default 14
8.1 Events of Default 14
8.2 Rights of the Security Trustee upon Event of Default 16
8.3 Notify Events of Default 16
9. Enforcement 16
9.1 Power to enforce 16
9.2 No obligation to enforce 16
9.3 Obligation to convene meeting 17
9.4 Security Trustee to act in accordance with directions 17
9.5 Security Trustee must receive indemnity 18
9.6 Limitation on rights of Mortgagees 18
9.7 Immaterial waivers 18
9.8 Acts pursuant to resolutions 19
9.9 Overriding provision 19
10. Appointment of Receiver 19
10.1 Appointment 19
10.2 Agent of Chargor 20
10.3 Receiver's powers 20
10.4 Receiver appointed after commencement of winding up 22
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10.5 Powers exercisable by the Security Trustee 22
10.6 Withdrawal 23
11. Remuneration of Security Trustee 23
11.1 Costs 23
11.2 Fee 23
11.3 Cessation of Fee 23
12. Power of Attorney 24
13. Completion of Blank Securities 24
14. Performance of Xxxxxxx's Obligations 24
15. Statutory Powers 25
15.1 Powers in augmentation 25
15.2 Notice not required 25
16. Application of Moneys Received 25
16.1 Priorities 25
16.2 Moneys actually received 27
16.3 Amounts contingently due 27
16.4 Notice of subsequent Security Interests 27
16.5 Satisfaction of debts 27
16.6 Payments into US$ Account 28
16.7 Payments out of US$ Account 28
16.8 Excluded amounts 28
16.9 Proportionate Sharing 28
17. Other Security Interests Over Mortgaged Property 29
18. Protection of Mortgagees, Receiver and Attorney 30
19. Protection of Third Parties 30
19.1 No enquiry 30
19.2 Receipt 31
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20. Expenses, Indemnity 31
20.1 Expenses 31
20.2 Indemnity 31
21. Currency Indemnity 32
22. Stamp Duties 32
23. Interest on Overdue Amounts 32
23.1 Accrual 32
23.2 Payment 33
23.3 Rate 33
24. Certificate as to Amount of Secured Moneys, etc. 33
25. Survival of Representations 33
26. Indemnity and Reimbursement Obligations 33
27. Continuing Security 34
28. Other Securities 34
29. Discharge of the Charge 34
29.1 Release 34
29.2 Contingent liabilities 34
29.3 Charge reinstated 34
30. Amendment 35
30.1 Approval of Manager 35
30.2 Extraordinary Resolution of Voting Mortgagees 35
30.3 Distribution of amendments 36
31. Xxxxxxx's Liability 36
31.1 Limitation of liability 36
31.2 Rights against Mortgaged Property preserved 37
31.3 Obligation Express 37
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32. Waivers, Remedies Cumulative 38
33. Consents and Opinion 38
34. Severability of Provisions 38
35. Moratorium Legislation 38
36. Assignments 39
37. Notices 39
38. Relationship of Mortgagees to Security trustee 39
38.1 Instructions; extent of discretion 39
38.2 No obligation to investigate authority 40
38.3 Delegation 40
38.4 Reliance on documents and experts 40
38.5 Notice of transfer 41
38.6 Notice of default 41
38.7 Security Trustee as Mortgagee 41
38.8 Indemnity to Security Trustee 41
38.9 Independent investigation 43
38.10 No monitoring 43
38.11 Information 43
38.12 Conflicts 44
38.13 No Liability 44
39. Retirement and Removal of Security Trustee 45
39.1 Retirement 45
39.2 Removal 45
39.3 Replacement 45
39.4 Rating Agencies Approval 46
40. Meetings of Mortgagees 46
40.1 Limitation on Security Trustee's powers 46
40.2 Convening of meetings 46
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40.3 Notice of meetings 47
40.4 Chairman 48
40.5 Quorum 48
40.6 Adjournment 48
40.7 Voting procedure 49
40.8 Right to attend and speak 50
40.9 Appointment of Proxies 50
40.10 Corporate Representatives 51
40.11 Rights of Representatives 51
40.12 Extraordinary Resolutions 51
40.13 Extraordinary Resolution binding on Mortgagees 52
40.14 Minutes and records 53
40.15 Written resolutions 53
40.16 Further procedures for meetings 53
40.17 Note Trustee rights 53
41. Authorised Signatories 54
42. Governing Law and Jurisdiction 55
43. Counterparts 55
44. Set-Off 55
45. Acknowledgement by Xxxxxxx 55
46. Information Memorandum 55
47. Security Trustee's Limited Liability 56
47.1 Reliance on certificate 56
47.2 Security Trustee's reliance on Manager, Note Trustee or Servicer 56
47.3 Compliance with laws 56
47.4 Reliance on experts 57
47.5 Oversights of others 57
47.6 Powers, authorities and discretions 57
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47.7 Impossibility or impracticability 57
47.8 Legal and other proceedings 58
47.9 No liability except for negligence etc. 58
47.10 Further limitations on Security Trustee's liability 59
47.11 Conflicts 60
47.12 Information 60
47.13 Investigation by Security Trustee 61
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Date 1998
________
Parties
________
1. AXA Trustees Limited (ACN 004 029 841) of Level 2, 00 Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxx, 0000 in its capacity as trustee
of the Crusade Global Trust No. 1 of 1999 (the Chargor);
2. National Mutual Life Nominees Limited (ACN 004 387 133) of 00 Xxxxxx
Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx 2000 (the Security Trustee);
3. Crusade Management Limited (ACN 072 715 916) of 0-00 Xxxxxxxxxx
Xxxxxx, Xxxxxxx, Xxx Xxxxx Xxxxx 0000 (the Manager); and
4. Bankers Trust Company acting through its office at 0 Xxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx (the Note
Trustee, which expression shall, wherever the context requires,
include any other person or company for the time
being a note trustee under the Note Trust Deed).
Recitals
________
A The Chargor is the trustee, and the Manager is the manager, of the
Trust.
B Under the terms of the Master Trust Deed, the Chargor is
authorised to enter into this deed to charge the Trust Assets 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 Noteholder.
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IT IS AGREED as follows.
1. Definitions and Interpretation
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1.1 Definitions
The following definitions apply unless the context requires otherwise.
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Attorney means any attorney appointed under this deed or any Collateral
Security.
Charge means the charge created by this deed.
Xxxxxxx's Indemnity means:
(a) the Chargor's right of indemnity under the Master Trust Deed
from the Trust Assets in respect of liabilities incurred by
the Chargor acting in its capacity as trustee of the Trust; and
(b) all equitable liens and other Security Interests which the
Chargor has over the Trust Assets.
Charge Release Date means, subject to clause 29.3, the date the
Security Trustee discharges the Charge and this deed under clause 29.1.
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 means in relation to the Voting Mortgagees:
(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.
Guarantee means any guarantee, indemnity, letter of credit, legally
binding letter of comfort or suretyship, or any other obligation or
irrevocable offer (whatever called and of whatever nature):
(a) to pay or to purchase;
(b) to provide funds (whether by the advance of money, the
purchase of or subscription for shares or other securities,
the purchase of assets, rights or services, or otherwise) for
the payment or discharge of;
(c) to indemnify against the consequences of default in the payment of; or
(d) to be responsible otherwise for,
an obligation or indebtedness of another person, a dividend,
distribution, capital or premium on shares, stock or other interests,
or the insolvency or financial condition of another person.
Liquidation includes receivership, compromise, arrangement, amalgamation,
administration, reconstruction, winding up, dissolution, assignment for
the benefit of creditors, bankruptcy or death.
Master Trust Deed means the Master Trust Deed dated 14 March 1998 between
the Chargor as Trustee, the Manager and St. Xxxxxx.
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Mortgaged Property means the property and rights mortgaged or charged
by this deed or any Collateral Security.
Mortgagee means:
(a) the Security Trustee in relation to its rights (held in its own
right or for the benefit of other Mortgagees) under this deed;
(b) any Class A Noteholder, in relation to its rights under the Notes
held by it;
(c) any Class B Noteholder in relation to its rights under the
Class B Notes held by it;
(d) any Approved Seller in relation to any relevant Accrued Interest
Adjustment and Redraws;
(e) the Manager in relation to its rights as Manager under the Trust
Documents for the Trust;
(f) the Servicer in relation to its rights as Servicer 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 Class A Noteholders) under the Transaction
Documents;
(i) each Paying Agent in relation to its rights under the Transaction
Documents;
(j) each Mortgage Insurer in relation to any payment by way of timely
payment cover under the relevant Mortgage Insurance Policy; or
(k) each Note Manager in relation to its rights under the Trust Documents.
Noteholder Mortgagees means, together:
(c) the Note Trustee on behalf of the Class A Noteholders save that
where the Note Trustee has become bound to take steps and/or proceed
hereunder and fails to do so within a reasonable time and such
failure is continuing, the Class A Noteholders and then only if and
to the extent permitted by Australian law; and
(d) each Class B Noteholder.
Notice of Creation of Trust means the Notice of Creation of Trust dated
on or about the date of this deed issued under the Master Trust Deed in
relation to the Trust.
Power means a power, right, authority, discretion or remedy which is
conferred on the Security Trustee, a Mortgagee or a Receiver or Attorney:
(a) by this deed or any Collateral Security; or
(b) by law in relation to this deed or any Collateral Security.
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Receiver means a receiver or receiver and manager appointed under this
deed or any Collateral Security.
Relevant Trust means a trust other than the Trust, constituted under
the Master Trust Deed and the Supplementary Terms Notice for the Trust,
of which the Chargor is a trustee.
Representative means:
(a) in the case of a Class A Noteholder, the Note Trustee (as its
representative or any other person appointed as a proxy for
the Noteholders in accordance within this deed);
(b) in the case of any other Mortgagee, a person who is appointed
as a proxy for that Mortgagee pursuant to clause 40.9; and
(c) without limiting the generality of paragraph (a), in the case
of a Voting Mortgagee which is a body corporate, a person who
is appointed pursuant to clause 40.10 by 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. Additionally:
(a) it includes money by way of principal, interest, fees, costs,
indemnities, Guarantee, charges, duties or expenses, or payment of
liquidated or unliquidated damages under or in connection with a
Trust Document, or as a result of any breach of or default under or
in connection with, a Trust Document; and
(b) where the Chargor would have been liable but for its Liquidation, it
will be taken still to be liable.
Settlor means [lb]*].
St. Xxxxxx means St. Xxxxxx Bank Limited (ACN 055 513 070) of 0-00
Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxxx Xxxxx 0000.
Supplementary Terms Notice means the Supplementary Terms Notice dated
on or after the date of this deed relating to the Trust.
Trust means the trust known as the Crusade Global Trust No. 1 of 1999
established under the Notice of Creation of Trust, the Master Trust
Deed and the Supplementary Terms Notice.
Trust Assets means the Assets of the Trust from time to time as defined
in the Master Trust Deed, and includes the rights of the Chargor under
the Trust Documents in respect of the Trust and under the Collection
Account, the Liquidity Account and the US$ Account.
Trust Document means each of:
(a) this deed;
(b) the Master Trust Deed;
(c) the Supplementary Terms Notice;
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(d) the Notice of Creation of Trust;
(e) the Servicing Agreement in respect of the Trust;
(f) the Custodian Agreement in respect of the Trust;
(g) each Note;
(h) each Support Facility for the Trust;
(i) the Agency Agreement;
(j) the Note Trust Deed; or
(k) the Subscription Agreements.
Vesting Date means the day preceding the earliest of:
(a) the 80th anniversary of the date of this deed;
(b) the 21st anniversary of the date of the death of the last survivor
of the lineal descendants of King Xxxxxx X living on the date of this
deed; and
(c) the day after the Charge Release Date.
Voting Mortgagee means:
(a) with respect only to the enforcement of the security under this deed,
for so long as the Secured Moneys of the Class A Noteholders and the
Class B Noteholders are 75% or more of total Secured Moneys, the
Noteholder Mortgagees alone; and
(b) at any other time (subject to clause 40.17):
(i) the Note Trustee, acting on behalf of the Class A Noteholders
under the Note Trust Deed and clause 7 and, if the Note Trustee
has become bound to take steps and/or to proceed hereunder and
fails to do so within a reasonable time and such failure is
continuing, the Noteholders and then only if and to the extent
the Noteholders are able to do so under Australian law; and
(ii) each other Mortgagee (other than a Class A Noteholder).
1.2 Master Trust Deed definitions and Trust Document amendments
(a) Words and expressions which are defined in the Master Trust Deed (as
amended by the Supplementary Terms Notice) and the Supplementary Terms
Notice (including in each case by reference to another agreement)
have the same meanings when used in this deed unless the context
otherwise requires or unless otherwise defined in this deed.
(b) Subject to Clause 30, no change to the Master Trust Deed or any other
document (including the order of payment set out in the Supplementary
Terms Notice) after the date of this deed will change the meaning of
terms used in this deed or adversely affect the rights of the
Security Trustee under this deed unless the Security Trustee
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(subject to clause 40.17(d), with the prior written consent of the
Noteholder Mortgagees) has agreed in writing to the changes.
1.3 Interpretation
Clause 1.2 of the Master Trust Deed applies to this deed as if set out
in full and:
(a) a reference to an asset includes any real or personal, present
or future, tangible or intangible property or asset and any
right, interest, revenue or benefit in, under or derived from
the property or asset;
(b) an Event of Default subsists until it has been waived in writing by
the Security Trustee provided that no such waiver will be capable of
taking effect unless the Security Trustee has first, subject to
clause 40.17(d), obtained the prior written consent of the
Noteholder Mortgages; and
(c) a reference to an amount for which a person is contingently liable
includes an amount which that person may become actually or
contingently liable to pay if a contingency occurs, whether or not
that liability will actually arise.
1.4 Determination, statement and certificate sufficient evidence
Except where otherwise provided in this deed any determination,
statement or certificate by the Security Trustee or an Authorised
Signatory of the Security Trustee provided for in this deed is
sufficient evidence of each thing determined, stated or certified in
the absence of manifest error or proof to the contrary.
