Pre-Effective Amendment to Registration Statement for Securities of a Real Estate Company — Form S-11
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-11/A Pre-Effective Amendment to Registration Statement HTML 1.20M
for Securities of a Real Estate Company
2: EX-1.1 Underwriting Agreement 35 113K
3: EX-3.1 Articles of Incorporation/Organization or By-Laws HTML 188K
4: EX-4.1 Instrument Defining the Rights of Security Holders 233 781K
5: EX-4.2 Instrument Defining the Rights of Security Holders 8 22K
6: EX-4.4 Instrument Defining the Rights of Security Holders 44 155K
7: EX-4.5 Instrument Defining the Rights of Security Holders 133 487K
8: EX-5.1 Opinion re: Legality 3 16K
9: EX-8.2 Opinion re: Tax Matters 2 11K
10: EX-10.1 Material Contract HTML 105K
11: EX-10.2 Material Contract HTML 563K
12: EX-10.3 Material Contract 17 65K
13: EX-10.4 Material Contract 17 66K
14: EX-10.5 Material Contract 23 78K
15: EX-25.1 Statement re: Eligibility of Trustee HTML 40K
16: EX-99.1 Miscellaneous Exhibit 2 11K
EX-4.4 — Instrument Defining the Rights of Security Holders
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Exhibit 4.4
Security Trust Deed
Permanent Custodians Limited
Australian Securitisation Management Pty Limited
Permanent Registry Limited
The Bank of New York
ARMS II Global Fund 3
The Chifley Tower
2 Chifley Square
Sydney NSW 2000
Australia
Tel 61 2 9230 4000
Fax 61 2 9230 5333
(C) Copyright Allens Arthur Robinson 2004
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SECURITY TRUST DEED
TABLE OF CONTENTS
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1. INTERPRETATION 1
1.1 Definitions 1
1.2 Bond Trust Deed and Master Trust Deed 5
1.3 Interpretation 5
1.4 Liability of Chargor 5
1.5 Status of this Deed 6
1.6 Knowledge of Bond Trustee 6
1.7 Determination, statement and certificate sufficient evidence 6
2. APPOINTMENT OF SECURITY TRUSTEE 6
2.1 The Security Trustee 6
2.2 Benefit of Trusts 6
2.3 Resolution of Conflicts 7
2.4 Acknowledgement of Indebtedness 7
2.5 Repayment of Secured Moneys 7
2.6 Interest on Unpaid Amounts 7
2.7 Discharge by Payment 7
2.8 Duration of Trust 7
3. CHARGE AND DEALINGS WITH CHARGED PROPERTY 8
3.1 Charge and Ranking of the Charge 8
3.2 Floating Charge 8
3.3 Automatic Crystallisation 8
3.4 Operation as Fixed Charge 8
3.5 Security for a Limited Amount 8
4. COVENANTS 8
4.1 Positive Covenants of the Chargor 8
4.2 Negative Covenants of the Chargor 10
4.3 Covenant of Trust Manager 11
5. REPRESENTATIONS AND WARRANTIES 11
5.1 Representations and Warranties 11
5.2 Repetition 13
6. CONSEQUENCES OF EVENT OF DEFAULT 13
6.1 Events of Default 13
6.2 Consequences of Default 13
6.3 Commencement of enforcement 13
6.4 No individual enforcement 14
6.5 Limitation on exercise of enforcement powers 14
6.6 Convening of meeting 14
7. ENFORCEMENT 14
7.1 Appointment of Receiver 14
7.2 Joint Receivers 15
7.3 Remuneration of Receiver 15
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7.4 Agent of the Chargor 15
7.5 Status of Receiver after Commencement of Winding Up 15
7.6 Powers of Receiver 16
7.7 Separate Powers 17
7.8 Terms of Exercise 18
7.9 Indemnities 18
7.10 Security Trustee may exercise Powers 18
8. LIABILITY FOR EXERCISE OF POWERS 18
8.1 No Notice or Enforcement 18
8.2 No Liability for Loss 18
8.3 No Liability to Account 19
8.4 Indemnity Regarding Exercise of Powers 19
8.5 No Conflict 19
8.6 Contract Involving Conflict of Duty 19
8.7 Confidential Information 19
8.8 Benefit for Receiver etc. 20
8.9 Limitation of liability 20
8.10 Liability for Agents 20
9. PROTECTION OF PERSONS DEALING WITH SECURITY TRUSTEE OR RECEIVER 20
9.1 No Inquiry 20
9.2 Receipts 20
10. APPLICATION OF MONEY 21
10.1 Establishment of Secured Moneys Account 21
10.2 Priority of Payments 21
10.3 Payments Conditional and Limited 22
10.4 Money Received 22
10.5 Power To Invest Amounts Contingently Due 22
10.6 Concerning Payments 22
11. CONTINUING SECURITY AND RELEASES 23
11.1 Liability Preserved 23
11.2 Chargor's Liability Not Affected 23
11.3 Waiver by Chargor 23
11.4 Discharge of Securities 23
12. PERFECTION AND PROTECTION OF SECURITY 24
12.1 Further Assurance 24
12.2 Power of Attorney 24
13. SECURITY PROVISIONS 25
13.1 Statutory Powers 25
13.2 Continuing Security 25
13.3 Continuing Indemnities 25
13.4 No Merger of Security 25
13.5 Moratorium Legislation 25
13.6 Conflict 25
13.7 Consent of Security Trustee 26
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13.8 Settlement Conditional 26
13.9 Remedies Cumulative 26
13.10 Chargor To Bear Cost 26
13.11 Certificates Conclusive 26
13.12 Written waiver, consent and approval 26
14. THE SECURITY TRUSTEE 26
14.1 Covenants of Security Trustee 26
14.2 Protection of Security Trustee 27
14.3 Supplemental Powers of Security Trustee 28
14.4 Remuneration and Expenses 29
14.5 Conflicts 29
14.6 Reliance on Certificates 30
14.7 No Liability 30
14.8 Keep Records 30
14.9 Removal 30
14.10 Retirement of Security Trustee 31
14.11 Removal or Retirement not Effective 31
14.12 Appointment of New Security Trustee 31
14.13 Funds to be Vested in New Trustee 31
14.14 Release of Outgoing Security Trustee 31
14.15 Incoming Security Trustee to Execute Deed 31
14.16 Settlement Amounts Payable to Outgoing Security Trustee 31
14.17 Outgoing Security Trustee to Retain Lien 32
14.18 Delivery of Documents 32
14.19 Notice to Secured Creditors of New Security Trustee 32
14.20 Additional Security Trustee's Powers 32
14.21 Notification 32
14.22 No Ratings Downgrade 33
15. AMENDMENT 33
15.1 Amendment by Security Trustee 33
15.2 Certain Provisions Not to be Varied 33
15.3 Copy of Amendments to Secured Creditors 33
15.4 Copy of Amendments in Advance to Designated Rating Agencies 34
15.5 Evidence of Variation 34
16. MEETINGS 34
17. BOND TRUSTEE 34
17.1 Capacity 34
17.2 Exercise of rights 34
17.3 Instructions or directions 34
17.4 Payments 35
18. NOTICES 35
18.1 Notices Generally 35
18.2 Notices to Secured Creditors 36
18.3 Notices to Designated Rating Agencies 36
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19. GOVERNING LAW AND JURISDICTION 36
19.1 Governing Law 36
19.2 Jurisdiction 37
20. GENERAL 37
20.1 Severability of Provisions 37
20.2 Counterparts 37
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SECURITY TRUST DEED
DATE
PARTIES
1. PERMANENT CUSTODIANS LIMITED (ACN 001 426 384) of 35 Clarence
Street, Sydney, NSW 2000, Australia (PCL);
2. AUSTRALIAN SECURITISATION MANAGEMENT PTY LIMITED (ACN 103 852 428)
of Level 6, 12 Castlereagh Street, Sydney, NSW 2000, Australia (the
TRUST MANAGER);
3. PERMANENT REGISTRY LIMITED (ACN 000 334 636) of 35 Clarence Street,
Sydney, NSW 2000, Australia (included in the expression the SECURITY
TRUSTEE); and
4. THE BANK OF NEW YORK of 101 Barclay Street, 21W, New York, New York,
10286 (included in the expression the BOND TRUSTEE).
RECITALS
A The Chargor enters into this Deed in its capacity as trustee of the
Fund known as ARMS II GLOBAL FUND 3 constituted under the Master
Trust Deed and at the request of the Trust Manager.
B The Chargor intends to enter into certain transactions in that
capacity under the Secured Documents including the raising of money
by the issue of Bonds, and the acquisition of Authorised Investments
with the proceeds of issue.
C The Security Trustee has agreed for the consideration referred to in
this Deed to act as trustee for the benefit of the Secured Creditors
on the terms and conditions and with the powers and authorities set
out in this Deed.
THIS DEED PROVIDES
1. INTERPRETATION
1.1 DEFINITIONS
In this Deed:
ATTORNEY means any attorney appointed under any of the Secured
Documents (including under clause 12.2 of this Deed).
BOND TRUSTEE'S SECURED MONEYS means all debts and monetary liabilities
owing to the Bond Trustee under or in respect of the Secured Documents.
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BONDHOLDERS' SECURED MONEYS means all debts and monetary liabilities of
the Chargor to the Bondholders, or to the Security Trustee on behalf of
the Bondholders, in either case under or in respect of the Bonds.
BOND TRUST DEED means the deed, so entitled, dated on or about the date
of this Deed between the parties to this Deed and Australian Mortgage
Securities Ltd.
CALCULATION AGENT'S SECURED MONEYS means all debts and monetary
liabilities owing to the Calculation Agent under or in respect of the
Secured Documents.
CHARGE means the charge created by clause 3.1.
CHARGED PROPERTY means all of the Chargor's right, title, benefit and
interest in and to:
(a) all of the Assets of the Fund; and
(b) the Trustee's Indemnity in relation to the Fund.
CHARGOR means PCL in its capacity as trustee of the Fund, and every
reference in this Deed to the CHARGOR is a reference to PCL acting in
that capacity, and not in its personal capacity or in its capacity as
trustee of any other trust.
CURRENCY SWAP COUNTERPARTIES' SECURED MONEYS means all debts and
monetary liabilities of the Chargor to the Currency Swap Counterparties
or to the Security Trustee on behalf of the Currency Swap
Counterparties, in either case, under or in respect of the Currency
Swaps.
EURO REGISTRAR SECURED MONEYS means all debts and monetary liabilities
owing to the EURO Registrar under or in respect of the Secured
Documents.
ELIGIBLE ACCOUNT means an account in the sole name of the Security
Trustee with an Eligible Financial Institution.
ENHANCEMENT means each Enhancement entered into by the Chargor, except
for any Mortgage Insurance Policy, any Cash Reserve Top-Up Loans, the
Cash Reserve and the Advances Reserve.
EVENT OF CRYSTALLISATION means each or any of the following events:
(a) the Chargor deals, attempts or purports to deal with all or
any of the Charged Property otherwise than in accordance with
this Deed;
(b) an Event of Insolvency occurs in relation to the Chargor;
(c) the Commissioner of Taxation, or its delegate, determines to
issue a notice under Subdivision 260-A (Schedule 1) of the
Taxation Administration Act 1953 or section 218 of the Income
Tax Assessment Act 1936 for any amount in excess of
A$1,000,000 due by the Chargor in respect of any Tax under
such Act or any fines and costs imposed on the Chargor under
such Act;
(d) any person levies or attempts or purports to levy distress,
execution or any other like process over any Charged Property
or any Security Interest over any Charged Property is or
becomes enforceable; and
(e) an Event of Default occurs.
