Exhibit 4.5.8


 


 


	
  Australian Borrower Charge

  
	
  (Project H)

  
	
   

  
	
  HA Funding Pty Limited

  
	
  ACN
  117 549 498

  
	
   

  
	
  and

  
	
   

  
	
  BNP Paribas

  
	
   

  
	
   

  
	
  

  
	
   

  
	
   

  
	
  MLC
  Centre Martin Place Sydney New South Wales 2000 Australia

  Telephone
  +61 2 9225 5000 Facsimile +61 2 9322 4000

  www.freehills.com
  DX 361 Sydney 

  
	
   

  
	
  SYDNEY
  MELBOURNE PERTH BRISBANE SINGAPORE

  Correspondent
  Offices HANOI HO CHI MINH CITY JAKARTA KUALA LUMPUR

  
	
   

  
	
  Reference
  WGG:36C

  



 

















 


Table of
contents


 


	
  Clause

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  1

  	
  Definitions and interpretation

  	
  1

  
	
   

  	
  1.1

  	
  Definitions

  	
  1

  
	
   

  	
  1.2

  	
  Interpretation

  	
  3

  
	
   

  	
  1.3

  	
  Incorporated
  definitions

  	
  5

  
	
   

  	
  1.4

  	
  Inclusive
  expressions

  	
  5

  
	
   

  	
  1.5

  	
  Security
  Trust Deed

  	
  5

  
	
   

  	
  1.6

  	
  Capacity
  of Chargee

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
  2

  	
  Charge

  	
  7

  
	
   

  	
  2.1

  	
  Charge

  	
  7

  
	
   

  	
  2.2

  	
  Priority

  	
  7

  
	
   

  	
  2.3

  	
  Nature
  of Charge

  	
  7

  
	
   

  	
  2.4

  	
  Crystallisation

  	
  8

  
	
   

  	
  2.5

  	
  De-crystallisation

  	
  8

  
	
   

  	
  2.6

  	
  Prospective
  liability

  	
  9

  
	
   

  	
  2.7

  	
  Designated
  Account, insurance policy proceeds and book debts

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
  3

  	
  Discharge of the Charge

  	
  10

  
	
   

  	
  3.1

  	
  Discharge

  	
  10

  
	
   

  	
  3.2

  	
  Automatic
  release

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  4

  	
  Representations and warranties, undertakings

  	
  11

  
	
   

  	
  4.1

  	
  Representations
  and warranties

  	
  11

  
	
   

  	
  4.2

  	
  Performance
  under Transaction Documents

  	
  11

  
	
   

  	
  4.3

  	
  Negative
  pledge

  	
  11

  
	
   

  	
  4.4

  	
  Payment
  of Secured Moneys

  	
  11

  
	
   

  	
  4.5

  	
  Chargor’s
  Business

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  5

  	
  Enforcement

  	
  12

  
	
   

  	
  5.1

  	
  When
  enforceable

  	
  12

  
	
   

  	
  5.2

  	
  Assistance
  in realisation

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  6

  	
  Receiver

  	
  12

  
	
   

  	
  6.1

  	
  Appointment
  of Receiver

  	
  12

  
	
   

  	
  6.2

  	
  Agency
  of Receiver

  	
  13

  
	
   

  	
  6.3

  	
  Powers
  of Receiver

  	
  13

  
	
   

  	
  6.4

  	
  Nature
  of Receiver’s Powers

  	
  15

  
	
   

  	
  6.5

  	
  Status
  of Receiver after commencement of winding-up

  	
  15

  
	
   

  	
  6.6

  	
  Powers
  exercisable by the Chargee

  	
  15

  
	
   

  	
  6.7

  	
  Set-off

  	
  16

  
	
   

  	
  6.8

  	
  Notice
  of exercise of rights

  	
  16

  
	
   

  	
  6.9

  	
  Termination
  of receivership and possession

  	
  16

  



 


1

















 


	
  7

  	
  Application and receipts of money

  	
  16

  
	
   

  	
  7.1

  	
  Order
  of application

  	
  16

  
	
   

  	
  7.2

  	
  Money
  actually received

  	
  17

  
	
   

  	
  7.3

  	
  Amounts
  contingently due

  	
  17

  
	
   

  	
  7.4

  	
  Notice
  of a subsequent Encumbrance

  	
  18

  
	
   

  	
  7.5

  	
  Chargee’s
  statement of indebtedness

  	
  18

  
	
   

  	
  7.6

  	
  Chargee’s
  receipts

  	
  18

  
	
   

  	
  7.7

  	
  Conversion
  of currencies on application

  	
  19

  
	
   

  	
  7.8

  	
  Amounts
  payable on demand

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  8

  	
  Power of attorney

  	
  19

  
	
   

  	
  8.1

  	
  Appointment
  of Attorney

  	
  19

  
	
   

  	
  8.2

  	
  Purposes
  of appointment

  	
  19

  
	
   

  	
  8.3

  	
  Delegation
  and substitution

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  9

  	
  Protection

  	
  20

  
	
   

  	
  9.1

  	
  Protection
  of third parties

  	
  20

  
	
   

  	
  9.2

  	
  Protection
  of the Chargee, Receiver and Attorney

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  10

  	
  Saving provisions

  	
  21

  
	
   

  	
  10.1

  	
  Statutory
  powers

  	
  21

  
	
   

  	
  10.2

  	
  Continuing
  security

  	
  21

  
	
   

  	
  10.3

  	
  No
  merger of security

  	
  21

  
	
   

  	
  10.4

  	
  Exclusion
  of moratorium

  	
  21

  
	
   

  	
  10.5

  	
  Conflict

  	
  22

  
	
   

  	
  10.6

  	
  Completion
  of blank securities

  	
  22

  
	
   

  	
  10.7

  	
  Principal
  obligations

  	
  22

  
	
   

  	
  10.8

  	
  No
  obligation to marshal

  	
  22

  
	
   

  	
  10.9

  	
  Non-avoidance

  	
  22

  
	
   

  	
  10.10

  	
  Increase
  in financial accommodation

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
  11

  	
  Third party provisions

  	
  23

  
	
   

  	
  11.1

  	
  Suspense
  account

  	
  23

  
	
   

  	
  11.2

  	
  Independent
  obligations

  	
  23

  
	
   

  	
  11.3

  	
  Unconditional
  nature of obligations

  	
  23

  
	
   

  	
  11.4

  	
  No
  competition

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
  12

  	
  General

  	
  26

  
	
   

  	
  12.1

  	
  Performance
  by Chargee of the Chargor’s obligations

  	
  26

  
	
   

  	
  12.2

  	
  Chargor
  to bear cost

  	
  26

  
	
   

  	
  12.3

  	
  Notices

  	
  26

  
	
   

  	
  12.4

  	
  Governing
  law and jurisdiction

  	
  27

  
	
   

  	
  12.5

  	
  Prohibition
  and enforceability

  	
  27

  
	
   

  	
  12.6

  	
  Waivers

  	
  27

  
	
   

  	
  12.7

  	
  Variation

  	
  28

  
	
   

  	
  12.8

  	
  Cumulative
  rights

  	
  28

  
	
   

  	
  12.9

  	
  Assignment

  	
  28

  
	
   

  	
  12.10

  	
  Counterparts

  	
  28

  



 


2

















 


	
   

  	
  12.11

  	
  Attorneys

  	
  28

  



 


3

















 


This
deed of charge


 


is made on 20 December 2005 between the following parties:


 


1.            HA Funding Pty Limited

ACN 117 549 498

of Level 6, 10 Dorcas Street, South Melbourne, Victoria

(Chargor)


 


2.            BNP Paribas

ABN 23 000 000 117

of Securitisation CAA 05 B1, 3 rue d’Antin, 75 078 Paris Cedex 02, France

(Chargee)


 


Recitals


 


A.           The Chargor is, or will be, the legal and beneficial owner of the
Charged Property.


 


B.            The Chargor has agreed to charge the Charged Property to secure the
payment of the Secured Moneys.


 