1.5 Document or agreement
A reference to:
(a) an agreement includes a Security Interest, Guarantee, undertaking,
deed, agreement or legally enforceable arrangement whether or not in
writing; and
(b) a document includes an agreement (as so defined) in writing or a
certificate, notice, instrument or document.
A reference to a specific agreement or document includes it as amended,
novated, supplemented or replaced from time to time, except to the
extent prohibited by this deed.
1.6 Rights and obligations of Mortgagees
(a) Each Mortgagee is entitled to the benefit of the obligations
(including warranties) of each of the Security Trustee, the Chargor
and any other person under this deed and any Collateral Security.
(b) Subject to Clause 9.5, no Mortgagee is entitled to enforce this deed
or any Collateral Security other than through the Security Trustee.
(c) Each Mortgagee is bound by this deed and each Collateral Security.
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(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 Chargor as trustee
In this deed, except where provided to the contrary:
(a) a reference to the Chargor is a reference to the Chargor in its
capacity as trustee of the Trust only, and in no other capacity; and
(b) a reference to the assets, business, property or undertaking of the
Chargor is a reference to the assets, business, property or
undertaking of the Chargor only in the capacity described in
paragraph (a) above.
1.9 Knowledge of the Chargor
In relation to the Trust, the Chargor will be considered to have
knowledge or notice of or be aware of any matter or thing if the Chargor
has knowledge, notice or awareness of that matter or thing by virtue of
the actual notice or awareness of the officers or employees of the
Chargor who have day to day responsibility for the administration of the
Trust.
1.10 Knowledge of Security Trustee
For the purposes of this deed, the Security Trustee will only be
considered to have knowledge, notice of or to be aware of any thing if
the Security Trustee has knowledge, notice or awareness of that thing by
virtue of the actual knowledge, notice or awareness of the officers or
employees of the Security Trustee who have day to day responsibility
for the administration of the security trust established by this deed.
2. Appointment of Security Trustee
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2.1 The Security Trustee
The Security Trustee:
(a) is appointed to act as trustee on behalf of the Mortgagees on the
terms and conditions of this deed; and
(b) acknowledges and declares that it:
(i) holds the sum of A$10.00 received on the date of this deed from
the Settlor; and
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(ii) will hold the benefit of the Charge, the Mortgaged Property and
the benefit of each of the Trust Documents to which the Security
Trustee is a party,
in each case, on trust for each Mortgagee, in accordance with the terms
and conditions of this deed.
2.2 Resolution of Conflicts
(a) The Security Trustee shall, as regards the exercise of all
discretions vested in it by this deed and all other Transaction
Documents, except where expressly provided otherwise, have regard to
the interest of the Mortgagees.
(b) Subject to the provisions of this deed, if there is at any time, with
respect to enforcement, a conflict between a duty owed by the Security
Trustee to any Mortgagee or class of Mortgagees, and a duty owed by
it to another Mortgagee or class of Mortgagees, the Security Trustee
must give priority to the interests of the Noteholders (which in the
case of Class A Noteholders shall be determined by the Note
Trustee acting on their behalf (as provided in clause 40.17) or the
Class A Noteholders, as provided herein and in the Note Trust Deed
and which, in the case of Class B Noteholders shall be determined
by the Class B Noteholders as provided herein).
(c) Subject to the provisions of this deed (other than paragraph (b)),
the Security Trustee must give priority to the interests only of the
Class A Noteholders if, in the Security Trustee's opinion (in
relation to which in determining the interests of the Class A
Noteholders, the Security Trustee may rely on a determination of the
Note Trustee) there is a conflict between the interests of
the Class A Noteholders and the interests of the Class B Noteholders
or other Mortgagees.
(d) Provided that the Security Trustee acts in accordance with a
determination of the Note Trustee and in good faith, it shall not
incur any liability to any Mortgagee for giving effect to paragraph
(b) or (c).
2.3 Duration of Trust
The Trust established under this deed commences on the date of this
deed and ends on the Vesting Date unless determined earlier.
2.4 Covenant
The Security Trustee covenants for the benefit of the Approved Seller
that it will comply with clause 12.4(l)(i) of the Master Trust Deed in
relation to any Receivable Security or Related Security which the
Chargor or the Approved Seller has notified in writing to the Security
Trustee is affected by a Trust Back.
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3. Charge
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3.1 Charge
(a) Subject to paragraph (b), the Chargor charges to the Security
Trustee, for the Security Trustee and as trustee for the Mortgagees,
all of the present and future Trust Assets and undertaking of the
Trust.
(b) The Charge does not charge any Trust Assets as at the date of this
deed which on the date of this deed are, or are taken under the
applicable stamp duties legislation of the relevant jurisdiction to
be, situated in any State or Territory of Australia other than the
Australian Capital Territory or the Northern Territory.
3.2 Security
(a) The security created by this deed secures the due and punctual
payment of the Secured Moneys.
(b) This deed is given in consideration of the Security Trustee and the
Mortgagees entering into the Trust Documents and for other valuable
consideration received.
3.3 Prospective liability
For the purpose of the Corporations Law the maximum prospective
liability (as defined in the Corporations Law) secured by this deed at
any time is A$2,000,000,000,000 and the total amount recoverable under
this deed is limited to A$2,000,000,000,000 or its equivalent in
another currency.
4. Nature of Charge
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4.1 Priority
The Charge is a first charge and takes priority over all Security
Interests that have been granted over the Mortgaged Property.
4.2 Nature of Charge
The Charge operates, subject to clause 4.4, as a floating charge only,
over all the Mortgaged Property.
4.3 Dealing with Mortgaged Property
(a) Except as expressly permitted in any Trust Document, the Chargor
shall not, and the Manager shall not direct the Chargor to:
(i) create or allow to exist any Security Interest over any
Mortgaged Property; or
(ii) in any other way:
(A) dispose of;
(B) create or allow any interest in; or
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(C) part with possession of,
any Mortgaged Property, except, subject to the Trust Documents,
any disposal of or dealing with any asset for the time being
subject to the floating charge in the ordinary course of its
ordinary business.
(b) Where by law a Mortgagee may not restrict the creation of any
Security Interest over an asset ranking after the Charge, paragraph
(a) will not restrict that creation. However, the Chargor shall
ensure that before that Security Interest is created the holder of
that Security Interest enters into a deed of priority in form and
substance specified by the Security Trustee.
4.4 Crystallisation
The floating charge referred to in clause 4.2 will automatically and
immediately crystallise and operate as a fixed charge:
(a) in respect of any asset:
(i) upon the occurrence of an Event of Default;
(ii) if the Chargor:
(A) creates or allows any Security Interest over;
(B) sells, leases or otherwise disposes of;
(C) creates or allows any interest in; or
(D) parts with possession of,
that asset in breach of a Trust Document, or agrees or attempts
to do so or takes any step towards doing so;
(iii) on the Commissioner of Taxation or his delegate or successor
signing a notice under:
(A) s218 or s255 of the Income Tax Assessment Act 1936;
(B) s74 of the Sales Tax Assessment Act 1992; 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;
(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.
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4.5 De-crystallisation
The Security Trustee must, at the direction of the Manager, at any time
release any asset which has become subject to a fixed charge under
clause 4.4 from the fixed charge by notice to the Chargor. That asset
will then again be subject to the floating charge and to the further
operation of that clause. The Security Trustee must notify the
Designated Rating Agency for each Class of Notes of any such release.
5. Covenants and Warranties
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5.1 Covenant
(a) The Chargor acknowledges its indebtedness to each Mortgagee in
respect of the relevant Secured Moneys. The Chargor shall duly
and punctually pay the Secured Moneys when due in accordance
with the Transaction Documents, including in accordance with
Clause 8.2.
(b) Subject to the limitations on the obligations and liability of
the Chargor under the Master Trust Deed and the other Transaction
Documents, the Chargor shall use its reasonable endeavours to ensure
that no Event of Default occurs.
(c) The Chargor will ensure that it complies with its obligations
under the Trust Documents.
(d) The Chargor will give to the Note Trustee a copy of the Register,
and to the Security Trustee any information in the power or possession
of the Chargor relating to the Trust that the Security Trustee
reasonably requests in connection with the exercise and performance
of its powers and obligations under this deed, including without
limitation:
(i) the identity, and notice details of, each Mortgagee
and Beneficiary; and
(ii) the Secured Moneys owing to each Mortgagee.
(e) The Chargor shall cause this deed to be duly stamped and lodged for
registration with the Australian Securities and Investments
Commission before it issues a Note.
5.2 Negative covenants
The Chargor shall not do, nor shall the Manager direct or cause the
Chargor to do, any of the following without the prior written consent
of the Security Trustee (and, subject to clause 40.17(d) the Noteholder
Mortgagees) and without prior written confirmation from the Designated
Rating Agency for each class of Notes of the rating assigned to the
Notes except as permitted by this deed, the Master Trust Deed or the
Supplementary Terms Notice for the Trust:
(a) (no Financial Indebtedness) create, incur, assume, permit or suffer
to exist any Financial Indebtedness except for:
(i) the Notes;
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(ii) Financial Indebtedness arising under the Trust Documents in
relation to the Trust (including under a Support Facility); or
(iii) Financial Indebtedness which is fully subordinated to the
Secured Moneys or is non-recourse other than with respect to
proceeds in excess of those needed to pay the Secured Moneys,
and which does not constitute a claim against the Chargor in the
event that those excess proceeds are insufficient to pay that
subordinated Financial Indebtedness; or
(iv) Financial Indebtedness when the Chargor has received written
confirmation from the Designated Rating Agencies for each
Class of Notes that it will not result in any reduction or
withdrawal of the ratings assigned to the Notes by the
Designated Rating Agencies;
(b) (no release under Trust Documents) give any release or discharge
(whether full, partial or conditional) to any person in respect of
their obligations under any of the Trust Documents relating to the
Trust, except as permitted by the Trust Documents;
(c) (bank accounts) not open any bank account not permitted in the
Trust Documents; and
(d) (Security Interest) not create or permit or suffer to exist any other
Security Interest over the Mortgaged Property.
5.3 Warranty
The Chargor makes the following representations and warranties.
(a) (Trust Documents representations and warranties) All representations
and warranties of the Chargor in the Trust Documents are true or, if
not yet made, will be true when made.
(b) (Good title) The Chargor is the sole equitable owner of the Mortgaged
Property and has the power under the Master Trust Deed to enter into
this deed and to charge in the manner provided in this deed the
Mortgaged Property. Subject only to the Master Trust Deed and this
deed, the Mortgaged Property is free of all other Security Interests
as far as the Chargor is aware.
(c) (Trust validly created) The Trust has been validly created and is in
existence at the date of this deed.
(d) (Sole trustee) The Chargor has been validly appointed as trustee of
the Trust and is presently the sole trustee of the Trust.
(e) (Master Trust Deed) The Trust is constituted pursuant to the Master
Trust Deed, the Notice of Creation of Trust and the Supplementary
Terms Notice.
(f) (Right of indemnity) As far as the Chargor is aware, except as
expressly provided in the Master Trust Deed or the Supplementary
Terms Notice or statute the Chargor has not limited in any way, and
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the Chargor has no liability which may be set off against, the
Xxxxxxx's Indemnity.
(g) (No proceedings to remove) As far as the Chargor is aware, no
notice has been given to the Chargor and, to the Chargor's knowledge,
no resolution has been passed or direction has been given, removing
the Chargor as trustee of the Trust.
5.4 Manager's undertakings
The Manager undertakes to the Security Trustee when requested promptly
to give to the Security Trustee:
(a) a copy of each custody audit relating to the Trust given under the
Custodian Agreement;
(b) a copy of each Manager's Report given in relation to the Trust;
(c) each audit report issued by the Auditor in relation to the Trust; and
(d) a copy of each Trust Document and details and information relating to:
(i) the identity, and notice details of, each Support Facility
Provider; and
(ii) the Secured Moneys owing to each Support Facility Provider.
6. Further Assurances
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6.1 Further assurances
Whenever the Security Trustee reasonably requests the Chargor to do
anything:
(a) more satisfactorily mortgaging, assuring or securing the Mortgaged
Property to the Mortgagees or the Security Trustee's nominee in a
manner not inconsistent with this deed or any Trust Document; or
(b) aiding in the execution or exercise of any Power,
the Chargor shall do it immediately, subject to any liability it incurs
other than from its own negligence, fraud or Default being covered by
the Chargor's Indemnity. It may include registering this deed,
executing or registering any other document or agreement, delivering
Trust Documents or evidence of title and executing and delivering blank
transfers.
7. Note Trustee
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7.1 Capacity
The Note Trustee is a party to this deed in its capacity as trustee for
the Class A Noteholders from time to time under the Note Trust Deed.
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7.2 Exercise of rights
Except as otherwise provided in this deed and in the Note Trust Deed:
(a) the rights, remedies and discretions of the Class A 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 Class A Noteholders in accordance with the Note
Trust Deed; and
(b) the Class A Noteholders may only exercise enforcement rights in
respect of the Mortgaged Property through the Note Trustee and only
in accordance with this deed and the Note Trust Deed.
7.3 Instructions or directions
The Security Trustee may rely on any instructions or directions given
to it by the Note Trustee as being given on behalf of all Class A
Noteholders from time to time and need not inquire whether the Note
Trustee or the Class A Noteholders from time to time have complied with
any requirements under the Note Trust Deed or as to the reasonableness
or otherwise of the Note Trustee.
7.4 Payments
Any payment to be made to a Class A Noteholder under this deed may be
made to the Note Trustee or a Paying Agent on behalf of that Noteholder.
7.5 Notices
Any notice to be given to a Class A Noteholder under this deed may be
given to the Note Trustee on behalf of that Class A Noteholder. Any
costs to the Note Trustee of publishing such notice to the Noteholders
will be reimbursed by the Chargor to the Note Trustee.
8. Events of Default
--------------------------------------------------------------------------------
8.1 Events of Default
Each of the following is an Event of Default (whether or not it is
within the control of the Chargor).
