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EXHIBIT 4.3
Draft: 18 August 2000
Series 2000-2G Medallion Trust
Security Trust Deed
Date:
P.T. Limited
Security Trustee
The Bank of New York, New York Branch
Class A-1 Note Trustee
Securitisation Advisory Services Pty. Limited
Manager
Perpetual Trustee Company Limited
Trustee
CLAYTON UTZ
Lawyers
Levels 27-35
No.1 O=Connell Street
SYDNEY NSW 2000
(C)Copyright Clayton Utz
Liability is limited by the Solicitors Scheme under the Professional Standards
Act 1994 NSW
AUSTRALIA
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TABLE OF CONTENTS
Clause Page
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Series Supplement and Master Trust Deed Definitions 7
1.3 Interpretation 7
1.4 Incorporation of Annexure 10
1.5 Trustee=s capacity 10
1.6 Determination of Outstanding Hedge Money 10
1.7 Amounts Outstanding 10
1.8 Benefit of Covenants under this Deed 11
1.9 Obligations Several 11
1.10 Incorporated Definitions and other Provisions 11
2. THE SECURITY TRUST 11
2.1 Appointment of Security Trustee 11
2.2 Declaration of Security Trust 11
2.3 Duration of Security Trust 11
2.4 Benefit of Security Trust 11
2.5 Interested Persons Bound 12
2.6 Nature of Rights of Secured Creditors 12
2.7 Shared Securities 12
3. PAYMENT OF SECURED MONEYS 12
3.1 Covenant in Favour of Security Trustee 12
3.2 Payments to Secured Creditors 12
4. CHARGE 12
4.1 The Charge 12
4.2 Floating Charge 12
4.3 Ranking of Charge 13
4.4 Crystallisation of Floating Charge 13
4.5 Consent to Dealings 13
4.6 Re-Conversion from Fixed into Floating Charge 13
4.7 Replacement of fixed charge over Charged Property 13
4.8 Subsequent dealing 14
4.9 Limit and Prospective Liability Amount 14
5. REPRESENTATIONS AND WARRANTIES 14
5.1 By the Trustee 14
5.2 By the Manager 16
6. TRUSTEE'S AND MANAGER'S COVENANTS 17
6.1 Covenants in respect of Charged Property 17
6.2 General Covenants 17
6.3 Dealing in Accordance with Master Trust Deed, the Series Supplement
etc. 18
6.4 Manager's Undertaking 19
7. EVENTS OF DEFAULT 19
8. RIGHTS AND OBLIGATIONS OF THE SECURITY TRUSTEE
(i)
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FOLLOWING EVENT OF DEFAULT 20
8.1 Notify Voting Secured Creditors and Convene Meeting of Voting Secured
Creditors 20
8.2 Extraordinary Resolutions 21
8.3 Security Trustee to Act in Accordance with Directions 21
8.4 Security Trustee Must Receive Indemnity 22
8.5 Notice to Trustee 22
8.6 Manager convenes meeting 23
8.7 Notice of Event of Default 23
8.8 Notice of action to remedy Event of Default 23
9. ENFORCEMENT 23
9.1 Power to Deal with and Protection of the Charged Property 23
9.2 Restrictions on Power to Enforce 23
9.3 No Obligation to Enforce 24
9.4 Limitation on Rights of Secured Creditors 24
9.5 Immaterial Waivers 24
9.6 Acceleration of Secured Moneys following Event of Default 25
10. RECEIVERS - APPOINTMENT AND POWERS 25
10.1 Appointment of Receiver 25
10.2 Joint Receivers 25
10.3 Remuneration of Receiver 26
10.4 Indemnification of Receiver 26
10.5 Appointment over part 26
10.6 Powers of Receiver 26
10.7 Indemnity 29
11. POWERS AND PROTECTIONS FOR SECURITY TRUSTEE AND RECEIVER AND
POWER OF ATTORNEY 29
11.1 Security Trustee has Powers of Receiver 29
11.2 Act Jointly 29
11.3 No Liability for Loss 30
11.4 No Liability to Account as Mortgagee in Possession 30
11.5 No Conflict 30
11.6 Contract Involving Conflict of Duty 30
11.7 Power of Attorney 30
11.8 Security Trustee May Make Good Default 31
11.9 Notice for Exercise of Powers 32
11.10 Benefit for Receiver etc. 32
12. PROTECTION OF PERSONS DEALING WITH SECURITY TRUSTEE
OR RECEIVER 32
12.1 No Enquiry 32
12.2 Receipts 32
13. APPLICATION OF MONEYS 33
13.1 Priority of Payments 33
13.2 Moneys Received 35
13.3 Application of Moneys 35
13.4 Investment of Funds 36
13.5 Conversion into A$ of Class A-1 Notes denominated in US$ 36
13.6 Application of Class A-1 Currency Swap Termination Proceeds 37
13.7 Satisfaction of Debts 37
(ii)
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14. SUPPLEMENTAL SECURITY TRUSTEE PROVISIONS 37
14.1 Limitations on Powers and Duties of Security Trustee 37
14.2 Limitation on Security Trustee's Actions 37
14.3 Additional Powers, Protections, etc. 38
14.4 Limitation of Liability 43
14.5 Dealings with Trust 43
14.6 Discretion of Security Trustee as to Exercise of Powers 44
14.7 Delegation of Duties of Security Trustee 44
14.8 Related Body Corporate of the Security Trustee 44
15. DUTIES OF THE SECURITY TRUSTEE 44
15.1 Duties of the Security Trustee limited to duties in this Deed 44
15.2 Security Trustee's Further Duties 44
15.3 Trustee Liable for Negligence etc. 45
15.4 No Liability for Transaction Documents 45
15.5 Resolution of Conflicts 45
(iii)
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16. INDEMNITY BY TRUSTEE 46
16.1 Indemnity 46
16.2 Extent of Security Trustee=s Indemnity 46
16.3 Costs of experts 47
16.4 Non-Discharge 47
16.5 Retention of Lien 47
17. MEETINGS OF VOTING SECURED CREDITORS 48
17.1 Meetings Regulated by the Annexure 48
17.2 Limitation on Security Trustee's Powers 48
18. CONTINUING SECURITY AND RELEASES 48
18.1 Liability Preserved 48
18.2 Trustee=s Liability Not Affected 48
18.3 Waiver by Trustee 49
19. REMUNERATION AND RETIREMENT OF SECURITY TRUSTEE 49
19.1 Remuneration 49
19.2 Retirement of Security Trustee 49
19.3 Removal by Manager 50
19.4 Security Trustee May Retire 50
19.5 Retirement of Trustee under Master Trust Deed 50
19.6 Appointment of Substitute Security Trustee by Voting Secured Creditors 51
19.7 Release of Security Trustee 51
19.8 Vesting of Security Trust Fund in Substitute Security Trustee 51
19.9 Substitute Security Trustee to Execute Deed 51
19.10 Rating Agencies Advised 52
20. ASSURANCE 52
20.1 Further Assurance 52
20.2 Postponement or Waiver of Security Interests 52
20.3 Registration of Charge 53
20.4 Caveats 53
21. PAYMENTS 53
21.1 Moneys Repayable as Agreed or on Demand 53
21.2 No Set-Off or Deduction 53
22. DISCHARGE OF THE CHARGE 54
22.1 Release 54
22.2 Contingent Liabilities 54
22.3 Charge Reinstated 54
23. CLASS A-1 NOTE TRUSTEE 54
23.1 Capacity 54
23.2 Exercise of rights 55
23.3 Instructions or directions 55
23.4 Payments 55
23.5 Notices 55
23.6 Limitation of Class A-1 Note Trustee's Liability 55
(iv)
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24. AMENDMENT 55
24.1 Amendment by Security Trustee 55
24.2 Consent required Generally 56
24.3 Consent to Payment Modification in relation to Class A-1 Notes 56
24.4 No Rating Agency Downgrade 57
24.5 Distribution of Amendments 57
25. EXPENSES AND STAMP DUTIES 57
25.1 Expenses 57
25.2 Stamp Duties 57
25.3 Goods and Services Tax 58
26. GOVERNING LAW AND JURISDICTION 58
26.1 Governing Law 58
26.2 Jurisdiction 58
27. NOTICES 58
27.1 Method of Delivery 58
27.2 Deemed Receipt 59
28. TRUSTEE'S LIMITED LIABILITY 59
28.1 Limitation on Trustee's Liability 59
28.2 Claims against Trustee 60
28.3 Breach of Trustee 60
28.4 Acts or omissions 60
28.5 No Authority 60
28.6 No Obligation 60
29. MISCELLANEOUS 61
29.1 Assignment by Trustee 61
29.2 Assignment by Manager 61
29.3 Assignment by Security Trustee 61
29.4 Assignment by Class A-1 Note Trustee 61
29.5 Certificate of Security Trustee 61
29.6 Continuing Obligation 62
29.7 Settlement Conditional 62
29.8 No Merger 62
29.9 Interest on Judgment 62
29.10 No Postponement 62
29.11 Severability of Provisions 62
29.12 Remedies Cumulative 63
29.13 Waiver 63
29.14 Consents and Approvals 63
29.15 Written Waiver, Consent and Approval 63
29.16 Time of Essence 63
29.17 Moratorium Legislation 63
29.18 Debit Accounts 64
29.19 Set-Off 64
29.20 Binding on Each Signatory 64
29.21 Counterparts 64
(v)
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SECURITY TRUST DEED is made in Sydney on 2000
BETWEEN P.T. LIMITED, ACN 004 454 666, a company incorporated in the State
of Victoria and having an office at Level 7, 39 Hunter Street,
Sydney, Australia (hereinafter included in the expression the
"Security Trustee")
AND THE BANK OF NEW YORK, NEW YORK BRANCH, a New York banking
corporation acting through its New York branch at 101 Barclay
Street, 21W, New York, New York 10286 (hereinafter included by
incorporation in the expression the "Class A-1 Note Trustee")
AND SECURITISATION ADVISORY SERVICES PTY. LIMITED, ACN 064 133 946, a
company incorporated in the State of New South Wales and having an
office at Level 3, 48 Martin Place, Sydney, Australia (hereinafter
included in the expression the "Manager")
AND PERPETUAL TRUSTEE COMPANY LIMITED, ACN 000 001 007, a company
incorporated in the State of New South Wales and having an office
at Level 3, 39 Hunter Street, Sydney, Australia in its capacity as
trustee of the Series Trust (as hereinafter defined) (the
"Trustee")
RECITALS
A. The Trustee is the trustee, and the Manager is the manager, of the Series
Trust.
B. The Trustee is authorised to enter into this Deed to charge the assets of
the Series Trust to secure the payment in full of the Secured Moneys to
the Secured Creditors of the Series Trust.
C. The Class A-1 Note Trustee has been appointed as trustee under the Class
A-1 Note Trust Deed to act on behalf of the Class A-1 Noteholders.
D. The Security Trustee has agreed to act as trustee for the benefit of the
Secured Creditors on the terms and conditions and with the powers and
authorities contained in this Deed.
THIS DEED PROVIDES as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Deed, unless the contrary intention appears:
"Agent" has the same meaning as in the Agency Agreement.
"Authorised Officer" means:
(a) in relation to the Security Trustee, a director or secretary of
the Security Trustee or an officer of the Security Trustee whose
title contains the word or words "manager" or "counsel" or a
person performing the functions of any of them;
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(b) in relation to the Class A-1 Note Trustee, an Authorised Officer
of the Class A-1 Note Trustee for the purposes of the Class A-1
Note Trust Deed;
(c) in relation to the Trustee, an Authorised Officer of the Trustee
for the purposes of the Master Trust Deed; and
(d) in relation to the Manager, an Authorised Officer of the Manager
for the purposes of the Master Trust Deed.
"Charge" means the charge created by this Deed.
"Charged Property" means all the Assets of the Series Trust held by the
Trustee from time to time as trustee of the Series Trust and the benefit
of all covenants, agreements, undertakings, representations, warranties
and other choses in action in favour of the Trustee under the Transaction
Documents, but does not include any of the foregoing situated outside the
State of New South Wales at the time of the execution and delivery of
this Deed.
"Charge Release Date" subject to clause [ ]22.3 means the date the
Security Trustee releases the Charged Property from the Charge.
"Class A-1 Currency Swap Termination Proceeds" means the US dollars
proceeds (if any) received from a Currency Swap Provider under a Class A-
1 Currency Swap as a result of the occurrence (if any) of an "Early
Termination Date" thereunder, and includes any interest earned and
credited thereon whilst such proceeds are invested in the US dollar
interest bearing account referred to in clause [ ]13.6.
"Class A-1 Trust" has the same meaning as in the Class A-1 Note Trust
Deed.
"Class B Basic Term Modification" means an alteration, addition or
amendment to this Deed or to the terms and conditions of the Securities
which has the effect of:
(a) reducing, cancelling, postponing the date of payment, modifying
the method for the calculation or altering the order of priority
under this Deed, of any amount payable in respect of any principal
or interest in respect of the Class B Notes;
(b) altering the currency in which payments under the Class B Notes
are to be made;
(c) altering the majority required to pass an Extraordinary Resolution
under this Deed; or
(d) sanctioning any scheme or proposal for the exchange or sale of the
Class B Notes for or the conversion of the Class B Notes into or
the cancellation of the Class B Notes in consideration of shares,
stock, notes, bonds, debentures, debenture stock and/or other
obligations and/or securities of the Trustee or any other company
formed or to be formed, or for or into or in consideration of
cash, or partly for or into or in consideration of such shares,
stock, notes, bonds, debentures, debenture stock and/or other
obligations and/or securities as aforesaid and partly for or in
consideration of cash.
"Event of Default" has the meaning given to it in clause [ ]7.
"Extraordinary Resolution" of the Voting Secured Creditors or a class of
Voting Secured Creditors means:
(a) a resolution which is passed at a meeting of the then Voting
Secured Creditors or, where applicable, a class of Voting Secured
Creditors duly convened and held in accordance with the provisions
of this Deed (including the Annexure) by a majority consisting of
not less than 75% of the votes (determined in accordance with
clause 8(d)(i) of the Annexure) of the persons present and
voting at the meeting who are then Voting Secured Creditors, or
Voting Secured Creditors of that class, or representing such
Voting Secured Creditors or, if a
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poll is demanded, by then Voting Secured Creditors, or Voting
Secured Creditors of that class, holding or representing between
them Voting Entitlements comprising in aggregate a number of votes
which is not less than 75% of the aggregate number of votes
comprised in the Voting Entitlements held or represented by all
the persons present at the meeting voting on such poll; or
(b) a resolution in writing in relation to all Voting Secured
Creditors or the class of Voting Secured Creditors pursuant to
clause [ ]16 of the Annexure.
"Foreign Currency" means a currency other than Australian dollars.
"Insolvency Event" in relation to:
(a) the Trustee, means each of the following events:
(i) an application is made to a court (which application is not
dismissed or stayed on appeal within 30 days) for an order or an
order is made that the Trustee be wound up or dissolved;
(ii) an application is made to a court for an order appointing a
liquidator, a provisional liquidator, a receiver or a receiver and
manager in respect of the Trustee (which application is not
dismissed or stayed on appeal within 30 days), or one of them is
appointed, whether or not under an order;
(iii) except on terms approved by the Security Trustee, the Trustee
enters into, or resolves to enter into, a scheme of arrangement,
deed of company arrangement or composition with, or assignment for
the benefit of, all or any class of its creditors, or it proposes
a reorganisation, moratorium or other administration involving any
of them;
(iv) the Trustee resolves to wind itself up, or otherwise dissolve
itself, or gives notice of intention to do so, except to
reconstruct or amalgamate while solvent on terms approved by the
Security Trustee or is otherwise wound up or dissolved;
(v) the Trustee is or states that it is unable to pay its debts when
they fall due;
(vi) as a result of the operation of section 459F(1) of the
Corporations Law, the Trustee is taken to have failed to comply
with a statutory demand;
(vii) the Trustee is or makes a statement from which it may be
reasonably deduced by the Security Trustee that the Trustee is,
the subject of an event described in section 459C(2)(b) or section
585 of the Corporations Law;
(viii) the Trustee takes any step to obtain protection or is granted
protection from its creditors, under any applicable legislation or
an administrator is appointed to the Trustee or the board of
directors of the Trustee propose to appoint an administrator to
the Trustee or the Trustee becomes aware that a person who is
entitled to enforce a charge on the whole or substantially the
whole of the Trustee's property proposes to appoint an
administrator to the Trustee;
(ix) anything analogous or having a substantially similar effect to any
of the events specified above happens under the law of any
applicable jurisdiction; and
(b) the Security Trustee has the same meaning as in the Master Trust Deed
(provided that any approval thereunder must be given by the Manager rather
than the Trustee as specified therein).
"Interested Persons" means a collective reference to the Trustee, the
Secured Creditors, the Manager and all persons claiming through them and
"Interested Person" means a several reference to all Interested Persons.
"Manager" means Securitisation Advisory Services Pty. Limited or if
Securitisation Advisory Services Pty. Limited retires or is removed as
manager of the Series Trust, any
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then Substitute Manager and includes the Trustee when acting as the
Manager in accordance with the provisions of the Master Trust Deed.
"Master Trust Deed" means the Master Trust Deed dated 8 October 1997 and
made between the Trustee and the Manager, as amended from time to time.
"Outstanding Cash Advance Deposit" on a given date means the amount of
the Cash Advance Deposit on that date together with all accrued but
unpaid interest on the Cash Advance Deposit payable to the Liquidity
Facility Provider pursuant to the Liquidity Facility Agreement.
"Outstanding Interest Rate Swap Prepayment Amount" has the same meaning
as in the Interest Rate Swap Agreement.
"Potential Event of Default" has the same meaning as in the Class A-1
Note Trust Deed.
"Pre-Default Action" means:
(a) an action which the Security Trustee is required or empowered to
take prior to an Event of Default under:
(i) paragraphs (a)(iii), (a)(iv) and (a)(vii) of the
definition of "Insolvency Event" in this clause 1.1; and
(ii) clauses 6.1, 6.2(c), 8.3, 8.4, 9.5, 11.5, 11.8, 14, 15.2,
16.1, 17.2, 19, 20.1, 20.2, 22, 24 and 29; and
(b) such action as the Security Trustee considers necessary to cause
the Trustee to comply with its obligations under clause 19.1.
"Prior Interest" means the lien over, and right of indemnification from,
the Charged Property held by the Trustee under, and calculated in
accordance with, the Master Trust Deed for Trustee Indemnity Costs (other
than the Secured Moneys) in relation to the Series Trust which are
unpaid, or paid by the Trustee but not reimbursed to the Trustee from the
Assets of the Series Trust.
"Receiver" means a receiver appointed by the Security Trustee under this
Deed and includes a receiver and manager and where more than one person
has been appointed as receiver or receiver and manager each such person
and also any servant agent or delegate of any such receiver or receiver
and manager.
"Representative" means:
(a) in relation to a Voting Secured Creditor, a person appointed as a
proxy for that Voting Secured Creditor pursuant to clause [ ]10 of
the Annexure; and
(b) without limiting the generality of paragraph (a), in relation to a
Voting Secured Creditor that is a body corporate, a person
appointed pursuant to clause [ ]11 of the Annexure by that Voting
Secured Creditor.
"Secured Creditors" means the Class A-1 Note Trustee (in its personal
capacity and as trustee of the Class A-1 Trust), each Paying Agent, each
Securityholder, each Hedge Provider, the Liquidity Facility Provider, the
Standby Redraw Facility Provider, the Servicer and the Seller and
"Secured Creditor" means each of the Secured Creditors.
"Secured Moneys" means, without double counting, the aggregate of all
moneys owing to the Security Trustee or to a Secured Creditor under any
of the Transaction Documents provided that:
(a) the amount owing by the Trustee in relation to the principal
component of a Security is to be calculated by reference to the
Invested Amount of that Security;
(b) the amount owing by the Trustee in relation to the principal
component of the Standby Redraw Facility Agreement is to be
calculated by reference to the aggregate of the Standby Redraw
Facility Principal and the Unreimbursed Principal Charge-offs in
relation to the Standby Redraw Facility Principal; and
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(c) the Secured Moneys do not include any fees or value added tax
payable to the Class A-1 Note Trustee referred to in clause
[ ]12.7 of the Class A-1 Note Trust Deed or to the Agents referred
to in the clause 12.6 of the Agency Agreement.
"Security Trust" means the trust established under clause [ ]2.2 of this
Deed.
"Security Trust Fund" means any property and benefits which the Security
Trustee holds on trust for the Secured Creditors under this Deed
including, without limitation, all the right, title and interest of the
Security Trustee in connection with the Charge and any property which
represents the proceeds of sale of any such property or proceeds of
enforcement of the Charge.
"Security Trustee" means P.T. Limited or if P.T. Limited retires or is
removed as security trustee, any then Substitute Security Trustee.
"Senior Security" means a Class A-1 Note, a Class A-2 Note or a Redraw
Bond.
"Senior Securityholder" means a Class A-1 Noteholder, a Class A-2
Noteholder or a Redraw Bondholder.
"Series Supplement" means the Series Supplement dated on or about the
date of this Deed between the Commonwealth Bank of Australia, ACN 123 123
124, the Manager and the Trustee.