This
deed witnesses


 


that in consideration of, among other things, the
mutual promises contained in this deed, the parties agree:


 


1             Definitions and interpretation


 


1.1          Definitions


 


In this deed:


 


Accelerated
Event of Default means the occurrence of an
Event of Default which is continuing and has not been waived under the Bridge
Facility Agreement and which has resulted in the Facility Agent serving a
notice under clause [23.16(a)] of the Bridge Facility Agreement;


 


Attorney means an attorney appointed under this deed;


 


Beneficiary means a “Beneficiary” as defined in the Security Trust Deed;


 


Bridge
Facility Agreement means the Senior Bridge
Facilities Agreement between Hertz International, Ltd., the Original Borrowers
party thereto, the Original Guarantors party thereto, BNP Paribas and The Royal
Bank of Scotland PLC, as Mandated Lead Arrangers, CALYON, as Co-Arranger, BNP
Paribas, The Royal Bank of Scotland plc and CALYON, as Joint Bookrunners, BNP
Paribas as Facility Agent, Security Agent and Global Coordinator and the
Financial Institutions party thereto, as Banks ;


 


Charge means the security created by this deed;


 


Charged
Property means all of the present and future
undertaking, assets and rights of the Chargor including all real and personal
property, choses in action, goodwill, uncalled and called but unpaid capital;


 


1

















 


Corporations Act means the Corporations Act 2001 (Cth);


 


debt includes
debts owing by a bank or other financial institution, including in relation to
a current trading account;


 


Designated Account means the bank account opened by the Chargor in accordance with
clause 2.7;


 


Designated Bank means the bank with which the Designated Account is maintained;


 


Intellectual
Property Rights includes any patent, design,
trade mark, copyright, trade secret, confidential information and any right to
use, or to grant the use of, or to be the registered owner or user of, any of
them;


 


Marketable
Securities has the following meaning:


 


(a)           the meaning given to that expression in the Corporations Act;
and


 


(b)           any units (whatever called) in a trust estate which represent a
legal or beneficial interest in any of the income or assets of that trust
estate and includes any options to acquire any units as described;


 


Material
Document means:


 


(a)           the Purchase Deed; and


 


(b)           each other Transaction Document under and as defined in the Purchase
Deed;


 


Power means any right, power, authority, discretion or remedy conferred
on the Chargee, Receiver or Attorney by any Transaction Document or any
applicable law;


 


Principal
Agreement means:


 


(a)           the Bridge Facility Agreement; or


 


(b)           any other document which the Chargor and the Chargee agree, now or
in the future, is a Principal Agreement for the purposes of this deed;


 


Purchase
Deed means the deed entitled “Australian
Purchase Deed (Project H)” dated on or after the date of this deed between the
Chargor (as seller) and Hertz Australia Pty Limited (ABN 31 004 407 807) (as
purchaser), among others;


 


Receiver means a receiver or receiver and manager appointed under this deed;


 


Secured
Moneys means all debts and monetary
liabilities of the Chargor to the Beneficiaries or the Security Trustee on any
account under or in relation to any Transaction Document and in any capacity,
irrespective of whether the debts or liabilities:


 


(a)           are present or future;


 


(b)           are actual, prospective, contingent or otherwise;


 


(c)           are at any time ascertained or unascertained;


 


(d)           are owed or incurred by or on account of the Chargor alone or
severally or jointly with any other person;


 


2

















 


(e)           are owed to or incurred for the account of any Beneficiary or the
Security Trustee, alone, or severally, or jointly with any other person;


 


(f)            are owed to any other person as agent (whether disclosed or not) for
or on behalf of a Beneficiary or the Security Trustee;


 


(g)           are owed or incurred as principal, interest, fees, charges, Taxes,
damages (whether for breach of contract or tort or incurred on any other
ground), losses, costs or expenses, or on any other account;


 


(h)           are owed to or incurred for the account of a Beneficiary directly or
as a result of:


 


(1)           the assignment or transfer to a Beneficiary of any debt or liability
of the Chargor (whether by way of assignment, transfer or otherwise); or


 


(2)           any other dealing with any such debt or liability;


 


(i)            are owed to or incurred for the account of a Beneficiary or the
Security Trustee before the date of this deed or before the date of any
assignment of this deed to any Beneficiary or the Security Trustee by any other
person or otherwise; or


 


(j)            comprise any combination of the above;


 


Security Trust means the trust established under the Security Trust Deed;


 


Security
Trust Deed means the security trust deed
dated on or before the date of this deed between the Chargor and others and the
Chargee as security trustee constituting the Security Trust;


 


Title
Document means any original, duplicate or
counterpart certificate or document of title including any real property
certificate of title or any share certificate;


 


Transaction Document means:


 


(a)           this deed;


 


(b)           the Security Trust Deed;


 


(c)           the Principal Agreement;


 


(d)           any other Transaction Document as defined in the Security Trust
Deed;


 


(e)           any
document which the Chargor and the Chargee agree, now or in the future, is a
Transaction Document for the purposes of this deed,


 


or any document or agreement entered into or given
under any of the above; and


 


Transaction Party means:


 


(a)           the Chargor; or


 


(b)           any other Transaction Party as defined in a Transaction Document.


 


1.2          Interpretation


 


In this deed, headings and bold type are for convenience only and do
not affect the interpretation of this deed and, unless the context requires
otherwise:


 


3

















 


(a)           words importing the singular include the plural and vice versa;


 


(b)           words importing a gender include any gender;


 


(c)           other parts of speech and grammatical forms of a word or phrase
defined in this deed have a corresponding meaning;


 


(d)           an expression suggesting or referring to a natural person or an
entity includes any company, partnership, joint venture, association,
corporation or other body corporate and any Government Agency;


 


(e)           a reference to any thing (including any right) includes a part of
that thing but nothing in this clause 1.2(e) implies that performance
of part of an obligation constitutes performance of the obligation;


 


(f)            a reference to a clause, party, annexure, exhibit or schedule is
a reference to a clause of, and a party, annexure, exhibit and schedule to,
this deed and a reference to this deed includes any annexure, exhibit and
schedule;


 


(g)           a reference to a statute, regulation, proclamation, ordinance or by-law
includes all statutes, regulations, proclamations, ordinances or by-laws
amending, consolidating or replacing it, whether passed by the same or another
Government Agency with legal power to do so, and a reference to a statute
includes all regulations, proclamations, ordinances and by-laws issued under
that statute;


 


(h)           a reference to a document includes all amendments or supplements to,
or replacements or novations of, that document;


 


(i)            a reference to liquidation includes official management, appointment
of an administrator, compromise, arrangement, merger, amalgamation,
reconstruction, winding-up, dissolution, deregistration, assignment for the
benefit of creditors, scheme, composition or arrangement with creditors,
insolvency, bankruptcy, or any similar procedure or, where applicable, changes
in the constitution of any partnership or person, or death;


 


(j)            a reference to a party to any document includes that party’s
successors and permitted assigns;


 


(k)           a reference to an agreement other than this deed includes an
undertaking, deed, agreement or legally enforceable arrangement or
understanding whether or not in writing;


 


(l)            a reference to an asset includes all property of any nature,
including a business, and all rights, revenues and benefits;


 


(m)          a reference to a document includes any agreement in writing, or any
certificate, notice, deed, instrument or other document of any kind;


 


(n)           no provision of this deed may be construed adversely to a party
solely on the ground that the party was responsible for the preparation of this
deed or that provision; and


 


(o)           a covenant or agreement on the part of two or more persons
binds them jointly and severally;


 


(p)           a reference to a body, other than a party to this deed (including an
institute, association or authority), whether statutory or not:


 


4

















 


(1)           which ceases to exist; or


 


(2)           whose powers or functions are transferred to another body,


 


is a reference to the body which replaces it or which substantially
succeeds to its powers or functions;


 


(q)           an Event of Default is continuing if it has not been remedied to the
satisfaction of the Facility Agent (acting reasonably) or expressly waived in
writing by the Facility Agent; and


 


(r)            references to time are to Sydney time.