(a) (Failure to pay) The Chargor fails to pay:
(i) any Interest Entitlement within 10 Business Days of the
Quarterly Payment Date on which the Interest Entitlement was due
to be paid, together with all interest accrued and payable on
that Interest Entitlement; or
(ii) any other Secured Moneys, within 10 Business Days of the due
date for payment (or within any applicable grace period agreed
with the Mortgagees, or where the Mortgagee is a Class
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A Noteholder, with the Note Trustee, to whom the Secured Moneys
relate).
(b) (Breach of obligation) The Chargor fails to perform or observe any
other provisions (other than an obligation referred to in paragraph
(a)) of this deed or a Trust Document where such failure will have a
Material Adverse Effect and that default (if in the opinion of the
Security Trustee capable of remedy) is not remedied within 30 days
after written notice (or such longer period as may be specified
in the notice) from the Security Trustee requiring the failure to be
remedied.
(c) (Insolvency) An Insolvency Event occurs in relation to the Chargor.
(d) (Priority of Charge) The Charge is not or ceases to be a first
ranking charge over the Trust Assets, or any other obligation of the
Chargor (other than as mandatorily preferred by law) ranks ahead of
or pari passu with any of the Secured Moneys.
(e) (Enforcement of security) Any Security Interest over the Trust Assets
is enforced.
(f) (Vitiation of Trust Documents)
(i) All or any part of any Trust Document (other than the Basis
Swap, the Redraw Facility Agreement or, where the Currency Swap
is terminated by the provider of the Currency Swap as a result
of a call exercised by the Trustee under Condition 5(j), the
Currency Swap) is terminated or is or becomes void, illegal,
invalid, unenforceable or of limited force and effect; or
(ii) a party becomes entitled to terminate, rescind or avoid all or
part of any Trust Document (other than the Basis Swap, the
Redraw Facility or, where the Currency Swap is terminated by the
provider of the Currency Swap as a result of a call exercised
by the Trustee under Condition 5(j), the Currency Swap)
where that event has or will have a Material Adverse Effect.
(g) (Trust) Without the prior consent of the Security Trustee (such
consent, subject to clause 40.17(d), having been approved by the
Noteholder Mortgagees):
(i) the Trust is wound up, or the Chargor is required to wind up
the Trust under the Master Trust Deed or applicable law, or the
winding up of the Trust commences;
(ii) the Trust is held or is conceded by the Chargor not to have
been constituted or to have been imperfectly constituted; or
(iii) unless another trustee is contemporaneously and immediately
appointed to the Trust under the Trust Documents, the Chargor
ceases to be authorised under the Trust to hold the property
of the Trust in its name and to perform its obligations under
the Trust Documents.
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8.2 Rights of the Security Trustee upon Event of Default
At any time after an Event of Default occurs, the Security Trustee may,
and shall (subject to clauses 9.2, 9.3, 9.4 and 9.5) if so directed by
an Extraordinary Resolution:
(a) declare the Charge immediately enforceable;
(b) declare the Secured Moneys immediately due and payable;
(c) give a notice crystallising the charge in relation to any or all of
the Mortgaged Property under clause 4.4; and/or
(d) appoint a Receiver over the Trust Assets, or exercise the powers that
a Receiver would otherwise have if appointed under this deed.
The Security Trustee may exercise its rights under this clause
notwithstanding any delay or previous waiver.
8.3 Notify Events of Default
Each of the Chargor and the Manager must promptly notify the Noteholder
Mortgagees, the Security Trustee, and each of the Designated Rating
Agencies if, to the knowledge of its officers who are responsible for
the administration of the Trust, it becomes aware of the occurrence of
an Event of Default, Trustee's Default, Servicer Transfer Event,
Custodial Transfer Event (as defined in the Custodian Agreement), Title
Perfection Event or Manager's Default including full details of that
Event of Default, Trustee's Default, Servicer Transfer Event, Title
Perfection Event, Custodial Transfer Event or Manager's Default (as the
case may be).
9. Enforcement
--------------------------------------------------------------------------------
9.1 Power to enforce
At any time after the Charge becomes enforceable, the Security Trustee
may, at its discretion and without further notice (subject to the terms
of this deed including, without limitation, clause 8.2) take such
proceedings as it may think fit to enforce any of the provisions of
this deed.
9.2 No obligation to enforce
Subject to clause 9.3, pending the receipt of directions from the
Voting Mortgagees as contemplated by clauses 9.3 and 9.4, the Security
Trustee shall not be bound to take any action or give any consent or
waiver or make any determination under this deed (including, without
limiting the generality of the above, to appoint any Receiver, to
declare the Charge enforceable or the Secured Moneys immediately due
and payable pursuant to clause 8.2 or to take any other proceedings
referred to in clause 9.1). Nothing in this clause shall affect the
operation of clause 4.4 or the Charge becoming enforceable prior to the
Security Trustee receiving directions from the Voting Mortgagees.
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9.3 Obligation to convene meeting
(a) Prior to the Security Trustee becoming actually aware of the
occurrence of an Event of Default and provided that it has been
indemnified to its satisfaction in accordance with this deed,
the Security Trustee may enforce this deed without an Extraordinary
Resolution of the Voting Mortgagees if it believes (in its absolute
discretion) that it is necessary to do so to protect the interests
of the Mortgagees.
(b) Following the Security Trustee becoming actually aware of the
occurrence of an Event of Default in accordance with clause 1.10, it
shall, subject to clause 9.7, promptly convene a meeting of the Voting
Mortgagees in accordance with this deed, at which it shall seek
directions from the Voting Mortgagees by way of an Extraordinary
Resolution of the Voting Mortgagees regarding the action it should
take as a result of that Event of Default including whether to do any
of the things referred to in clauses 8.2(a) to (d) inclusive.
9.4 Security Trustee to act in accordance with directions
(a) Subject to sub-clause (b), the Security Trustee shall take all action
necessary to give effect to any Extraordinary Resolution of the
Voting Mortgagees and shall comply with all directions contained in
or given pursuant to any Extraordinary Resolution of the Voting
Mortgagees.
(b) The obligation of the Security Trustee pursuant to sub-clause (a) is
subject to:
(i) this deed; and
(ii) the Security Trustee being adequately indemnified from the
property held on trust under clause 2.1(b) or the Security
Trustee receiving from the Voting Mortgagees (other than the
Note Trustee) an indemnity in a form reasonably satisfactory to
the Security Trustee (which may be by way of an Extraordinary
Resolution of the Voting Mortgagees) against all actions,
proceedings, claims and demands to which it may render itself
liable, and all costs, charges, damages and expenses which
it may incur, in giving effect to an Extraordinary Resolution
of the Voting Mortgagees.
The Security Trustee shall first claim on its indemnity from the
property held on trust under clause 2.1(b) before it claims on any
indemnity from the Mortgagees other than the Note Trustee, including
any indemnity provided under clause 9.5. The Note Trustee is in no
circumstance required to give any indemnity to the Security Trustee.
(c) If an Event of Default is a payment default in respect of a
subordinated class of Notes, as long as there are Class A Notes
outstanding that rank prior to those subordinated Notes, the
Security Trustee shall not take any action without the consent of
the Note
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Trustee acting at the direction of each class of prior ranking Class
A Noteholder by Extraordinary Resolution.
(d) If the Security Trustee becomes bound to take steps and/or proceed
under this deed and it fails to do so within a reasonable time and
such failure is continuing, the Voting Mortgagees may exercise such
powers as they determine by Extraordinary Resolution and then only if
and to the extent the Voting Mortgagees are able to do so under
Australian law.
9.5 Security Trustee must receive indemnity
If:
(i) the Security Trustee convenes a meeting of the Voting Mortgagees,
or is required by an Extraordinary Resolution to take any action
under this deed, and advises the Voting Mortgagees that the
Security Trustee will not act in relation to the enforcement of
this deed unless it is personally indemnified by the Voting
Mortgagees (other than the Note Trustee) to its reasonable
satisfaction against all actions, proceedings, claims and demands
to which it may render itself liable, and all costs, charges,
damages and expenses which it may incur, in relation to the
enforcement of this deed and put in funds to the extent to
which it may become liable (including costs and expenses); and
(ii) those Voting Mortgagees refuse to grant the requested indemnity,
and put it in funds,
then the Security Trustee will not be obliged to act in relation to
that enforcement. In those circumstances, the Voting Mortgagees may
exercise such Powers as they determine by Extraordinary Resolution. The
Note Trustee is in no circumstance required to give any indemnity to
the Security Trustee.
9.6 Limitation on rights of Mortgagees
Subject to this deed (including, without limitation, clauses 9.4(b) and
9.5), the powers, rights and remedies conferred on the Security Trustee
by this deed are exercisable by the Security Trustee only, and no
Mortgagee is entitled without the written consent of the Security
Trustee to exercise the same or any of them. Without limiting the
generality of the foregoing, subject to clause 9.5, no Mortgagee is
entitled to enforce the Charge or the provisions of this deed or to
appoint or cause to be appointed a Receiver to any of the Mortgaged
Property or otherwise to exercise any power conferred by the terms of
any applicable law on charges except as provided in this deed.
9.7 Immaterial waivers
(a) The Security Trustee may (subject to clauses 40.17(d), with the
prior written consent of the Noteholder Mortgagees) agree, on any
terms and conditions as it may deem expedient, having first given
notice to any Designated Rating Agency for each Class of Notes, but
without the consent of the other Mortgagees and without prejudice to
its
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rights in respect of any subsequent breach, to any waiver or
authorisation of any breach or proposed breach of any of the terms and
conditions of the Trust Documents or any of the provisions of this
deed which is not, in the reasonable opinion of the Security Trustee,
materially prejudicial to the interests of the Mortgagees and may
determine that any event that would otherwise be an Event of Default
shall not be treated as an Event of Default for the purpose of this
deed.
(b) No such waiver, authorisation or determination shall be made in
contravention of any directions contained in an Extraordinary
Resolution of Voting Mortgagees.
(c) Any such waiver, authorisation or determination shall, if the
Security Trustee so requires, be notified to the Voting Mortgagees by
the Manager as soon as practicable thereafter in accordance with this
deed.
9.8 Acts pursuant to resolutions
The Security Trustee shall not be responsible for having acted in good
faith upon any resolution purporting to have been passed at any meeting
of the Voting Mortgagees in respect of which minutes have been made and
signed, even though it may subsequently be found that there was some
defect in the constitution of that meeting or the passing of that
resolution or that for any reason that resolution was not valid or
binding upon the Voting Mortgagees.
9.9 Overriding provision
Notwithstanding any other provision of this deed:
(a) the Security Trustee is not obliged to do or omit to do anything
including entering into any transaction or incurring any liability
unless the Security Trustee's liability is limited in a manner
satisfactory to the Security Trustee in its absolute discretion; and
(b) the Security Trustee will not be under any obligation to advance or
use its own funds for the payment of any costs, expenses or
liabilities, except in respect of its own fraud, negligence or
breach of trust.
10. Appointment of Receiver
--------------------------------------------------------------------------------
10.1 Appointment
To the extent permitted by law and subject to clause 9, at any time
after the Charge becomes enforceable under this deed the Security
Trustee or any Authorised Signatory of the Security Trustee may:
(a) appoint any person or any 2 or more persons jointly or severally or
both to be a Receiver of all or any of the Mortgaged Property;
(b) remove any Receiver;
(c) appoint another Receiver in addition to or in place of a Receiver; or
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(d) fix or vary the remuneration of a Receiver.
10.2 Agent of Chargor
(a) Subject to clauses 10.2(b) and 10.4, every Receiver is the agent of
the Chargor. The Chargor alone is responsible for the Receiver's acts
and defaults.
(b) Each Mortgagee acknowledges that:
(i) any Receiver will be the agent of the Chargor in its capacity
as trustee of the Trust only; and
(ii) notwithstanding anything else in this deed or at law, the
Chargor in its personal capacity is not responsible for any
negligent act or negligent omission of the Receiver.
10.3 Receiver's powers
In addition to any powers granted by law, and except to the extent
specifically excluded by the terms of his appointment and in accordance
with the interests of the Mortgagees in accordance with this deed,
every Receiver has power to do anything in respect of the Mortgaged
Property that the Chargor could do (including, without limitation,
having regard to its powers under the Master Trust Deed). However,
every Receiver acknowledges that the Chargor's liability in relation to
the Receiver's exercise of those powers is limited to the assets of the
Trust. His powers include the following.
(a) (Take possession and manage) He may take possession of, get in
and manage the Mortgaged Property.
(b) (Lease) He may lease any of the Mortgaged Property for any term
(whether or not the Receiver has taken possession).
(c) (Carry on business) He may carry on or concur in carrying on any
business.
(d) (Acquire any asset) He may acquire in any manner any asset
(including to take it on lease). After that acquisition it will be
included in the Mortgaged Property.
(e) (Maintain and improve the Mortgaged Property) He may do anything to
maintain, protect or improve any of the Mortgaged Property or to
obtain income or returns from any of the Mortgaged Property
(including by development, sub-division, construction, alteration, or
repair, of any property or by pulling down, dismantling or scrapping,
any property).
(f) (Lend) He may lend money or provide financial accommodation.
(g) (Sell)
(i) He may sell any of the Mortgaged Property (whether or not the
Receiver has taken possession).
(ii) Without limitation, any sale may be made:
(A) by public auction, private treaty or tender;
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Security Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
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(B) for cash or on credit;
(C) in one lot or in parcels;
(D) either with or without special conditions or stipulations
as to title or time or mode of payment of purchase money
or otherwise;
(E) with power to allow the whole or any part of the purchase
money to be deferred (whether with or without any
security); and
(F) whether or not in conjunction with the sale of any property
by any person.
(h) (Options) He may grant or take put or call options.
(i) (Sever fixtures) He may sever fixtures.
(j) (Employ) He may employ or discharge any person as employee,
contractor, agent, professional adviser, consultant or auctioneer
for any purpose.
(k) (Compromise) He may make or accept any arrangement or compromise.
(l) (Give receipts) He may give receipts for money and other assets.