EXPIRATION DATE means the day 6 months after the day on which the
Security Trustee discharges the Charged Property from the Charge under
clause 11.4.
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EXTRAORDINARY RESOLUTION has the meaning given in the Conditions.
INDEBTEDNESS means moneys borrowed or raised, including rentals under
financial leases and interest thereon, any liability under any bill of
exchange, debenture, note or other security or under any acceptance
credit facility, any liability in respect of the acquisition cost of
assets or services to the extent payable after the time of acquisition
or possession thereof, and any guarantee or other assurance against
financial loss in respect of any moneys borrowed or raised, interest or
liabilities.
INTEREST RATE SWAP COUNTERPARTIES' SECURED MONEYS means all debts and
monetary liabilities of the Chargor to the Interest Rate Swap
Counterparties or to the Security Trustee on behalf of the Interest
Rate Swap Counterparties, in either case, under or in respect of the
Interest Rate Swaps.
NOTICE means a notice, certificate, request, demand or other
communication to be given, served or made pursuant to this Deed.
PAYING AGENT SECURED MONEYS means all debts and monetary liabilities
owing to each Paying Agent under or in respect of the Secured
Documents.
POWER means any right, power, authority, discretion or remedy conferred
on the Security Trustee, any Receiver or any Attorney by this Deed or
any applicable law.
RECEIVER means a receiver, or receiver and manager, of all or any part
of the Charged Property appointed under this Deed.
SECURED CREDITOR means each of:
(a) each Bondholder;
(b) each Interest Rate Swap Counterparty;
(c) each Currency Swap Counterparty;
(d) the Security Trustee;
(e) the Bond Trustee;
(f) the Calculation Agent;
(g) each Paying Agent;
(h) the US$ Registrar; and
(i) the EURO Registrar.
SECURED DOCUMENT means each of:
(a) this Deed;
(b) the Bond Trust Deed;
(c) the Master Trust Deed, in so far as it relates to the Fund;
(d) the Master Origination and Servicing Agreement in so far as it
relates to the origination and management and servicing of
Mortgages comprised in the Assets of the Fund;
(e) each Mortgage comprised in the Assets of the Fund;
(f) each Ancillary Document entered into or held by the Chargor;
(g) each Bond (including the Supplementary Bond Terms);
(h) each Enhancement, in so far as it relates to the Fund;
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(i) each Interest Rate Swap;
(j) each Currency Swap;
(k) each Subscription Agreement; and
(l) each Paying Agency Agreement,
and all other documents which are at any time entered into by the
Chargor under or pursuant to, or which are ancillary or incidental to,
or which are contemplated by any of the abovementioned documents.
SECURED MONEYS means:
(a) the Bondholders' Secured Moneys;
(b) the Interest Rate Swap Counterparties' Secured Moneys;
(c) the Currency Swap Counterparties' Secured Moneys;
(d) the Security Trustee's Secured Moneys;
(e) the Bond Trustee's Secured Moneys;
(f) the Calculation Agent's Secured Moneys;
(g) the Paying Agent Secured Moneys;
(h) the US$ Registrar Secured Moneys; and
(i) the EURO Registrar Secured Moneys,
in each case irrespective of whether those debts or monetary
liabilities:
(e) are present or future;
(f) are actual, prospective or contingent;
(g) are ascertained or unascertained;
(h) are owed or incurred by or on account of the Chargor alone, or
severally or jointly with any other person;
(i) are owed or incurred to or for the account of the relevant
Secured Creditor alone, or severally or jointly with any other
person;
(j) are owed or incurred as principal, interest, fees, charges,
taxes, duties or other imposts, damages (whether for breach of
contract or tort or incurred on any other ground), losses,
costs or expenses, or on any other account; or
(k) comprise any combination of the above.
SECURED MONEYS ACCOUNT means the Eligible Account established and
maintained by the Security Trustee pursuant to clause 10.1(a).
SECURITY TRUST means the trust created by this Deed.
SECURITY TRUST FUND means all property, rights and assets which are or
become subject to the Security Trust.
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SECURITY TRUSTEE means the person who from time to time holds the
office of trustee of the Security Trust (in its capacity as trustee of
the Security Trust only) which person is, at the date of this Deed,
Permanent Registry Limited.
SECURITY TRUSTEE'S SECURED MONEYS means all debts and monetary
liabilities of the Chargor to the Security Trustee under or in respect
of this Deed.
US$ REGISTRAR SECURED MONEYS means all debts and monetary liabilities
owing to the US$ Registrar under or in respect of the Secured
Documents.
1.2 BOND TRUST DEED AND MASTER TRUST DEED
Words and expressions which are defined in the Bond Trust Deed
(including by incorporation by reference) and the Master Trust Deed
have the same meanings when used in this Deed, unless otherwise defined
in this Deed, or unless the context otherwise requires. To the extent
of any inconsistency between a word or expression defined in the Bond
Trust Deed and the Master Trust Deed, the definition of that word or
expression in the Bond Trust Deed will prevail.
1.3 INTERPRETATION
Clause 1.3 of the Bond Trust Deed is incorporated in this Deed as if
set out in full in this Deed.
1.4 LIABILITY OF CHARGOR
(a) The Chargor has no personal liability in relation to any of
its obligations under or arising out of this Deed or any of
the Transaction Documents entered into in its capacity as
trustee of the Fund.
(b) In relation to each such obligation, the liability of the
Chargor is limited to and does not extend beyond the Assets of
the Fund as they stand at the time at which the obligation is
met or satisfied.
(c) The Chargor is not liable to meet or satisfy any such
obligation from its own assets (except the Trustee's
Indemnity) and each such obligation must be met or satisfied
from the Assets of the Fund or the Trustee's Indemnity.
(d) The preceding paragraphs apply notwithstanding the fact that
the liabilities of the Chargor in its capacity as trustee of
the Fund may from time to time almost equal, equal or exceed
the value of the Assets of the Fund at the relevant time.
(e) The previous paragraphs of this clause 1.4 do not apply to the
liability of the Chargor in relation to any obligation which
the Chargor expressly assumes in its personal capacity.
(f) It is acknowledged by the Chargor that the Assets of the Fund
at any time will include the amount of any compensation found
by a Final Judgment (or admitted by the Chargor) to be payable
by the Chargor to restore the Fund because of a failure by the
Chargor to exercise in relation to the Fund the degree of
care, diligence and prudence required of a trustee or because
of some other neglect, default or breach of duty by the
Chargor having regard to the powers and duties conferred on
the Chargor by the Master Trust Deed, in either case occurring
before the time in question and causing loss to the Fund
quantified before the time in question.
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(g) For the purposes of this clause 1.4, FINAL JUDGMENT means a
judgment of a court of law in Australia against which there
can be no appeal or in relation to which the time to appeal
has expired.
1.5 STATUS OF THIS DEED
This Deed is:
(a) the Security Trust Deed for the Fund; and
(b) a Transaction Document.
1.6 KNOWLEDGE OF BOND TRUSTEE
The Bond Trustee will only be considered to have knowledge, notice of
or to be aware of any matter or thing if the Bond Trustee has
knowledge, notice or awareness of that matter or thing by virtue of the
actual knowledge, notice of awareness of the officers or employees of
the Bond Trustee who have day to day responsibility for the
administration of the trust established by the Bond Trust Deed.
1.7 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.
2. APPOINTMENT OF SECURITY TRUSTEE
2.1 THE SECURITY TRUSTEE
The Security Trustee:
(a) is appointed to act as trustee on behalf of the Secured
Creditors 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 Trust Manager; and
(ii) will hold the benefit of the Charge, the Charged
Property and the benefit of each of the Secured
Documents to which it is a party,
in each case, on trust for the Secured Creditors, on the
terms and conditions of this Deed.
2.2 BENEFIT OF TRUSTS
(a) Each Secured Creditor is entitled to the benefit of the
Security Trust.
(b) The provisions of this Deed are binding on the Chargor and the
Secured Creditors and all persons claiming through them,
respectively.
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2.3 RESOLUTION OF CONFLICTS
If there is at any time a conflict between a duty owed by the Security
Trustee to any Secured Creditor or class of Secured Creditor and a duty
owed by it to another Secured Creditor or class of Secured Creditor,
the Security Trustee must give priority to the interests of the Secured
Creditors according to the order in which moneys are to be applied set
out in clause 10.2. Provided that the Security Trustee acts in good
faith, it shall not incur any liability to any Secured Creditor for so
doing.
2.4 ACKNOWLEDGEMENT OF INDEBTEDNESS
The Chargor acknowledges its indebtedness to the Security Trustee as
trustee for the Secured Creditors in respect of the Secured Moneys.
2.5 REPAYMENT OF SECURED MONEYS
The Chargor covenants with the Security Trustee for the benefit of the
Secured Creditors that as and when any Secured Moneys becomes due to be
paid, repaid or redeemed in accordance with the terms upon which they
are outstanding or under any provision of this Deed, the Chargor will
unconditionally pay or cause to be paid to or to the order of the
Security Trustee (as the case requires) the Secured Moneys as they fall
due.
2.6 INTEREST ON UNPAID AMOUNTS
The Chargor covenants with the Security Trustee for the benefit of the
Secured Creditors that it will pay or cause to be paid to or to the
order of the Security Trustee interest on the amount of any Secured
Moneys which have become due but remain unpaid until actual payment of
that unpaid amount (whether before or after any judgment or other order
of a court of competent jurisdiction), at such intervals, in such
amount and on such conditions (if any) as are set out in the Secured
Document which governs the payment of that unpaid amount.
2.7 DISCHARGE BY PAYMENT
Notwithstanding clauses 2.5 and 2.6, every payment on account of
Secured Moneys made by the Chargor direct to the corresponding Secured
Creditors (or, in the case of the Offshore Bondholders, to the Bond
Trustee or a Paying Agent) will satisfy to that extent the Chargor's
obligations to the Security Trustee under this Deed.
2.8 DURATION OF TRUST
The Security Trust commences on the date of this Deed and terminates on
the earlier of:
(a) the 80th anniversary of the date of this Deed; and
(b) the Expiration Date.
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3. CHARGE AND DEALINGS WITH CHARGED PROPERTY
3.1 CHARGE AND RANKING OF THE CHARGE
(a) The Chargor charges all of its right, title, benefit and
interest in and to the Charged Property to the Security
Trustee on behalf of the Secured Creditors as security for the
due and punctual payment of the Secured Moneys.
(b) The Charge is a first ranking charge having priority over all
other Security Interests of the Chargor.
3.2 FLOATING CHARGE
Subject to clauses 3.3 and 3.4, the Charge is a floating charge, and
accordingly the Chargor may, subject to the terms of this Deed, deal
with the Charged Property in accordance with and as contemplated by the
Secured Documents.
3.3 AUTOMATIC CRYSTALLISATION
If an Event of Crystallisation occurs:
(a) the Charge will at that time automatically crystallise and
immediately become a fixed charge over that part of the
Charged Property in respect of which that Event of
Crystallisation occurs;
(b) the Security Trustee will be deemed to have intervened and to
have exercised all its rights of intervention in respect of
that Charged Property; and
(c) the Security Trustee will have the right (either in its own
name or in the name of the Chargor) immediately to seek and
obtain appropriate relief in relation to that Charged
Property.