 


1.3          Incorporated
definitions


 


(a)           A word or phrase (other than one defined in clause 1.1) defined
in the Principal Agreement or in the Security Trust Deed has the same meaning
in this deed.


 


(b)           If a word of phrase is defined in both the Principal Agreement and
the Security Trust Deed the definition in the Security Trust Deed prevails to
the extent of any inconsistency.


 


1.4          Inclusive
expressions


 


Specifying anything in this deed after the words “includes” or “for
example” or similar expressions does not limit what else is included unless
there is express wording to the contrary.


 


1.5          Security
Trust Deed


 


This deed is a “Security” and a “Transaction Document” for the purposes
of the Security Trust Deed.


 


1.6          Capacity
of Chargee


 


(a)           The Chargee enters into this deed only in its capacity as trustee of
the Security Trust and in no other capacity. A liability arising under or in
connection with this deed is limited to and can be enforced against the Chargee
only to the extent to which it can be satisfied out of the assets of the
Security Trust out of which the Chargee is actually indemnified for the
liability. This limitation of the Chargee’s liability applies despite any other
provision of this deed (other than clause 1.6(c)) and extends to all
liabilities and obligations of the Chargee in any way connected with any
representation, warranty, conduct, omission, agreement or transaction related
to this deed.


 


(b)           The parties (other than the Chargee) may not sue the Chargee in
any capacity other than as trustee of the Security Trust, including seek the
appointment of a receiver (except in relation to property of the Security
Trust), a liquidator, an administrator or any similar person to the Chargee or
prove in any liquidation, administration or arrangement of or affecting the
Chargee (except in relation to property of the Security Trust).


 


(c)           The provisions of this clause 1.6 shall not apply to any
obligation or liability or the Chargee to the extent that it is not satisfied
because under 


 


5

















 


the Security Trust Deed or by operation of law there is a reduction in
the extent of the Chargee’s indemnification out of the assets of the Security
Trust, as a result of the Chargee’s fraud, negligence or wilful default.


 


(d)           No act or omission of the Chargee (including any related failure to
satisfy its obligations or breach of representation or warranty under this
deed) will be considered fraud, negligence or wilful default of the Chargee for
the purpose of clause 1.6(c) to the extent to which the act or
omission was caused or contributed to by any failure by any other person other
than a delegate of the Chargee appointed under the Security Trust Deed to
fulfil its obligations relating to the Security Trust or by any other act or
omission of any other person other than a delegate of the Chargee appointed
under the Security Trust Deed.


 


(e)           No attorney, agent, delegate, receiver or receiver and manager
appointed under this deed has authority to act on behalf of the Chargee in a
way which exposes the Chargee to any personal liability and no act or omission
of any such person will be considered fraud, negligence or wilful default of
the Chargee for the purpose of clause 1.6(c).


 


(f)            The Chargee is not obliged to do or refrain from doing anything
under this deed (including incur any liability) unless the Chargee’s liability
is limited in the same manner as set out in clauses 1.6(a) to 1.6(c) inclusive).


 


1.7          Limited
recourse


 


(a)           Subject to clause 1.7(d) but despite any other provision of
this deed, the Chargor is only obliged to pay any amount otherwise payable
under or in relation to this deed to the extent that the amount can be
satisfied out of the Charged Property.


 


(b)           Subject to clause 1.7(d) but despite any other provision of
this deed, the Security Trustee must not:


 


(1)           take any action against the Chargor personally to recover any part of
the Secured Moneys which cannot be recovered out of the Charged Property; or


 


(2)           levy execution or bring any other proceedings (other than to enforce
a Transaction Document) against any property of the Chargor which does not form part of
the Charged Property to recover any part of the Secured Moneys.


 


(c)           Clause 1.7(b) operates as a covenant not to sue and not as a
release, and may be pleaded in bar to any action brought in breach of it.


 


(d)           Nothing in this clause 1.7 affects the rights of the Security
Trustee or the liability of the Chargor with respect to fraud, gross negligence
or wilful misconduct by the Chargor.


 


6

















 


2             Charge


 


2.1          Charge


 


The Chargor charges all of its interest in the Charged Property to the
Chargee as security for the due and punctual payment of the Secured Moneys.


 


2.2          Priority


 


The parties intend that the Charge take priority over all other
Encumbrances of the Chargor other than any Encumbrance mandatorily preferred by
law.


 


2.3          Nature
of Charge


 


The Charge is:


 


(a)           a fixed charge over all the Chargor’s present and future interest
under:


 


(1)           any freehold or leasehold property or any other interest in real
property including fixtures;


 


(2)           any machinery, plant or equipment (other than stock in trade);


 


(3)           any uncalled or called but unpaid capital of the Chargor;


 


(4)           any Encumbrance over any real or personal property or any Guarantee;


 


(5)           any Title Document and any other documents evidencing a right to the
possession of any real or personal property;


 


(6)           any partnership in which the Chargor is a partner;


 


(7)           any joint venture in which the Chargor is a joint venturer;


 


(8)           any insurance policy in relation to the Charged Property but not the
proceeds from that insurance policy;


 


(9)           any Marketable Securities;


 


(10)         any Intellectual Property Rights;


 


(11)         any book debt or other debt but not the proceeds of any such debt;


 


(12)         books of account, registers, minute books, statements, invoices,
accounting and other records, however recorded, and all software;


 


(13)         other assets not acquired by the Chargor for disposal in the
ordinary course of the ordinary business of the Chargor;


 


(14)         the Designated Account and any chose in action in respect of the
Designated Account; and


 


(15)         each Material Document and any rights
of the Chargor under each Material Document; and


 


(b)           a floating charge over all other Charged Property.


 


7

















 


2.4          Crystallisation


 


The floating charge created in clauses 2.1 and 2.3 automatically
and immediately crystallises and becomes fixed:


 


(a)           without the Chargee giving any notice to the Chargor, in respect of
all of the Charged Property:


 


(1)           when a Receiver or any other receiver or receiver and manager is
appointed in respect of any of the Charged Property;


 


(2)           when the Charge or any other Encumbrance over any of the Charged
Property is enforced in any other way; or


 


(3)           when an order is made or a resolution is passed for the liquidation
of the Chargor;


 


(b)           without the Chargee giving any notice to the Chargor, in respect of
a particular asset of the Charged Property:


 


(1)           when the Chargor breaches clause 4.3 in respect of that asset;


 


(2)           when any step is taken to issue, levy or enforce any distress,
attachment, execution or other process against or upon that asset;


 


(3)           when any Encumbrance over that asset is, or becomes capable of
being, enforced or any floating Encumbrance over that asset crystallises or
otherwise becomes a fixed Encumbrance;


 


(4)           when a notice which affects that asset is issued, signed or given
under Subdivision 260-A of Schedule 1 of the Taxation Administration
Act 1953 (Cth) by, or on behalf of, the Commissioner of Taxation or the
Deputy Commissioner of Taxation, or under any similar legislation; or


 


(5)           when any thing occurs which may result in any amounts,
including Tax or moneys owing to employees, ranking ahead of the floating
charge with respect to that asset; and


 


(c)           in respect of any asset including the proceeds of any book debt or
other debt or other moneys now or in the future payable to the Chargor, when
the Chargee gives notice in respect of that asset to the Chargor upon or any
time after the occurrence of a Default.


 


2.5          De-crystallisation


 


(a)           Where an asset has become subject to a fixed charge under
clause 2.4, the Chargee may release the asset from that fixed charge
by notice in writing to the Chargor.


 


(b)           When an asset is released from the fixed charge under
clause 2.5(a), the asset will again be subject to:


 


(1)           the floating charge under clauses 2.1 and 2.3; and


 


(2)           the further operation of clause 2.4.


 


8

















 


2.6          Prospective
liability


 


(a)           The parties acknowledge that the maximum amount of the prospective
liability secured by this deed, for the purposes of establishing priority under
section 282(3) of the Corporations Act, is A$500,000,000.