(m) (Perform and enforce agreements) He may:
(i) perform or enforce;
(ii) exercise or refrain from exercising the Chargor's rights and
powers under; or
(iii) obtain the benefit in other ways of,
any documents or agreements or rights which form part of the
Mortgaged Property and any documents or agreements entered into in
exercise of any Power.
(n) (Vary and terminate agreements) He may vary, rescind or terminate any
document or agreement (including surrender or accept the surrender of
leases).
(o) (Authorisations) He may apply for, take up, transfer or surrender any
Authorisation or any variation of any Authorisation.
(p) (Take insolvency proceedings) He may make, commence and pursue
insolvency proceedings against any person and do any thing in
relation to any actual or contemplated Liquidation (including
attend and vote at meetings of creditors and appoint proxies).
(q) (Take proceedings) He may commence, defend, conduct, settle,
discontinue or compromise proceedings in the name of the Chargor or
otherwise.
(r) (Execute Documents) He may enter into and execute documents or
agreements on behalf of himself or the Chargor.
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(s) (Operate bank accounts) He may operate any bank account comprising
part of the Mortgaged Property and open and operate any further bank
account.
(t) (Surrender Mortgaged Property) He may surrender, release or transfer
any of the Mortgaged Property.
(u) (Exchange Mortgaged Property) He may exchange with any person any of
the Mortgaged Property for other property.
(v) (Promote companies) He may promote the formation of companies with a
view to purchasing any of the Mortgaged Property or assuming the
obligations of the Chargor or otherwise.
(w) (Delegate) He may delegate to any person approved by the Security
Trustee any of his Powers (including delegation).
(x) (Have Access) He may exercise all the rights of the Chargor under
the Trust Documents with respect to the Trust Assets.
(y) (Vote) He may exercise any voting or other rights or powers in
respect of any of the Mortgaged Property and do anything in relation
to shares or marketable securities.
(z) (Other outgoings) He may pay any outgoing or indebtedness of the
Chargor or any other person.
(aa) (Security Interests) He may redeem any Security Interest or acquire
it and any debt secured by it.
(bb) (Insure) He may take out insurance.
(cc) (Insurance claims) He may make, enforce, compromise and settle all
claims in respect of insurance.
(dd) (Incidental power) He may do anything incidental to the exercise of
any other Power.
All of the above paragraphs are to be construed independently. None
limits the generality of any other.
10.4 Receiver appointed after commencement of winding up
The power to appoint a Receiver may be exercised even though:
(a) an order may have been made or a resolution may have been passed
for the Liquidation of the Chargor; and
(b) a receiver appointed in those circumstances may not, or may not in
some respects specified by the Receiver, act as the agent of the
Chargor.
10.5 Powers exercisable by the Security Trustee
Whether or not a Receiver has been appointed, the Security Trustee may
exercise any Power of a Receiver at any time after the Charge becomes
enforceable under this deed in addition to any Power of the Mortgagees
and without giving notice. It may exercise those Powers and its Powers
without taking possession or being liable as mortgagee in possession.
Without
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limitation, it may exercise those Powers and its Powers directly or
through one or more agents. In the latter event, anything done or
incurred by such an agent will be taken to be done or incurred by the
Security Trustee provided that the Security Trustee will have no
liability in respect of the negligence or default of any agent appointed
by the Security Trustee with reasonable care for the purpose of
performing functions of a type which are not reasonably capable of
supervision by the Security Trustee.
10.6 Withdrawal
The Security Trustee may at any time (provided it does not have a
Material Adverse Effect) give up possession of any Mortgaged Property
and may at any time withdraw any receivership.
11. Remuneration of Security Trustee
--------------------------------------------------------------------------------
11.1 Costs
In accordance with the Supplementary Terms Notice, the Chargor as trustee
of the Trust shall reimburse the Security Trustee for all costs and
expenses of the Security Trustee properly incurred in acting as Security
Trustee.
11.2 Fee
(a) The Security Trustee shall be entitled to a fee from the proceeds of
the Mortgaged Property at the rate agreed from time to time by the
Chargor, the Security Trustee and the Manager. This fee shall accrue
from day to day.
(b) If the Security Trustee is required at any time to undertake duties
which relate to the enforcement of the terms of any Transaction
Document by the Security Trustee upon a default by any other party
under the terms of that Transaction Document, the Security Trustee is
entitled to such additional remuneration as may be agreed between the
Security Trustee and the Manager or, failing agreement, such amount
as is determined by a merchant bank (acting as an expert and not as
an arbitrator) selected by the Security Trustee. The determination of
such merchant bank shall be conclusive and binding on the Manager and
the Security Trustee so far as the law allows.
(c) The Security Trustee's fee under sub-clause (a) shall be payable in
arrears for the relevant period on the same dates as the Chargor's
fee under the Master Trust Deed for the Trust or as agreed from time
to time by the Chargor, the Security Trustee and the Manager.
11.3 Cessation of Fee
The Security Trustee shall not be entitled to remuneration under clauses
11.1 or 11.2 in respect of any period after the Charge Release Date or
after it has resigned or been removed as Security Trustee.
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12. Power of Attorney
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(a) For valuable consideration and by way of security the Chargor
irrevocably appoints each Receiver and Authorised Signatory of
the Security Trustee severally its attorney to do anything,
following the occurrence of an Event of Default, which:
(i) the Chargor is obliged to do under or in relation to any Trust
Document; or
(ii) any Mortgagee or any Receiver is authorised or empowered to do
under any Trust Document or any law but only at the times that
Mortgagee or a Receiver (if a Receiver had been appointed)
would have been able to do it.
(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 Xxxxxxx'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 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
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15.1 Powers in augmentation
The powers conferred on a mortgagee by law:
(a) are in addition to the Powers conferred by this deed;
(b) (to the extent permitted by law and, subject to clause 40.17(d), and
provided there is sufficient time to do so, with the prior written
consent of the Noteholder Mortgagees) may be exercised by the
Security Trustee immediately after the Charge becomes enforceable
under this deed and at any time subsequently; and
(c) are excluded or varied only so far as they are inconsistent with the
express terms of this deed or any Collateral Security.
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 Supplementary Terms
Notice) in the following order of priority, subject to any other
priority which may be required by statute or law:
(a) first, to pay (pari passu and rateably):
(i) any fees and other expenses due to the Security Trustee or the
Note Trustee;
(ii) any fees and other expenses due to the Principal Paying Agent;
(iii) any Expenses then due and unpaid with respect to the Trust; and
(iv) the Receiver's remuneration;
(b) second, to pay all costs, charges, expenses and disbursements
properly incurred in the exercise of any Power by the Security
Trustee, the Note Trustee, a Receiver or an Attorney or other amounts
(other than
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Security Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
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those referred to in paragraph (d)) payable to the Security Trustee
or the Note Trustee under this deed;
(c) third, to pay any unpaid Accrued Interest Adjustment due to the
Approved Seller;
(d) fourth, to repay the Mortgage Insurer any moneys previously paid
under the Mortgage Insurance Policy by way of timely payment cover
but only to the extent that funds are received from the relevant
Obligor;
(e) fifth, to pay to the Swap Provider under the Interest Rate Swap any
Break Payments received by or on behalf of the Trustee from a
Borrower or the Mortgage Insurer and which have not previously been
paid to that Swap Provider.
(f) sixth, to pay (pari passu and rateably):
(i) all Secured Moneys owing to the Support Facility Providers
(other than the Currency Swap Provider);
(ii) all Secured Moneys owing to the Class A Noteholders (as at the
date of payment);
(iii) all Secured Moneys owing in relation to any Redraws made by the
Approved Seller for which it has not been reimbursed under the
Trust Documents; and
(iv) 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 (ii));
(g) seventh, all Secured Moneys owing to the Class B Noteholders (as at
the date of payment);
(h) eighth, to pay (pari passu and rateably) any amounts not covered
above owing to any Mortgagee under any Trust Document;
(i) ninth, to pay all monies owing to the Mortgage Insurer and not
paid under Clause 16.1(d);
(j) tenth, to pay the holder of any subsequent Security Interest over
Trust Assets of which the Security Trustee has notice of the amount
properly secured by the Security Interest;
(k) eleventh, to pay any surplus to the Chargor to be distributed in
accordance with the Master Trust Deed and the Supplementary Terms
Notice.
The surplus will not carry interest. If the Security Trustee or a
Receiver, Mortgagee or Attorney pays the surplus to the credit of an
account in the name of the Chargor with any bank carrying on business
in Australia, the Security Trustee, Receiver, Mortgagee or Attorney
(as the case may be) will be under no further liability in respect of
it.
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Security Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
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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 Class A Noteholder, the Note Trustee. The credit will
date from the time of receipt.
16.3 Amounts contingently due
If any of the Secured Moneys is contingently owing to any Mortgagee at
the time of a distribution of an amount under clause 16.1, the Security
Trustee may retain any of that amount. If it does, it shall place the
amount retained on short term interest bearing deposit until the
relevant Secured Moneys become actually due or cease to be contingently
owing, or it becomes reasonably apparent that the relevant contingency
will not occur and the Security Trustee shall then:
(a) pay to that Mortgagee, or (where the Mortgagee is a Class A
Noteholder) to the Note Trustee, the amount which becomes actually
due to it; and
(b) apply the balance of the amount retained (together with interest
earned on the deposit) in accordance with clause 16.1.
16.4 Notice of subsequent Security Interests
(a) If any Mortgagee receives actual or constructive notice of a
subsequent Security Interest affecting any of the Mortgaged Property
it may open a separate account in the name of the Chargor in the
books of that Mortgagee.
(b) If that Mortgagee does not open a new account it will be treated as
if it had done so at the time it received actual or constructive
notice of the Security Interest.
(c) From the time the new account is opened or is taken to be opened:
(i) all advances and accommodation made available by that
Mortgagee to the Chargor;
(ii) all payments and repayments made by the Chargor to that
Mortgagee; and
(iii) moneys to be applied towards the Secured Moneys under
clause 16.1,
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
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Security Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
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 Supplementary Terms Notice, the Note Trust
Deed and the Agency Agreement.
(b) All amounts credited to the US$ Account by the Currency Swap Provider
in relation to a payment by the Chargor under clause 16.1(f)(ii),
will be applied pari passu to pay all Secured Moneys owing to Class A
Noteholders.
16.8 Excluded amounts
For the avoidance of doubt, the following amounts shall not be treated
as assets of the Trust available for distribution under clause 16.1.
(a) Any amounts required by law to be paid to the holder of any prior
ranking Security Interest over Trust Assets of which the Security
Trustee has notice which amounts are properly secured by the Security
Interest.
(b) Any of:
(i) the proceeds of cash collateral lodged by the provider of an
Hedge Agreement which are payable to that person under that
Hedge Agreement; and
(ii) the proceeds of any other cash collateral lodged by a Support
Facility Provider under a Support Facility, which are payable
to the Support Facility Provider.
This paragraph (b) shall not apply to the extent that the relevant
moneys are applied in accordance with the relevant document to
satisfy any obligation owed to the Chargor by the relevant Support
Facility Provider.
16.9 Proportionate Sharing
(a) Sharing
Whenever any Mortgagee receives or recovers any money in respect of
any sum due from the Chargor under a Trust Document in any
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Security Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
way (including without limitation by set-off) except those referred
to in clause 16.8 or through distribution by the Security Trustee
under this deed (the Received Moneys).
(i) the Mortgagee shall immediately notify the Security Trustee;
(ii) the Mortgagee shall immediately pay that money to the Security
Trustee (unless the Security Trustee directs otherwise). As
between each class of Class A Noteholders, such payments (if
any) are to be made pari passu and rateably;
(iii) the Security Trustee shall treat the payment as if it were a
payment by the Chargor on account of all sums then payable to
the Mortgagees; and
(iv) (A) the payment or recovery will be taken to have been a
payment for the account of the Security Trustee and not to
the Mortgagee for its own account, and to that extent the
liability of the Chargor to the Mortgagee will not be
reduced by the recovery or payment, other than to the
extent of any distribution received by the Mortgagee under
paragraph (iii); and
(B) (without limiting sub-paragraph (A)) immediately on the
Mortgagee making or becoming liable to make a payment
under paragraph (ii), the Chargor shall indemnify the
Mortgagee against the payment to the extent that (despite
sub-paragraph (A)) its liability has been discharged by
the recovery or payment.
(b) Netting
If a Mortgagee receives or recovers any Received Moneys, and does not
pay that amount to the Security Trustee under paragraph (a) above,
the Security Trustee may retain out of amounts which would otherwise
be payable to the Mortgagee under this deed any amounts which the
Security Trustee considers necessary to put all Mortgagees in the
same position as if that Mortgagee had complied with, or been
required to comply with, paragraph (a) above and the Security
Trustee's obligation to apply monies to such Mortgagee shall be
discharged to the extent of such retention.
17. Other Security Interests Over Mortgaged Property
--------------------------------------------------------------------------------
(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
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Security Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
payment that amount will be part of the Secured Moneys and the
Chargor shall indemnify the Security Trustee (and if other
Mortgagees indemnify the Security Trustee, those other Mortgagees)
and the Receiver against that amount. This applies whether or not
that Security Interest or purported Security Interest was valid or
prior, equal or subsequent ranking, or the property or moneys stated
in the certificate were secured by it.
18. Protection of Mortgagees, Receiver and Attorney
--------------------------------------------------------------------------------
To the extent permitted by law, neither any Mortgagee nor any Receiver
or Attorney will be liable:
(a) in respect of any conduct, delay, negligence or breach of duty in
the exercise or non-exercise of any Power; nor
(b) for any loss (including consequential loss) which results,
except where it arises from fraud, negligence or wilful default on the
part of any Mortgagee, Receiver or Attorney.
19. Protection of Third Parties
--------------------------------------------------------------------------------
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,
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Security Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
any Mortgagee or any Receiver or Attorney, or any person who purports or
is purported to be a Receiver or Attorney.
19.2 Receipt
The receipt of any Authorised Signatory of any Mortgagee or any Receiver
or Attorney (or person who purports, or is purported, to be a Receiver or
Attorney) for any moneys or assets payable to, or receivable or received
by it, exonerates the person paying those moneys or handing over that
asset from being concerned as to their application, or from being liable
or accountable for their loss or misapplication.