"Series Trust" means the trust known as the Series 2000-2G Medallion
Trust established pursuant to the Master Trust Deed and the Series
Supplement.
"Statute" means any legislation now or hereafter in force of the
Parliament of the Commonwealth of Australia or of any State or Territory
thereof and any rule regulation ordinance by-law statutory instrument
order or notice now or hereafter made under such legislation.
"Substitute Security Trustee" at any given time means the entity then
appointed as Security Trustee under clause [ ]19.
"Trustee Indemnity Costs" means the fees, costs, charges and expenses
incurred by, or payable to the Trustee (in its capacity as trustee of the
Series Trust) in accordance with the Master Trust Deed (including clause
[ ]16.11 of the Master Trust Deed) and the Series Supplement.
"Voting Entitlement" means, on a particular date the number of votes
which a Voting Secured Creditor would be entitled to exercise if a
meeting of Voting Secured Creditors were held on that date, being in
respect of a given Voting Secured Creditor and subject to clause
[ ]13.5(c), the number calculated by dividing the Secured Moneys owing to
that Voting Secured Creditor by 10 and rounding the resultant figure down
to the nearest whole number, provided that if the Class A-1 Note Trustee
is a then Voting Secured Creditor it will have a Voting Entitlement equal
to the aggregate Voting Entitlement (determined in accordance with the
foregoing) for all Class A-1 Noteholders.
"Voting Secured Creditor" means:
(a) for so long as the Secured Moneys of the Securityholders are 75%
or more of the then total Secured Moneys:
(i) if any Class A-1 Note then remains outstanding, the Class A-1
Note Trustee (or, if the Class A-1 Note Trustee has become
bound to notify, or seek directions from, the Class A-1
Noteholders or to take steps and/or to proceed under the
Class A-1 Note Trust Deed and fails to do so as and when
required by the Class A-1 Note Trust Deed and such failure is
continuing, the Class A-1 Noteholders); if any Class A-2
Notes remain outstanding, the Class A-2 Noteholders; and if
any Redraw Bonds remain outstanding, the Redraw Bondholders;
or
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(ii) if no Senior Security then remains outstanding, the Class B
Noteholders; and
(b) otherwise:
(i) if any Class A-1 Notes remain outstanding, the Class A-1
Note Trustee (or, if the Class A-1 Note Trustee has become
bound to take steps and/or to proceed under the Class A-1
Note Trust Deed and fails to do so as and when required by
the Class A-1 Note Trust Deed and such failure is
continuing, the Class A-1 Noteholders); and
(ii) each other then Secured Creditor (other than the Class A-1
Note Trustee and the Class A-1 Noteholders).
1.2 Series Supplement and Master Trust Deed Definitions
Subject to clause [ ]1.10, unless defined in this Deed, words and phrases
defined in either or both of the Master Trust Deed and the Series
Supplement have the same meaning in this Deed. Where there is any
inconsistency in a definition between this Deed (on the one hand) and the
Master Trust Deed or the Series Supplement (on the other hand), this Deed
prevails. Where there is any inconsistency in a definition between the
Master Trust Deed and the Series Supplement, the Series Supplement
prevails over the Master Trust Deed in respect of this Deed. Subject to
clause [ ]1.10, where words or phrases used but not defined in this Deed
are defined in the Master Trust Deed in relation to a Series Trust (as
defined in the Master Trust Deed) and/or an Other Trust such words or
phrases are to be construed in this Deed, where necessary, as being used
only in relation to the Series Trust (as defined in this Deed) and/or the
CBA Trust (as defined in the Series Supplement), as the context requires.
1.3 Interpretation
In this Deed unless the contrary intention appears:
(a) the expression "person" includes an individual, a corporation and a
Governmental Agency;
(b) the expression "owing" includes amounts that are owing whether such
amounts are liquidated or not or are contingent or presently accrued
due and includes all rights sounding in damages only;
(c) the expression "power" in relation to a person includes all powers,
authorities, rights, remedies, privileges and discretions conferred
upon that person by the Transaction Documents, by any other deed,
agreement, document, or instrument, by any Statute or otherwise by
law;
(d) a reference to any person includes that person=s executors,
administrators, successors, substitutes and assigns, including any
person taking by way of novation;
(e) subject to clause [ ]1.10, a reference to this Deed, the Master
Trust Deed or to any other deed, agreement, document or instrument
includes, respectively, this Deed, the Master Trust Deed or such
other deed, agreement, document or instrument as amended, novated,
supplemented, varied or replaced from time to time;
(f) a reference to any Statute or to any section or provision of any
Statute includes any statutory modification or re-enactment or any
statutory provision substituted therefor and all ordinances, by-
laws, regulations and other statutory instruments issued thereunder;
(g) a reference to a Related Body Corporate includes a corporation which
is or becomes a Related Body Corporate during the currency of this
Deed;
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(h) words importing the singular include the plural (and vice versa) and
words denoting a given gender include all other genders;
(i) headings are for convenience only and do not affect the
interpretation of this Deed;
(j) a reference to a clause is a reference to a clause of this Deed;
(k) a reference to a Schedule or an Annexure is a reference to the
Schedule or Annexure to this Deed;
(l) where any word or phrase is given a defined meaning any other part
of speech or other grammatical form in respect of such word or
phrase has a corresponding meaning;
(m) all accounting terms used in this Deed have the same meaning
ascribed to those terms under accounting principles and practices
generally accepted in Australia from time to time;
(n) a reference to a party is a reference to a party to this Deed;
(o) a reference to time is a reference to Sydney time;
(p) a reference to any thing (including, without limitation, the Secured
Money, any other amount and the Charged Property) is a reference to
the whole and each part of it and a reference to a group of persons
is a reference to all of them collectively, to any two or more of
them collectively and to each of them individually;
(q) if an act prescribed under this Deed to be done by a party on or by
a given day is done after 5.30pm on that day, it is to be taken to
be done on the following day;
(r) where any day on which a payment is due to be made or a thing is due
to be done under this Deed is not a Business Day, that payment must
be made or that thing must be done on the immediately succeeding
Business Day;
(s) a reference to "wilful default" in relation to the Trustee, the
Security Trustee or the Manager means, subject to clause [_]1.3(t),
any wilful failure to comply with, or wilful breach by, the Trustee,
the Security Trustee or the Manager (as the case may be) of any of
its obligations under any Transaction Document, other than a failure
or breach which:
(i) (A) arises as a result of a breach of a Transaction
Document by a person other than:
(1) the Trustee, the Security Trustee or the
Manager (as the case may be); or
(2) any other person referred to in clause
[_]1.3(t) in relation to the Trustee, the
Security Trustee or the Manager (as the case
may be); and
(B) the performance of the action (the non-performance
of which gave rise to such breach) is a precondition
to the Trustee, the Security Trustee or the Manager
(as the case may be) performing the said obligation;
(ii) is in accordance with a lawful court order or direction or
required by law; or
(iii) is:
(A) in accordance with any proper instruction or
direction of the Voting Secured Creditors given at a
meeting of Voting Secured Creditors convened
pursuant to this Deed; or
(B) in accordance with any proper instruction or
direction of the Investors given at a meeting
convened under the Master Trust Deed (as amended by
the Series Supplement);
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(t) a reference to the "fraud", "negligence" or "wilful default" of the
Trustee, the Security Trustee or the Manager means the fraud,
negligence or wilful default of the Trustee, the Security Trustee or
the Manager (as the case may be) and of its officers, employees,
agents and any other person where the Trustee, the Security Trustee
or the Manager (as the case may be) is liable for the acts or
omissions of such other person under the terms of any Transaction
Document;
(u) subject to clause [ ]27.2, each party will only be considered to
have knowledge or awareness of, or notice of, a thing or grounds to
believe anything by virtue of the officers of that party (or any
Related Body Corporate of that party) which have the day to day
responsibility for the administration or management of that party's
(or a Related Body Corporate of that party's) obligations in
relation to the Series Trust or this Deed, having actual knowledge,
actual awareness or actual notice of that thing, or grounds or
reason to believe that thing (and similar references will be
interpreted in this way). In addition, notice, knowledge or
awareness of an Event of Default means notice, knowledge or
awareness of the occurrence of the events or circumstances
constituting an Event of Default. The Security Trustee will be
regarded as being actually aware of an Event of Default if it
receives a written notice from the Trustee, the Manager or the Class
A-1 Note Trustee that the Trustee, the Manager or the Class A-1 Note
Trustee (as the case may be) believes, on reasonable grounds, that
the Event of Default has occurred; and
(v) a reference to prospective liabilities includes, without limitation,
the liabilities of the Trustee under the Transaction Documents.
1.4 Incorporation of Annexure
This Deed incorporates the Annexure which forms part of, and is subject
to, this Deed.
1.5 Trustee=s capacity
In this Deed, unless expressly specified otherwise:
(a) (References to Trustee): a reference to the Trustee is a reference
to the Trustee in its capacity as trustee of the Series Trust
only, and in no other capacity;
(b) (References to Assets of Trustee): a reference to the undertaking,
assets, business or money of the Trustee is a reference to the
undertaking, assets, business or money of the Trustee in the
capacity referred to in paragraph (a); and
(c) (Insolvency Event): a reference in the definition of "Insolvency
Event" in clause [ ]1.1 to the Trustee is to the Trustee only in
its capacity as trustee of the Series Trust and does not include
the Trustee personally, as trustee of any other trust fund or in
any other capacity whatsoever.
1.6 Determination of Outstanding Hedge Money
The amounts owing by the Trustee to a Hedge Provider under a Hedge
Agreement are to be determined by the Manager on the relevant date as if
an "Early Termination Date" (as defined in the relevant Hedge Agreement)
has been designated in respect of all "Transactions" (as defined in the
relevant Hedge Agreement) in accordance with the relevant Hedge Agreement
at the time of such determination.
1.7 Amounts Outstanding
For the purposes of determining whether any amount constitutes Secured
Moneys, for the purposes of clause [ ]7(g) and, for the purposes of
clause [ ]13.1 (and for these purposes only), the calculation of any
amounts owing or due by the Trustee shall be made without regard to any
limitation on the Trustee's liability that may be construed as meaning
that
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such amounts are not owing or are not due and payable.
1.8 Benefit of Covenants under this Deed
Unless the context indicates a contrary intention, the Security Trustee
holds the covenants, undertaking and other obligations and liabilities of
the Trustee and the Manager under this Deed on trust for the benefit of
the Secured Creditors on the terms and conditions of this Deed.
1.9 Obligations Several
The obligations of the parties under this Deed are several.
1.10 Incorporated Definitions and other Provisions
Where in this Deed a word or expression is defined by reference to its
meaning in another Transaction Document or there is a reference to
another Transaction Document or to a provision of another Transaction
Document, any amendment to the meaning of that word or expression, to
that Transaction Document or to that provision (as the case may be) will
be of no effect for the purposes of this Deed unless and until the
amendment is consented to by all parties to this Deed.
2. THE SECURITY TRUST
2.1 Appointment of Security Trustee
The Security Trustee is hereby appointed and agrees to act as trustee of
the Security Trust (with effect from the constitution of the Security
Trust) on the terms and conditions in this Deed.
2.2 Declaration of Security Trust
The Security Trustee declares that it holds the Security Trust Fund on
trust for those persons who are Secured Creditors at the time of
distribution of any money by the Security Trustee pursuant to clause
[ ]13.1.
2.3 Duration of Security Trust
The Security Trust commences on the date of this Deed and terminates on
the first to occur of
(a) (Charge Release Date): the Charge Release Date; and
(b) (80th anniversary): the 80th anniversary of the date of this Deed.
2.4 Benefit of Security Trust
Each Secured Creditor is entitled to the benefit of the Security Trust on
the terms and conditions contained in this Deed.
2.5 Interested Persons Bound
The provisions of this Deed, the Master Trust Deed and the Series
Supplement are binding upon every Interested Person and the Security
Trustee.
2.6 Nature of Rights of Secured Creditors
Prior to any distribution to the Secured Creditors pursuant to clause
[ ]13.1, no Secured Creditor is entitled to any equitable or proprietary
interest in the Charged Property, or any rights held by the Security
Trustee under clause [ ]1.8, and only has a mere right of action against
the Security Trustee to properly perform its covenants under this Deed
and to account to the Secured Creditors in accordance with this Deed.
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2.7 Shared Securities
The Security Trustee is bound by clause [ ]7.3 of the Series Supplement
in respect of each Shared Security notified by the Seller to the Security
Trustee in writing to be affected by the CBA Trust as if a reference
therein to the Trustee was a reference to both the Security Trustee and
the Receiver.
3. PAYMENT OF SECURED MONEYS
3.1 Covenant in Favour of Security Trustee
The Trustee covenants in favour of the Security Trustee that it will duly
and punctually pay the Secured Moneys to, or to the order of, the
Security Trustee as and when the same fall due for payment.
3.2 Payments to Secured Creditors
Notwithstanding clause [ ]3.1, every payment by the Trustee, or the
Security Trustee in accordance with this Deed, to the Secured Creditors
on account of the Secured Moneys will operate as payment by the Trustee
to the Security Trustee in satisfaction of the Trustee=s obligations in
respect of the Secured Moneys.
4. CHARGE
4.1 The Charge
The Trustee charges all its present and future, right, title and interest
in the Charged Property, subject only to the Prior Interest, to the
Security Trustee for the payment in full of all the Secured Moneys.
4.2 Floating Charge
The Charge is a floating charge over the Charged Property.
4.3 Ranking of Charge
Subject only to the Prior Interest, the Charge is a first ranking charge
having priority over all other Security Interests of the Trustee over the
Charged Property.
4.4 Crystallisation of Floating Charge
If the Charge has not otherwise taken effect as a fixed charge, it takes
effect as a fixed charge automatically and immediately over all the
Charged Property if an Event of Default occurs, other than if an Event of
Default described in clauses [ ]7(c) or (e) occurs, in which event it
takes effect as a fixed charge automatically and immediately over the
affected Charged Property. Upon the Charge becoming a fixed charge
pursuant to the foregoing provisions of this clause, the Security Trustee
is deemed to have intervened at that point in time and to have exercised
all its rights of intervention in respect of the relevant Charged
Property.
4.5 Consent to Dealings
The Trustee must not (and the Manager will not give any direction to the
Trustee to) dispose of or deal with the Charged Property, whether the
Charge is floating or fixed unless such disposition or such other dealing
is permitted by or required by and will be effected in accordance with
the terms of the Master Trust Deed, the Series Supplement or any other
Transaction Document. Without limiting the generality of the foregoing,
the Trustee or its delegates may (notwithstanding that the Charge has
taken effect as a fixed charge) discharge in accordance with the terms of
the Transaction Documents, any Mortgage Loan, Mortgage or Collateral
Security. Any Mortgage Loan, Mortgage or Collateral Security which is
discharged by the Trustee or its delegates pursuant to this
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clause will automatically, and without the need for any act on the part
of the Security Trustee, be free from and released from this Charge.
4.6 Re-Conversion from Fixed into Floating Charge
Subject to clause [ ]4.7, at any time after the Charge has taken effect
as a fixed charge over the Charged Property, the Security Trustee may
(and will, if directed by an Extraordinary Resolution of the then Voting
Secured Creditors) by notice in writing to the Trustee convert the Charge
from a fixed charge into a floating charge as regards any asset or assets
specified in such notice. Upon such notice being received by the
Trustee, the Charge as regards such specified asset or assets will
immediately become and operate as a floating charge subject to the
provisions of this Deed and will cease to be a fixed charge over such
specified asset or assets.
4.7 Replacement of fixed charge over Charged Property
If the Charge has taken effect as a fixed charge as a result of the
occurrence of the Event of Default described in clause [ ]7(a)(i) the
Security Trustee must, upon notification from the Manager that another
Authorised Trustee Corporation has been appointed as trustee of the
Series Trust, by notice in writing to the Trustee convert the charge from
a fixed charge into a floating charge as regards the Charged Property.
4.8 Subsequent dealing
From the effective date specified in a notice given under clause [ ]4.6
or 4.7:
(a) (Trustee may deal as if floating charge): the Trustee may deal with
the Charged Property the subject of the notice, if it was acquired
by the Trustee before the effective date of the notice, as if it had
always been charged by way of floating charge under this Deed;
(b) (Treat the fixing as not having occurred): the floating charge given
by this Deed in respect of Charged Property the subject of the
notice acquired by the Trustee on or after the effective date of the
notice continues to operate as a floating charge as if it had never
been a fixed charge; and
(c) (Third person may rely on notice that Charge is floating): a person
dealing with the Trustee in relation to the Charged Property the
subject of the notice may rely on a notice from the Security Trustee
as conclusive evidence that, as at the time the notice is issued,
such Charged Property is charged by way of floating charge.
4.9 Limit and Prospective Liability Amount
(a) (Amount Recoverable): The Charge is security for the whole of the
Secured Moneys, but the aggregate amount recoverable under the
Charge may not exceed A$20,000,000,000.
(b) (Fixed Priorities): For the purposes of fixing priorities between
the Charge and any subsequent charge registered under the
Corporations Law, the Charge secures a prospective liability up to a
maximum amount of A$20,000,000,000.
(c) (No Obligation): Nothing in this clause [_]4.9 creates any
obligation upon the Security Trustee to enter into any arrangement
or to advance any moneys or do any act or thing as a result whereof
if so created, entered into, advanced or done there would be Secured
Moneys, or limits or affects the provisions of section 279(2) of the
Corporations Law.
5. REPRESENTATIONS AND WARRANTIES
5.1 By the Trustee
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The Trustee represents and warrants to the Security Trustee that:
(a) (Due incorporation): it is duly incorporated and has the corporate
power to own its property and to carry on its business as is now
being conducted;
(b) (Constitution): the execution delivery and performance of each
Transaction Document to which it is expressed to be a party does not
violate its constitution;
(c) (Corporate power): it has the power and has taken all corporate and
other action required to enter into each Transaction Document to
which it is expressed to be a party and to authorise the execution
and delivery of each Transaction Document to which it is expressed
to be a party and the performance of its obligations under each
Transaction Document to which it is expressed to be a party;
(d) (Filings): all corporate notices, filings and registrations with the
Australian Securities and Investments Commission or similar office
in its jurisdiction of incorporation and in any other jurisdiction
required to be filed or effected, as applicable, by it in connection
with the execution, delivery and performance of each Transaction
Document to which it is expressed to be a party, have been filed or
effected, as applicable, and all such filings and registrations are
current, complete and accurate;
(e) (Legally binding obligation): its obligations under each Transaction
Document to which it is expressed to be a party are valid, legally
binding and enforceable obligations in accordance with the terms of
each Transaction Document to which it is expressed to be a party,
subject to stamping and any necessary registration and except as
such enforceability may be limited by any applicable bankruptcy,
insolvency, reorganisation, moratorium or trust or general
principles of equity or other similar laws affecting creditors'
rights generally;
(f) (Execution, delivery and performance): its execution, delivery and
performance of each Transaction Document to which it is expressed to
be a party 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 consents, licences, approvals and
authorisations of every Governmental Agency required to be obtained
by it in connection with the execution, delivery and performance of
each Transaction Document to which it is expressed to be a party in
its personal capacity have been obtained and are valid and
subsisting;
(h) (Good title): it is the lawful owner of, and has good right to
charge in the manner provided in this Deed, the Charged Property
and, subject only to the Master Trust Deed, the Series Supplement,
this Deed and the Prior Interest, the Charged Property is free of
all other Security Interests;
(i) (Series Trust validly created): the Series Trust has been validly
created and is in existence at the date of this Deed;
(j) (Sole Trustee): it has been validly appointed as trustee of the
Series Trust and is presently the sole trustee of the Series Trust;
(k) (Master Trust Deed and the Series Supplement): the Series Trust is
solely constituted by the Master Trust Deed and the Series
Supplement;
(l) (No proceedings to remove): it has received no notice and to its
knowledge no resolution has been passed or direction or notice has
been given, removing it as trustee of the Series Trust;
(m) (Trustee's power): it has power under the Master Trust Deed and the
Series Supplement to charge the Charged Property as provided in this
Deed; and
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(n) (No breach): it is not in breach of any material provision of the
Master Trust Deed or the Series Supplement.
5.2 By the Manager
The Manager represents and warrants to the Security Trustee that:
(a) (Due incorporation): it is duly incorporated and has the corporate
power to own its property and to carry on its business as is now
being conducted;
(b) (Constitution): its execution, delivery and performance of each
Transaction Document to which it is expressed to be a party does not
violate its constitution;
(c) (Corporate power): it has the power and has taken all corporate and
other action required to enter into each Transaction Document to
which it is expressed to be a party and to authorise the execution
and delivery of each Transaction Document to which it is expressed
to be a party and the performance of its obligations under each
Transaction Document to which it is expressed to be a party;
(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): its obligations under each Transaction
Document to which it is expressed to be a party are valid, legally
binding and enforceable obligations in accordance with the terms of
each Transaction Document to which it is expressed to be a party,
except as such enforceability may be limited by any applicable
bankruptcy, insolvency, re-organisation, moratorium or trust or
general principles of equity or other similar laws affecting
creditors' rights generally;
(f) (Execution, delivery and performance): its execution, delivery and
performance of each Transaction Document to which it is expressed to
be a party 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; and
(g) (Authorisation): all consents, licences, approvals and
authorisations of every Governmental Agency required to be obtained
by the Manager in connection with the execution, delivery and
performance of each Transaction Document to which it is expressed to
be a party have been obtained and are valid and subsisting.