 


(b)           The Chargee may from time to time lodge a notice under section 268(2) of
the Corporations Act on behalf of the Chargor specifying an increase in the
maximum amount of the prospective liability referred to in clause 2.6(a) and
from the date of lodgment the amount specified in clause 2.6(a) is to
be regarded as varied to the amount specified in that notice.


 


(c)           Neither clause 2.6(a) nor clause 2.6(b) in any
way affects or limits the actual amount of
Secured Moneys which may in fact be secured by the Charge.


 


(d)           Clauses 2.6(a), (b) and (c) are to be construed
independently of each other.


 


2.7          Designated
Account, insurance policy proceeds and book debts


 


(a)           If an Event of Default occurs and is continuing, the Chargee may require
the Chargor to open and maintain a Designated Account at a bank and branch
approved by the Chargee on terms that:


 


(1)           nominated Officers of the Chargee must be signatories to the
Designated Account; and


 


(2)           no withdrawals can be made from the Designated Account without the
signature of one of those Officers.


 


(b)           If an Event of Default occurs and is continuing, the Chargor must
immediately and until notified otherwise by the Chargee deposit in the Designated
Account any proceeds the Chargor receives under any insurance policy in
relation to the Charged Property or any book debt or other debt in respect of
which the floating charge has crystallised.


 


(c)           Clause 2.7(b) does not apply to proceeds received from any
workers’ compensation or public liability policy or reinstatement policy to the
extent that the proceeds are paid to a person:


 


(1)           entitled to be compensated under the workers’ compensation or public
liability policy; or


 


(2)           under a contract for the reinstatement of the Charged Property.


 


(d)           The Chargor must give all notices and directions and execute all
necessary documents as requested by the Chargee to ensure clauses 2.7(a) and
(b) are complied with.


 


(e)           A Power created under this clause 2.7 is not waived by any
failure or delay in exercise, or by the partial exercise, of that Power.


 


(f)            If a Power arising under this clause 2.7 is waived, the fixed
charge created by this deed in respect of the relevant book debt, other debt,
insurance policy or other relevant asset continues to operate as a fixed
charge.


 


9

















 


(g)           The Chargor must:


 


(1)           give notice to the Designated Bank of the charge of the Designated
Account; and


 


(2)           obtain an acknowledgment from the Designated Bank of that charge and
the notice.


 


(h)           The Chargor must obtain an agreement from the Designated Bank that:


 


(1)           it will not repay any money in the Designated Account to the Chargor
or any other person without the prior written consent of the Chargee;


 


(2)           it waives all rights of set-off and combination in respect of the
Designated Account;


 


(3)           it must not exercise an Encumbrance in respect of the Designated
Account; and


 


(4)           the agreement of the Designated Bank must not be varied or terminated
without the prior written consent of the Chargee (which consent will not be
unreasonably withheld or delayed).


 


3             Discharge of the Charge


 


3.1          Discharge


 


The Chargee must discharge from the Charge the Charged Property, or any
part of it as appropriate, if any of the following events occur:


 


(a)           the Secured Moneys are discharged in full and the Chargee is under
no further actual or contingent obligation to provide financial accommodation
to the Chargor or any other person under any Transaction Document;


 


(b)           the Chargor ceases
to be a borrower under the Bridge Facility Agreement and any Take-Out Financing
(as defined in the Bridge Facility Agreement) which is secured by the same
Australian Securities (as defined in the Bridge Facility Agreement) and the
Chargor requests such discharge and pays to the Chargee the cost of discharge and any Secured Moneys outstanding at that time; or


 


(c)           to facilitate any disposal, sale or disposition permitted under the
Bridge Facility Agreement including, for the avoidance of doubt, any sale or
other disposition of any property pursuant to a merger, consolidation,
reorganisation, winding-up, securitisation, Take-Out Financing or sale and
leaseback permitted under the Bridge Facility Agreement to the extent necessary
to ensure such merger, consolidation, reorganisation, winding-up,
securitisation, Take-Out Financing or sale and leaseback takes place (a Permitted Disposal).


 


3.2          Automatic
release


 


Where the disposal, sale or disposition of property forming part of
the Charged Property is a Permitted Disposal, the relevant property will be
deemed to be 


 


10

















 


automatically released from the Charge with effect from the day of such
disposal and the Chargee will (at the cost of the Chargor) do all such acts as
are reasonably requested by the Chargor in order to release such property.


 


4             Representations and warranties, undertakings


 


4.1          Representations
and warranties


 


(a)           The Chargor represents and warrants to and for the benefit of the
Chargee and each Beneficiary that all its representations and warranties in
each Transaction Document are, or will be, true and correct in all respects
when made or regarded as having been made.


 


(b)           The Chargor further represents and warrants that:


 


(1)           as at the date of execution of this deed all of the Charged Property
is located, or taken for stamp duty purposes to be located, in Victoria; and


 


(2)           its only issued share capital consists of 100 ordinary shares.


 


(c)           The Chargor acknowledges that it has not entered into this deed or
any other Transaction Document in reliance on any representation, warranty,
promise or statement of the Chargee or of any person on behalf of the Chargee.


 


4.2          Performance
under Transaction Documents


 


(a)           The Chargor must fully and punctually perform its obligations
under the Transaction Documents.


 


(b)           The Chargor must ensure that no Event of Default occurs. Without
affecting the liability of the Chargor or the Powers in any other respect
(including where a breach of this clause 4.2(b) is also a breach of
another provision of a Transaction Document), the Chargor is not liable in
damages for breach of this clause 4.2(b) but, subject to clause 5.1,
the Chargee may exercise its Powers consequent upon or following that
breach.


 


4.3          Negative
pledge


 


The Chargor must not:


 


(a)           create or allow to exist or agree to any Encumbrance over; or


 


(b)           sell, assign, transfer or otherwise dispose of or part with
possession of,


 


any of the Charged Property except to the extent expressly permitted by
the Bridge Facility Agreement.


 


4.4          Payment
of Secured Moneys


 


The Chargor must pay or repay the Secured Moneys owed by the Chargor to
the Chargee or any Beneficiary in accordance with this deed, each other
Transaction 


 


11

















 


Document and each other obligation under which the Secured Moneys are
payable by the Chargor.


 


4.5          Chargor’s
Business


 


The Chargor must not undertake any business or acquire any asset other
than as contemplated by the Transaction Documents.


 


5             Enforcement


 


5.1          When
enforceable


 


(a)           Upon the occurrence of an Accelerated Event of Default, the Charge
and each Collateral Security are immediately enforceable without the need for
any demand or notice to be given to the Chargor or any other person.


 


(b)          Upon the occurrence of an Accelerated Event of Default, the Secured
Moneys are immediately due and payable by the Chargor without the need for any
demand or notice to be given to the Chargor or any other person other than a
notice expressly required by a Transaction Document.


 


5.2          Assistance
in realisation


 


After the occurrence of an Accelerated Event of Default, the Chargor
must take all action required by the Chargee, Receiver or Attorney to assist
any of them to realise the Charged Property and exercise any Power including:


 


(a)           executing all transfers, conveyances, assignments and assurances of
any of the Charged Property;


 


(b)           doing anything necessary or desirable under the law in force in any
place where the Charged Property is situated;


 


(c)           giving all notices, orders, directions and consents which the
Chargee, Receiver or Attorney thinks expedient; and


 


(d)           doing anything necessary:


 


(1)           for a call to be made on the uncalled capital of the Chargor; or


 


(2)           to collect all called but unpaid capital of the Chargor.


 


6             Receiver


 


6.1          Appointment
of Receiver


 


Upon the occurrence of an Accelerated Event of Default or at any time
thereafter, the Chargee may:


 


(a)           appoint any person or any 2 or more persons jointly, or
severally, or jointly and severally to be a receiver or a receiver and manager
of the Charged Property;


 


12

















 


(b)           remove any Receiver and on the removal, retirement or death of any
Receiver, appoint another Receiver; and


 


(c)           fix the remuneration and direct payment of that remuneration and any
costs, charges and expenses of the Receiver out of the proceeds of any
realisation of the Charged Property.