3.4 OPERATION AS FIXED CHARGE
Notwithstanding any other provision of this Deed, the Security Trustee
may at any time by notice in writing to the Chargor determine the
floating character of the Charge as regards any part of the Charged
Property specified in that notice either particularly or generally.
Upon the giving of such a notice, the Charge will immediately cease to
be a floating charge and will become and operate as a fixed charge as
regards that part of the Charged Property.
3.5 SECURITY FOR A LIMITED AMOUNT
Notwithstanding any other term of this Deed and notwithstanding that
the Charge is security for the whole of the Secured Moneys, the amount
recoverable by the Security Trustee under the Charge is limited to
A$10,000,000,000.
4. COVENANTS
4.1 POSITIVE COVENANTS OF THE CHARGOR
The Chargor must:
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(a) (COMPLIANCE WITH AGREEMENTS): subject to the terms of the
Master Trust Deed, enforce fully and punctually perform and
comply with its obligations under each of the Secured
Documents;
(b) (DOCUMENTS OF TITLE): subject to the terms of this Deed,
immediately upon demand deposit with the Security Trustee, or
as the Security Trustee, in exercising its Powers, may direct
all property comprised in the Charged Property and all
documents or indicia of title to the Charged Property;
(c) (INFORM OF MATERIAL EVENTS): promptly upon receiving actual
notice, inform the Security Trustee, the Bond Trustee and each
Designated Rating Agency in writing of the occurrence of any
of the following:
(i) the commencement or, to the best of its knowledge,
threatened commencement of litigation, arbitration,
administrative or judicial proceeding or investigation
against the Chargor which is likely to have a Material
Adverse Effect;
(ii) the commencement of any liquidation proceedings by or
against the Chargor under any applicable law or any
proceeding in which a receiver, receiver and manager,
liquidator, provisional liquidator, administrator,
trustee or other similar official shall have been, or
may be, appointed or requested for the Chargor;
(iii) the occurrence of an Event of Crystallisation, Event
of Default or Potential Event of Default; or
(iv) the retirement or removal from office of:
(A) the Trust Manager as manager of the Fund;
(B) the Chargor as trustee of the Fund;
(C) the Bond Trustee as trustee for the Offshore
Bondholders; and
(D) the Security Trustee as trustee for the
Secured Creditors;
(d) (MAINTAIN APPROVALS): obtain and maintain in full force and
effect all Approvals which are necessary or material to the
conduct of its business;
(e) (PROTECT PROPERTY): subject to the terms of the Master Trust
Deed, maintain, protect and enforce its rights under or
arising from the Charged Property, remedy every defect in its
title to any part of the Charged Property, and with the
consent of, and at the direction of the Security Trustee,
take, defend, settle or compromise all legal proceedings for
the protection or recovery of any of the Charged Property;
(f) (OBSERVE STATUTES): comply with and observe all Statutes and
lawful requirements of a Government Body which are binding on
it or the Charged Property where failure to do so may have a
Material Adverse Effect;
(g) (ATTEND MEETINGS OF BONDHOLDERS): permit the Security Trustee
to attend any meeting of Bondholders convened in accordance
with the Bond Trust Deed and to be heard on any part of the
business of the meeting which concerns the Security Trust Fund
or the Secured Moneys;
(h) (INFORMATION): whenever requested, give to the Security
Trustee, each Designated Rating Agency, any Secured Creditor
or any Auditor such information in the Chargor's possession
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or control as any such person may reasonably require with
respect to all matters relating to the Chargor's affairs and
the interests of Secured Creditors; and
(i) (SEMI-ANNUAL REPORTS): provide, or procure that the Trust
Manager on its behalf provides, promptly upon request by the
Security Trustee, reports which:
(i) confirm, that to the knowledge of the Chargor and the
Trust Manager, no Event of Default nor Potential Event
of Default is subsisting, or giving details of any
Event of Default or Potential Event of Default that is
subsisting; and
(ii) attach either the most recent audited Financial
Statements of the Fund or, if no audited Financial
Statements have been produced for the financial year
or half-year immediately preceding the date which is
six months before the request, unaudited management
Financial Statements prepared in accordance with
Approved Accounting Standards for that period.
4.2 NEGATIVE COVENANTS OF THE CHARGOR
The Chargor must not without the prior written consent of the Security
Trustee and without prior written confirmation from each Designated
Rating Agency that such action will not affect the Designated Rating of
the Bonds (if any) then outstanding:
(a) (ALTER RIGHTS): subject to the terms of the Master Trust Deed,
waive, novate, modify or amend, or release any party from its
obligations under, or consent to any waiver, modification,
novation or amendment of, or release of any party from its
obligations under, any of the Secured Documents or waive or
alter any rights with respect to the Charged Property in any
such case, in a manner which would materially and adversely
affect the rights of any Secured Creditor;
(b) (DEALINGS WITH ASSETS): sell, transfer, exchange, create or
permit any Security Interest over, or otherwise dispose of all
or part of the Charged Property except:
(i) as contemplated by or permitted under the Secured
Documents; and
(ii) in the ordinary course of the exercise of its rights
and the performance of its obligations under the
Secured Documents;
(c) (OTHER BUSINESS): in its capacity as trustee of the Fund,
engage in any business or activity other than the business and
activities contemplated by or permitted under the Secured
Documents;
(d) (INCREASED FEES): agree to any increase in fees payable or
expenses reimbursable by the Chargor to any other party under
or in connection with any of the Secured Documents;
(e) (CREATION OF INDEBTEDNESS): in its capacity as trustee of the
Fund, create, incur, assume or suffer to exist any
Indebtedness except for Indebtedness created or arising under
or in accordance with the Secured Documents;
(f) (BANK ACCOUNTS): in its capacity as trustee of the Fund, open
or operate any bank account except as contemplated by or
permitted under the Secured Documents; or
(g) (INSOLVENCY) institute any proceedings in relation to any
Event of Insolvency in relation to the Fund.
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4.3 COVENANT OF TRUST MANAGER
(a) The Trust Manager repeats the covenants contained in clauses
12.2(l) and (m) of the Master Trust Deed for the benefit of
the Security Trustee and the Bond Trustee as trustees for the
Secured Creditors and the Offshore Bondholders respectively.
(b) The Trust Manager on behalf of the Chargor will promptly lodge
this Deed for registration by the Australian Securities and
Investments Commission pursuant to the Corporations Act.
(c) The Trust Manager must deliver to each Designated Rating
Agency such periodic reports as to the Fund, its assets and
liabilities as the Trust Manager and that Designated Rating
Agency may from time to time agree.
(d) The Trust Manager must provide promptly upon request by the
Security Trustee the most recent audited Financial Statements
of the Fund or, if no audited Financial Statements have been
produced for the financial year or half year immediately
preceding the date which is six months before the request,
unaudited management Financial Statements prepared in
accordance with Approved Accounting Standards for that period.
(e) The Trust Manager must promptly upon receiving actual notice,
inform the Security Trustee, the Chargor, the Bond Trustee and
each Designated Rating Agency in writing of the occurrence of
any of the following:
(i) the commencement or threatened commencement of
litigation, arbitration, administrative or judicial
proceeding or investigation against the Chargor which
is likely to have a Material Adverse Effect;
(ii) the commencement of any liquidation proceedings by or
against the Chargor or the Fund under any applicable
law or any proceeding in which a receiver, receiver
and manager, liquidator, provisional liquidator,
official manager, trustee or other similar official
shall have been, or may be, appointed or requested for
the Chargor or the Fund;
(iii) the occurrence of an Event of Default or Potential
Event of Default;
(iv) the occurrence of an Event of Crystallisation; or
(v) its retirement or removal from office as manager of
the Fund or the retirement or removal from office of
the Chargor as trustee of the Fund or the Security
Trustee as trustee of the Security Trust.
5. REPRESENTATIONS AND WARRANTIES
5.1 REPRESENTATIONS AND WARRANTIES
The Chargor represents and warrants to the Security Trustee, on behalf
of the Secured Creditors, that:
(a) (DUE INCORPORATION): it is duly incorporated and validly
existing under the laws of the Commonwealth of Australia and
has the corporate power to own its property and to carry on
its business as is now being conducted;
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(b) (CONSTITUTION): the execution delivery and performance of the
Secured Documents does not violate its constitution;
(c) (CORPORATE POWER): it has the power and has taken all
corporate and other action required to enter into the Secured
Documents and to authorise the execution and delivery of the
Secured Documents and the performance of its obligations under
the Secured Documents;
(d) (FILINGS): it has filed all corporate notices and effected all
registrations with the Australian Securities and Investments
Commission or similar office in its jurisdiction of
incorporation and in any other jurisdiction as required by law
and all such filings and registrations are current, complete
and accurate;
(e) (LEGALLY BINDING OBLIGATION): each Secured Document to which
it is a party constitutes a valid, legally binding and
enforceable obligation of the Chargor in accordance with its
terms except as such enforceability may be limited by any
applicable bankruptcy, insolvency, reorganisation, moratorium
or trust or other similar laws affecting creditors' rights
generally;
(f) (EXECUTION, DELIVERY AND PERFORMANCE): the execution, delivery
and performance of the Secured Documents (other than the
Mortgages) by the Chargor does not violate any existing law or
regulation or any document or agreement to which it is a party
or which is binding upon it or any of its assets;
(g) (AUTHORISATION): all Approvals of every Government Body
required to be obtained by it in connection with the
execution, delivery and performance of the Secured Documents
have been obtained and are valid and subsisting;
(h) (GOOD TITLE): it is the legal owner of, and is entitled to
charge in the manner provided in this Deed, the Charged
Property and, subject only to this Deed, the Charged Property
is free of all other Security Interests other than the
Trustee's Indemnity and any Security Interest arising by
operation of law;
(i) (PENDING LITIGATION OR OTHER PROCEEDING): it does not have
actual notice of any pending action, proceeding or
investigation before any court, Government Body or
administrative agency or arbitrator against or affecting the
Charged Property or the Chargor, or any assets or rights of
the Chargor, or, to the Chargor's knowledge, any threatened
action or proceeding before any of the foregoing, which, if
decided adversely to the Chargor, would materially and
adversely affect:
(i) the business or financial condition of the Chargor;
(ii) the Charged Property;
(iii) the efficacy or first priority of the Charge; or
(iv) the exercise of the rights of the Security Trustee in
respect of the Charged Property;
(j) (NO OTHER DEFAULT): it is not in default under any document or
agreement relating to Indebtedness or any other agreement to
an extent or in a manner which has (or could have) an adverse
effect on the Chargor or its ability to perform its
obligations under the Secured Documents; and
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(k) (EVENTS OF DEFAULT): the Chargor is not aware of the
occurrence of an Event of Default or Potential Event of
Default which is continuing unremedied.
5.2 REPETITION
Each representation and warranty contained in clause 5.1 is deemed to
be given or repeated (as the case may be) on each day on which
obligations in respect of the Secured Moneys are incurred, undertaken
or are due to be satisfied by the Chargor (including, but not limited
to, each Issue Date) with reference to the facts and circumstances then
subsisting, as if made on each such day.
6. CONSEQUENCES OF EVENT OF DEFAULT
6.1 EVENTS OF DEFAULT
Each of the events set out in Condition 11.1 constitutes an Event of
Default.