20. Expenses, Indemnity
--------------------------------------------------------------------------------
20.1 Expenses
In accordance with the Supplementary Terms Notice and this deed, the
Chargor shall reimburse each Mortgagee or (where the Mortgagee is a
Class A Noteholder who is not a Voting Mortgagee) the Note Trustee,
Receiver and Attorney for its expenses in relation to:
(a) any consent, agreement, approval, waiver or amendment under or in
relation to the Trust Documents; and
(b) (i) any actual or contemplated enforcement of the Trust Documents
or the actual or contemplated exercise, preservation or
consideration of any Powers under the Trust Documents or in
relation to the Mortgaged Property; and
(ii) any enquiry by a Government Agency concerning the Chargor or
the Mortgaged Property or a transaction or activity the
subject of the Trust Documents, or in connection with which,
financial accommodation or funds raised under a Trust Document
are used or provided.
This includes legal costs and expenses (including in-house lawyers
charged at their usual rates) on a full indemnity basis, expenses
incurred in any review or environmental audit, in reimbursing or
indemnifying any Receiver or Attorney or in retaining consultants to
evaluate matters of material concern to that Mortgagee and
administrative costs including time of its executives (whose time and
costs are to be charged at reasonable rates). This does not limit the
generality of clause 20.2.
20.2 Indemnity
Subject to Clause 16.1, on demand the Chargor shall indemnify each
Mortgagee and each Receiver and Attorney against any loss, cost,
charge, 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
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Security Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
(b) any exercise or attempted exercise of any Power or any failure to
exercise any Power.
21. Currency Indemnity
--------------------------------------------------------------------------------
The Chargor shall indemnify each Mortgagee against any deficiency which
arises whenever, for any reason (including as a result of a judgment,
order or Liquidation):
(a) that Mortgagee receives or recovers an amount in one currency (the
Payment Currency) in respect of an amount denominated under a Trust
Document in another currency (the Due Currency); and
(b) the amount actually received or recovered by that Mortgagee in
accordance with its normal practice when it converts the Payment
Currency into the Due Currency is less than the relevant amount of
the Due Currency.
22. Stamp Duties
--------------------------------------------------------------------------------
(a) The Chargor shall pay (and reimburse each Mortgagee for) all stamp,
transaction, registration and similar Taxes (including fines and
penalties) in relation to the execution, delivery, performance or
enforcement of any Trust Document or any payment or receipt or
any other transaction contemplated by any Trust Document.
(b) Those Taxes include financial institutions duty, debits tax or other
Taxes payable by return and Taxes passed on to any Mortgagee (other
than the Note Trustee and the Class A Noteholders) by any bank or
financial institution other than interest withholding tax.
(c) The Chargor shall indemnify each Mortgagee against any liability
resulting from delay or omission to pay those Taxes except to the
extent the liability results from failure by the Mortgagee to pay
any Tax after having been put in funds to do so by the Chargor.
23. Interest on Overdue Amounts
--------------------------------------------------------------------------------
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
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Security Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
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(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 Xxxx Xxxx.
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 and the Mortgagees, in
the absence of manifest error or proof to the contrary:
(a) as to the amount of Secured Moneys stated in the certificate;
(b) that a person specified in that certificate is a Mortgagee;
(c) that a document specified in that certificate is a Trust Document; 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;
(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 Supplementary
Terms Notice and clause 16 of this deed and the restriction on
remedies contained in clause 31.
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Security Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
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 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, subject to Clause 29.2, at the request
of the Manager or the Chargor, and at the cost of the Chargor, release
the Mortgaged Property from the Charge and this deed.
29.2 Contingent liabilities
The Security Trustee shall be under no obligation to release the Charge
in respect of the Trust unless at the time such release is sought the
Security Trustee has no contingent or prospective liabilities in
respect of the Trust or otherwise in connection with this deed whether
or not there is any reasonable likelihood of such liabilities, becoming
actual liabilities, including without limitation, in respect of any
bills, notes drafts, cheques, guarantees, letters of credit or other
notes or documents issued, drawn, endorsed or accepted by the Security
Trustee for the account or at the request of the Chargor for the Trust.
29.3 Charge reinstated
If any claim is made by any person that any moneys applied in payment
or satisfaction of the Secured Moneys must be repaid or refunded under
any law
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Security Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
(including, without limit, any law relating to preferences, bankruptcy,
insolvency or the winding up of bodies corporate) and the Charge has
already been discharged, the Chargor shall, at the expense of the
Trust, promptly do, execute and deliver, and cause any relevant person
to do, execute and deliver, all such acts and notes as the Security
Trustee may require to reinstate this Charge unless the Security
Trustee agrees otherwise in writing.
30. Amendment
--------------------------------------------------------------------------------
30.1 Approval of Manager
The Security Trustee and the Chargor may, following the giving of at
least 10 Business Days prior written notice to each Designated Rating
Agency, and with the written approval of the Manager and (subject to
Clause 40.17(d)) the Noteholder Mortgagees and, by way of supplemental
deed alter, add to or modify this deed (including this clause 30) so
long as such alteration, addition or modification is:
(a) to correct a manifest error or ambiguity or is of a formal,
technical or administrative nature only;
(b) in the opinion of the Security Trustee necessary to comply
with the provisions of any law or regulation or with the
requirements of any Government Agency;
(c) in the opinion of the Security Trustee appropriate or
expedient as a consequence of an amendment to any law or
regulation or altered requirements of any Government Agency
(including, without limitation, an alteration, addition or
modification which is in the opinion of the Security Trustee
appropriate or expedient as a consequence of the enactment of
a law or regulation or an amendment to any law or regulation
or ruling by the Commissioner or Deputy Commissioner of
Taxation or any governmental announcement or statement, in any
case which has or may have the effect of altering the manner
or basis of taxation of trusts generally or of trusts similar
to the Trust); or
(d) in the opinion of the Security Trustee and in accordance with
this deed neither prejudicial nor likely to be prejudicial to
the interest of the Mortgagees as a whole or any class of
Mortgagee.
30.2 Extraordinary Resolution of Voting Mortgagees
Where in the opinion of the Security Trustee and in accordance with
this deed, a proposed alteration, addition or modification to this
deed, other than an alteration, addition or modification referred to in
clause 30.1, is prejudicial or likely to be prejudicial to the interest
of Mortgagees as a whole or any class of Mortgagees, the Security
Trustee and the Chargor may make such alteration, addition or
modification if sanctioned by an Extraordinary Resolution of the Voting
Mortgagees or that class of Voting Mortgagees.
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Security Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
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30.3 Distribution of amendments
The Manager shall distribute to all Voting Mortgagees and each
Designated Rating Agency, a copy of any amendments made pursuant to
clause 30.1 or 30.2 as soon as reasonably practicable after the
amendment has been made.
31. Chargor's Liability
--------------------------------------------------------------------------------
31.1 Limitation of liability
(a) General
Clause 30 of the Master Trust Deed applies to the obligations
and liabilities of the Chargor and the Manager under this deed.
(b) Limitation of Xxxxxxx's Liability
(i) The Chargor enters into this deed only in its
capacity as trustee of the Trust and in no other
capacity (except where the Transaction Documents
provide otherwise). Subject to paragraph (c) below, a
liability arising under or in connection with this
deed or the Trust can be enforced against the Chargor
only to the extent to which it can be satisfied out
of the assets and property of the Trust which are
available to satisfy the right of the Chargor to be
exonerated or indemnified for the liability. This
limitation of the Chargor's liability applies despite
any other provision of this deed and extends to all
liabilities and obligations of the Chargor in any way
connected with any representation, warranty, conduct,
omission, agreement or transaction related to this
deed or the Trust.
(ii) Subject to paragraph (iii) below, no person
(including any Relevant Party) may take action
against the Chargor in any capacity other than as
trustee of the Trust or seek the appointment of a
receiver (except under this deed), or a liquidator,
an administrator or any similar person to the Chargor
or prove in any liquidation, administration or
arrangements of or affecting the Chargor.
(iii) The provisions of this clause 31.1(b) shall not apply
to any obligation or liability of the Chargor to the
extent that it is not satisfied because under a
Transaction Document or by operation of law there is
a reduction in the extent of the Chargor's
indemnification or exoneration out of the Assets of
the Trust as a result of the Chargor's fraud,
negligence, or Default.
(iv) It is acknowledged that the Relevant Parties are
responsible under the Transaction Documents for
performing a variety of obligations relating to the
Trust. No act or omission of the Chargor (including
any related failure to satisfy its obligations under
this deed) will be considered fraud, negligence or
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Security Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
Default of the Chargor for the purpose of paragraph
(iii) above to the extent to which the act or
omission was caused or contributed to by any failure
by any Relevant Party or any person who has been
delegated or appointed by the Chargor in accordance
with this deed or any other Transaction Document to
fulfil its obligations relating to the Trust or by
any other act or omission of a Relevant Party or any
such person.
(v) In exercising their powers under the Transaction
Documents, each of the Chargor, the Security Trustee
and the Noteholders must ensure that no attorney,
agent, delegate, receiver or receiver and manager
appointed by it in accordance with this deed has
authority to act on behalf of the Chargor in a way
which exposes the Chargor to any personal liability
and no act or omission of any such person will be
considered fraud, negligence, or Default of the
Chargor for the purpose of paragraph (iii) above.
(vi) In this clause, Relevant Parties means each of the
Manager, the Servicer, the Calculation Agent, each
Paying Agent, the Note Trustee, and the provider of a
Support Facility.
(vii) Nothing in this clause limits the obligations
expressly imposed on the Chargor under the
Transaction Documents.
31.2 Rights against Mortgaged Property preserved
The Mortgaged Property shall secure to the Security Trustee, and the
Security Trustee shall have recourse to the Mortgaged Property for, all
of the liabilities of the Chargor to the Mortgagees under the Trust
Documents notwithstanding that at general law, under statute or under
the Master Trust Deed the Chargor has not properly incurred such
liability as Chargor or does not have a right of indemnity in relation
to that liability from the Mortgaged Property or has failed to execute
that degree of care, diligence and prudence required of a trustee
(including, without limiting the generality of the foregoing any fraud,
negligence or breach of trust).
31.3 Obligation Express
The Chargor, is not obliged to enter into any commitment or obligation
under this deed, unless:
(a) in the case of commitments or obligations that are expressly
contemplated by a Transaction Document and are between parties
to a Transaction Document, the Chargor's liability is limited
in the same manner as set out in this clause 31; or
(b) in the case of any other commitments or obligations, the
Chargor's liability is limited in a manner satisfactory to the
Chargor in its absolute discretion.
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Security Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
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 relates to it as
trustee of the Trust, but not in respect of the Trust
generally which may be necessary to include that liability or
asset validly under the Charge or this deed.
35. Moratorium Legislation
--------------------------------------------------------------------------------
To the full extent permitted by law all legislation which at any time
directly or indirectly:
(a) lessens, varies or affects in favour of the Chargor any
obligation under this deed or any Collateral Security; or
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Security Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
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(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) to the other Trust Documents, a Mortgagee may assign
its rights under this deed and each Collateral Security. If
this deed or any Mortgagee's interest in it is assigned, the
Secured Moneys will include all actual and contingent
liability of the Chargor to the assignee, whether or not it
was incurred before the assignment or in contemplation of it.
(b) The Chargor may only assign or transfer any of its rights or
obligations under this deed or any Collateral Security in
accordance with the Transaction Documents and if prior notice
has been given to each Designated Rating Agency and such
assignment or transfer has no adverse effect on the ratings of
the Notes.
37. Notices
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(a) All notices, requests, demands, consents, approvals,
agreements or other communications to or by a party to this
deed:
(i) must be in writing;
(ii) must be signed by an Authorised Signatory of the
sender; and
(iii) will be taken to be duly given or made (in the case
of delivery in person, by post, or by facsimile
transmission) when delivered, received or left at the
address of the recipient shown in this deed, to any
other address it may have notified the sender, or as
provided in clause 37(b) but if delivery or receipt
is on a day on which business is not generally
carried on in the place to which the communication is
sent or is later than 4 pm (local time), it will be
taken to have been duly given or made at the
commencement of business on the next day on which
business is generally carried on in that place.
(b) The Security Trustee may give notice to a Mortgagee at the
address notified to the Security Trustee by the Chargor or the
Manager as that Mortgagee's address for notice or, where the
Mortgagee is a Noteholder, at the address of the Note Trustee.
38. Relationship of Mortgagees to Security trustee
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38.1 Instructions; extent of discretion
(a) The Security Trustee will have no duties or responsibilities
except those expressly set out in this deed or any Collateral
Security.
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(b) Subject to this deed, in the exercise of all its Powers the
Security Trustee shall act in accordance with any
Extraordinary Resolution of the Voting Mortgagees.
(c) In the absence of an Extraordinary Resolution of the Voting
Mortgagees, the Security Trustee need not act but, if it does
act, it must act (with prior written notice to the Noteholder
Mortgagees) in the best interests of the Mortgagees in
accordance with this deed.
(d) Any action taken by the Security Trustee under this deed or
any Collateral Security binds all the Mortgagees.
38.2 No obligation to investigate authority
(a) Neither the Chargor nor the Security Trustee need enquire
whether any Extraordinary Resolution has been passed or as to
the terms of any Extraordinary Resolution.
(b) As between the Chargor on the one hand and the Security
Trustee and the Mortgagees on the other, all action taken by
the Security Trustee under this deed or any Collateral
Security will be taken to be authorised.
38.3 Delegation
(a) The Security Trustee may employ agents and attorneys, and,
provided that the Security Trustee exercises reasonable care
in selecting them, providing the Security Trustee and the
agent or attorney, as the case may be, are not related bodies
corporate (as defined in the Corporations Law) the Security
Trustee will not be liable for the acts or omissions of any
such agent or delegate. The Security Trustee may at the
expense of the Chargor obtain such advice and information from
lawyers, accountants, bankers and other consultants and
experts as it considers desirable to allow it to be properly
advised and informed in relation to its powers and
obligations. Before obtaining such advice or information
(unless the advice or information relates to the Manager)
before the occurrence of an Event of Default, the Security
Trustee shall first inform the Manager of the need for the
advice or information and obtain the approval of the Manager,
which approval shall not be unreasonably withheld or delayed.