 


6.2          Agency
of Receiver


 


(a)           Subject to clause 6.5, each Receiver is the agent of the Chargor.


 


(b)           The Chargor is responsible for the acts, defaults and remuneration
of the Receiver.


 


6.3          Powers
of Receiver


 


Subject to any express exclusion by the terms of the Receiver’s
appointment, the Receiver has, in addition to any powers conferred on the
Receiver by applicable law, and whether or not in possession of the Charged
Property or any part of it, the following powers:


 


(a)           manage, possession or control: to manage, enter into possession or assume control of any of the
Charged Property;


 


(b)           lease or licence: to
accept the surrender of, determine, grant or renew any lease or licence in
respect of the use or occupation of any of the Charged Property:


 


(1)           on any terms or special conditions that the Chargee or Receiver
thinks fit; and


 


(2)           in conjunction with the sale, lease or licence of any other property
by any person;


 


(c)           sale: to sell or
concur in selling any of the Charged Property to any person:


 


(1)           by auction, private treaty or tender;


 


(2)           on such terms and special conditions as the Chargee or the Receiver
thinks fit;


 


(3)           for cash or for a deferred payment of the purchase price, in whole
or in part, with or without interest or security;


 


(4)           in conjunction with the sale of any property by any other person;
and


 


(5)           in one lot or in separate parcels;


 


(d)           grant options to purchase: to grant to any person an option to purchase any of the Charged
Property;


 


(e)           acquire property: to
acquire any interest in any property, in the name or on behalf of the Chargor,
which on acquisition forms part of the Charged Property;


 


(f)            carry on business: to
carry on or concur in carrying on any business of the Chargor in respect of the
Charged Property;


 


13

















 


(g)           borrowings and security:


 


(1)           to raise or borrow any money, in its name or the name or on behalf
of the Chargor, from the Chargee or any person approved by the Chargee in
writing; and


 


(2)           to secure money raised or borrowed under clause 6.3(g)(1) by
an Encumbrance over any of the Charged Property, ranking in priority to, equal
with, or after, the Charge or any Collateral Security;


 


(h)           maintain or improve Charged Property: to do anything to maintain, protect or improve any of the Charged
Property including completing, repairing, erecting a new improvement on,
demolishing or altering any of the Charged Property;


 


(i)            income and bank accounts: to do anything to manage or obtain income or revenue from any of
the Charged Property including operating any bank account which forms part of
the Charged Property or opening and operating a new bank account;


 


(j)            access to Charged Property: to have access to any of the Charged Property, the premises at
which the business of the Chargor is conducted and any of the administrative
services of the business of the Chargor;


 


(k)           insure Charged Property: to insure any of the Charged Property;


 


(l)            sever fixtures: to
sever fixtures in respect of any of the Charged Property;


 


(m)          compromise: to make or
accept any compromise or arrangement;


 


(n)           surrender Charged Property: to surrender or transfer any of the Charged Property to any
person;


 


(o)           exchange Charged Property: to exchange with any person any of the Charged Property for any
other property whether of equal value or not;


 


(p)           employ or discharge:
to employ or discharge any person as an employee, contractor, agent,
professional advisor or auctioneer for any of the purposes of this deed;


 


(q)           delegate: to delegate
to any person any Power of the Receiver;


 


(r)            perform or enforce documents: to observe, perform, enforce, exercise or refrain from exercising
any right, power, authority, discretion or remedy of the Chargor under, or
otherwise obtain the benefit of:


 


(1)           any document, agreement or right which attaches to or forms part of
the Charged Property; and


 


(2)           any document or agreement entered into in exercise of any Power by
the Receiver;


 


(s)           receipts: to give
effectual receipts for all moneys and other assets which may come into the
hands of the Receiver;


 


(t)            take proceedings: to
commence, discontinue, prosecute, defend, settle or compromise in its name or
the name or on behalf of the Chargor, any proceedings including proceedings in
relation to any insurance in respect of any of the Charged Property;


 


14

















 


(u)           insolvency proceedings:
to make any debtor bankrupt, wind-up any company, corporation or other entity
and do all things in relation to any bankruptcy or winding-up which the
Receiver thinks necessary or desirable including attending and voting at
creditors’ meetings and appointing proxies for those meetings;


 


(v)           execute documents: to
enter into and execute any document or agreement in the name of the Receiver or
the name or on behalf of the Chargor including bills of exchange, cheques or
promissory notes for any of the purposes of this deed;


 


(w)          make calls: to make
calls on any member of the Chargor in respect of uncalled capital of the
Chargor;


 


(x)            vote: to exercise any
voting rights or powers in respect of any part of the Charged Property;


 


(y)           collect called capital:
to collect or enforce payment of any called but unpaid capital of the Chargor
whether or not the calls were made by the Receiver;


 


(z)            incidental power: to
do anything necessary or incidental to the exercise of any Power of the
Receiver.


 


6.4          Nature
of Receiver’s Powers


 


The Powers of the Receiver must be construed independently and no one
Power limits the generality of any other Power. Any dealing under any Power of
the Receiver will be on the terms and conditions the Receiver thinks fit.


 


6.5          Status
of Receiver after commencement of winding-up


 


(a)           The power to appoint a Receiver under clause 6.1 may be
exercised even if, at the time an Accelerated Event of Default occurs or at the
time a Receiver is appointed, an order has been made or a resolution has been
passed for the winding-up of the Chargor.


 


(b)           If for any reason, including operation of law, a Receiver:


 


(1)           appointed in the circumstances described in clause 6.5(a); or


 


(2)           appointed at any other time,


 


ceases to be the agent of the Chargor as a result of an order being
made or a resolution being passed for the winding-up of the Chargor, then the
Receiver immediately becomes the agent of the Chargee. In such case the
Receiver will be the agent of the Mortgagee in its capacity as Security Trustee
only.


 


6.6          Powers
exercisable by the Chargee


 


(a)           Whether or not a Receiver is appointed under clause 6.1, the
Chargee may, upon the occurrence of an Accelerated Event of Default or at any
time thereafter and without giving notice to any person, exercise any Power of
the Receiver in addition to any Power of the Chargee.


 


15

















 


(b)           The exercise of any Power by the Chargee, Receiver or Attorney does
not cause or deem the Chargee, Receiver or Attorney:


 


(1)           to be a mortgagee in possession;


 


(2)           to account as mortgagee in possession; or


 


(3)           to be answerable for any act or omission for which a mortgagee in
possession is liable.


 


6.7          Set-off


 


If any Accelerated Event of Default occurs, the Chargee is entitled to
apply any credit balance in any of the Chargor’s accounts with the Chargee in
and towards satisfaction of any of the Secured Moneys.


 


6.8          Notice
of exercise of rights


 


The Chargee, Receiver or Attorney is not required:


 


(a)           to give notice of the Charge or any Collateral Security to any
debtor or creditor of the Chargor or to any other person;


 


(b)           to enforce payment of any money payable to the Chargor including any
of the debts or monetary liabilities charged by this deed or by any Collateral
Security; or


 


(c)           to obtain the consent of the Chargor to any exercise of a Power.


 


6.9          Termination
of receivership and possession


 


The Chargee may, at any time, terminate the appointment of a Receiver
and may, at any time, give up, or re-take, possession of the Charged Property.


 


7             Application and receipts of money


 


7.1          Order
of application


 


(a)           At any time after the occurrence of an Accelerated Event of Default,
all money received by the Chargee, Receiver, Attorney or any other person
acting on their behalf under this deed or any Collateral Security may be
appropriated and applied towards any amount and in any order that the Chargee,
Receiver, Attorney or that other person determines in its absolute discretion,
to the extent not prohibited by law.