6.2 CONSEQUENCES OF DEFAULT
At any time after the occurrence of an Event of Default, the Security
Trustee may, and must:
(a) if an Extraordinary Resolution is passed to that effect; or
(b) if it is required to do so in writing by:
(i) if any Class A Bonds or Fast Prepayment Bonds remain
outstanding, the Bondholders of not less than 51% of
the aggregate of:
(A) the A$ Equivalent of all outstanding Class A
Bonds; and
(B) the Face Value of all outstanding Fast
Prepayment Bonds; or
(ii) if all Class A Bonds and Fast Prepayment Bonds have
been redeemed in full, the Bondholders of not less
than 51% of the aggregate of the A$ Equivalent of the
Face Value of all outstanding Class B Bonds; or
(iii) if all Class A Bonds, Class B Bonds and Fast
Prepayment Bonds have been redeemed in full, by the
Secured Creditor ranking the highest in priority for
payment under clause 10.2,
by notice in writing to the Issuer, do any one or more of the
following:
(c) declare the Charge to be enforceable;
(d) exercise all or any of its Powers which arise or which are
expressed to arise upon the occurrence of an Event of Default
or upon the Charge becoming enforceable; and
(e) declare the Secured Moneys immediately due and payable,
whereupon the same will become so due and payable.
6.3 COMMENCEMENT OF ENFORCEMENT
Immediately upon the giving by the Security Trustee of a notice under
clause 6.2:
(a) the Security Trustee must give a copy of that notice to each
Secured Creditor, each Paying Agent and each Designated Rating
Agency; and
(b) the right of the Chargor to deal with the Charged Property
ceases.
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6.4 NO INDIVIDUAL ENFORCEMENT
Unless the Security Trustee, having become bound to perform its
obligations under this Deed, fails to do so within 7 Business Days of
being obliged to do so and such failure is continuing, the rights of
each Secured Creditor (other than the Security Trustee) to enforce the
obligations of the Chargor with respect to payment of the Secured
Moneys are limited to the exercise of its rights to enforce and seek
due administration by the Security Trustee of this Deed. In particular,
unless the Security Trustee having become bound to perform its
obligations under this Deed fails to do so within 7 Business Days of
being obliged to do so and such failure is continuing, no Secured
Creditor (other than the Security Trustee) may, with respect to payment
of any such amount:
(a) sue the Chargor;
(b) obtain judgment against the Chargor;
(c) apply for or seek to wind up the Fund; or
(d) levy execution against any Asset of the Fund.
6.5 LIMITATION ON EXERCISE OF ENFORCEMENT POWERS
The Security Trustee must not:
(a) give a notice under clause 6.2; or
(b) exercise any of the Powers which arise, or are expressed to
arise, upon the occurrence of an Event of Default or upon the
Charge becoming enforceable,
without having first been directed to do so by an Extraordinary
Resolution or by notice in writing in accordance with clause 6.2(b),
unless it reasonably believes that it is necessary to do so to protect
the interests of the Secured Creditors.
6.6 CONVENING OF MEETING
Promptly upon receiving actual notice of the occurrence of an Event of
Default:
(a) the Bond Trustee must convene a meeting of Offshore
Bondholders and request directions from the Offshore
Bondholders as to what action the Offshore Bondholders require
the Bond Trustee to require the Security Trustee to take; and
(b) the Security Trustee must convene a meeting of Fast Prepayment
Bondholders and request directions from the Fast Prepayment
Bondholders as to what action the Fast Prepayment Bondholders
require the Security Trustee to take.
7. ENFORCEMENT
7.1 APPOINTMENT OF RECEIVER
Subject to clause 6.5, at any time after an Event of Default has
occurred which has not been remedied or waived in writing by the
Security Trustee, the Security Trustee may:
(a) (APPOINT RECEIVER): appoint in writing any person or persons
to be a Receiver of all or any part of the Charged Property;
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(b) (TERMINATE RECEIVER): from time to time terminate the
appointment of any Receiver so appointed as to all or any part
of the Charged Property; and
(c) (REPLACE RECEIVER): in case of the termination, retirement or
death of any such Receiver, appoint another person or persons
in his place.
7.2 JOINT RECEIVERS
If more than one person is appointed as a Receiver of the Charged
Property, the Security Trustee may, at its option, specify whether such
appointment and the powers of each such person are to be joint or joint
and several, and failing such specification, such appointment and the
powers of each such person will be deemed to be joint and several.
7.3 REMUNERATION OF RECEIVER
The Security Trustee may fix the remuneration of any Receiver at such
rate as the Security Trustee from time to time determines, but not
exceeding whichever is the greater of the standard hourly rate from
time to time charged by the firm of which the Receiver is a member and
5% of the gross amount of all money collected by the Receiver.
7.4 AGENT OF THE CHARGOR
Every Receiver is the agent of the Chargor and the Chargor is (subject
to clause 1.4) solely responsible for all acts and omissions by, and
the remuneration of, the Receiver. Except in cases in which, on a
reasonable judgement, it is impractical to do so, the Security Trustee
must only appoint a Receiver if the Receiver, upon being appointed
covenants with the Security Trustee not to exercise any Power:
(a) as agent of or in the name of the Chargor unless the Receiver
has (except in cases in which on a reasonable judgment it is
impracticable to do so) obtained a written acknowledgement
from any person to whom a liability is incurred as a result of
the exercise of that Power that:
(i) in the exercise of that Power, the Receiver is the
agent of the Chargor and is acting in no other
capacity; and
(ii) the Chargor's liability in relation to the exercise of
the Power is limited to the Security Trust Fund; and
(b) as agent of or in the name of the Security Trustee unless the
Receiver has (except in cases in which on a reasonable
judgment it is impracticable to do so) obtained a written
acknowledgement from any person to whom a liability is
incurred as a result of the exercise of that Power that:
(i) in the exercise of that Power, the Receiver is the
agent of the Security Trustee and is acting in no
other capacity; and
(ii) that the Security Trustee's liability in relation to
the exercise of the Power is limited to the Security
Trustee's rights against the Security Trust Fund.
7.5 STATUS OF RECEIVER AFTER COMMENCEMENT OF WINDING UP
If for any reason a Receiver ceases to be the agent of the Chargor, and
the Receiver becomes the agent of the Security Trustee:
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(a) the Receiver's rights of recourse to the Security Trustee are
limited to the Security Trustee's rights against the assets
which from time to time constitute the Charged Property;
(b) the Receiver has no authority to act in a way which exposes
the Security Trustee to any personal liability; and
(c) no act or omission of the Receiver will be considered fraud,
negligence or wilful default of the Security Trustee.
7.6 POWERS OF RECEIVER
Every Receiver has the following powers in addition to any other powers
conferred by law:
(a) (TO TAKE POSSESSION): to take possession of and collect and
get in the Charged Property, and to retain all books, records
and documents of title relating to the Charged Property;
(b) (TO COLLECT MONEY): to convert, liquidate and reduce the whole
or any part of the Charged Property into money;
(c) (TO CARRY ON BUSINESS): to carry on or concur in carrying on
any business of the Chargor in relation to the Charged
Property and to do any thing which the Chargor is authorised
or obliged to do under this Deed and to protect, maintain,
preserve and enforce the Charged Property;
(d) (TO BORROW OR RAISE MONEY): to incur Indebtedness for the
purposes of or in connection with the exercise of any Power
and to grant Security Interests over the Charged Property to
secure such Indebtedness, whether ranking in priority to, pari
passu with, or after this Deed;
(e) (TO EMPLOY): to employ any person as employee, contractor,
professional adviser, agent, broker or auctioneer, to
discharge any such person, to rely upon the advice of any such
person, and to delegate to any such person any Power
(including this Power to employ and the Power to delegate);
(f) (TO SELL PROPERTY): to sell or concur in selling the Charged
Property (whether or not the Receiver has taken possession of
it), whether by public auction, private treaty or tender; for
cash or on credit; in one lot or in parcels; with or without
special conditions or stipulations as to title, the time and
the mode of payment of purchase money or otherwise; with power
to allow payment of all or part of the purchase money to be
deferred (whether with or without security); and otherwise on
such terms and conditions as the Receiver considers expedient;
(g) (PROMOTE COMPANIES): to incorporate or participate in
incorporating companies to purchase the Charged Property or
assume the obligations of the Chargor;
(h) (TO GIVE UP POSSESSION): to give up possession of the whole or
any part of the Charged Property at any time;
(i) (TO INVEST PROCEEDS AGAINST CONTINGENCIES): to invest the
Charged Property as the Receiver thinks fit, with full power
to vary, transpose or re-invest such investments from time to
time;
(j) (TO ENTER INTO CONTRACTS): to enter into any contract or
arrangement for the purposes of or in connection with the
exercise of any Power;
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(k) (TO PERFORM CONTRACTS): to perform, enforce, exercise or
refrain from exercising the Chargor's rights and powers under,
obtain the benefit of and to vary, rescind or terminate, all
contracts and rights forming part of the Charged Property
(including those arising under the Secured Documents), and all
contracts or arrangements entered into by the Receiver in
exercise of his Powers;
(l) (TO TAKE PROCEEDINGS): to institute, conduct, defend,
discontinue, compromise or settle any legal proceedings
relating to the Charged Property and to submit to arbitration;
(m) (TO BANKRUPT DEBTORS AND WIND-UP COMPANIES): to make debtors
bankrupt, to wind-up companies, and to do all things in
connection with any bankruptcy or winding up which the
Receiver thinks necessary for the recovery or protection of
the Charged Property;
(n) (TO DELEGATE): to delegate from time to time any Power
including this Power of delegation;
(o) (TO COMPROMISE): to make any settlement, arrangement or
compromise regarding any action or dispute arising in
connection with the Charged Property, to grant to any person
involved therein time or other indulgence and to execute such
releases or discharges in connection therewith as the Receiver
thinks expedient in the interests of the Security Trustee;
(p) (TO APPEAL): to appeal against or to enforce any judgment or
order;
(q) (TO FILE): to file all certificates, registrations and other
documents and to take any and all action on behalf of the
Chargor which the Security Trustee or Receiver believes
necessary to protect, preserve or improve any or all of the
Charged Property and the rights of the Chargor and the
Security Trustee in respect of any agreement for sale and to
obtain for the Security Trustee all of the benefits of this
Deed and in particular the placing of the Chargor into
liquidation or the appointment of a Receiver shall be deemed
to be an event against which the Security Trustee may protect
its rights;
(r) (TO OPERATE BANK ACCOUNTS): to operate to the exclusion of the
Chargor any bank account in the name of the Chargor whether
alone or jointly and to withdraw any moneys to the credit of
such account and to sign and endorse or to authorise others to
sign and endorse in the name of the Chargor cheques,
promissory notes, bills of exchange and other negotiable
instruments;
(s) (INCIDENTAL POWER): to do all such other things which the
Receiver considers necessary for or incidental to the exercise
of any other Power conferred on the Receiver by this Deed, or
for the protection of the interests of the Secured Creditors
under this Deed; and
(t) (TO DO SUCH THINGS AS ARE EXPEDIENT): to do all such other
acts and things without limitation as such Receiver shall
think expedient for the interests of the Security Trustee or
the Secured Creditors,
and such further powers and discretions as the Security Trustee by
notice in writing to the Receiver confers upon the Receiver for the
purposes referred to in this clause 7.
7.7 SEPARATE POWERS
Each of the paragraphs of clause 7.6 confers a separate and independent
Power, none of which limits any of the others.