5.3 By the Security Trustee
The Security Trustee represents and warrants to the Manager and the
Trustee that:
(a) (Due incorporation): it is duly incorporated and has the
corporate power to own its property and to carry on its business
as is now being conducted;
(b) (Constitution): its execution, delivery and performance of each
Transaction Document to which it is expressed to be a party does
not violate its constitution;
(c) (Corporate power): it has the power and has taken all corporate
and other action required to enter into each Transaction Document
to which it is expressed to be a party and to authorise the
execution and delivery of each Transaction Document to which it
is expressed to be a party and the performance of its obligations
under each Transaction Document to which it is expressed to be a
party;
(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;
(e) (Legally binding obligation): its obligations under each
Transaction Document to which it is expressed to be a party are
valid, legally binding and enforceable obligations in accordance
with the terms of each Transaction Document to which it is
expressed to be a party, except as such enforceability may be
limited by any applicable bankruptcy, insolvency, re-
organisation, moratorium or trust or general principles of equity
or other similar laws affecting creditors' rights generally;
(f) (Execution, delivery and performance): its execution, delivery
and performance of each Transaction Document to which it is
expressed to be a party 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; and
(g) (Authorisation): all consents, licenses, approvals and
authorisations of every Governmental Agency required to be
obtained by the Security Trustee in connection with the
execution, delivery and performance of each Transaction Document
to which it is expressed to be a party have been obtained and are
valid and subsisting.
6. TRUSTEE'S AND MANAGER'S COVENANTS
6.1 Covenants in respect of Charged Property
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The Trustee undertakes that it will not without the prior written consent
of the Security Trustee or as otherwise permitted by this Deed, the
Master Trust Deed or the Series Supplement:
(a) (No Security Interests): subject only to the Prior Interest, attempt
to create or permit to exist any Security Interest howsoever ranking
over any part of the Charged Property; and
(b) (No sale, lease etc.): subject to clause [ ]6.3, convey, assign,
transfer, lease or otherwise dispose or part with possession of,
make any bailment over, or create or permit to exist any other
interest in any part of the Charged Property at any time such part
of the Charged Property is subject to the Charge.
1.2 General Covenants
The Trustee agrees to:
(a) (Comply with Transaction Documents): comply with its obligations and
duties under the Master Trust Deed (in so far as it applies to the
Series Trust), the Series Supplement and the other Transaction
Documents;
(b) (Copy of A$ Securityholder details): at the same time or as soon as
practical after a notice referred to in clause [ ]6.2(e) is given to
the Security Trustee by the Trustee or after the Trustee receives a
notice pursuant to clause [ ]6.4(b), provide to the Security Trustee
and the Class A-1 Note Trustee a current copy of the Register
relating to the Series Trust maintained by the Trustee under clause
[ ]9 of the Master Trust Deed and details (to the extent known by
it) of the identity, and notice details, of each Secured Creditor
and the Secured Moneys owing to each Secured Creditor;
(c) (Assistance to Security Trustee): provide to the Security Trustee,
as the Security Trustee may reasonably require to enable the
Security Trustee to perform its duties and functions under this Deed
(and which the Security Trustee has been unable to obtain from any
other party to the Transaction Documents), such information, copies
of any accounting records and other documents, statements and
reports required to be maintained by, or that are otherwise in the
possession of, the Trustee, or which the Trustee is entitled to
obtain from any person;
(d) (Documents of title): if the Charge has taken effect as a fixed
charge, deposit with the Security Trustee immediately or as soon as
the Trustee receives them:
(1) anything evidencing a Security Interest and any document of
title given to the Trustee to secure the payment of a monetary
obligation to the Trustee; and
(2) any documents of title relating to property over which the
Charge operates as a fixed charge,
where, in such case, such evidence or documents (as the case may
be) are then in the Trustee=s possession or control;
(e) (Notify Events of Default etc.): notify the Security Trustee if it
becomes aware of the occurrence of an Event of Default, a Potential
Event of Default, a Servicer Default, a Perfection of Title Event, a
Trustee Default, a Manager Default or a Potential Termination Event
and provide the Security Trustee with details of such occurrence;
(f) (Not incur unauthorised indebtedness): not give any guarantees or
incur any Borrowings (which does not include debts incurred to trade
creditors in the ordinary course of the Trustee's business as
trustee of the Series Trust) other than as permitted or contemplated
by the Transaction Documents;
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(g) (Not release obligations): not discharge or release any person from
any of their obligations under the Transaction Documents to which
the Trustee is a party save where such discharge or release is in
accordance with the Transaction Documents; and
(h) (Not engage in other activities): not engage (in its capacity as
trustee of the Series Trust) in any business or other activities
except as permitted or contemplated by the Transaction Documents.
6.3 Dealing in Accordance with Master Trust Deed, the Series Supplement etc.
The Trustee may deal with and pay or apply the Charged Property in
accordance with the provisions of the Master Trust Deed, the Series
Supplement and any other Transaction Document at any time that the
Charged Property is subject to the floating charge.
6.4 Manager's Undertaking
The Manager undertakes to the Trustee and the Security Trustee that:
(a) (No direction in breach of clause 6): it will not give any direction
to the Trustee under the Master Trust Deed or the Series Supplement
which would, if complied with, result in the Trustee breaching the
terms of this clause [ ]6; and
(b) (Notification of Events of Default etc.): it will promptly notify
the Trustee and the Security Trustee if it becomes aware of the
occurrence of an Event of Default, a Potential Event of Default, a
Servicer Default, a Perfection of Title Event, a Trustee Default, a
Manager Default or a Potential Termination Event and provide the
Trustee and the Security Trustee with details of such occurrence.
7. EVENTS OF DEFAULT
Each of the following events is an Event of Default whether or not caused
by any reason whatsoever outside the control of any Interested Person or
any other person:
(a) (i) (Trustee retires and replacement not found): the Trustee
retires or is removed, or is required to retire or be
removed, as trustee of the Series Trust in accordance with
clause [ ]19 of the Master Trust Deed, another Authorised
Trustee Corporation is not appointed as trustee of the
Series Trust within 30 days of the occurrence of that event
and the Manager fails within a further 20 days to convene a
meeting of Investors in accordance with clauses [ ]19.3 and
19.4 of the Master Trust Deed;
(ii) (Loss of indemnity): the Security Trustee becomes aware or
is notified by the Manager or the Trustee that the Trustee
is (for any reason) not entitled fully to exercise its
right of indemnity against the Assets of the Series Trust
to satisfy any liability to a Secured Creditor and the
circumstances are not rectified to the reasonable
satisfaction of the Security Trustee within 14 days of the
Security Trustee requiring the Trustee in writing to
rectify them; or
(iii) (Series Trust Imperfectly constituted): the Series Trust is
not properly constituted or is imperfectly constituted in a
manner or to an extent that is regarded by the Security
Trustee (acting reasonably) to be materially prejudicial to
the interests of any Class of Secured Creditor and is
incapable of being remedied or if it is capable of being
remedied this has not occurred to the reasonable
satisfaction of the Security Trustee within 30 days of the
discovery thereof;
(b) (Insolvency Event): an Insolvency Event occurs in relation to the
Trustee;
(c) (Enforcement of Security Interests etc.): distress or execution is
levied or a judgment, order or a Security Interest is enforced, or
becomes enforceable, over any of the Charged Property or any Asset
of the Series Trust for an amount
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exceeding (either individually or in aggregate) A$1,000,000, or can
be rendered enforceable by the giving of notice, lapse of time or
fulfilment of any condition;
(d) (Void or loss of priority): the Charge:
(i) is or becomes wholly or partly void, voidable or
unenforceable; or
(ii) at or after the date of this Deed, loses the priority which
it is expressed to have in clause [_]4.3 (other than as
mandatorily preferred by law or by an act or omission of
the Security Trustee);
(e) (Creates Security Interest): the Trustee breaches the undertaking in
clause [ ]6.1 or attempts to create or allows to exist a Security
Interest over the Charged Property otherwise than in accordance with
the Master Trust Deed, the Series Supplement or this Deed;
(f) (Tax Commissioner's determination): the Commissioner of Taxation, or
its delegate, determines to issue a notice (under any legislation
that imposes a Tax) requiring any person obliged or authorized to
pay money to the Trustee to instead pay such money to the
Commissioner in respect of any Tax or any fines and costs imposed on
the Trustee;
(g) (Failure to Pay Secured Moneys): any Secured Moneys are not paid
within 10 days of when due (other than any Secured Moneys relating
to the Class B Notes); and
(h) (Other Event of Default): any other event occurs which is described
in a Transaction Document as an Event of Default for the purposes of
this Deed.
8. RIGHTS AND OBLIGATIONS OF THE SECURITY TRUSTEE FOLLOWING EVENT OF DEFAULT
8.1 Notify Voting Secured Creditors and Convene Meeting of Voting Secured
Creditors
Without prejudice to the operation of clause [ ]9.2(b), upon becoming
aware of the occurrence of an Event of Default, the Security Trustee must
promptly (and, in any event, within 2 Business Days):
(a) (Notify Secured Creditors and the Rating Agencies): notify all then
Secured Creditors and the Rating Agencies of the Event of Default
and provide to such Secured Creditors and the Rating Agencies full
details of the Event of Default known to the Security Trustee and
the actions and procedures, of which the Security Trustee is aware,
which are being taken or will be taken by the Trustee and the
Manager to remedy the relevant Event of Default; and
(b) (Convene meeting of Voting Secured Creditors): convene a meeting of
the then Voting Secured Creditors and propose the necessary
Extraordinary Resolutions (in both cases in accordance with the
provisions of the Annexure) to seek directions by way of an
Extraordinary Resolution of the then Voting Secured Creditors
regarding the action the Security Trustee should take as a result of
such Event of Default pursuant to clause [ ]8.2.
8.2 Extraordinary Resolutions
At a meeting of the then Voting Secured Creditors referred to in clause
[ ]8.1(b) or by a resolution in writing signed by all Voting Secured
Creditors, the Voting Secured Creditors may direct the Security Trustee
by Extraordinary Resolution to:
(a) (Accelerate Secured Moneys): declare the Secured Moneys immediately
due
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and payable under clause [ ]9.6;
(b) (Appoint Receiver): appoint a Receiver in accordance with clause
[ ]10 and, if a Receiver is to be appointed, the Voting Secured
Creditors must by a further Extraordinary Resolution determine the
amount of the Receiver's remuneration;
(c) (Exercise power of sale): instruct the Security Trustee by notice in
writing to sell and realise the Charged Property and otherwise
enforce the Charge; and/or
(d) (Other action): take such other action that the Security Trustee is
permitted to take under this Deed as the Voting Secured Creditors
may specify in the terms of such Extraordinary Resolution.
8.3 Security Trustee to Act in Accordance with Directions
(a) (Must implement Extraordinary Resolution): Subject to clause [
]8.3(b), the Security Trustee must take all action necessary to give
effect to any Extraordinary Resolution of the Voting Secured
Creditors and must comply with all directions contained in or given
pursuant to any Extraordinary Resolution of the Voting Secured
Creditors.
(b) (Exceptions): The obligation of the Security Trustee pursuant to
clause [ ]8.3(a) is subject to:
(i) this Deed; and
(ii) if required by the Security Trustee (in its absolute
discretion), the Security Trustee being adequately
indemnified to its reasonable satisfaction from the Charged
Property or, if requested at any time before or during the
relevant meeting, the Security Trustee receiving from the
Voting Secured Creditors an indemnity in a form reasonably
satisfactory to the Security Trustee (which may be by way
of an Extraordinary Resolution of the Voting Secured
Creditors) against all actions, proceedings, claims and
demands to which it may render itself liable, and all
costs, charges, damages and expenses which it may incur, in
giving effect to an Extraordinary Resolution of the Voting
Secured Creditors.
(c) (Ranking of indemnities): The Security Trustee must first claim on
its indemnity from the Charged Property and if it does not receive
such indemnity from the Charged Property within 2 Business Days of
the first claim then it may claim on any indemnity from the Voting
Secured Creditors, including any indemnity provided under clause
[ ]8.4.
8.4 Security Trustee Must Receive Indemnity
If:
(a) (Security Trustee requires indemnity): the Security Trustee convenes
a meeting of the Voting Secured Creditors, or is required by an
Extraordinary Resolution of the Voting Secured Creditors to take any
action to enforce this Deed, and advises the Voting Secured
Creditors at any time before or during the meeting that the Security
Trustee will not take that action in relation to the enforcement of
this Deed unless it is personally indemnified by the Voting Secured
Creditors to its reasonable satisfaction against all actions,
proceedings, claims and demands to which it may render itself
liable, and all costs, charges, damages and expenses which it may
incur, in relation to the enforcement of this Deed and put in funds
to the extent to which it may become liable (including costs and
expenses); and
(b) (Voting Secured Creditors refuse to grant indemnity): the Voting
Secured Creditors refuse to grant the requested indemnity and put it
in funds,
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the Security Trustee will not be obliged to act in relation to the
enforcement of this Deed. In these circumstances, the Voting Secured
Creditors may then exercise such powers, and enjoy such protections and
indemnities, of the Security Trustee under this Deed, any Security
Interest or any other document or agreement at any time created or
entered into in favour of the Security Trustee as security for the
Secured Moneys or by law as they determine by Extraordinary Resolution.
The Security Trustee will not be liable in any manner whatsoever if the
Voting Secured Creditors exercise, or do not exercise, the rights given
to them in the preceding sentence.
8.5 Notice to Trustee
If the Voting Secured Creditors pass an Extraordinary Resolution referred
to in clause [ ]8.2 at a meeting convened following an Event of Default,
the Security Trustee must notify the Trustee in writing within 1 Business
Day after such Extraordinary Resolution is so passed.
8.6 Manager convenes meeting
If the Security Trustee fails to convene a meeting, or to propose the
necessary Extraordinary Resolutions, in accordance with clause [ ]8.1(b),
the Manager must convene a meeting of Voting Secured Creditors, or
propose the necessary Extraordinary Resolutions (as the case may be), in
accordance with this clause [ ]8, which meeting is to have only the same
powers as if convened by the Security Trustee and is to be conducted in
accordance with the provisions of the Annexure, in which event all
references in this Deed and the Annexure to the Security Trustee in
relation to the requirements of meetings of Voting Secured Creditors will
be read and construed, mutatis mutandis, as references to the Manager.
8.7 Notice of Event of Default
If the Security Trustee becomes aware of the occurrence of an Event of
Default, and the Trustee has not given the Security Trustee notice in
accordance with clause [ ]6.2(e) the Security Trustee must promptly give
the Trustee notice of the occurrence of the Event of Default.
8.8 Notice of action to remedy Event of Default
If the Trustee and the Manager take any action or procedures to remedy an
Event of Default, both the Trustee and the Manager must keep the Security
Trustee informed of those actions and procedures.
9. ENFORCEMENT
9.1 Power to Deal with and Protection of the Charged Property
If the Charge crystallises and becomes fixed pursuant to the provisions
of this Deed:
(a) (Power to deal with the Charged Property ceases): the Trustee=s
power to deal with the Charged Property will, subject to clauses
[ ]4.5 and 4.6, immediately cease; and
(b) (Protection of Charged Property): the Security Trustee will have
the right either in its own name or in the name of the Trustee to
immediately seek and obtain appropriate relief in relation to that
part of the Charged Property affected or threatened by the
relevant Event of Default.
9.2 Restrictions on Power to Enforce
If an Event of Default occurs, the Security Trustee must not declare the
Secured Moneys immediately due and payable under clause [ ]9.6, appoint a
Receiver under clause [ ]10 or, subject to the operation of clauses
[ ]4.4 to 4.7 (inclusive), otherwise enforce the Charge unless:
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(a) (Voting Secured Creditors authorise action): the Voting Secured
Creditors have passed an Extraordinary Resolution under or
referred to in clause [ ]8.2 or at a meeting convened pursuant to
clause [ ]8.6 or pursuant to clause [ ]2 of the Annexure; or
(b) (Delay would be prejudicial): in the opinion of the Security
Trustee, the delay required to obtain the directions of the Voting
Secured Creditors in accordance with clause [ ]8.2 would be
prejudicial to the interests of the Secured Creditors as a class
(in which case the Security Trustee must take those actions).
9.3 No Obligation to Enforce
Upon the occurrence of an Event of Default, subject to clauses [ ]8.1,
9.2 and 15.3, pending the receipt of directions from the Voting Secured
Creditors as contemplated by clauses [ ]8.2, 8.3 and 8.4, the Security
Trustee is not bound to take any action under this Deed or give any
consent or waiver or make any determination under this Deed (including,
without limiting the generality of the foregoing, to appoint any
Receiver, to declare the Charge enforceable or the Secured Moneys
immediately due and payable or to take any other proceedings). Nothing
in this clause affects the operation of clause [ ]4.4 upon the occurrence
of an Event of Default or the Charge becoming enforceable prior to the
Security Trustee receiving directions from the Voting Secured Creditors.
9.4 Limitation on Rights of Secured Creditors
Subject to clause [ ]8.4:
(a) (Powers Exercisable by Security Trustee only): the powers, rights
and remedies conferred on the Security Trustee by this Deed are
exercisable by the Security Trustee only, and no Secured Creditor is
entitled to exercise the same or any of them; and
(b) (Secured Creditors cannot enforce): without limiting the generality
of the foregoing, no Secured Creditor is entitled to enforce the
Charge or the provisions of this Deed exercisable by the Security
Trustee or to appoint a Receiver to any of the Charged Property or
otherwise to exercise any power conferred by the terms of any
applicable law on chargees.
9.5 Immaterial Waivers
The Security Trustee may, on such terms and conditions as it may deem
expedient, without the consent of the Secured Creditors, and without
prejudice to its rights in respect of any subsequent breach:
(a) (Waiver of Breaches): agree to any waiver or authorisation of any
breach or proposed breach of any of the terms and conditions of
the Transaction Documents ; and
(b) (Waiver of Events of Default): determine that any event that
would otherwise be an Event of Default will not be treated as an
Event of Default for the purpose of this Deed,
which is not, in the opinion of the Security Trustee, materially
prejudicial to the interests of the Secured Creditors as a class. No
such waiver, authorisation or determination may be made in contravention
of any prior directions contained in an Extraordinary Resolution of the
Voting Secured Creditors. Any such waiver, authorisation or
determination will, if the Security Trustee so requires, be notified to
the Secured Creditors by the Manager as soon as practicable after it is
made in accordance with this Deed.
9.6 Acceleration of Secured Moneys following Event of Default
If any Event of Default occurs, at any time thereafter if the Event of
Default is continuing, the Security Trustee may by written notice to the
Trustee and the Manager, declare in
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accordance with this Deed the Secured Moneys to be immediately due and
payable, whereupon the Secured Moneys will immediately become due and
payable (subject to the limitation contained in clause [ ]29 of the
Series Supplement or any equivalent limitation in relation to the
relevant Secured Moneys).
10. RECEIVERS - APPOINTMENT AND POWERS-
10.1 Appointment of Receiver
(a) (Conditions of appointment): Following the occurrence of an Event of
Default, if the Voting Secured Creditors pass the Extraordinary
Resolutions under or referred to in clause [ ]8.2(a), the Security
Trustee must appoint in writing a person or persons to be a receiver
or receiver and manager of the Charged Property to deal with the
Charged Property in accordance with any instructions given by the
Voting Secured Creditors by Extraordinary Resolution and may
withdraw the appointment of any such Receiver as to the Charged
Property and in case of the removal, retirement or death of any such
Receiver may appoint another person or persons in its place on
substantially the same terms as the previous Receiver.
(b) (No liability for Receiver): Neither the Trustee nor the Security
Trustee will be responsible for anything done or not done by a
Receiver. However, the Security Trustee must to the extent of a
prudent security trustee monitor the performance by any person or
persons appointed by it under clause [ ]10.1(a) of that person's or
those persons' duties as Receiver of the Charged Property.
10.2 Joint Receivers
If more than one person is appointed as a Receiver of the Charged
Property, the Security Trustee may specify whether such appointment and
the powers of each such person will at its option 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.
10.3 Remuneration of Receiver
The Security Trustee must fix the remuneration of a Receiver in
accordance with the terms of the Extraordinary Resolution passed under
clause [ ]8.2(b).
10.4 Indemnification of Receiver
Without limiting the generality of clause [_]10.7, each Receiver must be
granted an indemnity for its remuneration, costs, liabilities and
expenses by the Security Trustee. However, the Security Trustee will not
be required to grant such indemnity to a Receiver unless it is reasonably
satisfied that its liability under that indemnity is limited so as not to
exceed the Security Trustee=s right of indemnity out of the Security
Trust Fund. Any moneys payable by the Security Trustee under such an
indemnity must be paid out of the Charged Property in accordance with
this Deed and will form part of the Secured Moneys.
10.5 Appointment over part
The power to appoint a Receiver over all of the Charged Property may be
exercised whether or not a Receiver has already been appointed over part
of it.