 


(b)           Failing a determination under clause 7.1(a), the money must be
applied in the following manner and order:


 


(1)           first, in payment of all amounts which, to the extent required by
law, have priority over the payments specified in the balance of
clause 7.1(b);


 


(2)           second, in payment of all costs, charges and expenses (including any
GST) of the Chargee, Receiver or Attorney incurred in or 


 


16

















 


incidental to the exercise or performance or attempted
exercise or performance of any Power;


 


(3)           third, in payment of any other outgoings the Chargee, Receiver or
Attorney thinks fit to pay;


 


(4)           fourth, in payment to the Receiver of his remuneration;


 


(5)           fifth, in payment and discharge, in order of their priority, of any
Encumbrances of which the Chargee, Receiver or Attorney is aware and which have
priority to the Charge;


 


(6)           sixth, in payment to the Chargee towards satisfaction of the Secured
Moneys and applied against interest, principal or any other amount the Chargee,
Receiver or Attorney thinks fit;


 


(7)          seventh, in payment only to the extent required by law, in order of
their priority, of other Encumbrances in respect of the Charged Property of
which the Chargee, Receiver or Attorney is aware and which are due and payable
in accordance with their terms; and


 


(8)          eighth, in payment of the surplus, if any, without interest to the
Chargor. The Chargee, Receiver or Attorney may pay the surplus to the
credit of an account in the name of the Chargor in the books of any bank
carrying on business within Australia and having done so is under no further
liability in respect of that surplus.


 


7.2          Money
actually received


 


In applying any money towards satisfaction of the Secured Moneys the
Chargor is to be credited only with so much of the money which is available for
that purpose (after deducting any GST imposed) and which is actually received
by the Chargee, Receiver or Attorney. The credit dates from the time of
receipt.


 


7.3          Amounts
contingently due


 


(a)           If at the time of a distribution of any money under clause 7.1
any part of the Secured Moneys is contingently owing to the Chargee or a
Beneficiary, the Chargee, Receiver or Attorney may retain an amount equal
to the amount contingently owing or any part of it.


 


(b)           If the Chargee, Receiver or Attorney retains any amount under
clause 7.3(a) it must place that amount on short-term interest
bearing deposit until the amount contingently owing becomes actually due and
payable or otherwise ceases to be contingently owing at which time the Chargee,
Receiver or Attorney must:


 


(1)           pay to the Chargee the amount which has become actually due to it;
and


 


(2)           apply the balance of the amount retained, together with any interest
on the amount contingently owing, in accordance with clause 7.1.


 


17

















 


7.4          Notice
of a subsequent Encumbrance


 


(a)           If the Chargee receives actual or constructive notice of a
subsequent Encumbrance, the Chargee:


 


(1)           may open a new account in the name of the Chargor in its books;
or


 


(2)           is regarded as having opened a new account in the name of the
Chargor in its books,


 


on the date it received or was regarded as having received notice of
the subsequent Encumbrance.


 


(b)           From the date on which that new account is opened or regarded as
opened:


 


(1)           all payments made by the Chargor to the Chargee; and


 


(2)           all financial accommodation and advances by the Chargee to the
Chargor,


 


are or are regarded as credited and debited, as the case may be,
to the new account.


 


(c)           The payments by the Chargor under clause 7.4(b) must be
applied:


 


(1)           first, in reduction of the debit balance, if any, in the new
account; and


 


(2)           second, if there is no debit balance in the new account, in
reduction of the Secured Moneys which have not been debited or regarded as
debited to the new account.


 


7.5          Chargee’s
statement of indebtedness


 


A certificate signed by any Officer of the Chargee stating:


 


(a)           the amount of the Secured Moneys due and payable; or


 


(b)           the amount of the Secured Moneys, whether currently due and payable
or not,


 


is sufficient evidence of that amount as at the date stated on the
certificate, or failing that as at the date of the certificate, unless the
contrary is proved.


 


7.6          Chargee’s
receipts


 


(a)           The receipt of any Officer of the Chargee for any money payable to
or received by the Chargee under this deed exonerates the payer from all
liability to enquire whether any of the Secured Moneys have become payable.


 


(b)           Every receipt of an Officer of the Chargee effectually discharges
the payer from:


 


(1)           any future liability to pay the amount specified in the receipt; and


 


(2)           being concerned to see to the application of, or being answerable or
accountable for any loss or misapplication of, the amount specified in the
receipt.


 


18

















 


7.7          Conversion
of currencies on application


 


In making an application under clause 7.1, the Chargee, Receiver
or Attorney may itself, or through its bankers, purchase one currency with
another in the manner and amounts and at the times it thinks fit, whether or
not the purchase is through an intermediate currency, or spot or forward.


 


7.8          Amounts
payable on demand


 


If an amount payable under a Transaction Document is not expressed to
be payable on a specified date, that amount is payable by the Chargor on demand
by the Chargee.


 


8             Power of attorney


 


8.1          Appointment
of Attorney


 


In consideration of the Chargee entering into the Transaction Documents
and for other consideration received, the Chargor irrevocably appoints each
Receiver and each Officer of the Chargee severally its attorney for the
purposes set out in clause 8.2.


 


8.2          Purposes
of appointment


 


The Attorney may, in its name or in the name of the Chargor, Chargee or
Receiver, at any time after the occurrence of an Accelerated Event of Default
do any of the following:


 


(a)           do any thing which ought to be done by the Chargor under this deed;


 


(b)           do anything which ought to be done by the Chargor in respect of the
Charged Property under this deed or a Transaction Document;


 


(c)           exercise any right, power, authority, discretion or remedy of the
Chargor under:


 


(1)           this deed;


 


(2)           any other Transaction Document; or


 


(3)           any agreement forming part of the Charged Property;


 


(d)           do any thing which in the opinion of the Chargee, Receiver or
Attorney is necessary or expedient for securing or perfecting the Charge and
any Collateral Security;


 


(e)           execute in favour of the Chargee any legal mortgage, transfer,
assignment and any other assurance of any of the Charged Property;


 


(f)            execute deeds of assignment, composition or release;


 


(g)           sell or otherwise part with the possession of any of the
Charged Property; and


 


(h)           generally, do any other thing, whether or not of the same kind as
those set out in clause 8.2(a) to (f), which in the opinion of the Chargee,
Receiver or Attorney is necessary or expedient:


 


19

















 


(1)           to more satisfactorily secure to the Chargee the payment of the
Secured Moneys; or


 


(2)           in relation to any of the Charged Property.


 


8.3          Delegation
and substitution


 


The Attorney may, at any time, for any of the purposes in
clause 8.2, appoint or remove any substitute or delegate or sub-attorney.


 


9             Protection


 


9.1          Protection
of third parties


 


(a)           No person dealing with the Chargee, Receiver or Attorney is bound to
enquire whether:


 


(1)           the Charge has become enforceable;


 


(2)           the Receiver or Attorney is duly appointed; or


 


(3)           any Power has been properly or regularly exercised.


 


(b)           No person dealing with the Chargee, Receiver or Attorney is affected
by express notice that the exercise of any Power was unnecessary or improper.


 


(c)           The irregular or improper exercise of any Power is, as regards the
protection of any person, regarded as authorised by the Chargor and this deed,
and is valid.


 


9.2          Protection
of the Chargee, Receiver and Attorney


 


(a)           The Chargee, Receiver or Attorney is not liable for any loss or
damage including consequential loss or damage, arising directly or indirectly
from:


 


(1)           any omission or delay in the exercise or non-exercise of any Power;
or


 


(2)           the neglect, default or dishonesty of any manager, Officer,
employee, agent, accountant, auctioneer or solicitor of the Chargor, the
Chargee, Receiver or Attorney.


 


(b)           Clause 9.2(a) does not apply:


 


(1)           in respect of the Chargee, to any loss or damage which arises from
the wilful default, fraud or negligence of the Chargee; and


 


(2)           in respect of a Receiver or Attorney, to any loss or damage which
arises from the wilful default, fraud or negligence of the Receiver or
Attorney.


 


20

















 


10           Saving provisions


 


10.1        Statutory
powers


 


(a)           The powers of the Chargee under this deed or any Collateral Security
are in addition to any powers the Chargee has under applicable law.