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7.8 TERMS OF EXERCISE
Any exercise by a Receiver of any Power may be:
(a) on such terms and conditions as the Receiver in his discretion
considers appropriate, necessary or expedient; and
(b) without prejudice to clause 7.4, expressed to be in the name
of the Chargor or otherwise.
7.9 INDEMNITIES
The Security Trustee may, but shall not under any circumstances be
obliged to, give such indemnities to the Receiver concerning the
performance of the Receiver's duties as are permitted by law, and if
the Security Trustee is obliged to pay any money under any indemnity,
that money will become part of the Secured Moneys.
7.10 SECURITY TRUSTEE MAY EXERCISE POWERS
At any time after an Event of Default has occurred which has not been
remedied or waived in writing, and whether or not a Receiver has been
appointed, the Security Trustee may exercise all or any of the Powers
conferred on a Receiver as if the Powers had been conferred on the
Security Trustee. The Security Trustee may:
(a) exercise those Powers itself or appoint an agent or joint and
several agents for that purpose (or do both);
(b) fix, in accordance with clause 7.3, the remuneration of any
agent appointed by the Security Trustee as if that agent
were appointed as Receiver;
(c) from time to time terminate the appointment of any such agent;
and
(d) in the case of the termination, retirement or death of any
such agent, appoint another person or persons in his place.
8. LIABILITY FOR EXERCISE OF POWERS
8.1 NO NOTICE OR ENFORCEMENT
It is not incumbent on the Security Trustee to:
(a) give any notice of the Charge to any person;
(b) enforce payment of any moneys payable to the Chargor;
(c) realise any of the Charged Property; or
(d) take any steps or proceedings for that purpose,
unless, in any such case, the Security Trustee thinks fit to do so or
is expressly required to do so under this Deed.
8.2 NO LIABILITY FOR LOSS
Neither the Security Trustee nor any Receiver is liable for any
omission, delay, mistake or irregularity in or about the exercise,
attempted exercise, non-exercise or purported exercise of any Power
except for fraud, negligence or wilful default.
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8.3 NO LIABILITY TO ACCOUNT
Neither the Security Trustee nor any Receiver is, by reason of the
Security Trustee or the Receiver entering into possession of the
Charged Property, liable to account as mortgagee or chargee in
possession or for anything except actual receipts or be liable for any
loss upon realisation or for any default, omission, delay or mistake
for which a mortgagee or chargee in possession might be liable (except
where that loss results from, or that default, omission, delay or
mistake constitutes, fraud, negligence or wilful default on the part of
the Security Trustee or a Receiver (as the case may be)).
8.4 INDEMNITY REGARDING EXERCISE OF POWERS
(a) Without prejudice to the right of indemnity given to trustees
by law, each of the Security Trustee, the Receiver, any
Attorney and each of their respective officers, directors,
employees and affiliates is, except where caused by fraud,
negligence or wilful default, entitled to be indemnified out
of the Charged Property in respect of all costs, expenses,
liabilities, Taxes and losses incurred by it in the exercise
of any Power or obligation under this Deed, and against all
actions, proceedings, costs, claims and demands in respect of
any matter or thing done or omitted relating to the Charged
Property, even if caused by a mistake, oversight, error of
judgment or want of prudence by the Security Trustee, the
Receiver, the relevant Attorney or their respective officers,
directors, employees and affiliates.
(b) Notwithstanding any other provision of this Deed, if the
Security Trustee considers that the Charged Property will be
insufficient to fully reimburse, exonerate or indemnify the
Security Trustee under paragraph (a) in respect of any amount
in respect of which it is entitled to be indemnified under
that paragraph, the Security Trustee shall not be obliged to
exercise any Power or comply with any obligation under this
Deed unless and until it has received an indemnity in respect
of such amounts in form and substance and from a party
reasonably satisfactory to it.
8.5 NO CONFLICT
The Security Trustee and any Receiver may exercise any Power,
notwithstanding that the exercise of that Power involves a conflict
between any duty owed to the Chargor by the Security Trustee or such
Receiver and:
(a) any duty owed by the Security Trustee or Receiver to any other
person; or
(b) the interests of the Security Trustee or Receiver.
8.6 CONTRACT INVOLVING CONFLICT OF DUTY
Any contract which involves any such conflict of duty or interest shall
not be void or voidable by virtue of any such conflict of duty or
interest nor shall the Security Trustee or Receiver be liable to
account to the Chargor or any other person for any moneys because of
any such conflict of interest or duty.
8.7 CONFIDENTIAL INFORMATION
The Security Trustee or any Receiver may for the purpose of exercising
any Power, disclose to any person any documents or records of, or
information about, the Chargor, the Chargor's property or the
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Chargor's business or affairs, whether or not confidential, if it
reasonably considers such disclosure necessary for the purposes of
exercising any Power.
8.8 BENEFIT FOR RECEIVER ETC.
The Security Trustee is deemed to have accepted the benefit of this
clause 8 and any provision of this Deed expressed to be in favour or
for the benefit of a Receiver, Attorney or delegate as agent for all
such persons, and the Security Trustee holds the benefit of such
provisions on trust for the benefit of all such persons.
8.9 LIMITATION OF LIABILITY
Notwithstanding any other provision of this Deed, the Security Trustee
will have no liability under or in connection with this Deed or any
other Transaction Document (whether to the Secured Creditors, the
Chargor, the Trust Manager or any other person) other than to the
extent to which the liability is able to be satisfied out of the
property of the Security Trust Fund from which the Security Trustee is
actually indemnified for the liability. This limitation will not apply
to a liability of the Security Trustee to the extent that it is not
satisfied because, under this Deed or by operation by law, there is a
reduction in the extent of the Security Trustee's indemnification as a
result of the Security Trustee's fraud, negligence or wilful default.
Nothing in this clause 8.9 or any similar provision in any other
Transaction Document limits or adversely affects the rights or Powers
of the Security Trustee, any Receiver or Attorney.
8.10 LIABILITY FOR AGENTS
The Security Trustee will not be responsible to any Secured Creditor
for any misconduct or default on the part of any agent or delegate
appointed by the Security Trustee in accordance with this Deed,
provided that any such person will be a person who is, in the opinion
of the Security Trustee, appropriately qualified and the Security
Trustee has exercised good faith in the selection of such agent or
delegate.
9. PROTECTION OF PERSONS DEALING WITH SECURITY TRUSTEE OR RECEIVER
9.1 NO INQUIRY
No person dealing with the Security Trustee, a Receiver or any Attorney
is bound to inquire as to whether any of the Secured Moneys are owing
or payable, whether any Receiver or Attorney has been properly
appointed, or as to the propriety or regularity of the exercise or
purported exercise of any Power or any other matter or thing, or be
affected by actual or constructive notice that any such exercise is
improper. Any transaction entered into as a result of any such exercise
or purported exercise will be valid and binding notwithstanding any
irregularity or impropriety in such exercise.
9.2 RECEIPTS
The receipt of the Security Trustee, the Receiver or any Attorney for
any money or assets which come into the hands of the Security Trustee,
the Receiver or such Attorney by virtue of any Power, will discharge
any person paying or handing over the same from being concerned to see
to their application, or being answerable or accountable for their loss
or misapplication.
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10. APPLICATION OF MONEY
10.1 ESTABLISHMENT OF SECURED MONEYS ACCOUNT
Upon the Charge becoming enforceable under clause 6.2:
(a) the Security Trustee must establish and thereafter maintain an
Eligible Account designated ARMS II GLOBAL FUND 3 (or any
other name which is appropriate to identify the account as
being established for the purposes of the Security Trust); and
(b) thereafter, the Security Trustee must credit to the Secured
Moneys Account, all moneys received by the Security Trustee
under the Secured Documents or as a result of the exercise of
any Power, provided that the Security Trustee may credit such
moneys to an account with an Eligible Financial Institution if
the moneys are not deposited for more than 30 days and the
aggregate of the moneys held in such accounts at any time is
not more than 20% of the aggregate A$ Equivalent of the Face
Value of the Bonds at that time.
10.2 PRIORITY OF PAYMENTS
Subject to any law which applies notwithstanding any agreement to the
contrary and subject to clause 10.3, all money received by the Security
Trustee or a Receiver after the Charge has become enforceable pursuant
to the Secured Documents or as a result of the exercise of any Power
must be applied:
(a) (COSTS OF ENFORCEMENT): first, in payment on a full indemnity
basis of all costs, charges, expenses and disbursements
incurred in the exercise or performance or attempted exercise
or performance of any Powers (including, for the avoidance of
doubt, the Manager's Fee and those incurred by the Security
Trustee) and any powers of the Bond Trustee under the
Transaction Documents;
(b) (FEES AND EXPENSES): second, in payment of or towards
satisfaction (pari passu and rateably) of fees and other
expenses payable to the Security Trustee, the Bond Trustee,
each Paying Agent, the Calculation Agent, the US$ Registrar,
the EURO Registrar, the Chargor and the Receiver's
remuneration;
(c) (CLASS A BONDHOLDERS, FAST PREPAYMENT BONDHOLDERS, INTEREST
RATE SWAP COUNTERPARTIES AND CLASS A CURRENCY SWAP
COUNTERPARTIES): third, in or towards satisfaction (pari passu
and rateably) of:
(i) the Bondholders' Secured Moneys owing to the
Bondholders of Class A-1(a) Bonds, the Class A-1(b)
Bonds and Fast Prepayment Bonds, pari passu and
rateably;
(ii) the Currency Swap Counterparties' Secured Moneys owing
to the Class A US$ Currency Swap Counterparties and
the Class A EURO Currency Swap Counterparties, pari
passu and rateably; and
(iii) the Interest Rate Swap Counterparties' Secured Moneys
owing to the Interest Rate Swap Counterparties, pari
passu and rateably;
(d) (CLASS B BONDHOLDERS): fourth, in or towards satisfaction
(pari passu and rateably) of:
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(i) the Bondholders' Secured Moneys owing to the
Bondholders of Class B-1(a) Bonds, and the Class B-1
(b) Bonds, pari passu and rateably; and
(ii) the Currency Swap Counterparties' Secured Moneys owing
to the Class B US$ Currency Swap Counterparties and
the Class B EURO Currency Swap Counterparties, pari
passu and rateably.
(e) (SURPLUS): fifth, in payment to the persons entitled thereto.
10.3 PAYMENTS CONDITIONAL AND LIMITED
The obligations of the Security Trustee and any Receiver under clause
10.2 are subject to the following:
(a) neither the Security Trustee nor the Receiver must make any
payments pursuant to clause 10.2(c) or (d) until and to the
extent that the relevant Secured Moneys has become due and
payable, and until then must invest all surplus moneys in
accordance with clause 10.5; and
(b) the liability of the Security Trustee to make any payments or
distribution of moneys under clause 10.2 is limited to making
such payments in the order set out in clause 10.2 and to the
extent of funds available in the Secured Moneys Account.
10.4 MONEY RECEIVED
In applying any moneys towards satisfaction of the Secured Moneys, the
Chargor will be credited only with so much of such moneys available for
that purpose as are actually received by the Security Trustee or the
Receiver and not required for whatever reason to be disgorged, such
credit to date from the time of such receipt.
