Exhibit
4.5.7


 


 


Australian Issuer Charge (Project H)


 


Hertz Note Issuer Pty Limited

ACN 117 373 574


 


and


 


HA Funding Pty Limited


ACN 117 549
498


 


 





 


 


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

  	
  4

  
	
   

  	
  1.4

  	
  Inclusive
  expressions

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
  2

  	
  Charge

  	
  4

  
	
   

  	
  2.1

  	
  Charge

  	
  4

  
	
   

  	
  2.2

  	
  Priority

  	
  5

  
	
   

  	
  2.3

  	
  Nature of
  Charge

  	
  5

  
	
   

  	
  2.4

  	
  Crystallisation

  	
  5

  
	
   

  	
  2.5

  	
  De-crystallisation

  	
  6

  
	
   

  	
  2.6

  	
  Prospective
  liability

  	
  6

  
	
   

  	
  2.7

  	
  Designated
  Account, insurance policy proceeds and book debts

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
  3

  	
  Discharge of the Charge

  	
  8

  
	
   

  	
  3.1

  	
  Discharge

  	
  8

  
	
   

  	
  3.2

  	
  Automatic
  release

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
  4

  	
  Representations and warranties, undertakings

  	
  8

  
	
   

  	
  4.1

  	
  Representations
  and warranties

  	
  8

  
	
   

  	
  4.2

  	
  Performance under
  Transaction Documents

  	
  9

  
	
   

  	
  4.3

  	
  Negative
  pledge

  	
  9

  
	
   

  	
  4.4

  	
  Payment of
  Secured Moneys

  	
  9

  
	
   

  	
  4.5

  	
  Chargor’s
  Business

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
  5

  	
  Enforcement

  	
  9

  
	
   

  	
  5.1

  	
  When
  enforceable

  	
  9

  
	
   

  	
  5.2

  	
  Assistance
  in realisation

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  6

  	
  Receiver

  	
  10

  
	
   

  	
  6.1

  	
  Appointment
  of Receiver

  	
  10

  
	
   

  	
  6.2

  	
  Agency of
  Receiver

  	
  10

  
	
   

  	
  6.3

  	
  Powers of
  Receiver

  	
  10

  
	
   

  	
  6.4

  	
  Nature of
  Receiver’s Powers

  	
  13

  
	
   

  	
  6.5

  	
  Status of
  Receiver after commencement of winding-up

  	
  13

  
	
   

  	
  6.6

  	
  Powers
  exercisable by the Chargee

  	
  13

  
	
   

  	
  6.7

  	
  Set-off

  	
  13

  
	
   

  	
  6.8

  	
  Notice of
  exercise of rights

  	
  13

  
	
   

  	
  6.9

  	
  Termination
  of receivership and possession

  	
  14

  



 


1

















 


	
  7

  	
  Application and receipts of money

  	
  14

  
	
   

  	
  7.1

  	
  Order of
  application

  	
  14

  
	
   

  	
  7.2

  	
  Money
  actually received

  	
  15

  
	
   

  	
  7.3

  	
  Amounts
  contingently due

  	
  15

  
	
   

  	
  7.4

  	
  Notice of a
  subsequent Encumbrance

  	
  15

  
	
   

  	
  7.5

  	
  Chargee’s
  statement of indebtedness

  	
  16

  
	
   

  	
  7.6

  	
  Chargee’s
  receipts

  	
  16

  
	
   

  	
  7.7

  	
  Conversion
  of currencies on application

  	
  16

  
	
   

  	
  7.8

  	
  Amounts
  payable on demand

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  8

  	
  Power of attorney

  	
  16

  
	
   

  	
  8.1

  	
  Appointment
  of Attorney

  	
  16

  
	
   

  	
  8.2

  	
  Purposes of appointment

  	
  17

  
	
   

  	
  8.3

  	
  Delegation
  and substitution

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  9

  	
  Protection

  	
  17

  
	
   