 


(b)           To the extent not prohibited by law, before enforcing this deed or
any Collateral Security, or exercising any Power, the Chargee is not required
to give any notice or allow the expiration of any time to any person.


 


(c)           If a law which requires a period of notice to be given cannot be
excluded, but that law allows the period to be specified or changed, then that
period of time is one day.


 


10.2        Continuing
security


 


The Charge is a continuing security despite:


 


(a)           any settlement of account; or


 


(b)           the occurrence of any other thing,


 


and remains in full force and effect until the Chargee has given a
discharge of the Charge in respect of all the Charged Property under
clause 3.


 


10.3        No
merger of security


 


(a)           Nothing in this deed merges, extinguishes, postpones, lessens or
otherwise prejudicially affects:


 


(1)           any Encumbrance or indemnity in favour of the Chargee;


 


(2)           any indemnity in favour of the Chargee contained in any Transaction
Document; or


 


(3)           any right, power, authority, discretion or remedy which the Chargee may have
against the Chargor or any other person at any time.


 


(b)           No other Encumbrance or Transaction Document which the Chargee or a
Beneficiary has the benefit of in any way prejudicially affects any Power.


 


10.4        Exclusion
of moratorium


 


To the extent not excluded by law, a provision of any legislation which
directly or indirectly:


 


(a)           lessens or otherwise varies or affects in favour of the Chargor any
obligations under this deed or any Transaction Document; or


 


(b)           stays, postpones or otherwise prevents or prejudicially affects the
exercise by the Chargee, Receiver or Attorney of any Power,


 


is negatived and excluded from this deed and any Transaction Document
and all relief and protection conferred on the Chargor by or under that
legislation is also negatived and excluded.


 


21

















 


10.5        Conflict


 


Where any right, power, authority, discretion or remedy of the Chargee,
Receiver or an Attorney under this deed or any Transaction Document is
inconsistent with the powers conferred by applicable law then, to the extent
not prohibited by that law, those powers conferred by applicable law are
regarded as negatived or varied to the extent of the inconsistency.


 


10.6        Completion
of blank securities


 


At any time after the Charge has become enforceable, the Chargee,
Receiver, Attorney or any Officer of the Chargee may complete, in favour
of the Chargee, any appointee of the Chargee or any purchaser, any instrument
executed in blank by or on behalf of the Chargor and deposited with the Chargee
as security under this deed or under any Collateral Security.


 


10.7        Principal
obligations


 


The Charge and each Collateral Security is:


 


(a)           a principal obligation and is not ancillary or collateral to any
other Encumbrance (other than another Collateral Security) or other obligation;
and


 


(b)           independent of, and unaffected by, any other Encumbrance or other
obligation which the Chargee or any Beneficiary may hold at any time in
respect of the Secured Moneys.


 


10.8        No
obligation to marshal


 


Before the Chargee enforces the Charge, it is not required to marshal
or to enforce or apply under, or appropriate, recover or exercise:


 


(a)           any Encumbrance or Collateral Security held, at any time, by the
Chargee; or


 


(b)           any moneys or assets which the Chargee, at any time, holds or is
entitled to receive.


 


10.9        Non-avoidance


 


If any payment by the Chargor to the Chargee or a Beneficiary is at any
time avoided for any reason including any legal limitation, disability or
incapacity of or affecting the Chargor or any other thing, and whether or not:


 


(a)           any transaction relating to the Secured Moneys was illegal, void or
substantially avoided; or


 


(b)           any thing was or ought to have been within the knowledge of the
Chargee or any Beneficiary,


 


the Chargor:


 


(c)           as an additional, separate and independent obligation, indemnifies
the Chargee against that avoided payment; and


 


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(d)           acknowledges that any liability of the Chargor under the Transaction
Documents and any right or remedy of the Chargee under the Transaction
Documents is the same as if that payment had not been made.


 


10.10     Increase in financial
accommodation


 


The Chargee or any Beneficiary may at any time increase the
financial accommodation provided under any Transaction Document or otherwise
provide further financial accommodation.


 


11           Third party provisions


 


11.1        Suspense
account


 


(a)           The Chargee may apply to the credit of a suspense account any:


 


(1)           amounts received under this deed;


 


(2)           dividends, distributions or other amounts received in respect of the
Secured Moneys in any liquidation; and


 


(3)           other amounts received from any Transaction Party or any other
person in respect of the Secured Moneys.


 


(b)           The Chargee may retain the amounts in the suspense account for
as long as it determines and is not obliged to apply them in or towards
satisfaction of the Secured Moneys.


 


11.2        Independent
obligations


 


This deed is enforceable against the Chargor:


 


(a)           without first having recourse to any Collateral Security;


 


(b)           whether or not the Chargee or any other person has:


 


(1)           made demand upon any Transaction Party other than the Chargor;


 


(2)           given notice to any Transaction Party (other than the Chargor) or
any other person in respect of any thing; or


 


(3)           taken any other steps against any Transaction Party (other than the
Chargor) or any other person;


 


(c)           whether or not any Secured Moneys is then due and payable; and


 


(d)           despite the occurrence of any event described in clause 11.3.


 


11.3        Unconditional
nature of obligations


 


(a)           The Charge and the obligations of the Chargor under the Transaction
Documents are absolute, binding and unconditional in all circumstances.


 


(b)           The Charge and the obligations of the Chargor under the Transaction
Documents are not released or discharged or otherwise affected by anything
which but for this provision might have that effect, including:


 


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(1)           the grant to any Transaction Party or any other person of any time,
waiver, covenant not to sue or other indulgence;


 


(2)           the release (including a release as part of any novation) or
discharge of any Transaction Party or any other person;


 


(3)           the cessation of the obligations, in whole or in part, of any
Transaction Party or any other person under any Transaction Document or any
other document or agreement;


 


(4)           the liquidation of any Transaction Party or any other person;


 


(5)           any arrangement, composition or compromise entered into by the
Chargee, any Transaction Party or any other person;


 


(6)           any Transaction Document or any other document or agreement being in
whole or in part illegal, void, voidable, avoided, unenforceable or
otherwise of limited force or effect;


 


(7)           any extinguishment, failure, loss, release, discharge, abandonment,
impairment, compounding, composition or compromise, in whole or in part of
any Transaction Document or any other document or agreement;


 


(8)           any Collateral Security being given to the Chargee, or any other
person by any Transaction Party or any other person;


 


(9)           any alteration, amendment, variation, supplement, renewal or
replacement of any Transaction Document or any other document or agreement;


 


(10)         any moratorium or other suspension of any Power;


 


(11)         the Chargee, Receiver or Attorney exercising or enforcing, delaying
or refraining from exercising or enforcing, or being not entitled or unable to
exercise or enforce any Power;


 


(12)         the Chargee obtaining a judgment against any Transaction Party or
any other person for the payment of any of the Secured Moneys;


 


(13)         any transaction, agreement or arrangement that may take place
with the Chargee, any Transaction Party or any other person;


 


(14)         any payment to the Chargee, Receiver or Attorney including any
payment which at the payment date or at any time after the payment date is, in
whole or in part, illegal, void, voidable, avoided or unenforceable;


 


(15)         any failure to give effective notice to any Transaction Party or any
other person of any default under any Transaction Document or any other
document or agreement;


 


(16)         any legal limitation, disability or incapacity of any Transaction
Party or of any other person;


 


(17)         any breach of any Transaction Document or any other document or
agreement;


 


(18)         the acceptance of the repudiation of, or termination of, any
Transaction Document or any other document or agreement;


 


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(19)         any Secured Moneys being irrecoverable for any reason;


 


(20)         any disclaimer by any Transaction Party or any other person of any
Transaction Document or any other document or agreement;


 


(21)         any assignment, novation, assumption or transfer of, or other
dealing with, any Powers or any other rights or obligations under any
Transaction Document or any other document or agreement;


 


(22)         the opening of a new account of any Transaction Party with the
Chargee or any transaction on or relating to the new account;


 


(23)         any prejudice (including material prejudice) to any person as a
result of any thing done, or omitted by the Chargee, any Transaction Party or
any other person;


 


(24)         any prejudice (including material prejudice) to any person as a
result of the Chargee, Receiver, Attorney or any other person selling or
realising any property the subject of a Collateral Security at less than the
best price;


 


(25)         any prejudice (including material prejudice) to any person as a
result of any failure or neglect by the Chargee, Receiver, Attorney or any
other person to recover the Secured Moneys from any Transaction Party or by the
realisation of any property the subject of a Collateral Security;


 


(26)         any prejudice (including material prejudice) to any person as a
result of any other thing;


 


(27)         the receipt by the Chargee of any dividend, distribution or other
payment in respect of any liquidation;


 


(28)         the failure of any other Transaction Party or any other person to
execute any Transaction Document or any other document; or


 


(29)         any other act, omission, matter or thing whether negligent or not.