10.6 Powers of Receiver
A Receiver, without the need for any consent from the Trustee, has all of
the following powers in addition to any of the other powers conferred by
this Deed:
(a) (To take possession): to enter, take possession of, have access to,
make use of and collect and manage the Charged Property;
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(b) (To collect moneys): to convert, liquidate and reduce the Charged
Property into money and, except as provided in clause [ ]13.6, to
convert any of the Charged Property denominated in a Foreign
Currency into Australian dollars;
(c) (To carry on business): to carry on or concur in carrying on any
business then conducted by the Trustee and to effect all insurances
and do all acts which the Trustee might do in the ordinary course of
such business for the protection or improvement of the Charged
Property;
(d) (To borrow or raise money): to borrow or raise in any way from the
Security Trustee or any other person any moneys which may be
required for the purposes referred to in this Deed and in the name
of the Trustee or otherwise to secure any moneys so borrowed or
raised by the grant of any Security Interest over the Charged
Property or any part thereof so that such Security Interest ranks in
priority to, equally with or after the Charge, provided that the
Security Trustee will not be bound to enquire as to the necessity or
propriety of any such borrowing or raising nor be responsible for
the misapplication or non-application of any moneys so borrowed or
raised;
(e) (To employ): to employ managers, solicitors, auctioneers, brokers,
consultants, professional advisers, workmen, officers, agents,
employees and servants, including any person associated with a firm
or company in which the Receiver is a member or in which he is
interested and such person may charge for his services as if he had
been independently retained for all or any of the purposes in this
Deed referred to at such salaries or remuneration as the Receiver
thinks fit and without the need for further enquiry and, without
thereby incurring any liability to the Trustee, may act upon such
person's advice as to the timing of or any incident or term of any
sale including whether or not the Charged Property should be offered
for sale by auction and as to the need for and amount of any reserve
price and as to the adequacy of any rent or of any price obtainable
on sale by private treaty;
(f) (To sell property): to sell or concur in selling whether or not the
Receiver has taken possession of the Charged Property, 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 moneys and
otherwise, as the Receiver thinks fit with power to allow the
purchase moneys to remain on mortgage over the property sold or on
any other security or without any security and upon such other terms
and conditions as the Receiver considers expedient with full power
to buy in and to rescind or vary any contract for sale and to resell
without being responsible for loss and to exercise all or any rights
powers and remedies of the Trustee thereunder and to execute such
contracts, deeds, agreements, transfers, assignments and assurances
of all or any part of the Charged Property in the name and on behalf
of the Trustee or otherwise and to do all other acts and things for
implementing and completing any such sale that the Receiver deems
necessary;
(g) (To give up possession): to give up possession of the Charged
Property at any time;
(h) (To invest proceeds against contingencies): if any of the Secured
Moneys are contingent, to invest deposit or hold any part of the
Charged Property in such form or in such mode of investment for the
time being as the Receiver in its absolute discretion thinks fit,
with like power to vary, transpose or re-invest such investments or
deposits from time to time until such part of the Secured Moneys
cease to be contingent;
(i) (To enter into contracts): to enter into, vary or terminate any
contract, undertaking, covenant, instrument, obligation or
arrangement with any person for any purpose connected with this Deed
or the Charged Property or in furtherance of any power in this Deed
upon such terms and conditions as the Receiver in its absolute
discretion thinks fit including, without limitation,
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granting or conferring options to in favour of or exercisable by any
person for the purpose of or in connection with the sale, purchase,
leasing or hiring of the Charged Property;
(j) (To perform contracts): to perform, observe and carry out and
enforce specific performance of, to exercise or refrain from
exercising, the Trustee=s rights and powers under, to obtain the
benefit of and to vary or rescind, all contracts and rights forming
part of the Charged Property and all instruments and arrangements
entered into or held by the Trustee;
(k) (To take proceedings): to institute, conduct or defend any
proceedings in law, equity or bankruptcy and to submit to
arbitration in the name of the Trustee or otherwise and on any terms
any proceeding, claim, question or dispute in connection with the
Charged Property or otherwise;
(l) (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;
(m) (To appeal): to appeal against or to enforce any judgment or order;
(n) (To bankrupt debtors and wind-up companies): to make debtors
bankrupt and 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 or
any part thereof or for the security or other benefit of the
Security Trustee or the Secured Creditors;
(o) (To delegate): with the consent in writing of the Security Trustee,
to delegate to any person for such time or times as the Security
Trustee approves, any of the powers in this Deed conferred upon the
Receiver including this power of delegation;
(p) (To file): to file all certificates, registrations and other
documents and to take any and all action on behalf of the Trustee
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 Trustee 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 Trustee
into liquidation or the appointment of a Receiver is deemed to be an
event against which the Security Trustee may protect its rights;
(q) (To operate bank accounts): to operate to the exclusion of the
Trustee any bank account in the name of the Trustee 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 Trustee cheques, promissory notes, bills of exchange
and other negotiable instruments;
(r) (To exercise Trustee=s powers): to exercise all the powers, rights
and entitlements conferred upon the Trustee under the terms of, or
pursuant to the general law or Statute in respect of, any Charged
Property;
(s) (To do all other things necessary): to do all things necessary to
perform observe and fulfil any of the covenants on the part of the
Trustee under this Deed; and
(t) (To do such things as are expedient): to do all such other acts and
things without limitation as it thinks expedient for the interests
of the Security Trustee or the Secured Creditors,
and will have such further powers and discretions as the Security Trustee
by notice in
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writing to the Receiver confers upon the Receiver for the purposes
referred to in this clause [ ]10.6.
10.7 Indemnity
The Security Trustee may give such indemnities to the Receiver in respect
of the performance by the Receiver of his duties as are permitted by law
and if the Security Trustee is obliged to pay any moneys pursuant to any
such indemnity the same will become part of the Secured Moneys.
11. POWERS AND PROTECTIONS FOR SECURITY TRUSTEE AND RECEIVER AND POWER OF
ATTORNEY
11.1 Security Trustee has Powers of Receiver
At any time after an Event of Default occurs, the Security Trustee, in
addition to the powers conferred on it by any other provision of this
Deed or by law, may, without giving any notice, exercise all or any of
the powers conferred on a Receiver, or which would be conferred on a
Receiver if appointed by this Deed, as if the same had been expressly
conferred on the Security Trustee and the Security Trustee may itself
exercise such powers, authorities and discretions and/or may appoint an
agent or joint and/or several agents for that purpose. When any such
agent(s) are appointed the Security Trustee may:
(a) (Remuneration of agent): fix the remuneration of such agent(s)
upon the same basis that such agent(s) would have been entitled to
remuneration if appointed as Receiver(s) pursuant to the
provisions of clause [ ]10.3 or otherwise pay the reasonable
charges of such agent(s);
(b) (Withdraw appointment of agent): withdraw the appointments of any
such agent(s); and
(c) (Appoint another agent): in the case of the removal, retirement or
death of any such agent(s) may appoint another person or persons
in its place.
11.2 Act Jointly
The Security Trustee or Receiver may exercise any of the powers conferred
upon the Security Trustee or the Receiver in conjunction with the
exercise of similar powers by the holder of any other Security Interests
over the Charged Property or part thereof or by any receiver appointed by
such holder and may enter into and give effect to such agreements and
arrangements with such other holder or receiver as the Security Trustee
or Receiver thinks fit.
11.3 No Liability for Loss
The Security Trustee is not nor is any Receiver liable or otherwise
accountable for any omission, delay or mistake or any loss or
irregularity in or about the exercise, attempted exercise, non-exercise
or purported exercise of any of the powers of the Security Trustee or of
the Receiver except for fraud, negligence or wilful default.
11.4 No Liability to Account as Mortgagee in Possession
Neither the Security Trustee nor any Receiver will by reason of the
Security Trustee or the Receiver entering into possession of the Charged
Property or any part thereof be 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.
11.5 No Conflict
The Security Trustee and any Receiver may exercise any power under this
Deed notwithstanding that the exercise of that power involves a conflict
between any duty owed to the Trustee by the Security Trustee or such
Receiver and:
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(a) (Duty owed to others): any duty owed by the Security Trustee or
Receiver to any other person; or
(b) (Interest of others): the interests of the Security Trustee or
Receiver.
11.6 Contract Involving Conflict of Duty
Any contract which involves any such conflict of duty or interest will
not be void or voidable by virtue of any such conflict of duty or
interest nor will the Security Trustee or Receiver be liable to account
to the Trustee or any other person for any moneys because of any such
conflict of interest or duty.
11.7 Power of Attorney
The Trustee irrevocably appoints the Security Trustee, each Authorised
Officer of the Security Trustee, any Receiver and such other person or
persons as any of such Authorised Officers or Receiver (with, in the case
of the Receiver, the prior consent of the Security Trustee) may for that
purpose from time to time appoint, severally, the attorney and attorneys
of the Trustee to, upon the occurrence of an Event of Default:
(a) (Acts): do all acts and things that under this Deed or implied in
this Deed ought to be done by the Trustee;
(b) (Registration): take all such steps and proceedings and to do and
execute all such acts, deeds and things for securing, perfecting and
registering this Deed;
(c) (Further assurance): execute in favour of the Trustee all such legal
mortgages, fixed charges, transfers, assignments and other
assurances of all or any part of the Charged Property and to do at
any time all things necessary to ensure the expeditious stamping and
registration of such mortgages, charges, transfers, assignments and
other assurances;
(d) (Commence proceedings): in the name and on behalf of the Trustee or
in the name of the Security Trustee or the said attorney to ask
demand sue for recover and receive of and from all and every person
whomsoever and to give effectual receipts for all or any part of the
Charged Property;
(e) (Delegate): delegate such of its powers (including, and where
applicable, this power of delegation) as the Security Trustee would
be entitled to delegate under clause [ ]14.3(k) if it held those
powers in its own right rather than as attorney of the Trustee to
any person for any period and may revoke a delegation;
(f) (Conflicts): exercise or concur in exercising its powers even if the
attorney has a conflict of duty in exercising its powers or has a
direct or personal interest in the means or result of that exercise
of powers; and
(g) (Further acts): perform and execute all such further and other acts
deeds matters and things which will become necessary or be regarded
by the Security Trustee or the said attorney as necessary for more
satisfactorily securing the payment of the Secured Moneys or as
expedient in relation to the Charged Property,
as effectually as the Trustee could or might do and for all or any of the
purposes described in paragraphs (a) to (g) above appoint any substitute
or substitutes for any such attorney and to remove at pleasure any
attorney or substitute. The Trustee ratifies and confirms and agrees to
allow, ratify and confirm all and whatsoever its attorney lawfully does
or causes to be done under and by virtue of this power of attorney and
declares that this power of attorney is to continue to be of full force
and effect until all such acts, deeds, payments, matters and things as
the Security Trustee thinks proper to execute, perform, make, institute
or carry through have been done, made and completed notwithstanding the
determination of this Deed or of the agreements and arrangements referred
to in this Deed.
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The Trustee declares that this power of attorney is
irrevocable and is given as security.
11.8 Security Trustee May Make Good Default
If the Trustee defaults in duly performing, observing and fulfilling any
covenant on the part of the Trustee in this Deed contained or implied it
will be lawful for, but not obligatory upon the Security Trustee, without
prejudice to any other power of the Security Trustee, to do all things
and pay all moneys necessary or expedient in the opinion of the Security
Trustee to make good or to attempt to make good such default to the
satisfaction of the Security Trustee and all such moneys will form part
of the Secured Moneys.
11.9 Notice for Exercise of Powers
(a) (No notice required): The powers conferred on the Security Trustee
or the Receiver by this Deed, by any Statute or by the general law
may be exercised by the Security Trustee, the Receiver or any
attorney of the Trustee under this Deed, immediately upon or at any
time after the Charge becomes enforceable without any notice or
expiration of time being necessary.
(b) (Where notice is mandatory): 1 day is fixed as the period:
(i) for which an Event of Default must continue before the
Security Trustee may serve any notice in writing as may be
specified in any Statute affecting the Security Trustee's
powers; and
(ii) for which an Event of Default must continue after the
service of notice before any power of sale given by any
such Statute may be exercised.
11.10 Benefit for Receiver etc.
The Security Trustee will be deemed to have accepted the benefit of this
clause 11 as agent for the Receiver and any attorney, agent or other
person appointed under this Deed or by the Security Trustee who are not
parties to this Deed and the Security Trustee will hold the benefit of
such provisions on trust for the benefit of those grantees.
12. PROTECTION OF PERSONS DEALING WITH SECURITY TRUSTEE OR RECEIVER
12.1 No Enquiry
No purchaser or other person dealing with the Security Trustee, the
Receiver or any attorney appointed under this Deed or to whom is tendered
for registration an instrument executed by the Security Trustee, the
Receiver or any attorney appointed under this Deed, will be bound to
inquire as to whether any Event of Default has occurred or whether the
Charge has become enforceable or whether any Secured Moneys are owing or
payable or whether the Receiver or attorney has been properly appointed
or the propriety or regularity of the exercise or purported exercise of
any power by the Security Trustee, the Receiver or such attorney or any
other matter or thing or be affected by actual or constructive notice
that any lease, sale, dealing or instrument is unnecessary or improper
and notwithstanding any irregularity or impropriety in any lease, sale,
dealing or instrument the same will as regards the protection and title
of the lessee, purchaser or such other person be deemed to be authorised
by the aforesaid powers and will be valid and effectual accordingly.
12.2 Receipts
The receipt of the Security Trustee, the Receiver or any attorney
appointed under this Deed of any moneys or assets which come into the
hands of the Security Trustee, the Receiver or such attorney by virtue of
the powers of the Security Trustee, the Receiver or the attorney will as
to the moneys or assets paid or handed over effectually discharge the
person, other than the Trustee, paying or handing over the money or
assets from being concerned to see to the application or being answerable
or accountable for any loss or misapplication thereof and from any
liability to inquire whether the Charge has become enforceable or whether
the Secured Moneys have become payable pursuant to the provisions of this
Deed or otherwise
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as to the propriety or regularity of the appointment of such Receiver or
attorney or the propriety or regularity of the exercise of such powers by
the Security Trustee, the Receiver or the attorney (as the case may be).
13. APPLICATION OF MONEYS
13.1 Priority of Payments
Subject to clause [ ]13.6, all moneys received in connection with this
Deed by the Security Trustee or by the Receiver in relation to the
Charged Property pursuant to the provisions of this Deed are to be
applied as follows:
(a) (Security Trustee's indemnity and the Prior Interest): first,
rateably towards satisfaction of amounts which become owing or
payable under clauses [ ]16.1, 16.2 and 16.3 (except the Receiver's
remuneration) and in payment of the Prior Interest;
(b) (Fees): second, in payment rateably of any fees and any liabilities,
losses, costs, claims, actions, damages, expenses, demands, charges,
stamp duties and other Taxes due to the Security Trustee, the Class
A-1 Note Trustee or any Agent and the Receiver's remuneration;
(c) (Outgoings): third, in payment rateably of such other outgoings
and/or liabilities that the Receiver, the Security Trustee or the
Class A-1 Note Trustee has incurred in performing their obligations,
or exercising their powers, under this Deed and, in the case of the
Class A-1 Note Trustee, under the Class A-1 Note Trust Deed;
(d) (Payment of prior Security Interest): fourth, in payment of other
Security Interests (if any) over the Charged Property of which the
Security Trustee is aware having priority to the Charge (other than
the Prior Interest), in the order of their priority (and the
Security Trustee and the Receiver are entitled to rely upon a
certificate from the holder of the prior Security Interest as to the
amount so secured and will not be bound to enquire further as to the
accuracy of that amount or as to whether that amount or any part
thereof is validly secured by such other prior Security Interest);
(e) (Payment of Class A-1 Currency Swap Termination Proceeds to Class A-
1 Noteholders): fifth, in payment to the Class A-1 Noteholders of
the Class A-1 Currency Swap Termination Proceeds (if any) toward
satisfaction of any Secured Moneys owing in relation to the Class A-
1 Notes (such Secured Moneys for this purpose will be denominated in
US dollars);
(f) (Payment of Outstanding Cash Advance Deposit): sixth, in payment to
the Liquidity Facility Provider of the Outstanding Cash Advance
Deposit;
(g) (Payment of Accrued Interest Adjustment, Collateral and Prepayments):
seventh, in payment rateably to:
(i) the Seller of so much of the Accrued Interest Adjustment in
respect of the Mortgage Loans forming part of the Assets of
the Series Trust that has not then been paid to the Seller;
(ii) the Seller of the then Seller Deposit; and
(iii) the Interest Rate Swap Provider of the Outstanding Interest
Rate Swap Prepayment Amount
(h) (Payment of Secured Moneys to Senior Securityholders, the Hedge
Providers, the Liquidity Facility Provider, the Standby Redraw
Facility Provider and the Seller): eighth, in payment rateably:
(i) subject to clause [ ]13.5(b) in the case of the Class A-1
Noteholders, to the Senior Securityholders of all other Secured
Moneys owing in relation to the Senior Securities (the Secured
Moneys owing in respect of the principal component of the Senior
Securities for this purpose will be calculated based on their
Stated Amount and such Secured Moneys in respect of the Class A-
1 Notes will be converted from US dollars to Australian dollars
in accordance with clause [ ]13.5(a)), to be applied amongst
them:
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A. first, towards all interest accrued but unpaid on the
Senior Securities at that time (to be distributed
rateably amongst the Senior Securities); and
B. second, in reduction of the Stated Amount in respect of
the Senior Securities at that time (to be distributed
rateably amongst the Senior Securities);
(ii) to the Liquidity Facility Provider of any other Secured Moneys
owing to the Liquidity Facility Provider under the Liquidity
Facility Agreement;
(iii) to the Standby Redraw Facility Provider of any Secured Moneys
owing to the Standby Redraw Facility Provider under the Standby
Redraw Facility Agreement (the Secured Moneys owing in respect
of the principal component of the Standby Redraw Facility
Agreement for this purpose will be calculated by reference to
the Standby Redraw Facility Principal);
(iv) to each Hedge Provider rateably of any other Secured Moneys
owing to that Hedge Provider under the Hedge Agreements; and
(v) to the Seller of the amount of all then Seller Advances which
have not been repaid to the Seller in accordance with the
Series Supplement;
(i) (Payment of other Secured Moneys for Senior Securityholders): ninth,
subject to clause [ ]13.5(b) in the case of the Class A-1
Noteholders, to the Senior Securityholders and the Standby Redraw
Facility Provider of all Unreimbursed Principal Charge-Offs
constituting remaining Secured Moneys owing in respect of the Senior
Securities or Standby Redraw Facility Agreement (such Secured Moneys
in respect of the Class A-1 Notes will be converted from US dollars
to Australian dollars in accordance with clause [ ]13.5(a)) to be
distributed rateably amongst the Senior Securityholders and the
Standby Redraw Facility Provider;
(j) (Payment of Exchange Rate differential to Class A-1 Noteholders):
tenth, if after the application of clause [ ]13.5(b) in respect of
any Australian dollar payments under clauses [ ]13.1(h) and (i), and
after the application of clause [ ]13.1(e), there are still Secured
Moneys owing in respect of the Class A-1 Notes (denominated in US
dollars), in payment, subject to clause [ ]13.5(b), amongst the Class
A-1 Notes of such remaining Secured Moneys owing in relation to the
Class A-1 Notes until, after the further application of clause [
]13.5(b), all Secured Moneys owing in respect of the Class A-1 Notes
(denominated in US dollars) are paid to the Class A-1 Noteholders;
(k) (Payment of Secured Moneys to Class B Noteholders): eleventh, to the
Class B Noteholders of all Secured Moneys owing in relation to the
Class B Notes to be applied amongst them:
(1) first, towards all interest accrued but unpaid on the Class B
Notes at that time (to be distributed equally amongst such Class
B Notes); and
(2) second, in reduction of the Invested Amount in respect of the
Class B Notes at that time (to be distributed equally amongst
the Class B Notes);
(l) (Other Secured Moneys): twelfth, to pay rateably to each Secured
Creditor any remaining amounts forming part of the Secured Moneys and
owing to that Secured Creditor;
(m) (Subsequent Security Interests): thirteenth, in payment of subsequent
Security Interests over the Charged Property of which the Security
Trustee is aware, in the order of their priority and the Security
Trustee and the Receiver will be entitled to rely upon a certificate
from the holder of any subsequent Security Interests as to the amount
so secured and will not be bound to enquire further as to the
accuracy of that amount or as to whether that amount or any part
thereof is validly secured by the subsequent Security Interests; and
(n) (Surplus): fourteenth, to pay the surplus (if any) to the Trustee to
be distributed
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by the Trustee in accordance with the terms of the Master Trust Deed
and the Series Supplement, but will not carry interest as against the
Security Trustee.
13.2 Moneys Received
In applying any moneys towards satisfaction of the Secured Moneys, the
Trustee will be credited only with so much of the moneys available for
that purpose as the Security Trustee or the Receiver has actually
received and is not required for whatever reason to be disgorged, such
credit to date from the time of such receipt.
13.3 Application of Moneys
Notwithstanding any principle or presumption of law to the contrary or
any direction given at the time of it being received by the Security
Trustee or the Receiver, the Security Trustee and the Receiver each has,
subject to this Deed, an absolute discretion without the need to
communicate its election to any person to apply any payment or credit
received by it under this Deed in reduction of any part or parts of the
Secured Moneys, whenever and on whatever account the same became secured.