10.5 POWER TO INVEST AMOUNTS CONTINGENTLY DUE
Unless expressly prohibited by this Deed, all moneys received by the
Security Trustee following the Charge becoming enforceable and not
required to be immediately applied under any of the discretions or
Powers contained in this Deed will be held by the Security Trustee in
the Secured Moneys Account, or invested as the Security Trustee thinks
appropriate in Authorised Investments on the following terms and
conditions:
(a) the Security Trustee may from time to time vary and deal with
or dispose of such investments provided that it does not incur
a capital loss in doing so; and
(b) if the Security Trustee invests any amount under this clause,
it must (subject to clause 10.1(b)) ensure that any such
Authorised Investments are rated at least the Designated
Rating by each Designated Rating Agency, and mature such that
the Security Trustee is able to distribute the proceeds of
those investments in or towards discharge of the Secured
Moneys as they become due.
10.6 CONCERNING PAYMENTS
If there is any dispute as to whether any moneys received or payable by
the Chargor or the Security Trustee are capital or income, such dispute
will be referred to the Auditor, acting as an expert, and his
determination is final and binding. The Security Trustee in making any
payment may make such
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payment against receipt of such information, invoices or receipts or
certificates as it may reasonably require.
11. CONTINUING SECURITY AND RELEASES
11.1 LIABILITY PRESERVED
Notwithstanding any payout figure quoted or other form of account
stated by the Security Trustee, no grant of full or partial
satisfaction of or discharge from this Deed by the Security Trustee
releases the Chargor hereunder until all the Secured Moneys have in
fact been received by the Security Trustee and are not liable for
whatever reason to be disgorged notwithstanding that such quotation or
statement of account may have arisen from the mistake, negligence,
error of law or error of fact of the Security Trustee.
11.2 CHARGOR'S LIABILITY NOT AFFECTED
This Deed and the liability of the Chargor under it are not affected or
discharged by any of the following:
(a) (INDULGENCE): the granting to the Chargor or to any other
person of any time or other indulgence or consideration;
(b) (DELAY IN RECOVERY): the Security Trustee failing or
neglecting to recover by the realisation of any other security
or otherwise any of the Secured Moneys;
(c) (LACHES): any other laches, acquiescence, delay, act, omission
or mistake on the part of the Security Trustee or any other
person; or
(d) (RELEASE): the release, discharge, abandonment or transfer
whether wholly or partially and with or without consideration
of any other security, judgment or negotiable instrument held
from time to time or recovered by the Security Trustee from or
against the Chargor or any other person.
11.3 WAIVER BY CHARGOR
The Chargor hereby waives in favour of the Security Trustee:
(a) all rights whatsoever against the Security Trustee and any
other person, estate or assets so far as necessary to give
effect to anything in this Deed;
(b) promptness and diligence on the part of the Security Trustee
and any other requirement that the Security Trustee take any
action or exhaust any right against any other person before
enforcing this Deed; and
(c) all rights inconsistent with the provisions of this Deed
including any rights as to contribution or subrogation which
the Chargor might otherwise be entitled to claim or enforce.
11.4 DISCHARGE OF SECURITIES
Upon proof being given to the reasonable satisfaction of the Security
Trustee that all Secured Moneys have been duly paid and satisfied, or
that provision for payment and satisfaction has been duly made in
accordance with the provisions of this Deed, the Security Trustee must:
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(a) at the request and cost of the Chargor (including the payment
of any stamp duty) release and discharge the Charged Property
from the Charge; and
(b) issue a certificate to the Chargor to that effect which
certificate is conclusive in the absence of manifest error.
12. PERFECTION AND PROTECTION OF SECURITY
12.1 FURTHER ASSURANCE
The Chargor must from time to time, as and when required to do so by
the Security Trustee, execute all documents and do all things as the
Security Trustee requires for more satisfactorily assuring the Charged
Property to the Security Trustee. In particular, the Chargor must
execute in favour of the Security Trustee such legal mortgages,
transfers, assignments or other assurances for all or any part of the
Charged Property in such form and containing such powers and provisions
as the Security Trustee requires.
12.2 POWER OF ATTORNEY
By way of security, the Chargor appoints the Security Trustee, each
director and manager from time to time of the Security Trustee, and any
Receiver appointed under this Charge, severally, as attorney of the
Chargor as follows:
(a) (POWERS): Each such attorney has power to:
(i) appoint (and remove at will) at any time any person(s)
as a substitute(s) for an attorney or attorneys;
(ii) do all acts which ought to be done by the Chargor
under the Charge;
(iii) take all action which is in the opinion of the
Security Trustee or the attorney(s) necessary or
expedient to secure or perfect the Charge, including
the power to execute legal mortgages, fixed charges,
transfers, assignments and other assurances in favour
of the Security Trustee, and to ensure the prompt
stamping and registration of any of them;
(iv) demand, sue for, recover and receive all or any
part(s) of the Charged Property from any person, in
the name of and on behalf of the Chargor, or in the
name of the Security Trustee or an attorney appointed
under this Charge;
(v) give effective receipts for all or any part of the
Charged Property to any person;
(vi) take further action and to execute further instruments
which are, or are in the opinion of the Security
Trustee, either necessary to more satisfactorily
secure the payment of the Secured Moneys or are
expedient in relation to the Charged Property; and
(vii) take any action which the attorney reasonably
considers expedient or necessary to remedy an Event of
Default or Potential Event of Default.
(b) (RATIFICATION): The Chargor ratifies and confirms now and for
the future all actions lawfully undertaken by or on behalf of
its attorney under this Power of Attorney.
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(c) (SURVIVES TERMINATION): This Power of Attorney continues in
force until all actions taken under it have been completed,
notwithstanding the determination of this Deed or any of the
agreements or arrangements to which it refers.
(d) (IRREVOCABLE): This Power of Attorney is irrevocable.
13. SECURITY PROVISIONS
13.1 STATUTORY POWERS
To the extent not prohibited by law, the Security Trustee is not
required to give any notice to any person or allow the expiration of
any time to any person before enforcing this Deed or exercising any
Power.
13.2 CONTINUING SECURITY
This Deed is a continuing security despite any settlement of account or
any other thing until the Charge is fully and finally discharged in
accordance with this Deed.
13.3 CONTINUING INDEMNITIES
(a) Each indemnity of the Chargor contained in this Deed or in any
Secured Document is a continuing obligation of the Chargor,
notwithstanding any settlement of account or the occurrence of
any other thing, and remains in full force and effect until
all Secured Moneys have been paid in full and the Charge has
been fully and finally discharged in accordance with this
Deed.
(b) Each indemnity of the Chargor in this Deed is an additional,
separate and independent obligation of the Chargor and no one
indemnity limits the generality of any other indemnity.
13.4 NO MERGER OF SECURITY
Nothing in this Deed merges, extinguishes, postpones, lessens or
otherwise prejudicially affects any other right, power or remedy
arising by law or under any other Secured Document.
13.5 MORATORIUM LEGISLATION
To the fullest extent permitted by law, the provisions of all Statutes
operating directly or indirectly to lessen or affect in favour of the
Chargor any obligation under this Deed, or to delay or otherwise
prevent or prejudicially affect the exercise of any Power, are hereby
expressly waived, negatived and excluded.
13.6 CONFLICT
Where any Power of the Security Trustee, Receiver or Attorney under
this Deed is inconsistent with the powers conferred by applicable law
then, to the extent not prohibited by that law, the powers conferred by
applicable law are deemed to be negated or varied to the extent of the
inconsistency.
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13.7 CONSENT OF SECURITY TRUSTEE
Whenever the doing of anything by the Chargor is dependent upon the
consent or approval of the Security Trustee, the Security Trustee, may
withhold its consent or approval or give it conditionally or
unconditionally in its absolute discretion unless expressly stated
otherwise.
13.8 SETTLEMENT CONDITIONAL
Any settlement or discharge between the Chargor and the Security
Trustee is conditional on any security or payment given or made to the
Security Trustee by the Chargor or any other person in relation to the
Secured Moneys not being avoided, repaid or reduced by virtue of any
law relating to insolvency and any provision of any agreement,
arrangement or scheme, formal or informal, relating to the
administration of any assets of any person. If the security or payment
is avoided, repaid or reduced, the Security Trustee is entitled to
recover the value or amount of such security or payment avoided, repaid
or reduced from the Chargor subsequently as if that settlement or
discharge had not occurred.
13.9 REMEDIES CUMULATIVE
The rights and remedies conferred by this Deed on the Security Trustee
and the Receiver are cumulative and in addition to all other rights or
remedies available to the Security Trustee or the Receiver by Statute,
by general law, or by virtue of any other Secured Document.
13.10 CHARGOR TO BEAR COST
Anything which must be done by the Chargor under this Deed, whether or
not at the request of the Security Trustee, is to be done at the cost
of the Chargor.
13.11 CERTIFICATES CONCLUSIVE
A certificate of the Security Trustee as to the amount of the Secured
Moneys at any time is conclusive in the absence of manifest error.
13.12 WRITTEN WAIVER, CONSENT AND APPROVAL
Any waiver, consent or approval given by the Security Trustee under
this Deed will only be effective and only binds the Security Trustee if
it is given in writing or given verbally and subsequently confirmed in
writing and executed by the Security Trustee or on its behalf by an
officer for the time being of the Security Trustee.
14. THE SECURITY TRUSTEE
14.1 COVENANTS OF SECURITY TRUSTEE
Until it retires or is removed from office as Security Trustee, the
Security Trustee must:
(a) (POWER): act continuously as trustee of the Security Trust;
(b) (PERFORMANCE): act honestly and in good faith in the
performance of its duties and the exercise of any discretions
having regard to the rights and interests of the Secured
Creditors;
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(c) (NO COMMINGLING): keep the Charged Property separate from all
other assets, investments and other property of the Security
Trustee or any other person, including, but not limited to,
assets, investments or other property vested in or held by the
Security Trustee as trustee of trusts other than the Security
Trust. Nothing in this clause 14.1(c) prohibits the Security
Trustee investing any moneys received by it in accordance with
clause 10.5; and
(d) (NOTICE TO DEALERS): promptly upon becoming aware of the
occurrence of any event which, pursuant to the Secured
Documents, has the effect of obliging the Chargor not to issue
Bonds, give notice to each person which the Trust Manager has
notified the Security Trustee to be a dealer or underwriter in
respect of the Bonds, to each Paying Agent and to each
Designated Rating Agency of such event.
14.2 PROTECTION OF SECURITY TRUSTEE
In addition to any protections under any applicable Statute or
contained in this Deed:
(a) (RELIANCE ON RESOLUTIONS): the Security Trustee is not
responsible for acting or relying upon any resolution
purporting to have been passed at any meeting of the
Bondholders in respect of which proper minutes have been made
and which the Security Trustee believes in good faith to have
been properly passed even though it afterwards appears that
such resolution is not binding or valid by reason of a defect
in the convening of, or proceedings at, the meeting or
otherwise howsoever;
(b) (ENQUIRY INTO TITLE) the Security Trustee is not bound to
enquire into, or liable for:
(i) any defects or failure in the title of the Chargor to
the Charged Property;
(ii) any insufficiency of the Charged Property as security
for the Secured Moneys; or
(iii) any ineffectiveness or unenforceability of the Charge,
whether any such matter might have been discovered upon
enquiry and remedied or not except (in the case only of the
matters referred to in sub-paragraphs (ii) and (iii)) to the
extent that such insufficiency, ineffectiveness or
unenforceability is caused by the Security Trustee's fraud,
negligence or wilful default, or a failure by the Security
Trustee to comply with the obligations imposed on it by law;
(c) (MONITORING COMPLIANCE): the Security Trustee is not bound to
monitor, investigate or otherwise inform itself as to the
Chargor's compliance with the Secured Documents except as
expressly provided in this Deed;
(d) (DISCRETION TO ENFORCE): notwithstanding any actual or
constructive notice which the Security Trustee has of the
occurrence of an Event of Default, the Security Trustee may
exercise or refrain from exercising its Powers in relation to
that Event of Default as it sees fit in its absolute
discretion unless in any such case:
(i) the Security Trustee is directed as to the manner in
which it should exercise that Power pursuant to an
Extraordinary Resolution or pursuant to a notice in
writing in accordance with clause 6.2(b);
(ii) the Security Trustee's liability is limited in a
manner consistent with clause 8.9; and
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(iii) the Security Trustee is indemnified to its
satisfaction against all actions, proceedings, claims
and demands to which the Security Trustee may render
itself liable and all costs, charges and expenses
which the Security Trustee may thereby incur; and
(e) (NO OBLIGATION TO INFORM): except where expressly provided in
this Deed, nothing in this Deed imposes on the Security
Trustee an obligation to inform the Secured Creditors of the
occurrence of an Event of Default or Potential Event of
Default.