  	
  9.1

  	
  Protection
  of third parties

  	
  17

  
	
   

  	
  9.2

  	
  Protection
  of the Chargee, Receiver and Attorney

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
  10

  	
  Saving provisions

  	
  18

  
	
   

  	
  10.1

  	
  Statutory
  powers

  	
  18

  
	
   

  	
  10.2

  	
  Continuing
  security

  	
  18

  
	
   

  	
  10.3

  	
  No merger of
  security

  	
  19

  
	
   

  	
  10.4

  	
  Exclusion of
  moratorium

  	
  19

  
	
   

  	
  10.5

  	
  Conflict

  	
  19

  
	
   

  	
  10.6

  	
  Consent of
  Chargee

  	
  19

  
	
   

  	
  10.7

  	
  Completion
  of blank securities

  	
  19

  
	
   

  	
  10.8

  	
  Principal
  obligations

  	
  20

  
	
   

  	
  10.9

  	
  No
  obligation to marshal

  	
  20

  
	
   

  	
  10.10

  	
  Non-avoidance

  	
  20

  
	
   

  	
  10.11

  	
  Increase in
  financial accommodation

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  11

  	
  Third party provisions

  	
  20

  
	
   

  	
  11.1

  	
  Suspense
  account

  	
  20

  
	
   

  	
  11.2

  	
  Independent
  obligations

  	
  21

  
	
   

  	
  11.3

  	
  Unconditional
  nature of obligations

  	
  21

  
	
   

  	
  11.4

  	
  No
  competition

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
  12

  	
  General

  	
  24

  
	
   

  	
  12.1

  	
  Performance
  by Chargee of the Chargor’s obligations

  	
  24

  
	
   

  	
  12.2

  	
  Chargor to
  bear cost

  	
  24

  
	
   

  	
  12.3

  	
  Notices

  	
  24

  
	
   

  	
  12.4

  	
  Governing
  law and jurisdiction

  	
  24

  
	
   

  	
  12.5

  	
  Prohibition
  and enforceability

  	
  24

  
	
   

  	
  12.6

  	
  Waivers

  	
  25

  
	
   

  	
  12.7

  	
  Variation

  	
  25

  
	
   

  	
  12.8

  	
  Cumulative
  rights

  	
  25

  
	
   

  	
  12.9

  	
  Assignment

  	
  25

  



 


2

















 


	
   

  	
  12.10

  	
  Counterparts

  	
  26

  
	
   

  	
  12.11

  	
  Attorneys

  	
  26

  



 


3

















 


This deed of charge


 


is made on 21 December 2005 between the following
parties:


 


1.             Hertz Note Issuer Pty
Limited

ACN 117 373 574

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

(Chargor)


 


2.             HA Funding Pty Limited

ACN 117 549 498

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

(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 has the meaning given in the Principal Agreement;


 


Attorney means an attorney
appointed under this deed;


 


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;


 


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;


 


Event of Default means an
Event of Default as defined in the Principal Agreement and any other event of
default (however described) under, or as defined in, any Transaction Document;


 


1

















 


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;


 


Intercompany Loan Agreement means the loan agreement made by the Chargor (as lender) to the
Principal Debtor (as borrower) dated on or about the date of this deed;


 


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;


 


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
the deed entitled “Australian Purchase Deed (Project H)” dated on or about the
date of this deed between the Chargor and the Chargee, among others;


 


Principal Debtor means
Hertz Australia Pty Limited (ABN 31 004 407 087);


 


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


 


Secured Moneys means all
debts and monetary liabilities of the Principal Debtor to the Chargee on any
account under or in relation to any Purchaser Charge or the Purchase Deed 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 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;


 


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


 


(1)          the
assignment to the Chargee of any debt or liability of the Chargor; or


 


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


 


(f)            are owed to or incurred for the
account of the Chargee before the date of this deed or before the date of any
assignment of this deed to the Chargee by any other person or otherwise; or


 


(g)           comprise any combination of the
above;


 


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


 


2

















 


Transaction Document means:


 


(a)           this
deed;


 


(b)           the
Principal Agreement;


 


(c)           any
other Transaction Document as defined in the Principal Agreement; or


 


(d)           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;


 


(b)           the
Principal Debtor; or


 


(c)           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:


 


(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;


 


3

















 


(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:


 


(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 Bridge Facility Agent (acting reasonably) or expressly waived in writing
by the Bridge Facility Agent; and


 


(r)            references
to time are to Sydney time.