13.4 Investment of Funds
Unless expressly provided in this Deed, all moneys received by the
Security Trustee following the Charge becoming enforceable and not
required to be immediately applied under this Deed will be invested by
the Security Trustee as it thinks appropriate in Authorised Short-Term
Investments on the following terms and conditions:
(a) (May vary): the Security Trustee may from time to time vary and deal
with or dispose of such investments; and
(b) (Maturity): the Security Trustee must invest only in Authorised
Short-Term Investments that 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 and payable.
13.5 Conversion into A$ of Class A-1 Notes denominated in US$
(a) (Conversion for the purposes of clauses [ ]13.1(h)(i) and 13.1(i)):
in calculating the amount of any Secured Moneys to be distributed to
the Class A-1 Noteholders in accordance with clauses [ ]13.1(h)(i)
and 13.1(i), the Security Trustee will convert the amount of such
Secured Moneys from US dollars to Australian dollars at the exchange
rate below which produces the lowest amount in Australian dollars:
(i) the A$ Exchange Rate; or
(ii) the spot exchange rate as advised to the Security Trustee by
the Manager between US dollars and Australian dollars used for
the calculation of any amounts payable on the occurrence of an
"Early Termination Date" (if any) under the Class A-1 Currency
Swaps (or, if different, the average of such rates).
(b) (Payments in US$): All actual payments to the Class A-1 Noteholders
by the Security Trustee pursuant to this Deed must be made in US
dollars. The Security Trustee must convert (and pay to the Class A-1
Noteholders) all Australian dollar amounts payable to the Class A-1
Noteholders under clauses [ ]13.1(h) and (i) (and, if applicable,
clause [ ]13.1(j)) at the rate that it is able to acquire US dollars
in the Australian spot foreign exchange market. It need only apply
so many Australian dollars for this purpose as is sufficient to
acquire the necessary US dollars, when combined with the US dollars
(if any) from the application of clause [ ]13.1(e), as equals the
Secured Moneys (denominated in US dollars) owing in respect of the
Class A-1 Notes. If, after the application of this clause
[ ]13.5(b), there is any surplus of Australian dollars these are to
be applied in accordance with clause [ ]13.1(h) to the other Secured
Creditors
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referred to therein (if necessary) and clauses [ ]13.1(k)-(n) (as
applicable);
(c) (Voting Entitlements): In calculating the Secured Moneys in respect
of the Class A-1 Notes for the purposes of the definitions of
"Voting Entitlements" and "Voting Secured Creditors" and the Secured
Moneys for the Annexure, such Secured Moneys will be converted to
Australian dollars from US dollars in accordance with clause
[ ]13.5(a).
13.6 Application of Class A-1 Currency Swap Termination Proceeds
Any Class A-1 Currency Swap Termination Proceeds received by the Security
Trustee must be retained by the Security Trustee in US dollars and must
be invested by it in a US dollar interest bearing account with a bank or
other financial institution selected by it and must be applied, if there
are any Secured Moneys owing in respect of the Class A-1 Notes, first in
accordance with clause [_]13.1(e). If there are no such Secured Moneys
owing in respect of the Class A-1 Notes, or only part of the Class A-1
Swap Termination Proceeds are sufficient to pay all Secured Moneys
(denominated in US dollars) owing in respect of the Class A-1 Notes, the
balance may be converted to Australian dollars for application in
accordance with clause [_]13.1.
13.7 Satisfaction of Debts
Each Secured Creditor will accept the distribution of money to it under
clause [_]13.1 in full and final satisfaction of all Secured Moneys owing
to it and any debt represented by any shortfall after any final
distribution under clause [_]13.1 will thereupon be extinguished.
14. SUPPLEMENTAL SECURITY TRUSTEE PROVISIONS
14.1 Limitations on Powers and Duties of Security Trustee
Notwithstanding any other provision of this Deed, unless and until there
is an Event of Default, the Security Trustee has no powers, rights,
duties or responsibilities other than:
(a) (To hold on Trust): the duty to hold the Security Trust Fund on
trust;
(b) (To take the benefit of the Charge): the power to take the benefit
of the Charge (but not to take any action to enforce the Charge);
and
(c) (Pre-Default Action): the power to perform a Pre-Default Action.
Prior to the Security Trustee becoming aware of the occurrence of an
Event of Default, the Security Trustee is not required to take and may
not take any action under this Deed other than Pre-Default Actions.
14.2 Limitation on Security Trustee's Actions
Notwithstanding knowledge by or notice to the Security Trustee of any
breach, anticipatory or actual, of, or default under, any covenant,
obligation, condition or provision by the Trustee or the Manager
contained in or imposed by any Transaction Document, the Security Trustee
is only required to take all such steps and do all such things as it is
empowered to do having regard to the powers, authorities and discretions
vested in it pursuant to this Deed and the obligations imposed on the
Security Trustee by this Deed.
14.3 Additional Powers, Protections, etc.
By way of supplement to any Statute regulating the Security Trust and in
addition to the powers, rights and protections which may from time to
time be vested in or available to the Security Trustee by the general
law, it is expressly declared, notwithstanding anything to the contrary
in this Deed (and subject only to clause [_]15.2) as follows:
(a) (Liability to account): The Security Trustee is under no obligation
to account to any Interested Person for any moneys received pursuant
to this Deed other than
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those received by the Security Trustee from the Trustee or received
or recovered by the Security Trustee or the Receiver under this
Deed, subject always to such deductions and withholdings by the
Security Trustee or the Receiver as are authorised by this Deed.
Subject to clauses [ ]14.4 and 15.3, the liabilities of the Security
Trustee to any Interested Person or any other person under or in
connection with this Deed can only be enforced against the Security
Trustee to the extent to which they can be satisfied out of such
moneys in accordance with this Deed.
(b) (Act on professional advice): The Security Trustee may act on the
opinion or advice of, or information obtained from, any lawyer,
valuer, banker, broker, accountant or other expert appointed by the
Security Trustee or by a person other than Security Trustee where
that opinion, advice or information is addressed to the Security
Trustee or by its terms is expressed to be capable of being relied
upon by the Security Trustee. The Security Trustee will not be
responsible to any Interested Person for any loss occasioned by so
acting. Any such opinion, advice or information may be sent or
obtained by letter, telex or facsimile transmission and the Security
Trustee will not be liable to any Interested Person for acting in
good faith on any opinion, advice or information purporting to be
conveyed by such means even though it contains some error which is
not a manifest error or is not authentic.
(c) (No enquiry): The Security Trustee is not bound to give notice to
any person of the execution of this Deed or to take any steps to
ascertain whether there has occurred any Event of Default or event
which, with the giving of notice or the lapse of time would
constitute an Event of Default or to keep itself informed about the
circumstances of the Trustee or the Manager and, until it has
knowledge or express notice to the contrary, the Security Trustee
may assume that no Event of Default has occurred and that the
Trustee and the Manager and any other party to the Transaction
Documents (other than the Security Trustee) are observing and
performing all the obligations on their part contained in the
Transaction Documents and need not inquire whether that is, in fact,
the case.
(d) (Notice of Event of Default): The Security Trustee is not obliged to
notify the Secured Creditors of the happening of any Event of
Default except in the circumstances set out in clause [ ]8.1.
(e) (Acts pursuant to resolutions): The Security Trustee will not be
responsible for having acted in good faith upon any resolution
purporting to have been passed at any meeting of the Voting Secured
Creditors in respect of which minutes have been made and signed even
though it may subsequently be found that there was some defect in
the constitution of such meeting or the passing of such resolution
or that for any reason such resolution was not valid or binding upon
the Secured Creditors or upon the Security Trustee.
(f) (Reliance): The Security Trustee is, for any purpose and at any
time, entitled to rely on, act upon, accept and regard as conclusive
and sufficient (without being in any way bound to call for further
evidence or information or being responsible for any loss that may
be occasioned by such reliance, acceptance or regard) any of the
following:
(i) any information, report, balance sheet, profit and loss
account, certificate or statement supplied by the Trustee
or the Manager or by any officer, auditor or solicitor of
the Trustee or the Manager;
(ii) all statements (including statements made or given to the
best of the maker's knowledge and belief or similarly
qualified) contained in any information, report, balance
sheet, profit and loss account, certificate or statement
given pursuant to or in relation to this Deed, the Master
Trust Deed or the Series Supplement;
(iii) all accounts supplied to the Security Trustee pursuant to
this Deed and all reports of the Auditor supplied to the
Security Trustee pursuant to this Deed; and
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(iv) notices and other information supplied to the Security
Trustee under this Deed,
save, in each case, when it is aware that the information supplied
pursuant to subclauses (i) to (iv) is incorrect or incomplete.
(g) (Director's certificates): The Security Trustee may call for and may
accept as sufficient evidence of any fact or matter or of the
expediency of any dealing, transaction, step or thing a certificate
signed by any two directors or duly authorised officers of the
Trustee or the Manager as to any fact or matter upon which the
Security Trustee may, in the exercise of any of its duties, powers,
authorities and discretions under this Deed, require to be satisfied
or to have information to the effect that in the opinion of the
person or persons so certifying any particular dealing, transaction,
step or thing is expedient and the Security Trustee will not be
bound to call for further evidence and will not be responsible for
any loss that may be occasioned by acting on any such certificate.
(h) (Custody of documents): The Security Trustee may hold or deposit
this Deed and any deed or documents relating to this Deed or to the
Transaction Documents with any banker or banking company or entity
whose business includes undertaking the safe custody of deeds or
documents or with any lawyer or firm of lawyers believed by it to be
of good repute and the Security Trustee will not be responsible for
any loss incurred in connection with any such holding or deposit and
may pay all sums to be paid on account of or in respect of any such
deposit.
(i) (Discretion): The Security Trustee, as regards all the powers,
trusts, authorities and discretions vested in it, has, subject to
any express provision to the contrary contained in this Deed,
absolute and uncontrolled discretion as to the exercise of such
powers, authorities, trusts and discretions and, in the absence of
fraud, negligence or wilful default on its part, will be in no way
responsible to any Interested Person or any other person for any
loss, costs, damages, expenses or inconvenience which may result
from the exercise or non-exercise of such powers, authorities,
trusts and discretions.
(j) (Employ agents): Wherever it considers it expedient in the interests
of the Secured Creditors, the Security Trustee may, instead of
acting personally, employ and pay an agent selected by it, whether
or not a lawyer or other professional person, to transact or
conduct, or concur in transacting or conducting any business and to
do or concur in doing all acts required to be done by the Security
Trustee (including the receipt and payment of money under this
Deed). The Security Trustee will not be responsible to any
Interested Person for any misconduct, or default on the part of any
such person appointed by it under this Deed or be bound to supervise
the proceedings or acts of any such person, provided that any such
person will be a person who is in the opinion of the Security
Trustee appropriately qualified to do any such things and is
otherwise selected with reasonable care and in good faith. Any such
agent being a lawyer, banker, broker or other person engaged in any
profession or business will be entitled to charge and be paid all
usual professional and other charges for business transacted and
acts done by him or her or any partner of his or her or by his or
her firm in connection with this Deed and also his or her reasonable
charges in addition to disbursements for all other work and business
done and all time spent by him or her or his or her partners or firm
on matters arising in connection with this Deed including matters
which might or should have been attended to in person by a trustee
not being a lawyer, banker, broker or other professional person.
(k) (Delegation): Subject to clause [ ]14.7, the Security Trustee may
whenever it thinks it expedient in the interests of Secured
Creditors, delegate to any person or fluctuating body of persons
selected by it all or any of the duties, powers, authorities, trusts
and discretions vested in the Security Trustee by this Deed provided
that, except as provided in any Transaction Documents, the Security
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Trustee may not delegate to such third parties any material part of
its powers, duties or obligations as Security Trustee. Any such
delegation may be by power of attorney or in such other manner as
the Security Trustee may think fit and may be made upon such terms
and conditions (including power to sub-delegate) and subject to such
regulations as the Security Trustee may think fit. Provided that the
Security Trustee has exercised reasonable care and good faith in the
selection of such delegate, it will not be under any obligation to
any Interested Person to supervise the proceedings or be in any way
responsible for any loss incurred by reason of any misconduct or
default on the part of any such delegate or sub-delegate.
(l) (Apply to court): The Security Trustee may, whenever it thinks it
expedient in the interests of the Secured Creditors, apply to any
court for directions in relation to any question of law or fact
arising either before or after an Event of Default and assent to, or
approve, any applications of any Secured Creditor, the Trustee or
the Manager.
(m) (Disclosure): Subject to this Deed, any applicable laws and any duty
of confidentiality owed by any Interested Person to any other
person, the Security Trustee may, for the purpose of meeting its
obligations under this Deed, disclose to any Secured Creditor any
confidential, financial or other information made available to the
Security Trustee by the Trustee, the Manager, any other Interested
Person or any other person in connection with this Deed.
(n) (Determination): The Security Trustee, as between itself and the
Secured Creditors, has full power to determine (acting reasonably
and in good faith) all questions and doubts arising in relation to
any of the provisions of this Deed and every such determination,
whether made upon such a question actually raised or implied in the
acts or proceedings of the Security Trustee, will be conclusive and
will bind the Security Trustee and the Secured Creditors.
(o) (Defect in title): The Security Trustee is not bound or concerned to
examine or enquire into nor be liable for any defect or failure in
the title of the Trustee to the Charged Property and is entitled to
accept any such title without requisition or objection.
(p) (Notice of Charge or enforcement): The Security Trustee is under no
obligation to give any notice of the Charge to any debtors of the
Trustee or to any purchaser or any other person whomsoever or,
subject to this Deed, to enforce payment of any moneys payable to
the Trustee or to realise any of the Charged Property or to take any
steps or proceedings for that purpose unless the Security Trustee
thinks fit to do so.
(q) (Give up possession of Charged Property): The Security Trustee,
acting in accordance with this Deed or the terms of any
Extraordinary Resolution passed by the Voting Secured Creditors in
accordance with this Deed, may give up possession of the Charged
Property at any time.
(r) (No duty as chargee): Nothing in this Deed imposes a duty upon the
Security Trustee to exercise its powers as chargee under this Deed
or at law in circumstances where a motion at a meeting of Voting
Secured Creditors that a receiver be appointed is put and is not
passed.
(s) (Other Security Interests): If the Security Trustee sees fit to
redeem or take any transfer of any Security Interest ranking in
priority to or pari passu with the Charge including the Prior
Interest (the "Other Security Interest") wholly or in part then,
notwithstanding any provision as to interest contained in the Other
Security Interest or any presumption of law to the contrary all
moneys expended by the Security Trustee in so doing including the
consideration paid to the holder of the Other Security Interest,
stamp duty and legal costs and disbursements will be deemed to be
principal moneys secured by the Other Security Interest, and also
part of the Secured Moneys and moneys the payment of which forms
part of
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the obligations of the Trustee under this Deed, and the provisions
of this Deed will be deemed incorporated in the Other Security
Interest and will prevail over the terms and conditions of the Other
Security Interest in the case of any inconsistency.
(t) (Liability limited): Except for the obligations imposed on it under
this Deed, the Security Trustee is not obliged to do or omit to do
any thing including enter into any transaction or incur any
liability unless the Security Trustee=s liability is limited in a
manner satisfactory to the Security Trustee in its absolute
discretion.
(u) (No duty to provide information): Subject to the express
requirements of this Deed and any requirement of applicable law, the
Security Trustee has no duty (either initially, or on a continuing
basis) to consider or provide any Secured Creditors with any
information with respect to the Trustee or the Manager (whenever
coming into its possession).
(v) (Exercise of rights subject to Extraordinary Resolution): Without
limiting its rights, powers and discretions, but subject to its
express duties or obligations under this Deed (including, without
limiting the generality of the foregoing, clause 8) the Security
Trustee will not be required to exercise any right, power or
discretion (including to require anything to be done, form any
opinion or give any notice, consent or approval) without the
specific instructions of the Voting Secured Creditors given by
Extraordinary Resolution.
(w) (No liability for acting in accordance with directions): The
Security Trustee is not to be under any liability whatsoever for
acting in accordance with any direction obtained from Voting Secured
Creditors at a meeting convened under clause [ ]8.
(x) (No liability for breach): The Security Trustee is not to be under
any liability whatsoever for a failure to take any action in respect
of any breach by the Trustee of its duties as trustee of the Series
Trust of which the Security Trustee is not aware or in respect of
any Event of Default of which the Security Trustee is not aware.
(y) (Dispute or Ambiguity): In the event of any dispute or ambiguity as
to the construction or enforceability of this Deed or any other
Transaction Document, or the Security Trustee=s powers or
obligations under or in connection with this Deed or the
determination or calculation of any amount or thing for the purpose
of this Deed or the construction or validity of any direction from
Voting Secured Creditors, provided the Security Trustee is using
reasonable endeavours to resolve such ambiguity or dispute, the
Security Trustee, in its absolute discretion, may (but will have no
obligation to) refuse to act or refrain from acting in relation to
matters affected by such dispute or ambiguity.
14.4 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 Trustee, the
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
14.4 or any similar provision in any other Transaction Document limits or
adversely affects the powers of the Security Trustee, any receiver or
attorney in respect of the Charge or the Charged Property.
14.5 Dealings with Trust
None of the:
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(a) (Security Trustee): Security Trustee in any capacity;
(b) (Related Bodies Corporate): Related Bodies Corporate of the Security
Trustee;
(c) (Directors etc.): directors or officers of the Security Trustee or
its Related Bodies Corporate; or
(d) (Shareholders): shareholders of the Security Trustee or its Related
Bodies Corporate,
is prohibited from:
(e) (Subscribing for): subscribing for, purchasing, holding, dealing in
or disposing of Securities;
(f) (Contracting with): at any time:
(i) contracting with;
(ii) acting in any capacity as representative or agent for; or
(iii) entering into any financial, banking, agency or other
transaction with,
any other of them or any Secured Creditor; or
(g) (Being interested in): being interested in any contract or
transaction referred to in paragraphs (e) or (f).
None of the persons mentioned is liable to account to the Secured
Creditors for any profits or benefits (including, without limitation,
bank charges, commission, exchange brokerage and fees) derived in
connection with any contract or transaction referred to in paragraphs (e)
or (f). The preceding provisions of this clause [_]14.5 only apply if
the relevant person, in connection with the action, contract or
transaction, acts in good faith to all Secured Creditors.
14.6 Discretion of Security Trustee as to Exercise of Powers
Subject to any express provision to the contrary contained in this Deed,
the Security Trustee will, as regards all the powers, authorities and
discretions vested in it by this Deed have absolute discretion as to the
exercise of them in all respects and, in the absence of fraud, negligence
or wilful default on its part, the Security Trustee will not be in any
way responsible for any loss, costs, damages, claims or obligations that
may result from the exercise or non-exercise of them.
14.7 Delegation of Duties of Security Trustee
The Security Trustee must not delegate to any person any of its trusts,
duties, powers, authorities or discretions under this Deed except:
(a) (To Manager, Servicer, Seller, Trustee): to the Manager, the
Servicer, the Seller or the Trustee in accordance with the
provisions of this Deed or any other Transaction Document;
(b) (Related Body Corporate): subject to clause [ ]14.8, to a Related
Body Corporate of the Security Trustee; or
(c) (As otherwise permitted): in accordance with the provisions of this
Deed.
14.8 Related Body Corporate of the Security Trustee
Where the Security Trustee delegates any of its trusts, duties, powers,
authorities and discretions to any person who is a Related Body Corporate
of the Security Trustee, the Security Trustee at all times remains liable
for the acts or omissions of such Related Body
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Corporate and for the payment of fees of that Related Body Corporate when
acting as delegate.
15. DUTIES OF THE SECURITY TRUSTEE
15.1 Duties of the Security Trustee limited to duties in this Deed
The Security Trustee has no duties or responsibilities in its capacity as
trustee other than those expressly set out in this Deed.
15.2 Security Trustee's Further Duties
Subject to clause [_]14.1, the Security Trustee must comply with the
duties and responsibilities imposed on it by this Deed and must:
(a) (Act continuously): act continuously as trustee of the Security
Trust until the Security Trust is terminated in accordance with this
Deed or until it has retired or been removed in accordance with this
Deed;
(b) (Exercise diligence etc.): exercise all due diligence and vigilance
in carrying out its functions and duties and in protecting the
rights and interests of the Secured Creditors;
(c) (Have regard to the Interests of Secured Creditors): in the exercise
of all discretions vested in it by this Deed and all other
Transaction Documents, except where expressly provided otherwise,
have regard to the interest of the Secured Creditors as a class;
(d) (Retain the Trust Fund): subject to this Deed, retain the Security
Trust Fund in safe custody and hold it on trust for the Secured
Creditors upon the terms of this Deed; and
(e) (Not sell etc.): not sell, mortgage, charge or part with the
possession of any part or the whole of the Security Trust Fund (or
permit any of its officers, agents and employees to do so) except as
permitted or contemplated by this Deed.
15.3 Trustee Liable for Negligence etc.
Nothing in this Deed will in any case in which the Security Trustee has
failed to show the degree of care and diligence required of it as
Security Trustee (having regard to the provisions of this Deed conferring
on the Security Trustee any duties, powers, trusts, authorities or
discretions, including any provisions relieving the Security Trustee of
specified responsibilities) relieve or indemnify it from or against any
liability for fraud, negligence or wilful default.