14.3 SUPPLEMENTAL POWERS OF SECURITY TRUSTEE
In addition to the provisions of any applicable Statute and the other
Powers contained in this Deed:
(a) (ACT ON ADVICE): the Security Trustee may, without liability
for loss, obtain, accept and act on or decline and elect not
to act on:
(i) the opinion or advice of any professional adviser,
agent, broker, auctioneer or other expert selected by
the Security Trustee with due care, despite the same
being subsequently found to contain some error or not
be authentic, if the Security Trustee acted, accepted
or declined in good faith; or
(ii) a certificate signed by any two directors on behalf of
the Chargor or the Trust Manager as to any fact or
matter prima facie within the knowledge of the Chargor
or the Trust Manager, as sufficient evidence of such
fact;
(b) (ABSOLUTE DISCRETION): except as expressly provided otherwise
in this Deed, the Security Trustee has absolute discretion as
to the exercise of its Powers and performance of its duties
(including, without limitation, the exercise of any Powers
where it reasonably believes that it is necessary to do so in
order to protect the interests of the Secured Creditors (as
contemplated by clause 6.5)) and, as to the conduct of any
action, proceeding or claim and, provided it has acted with
reasonable care and diligence, it will not be responsible for
any loss, damages or expenses that may result from the
exercise or non-exercise of its Powers or performance of its
duties;
(c) (DELEGATION AND AGENTS): the Security Trustee, whenever it
believes in good faith that it is in the best interests of the
Secured Creditors to do so, may:
(i) act through agents;
(ii) authorise such person as it thinks fit to act as its
representative at any meeting; or
(iii) delegate its powers, discretions, duties or
obligations to any person as provided, whether
expressly or by implication, in any of the Secured
Documents, and no person dealing with any such agent
or delegate is bound to enquire as to the regularity
or authority of such agent or delegate or as to
whether it has the requisite power;
(d) (CONVENE MEETINGS): the Security Trustee may at any time in
accordance with the Meetings Procedures convene a meeting or
meetings of Bondholders for any purpose which the Security
Trustee considers desirable;
(e) (REPRESENT SECURED CREDITORS): the Security Trustee may at any
time of the Security Trustee's own volition, or pursuant to
any directions, or in accordance with any policy
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given or indicated by any meeting of Bondholders, represent
the Secured Creditors generally in:
(i) any investigation, negotiation, action, transaction or
proceeding relating to or affecting the interests of
the Secured Creditors; or
(ii) the enforcement of the rights of the Secured Creditors
or the Security Trustee;
(f) (DISCRETION IN REPRESENTING SECURED CREDITORS): except as
provided in this Deed, in representing the Secured Creditors,
the Security Trustee has an absolute discretion to act or to
refrain from acting and to commence, prosecute, vary or
discontinue, abandon, waive or compromise any action,
proceeding or claim on any terms or conditions as it thinks
fit;
(g) (APPLY TO THE COURT FOR DIRECTION): the Security Trustee may
apply to the Court for directions in relation to any question,
and assent to and approve of or oppose any application to the
Court made by any Secured Creditor; and
(h) (POWER TO DETERMINE): except as expressly otherwise provided
in this Deed, the Security Trustee has full power as between
itself and the Secured Creditors to determine all questions
and matters of doubt arising in relation to any of the
provisions of this Deed and every such determination shall be
conclusive and binding on the Secured Creditors except in the
case of a manifest error.
14.4 REMUNERATION AND EXPENSES
The Security Trustee agrees that:
(a) (FEES): its sole remuneration for undertaking its obligations
under this Deed is the payment of the fees agreed between the
Security Trustee and the Trust Manager on behalf of the
Chargor on or before the date of this Deed;
(b) (NO CLAIM AGAINST CHARGOR): it has no claim against the
Chargor for payment of expenses other than for expenses
relating to enforcement of the Charge pursuant to clause 10.2;
and
(c) (MEET OWN ORDINARY COSTS AND EXPENSES): it will pay from its
own funds any costs and expenses incurred by it in performing
its obligations and exercising its rights in the ordinary
course of its duties under this Deed but is not obliged to
undertake legal proceedings or other extraordinary action not
in the ordinary course of its duties unless it has been
indemnified to its reasonable satisfaction for liabilities,
costs and expenses incurred and for reasonable remuneration
for the services provided by it in respect of those legal
proceedings or that other extraordinary action.
14.5 CONFLICTS
Provided it acts in good faith, nothing in this Deed prevents the
Security Trustee or any Related Body Corporate or Associate (as defined
in Part 1.2 Division 2 of the Corporations Act) (all being included in
this clause in references to the Security Trustee) from:
(a) subscribing for, buying or selling Bonds;
(b) in the ordinary course of its business contracting or acting
in any capacity as representative or agent or otherwise or
entering into any financial, banking, development, insurance,
agency, broking or other transaction with the Chargor, the
Trust Manager or any Secured Creditor;
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(c) providing any advice or services to the Chargor, the Trust
Manager or any Secured Creditor; or
(d) being interested in any such contract or transaction.
The Security Trustee shall not be in any way liable to account to any
Chargor, the Trust Manager, any Secured Creditor or any other person
for any profits or benefits made or derived from or in connection with
any such transaction.
14.6 RELIANCE ON CERTIFICATES
The Security Trustee shall not incur any liability in respect of any
action taken or thing suffered by it in reliance upon any document
(including, for example, any notice, resolution, direction, consent,
certificate, receipt or statement) given to or served on it for the
purposes of or pursuant to this Deed which it reasonably believes to be
genuine, and to be signed by persons authorised to do so and having
power to bind the person on whose behalf the document is or purports to
be given.
14.7 NO LIABILITY
If the Security Trustee incurs any liability to any person as a
consequence of having relied, in accordance with clause 14.6, upon a
document which was forged or does not bind the person on whose behalf
it was purportedly given, the Security Trustee is entitled to
reimbursement for the amount of such loss from the Security Trust Fund.
14.8 KEEP RECORDS
The Security Trustee must:
(a) (KEEP RECORDS): keep and maintain proper and accurate books,
records and accounts in regard to its duties under this Deed;
(b) (INSPECTION): make available during normal office hours and
upon reasonable request to each of the Auditor, the Chargor
and the Trust Manager, for inspection and copying, any of
those books, records and accounts; and
(c) (EXTRACTS): deliver to the Auditor such extracts or copies of
those books, records and accounts and such other information
as it may reasonably require.
14.9 REMOVAL
If:
(a) (DEFAULT): the Security Trustee defaults in:
(i) the payment of any moneys required to be paid by the
Security Trustee; or
(ii) the observance or performance of any of its
obligations under this Deed (and, if that default is
capable of rectification, it is not rectified within 5
Business Days of its occurrence);
(b) (INSOLVENT): an Event of Insolvency occurs in relation to the
Security Trustee; or
(c) (EXTRAORDINARY RESOLUTION): an Extraordinary Resolution is
passed that the Security Trustee be removed from office,
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the Trust Manager may (or in the case of clause 14.9(c), must), subject
to clause 14.11, by at least 15 Business Days' written notice to the
Security Trustee remove the Security Trustee from office.
14.10 RETIREMENT OF SECURITY TRUSTEE
The Security Trustee may, subject to clause 14.11, retire at any time
upon giving not less than 4 months notice in writing (or such shorter
period as the parties may agree) to the Chargor and each Secured
Creditor.
14.11 REMOVAL OR RETIREMENT NOT EFFECTIVE
No removal or retirement of the Security Trustee under this clause 14
is effective unless and until a new Security Trustee has accepted the
office of Security Trustee pursuant to clause 14.12.
14.12 APPOINTMENT OF NEW SECURITY TRUSTEE
Subject to clauses 14.9(c), 14.22 and 16.2(d), the power of appointing
a new Security Trustee is vested in the Trust Manager.
14.13 FUNDS TO BE VESTED IN NEW TRUSTEE
Upon retiring or being removed from office, the Security Trustee (the
OUTGOING SECURITY TRUSTEE) must execute all documents and do all things
necessary to vest the Security Trust Fund or cause it to be vested, in
the person appointed as the successor Security Trustee (the INCOMING
SECURITY TRUSTEE).
14.14 RELEASE OF OUTGOING SECURITY TRUSTEE
Upon retirement or removal, the Outgoing Security Trustee shall have no
further obligations under this Deed, but retirement or removal will not
affect any of the rights, obligations or liabilities of the Outgoing
Security Trustee accrued or arising before retirement or removal.
14.15 INCOMING SECURITY TRUSTEE TO EXECUTE DEED
The Incoming Security Trustee must execute all documents as the Chargor
requires to:
(a) assume with effect from the date its appointment becomes
effective, all of the rights, powers, discretions and
obligations of the Security Trustee under this Deed as if the
Incoming Security Trustee had originally been a party to this
Deed as the Security Trustee; and
(b) indemnify the Outgoing Security Trustee for all liabilities
and expenses incurred by the Outgoing Security Trustee for
which it is entitled to be indemnified out of the Security
Trust Fund and which have not been recouped by it, provided
that the liability of the Incoming Security Trustee under such
indemnity shall be limited to the same extent provided for in
clause 1.4 and any payment shall rank in the same priority
pursuant to clause 1.4 as the corresponding liability for
which the Outgoing Security Trustee claims such
indemnification.
14.16 SETTLEMENT AMOUNTS PAYABLE TO OUTGOING SECURITY TRUSTEE
The Chargor or the Trust Manager may:
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(a) settle with the Outgoing Security Trustee the amount of any
sums payable by the Outgoing Security Trustee to the Chargor,
the Trust Manager or the Incoming Security Trustee; and
(b) give or accept from the Outgoing Security Trustee a discharge
in respect thereof.
Any such settlement or discharge shall (except in the case of any
fraud, negligence or wilful default on the part of the Outgoing
Security Trustee or its officers, employees, agents and delegates) be
conclusive and binding upon all persons.
14.17 OUTGOING SECURITY TRUSTEE TO RETAIN LIEN
Notwithstanding the retirement or removal of the Outgoing Security
Trustee and the indemnity in favour of the Outgoing Security Trustee by
the Incoming Security Trustee as contemplated by clause 14.15, the
Outgoing Security Trustee will retain a lien over the Security Trust
Fund to meet claims of any creditors of the Outgoing Security Trustee
as trustee of the Security Trust Fund, to the extent that the claims of
those creditors are not properly and duly satisfied by the Incoming
Security Trustee.