(b) Notwithstanding other provisions in this clause 38.3, where
the Security Trustee employs a related body corporate as agent
or attorney, the Security Trustee shall be liable for all acts
or omissions of the agent or attorney done or omitted whilst
acting in its capacity as such.
38.4 Reliance on documents and experts
The Security Trustee may rely on:
(a) any document (including any facsimile transmission, telegram
or telex) it reasonably believes to be genuine and correct
including any
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document given by the Chargor under clause 5.1(d) or by the
Manager under clause 5.4; and (b) advice and
(b) advice and statements of lawyers, accountants, bankers and
other consultants and experts, whether or not retained by it.
38.5 Notice of transfer
The Security Trustee may treat each Mortgagee as the holder of the
Mortgagee's rights under the Trust Documents until the Security Trustee
has received a substitution certificate or an instrument of transfer in
a form approved by the Security Trustee.
38.6 Notice of default
(a) The Security Trustee will be taken not to have knowledge of
the occurrence of an Event of Default unless the Security
Trustee has received notice from a Mortgagee or the Chargor
stating that an Event of Default has occurred and describing
it.
(b) If the Security Trustee receives notice of, or becomes aware
of, the occurrence of events or circumstances constituting an
Event of Default and that those events or circumstances do
constitute an Event of Default, the Security Trustee shall
notify the Mortgagees.
38.7 Security Trustee as Mortgagee
(a) The Security Trustee in its capacity as a Mortgagee has the
same rights and powers under the Trust Documents as any other
Mortgagee. It may exercise them as if it were not acting as
the Security Trustee.
(b) The Security Trustee and its Associates may engage in any kind
of business with the Chargor, Manager and any Mortgagee or
other person as if it were not the Security Trustee. It may
receive consideration for services in connection with any
Trust Document and otherwise without having to account to the
Mortgagees.
38.8 Indemnity to Security Trustee
(a) Subject to clause 38.8(b) and to the order of payment
contained in the Supplementary Terms Notice and clause 16 of
this deed, the Chargor shall indemnify the Security Trustee
(to the extent not reimbursed by the Chargor) against any
loss, cost, liability, expense or damage the Security Trustee
may sustain or incur directly or indirectly under or in
relation to the Trust Documents. This does not limit the
Chargor's liability under any other provision.
(b) The Chargor is not liable under this sub-clause for any of the
above to the extent that they arise from the Security
Trustee's fraud, negligence or breach of trust.
(c) (i) Subject to paragraph (c)(iii) below, a liability arising
under or in connection with this deed or the trust constituted
under this deed can be enforced against the Security Trustee
only to
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the extent to which it can be satisfied out of the assets and
property of the trust constituted under this deed which are
available to satisfy the right of the Security Trustee to be
exonerated or indemnified for the liability. This limitation
of the Security Trustee's liability applies despite any other
provision of this deed and extends to all liabilities and
obligations of the Security Trustee in any way connected with
any representation, warranty, conduct, omission, agreement or
transaction related to this deed or the trust constituted
under this deed.
(ii) Subject to paragraph (c)(iii) below, no person (including any
Relevant Party) may take action against the Security Trustee
in any capacity other than as trustee of the trust constituted
under this deed or seek the appointment of a receiver (except
under this deed), or a liquidator, an administrator or any
similar person to the Security Trustee or prove in any
liquidation, administration or arrangements of or affecting
the Security Trustee.
(iii) The provisions of this clause 38.8(c) shall not apply to any
obligation or liability of the Security Trustee to the extent
that it is not satisfied because under a Transaction Document
or by operation of law there is a reduction in the extent of
the Security Trustee's indemnification or exoneration out of
the assets as a result of the Security Trustee's fraud,
negligence or breach of trust.
(iv) It is acknowledged that the Relevant Parties are responsible
under the Transaction Documents for performing a variety of
obligations relating to the Trust and the trust constituted
under this deed. No act or omission of the Security Trustee
(including any related failure to satisfy its obligations
under this deed) will be considered fraud, negligence or
breach of trust of the Security Trustee for the purpose of
paragraph (c)(iii) above to the extent to which the act or
omission was caused or contributed to by any failure by any
Relevant Party or any person who has been delegated or
appointed by the Security Trustee in accordance with this deed
or any other Transaction Document to fulfil its obligations
relating to the Trust or the trust constituted under this deed
or by any other act or omission of a Relevant Party or any
such person.
(v) In exercising their powers under the Transaction Documents,
each of the Chargor, the Security Trustee and the Noteholders
must ensure that no attorney, agent, delegate, receiver or
receiver and manager appointed by it in accordance with this
deed has authority to act on behalf of the Security Trustee in
a way which exposes the Security Trustee to any personal
liability and no act or omission of any such person will be
considered fraud, negligence or breach of trust of the
Security Trustee for the purpose of paragraph (c)(iii) above.
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(vi) The Security Trustee is not obliged to enter into any
commitment or obligation under this deed, unless:
(A) in the case of commitments or obligations that are
expressly contemplated by a Transaction Document and
are between parties to a Transaction Document, the
Security Trustee's liability is limited in the same
manner as set out in this subclause (c); or
(B) in the case of any other commitments or obligations,
the Security Trustee's liability is limited in a
manner satisfactory to the Security Trustee in its
absolute discretion.
(vii) A failure by the Security Trustee to act because it has not
received instructions (or proper instructions) from the
Mortgagees is not fraud, negligence or breach of trust.
(viii) In this clause, Relevant Parties means each of the Manager,
the Servicer, the Calculation Agent, each Paying Agent, the
Note Trustee, and the provider of a Support Facility.
(ix) Nothing in this clause limits the obligations expressly
imposed on the Security Trustee under the Transaction
Documents.
38.9 Independent investigation
Each Mortgagee confirms that it has made and will continue to make,
independently and without reliance on the Security Trustee, the Chargor
or any other Mortgagee (including the Manager) unless otherwise
provided in the Transaction Documents and based on the Trust Documents,
agreements and information which it regards appropriate:
(a) its own investigations into the Trust, the Notes and other
Mortgagee (including the Manager); and
(b) its own analyses and decisions whether to take or not take
action under any Trust Document.
38.10 No monitoring
The Security Trustee is not required to keep itself informed as to the
compliance by the Chargor or the Manager with any Trust Document or any
other document or agreement or to inspect any property or book of the
Chargor or the Manager.
38.11 Information
The Chargor authorises:
(a) the Security Trustee to provide any Mortgagee; and
(b) the Note Trustee and any Paying Agent to provide any
Class A Noteholder,
with any information concerning the Trust and Notes which may come into
the possession of the Security Trustee or the Note Trustee (as the case
may
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be). Save for the information which is required by any Transaction
Document to be provided by it to the respective persons referred to in
paragraph (a) or (b) (as the case may be), none of the Security
Trustee, Note Trustee or any Paying Agent need otherwise provide any
other person with such information.
38.12 Conflicts
(a) Subject to clause 2.2, in the event of any dispute, ambiguity
or doubt as to the construction or enforceability of this deed
or of any other document or the Security Trustee's powers or
obligations under or in connection with this deed or the
determination or calculation of any amount or thing for the
purpose of this deed or the construction or validity of any
direction from the Mortgagees, the Security Trustee may:
(i) obtain and rely on advice from any person referred to
in clause 38.3 and may comply with such direction or
order; and/or
(ii) apply to a court or similar body for any direction or
order the Security Trustee considers appropriate,
and provided the Security Trustee is using reasonable
endeavours to resolve such ambiguity, dispute or doubt, the
Security Trustee, in its absolute discretion, may refuse to
act or refrain from acting in relation to matters affected by
such dispute, ambiguity or doubt.
(b) Neither the Security Trustee nor the Note Trustee has any
responsibility for the form or contents of this deed or any
other Trust Document and will have any liability (except, in
each case, with respect to itself) arising as a result of or
in connection with any inadequacy, invalidity or unenforceability
of any provision of this deed or the other Trust Documents.
38.13 No Liability
Without limitation the Security Trustee shall not be liable for:
(a) any decline in the value or loss realised upon any sale or
other disposition made under this deed of any Mortgaged
Property or any other property charged to the Security Trustee
by any other person in respect of or relating to the
obligations of the Chargor or any person in respect of the
Chargor or the Secured Moneys or relating in any way to the
Mortgaged Property;
(b) any decline or loss directly or indirectly arising from the
Security Trustee acting or failing to act as a consequence of
an opinion reached by it; and
(c) any loss, expense or liability which may be suffered as a
result of any assets secured by this deed, Mortgaged Property
or any deeds or documents of title thereto being uninsured or
inadequately insured or being held by or to the order of the
Servicer or any of its affiliates or
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by clearing organisations or their operator or by any person
on behalf of the Note Trustee,
except for the fraud, negligence or breach of trust of the Security
Trustee.
39. Retirement and Removal of Security Trustee
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39.1 Retirement
Subject to any Trust Document to which the Security Trustee is a party,
and subject also to the appointment of a successor Security Trustee as
provided in this clause, the Security Trustee may retire at any time
upon giving not less than three months' notice (or such shorter period
as the parties may agree) in writing to the Chargor, the Manager, the
Note Trustee and each Designated Rating Agency without assigning any
reason and without being responsible for any costs occasioned by such
retirement.
39.2 Removal
Subject to any Trust Document to which the Security Trustee is a party,
the appointment of a successor Security Trustee as provided in this
clause, and prior notice being given to each Designated Rating Agency,
the Security Trustee may be removed:
(a) by the Manager if any of the following occurs in relation to
the Security Trustee:
(i) an Insolvency Event occurring in relation to the
Security Trustee in its personal capacity;
(ii) the cessation by the Security Trustee of its
business;
(iii) the Security Trustee fails to comply with any of its
obligations under any Transaction Document and such
action has had, or, if continued will have, a Material
Adverse Effect, and, if capable of remedy, that
failure is not remedied within 14 days after the
earlier of (i) the Security Trustee having become
actually aware of that failure and (ii) the Security
Trustee having received written notice with respect
thereto from the Manager; or
(iv) there is a change in effective control of the
Security Trustee from that subsisting as at the date
of this deed unless approved by the Manager; or
(b) at any time by an Extraordinary Resolution of the Voting Mortgagees.
39.3 Replacement
(a) Upon notice of resignation or removal the Manager shall have
the right to appoint a successor Security Trustee who has been
previously approved by an Extraordinary Resolution of the
Voting Mortgagees and who accepts the appointment.
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(b) If no successor Security Trustee is appointed within 30 days
after notice, the retiring Security Trustee may on behalf of
the Mortgagees appoint a successor Security Trustee (other
than St. Xxxxxx or a Related Body Corporate of St. Xxxxxx) who
accepts the appointment. If no such person is willing to
accept this appointment, the Voting Mortgagees may elect a
Security Trustee from among the Voting Mortgagees.
(c) On its appointment the successor Security Trustee will have
all the rights, powers and obligations of the retiring
Security Trustee. The retiring Security Trustee will be
discharged from its rights, powers and obligations, subject to
paragraph (e).
(d) The retiring Security Trustee shall execute and deliver all
Documents or agreements which are necessary or desirable in
its opinion to transfer to the successor Security Trustee this
deed and each Collateral Security or to effect the appointment
of the successor Security Trustee.
(e) After any retiring Security Trustee's resignation or removal,
this deed will continue in effect in respect of anything done
or omitted to be done by it while it was acting as Security
Trustee.
39.4 Rating Agencies Approval
Any resignation or removal of the Security Trustee and appointment of a
successor note trustee will not become effective until acceptance of
the appointment of that successor Security Trustee and confirmation by
the Designated Rating Agencies that such appointment will not cause a
downgrading, qualification or withdrawal of the then current ratings of
the Notes.
40. Meetings of Mortgagees
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40.1 Limitation on Security Trustee's powers
Except as provided for in this deed, the Security Trustee shall not
assent or give effect to any matter which a meeting of Voting
Mortgagees is empowered by Extraordinary Resolution to do, unless the
Security Trustee has previously been authorised to do so by an
Extraordinary Resolution of Voting Mortgagees.
40.2 Convening of meetings
(a) (Generally)
(i) Subject to clause 40.17, the Security Trustee or the
Manager at any time may convene a meeting of the
Voting Mortgagees.
(ii) Subject to clause 40.17, and subject to the Security
Trustee being adequately indemnified out of the
property held on trust under clause 2.1(b) against
all costs and expenses occasioned
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as a result, the Security Trustee shall convene a meeting of
the Voting Mortgagees if requested to do so:
(A) by the Chargor; or
(B) by Voting Mortgagees being holders of not less than
30% of the then Secured Moneys.
(b) (Time and place)
(i) Every meeting of Voting Mortgagees shall be held at
such time and place as the Security Trustee approves,
provided (subject to sub-paragraph (ii) and clause
40.3(b)) that any such meeting shall not be held
until the Class A Noteholders have held a meeting in
accordance with the Note Trust Deed and determined
how to vote or how to direct the Note Trustee to vote
(as the case may be) in the meeting of Voting
Mortgagees.
(ii) Upon receiving notice of a meeting of the Voting
Mortgagees, the Note Trustee shall as soon as
practicable call a meeting of the Class A 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 Class A Noteholders called in
accordance with sub-paragraph (ii) is
adjourned more than once; and
(B) the Class A Noteholders' determination under
sub-paragraph (i) is not made at the meeting
or adjourned meeting (as the case may be).
40.3 Notice of meetings
(a) (Period of Notice) Subject to clause 40.3(b), at least 7 days'
notice (inclusive of the day on which the notice is given and
of the day on which the meeting is held) shall be given to the
Voting Mortgagees, the Beneficiary and all the Designated
Rating Agencies.
(b) (Short notice) Notwithstanding that a meeting is convened upon
shorter notice than as specified in clause 40.3(a), or a
meeting or details of that meeting are not notified, advised
or approved in accordance with this clause 40, it shall be
deemed to be duly convened if it is so agreed by the Voting
Mortgagees representing a quorum (which quorum must include
the Note Trustee or the Class A Noteholders, as the case
maybe).