 


1.3          Incorporated definitions


 


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


 


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.


 


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.


 


4

















 


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
uncalled or called but unpaid capital of the Chargor;


 


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


 


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


 


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


 


(6)          any
Marketable Securities;


 


(7)          any
Intellectual Property Rights;


 


(8)          any
book debt or other debt (including under the Intercompany Loan Agreement) but
not the proceeds of any such debt;


 


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


 


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


 


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


 


(12)        the
Intercompany Loan Agreement and the rights of the Chargor under the
Intercompany Loan Agreement;


 


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


 


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;


 


5

















 


(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;
or


 


(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 by the Chargor, when the Chargee gives notice in respect of that
asset to the Chargor upon the occurrence of an Event of Default or at any time
thereafter while the Event of Default is continuing.


 


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.


 


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.


 


6

















 


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.


 


(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


 


7

















 


(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 Principal Debtor or any other person
under any Transaction Document;


 


(b)           the Chargee ceases to be guarantor
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


 


(a)           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 automatically released from the Charge
with effect from the day of such disposal and the Chargee will (at the expense
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 that all its representations and
warranties in each Document are, or will be, true and correct in all respects
when made or regarded as having been made.


 


8

















 


(b)           The Chargor further represents and
warrants that 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.


 


(c)           The Chargor acknowledges that it
has not entered into this deed or any other 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 in
accordance with this deed, each other Transaction 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


 


9

















 


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;


 


(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:


 


10

















 


(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;


 


(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;


 


11

















 


(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;


 


(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;


 


12

















 


(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.


 


6.6          Powers exercisable by the
Chargee


 


(a)           Whether or not a Receiver is
appointed under clause 6.1, the Chargee may, upon 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.


 


(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;


 


13

















 


(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 Event of Default while it is continuing, 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 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


 


14

















 


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, 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.


 


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


 


15

















 


(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.


 


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.


 


16

















 


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:


 


(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; or


 


17

















 


(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.


 


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.


 


18

















 


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 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.


 


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        Consent of Chargee


 


(a)           Whenever the doing of any thing by
the Chargor is dependent upon the consent of the Chargee, the Chargee may
withhold its consent or give it conditionally or unconditionally in its
absolute discretion unless expressly stated otherwise in a Transaction
Document.


 


(b)           Any conditions imposed on the
Chargor under clause 10.6(a) must be complied with by the Chargor.


 


10.7        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.


 


19

















 


10.8        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 may hold at any
time in respect of the Secured Moneys.


 


10.9        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.


 


10.10     Non-avoidance


 


If any payment
by the Chargor to the Chargee 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,


 


the Chargor:


 


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


 


(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.


 


10.11      Increase in financial
accommodation


 


The Chargee
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;


 


20

















 


(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:


 


(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 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
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 Document or
any other document or agreement;


 


21

















 


(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
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 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 Document or any other document or agreement;


 


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


 


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


 


(20)         any
disclaimer by any Transaction Party or any other person of any 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 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


 


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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
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;


 


(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.


 


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(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 and held in trust 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 reasonable 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.


 


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.


 


24

















 


(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.


 


(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,
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.


 


25

















 


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.


 


26

















 


Executed as a deed:


 


	
  CHARGOR:

  	
   

  
	
   

  	
   

  
	
  Signed sealed and delivered for

  	
   

  
	
  Hertz Note Issuer 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

  	
   

  
	
  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)

  



 


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