15.4 No Liability for Transaction Documents
The Security Trustee has no responsibility for the form or content of
this Deed or any other Transaction Document and will have no liability
arising in connection with any inadequacy, invalidity or unenforceability
(other than as a result of a breach of this Deed by the Security Trustee)
of any provision of this Deed or any Transaction Document.
15.5 Resolution of Conflicts
(a) (Resolve Conflicts in favour of the Securityholders): Subject to the
provisions of this Deed, if there is at any time in the Security
Trustee's opinion, with respect to enforcement or the exercise of
any of the Security Trustee's duties, powers or discretions, a
conflict between the interests of any Secured Creditor or class of
Secured Creditor (on the one hand) and the interests of the
Securityholders as a whole (on the other hand), the Security Trustee
must give priority to the interests of the Securityholders as a
whole.
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(b) (Resolve Conflicts in favour of the Senior Securityholders): Subject
to the provisions of this Deed (other than clause [_]15.5(a)), the
Security Trustee must give priority to the interests only of the
Senior Securityholders as a class if, in the Security Trustee's
opinion, there is a conflict between the interests of the Senior
Securityholders (on the one hand) and the Class B Noteholders or the
other persons entitled to the benefit of the Charge (on the other
hand) (in relation to which in determining the interests of the
Class A-1 Noteholders the Security Trustee may rely on a
determination of the Class A-1 Note Trustee).
(c) (No Liability): Provided that the Security Trustee acts in good
faith, it will not incur any liability to any Secured Creditor for
giving effect to paragraph (a) or (b).
16. INDEMNITY BY TRUSTEE
16.1 Indemnity
Subject to this Deed and without prejudice to any right of indemnity
given by law, the Security Trustee, the Manager, the Class A-1 Note
Trustee, the Receiver or attorney or other person appointed under this
Deed (including, without limitation, any person appointed by the Security
Trustee, the Manager, the Class A-1 Note Trustee or the Receiver or any
person to whom any duties, powers, trusts, authorities or discretions may
be delegated by the Security Trustee, the Manager, the Class A-1 Note
Trustee or the Receiver) ("appointee") will be indemnified by the Trustee
against all loss, liabilities and expenses properly incurred by the
Security Trustee, the Manager, the Class A-1 Note Trustee, the Receiver,
attorney or appointee (as the case may be) in the execution or purported
execution of any duties, powers, trusts, authorities or discretions
vested in such persons pursuant to this Deed, including, without
limitation, all liabilities and expenses consequent upon any mistake or
oversight, error of judgment or want of prudence on the part of such
persons and against all actions, proceedings, costs, claims and demands
in respect of any matter or thing properly done or omitted in any way
relating to this Deed, unless any of the foregoing is due to actual
fraud, negligence or wilful default on the part of the Security Trustee,
the Manager, the Class A-1 Note Trustee, the Receiver, attorney or
appointee (as the case may be). The Security Trustee may in priority to
any payment to the Secured Creditors retain and pay out of any moneys in
its hands upon the trusts of this Deed all sums necessary to effect such
indemnity including, without limitation, the amount of any such
liabilities and expenses, and also any remuneration outstanding to the
Security Trustee under clause [_]19.1.
16.2 Extent of Security Trustee's Indemnity
The Security Trustee is entitled to be indemnified by the Trustee for:
(a) (Registration etc. costs): the costs, charges and expenses
(including legal costs and expenses at the usual commercial rates of
the relevant legal services provider) of the Security Trustee in
connection with the negotiation, preparation, execution, stamping,
registration and completion of this Deed, any deed amending this
Deed and the Charge;
(b) (Costs of waiver etc.): the costs, charges and expenses (including
legal costs and expenses at the usual commercial rates of the
relevant legal services provider) of the Security Trustee in
connection with any consent, exercise or non-exercise of rights or
powers or performance of obligations (including, without limitation,
in connection with the contemplated or actual enforcement or
preservation of any rights or powers or performance of obligations
under this Deed), production of title documents, waiver, variation,
release or discharge in connection with the Charge or the Charged
Property;
(c) (Taxes): Taxes and fees (including, without limitation, registration
fees) and fines and penalties in respect of fees, which may be
payable or determined to be payable in connection with this Deed or
a payment or receipt or any other transaction contemplated by this
Deed; and
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(d) (Legal costs): without limiting the generality of clause [ ]16.2(b),
all legal costs and disbursements (at the usual commercial rates of
the relevant legal services provider) and all other costs,
disbursements, outgoings and expenses of the Security Trustee in
connection with the initiation, carriage and settlement of any court
proceedings (including, without limitation, proceedings against the
Trustee arising from any neglect, breach or default by the Trustee
under this Deed) in respect of this Deed.
16.3 Costs of experts
The liabilities and expenses referred to in clause [ ]16.2 include,
without limitation, those payable to any independent consultant or other
person appointed to evaluate any matter of concern (including, without
limitation, any person consulted by the Security Trustee pursuant to
clause [ ]14.3(b)), any agent of the Security Trustee, any Receiver or
any attorney appointed under this Deed, and, in the case of the Security
Trustee, its administration costs in connection with any event referred
to in clause [ ]16.2.
16.4 Non-Discharge
Unless otherwise specifically stated in any discharge of the Security
Trust, the provisions of this clause [ ]16 will continue in full force
and effect despite such discharge.
16.5 Retention of Lien
Notwithstanding any release of the outgoing Security Trustee under this
clause, the outgoing Security Trustee will remain entitled to the benefit
of the indemnities granted by this Deed to the outgoing Security Trustee
in respect of any liability, cost or other obligation incurred by it
while acting as Security Trustee, as if it were still the Security
Trustee under this Deed.
17. MEETINGS OF VOTING SECURED CREDITORS
17.1 Meetings Regulated by the Annexure
The provisions of the Annexure will apply to all meetings of Voting
Secured Creditors and to the passing of resolutions at those meetings.
17.2 Limitation on Security Trustee's Powers
Save as provided for in this Deed, the Security Trustee will not assent
or give effect to any matter which a meeting of Voting Secured Creditors
is empowered by Extraordinary Resolution to do, unless the Security
Trustee has previously been authorised to do so by an Extraordinary
Resolution of Voting Secured Creditors. Nothing in this Deed prevents
the Security Trustee taking such action as it considers appropriate to
enforce any rights of indemnity or reimbursement.
18. CONTINUING SECURITY AND RELEASES
18.1 Liability Preserved
Notwithstanding any payout figure quoted or other form of account stated
by the Security Trustee and notwithstanding the rule in Groongal Pastoral
Company Limited (In Liquidation) v. Falkiner (35 CLR 157), no grant of
full or partial satisfaction of or discharge from this Deed by the
Security Trustee will release the Trustee under this Deed 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 its
servants or agents.
18.2 Trustee's Liability Not Affected
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This Deed and the liability of the Trustee under this Deed will not be
affected or discharged by any of the following:
(a) (Indulgence): the granting to the Trustee 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 Trustee or any
other person.
18.3 Waiver by Trustee
The Trustee waives in favour of the Security Trustee:
(a) (All rights necessary to give effect to Deed): all rights whatsoever
against the Security Trustee and any other person estate or assets
to the extent necessary to give effect to anything in this Deed;
(b) (Promptness and diligence): 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 Deed): all rights inconsistent with
the provisions of this Deed including any rights as to contribution
or subrogation which the Trustee might otherwise be entitled to
claim or enforce .
19. REMUNERATION AND RETIREMENT OF SECURITY TRUSTEE
19.1 Remuneration
Subject to clause [_]28, the Security Trustee is to be remunerated by the
Trustee for acting as trustee under this Deed whether before or after the
occurrence of an Event of Default, at the rate agreed from time to time
between the Manager, the Security Trustee and the Trustee.
19.2 Retirement of Security Trustee
The Security Trustee covenants that it will retire as Security Trustee
if:
(a) (Insolvency): an Insolvency Event occurs in relation to the Security
Trustee in its personal capacity or in respect of its personal
assets (and not in its capacity as trustee of any trust or in
respect of any assets it holds as trustee);
(b) (Ceases to carry on business): it ceases to carry on business;
(c) (Related Trustee retires): a Related Body Corporate of it retires as
trustee of the Series Trust under clause [ ]19.1, clause [ ]19.2 or
clause [ ]19.4 of the Master Trust Deed or is removed as trustee of
the Series Trust under clause [ ]19.3 of the Master Trust Deed and
the Manager requires the Security Trustee by notice in writing to
retire;
(d) (Voting Secured Creditors require retirement): an Extraordinary
Resolution requiring its retirement is passed at a meeting of Voting
Secured Creditors;
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(e) (Breach of duty): when required to do so by the Manager or the
Trustee by notice in writing, it fails or neglects within 14 days
after receipt of such notice to carry out or satisfy any material
duty imposed on it by this Deed in respect of the Security Trust; or
(f) (Change in ownership): there is a change in ownership of 50% or more
of the issued equity share capital of the Security Trustee from the
position as at the date of this Deed or effective control of the
Security Trustee alters from the position as at the date of this
Deed unless in either case approved by the Manager (whose approval
must not be unreasonably withheld).
19.3 Removal by Manager
If an event referred to in clause [_]19.2 occurs and the Security Trustee
does not retire immediately after that event, the Manager is entitled to,
and must forthwith, remove the Security Trustee from office immediately
by notice in writing to the Security Trustee. On the retirement or
removal of the Security Trustee under the provisions of clause [_]19.2 or
this clause [_]19.3:
(a) (Notify Rating Agencies): the Manager must promptly notify the
Rating Agencies and the Class A-1 Note Trustee of such retirement or
removal; and
(b) (Appoint Substitute Security Trustee): subject to any approval
required by law, the Trustee is entitled to and must use its best
endeavours to appoint in writing some other Authorised Trustee
Corporation which is approved by the Rating Agencies to be the
Substitute Security Trustee. If the Trustee does not appoint a
Substitute Security Trustee, the Manager may appoint a Substitute
Security Trustee who is approved by the Rating Agencies.
19.4 Security Trustee May Retire
The Security Trustee may retire as trustee under this Deed upon giving 3
months notice in writing to the Trustee, the Manager, the Class A-1 Note
Trustee and the Rating Agencies or such lesser time as the Manager, the
Trustee, the Security Trustee and the Class A-1 Note Trustee agree. Upon
such retirement, the Security Trustee, subject to any approval required
by law, may appoint in writing any other Authorised Trustee Corporation
who is approved by the Rating Agencies and the Manager, which approval
must not be unreasonably withheld by the Manager, as Security Trustee in
its stead. If the Security Trustee does not propose a replacement by the
date which is 1 month prior to the date of its proposed retirement, the
Manager is entitled to appoint a Substitute Security Trustee, which must
be an Authorised Trustee Company who is approved by the Rating Agencies,
as of the date of the proposed retirement.
19.5 Retirement of Trustee under Master Trust Deed
The retiring Security Trustee must use its best endeavours to appoint in
writing some other Authorised Trustee Corporation who is approved by the
Manager and the Rating Agencies as Security Trustee in its place. If the
retiring Security Trustee does not appoint a Substitute Security Trustee
by the date which is 1 month prior to the date of its proposed
retirement, the Manager may appoint a Substitute Security Trustee, which
must be an Authorised Trustee Company approved by the Rating Agencies.
The retirement of the retiring Security Trustee will take effect upon the
earlier to occur of:
(a) (Expiry of 3 month period): the expiry of a 3 month period
commencing on the retirement or removal of the trustee of the Series
Trust under the Master Trust Deed; and
(b) (Appointment of a Substitute Security Trustee): the appointment of a
Substitute Security Trustee.
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19.6 Appointment of Substitute Security Trustee by Voting Secured Creditors
If a Substitute Security Trustee has not been appointed under clauses
[ ]19.3, 19.4 or 19.5 at a time when the position of Security Trustee
becomes vacant in accordance with those clauses, the Manager must act as
Security Trustee in accordance with the terms of this Deed and must
promptly convene a meeting of Voting Secured Creditors at which Voting
Secured Creditors, holding or representing between them Voting
Entitlements comprising in aggregate a number of votes which is not less
than 75% of the aggregate number of votes comprised in the total Voting
Entitlements at the time, appoint any person nominated by any of them to
act as Security Trustee. The Manager is entitled to receive the fee
payable in accordance with clause [ ]19.1 for the period during which the
Manager acts as Security Trustee pursuant to this clause [ ]19.
19.7 Release of Security Trustee
Upon retirement or removal of the Security Trustee as trustee of the
Security Trust, the Security Trustee is released from all obligations
under this Deed arising after the date of the retirement or removal
except for its obligation to vest the Security Trust Fund in the
Substitute Security Trustee and to deliver all books and records relating
to the Security Trust to the Substitute Security Trustee (at the cost of
the Security Trust Fund). The Manager and the Trustee may settle with
the Security Trustee the amount of any sums payable by the Security
Trustee to the Manager or the Trustee or by the Manager or the Trustee to
the Security Trustee and may give to or accept from the Security Trustee
a discharge in respect of those sums which will be conclusive and binding
as between the Manager, the Trustee and the Security Trustee but not as
between the Security Trustee and the Secured Creditors.
19.8 Vesting of Security Trust Fund in Substitute Security Trustee
The Security Trustee, on its retirement or removal, must vest the
Security Trust Fund or cause it to be vested in the Substitute Security
Trustee and must deliver and assign to such Substitute Security Trustee
as appropriate all books, documents, records and other property
whatsoever relating to the Security Trust Fund.
19.9 Substitute Security Trustee to Execute Deed
Each Substitute Security Trustee must upon its appointment execute a deed
in such form as the Manager may require whereby such Substitute Security
Trustee must undertake to the Secured Creditors jointly and severally to
be bound by all the covenants on the part of the Security Trustee under
this Deed from the date of such appointment.
19.10 Rating Agencies Advised
The Manager must promptly:
(a) (Retirement): approach and liaise with the Rating Agencies in
respect of any consents required from it to the replacement of the
Security Trustee pursuant to clause [ ]19.5;
(b) (Change of ownership): notify the Rating Agencies of it becoming
aware of a change in ownership of 50% or more of the issued equity
share capital of the Security Trustee from the position as at the
date of this Deed or effective control of the Security Trustee
altering from the date of this Deed; and
(c) (Approval for change in ownership): notify the Rating Agencies and
the Class A-1 Note Trustee of any approvals given by the Manager
pursuant to clause [ ]19.2(f).
20. ASSURANCE
20.1 Further Assurance
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The Trustee will and will procure that all persons having or claiming any
estate or interest in the Charged Property will at any time now or in the
future upon the request of the Security Trustee and at the cost of the
Trustee, make, do and execute or cause to be made, done and executed all
such actions, documents and assurances which are necessary or
appropriate:
(a) (To secure the Secured Moneys): to more satisfactorily secure to the
Security Trustee the payment of the Secured Moneys;
(b) (To assure the Charged Property): to assure or more satisfactorily
assure the Charged Property to the Security Trustee;
(c) (As directed): as the Security Trustee may direct; or
(d) (Appointment of Substitute Security Trustee): for a Substitute
Security Trustee appointed under clause [ ]19 to obtain the benefit
of this Deed,
and in particular will, whenever requested by the Security Trustee,
execute in favour of the Security Trustee such legal mortgages,
transfers, assignments or other assurances of all or any part of the
Charged Property in such form and containing such powers and provisions
as the Security Trustee requires.
20.2 Postponement or Waiver of Security Interests
The Trustee will (and the Manager will give all necessary directions to
enable the Trustee to) if required by the Security Trustee immediately
cause:
(a) (Postpone other Security Interests): any Security Interest (other
than the Prior Interest) which has arisen or which arises from time
to time by operation of law over the Charged Property in favour of
any person including the Trustee to be at the Security Trustee's
option postponed in all respects after and subject to this Deed or
to be otherwise discharged released or terminated; and
(b) (Discharge of Secured Moneys): any Borrowing or other obligation
secured by any such Security Interest at the Security Trustee's
option to be waived, released, paid or performed.
20.3 Registration of Charge
The Manager will at its own expense ensure that this Deed is promptly
registered as a charge on any appropriate register to the extent and
within such time limits as may be prescribed by law so as to ensure the
full efficacy of this Deed as a security to the Security Trustee in all
jurisdictions in which any part of the Charged Property may now or at any
time during the continuance of this Deed be located, in which the Trustee
may carry on any business or in which the Trustee is or may become
resident or registered.
20.4 Caveats
The Trustee is not obliged to do anything under this clause [_]20 to
enable the Security Trustee to, and the Security Trustee must not, lodge
a caveat to record its interest in the Charged Property at the land
titles office in any State or Territory, unless the Charge has taken
effect as a fixed charge and the Trustee would, under the terms of the
Master Trust Deed, be entitled to lodge caveats.
21. PAYMENTS
21.1 Moneys Repayable as Agreed or on Demand
Unless otherwise agreed pursuant to the terms of any Secured Moneys, such
Secured Moneys are payable by the Trustee to the Security Trustee in
Australian dollars immediately upon demand by the Security Trustee.
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21.2 No Set-Off or Deduction
All payments by the Trustee of any moneys forming part of the Secured
Moneys are to be free of any set-off or counterclaim and without
deduction or withholding for any present or future Taxes unless the
Trustee is compelled by law to deduct or withhold the same, in which
event the Trustee will pay to the Security Trustee such additional
amounts necessary to enable the Security Trustee to receive after all
deductions and withholdings for such Taxes a net amount equal to the full
amount which would otherwise have been payable under this Deed had no
such deduction or withholding been required to be made.
22. DISCHARGE OF THE CHARGE
22.1 Release
Upon proof being given to the reasonable satisfaction of the Security
Trustee that all Secured Moneys have been paid in full, including that
all costs, charges, moneys and expenses incurred by or payable to or at
the direction of the Security Trustee, the Receiver or any attorney
appointed under this Deed have been paid and upon adequate provision
having been made to the reasonable satisfaction of the Security Trustee
of all costs, charges, moneys and expenses reasonably likely thereafter
to be incurred by or payable to or at the direction of the Security
Trustee, the Receiver or any attorney appointed under this Deed in
respect of the Series Trust, then the Security Trustee will at the
request of the Manager or the Trustee, and at the cost of the Trustee,
release the Charged Property from the Charge and this Deed.
22.2 Contingent Liabilities
The Security Trustee is under no obligation to grant a release of the
Charge or this Deed unless at the time such release is sought:
(a) (No Secured Moneys owing): none of the Secured Moneys are
contingently or prospectively owing except where there is no
reasonable likelihood of the contingent or prospective event
occurring; and
(b) (No liabilities): the Security Trustee has no contingent or
prospective liabilities whether or not there is any reasonable
likelihood of such liabilities becoming actual liabilities in
respect of any bills, notes, drafts, cheques, guarantees, letters of
credit or other instruments or documents issued, drawn, endorsed or
accepted by the Security Trustee for the account or at the request
of the Trustee for the Series Trust.
22.3 Charge Reinstated
If any claim is made by any person that any moneys applied in payment or
satisfaction of the Secured Moneys must be repaid or refunded under any
law (including, without limit, any law relating to preferences,
bankruptcy, insolvency or the winding up of bodies corporate) and the
Charge has already been discharged, the Trustee will, at the Trustee=s
expense, promptly do, execute and deliver, and cause any relevant person
to do, execute and deliver, all such acts and instruments as the Security
Trustee may require to reinstate this Charge. This clause will survive
the discharge of the Charge unless the Security Trustee agrees otherwise
in writing.
23. CLASS A-1 NOTE TRUSTEE
23.1 Capacity
The Class A-1 Note Trustee is a party to this Deed in its capacity as
trustee for the Class A-1 Noteholders from time to time under the Class
A-1 Note Trust Deed.
23.2 Exercise of rights
Except as otherwise provided in this Deed and in the Class A-1 Note Trust
Deed:
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(a) (Only by Class A-1 Note Trustee): the rights, remedies and
discretions of the Class A-1 Noteholders under this Deed including
all rights to vote or give instructions or consent to the Security
Trustee and to enforce any undertakings or warranties under this
Deed, may only be exercised by the Class A-1 Note Trustee on behalf
of the Class A-1 Noteholders in accordance with the Class A-1 Note
Trust Deed; and
(b) (Limited Right of Enforcement by Class A-1 Noteholders): the
Class A-1 Noteholders may only exercise enforcement rights in
respect of the Charged Property through the Class A-1 Note Trustee
and only in accordance with this Deed.
23.3 Instructions or directions
The Security Trustee may rely on any instructions or directions given to
it by the Class A-1 Note Trustee as being given on behalf of all the
Class A-1 Noteholders from time to time and need not inquire whether any
such instructions or directions are in accordance with the Class A-1 Note
Trust Deed, whether the Class A-1 Note Trustee or the Class A-1
Noteholders from time to time have complied with any requirements under
the Class A-1 Note Trust Deed or as to the reasonableness or otherwise of
the Class A-1 Note Trustee.
23.4 Payments
Any payment to be made to a Class A-1 Noteholder under this Deed may be
made to the Class A-1 Note Trustee or a Paying Agent on behalf of that
Class A-1 Noteholder.
23.5 Notices
Any notice to be given to a Class A-1 Noteholder under this Deed may be
given to the Class A-1 Note Trustee on behalf of that Class A-1
Noteholder. Any costs to the Class A-1 Note Trustee of publishing such
notice to the Class A-1 Noteholders will, subject to clause [ ]28, be
reimbursed by the Trustee to the Class A-1 Note Trustee.