14.18 DELIVERY OF DOCUMENTS
The Outgoing Security Trustee must immediately upon termination of its
appointment becoming effective deliver to the Incoming Security Trustee
(or at its direction) all books, documents, records and property
relating to the Security Trust Fund. The Outgoing Security Trustee is
entitled to take, and keep copies of such books, documents and records.
The Incoming Security Trustee must produce the originals of such books,
documents and records in its possession upon the giving of reasonable
written notice by the Outgoing Security Trustee.
14.19 NOTICE TO SECURED CREDITORS OF NEW SECURITY TRUSTEE
The Incoming Security Trustee or the Chargor must give notice to the
Secured Creditors as soon as practicable following the appointment of
the Incoming Security Trustee.
14.20 ADDITIONAL SECURITY TRUSTEE'S POWERS
The powers conferred by this Deed upon the Security Trustee are in
addition to any powers which may from time to time be vested in
trustees by law and to any powers which may from time to time be vested
in the Security Trustee as a Secured Creditor.
14.21 NOTIFICATION
(a) The Security Trustee must promptly notify each Designated
Rating Agency, the Bond Trustee and each Secured Creditor
(other than the Offshore Bondholders) of:
(i) the occurrence of an Event of Default (upon the
Security Trustee receiving actual notice of same); or
(ii) the giving of a notice under clause 6.2; or
(iii) any proposal to vary, replace or terminate this Deed
or to replace the Security Trustee.
(b) The Bond Trustee must promptly notify each Offshore Bondholder
of the occurrence of an Event of Default (upon the Bond
Trustee receiving actual notice of the same).
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14.22 NO RATINGS DOWNGRADE
The Trust Manager must exercise the power of appointment conferred by
clause 14.12 in such a way that the appointment of the Incoming
Security Trustee does not cause the credit rating assigned by each of
the Designated Rating Agencies to Bonds issued prior to, or to be
issued by the Chargor following, such appointment to be less than the
relevant Designated Rating, qualified or withdrawn.
15. AMENDMENT
15.1 AMENDMENT BY SECURITY TRUSTEE
Subject to clause 15.2, the Security Trustee may by way of supplemental
deed made with the Chargor, the Trust Manager and the Bond Trustee vary
or amend this Deed (including this clause 15), the Bond Trust Deed or
any Condition so long as such variation or amendment 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 existing or proposed statute or
regulation or with the requirements of any Government Body;
(c) in the opinion of the Security Trustee appropriate or
expedient as a consequence of an amendment or proposed
amendment to any statute or regulation or altered requirements
of any Government Body and is not prejudicial to the interests
of any Secured Creditor;
(d) in the reasonable opinion of the Security Trustee not
prejudicial to the interests of any Secured Creditor; or
(e) approved by an Extraordinary Resolution.
15.2 CERTAIN PROVISIONS NOT TO BE VARIED
The Security Trustee may not vary or amend clauses 6.1, 6.2, 10.2, this
clause 15 or Conditions 4.4, 4.5, 5.1 or 5.2 (except pursuant to
paragraph (b) of clause 15.1) without the prior approval of an
Extraordinary Resolution and the consent of all Currency Swap
Counterparties and Interest Rate Swap Counterparties.
15.3 COPY OF AMENDMENTS TO SECURED CREDITORS
The Security Trustee must upon request by:
(a) a Secured Creditor; or
(b) the Bond Trustee on behalf of an Offshore Bondholder,
make available for inspection and copying by any such Secured Creditor
or the Bond Trustee (as the case may be) at its offices on reasonable
notice and during normal business hours a copy of the supplemental deed
effecting any variation or amendment to this Deed, the Bond Trust Deed
or any Condition.
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15.4 COPY OF AMENDMENTS IN ADVANCE TO DESIGNATED RATING AGENCIES
The Trust Manager on behalf of the Security Trustee must provide a copy
of any proposed variation or amendment to this Deed, the Bond Trust
Deed or a Condition which has been reviewed by the Security Trustee, to
each Designated Rating Agency at least 10 Business Days (or such other
period as may from time to time be agreed between the Security Trustee
and the Designated Rating Agency) prior to the same taking effect.
15.5 EVIDENCE OF VARIATION
If a variation or amendment to this Deed, the Bond Trust Deed or a
Condition is made pursuant to this clause 15, any person may rely upon
a certificate from the Security Trustee describing the variation and
the certificate is deemed to be conclusive evidence of the variation or
amendment.
16. MEETINGS
The Meetings Procedures apply to all meetings and resolutions of
Bondholders.
17. BOND TRUSTEE
17.1 CAPACITY
(a) The Bond Trustee is a party to this Deed in its capacity as
trustee for the Offshore Bondholders from time to time under
the Bond Trust Deed.
(b) Notwithstanding any other provision of this Deed, this Deed
becomes effective against the Bond Trustee only upon execution
of the Bond Trust Deed.
(c) Notwithstanding any other provision of this Deed (except for
paragraph (b)) or any other Transaction Document, the Bond
Trustee's rights and obligations under this Deed only apply to
the Offshore Bonds and the Bond Trustee is not in any way
responsible for the Fast Prepayment Bonds.
17.2 EXERCISE OF RIGHTS
Except as otherwise provided in this Deed and in the Bond Trust Deed:
(a) the rights, remedies and discretions of the Offshore
Bondholders under this Deed (including all rights to vote or
give instructions to the Security Trustee and to enforce any
undertaking or warranty under this Deed) may only be exercised
by the Bond Trustee on behalf of the Offshore Bondholders in
accordance with the Bond Trust Deed; and
(b) the Offshore Bondholders may only exercise enforcement rights
in respect of the Charged Property through the Bond Trustee
and only in accordance with this Deed and the Bond Trust Deed.
17.3 INSTRUCTIONS OR DIRECTIONS
The Security Trustee may rely on any instructions or directions given
to it by the Bond Trustee as being given on behalf of all Offshore
Bondholders of a particular Class from time to time and need not
inquire whether the Bond Trustee or the Offshore Bondholders of that
Class from time to time
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SECURITY TRUST DEED
have complied with any requirements under the Bond Trust Deed or as to
the reasonableness or otherwise of the instructions or directions given
to it by the Bond Trustee.
17.4 PAYMENTS
Any payment to be made by the Chargor or the Security Trustee to an
Offshore Bondholder under this Deed may be made to the Bond Trustee or
a Paying Agent on behalf of that Offshore Bondholder and any such
payment is a good discharge to the Chargor or the Security Trustee to
the extent of the same.
18. NOTICES
18.1 NOTICES GENERALLY
Subject to clause 18.2, every Notice:
(a) must be in writing in order to be valid;
(b) must be deemed to have been duly served, given or made in
relation to a party if it is:
(i) delivered to the address of that party set out in
paragraph (e) (or at such other address as may be
notified in writing by that party to the other party
from time to time); or
(ii) posted by prepaid registered post to such address; or
(iii) sent by facsimile to the facsimile number set out in
sub-paragraph (e) (or to such other number as may be
notified in writing by that party to the other party
from time to time);
(c) shall be sufficient if executed by the party giving, serving
or making the same or on its behalf by any two then Authorised
Signatories of such party;
(d) shall be deemed to be given, served or made:
(i) (in the case of prepaid registered post) within 2
Business Days after posting;
(ii) (in the case of facsimile) on receipt of a
transmission report confirming successful
transmission; and
(iii) (in the case of delivery by hand) on delivery;
(e) the addresses and facsimile numbers for service of notices as
referred to in sub-paragraph (b) of this clause are as
follows:
THE CHARGOR
Level 4
35 Clarence Street
SYDNEY NSW 2000
By fax: (02) 8295 8675
Attention: Senior Manager, Securitisation
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SECURITY TRUST DEED
THE TRUST MANAGER
Level 6
12 Castlereagh Street
SYDNEY NSW 2000
By fax: (02) 9225 0864
Attention: Financial Controller
THE SECURITY TRUSTEE
Level 4
35 Clarence Street
SYDNEY NSW 2000
By fax: (02) 8295 8675
Attention: Senior Manager, Securitisation
THE BOND TRUSTEE
The Bank of New York
101 Barclay Street, Floor 21 West
NEW YORK NY 10286 USA
By fax: (212) 815 5915
Attention: Global Structured Finance Unit
18.2 NOTICES TO SECURED CREDITORS
A notice, request or other communication by the Security Trustee to:
(a) Offshore Bondholders, shall be deemed to be duly given if
given to the Bond Trustee in accordance with clause 18.1;
(b) Fast Prepayment Bondholders, shall be deemed to be duly given
if given in accordance with the Conditions; and
(c) any other Secured Creditor, must be given in accordance with
the Secured Document under which the Secured Moneys
outstanding to that Secured Creditor is or may become owing.
18.3 NOTICES TO DESIGNATED RATING AGENCIES
The Security Trustee must provide a copy of each Notice to each Secured
Creditor or the Bond Trustee (on behalf of the Offshore Bondholders)
and to each Designated Rating Agency as from time to time agreed in
writing with the relevant Designated Rating Agency.
19. GOVERNING LAW AND JURISDICTION
19.1 GOVERNING LAW
This Deed is governed by and construed in accordance with the laws of
New South Wales.
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SECURITY TRUST DEED
19.2 JURISDICTION
(a) The Chargor, the Bond Trustee, the Security Trustee and the
Secured Creditors each irrevocably submits to and accepts
generally and unconditionally the non-exclusive jurisdiction
of the Courts and appellate Courts of New South Wales with
respect to any legal action or proceedings which may be
brought at any time relating in any way to this Deed.
(b) The Chargor, the Bond Trustee, the Security Trustee and the
Secured Creditors each irrevocably waives any objection it may
now or in the future have to the venue of any such action or
proceedings and any claim it may now or in the future have
that any such action or proceedings have been brought in an
inconvenient forum.
20. GENERAL
20.1 SEVERABILITY OF PROVISIONS
Any provision of this Deed which is illegal, void or unenforceable will
be ineffective to the extent only of that illegality, voidness or
unenforceability without invalidating the remaining provisions.
20.2 COUNTERPARTS
This Deed may be executed in a number of counterparts. Each counterpart
is to be considered an original and all such counterparts together
constitute one and the same instrument.
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SECURITY TRUST DEED
EXECUTED as a deed.
SIGNED SEALED AND DELIVERED for
PERMANENT CUSTODIANS LIMITED by its ------------------------------------
attorneys in the presence of: Attorney Signature
------------------------------------
Print Name
----------------------------------- ------------------------------------
Witness Signature Attorney Signature
----------------------------------- ------------------------------------
Print Name Print Name
SIGNED SEALED AND DELIVERED for
AUSTRALIAN SECURITISATION MANAGEMENT
PTY LIMITED by its attorney in the
presence of:
----------------------------------- ---------------------------------------
Witness Signature Attorney Signature
----------------------------------- ---------------------------------------
Print Name Print Name
SIGNED SEALED AND DELIVERED for
PERMANENT REGISTRY LIMITED by its ------------------------------------
attorneys in the presence of: Attorney Signature
------------------------------------
Print Name
----------------------------------- ------------------------------------
Witness Signature Attorney Signature
----------------------------------- ------------------------------------
Print Name Print Name
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SECURITY TRUST DEED
EXECUTED AS A DEED by THE BANK OF
NEW YORK in the presence of:
----------------------------------- ------------------------------------
Witness Signature Signature
----------------------------------- ------------------------------------
Print Name Print Name
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