 


(c)           Clauses 11.3(a) and (b) apply irrespective of:


 


(1)           the consent or knowledge or lack of consent or knowledge, of the
Chargee, any Transaction Party or any other person of any event described in
clause 11.3(b); or


 


(2)           any rule of law or equity to the contrary.


 


11.4        No
competition


 


(a)           Until the Secured Moneys have been fully paid and the Charge has
been finally discharged under clause 3, the Chargor is not entitled to:


 


(1)           be subrogated to the Chargee;


 


(2)           claim or receive the benefit of any Encumbrance, Guarantee
(including any Transaction Document) or other document or agreement of which
the Chargee has the benefit or of any moneys held by the Chargee or of any
Power;


 


25

















 


(3)           either directly or indirectly prove in, claim or receive the benefit
of any distribution, dividend or payment arising out of or relating to the
liquidation of any Transaction Party, except in accordance with
clause 11.4(b);


 


(4)           make a claim or exercise or enforce any right, power or remedy
(including under an Encumbrance or Guarantee or by way of contribution) against
any Transaction Party liable to pay the Secured Moneys;


 


(5)           accept, procure the grant of, or allow to exist any Encumbrance in
favour of the Chargor from any Transaction Party liable to pay the Secured
Moneys;


 


(6)           exercise or attempt to exercise any right of set-off against, nor
realise any Encumbrance taken from, any Transaction Party liable to pay the
Secured Moneys; or


 


(7)           raise any defence or counterclaim in reduction or discharge of its
obligations under the Transaction Documents.


 


(b)           If required by the Chargee, the Chargor must prove in any
liquidation of a Transaction Party liable to pay the Secured Moneys for all
moneys owed to the Chargor.


 


(c)           All moneys recovered by the Chargor from any liquidation or under
any Encumbrance from a Transaction Party liable to pay the Secured Moneys must
be received by the Chargor for the Chargee to the extent of the unsatisfied
liability of the Chargor under the Transaction Documents.


 


(d)           The Chargor must not do or seek, attempt or purport to do anything
referred to in clause 11.4(a).


 


12           General


 


12.1        Performance
by Chargee of the Chargor’s obligations


 


If the Chargor defaults in fully and punctually performing any
obligation contained or implied in any Transaction Document, the Chargee may,
without prejudice to any Power, do all things necessary or desirable, in the
opinion of the Chargee, to make good or attempt to make good that default to
the satisfaction of the Chargee.


 


12.2        Chargor
to bear cost


 


Any thing which must be done by the Chargor under this deed, whether or
not at the request of the Chargee, must be done at the cost of the Chargor.


 


12.3        Notices


 


Any notice or other communication including any request, demand,
consent or approval, to or by a party to this deed must be given in accordance
with the notice requirements of the Principal Agreement.


 


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12.4        Governing
law and jurisdiction


 


(a)           This deed is governed by the laws of New South Wales.


 


(b)           The Chargor irrevocably submits to the non-exclusive jurisdiction of
the courts of New South Wales.


 


(c)           The Chargor irrevocably waives any objection to the venue of any
legal process on the basis that the process has been brought in an inconvenient
forum.


 


12.5        Prohibition
and enforceability


 


(a)           Any provision of, or the application of any provision of, any
Transaction Document or any Power which is prohibited in any jurisdiction is,
in that jurisdiction, ineffective only to the extent of that prohibition.


 


(b)           Any provision of, or the application of any provision of, any
Transaction Document which is void, illegal or unenforceable in any
jurisdiction does not affect the validity, legality or enforceability of that
provision in any other jurisdiction or of the remaining provisions in that or
any other jurisdiction.


 


(c)           Without limiting clause 12.5(a) or (b), if the inclusion
of an asset in the Charged Property would invalidate, avoid or render
ineffective the Charge, whether in respect of that asset only or otherwise,
then that asset is excluded from the Charged Property, but only for so long as
that effect prevails.


 


(d)           If an asset referred to in clause 12.5(c) could be
included in the Charged Property without clause 12.5(c) applying if
an Authorisation was obtained or other action taken, the Chargor must promptly
obtain that Authorisation or take that action.


 


12.6        Waivers


 


(a)           Waiver of any right arising from a breach of this deed or of any
Power arising upon default under this deed or upon the occurrence of an Event
of Default or an Accelerated Event of Default must be in writing and signed by
the party granting the waiver.


 


(b)           A failure or delay in exercise, or partial exercise, of:


 


(1)           a right arising from a breach of this deed or the occurrence of an
Event of Default or an Accelerated Event of Default; or


 


(2)           a Power created or arising upon default under this deed or upon the
occurrence of an Event of Default or an Accelerated Event of Default,


 


does not result in a waiver of that right or Power.


 


(c)           A party is not entitled to rely on a delay in the exercise or non-exercise
of a right or Power arising from a breach of this deed or on a default under
this deed or on the occurrence of an Event of Default or an Accelerated Event
of Default as constituting a waiver of that right or Power.


 


27

















 


(d)           A party may not rely on any conduct of another party as a
defence to exercise of a right or Power by that other party.


 


(e)           This clause may not itself be waived except by writing.


 


12.7        Variation


 


A variation of any term of this deed must be in writing and signed by
the parties.


 


12.8        Cumulative
rights


 


The Powers are cumulative and do not exclude any other right, power,
authority, discretion or remedy of the Chargee, Receiver or Attorney.


 


12.9        Assignment


 


(a)           Subject to any Transaction Document (including clause 7 of the
Security Trust Deed), the Chargee may, assign its rights under this deed and
each Collateral Security without the consent of the Chargor.


 


(b)           The Chargor must not assign any of its rights under this deed or any
Collateral Security without the prior written consent of the Chargee.


 


12.10     Counterparts


 


This deed may be executed in any number of counterparts. All
counterparts taken together, constitute one instrument. A party may execute
this deed by signing any counterpart.


 


12.11     Attorneys


 


Each of the attorneys executing this deed states that the attorney has
no notice of the revocation of the power of attorney appointing that attorney.


 


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Executed as a deed:


 


CHARGOR:


 


Signed sealed and delivered for


HA Funding Pty Limited


by its attorney


in the presence of:


 


 


	
  /s/ David Barton

  	
   

  	
  /s/ Ralph Ayling

  	
   

  
	
  Witness

  	
  Attorney

  
	
   

  	
   

  
	
   

  	
   

  
	
  David Barton

  	
   

  	
  Ralph Ayling

  	
   

  
	
  Name (please print)

  	
  Name (please print)

  



 


 


CHARGEE:


 


Signed sealed and delivered for


BNP Paribas


by its attorney


in the presence of:


 


 


	
  /s/ Tessa Hoser

  	
   

  	
  /s/ Wendy Gwyn

  	
   

  
	
  Witness

  	
  Attorney

  
	
   

  	
   

  
	
   

  	
   

  
	
  Tessa Hoser

  	
   

  	
  Wendy Gwyn

  	
   

  
	
  Name (please print)

  	
  Name (please print)

  



 


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