23.6 Limitation of Class A-1 Note Trustee's Liability
The liability of the Class A-1 Note Trustee under this Deed is limited in
the manner and to the same extent as under the Class A-1 Note Trust Deed.
24. AMENDMENT
24.1 Amendment by Security Trustee
Subject to this clause [ ]24 and to any approval or consent required by
law (including, without limitation, the United States Trust Indenture Act
of 1939) and under clause [ ]24.2, the Security Trustee, the Manager, the
Class A-1 Note Trustee and the Trustee may together agree by way of
supplemental deed to alter, add to or revoke any provision of this Deed
(including this clause [ ]24) so long as such alteration, addition or
revocation:
(a) (Necessary or expedient): in the opinion of the Security Trustee or
of a barrister or solicitor instructed by the Security Trustee is
necessary or expedient to comply with the provisions of any Statute
or regulation or with the requirements of any Governmental Agency;
(b) (Manifest error): in the opinion of the Security Trustee is made to
correct a manifest error or ambiguity or is of a formal, technical
or administrative nature only;
(c) (Amendment to law): in the opinion of the Security Trustee is
appropriate or expedient as a consequence of an amendment to any
Statute or regulation or altered requirements of any Governmental
Agency or any decision of any court (including, without limitation,
an alteration, addition or modification which is in
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the opinion of the Security Trustee appropriate or expedient as a
consequence of the enactment of a Statute or regulation or an
amendment to any Statute or regulation or ruling by the Commissioner
or Deputy Commissioner of Taxation or any governmental announcement
or statement or any decision of any court, in any case which has or
may have the effect of altering the manner or basis of taxation of
trusts generally or of trusts similar to the Security Trust); or
(d) (Otherwise desirable): in the opinion of the Security Trustee and
the Trustee is otherwise desirable for any reason,
provided that the Security Trustee, the Manager, the Class A-1 Note
Trustee and the Trustee may not alter, add to or revoke any provision of
this Deed unless the Manager has notified the Rating Agencies and the
Class A-1 Note Trustee 5 Business Days in advance.
24.2 Consent required Generally
If any alteration, addition or revocation referred to in clause
[ ]24.1(d) would, if it were an Extraordinary Resolution of the Voting
Secured Creditors require any consent to be effective under clause [ ]14
of the Annexure, the alteration, addition or revocation may be effected
only if the relevant consent is obtained in accordance with such clause.
Nothing in this clause limits the operation of the proviso in clause
[ ]24.1.
24.3 Consent to Payment Modification in relation to Class A-1 Notes
If any alteration, addition or revocation referred to in clause [ ]24.1
effects or purports to effect a Payment Modification (as defined in the
Class A-1 Note Trust Deed) it will not be effective as against a given
Class A-1 Noteholder unless consented to by that Class A-1 Noteholder.
24.4 No Rating Agency Downgrade
The Security Trustee will be entitled to assume that any proposed
alteration, addition or revocation referred to in clause [ ]24.1 (other
than a Payment Modification) will not be materially prejudicial to the
interests of a Class of Securityholders or all Securityholders if each of
the Rating Agencies confirms in writing that if the alteration, addition
or revocation is effected this will not lead to a reduction,
qualification or withdrawal of the then rating given, respectively, to
the Class of Securities, or to each Class of the Securities, by the
Rating Agency. The Class A-1 Note Trustee will be entitled to assume
that any proposed alteration, addition or revocation will not be
materially prejudicial to the interests of Class A-1 Noteholders if each
of the Rating Agencies confirms in writing that if the alteration,
addition or revocation is effected this will not lead to a reduction,
qualification or withdrawal of the then rating given, respectively, to
the Class A-1 Notes by the Rating Agency.
24.5 Distribution of Amendments
The Manager must distribute to all Secured Creditors a copy of any
amendment made pursuant to clause [ ]24.1 as soon as reasonably
practicable after the amendment has been made.
25. EXPENSES AND STAMP DUTIES
25.1 Expenses
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Subject to clause 28, the Trustee will on demand reimburse the
Security Trustee and the Class A-1 Note Trustee for and keep the Security
Trustee and the Class A-1 Note Trustee indemnified against all expenses
including legal costs and disbursements (at the usual commercial rates of
the relevant legal services provider) incurred by the Security Trustee or
the Class A-1 Note Trustee (as the case may be) in connection with:
(a) (Preparation): the preparation and execution of this Deed and any
subsequent consent, agreement, approval or waiver under this Deed or
amendment to this Deed;
(b) (Enforcement): the exercise, enforcement, preservation or attempted
exercise enforcement or preservation of any rights under this Deed
including without limitation any expenses incurred in the evaluation
of any matter of material concern to the Security Trustee or the
Class A-1 Note Trustee; and
(c) (Inquiries of Governmental Agency): any inquiry by a Governmental
Agency concerning the Trustee or the Charged Property or a
transaction or activity the subject of the Transaction Documents.
25.2 Stamp Duties
(a) (Trustee must pay): The Trustee will pay all stamp, loan,
transaction, registration and similar Taxes including fines and
penalties, financial institutions duty and federal debits tax which
may be payable to or required to be paid by any appropriate
authority or determined to be payable in connection with the
execution, delivery, performance or enforcement of this Deed or any
payment, receipt or other transaction contemplated in this Deed.
(c) (Trustee must indemnify): The Trustee will indemnify and keep
indemnified each of the Security Trustee and the Class A-1 Note
Trustee against any loss or liability incurred or suffered by it as
a result of the delay or failure by the Trustee to pay such Taxes.
25.3 Goods and Services Tax
Notwithstanding any other provision of this Deed or the Master Trust
Deed, if the Security Trustee becomes liable to remit to a Governmental
Agency an amount of GST in connection with its supplies under this Deed,
the Security Trustee is not entitled to any reimbursement of that GST
from the Trustee out of the Assets of the Series Trust or the Security
Trust Fund. Nothing in this clause [ ]25.3 prevents the time in
attendance costs of the Security Trustee charged pursuant to clause
[ ]12.4 of the Series Supplement from including a component that
represents or is referable to GST.
26. GOVERNING LAW AND JURISDICTION
26.1 Governing Law
This Deed is governed by and construed in accordance with the laws of the
State of New South Wales.
26.2 Jurisdiction
(a) (Submission to jurisdiction): The Trustee, the Security Trustee, the
Manager and each of the Secured Creditors each irrevocably submits
to and accepts generally and unconditionally the non-exclusive
jurisdiction of the Courts and appellate Courts of the State 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) (Waiver of inconvenient forum): The Trustee, the Security Trustee,
the Manager and each of the Secured Creditors each irrevocably
waives any objection it may now or in the future have to the venue
of any such action or
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proceedings brought in such courts and any claim it may now or in
the future have that any such action or proceedings have been
brought in an inconvenient forum.
27. NOTICES
27.1 Method of Delivery
Subject to this clause, any notice, request, certificate, approval,
demand, consent or other communication to be given under this Deed must:
(a) (Authorised Officer): be signed by an Authorised Officer of the
party giving the same;
(b) (In writing): be in writing; and
(c) (Delivery): be in the case of a party to this Deed or any Secured
Creditor, other than a Securityholder:
(i) left at the address of the addressee;
(ii) sent by prepaid ordinary post to the address of the
addressee;
or
(iii) sent by facsimile to the facsimile number of the addressee,
notified by that addressee from time to time to the other parties
to this Deed as its address for service pursuant to this Deed.
Any notice, request, certificate, approval, demand, consent or other
communication to be given under this Deed to a Class A-1 Noteholder will
be effectively given if it is given to the Class A-1 Note Trustee in
accordance with this clause and to a Class A-2 Noteholder, a Class B
Noteholder or a Redraw Bondholder will be effectively given if sent to
the address thereof then appearing in the Register.
27.2 Deemed Receipt
A notice, request, certificate, demand, consent or other communication
under this Deed is deemed to have been received:
(a) (Delivery): where delivered in person, upon receipt;
(b) (Post): where sent by post, on the 3rd (7th if outside Australia)
day after posting; and
(c) (Fax): where sent by facsimile, on production by the dispatching
facsimile machine of a transmission report which indicates that the
facsimile was sent in its entirety to the facsimile number of the
recipient.
However, if the time of deemed receipt of any notice is not before 5.30
pm on a Business Day at the address of the recipient it is deemed to have
been received at the commencement of business on the next Business Day.
28. TRUSTEE'S LIMITED LIABILITY
28.1 Limitation on Trustee's Liability
The Trustee enters into this Deed only in its capacity as trustee of the
Series Trust and in no other capacity. A liability incurred by the
Trustee acting in its capacity as trustee of the Series Trust arising
under or in connection with this Deed is limited to and can be enforced
against the Trustee only to the extent to which it can be satisfied out
of Assets of the Series Trust out of which the Trustee is actually
indemnified for the liability. This limitation of the Trustee=s
liability applies despite any other provision of this Deed (other than
clause
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[ ]28.3) and extends to all liabilities and obligations of the
Trustee in any way connected with any representation, warranty, conduct,
omission, agreement or transaction related to this Deed.
28.2 Claims against Trustee
The parties other than the Trustee may not sue the Trustee in respect of
liabilities incurred by the Trustee acting in its capacity as trustee of
the Series Trust in any capacity other than as trustee of the Series
Trust, including seeking the appointment of a receiver (except in
relation to Assets of the Series Trust), a liquidator, an administrator,
or any similar person to the Trustee or prove in any liquidation,
administration or similar arrangements of or affecting the Trustee
(except in relation to the Assets of the Series Trust).
28.3 Breach of Trustee
The provisions of this clause [ ]28 will not apply to any obligation or
liability of the Trustee to the extent that it is not satisfied because
under the Master Trust Deed, the Series Supplement or any other
Transaction Document or by operation of law there is a reduction in the
extent of the Trustee=s indemnification out of the Assets of the Series
Trust, as a result of the Trustee=s fraud, negligence or wilful default.
28.4 Acts or omissions
It is acknowledged that the Relevant Parties are responsible under the
Transaction Documents for performing a variety of obligations relating to
the Series Trust. No act or omission of the Trustee (including any
related failure to satisfy its obligations or any breach of
representation or warranty under this Deed) will be considered
fraudulent, negligent or a wilful default for the purpose of clause
[ ]28.3 to the extent to which the act or omission was caused or
contributed to by any failure by any Relevant Party or any other person
appointed by the Trustee under any Transaction Document (other than a
person whose acts or omissions the Trustee is liable for in accordance
with any Transaction Document) to fulfil its obligations relating to the
Series Trust or by any other act or omission of a Relevant Party or any
other such person.
28.5 No Authority
No attorney, agent, receiver or receiver and manager appointed in
accordance with this Deed has authority to act on behalf of the Trustee
in a way which exposes the Trustee to any personal liability and no act
or omission of any such person will be considered fraud, negligence or
wilful default of the Trustee for the purposes of clause [ ]28.3.
28.6 No Obligation
The Trustee is not obliged to enter into any commitment or
obligation under this Deed or any Transaction Document (including
incur any further liability) unless the Trustee's liability is
limited in a manner which is consistent with this clause [ ]28 or
otherwise in a manner satisfactory to the Trustee in its absolute
discretion.
(b) or otherwise in a manner satisfactory to the Trustee in its absolute
discretion.
29. MISCELLANEOUS
29.1 Assignment by Trustee
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The Trustee will not assign or otherwise transfer the benefit of this
Deed or any of its rights, duties or obligations under this Deed except
to a Substitute Trustee which is appointed as a successor trustee of the
Series Trust under and in accordance with the Master Trust Deed.
29.2 Assignment by Manager
The Manager will not assign or otherwise transfer the benefit of this
Deed or any of its rights, duties or obligations under this Deed except
to a Substitute Manager which is appointed as a successor manager of the
Series Trust under and in accordance with the Master Trust Deed.
29.3 Assignment by Security Trustee
The Security Trustee will not assign or otherwise transfer all or any
part of the benefit of this Deed or any of its rights, duties and
obligations under this Deed except to a Substitute Security Trustee which
is appointed as a successor security trustee under and in accordance with
this Deed.
29.4 Assignment by Class A-1 Note Trustee
The Class A-1 Note Trustee will not assign or otherwise transfer all or
any part of the benefit of this Deed or any of its rights, duties and
obligations under this Deed except to a successor trustee appointed under
and in accordance with the Class A-1 Note Trust Deed.
29.5 Certificate of Security Trustee
A certificate in writing signed by an Authorised Officer of the Security
Trustee certifying the amount payable by the Trustee to the Security
Trustee or to the Secured Creditors or certifying that a person
identified therein is a Secured Creditor or certifying any other act,
matter, thing or opinion relating to this Deed is conclusive and binding
on all Interested Persons in the absence of manifest error on the face of
the certificate or evidence to the contrary.
29.6 Continuing Obligation
This Deed is a continuing obligation notwithstanding any settlement of
account intervening payment express or implied revocation or any other
matter or thing whatsoever until a final discharge of this Deed has been
given to the Trustee.
29.7 Settlement Conditional
Any settlement or discharge between the Trustee and the Security Trustee
is conditional upon any security or payment given or made to the Security
Trustee by the Trustee or any other person in relation to the Secured
Moneys not being avoided repaid or reduced by virtue of any provision or
enactment relating to bankruptcy insolvency or liquidation for the time
being in force and, in the event of any such security or payment being so
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 Trustee subsequently as if such settlement or discharge had not
occurred.
29.8 No Merger
Neither this Deed nor any of the Security Trustee's or the Receiver's
powers will merge or prejudicially affect nor be merged in or
prejudicially affected by and the Trustee=s obligations under this Deed
will not in any way be abrogated or released by any other security any
judgment or order any contract any cause of action or remedy or any other
matter or thing existing now or in the future in respect of the Secured
Moneys.
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29.9 Interest on Judgment
If a liability under this Deed (other than a liability for negligence,
fraud or wilful default of the Trustee under the Transaction Documents)
becomes merged in a judgment or order then the Trustee as an independent
obligation will pay interest to the Security Trustee on the amount of
that liability at a rate being the higher of the rate payable pursuant to
the judgment or order and the highest rate payable on the Secured Moneys
from the date it becomes payable until it is paid.
29.10 No Postponement
The Security Trustee's rights under this Deed will not be discharged,
postponed or in any way prejudiced by any subsequent Security Interest
nor by the operation of the rules known as the rule in Hopkinson v. Rolt
or the rule in Claytons Case.
29.11 Severability of Provisions
Any provision of this Deed which is illegal, void or unenforceable in any
jurisdiction is ineffective in that jurisdiction to the extent only of
such illegality, voidness or unenforceability without invalidating the
remaining provisions of this Deed or the enforceability of that provision
in any other jurisdiction.
29.12 Remedies Cumulative
The rights and remedies conferred by this Deed upon 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 or
by general law.
29.13 Waiver
A failure to exercise or enforce or a delay in exercising or enforcing or
the partial exercise or enforcement of any right, remedy, power or
privilege under this Deed by the Security Trustee will not in any way
preclude or operate as a waiver of any further exercise or enforcement of
such right, remedy, power or privilege or the exercise or enforcement of
any other right, remedy, power or privilege under this Deed or provided
by law.
29.14 Consents and Approvals
Where any act matter or thing under this Deed depends on the consent or
approval of the Security Trustee then unless expressly provided otherwise
in this Deed such consent or approval may be given or withheld in the
absolute and unfettered discretion of the Security Trustee and may be
given subject to such conditions as the Security Trustee thinks fit in
its absolute and unfettered discretion.
29.15 Written Waiver, Consent and Approval
Any waiver, consent or approval given by the Security Trustee under this
Deed will only be effective and will only be binding on 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 Authorised Officer for the time being of the Security
Trustee.
29.16 Time of Essence
Time is of the essence in respect of the Trustee=s obligations under this
Deed.
29.17 Moratorium Legislation
To the fullest extent permitted by law, the provisions of all Statutes
operating directly or indirectly:
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(a) (Lessen Obligations): to lessen or otherwise to vary or affect in
favour of the Trustee any obligation under this Deed; or
(b) (Delay Exercise of Powers): to delay or otherwise prevent or
prejudicially affect the exercise of any powers conferred on the
Security Trustee or the Receiver under this Deed,
are expressly waived negatived and excluded.
29.18 Debit Accounts
The Trustee authorises the Security Trustee at any time after the Charge
becomes enforceable pursuant to the provisions of this Deed, to apply
without prior notice any credit balance whether or not then due to which
the Trustee is at any time entitled on any account at any office of the
Security Trustee in or towards satisfaction of any sum then due and
unpaid from the Trustee to the Security Trustee under this Deed or on any
other account whatsoever and the Trustee further authorises the Security
Trustee without prior notice to set-off any amount owing whether present
or future actual contingent or prospective and on any account whatsoever
by the Security Trustee to the Trustee against any of the Secured Moneys.
The Security Trustee is not obliged to exercise any of its rights under
this clause, which are without prejudice and in addition to any right of
set-off, combination of accounts, lien or other right to which it is at
any time otherwise entitled whether by operation of law contract or
otherwise.
29.19 Set-Off
No Secured Creditor may set-off or apply any sum or debt in any currency
(whether or not matured) in any account comprised in the Charged Property
towards satisfaction of any amount that would otherwise form part of the
Secured Moneys.
29.20 Binding on Each Signatory
This Deed binds each of the signatories to this Deed notwithstanding that
any one or more of the named parties to this Deed does not execute this
Deed, that there is any invalidity forgery or irregularity touching any
execution of this Deed or that this Deed is or becomes unenforceable void
or voidable against any such named party.
29.21 Counterparts
This Deed may be executed in a number of counterparts and all such
counterparts taken together is deemed to constitute one and the same
instrument.
EXECUTED as a deed.
SIGNED SEALED AND DELIVERED )
for and on behalf of P.T. LIMITED, )
ACN 004 454 666, by )
its Attorney under a Power of Attorney )
dated and registered ) ................................
Book No. and who declares ) (Signature of Attorney)
that he or she has not received any )
notice of the revocation of such Power )
of Attorney in the presence of: )
................................
(Signature of Witness)
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................................
(Name of Witness in Full)
THE COMMON SEAL of THE BANK OF )
NEW YORK was affixed to this Deed )
in the presence of: )
................................
(Signature of Witness)
................................
(Name of Witness in Full)
SIGNED SEALED AND DELIVERED )
for and on behalf of SECURITISATION )
ADVISORY SERVICES PTY. LIMITED, ACN 064 )
133 946, by )
its Attorney under a Power of Attorney ) ................................
dated and registered ) (Signature of Attorney)
Book No. and who declares that )
he or she has not received any notice of )
the revocation of such Power of Attorney )
in the presence of:
................................
(Signature of Witness)
................................
(Name of Witness in Full)
SIGNED SEALED AND DELIVERED )
for and on behalf of )
PERPETUAL TRUSTEE COMPANY )
LIMITED, ACN 000 001 007, by )
its Attorney under a Power of ) ...............................
Attorney dated and registered ) (Signature of Attorney)
Book No. and who declares that )
he or she has not received any notice of )
the revocation of such Power of Attorney )
in the presence of: )
................................
(Signature of Witness)
................................
(Name of Witness in Full)
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THIS IS THE ANNEXURE REFERRED TO IN A SECURITY TRUST DEED
BETWEEN P.T. LIMITED, THE BANK OF NEW YORK, NEW YORK BRANCH, SECURITISATION
ADVISORY SERVICES PTY. LIMITED AND PERPETUAL TRUSTEE COMPANY LIMITED
CREDITORS
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PROVISIONS FOR MEETINGS OF VOTING SECURED CREDITORS
1. Definitions and Incorporation of Terms
In this Annexure, unless specified otherwise or the context indicates a
contrary intention:
(a) words and expressions which are defined in or by virtue of clause
[ ]1 of the abovementioned Security Trust Deed (the "Security Trust
Deed") have the same meanings in this Annexure;
(b) a "holder" in relation to Secured Moneys will be construed as
including a Securityholder in relation to any outstanding
Securities; and
(c) references to clauses are references to clauses in this Annexure.
2. Convening of Meetings
(a) (Meeting at any time): The Security Trustee, the Trustee or the
Manager at any time may convene a meeting of the Voting Secured
Creditors.
(b) (Meeting on request): Subject to the Security Trustee being
indemnified to its reasonable satisfaction against all costs and
expenses occasioned thereby, the Security Trustee will convene a
meeting of the Voting Secured Creditors if requested to do so by
Voting Secured Creditors who hold between them Voting Entitlements
comprising an aggregate number of votes which is no less than 10% of
the aggregate number of votes comprising the Voting Entitlements of
all Voting Secured Creditors at that time.
(c) (Time and place approved by Security Trustee):
(i) Every meeting of Voting Secured Creditors will be held at such
time and place as the Security Trustee approves (or, failing
such approval by the Security Trustee within a reasonable
period, as approved by the Manager), provided that, subject to
paragraphs (ii) and (iii) and clause [ ]4, any such meeting
shall not be held until the Class A-1 Note Trustee has had, in
its opinion, sufficient time to either seek directions from the
Class A-1 Noteholders or to determine that it need not seek
those directions, in each case in accordance with clause [ ]7
of the Class A-1 Note Trust Deed.