(c) (Copies) A copy of the notice shall in all cases be given by
the party to this deed convening the meeting to the other
parties to this deed.
(d) (Method of giving notice) Notice of a meeting shall be given
in the manner provided in this deed.
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(e) (Contents of a notice) Notice of a meeting of Voting
Mortgagees shall specify, unless in any particular case the
Security Trustee otherwise agrees:
(i) the day, time and place of the proposed meeting; and
(ii) the nature of the resolutions to be proposed.
(f) (Failure to give notice) The accidental omission to give
notice to or the non-receipt of notice by any person entitled
to receive it shall not invalidate the proceedings at any
meeting.
40.4 Chairman
A person (who need not be a Voting Mortgagee and who may be a
Representative of the Security Trustee) nominated in writing by the
Security Trustee shall be entitled to take the chair at every such
meeting but if no such nomination is made or if at any meeting the
person nominated is not present within 15 minutes after the time
appointed for the holding of that meeting the Voting Mortgagees present
shall choose one of their number to be chairman.
40.5 Quorum
At any such meeting any two or more persons present in person holding,
or being Representatives holding or representing, in the aggregate not
less than 51% of the then Secured Moneys shall form a quorum for the
transaction of business (other than passing an Extraordinary Resolution
in which case the quorum shall be not less than 67.5% of the then
Secured Moneys) and no business (other than the choosing of a chairman)
shall be transacted at any meeting unless the requisite quorum is
present at the commencement of business.
40.6 Adjournment
(a) (Quorum not present) If within 15 minutes from the time
appointed for any such meeting a quorum is not present the
meeting shall, if convened on the requisition of the Voting
Mortgagees be dissolved. In any other case it shall stand
adjourned (unless the Security Trustee agrees that it be
dissolved) for such period, not being less than 7 days nor
more than 42 days, as may be appointed by the chairman. At the
adjourned meeting two or more persons present in person
holding, or being Representatives holding or representing 15%
of the then Secured Moneys shall (except for the purpose of
passing an Extraordinary Resolution) form a quorum and shall
have the power to pass any resolution and to decide upon all
matters which could properly have been dealt with at the
meeting from which the adjournment took place had a quorum
been present at that meeting. The quorum at any such adjourned
meeting for passing a Extraordinary Resolution shall be 20% of
the then Secured Moneys.
(b) (Adjournment of meeting) The chairman may with the consent of
(and shall if directed by) any meeting adjourn the same from
time to time and from place to place but no business shall be
transacted at
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any adjourned meeting except business which might lawfully
have been transacted at the meeting from which the adjournment
took place.
(c) (Notice of adjourned meeting) At least 5 days' notice of any
meeting adjourned through want of a quorum shall be given in
the same manner as of an original meeting and such notice
shall state the quorum required at such adjourned meeting. It
shall not, however, otherwise be necessary to give any notice
of an adjourned meeting.
40.7 Voting procedure
(a) (Show of hands) Every question submitted to a meeting shall be
decided in the first instance by a show of hands and in case
of equality of votes the chairman shall both on a show of
hands and on a poll have a casting vote in addition to the
vote or votes (if any) to which he may be entitled as a Voting
Mortgagee or as a Representative.
(b) (Declaration) At any meeting, unless a poll is (before or on
the declaration of the result of the show of hands) demanded
by the chairman, the Chargor, the Manager, the Note Trustee or
the Security Trustee or by one or more persons holding, or
being a Representative or Representatives holding or
representing, in aggregate not less than 15% of the then
Secured Moneys, a declaration by the chairman that a
resolution has been carried by a particular majority or lost
or not carried by any particular majority shall be conclusive
evidence of the fact without proof of the number or proportion
of the votes recorded in favour of or against that resolution.
(c) (Poll) If at any meeting a poll is so demanded, it shall be
taken in such manner and (subject as provided below) either at
once or after such an adjournment as the chairman directs and
the result of such poll shall be deemed to be the resolution
of the meeting at which the poll was demanded as at the date
of the taking of the poll. The demand for a poll shall not
prevent the continuance of the meeting for the transaction of
any business other than the question on which the poll has
been demanded.
(d) (No adjournment) Any poll demanded at any meeting on the
election of a chairman or on any question of adjournment shall
be taken at the meeting without adjournment.
(e) (Votes) Subject to clause 40.7(a), at any meeting:
(i) on a show of hands, every person holding, or being a
Representative holding or representing other persons
who hold, Secured Moneys shall have one vote except
that the Note Trustee shall represent each Class A
Noteholder who has directed the Note Trustee to vote
on its behalf under the Note Trust Deed; and
(ii) on a poll, every person who is present shall have one
vote for each US$100 (but not part thereof) of the
Secured Moneys
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that he holds or in respect of which he is a Representative.
Any person entitled to more than one vote need not use or cast
all of the votes to which he is entitled in the same way.
(f) (Evidence) A certificate from the Note Trustee to the Security
Trustee that the Note Trustee is entitled to vote on behalf of
a Class A Noteholder will be satisfactory evidence to the
Security Trustee that the Note Trustee is so entitled to vote.
For the purpose of determining the amount of Secured Moneys at any
time, the Security Trustee may rely on the Accounts of the Chargor and
any information provided by the Auditor of the Chargor. Clause 24 will
apply to any determination of Secured Moneys for the definition of
Voting Mortgagee and this Clause 40.
40.8 Right to attend and speak
The Chargor, the Manager, the Security Trustee and the Beneficiary
(through their respective Representatives) and their respective
financial and legal advisers shall be entitled to attend and speak at
any meeting of Voting Mortgagees (and, to the extent that they are also
a Voting Mortgagee, to vote at that meeting). No person shall otherwise
be entitled to attend or vote at any meeting of the Voting Mortgagees
or to join with others in requesting the convening of such a meeting
unless he is a Voting Mortgagee or a Representative.
40.9 Appointment of Proxies
(a) (Requirements) Each appointment of a proxy shall be in writing
and shall be deposited at the registered office of the
Security Trustee or in such other place as the Security
Trustee shall designate or approve, together with proof
satisfactory to the Security Trustee of its due execution (if
so required by the Security Trustee), not less than 24 hours
before the time appointed for holding the meeting or adjourned
meeting at which the named proxy proposes to vote, and in
default, the appointment of proxy shall not be treated as
valid unless the chairman of the meeting decides otherwise
before that meeting or adjourned meeting proceeds to business.
A notarially certified copy proof of due execution as
specified above (if applicable) shall, if required by the
Security Trustee, be produced by the proxy at the meeting or
adjourned meeting, but the Security Trustee shall not thereby
be obliged to investigate or be concerned with the validity or
the authority of the proxy named in any such appointment. The
proxy named in any appointment of proxy need not be a Voting
Mortgagee.
(b) (Proxy remains valid) Any vote given in accordance with the
terms of an appointment of proxy set out in clause 40.9(a)
shall be valid notwithstanding the previous revocation or
amendment of the appointment of proxy or of any of the Voting
Mortgagee's instructions pursuant to which it was executed,
provided that no intimation in writing of such revocation or
amendment has been received by the Security Trustee at its
registered office, or by the
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chairman of the meeting, in each case within the 24 hours
before the commencement of the meeting or adjourned meeting at
which the appointment of proxy is used.
40.10 Corporate Representatives
A person authorised pursuant to 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 Manager, the Chargor
or the Security Trustee for any modification,
abrogation, variation or compromise of, or
arrangement in respect of, the rights of the
Mortgagees against the Chargor or the Manager whether
such rights shall arise under this deed, the Trust
Documents or otherwise;
(iv) to sanction the exchange or substitution of the
Secured Moneys for, or the conversion of the Secured
Moneys into, bonds or other obligations or securities
of the Chargor or any body corporate formed or to be
formed;
(v) to assent to any modification of the provisions
contained in this deed which may be proposed by the
Chargor, the Note Trustee, the Manager or the
Security Trustee;
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(vi) to give any authority, direction, guidance or
sanction sought by the Security Trustee from the
Voting Mortgagees;
(vii) to appoint any persons (whether Voting Mortgagees or
not) as a committee or committees to represent the
interests of the Voting Mortgagees and to confer on
such committee or committees any powers or
discretions which the Voting Mortgagees could
themselves exercise by Extraordinary Resolution;
(viii) to approve a person proposed to be appointed as a new
Security Trustee for the time being;
(ix) to discharge or exonerate the Security Trustee from
any liability in respect of any act or omission for
which it may become responsible under this deed;
(x) to do any other thing which under this deed is
required to be given by an Extraordinary Resolution
of the Mortgagees;
(xi) to authorise the Security Trustee or any other person
to concur in and execute and do all such documents,
acts and things as may be necessary to carry out and
give effect to any Extraordinary Resolution; or
(xii) to determine whether the Security Trustee should or
should not perform an act and any such Extraordinary
Resolution will (where relevant and in accordance
with clause 40.17) override any determination by the
Note Trustee.
(b) (No power) A meeting of Voting Mortgagees shall not have power
in relation to any Mortgagee to:
(i) release any obligation to pay any of the Secured
Moneys to that Mortgagee;
(ii) alter any date upon which any of the Secured Moneys
is payable;
(iii) alter the amount of any payment of any part of the
Secured Moneys; or
(iv) alter clause 16.1 in relation to that Mortgagee,
without the consent of that Mortgagee.
40.13 Extraordinary Resolution binding on Mortgagees
Subject to clause 40.12(b), an Extraordinary Resolution passed at a
meeting of the Voting Mortgagees duly convened and held in accordance
with this clause 40 shall be binding upon all Mortgagees whether or not
present at such meeting and each of the Mortgagees and the Chargor, the
Manager and the Security Trustee shall be bound to give effect to it
accordingly.
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40.14 Minutes and records
Minutes of all resolutions and proceedings at every meeting of the
Voting Mortgagees under this clause 40 shall be made and duly entered
in the books to be from time to time provided for that purpose by the
Security Trustee and any such minutes purporting to be signed by the
chairman of the meeting at which those resolutions were passed or
proceedings transacted or by the chairman of the next succeeding
meeting of the Voting Mortgagees shall be conclusive evidence of the
matters contained in those minutes and until the contrary is proved,
provided every meeting in respect of the proceedings of which minutes
have been made and signed as provided in this clause 40.14 shall be
deemed to have been duly convened and held and all resolutions passed
or proceedings transacted in that meeting to have been duly passed and
transacted.
40.15 Written resolutions
Notwithstanding the preceding provisions of this clause 40, a
resolution of all the Voting Mortgagees (including an Extraordinary
Resolution) may be passed, without any meeting or previous notice being
required, by an instrument or notes in writing which have:
(a) in the case of a resolution (including an Extraordinary
Resolution) of all the Voting Mortgagees, been signed by all
the Voting Mortgagees; and
(b) any such instrument shall be effective upon presentation to
the Security Trustee for entry in the records referred to in
clause 40.14
40.16 Further procedures for meetings
Subject to all other provisions contained in this deed, the Security
Trustee may without the consent of the Mortgagees prescribe such
further regulations regarding the holding of meetings of the Voting
Mortgagees and attendance and voting at those meetings as the Security
Trustee may in its sole discretion determine including particularly
(but without prejudice to the generality of the above) such regulations
and requirements as the Security Trustee thinks reasonable:
(a) (persons are Voting Mortgagees) so as to satisfy itself that
persons are in fact Voting Mortgagees who purport to
requisition a meeting or who purport to make any requisition
to the Security Trustee in accordance with this deed;
(b) (entitlement to vote) so as to satisfy itself that persons who
purport to attend or vote at any meeting of Voting Mortgagees
are entitled to do so in accordance with this clause 40 and
this deed; and
(c) (forms of Representative) as to the form of appointment of a
Representative.
40.17 Note Trustee rights
(a) Despite any other provision of this deed, for so long as the
Noteholder Mortgagees are the only Voting Mortgagees they may
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direct the Security Trustee to do any act or thing which the
Security Trustee is required to do, or may only do, at the
direction of an Extraordinary Resolution of Voting Mortgagees
including those acts or things referred to in clause 40.12 and
the Security Trustee shall, subject to this deed, comply with
such direction of the Noteholder Mortgagees.
(b) Neither the Security Trustee nor the Manager may call a
meeting of Voting Mortgagees while the Noteholder Mortgagees
are the only Voting Mortgagees, unless the Noteholder
Mortgagees otherwise consent.
(c) Despite any other provision of this deed, at any time while
an Event of Default subsists:
(i) if the Noteholder Mortgagees are not the only Voting
Mortgagee; and
(ii) if Noteholder Mortgagees direct the Security Trustee
to enforce the Charge (whether in the case of the Note
Trustee directed to do so by the Class A Noteholders
or as it determines on behalf of the Class A Noteholders),
the Security Trustee shall enforce the Charge under clause 8.2
as if directed to do so by an Extraordinary Resolution of
Voting Mortgagees and paragraph (a) shall apply as if the
Noteholder Mortgagees were the only Voting Mortgagee.
(d) The Security Trustee shall not be liable to any Mortgagee for
acting, or not acting, on the directions of the Noteholder
Mortgagee except where in so doing the Security Trustee
engages in any fraud, negligence or breach of trust.
(e) Any reference to the Noteholder Mortgagees where:
(i) they are the only Voting Mortgagees; or
(ii) where the consent of the Noteholder Mortgagees is
required under this deed in relation to a discretion
or act of the Security Trustee,
means so many of the Noteholder Mortgagees who represent more
than 50% of the aggregate Invested Amount of the Class A Notes
and the Class B Notes.
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.
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42. Governing Law and Jurisdiction
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This deed is governed by the laws of the New South Wales. The Chargor
submits to the non-exclusive jurisdiction of courts exercising
jurisdiction there.