(ii) Upon receiving notice of a meeting of the Voting Secured
Creditors, the Class A-1 Note Trustee (if applicable) will as
soon as practicable comply with clause [ ]7 of the Class A-1
Note Trust Deed.
(iii) The proviso in sub-paragraph (i) does not apply if:
A. the Class A-1 Note Trustee, in its absolute discretion,
so decides; or
B. there are then no Class A-1 Notes outstanding.
(d) (Meetings in more than one place): A meeting of Voting Secured
Creditors may, if the Security Trustee so determines, be held at two
or more meeting venues linked together by audio-visual communication
equipment which, by itself or in conjunction with other
arrangements:
(i) gives the Voting Secured Creditors in the separate venues a
reasonable opportunity to participate in the proceedings;
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(ii) enables the chairman to be aware of proceedings in each such
venue; and
(iii) enables the Voting Secured Creditors in each such venue to vote
on a show of hands and on a poll.
A Voting Secured Creditor at one of the separate meeting venues is
taken to be present at the meeting of the Voting Secured Creditors
and is entitled to exercise all rights which a Voting Secured
Creditor has under the Security Trust Deed and this Annexure in
relation to a meeting of Voting Secured Creditors. Where a
meeting of Voting Secured Creditors is held at two or more meeting
venues pursuant to this clause [_]2(d), that meeting will be
regarded as having been held at the venue determined by the
chairman of the meeting.
(e) (Meetings only in accordance with the Security Trust Deed): A
meeting of Voting Secured Creditors may only be convened in
accordance with the Security Trust Deed and this Annexure.
3. Notice of Meetings
(a) (Notice): Subject to clauses [ ]2(c)(i) and 4, at least 14 days=
notice (inclusive of the day on which the notice is given and of the
day on which the meeting is held) of a meeting of the Voting Secured
Creditors must be given to the Voting Secured Creditors.
(b) (Accidental omission does not invalidate): The accidental omission
to give notice to or the non-receipt of notice by any Voting Secured
Creditor does not invalidate the proceedings at any meeting.
(c) (Copies of notices): A copy of a notice convening a meeting must be
given by the Security Trustee to the Manager and the Trustee.
(d) (Manner of notice): Notice of a meeting must be given in the manner
provided in the Security Trust Deed.
(e) (Details to be included in notice): A notice of a meeting of the
Voting Secured Creditors must specify:
(i) the day, time and place of the proposed meeting;
(ii) the reason for the meeting being convened;
(iii) the agenda of the business to be transacted at the meeting;
(iv) the terms of any proposed resolution;
(v) that appointments of proxies must be lodged no later than 24
hours prior to the time fixed for the meeting; and
(vi) such additional information as the person giving the notice
thinks fit.
4. Shorter Notice of Meeting
A meeting of the Voting Secured Creditors may be held on shorter notice
than provided by clause [ ]3 if so agreed by a resolution of Voting
Secured Creditors at the meeting who:
(a) (Majority in number): are a majority in number of Voting Secured
Creditors (present in person or by proxy) having the right to attend
and vote at the meeting; and
(b) (95% Voting Entitlements): hold or represent between them Voting
Entitlements comprising in aggregate a number of votes which is not
less than 95% of the aggregate number of votes comprised in all
Voting Entitlements at the time.
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5. Chairman
At a meeting of Voting Secured Creditors, some person (whether or not a
Secured Creditor or a representative of the Security Trustee) nominated
in writing by the Security Trustee must preside as chairman. If no such
nomination is made or no such nominated person is present within 15
minutes after the time appointed for the holding of the meeting, the
Voting Secured Creditors present must choose one of their number to be
chairman.
6. Quorum
At any such meeting, any 2 or more persons present in person holding, or
being Representatives holding or representing between them, in the
aggregate 67% or more of the aggregate number of votes comprised in all
Voting Entitlements at that time will form a quorum for the transaction
of business and no business (other than the choosing of a chairman) is to
be transacted at any meeting unless the requisite quorum is present at
the commencement of business.
7. Adjournment
(a) (Adjournment): If within 15 minutes from the time appointed for any
such meeting a quorum is not present, the meeting must, if convened
upon the requisition of Voting Secured Creditors, be dissolved. In
any other case it must stand adjourned (unless the Security Trustee
agrees that it be dissolved) for such period, not being less than 7
days nor more than 42 days, as may be appointed by the chairman. At
such adjourned meeting, two or more persons present in person
holding, or being Representatives holding or representing between
them, Voting Entitlements comprising in aggregate a number of votes
which is not less than 50% of the aggregate number of votes
comprised in all Voting Entitlements at the time must (except for
the purpose of passing an Extraordinary Resolution) form a quorum
and will have the power to pass any resolution and to decide upon
all matters which could properly have been dealt with at the
meetings from which the adjournment took place had a quorum been
present at such meeting. The quorum at any such adjourned meeting
for passing an Extraordinary Resolution will be as specified in
clause [ ]6.
(b) (Place and time of adjourned meeting): The chairman may with the
consent of (and must if directed by) any meeting adjourn the same
from time to time and from place to place but no business may be
transacted at any adjourned meeting except business which might
lawfully have been transacted at the meeting from which the
adjournment took place.
(c) (Notice of adjourned meeting): At least 5 days' notice of any
meeting adjourned through want of a quorum is to be given in the
same manner as of an original meeting and such notice must state the
quorum required at such adjourned meeting. It will not, however,
otherwise be necessary to give any notice of an adjourned meeting.
8. Voting Procedure
(a) (Casting votes): Every question submitted to a meeting must be
decided in the first instance by a show of hands and in case of
equality of votes the chairman must both on a show of hands and on a
poll have a casting vote in addition to the vote or votes (if any)
to which he or she may be entitled as a Voting Secured Creditor or
as a Representative.
(b) (Evidence of votes): At any meeting, unless a poll is (before or on
the declaration of the result of the show of hands) demanded by the
chairman, the Trustee, the Manager, the Class A-1 Note Trustee or
the Security Trustee or by one or more persons holding, or being
Representatives holding or representing between them, in aggregate a
number of votes which is not less than 2% of the
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aggregate number of votes comprised in all Voting Entitlements at
the time, a declaration by the chairman that a resolution has been
carried by a particular majority or lost or not carried by any
particular majority will be conclusive evidence of the fact without
proof of the number or proportion of the votes recorded in favour of
or against such resolution.
(c) (Polls): If at any meeting a poll is so demanded, it must be taken
in such manner and (subject to the provisions of this Annexure)
either at once or after such an adjournment as the chairman directs
and the result of such poll will be deemed to be the resolution of
the meeting at which the poll was demanded as at the date of the
taking of the poll. The demand for a poll must not prevent the
continuance of the meeting for the transaction of any business other
than the question on which the poll has been demanded. Any poll
demanded at any meeting on the election of a chairman or on any
question of adjournment must be taken at the meeting without
adjournment.
(d) (Voting by Secured Creditors):
(i) On a show of hands every Voting Secured Creditor who is
present in person or by proxy and has the right to vote at the
relevant meeting on that resolution has one vote except that
the Class A-1 Note Trustee has one vote for each then Class A-
1 Noteholder.
(ii) On a poll every Voting Secured Creditor who is present in
person or by proxy and has the right to vote has the number of
votes comprised in their Voting Entitlement.
(e) (Person May Cast Votes Differently): Any person entitled to more
than one vote need not use or cast all of the votes to which he or
she is entitled in the same way.
(f) (Voting by corporation): A corporation being a Voting Secured
Creditor may vote by any officer or representative duly authorised
in writing who is entitled to speak, demand a poll, vote, act as a
proxy and in all other respects exercise the rights of a Voting
Secured Creditor and must be reckoned as a Voting Secured Creditor
for all purposes.
(g) (Voting by person of unsound mind): A Voting Secured Creditor of
unsound mind or in respect of whom an order has been made by any
court having jurisdiction in respect of mental health may vote
whether on a show of hands or on a poll by his committee curator
bonis or other person in the nature of a committee curator bonis
appointed by such court.
(h) (Objection to voter's qualification): No objection is to be raised
as to the qualification of any voter except at the meeting or
adjourned meeting at which the vote objected to is given or tendered
and every vote not disallowed at such meeting will be valid for all
purposes. Any such objection made in due time will be referred to
the chairman of the meeting and his decision will be final and
conclusive.
9. Right to Attend and Speak
The Trustee, the Manager and the Security Trustee (through their
respective representatives) and their respective financial and legal
advisers will be entitled to attend and speak at any meeting of Voting
Secured Creditors. No person will otherwise be entitled to attend or
vote at any meeting of the Voting Secured Creditors or to join with
others in requesting the convening of such a meeting unless he or she is
a Voting Secured Creditor or is a Representative.
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10. Appointment of Proxies
(a) (Proxy): Each appointment of a proxy must be in writing and,
together (if required by the Security Trustee) with proof
satisfactory to the Security Trustee of its due execution, must be
deposited at the registered office of the Security Trustee or at
such other place designated by the Security Trustee not less than 24
hours before the time appointed for holding the meeting or adjourned
meeting at which the named proxy proposes to vote and in default,
the appointment of proxy will not be treated as valid unless the
chairman of the meeting decides otherwise before such meeting or
adjourned meeting proceeds to business. A notarially certified copy
of proof (if applicable) of due execution must if required by the
Security Trustee be produced by the proxy at the meeting or
adjourned meeting. The Security Trustee will be under no obligation
to investigate or be concerned with the validity of, or the
authority of, the proxy named in any such appointment. The proxy
named in any appointment of proxy need not be a Voting Secured
Creditor.
(b) (Proxy valid): Any vote given in accordance with the terms of an
appointment of proxy conforming with clause [ ]10(a) will be valid
notwithstanding the previous revocation or amendment of the
appointment of proxy or of any of the Voting Secured Creditor=s
instructions pursuant to which it was executed, provided that no
intimation in writing of such revocation or amendment has been
received by the Security Trustee at its registered office or by the
chairman of the meeting in each case not less than 24 hours before
the commencement of the meeting or adjourned meeting at which the
appointment of proxy is used.
11. Corporate Representatives
A person authorised under sections 250D of the Corporations Law by a
Voting Secured Creditor being a body corporate to act for it at any
meeting will, in accordance with his or her authority until his or her
authority is revoked by the body corporate concerned, be entitled to
exercise the same powers on behalf of that body corporate as that body
corporate could exercise if it were an individual Voting Secured Creditor
and will be entitled to produce evidence of his or her authority to act
at any time before the time appointed for the holding of or at the
meeting or adjourned meeting or for the taking of a poll at which he or
she proposes to vote.
12. Rights of Representatives
A Representative has the right to demand or join in demanding a poll and
(except and to the extent to which the Representative is specially
directed to vote for or against any proposal) has power generally to act
at a meeting for the Voting Secured Creditor concerned. The Security
Trustee and any officer of the Security Trustee may be appointed a
Representative.
13. Powers of a Meeting of Voting Secured Creditors
(a) (Powers): subject to clauses [ ]13(b) and 14 and, to the extent
applicable, the mandatory provisions of the United States Trust
Indenture Act of 1939, a meeting of Voting Secured Creditors has,
without prejudice to any rights or powers conferred on other persons
by the Security Trust Deed, power exercisable by Extraordinary
Resolution:
(i) to direct the Security Trustee in the action that should be
taken by it following the occurrence of an Event of Default;
(ii) to sanction any action that the Security Trustee or a
Receiver proposes to take to enforce the provisions of the
Security Trust Deed;
(iii) to sanction any proposal by the Manager, the Trustee or the
Security Trustee for any modification, abrogation, variation
or compromise of, or arrangement in respect of, the rights of
the Secured Creditors against the Trustee or the Manager
whether such rights arise under the
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Security Trust Deed, the other
Transaction Documents or otherwise;
(iv) to postpone the day when the Secured Moneys become payable
and to suspend or postpone for a time the payment of the
Secured Moneys;
(v) to sanction the exchange or substitution of the Secured
Moneys for, or the conversion of the Secured Moneys into,
notes or other obligations or securities of the Trustee or
any other body corporate formed or to be formed;
(vi) to assent to any modification of the provisions contained in
the Security Trust Deed or the Securities which will be
proposed by the Trustee, the Manager or the Security Trustee;
(vii) to give any authority, direction, guidance or sanction sought
by the Security Trustee from the Voting Secured Creditors;
(viii) to appoint any persons (whether Voting Secured Creditors or
not) as a committee or committees to represent the interests
of the Secured Creditors and to confer upon such committee or
committees any powers or discretions which the Voting Secured
Creditors could themselves exercise by Extraordinary
Resolution;
(ix) to approve a person proposed to be appointed as a Substitute
Security Trustee under the Security Trust Deed and power to
remove any Security Trustee for the time being thereof;
(x) to discharge or exonerate the Security Trustee from any
liability in respect of any act or omission for which it may
become responsible under the Security Trust Deed;
(xi) to do any other thing which under the Security Trust Deed is
required to be given by an Extraordinary Resolution of the
Voting Secured Creditors; and
(xii) to authorise the Security Trustee or any other person to
concur in and execute and do all such documents, acts and
things as may be necessary to carry out and give effect to
any Extraordinary Resolution.
(b) (Limitations): A meeting of Voting Secured Creditors does not have power
to, nor will any resolution submitted to the meeting propose or have the
effect of:
(i) removing the Security Trustee or the Manager from office, other than
in accordance with the terms of the Security Trust Deed or the
Series Supplement;
(ii) interfering with the management of the Series Trust;
(iii) winding up or terminating the Series Trust; or
(iv) disposing of, or otherwise dealing with, the Assets of the Series
Trust.
(c) (Class B Noteholders): No Extraordinary Resolution of a separate meeting of
the Class B Noteholders (other than one referred to in clause [ ]14(a))
shall be effective for any purpose unless:
(i) there are then no Senior Securities outstanding;
(ii) it has been sanctioned by an Extraordinary Resolution of the Voting
Secured Creditors representing or being the Senior Securityholders;
or
(iii) the Security Trustee is of the opinion that its becoming effective
will not be materially prejudicial to the interests of the Senior
Securityholders or any class of Senior Securityholders.
(d) (Assumptions): The Security Trustee is entitled to assume that a Class B
Basic Term Modification referred to in clause [ ]14(a) of this Annexure
will not be materially prejudicial to the interests of the Class B
Noteholders and that an Extraordinary Resolution of the Class B Noteholders
in clause [ ]13(c) will not be materially prejudicial to the interests of
the Senior Securityholders, if each of the Rating Agencies confirm in
writing that the Class B Basic Term Modification or the Extraordinary
Resolution (respectively) upon coming into effect will not lead to
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a reduction, qualification or withdrawal of the then rating by that
Rating Agency of the Class B Notes or any of the Senior Securities.
14. Extraordinary Resolution Binding on Secured Creditors
Subject to clause [ ]13(b), an Extraordinary Resolution of the Voting
Secured Creditors is binding upon all Secured Creditors and each of the
Secured Creditors, the Trustee, the Manager and the Security Trustee is
bound to give effect to the Extraordinary Resolution, provided that:
(a) (Class B Basic Term Modification): an Extraordinary Resolution of
the Voting Secured Creditors to sanction a Class B Basic Term
Modification will not be effective for any purpose unless its
becoming effective has been sanctioned by an Extraordinary
Resolution of the Class B Noteholders or the Security Trustee is of
the opinion that its becoming effective will not be materially
prejudicial to the interests of the Class B Noteholders;
(b) (Extraordinary Resolution affecting Class A-1 Noteholders): subject
to clause [ ]14(c) in the case of an Extraordinary Resolution
purporting to effect a Payment Modification (as defined in the Class
A-1 Note Trust Deed), an Extraordinary Resolution which by its
terms, in the opinion of the Class A-1 Note Trustee in accordance
with, and subject to, the Class A-1 Note Trust Deed, affects the
Class A-1 Noteholders only, or in a manner different to the rights
of Secured Creditors generally, or alters the terms of the Class A-1
Notes, or is materially prejudicial to the interests of the Class A-
1 Noteholders will not be effective unless a Special Majority (as
defined in the Class A-1 Note Trust Deed) of the Class A-1
Noteholders has consented, in accordance with the Class A-1 Note
Trust Deed, to such Extraordinary Resolution of the Voting Secured
Creditors or, if the Class A-1 Noteholders have become entitled to
attend a meeting of Voting Secured Creditors, the Class A-1
Noteholders at a separate meeting pass an Extraordinary Resolution
consenting to such Extraordinary Resolution of the Voting Secured
Creditors;
(c) (Payment Modification in relation to Class A-1 Notes): an
Extraordinary Resolution which by its terms effects or purports to
effect a Payment Modification (as that expression is defined in the
Class A-1 Note Trust Deed) will not be effective as against a given
Class A-1 Noteholder unless consented to by that Class A-1
Noteholder;
(d) (Extraordinary Resolution affecting Class A-2 Noteholders): an
Extraordinary Resolution, which by its terms, in the opinion of the
Security Trustee, affects the Class A-2 Noteholders only, or in a
manner different to the rights of the Secured Creditors generally,
or alters the terms of the Class A-2 Notes, or is materially
prejudicial to the interests of the Class A-2 Noteholders will not
be effective unless the Class A-2 Noteholders at a separate meeting
pass an Extraordinary Resolution consenting to such Extraordinary
Resolution of the Voting Secured Creditors;
(e) (Extraordinary Resolution affecting Redraw Bondholders): such an
Extraordinary Resolution, which by its terms, in the opinion of the
Security Trustee, affects the Redraw Bondholders only, or in a
manner different to the rights of the Secured Creditors generally,
or alters the terms of the Redraw Bonds, or is materially
prejudicial to the interests of the Redraw Bondholders will not be
effective unless the Redraw Bondholders at a separate meeting pass
an Extraordinary Resolution consenting to such Extraordinary
Resolution of the Voting Secured Creditors.
(f) (Extraordinary Resolution affecting other Secured Creditors): such
an Extraordinary Resolution which by its terms, in the opinion of
the Security Trustee, affects the Standby Redraw Facility Provider,
the Liquidity Facility Provider, a Hedge Provider and/or the Seller
(each in its capacity as a Secured
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Creditor) (a "Relevant Secured Creditor") only, or in a manner
different to the rights of Secured Creditors generally, or is
materially prejudicial to the interests of a Relevant Secured
Creditor will not be effective unless the Relevant Secured Creditor
consents in writing to the Extraordinary Resolution.
15. Minutes and Records
Minutes of all resolutions and proceedings at every meeting must be made
and duly entered in the books to be provided for that purpose by the
Security Trustee. Any such minutes if purporting to be signed by the
chairman of the meeting at which such resolutions were passed or
proceedings transacted or by the chairman of the next succeeding meeting
(if any) of Voting Secured Creditors, are conclusive evidence of the
matters stated in them. Until the contrary is provided, every such
meeting in respect of the proceedings of which minutes have been made and
signed are deemed to have been duly convened and held and all resolutions
passed and proceedings conducted at such meetings are deemed to have been
duly passed and conducted.
16. Written Resolutions
Notwithstanding the preceding provisions of this Annexure, a resolution
of all the Voting Secured Creditors or a class of Voting Secured
Creditors (including an Extraordinary Resolution of the Voting Secured
Creditors or a class of Voting Secured Creditors) may be passed, without
any meeting or previous notice being required, by an instrument or notes
in writing which have:
(a) in the case of a resolution (including an Extraordinary Resolution)
of all the Voting Secured Creditors, been signed by all the Voting
Secured Creditors and, in the case of a resolution (including an
Extraordinary Resolution) of a class of Voting Secured Creditors,
been signed by all the Voting Secured Creditors in the class; and
(b) any such instrument shall be effective upon presentation to the
Security Trustee for entry in the records referred to in clause
[ ]15.
17. Invalid Resolutions
Any resolution of the Voting Secured Creditors which purports to direct
the Security Trustee or a Receiver to take any action which would hinder
the performance of any party under the Master Trust Deed or a Transaction
Document (except to the extent that enforcement action is taken against
the Trustee or in respect of the Charged Property) is invalid.
18. Further Procedures for Meetings
Subject to all other provisions of the Security Trust Deed, the Security
Trustee may without the consent of the Voting Secured Creditors prescribe
such further regulations regarding the holding of meetings of the Voting
Secured Creditors and attendance and voting at such meetings as the
Security Trustee may in its sole discretion determine including
particularly (but without prejudice to the generality of the foregoing)
such regulations and requirements as the Security Trustee thinks
reasonable:
(a) (Regarding entitlement to vote): so as to satisfy itself that
persons who purport to attend or vote at any meeting of Voting
Secured Creditors are entitled to do so in accordance with this
Annexure and the other provisions of the Security Trust Deed; and
(b) (Regarding Representatives): as to the form of appointment of a
Representative.
19. Class of Secured Creditors
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The provisions of this Annexure apply, mutatis mutandis, to a meeting of
any class of Voting Secured Creditors under this Annexure or the Security
Trust Deed. If the Class A-1 Noteholders become entitled to attend a
meeting of Voting Secured Creditors or to have their own separate
meeting, the evidence of the entitlement of such Class A-1 Noteholders to
attend such meeting and to vote thereat, and any other relevant matters,
will be determined in accordance with the Class A-1 Note Trust Deed and
the Agency Agreement, with such amendments as determined by the Security
Trustee.
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