43. Counterparts
--------------------------------------------------------------------------------
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 Xxxxxxx
--------------------------------------------------------------------------------
The Chargor confirms that:
(a) it has not entered into any Trust Document in reliance on, or
as a result of, any conduct of any kind of or on behalf of any
Mortgagee (other than the Manager and the Servicer) or any
Related Body Corporate of any Mortgagee (including any advice,
warranty, representation or undertaking); and
(b) no Mortgagee nor any Related Body Corporate of any Mortgagee
is obliged to do anything (including disclose anything or
give advice),
except as expressly set out in the Trust Documents or in writing duly
signed by or on behalf of the Mortgagee or Related Body Corporate.
46. Information Memorandum
--------------------------------------------------------------------------------
The Security Trustee has no responsibility for any statement or
information in or omission from any information memorandum,
advertisement, circular or other document issued by or on behalf of the
Chargor or Manager, including in connection with the issue of Notes.
Neither the Chargor nor the Manager may publish or permit to be
published any such document in connection with the offer of Notes or an
invitation for subscriptions for Notes containing any statement which
makes reference to the Security Trustee without the prior written
consent of the Security Trustee, which consent must not be unreasonably
withheld. In considering whether to give its consent, the Security
Trustee is not required to take into account the interests of the other
Mortgagees.
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47. Security Trustee's Limited Liability
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47.1 Reliance on certificate
The Security Trustee shall not incur any liability as a result of
relying upon the authority, validity, due authorisation of, or the
accuracy of any information contained in any notice, resolution,
direction, consent, certificate, receipt, affidavit, statement,
valuation report or other document or communication (including any of
the above submitted or provided by the Manager, by the Trustee or by a
Mortgagee) if the Security Trustee is entitled, under clause 47.2 to
assume such authenticity, validity, due authorisation or accuracy.
In preparing any notice, certificate, advice or proposal the Security
Trustee shall be entitled to assume, unless it is actually aware to the
contrary, that each person under any Authorised Investment, Support
Facility, Receivable, Receivable Security, Related Securities, other
Transaction Document or any other deed, agreement or arrangement
incidental to any of the above or to the Trust, will perform their
obligations under those documents in full by the due date and otherwise
in accordance with their terms.
47.2 Security Trustee's reliance on Manager, Note Trustee or Servicer
(a) (Authorised Signatories are sufficient evidence) Whenever any
certificate, notice, proposal, direction, instruction,
document or other communication is to be given to the Security
Trustee, the Security Trustee may assume:
(i) the authenticity and validity of any signature in any
such document and that such document has been duly
authorised; and
(ii) the accuracy of any information contained in any
such documents,
in either case unless the officers of the Security Trustee
responsible for the administration of the Trust are not
actually aware to the contrary.
(b) (Trustee not liable for loss) The Security Trustee shall not
be responsible for any loss arising from any forgery or lack
of authenticity or any act, neglect, mistake or discrepancy of
the Manager, the Note Trustee or a Servicer or any officer,
employee, agent or delegate of the Manager, the Note Trustee
or the Servicer in preparing any such document or in
compiling, verifying or calculating any matter or information
contained in any such document, if the officers of the
Security Trustee responsible for the administration of the
Trust are not actually aware of such forgery, lack of
authenticity or validity, act, neglect, mistake or
discrepancy.
47.3 Compliance with laws
The Security Trustee shall not incur any liability to anyone in respect
of any failure to perform or to do any act or thing which by reason of
any provision
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of any applicable present or future law of any place or any applicable
ordinance, rule, regulation or by law or of any applicable decree,
order or judgment of any competent court or other tribunal, the
Security Trustee shall be prohibited from doing or performing.
47.4 Reliance on experts
The Security Trustee may rely on and act on the opinion or statement or
certificate or advice of or information obtained from the Note Trustee,
the Servicer, barristers or solicitors (whether instructed by the
Security Trustee or not), bankers, accountants, brokers, valuers and
other persons believed by it in good faith to be expert or properly
informed in relation to the matters on which they are consulted and the
Security Trustee shall not be liable for anything done or suffered by
it in good faith in reliance on such opinion, statement, certificate,
advice or information except to the extent of losses, costs, claims or
damages caused by the Security Trustee's fraud, negligence or breach of
trust.
47.5 Oversights of others
Having regard to the limitations on the Security Trustee's duties,
powers, authorities and discretions under this deed, the Security
Trustee shall not be responsible for any act, omission, misconduct,
mistake, oversight, error of judgment, forgetfulness or want of
prudence on the part of any person or agent appointed by the Security
Trustee or on whom the Security Trustee is entitled to rely under this
deed (other than a Related Body Corporate), attorney, banker, receiver,
barrister, solicitor, agent or other person acting as agent or adviser
to the Security Trustee except to the extent of losses, costs, claims
or damages caused by the Security Trustee's fraud, negligence or breach
of trust, provided that nothing in this deed or any other Transaction
Document imposes any obligations on the Security Trustee to review or
supervise the performance by any other party of its obligations.
47.6 Powers, authorities and discretions
Except as otherwise provided in this deed and in the absence of fraud,
negligence or breach of trust, the Security Trustee shall not be in any
way responsible for any loss (whether consequential or otherwise),
costs, damages or inconvenience that may result from the exercise or
non-exercise of any powers, authorities and discretions vested in it.
47.7 Impossibility or impracticability
If for any other reason it becomes impossible or impracticable for it
to carry out any or all of the provisions of this deed or any other
Transaction Document, the Security Trustee shall not be under any
liability and, except to the extent of its own fraud, negligence or
breach of trust, nor shall it incur any liability by reason of any
error of law or any matter or thing done or suffered or omitted to be
done in good faith by it or its officers, employees, agents or
delegates.
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47.8 Legal and other proceedings
(a) (Indemnity for legal costs) The Security Trustee shall be
indemnified out of the Trust for all legal costs and
disbursements on a full indemnity basis and all other costs,
disbursements, outgoings and expenses incurred by the Security
Trustee in connection with:
(i) the enforcement or contemplated enforcement of, or
preservation of rights under;
(ii) without limiting the generality of paragraph (i)
above, the initiation, defence, carriage and
settlement of any action, suit, proceeding or dispute
in respect of; and
(iii) obtaining legal advice or opinions concerning or
relating to the interpretation or construction of,
this deed or any other Transaction Document or otherwise under
or in respect of the Trust provided that the enforcement,
contemplated enforcement or preservation by the Security
Trustee (as the case may be) of the rights referred to in
paragraph (i) or the court proceedings referred to in
paragraph (ii) (including in each case the defence of any
action, suit, proceeding or dispute brought against the
Security Trustee), and the basis of incurring any of those
costs, disbursements, outgoings and expenses by the Security
Trustee:
(iv) has been approved in advance by an Extraordinary
Resolution of the Voting Mortgagees; or
(v) the Security Trustee reasonably considers the
incurring of those costs, disbursements, outgoings
and expenses to be necessary to protect the Security
Trustee against potential personal liability.
(b) (Defence of proceedings alleging negligence etc.) The Security
Trustee shall be entitled to claim in respect of the above
indemnity from the Trust for its expenses and liabilities
incurred in defending any action, suit, proceeding or dispute
in which fraud, negligence or breach of trust is alleged or
claimed against it, but on the same being proved, accepted or
admitted by it, it shall from its personal assets immediately
repay to the Trust the amount previously paid by the Trust to
it in respect of that indemnity.
47.9 No liability except for negligence etc.
Except to the extent caused by the fraud, negligence or breach of trust
on the Security Trustee's part or on the part of any of its officers or
employees, or any agents or delegate, sub-agent, sub-delegate employed
by the Security Trustee in accordance with this deed (and where this
deed provides that the Security Trustee is liable for the acts or
omissions of any such person) to carry out any transactions
contemplated by this deed, the Security Trustee shall not be liable
personally for any losses, costs, liabilities or claims arising from
the failure to pay moneys on the due date for payment to any Mortgagee
or any other person or for any loss howsoever caused in respect of any
of the Trust or to any Mortgagee or other person.
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47.10 Further limitations on Security Trustee's liability
Subject to clause 47.2, the Security Trustee shall not be liable:
(a) for any losses, costs, liabilities or expenses arising out of
the exercise or non-exercise of its discretion or for any
other act or omission on its part under this deed, any other
Transaction Document or any other document except where the
exercise or non-exercise of any discretion, or any act or
omission, by the Security Trustee, or any of its officers or
employees, or any agent, delegate, sub-agent, sub-delegate
employed by the Security Trustee in accordance with this deed
(and where this deed provides that the Security Trustee is
liable for the acts or omissions of any such person) to carry
out any transactions contemplated by this deed, constitutes
fraud, negligence or breach of trust;
(b) for any losses, costs, damages or expenses caused by its
acting (in circumstances where this deed requires it to act or
contemplates that it may so act) on any instruction or
direction given to it by:
(i) any Mortgagee under this deed, any other Transaction
Document or any other document;
(ii) by any person under a Support Facility, Receivable or
Receivable Security; or
(iii) an Obligor,
except to the extent that it is caused by the fraud, negligence
or breach of trust of the Security Trustee, or any of its
officers or employees, or an agent or delegate employed by the
Security Trustee in accordance with this deed to carry out any
transactions contemplated by this deed;
(c) for any Manager's Default, Servicer Transfer Event or Title
Perfection Event;
(d) without limiting the Security Trustee's obligations under the
Transaction Documents, for any act, omission or default of the
Servicer in relation to its servicing duties or its
obligations under the Servicing Agreement;
(e) without limiting the Security Trustee's obligations under the
Transaction Documents, for any act, omission or default of the
Custodian in relation to its custodial duties or its
obligations under the Custodian Agreement;
(f) without limiting the Security Trustee's obligations under the
Transaction Documents, for any act, omission or default of the
Note Trustee in relation to its obligations under the
Transaction Documents;
(g) without limiting the Security Trustee's obligations under the
Transaction Documents, for any act, omission or default of a
Paying Agent in relation to its obligations under the
Transaction Documents;
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(h) without limiting the Security Trustee's obligations under the
Transaction Documents, for any act, omission or default of the
Calculation Agent in relation to its obligations under the
Transaction Documents;
(i) for the failure of a person to carry out an agreement with the
Security Trustee in connection with the Trust; or
(j) for any losses, costs, liabilities or expenses caused by the
Security Trustee's failure to check any calculation,
information, document, form or list supplied or purported to
be supplied to it by the Manager, the Note Trustee or the
Servicer,
except, in the case of paragraphs (c) to (j) (inclusive), to the extent
that it is caused by the fraud, negligence or breach of trust of the
Security Trustee.
Nothing in this clause 47.10 alone (but without limiting the operation
of any other clause of this deed) shall imply a duty on the Security
Trustee to supervise the Manager or the Note Trustee in the performance
of the Manager's or the Note Trustee's functions and duties, and the
exercise by the Manager or the Note Trustee of its discretions.
47.11 Conflicts
(a) (Not liable to account) A Relevant Person shall not be in any
way liable to account to any Mortgagee or any other person
for any profits or benefits (including any profit, bank
charges, commission, exchange, brokerage and fees) made or
derived under or in connection with any transaction or contract
specified in paragraph (a) above.
(b) (Fiduciary relationship) A Relevant Person shall not by reason
of any fiduciary relationship be in any way precluded from making
any contracts or entering into any transactions with any such
person in the ordinary course of its business or from undertaking
any banking, financial, development, agency or other services
including any contract or transaction in relation to the placing
of or dealing with any investment and the acceptance of any
office or profit or any contract of loan or deposits or other
contract or transaction which any person or company not being
a party to this deed could or might have lawfully entered into
if not a party to this deed. A Relevant Person shall not be
accountable to any Mortgagee or any other person for any
profits arising from any such contracts, transactions or offices.
47.12 Information
Except for notices and other documents and information (if any)
expressed to be required to be furnished to any person by the Security
Trustee under this deed or any other Transaction Document, the Security
Trustee shall not have any duty or responsibility to provide any person
(including any Mortgagee) with any credit or other information
concerning the affairs, financial condition or business of the Trust.
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47.13 Investigation by Security Trustee
Each Mortgagee acknowledges that:
(a) the Security Trustee has no duty, and is under no obligation,
to investigate whether a Manager's Default, Servicer Transfer
Event or Title Perfection Event has occurred in relation to
the Trust other than where it has actual notice;
(b) the Security Trustee is required to provide the notices
referred to in this deed in respect of a determination of
Material Adverse Effect only if it is actually aware of the
facts giving rise to the Material Adverse Effect; and
(c) in making any such determination, the Security Trustee will
seek and rely on advice given to it by its advisors in a
manner contemplated by this deed.
EXECUTED as a deed in Sydney.
Each attorney executing this deed thereby states that he has no notice of
alteration to, or revocation or suspension of, his power of attorney.
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Security Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
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CHARGOR
SIGNED XXXXXX and DELIVERED )
on behalf of )
AXA TRUSTEES LIMITED )
(ACN 004 029 841) )
)
by its attorney under Power of Attorney )
dated )
in the presence of: )
-----------------------------------
Signature
-------------------------------------- -----------------------------------
Witness Print name
--------------------------------------
Print name
SECURITY TRUSTEE
SIGNED XXXXXX and DELIVERED )
on behalf of )
NATIONAL MUTUAL LIFE )
NOMINEES LIMITED )
(ACN 004 387 133) )
)
by its attorney under Power of Attorney )
dated )
in the presence of: )
-----------------------------------
Signature
-------------------------------------- -----------------------------------
Witness Print name
--------------------------------------
Print name
--------------------------------------------------------------------------------
Page 62
MANAGER
SIGNED SEALED and DELIVERED )
on behalf of )
CRUSADE MANAGEMENT LIMITED )
)
by its attorney Power of Attorney )
dated )
in the presence of: )
-----------------------------------
Signature
-------------------------------------- -----------------------------------
Witness Print name
--------------------------------------
Print name
NOTE TRUSTEE
SIGNED SEALED and DELIVERED )
for and on behalf of )
BANKERS TRUST COMPANY LIMITED )
)
by its attorney Power of Attorney )
dated )
in the presence of: )
-----------------------------------
Signature
-------------------------------------- -----------------------------------
Witness Print name
--------------------------------------
Print name
--------------------------------------------------------------------------------
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