Exhibit 4.5.3


 


Australian Purchaser
Charge 


(Project H) - Unlimited


 


Hertz Australia Pty
Limited


ABN 31 004 407 087


 


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:SSP:36C


 

















 


Table of
contents


 


	
  Clause

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  1

  	
  Definitions and interpretation

  	
  1

  
	
   

  	
   

  	
   

  
	
   

  	
  1.1

  	
  Definitions

  	
  1

  
	
   

  	
  1.2

  	
  Interpretation

  	
  4

  
	
   

  	
  1.3

  	
  Incorporated
  definitions

  	
  5

  
	
   

  	
  1.4

  	
  Business
  Day

  	
  5

  
	
   

  	
  1.5

  	
  Inclusive
  expressions

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
  2

  	
  Charge

  	
  5

  
	
   

  	
   

  	
   

  
	
   

  	
  2.1

  	
  Charge

  	
  5

  
	
   

  	
  2.2

  	
  Priority

  	
  5

  
	
   

  	
  2.3

  	
  Nature
  of Charge

  	
  5

  
	
   

  	
  2.4

  	
  Crystallisation

  	
  6

  
	
   

  	
  2.5

  	
  De-crystallisation

  	
  7

  
	
   

  	
  2.6

  	
  Prospective
  liability

  	
  7

  
	
   

  	
  2.7

  	
  Designated
  Account, insurance policy proceeds and book debts

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
  3

  	
  Discharge of the Charge

  	
  9

  
	
   

  	
   

  	
   

  
	
   

  	
  3.1

  	
  Discharge

  	
  9

  
	
   

  	
  3.2

  	
  Automatic
  release

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
  4

  	
  Representations and warranties, undertakings

  	
  9

  
	
   

  	
   

  	
   

  
	
   

  	
  4.1

  	
  Representations
  and warranties

  	
  9

  
	
   

  	
  4.2

  	
  Performance
  under Transaction Documents

  	
  10

  
	
   

  	
  4.3

  	
  Negative
  pledge

  	
  10

  
	
   

  	
  4.4

  	
  Registration

  	
  10

  
	
   

  	
  4.5

  	
  Payment
  of Secured Moneys

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  5

  	
  Enforcement

  	
  10

  
	
   

  	
   

  	
   

  
	
   

  	
  5.1

  	
  When
  enforceable

  	
  10

  
	
   

  	
  5.2

  	
  Assistance
  in realisation

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
  6

  	
  Receiver

  	
  11

  
	
   

  	
   

  	
   

  
	
   

  	
  6.1

  	
  Appointment
  of Receiver

  	
  11

  
	
   

  	
  6.2

  	
  Agency
  of Receiver

  	
  11

  
	
   

  	
  6.3

  	
  Powers
  of Receiver

  	
  11

  
	
   

  	
  6.4

  	
  Nature
  of Receiver’s Powers

  	
  14

  
	
   

  	
  6.5

  	
  Status
  of Receiver after commencement of winding-up

  	
  14

  
	
   

  	
  6.6

  	
  Powers
  exercisable by the Chargee

  	
  14

  
	
   

  	
  6.7

  	
  Set-off

  	
  14

  
	
   

  	
  6.8

  	
  Notice
  of exercise of rights

  	
  14

  
	
   

  	
  6.9

  	
  Termination
  of receivership and possession

  	
  15

  



 


1

















 


	
  7

  	
  Application and receipts of money

  	
  15

  
	
   

  	
   

  	
   

  
	
   

  	
  7.1

  	
  Order
  of application

  	
  15

  
	
   

  	
  7.2

  	
  Money
  actually received

  	
  16

  
	
   

  	
  7.3

  	
  Amounts
  contingently due

  	
  16

  
	
   

  	
  7.4

  	
  Notice
  of a subsequent Encumbrance

  	
  16

  
	
   

  	
  7.5

  	
  Chargee’s
  statement of indebtedness

  	
  17

  
	
   

  	
  7.6

  	
  Chargee’s
  receipts

  	
  17

  
	
   

  	
  7.7

  	
  Conversion
  of currencies on application

  	
  17

  
	
   

  	
  7.8

  	
  Amounts
  payable on demand

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  8

  	
  Power of attorney

  	
  17

  
	
   

  	
   

  	
   

  
	
   

  	
  8.1

  	
  Appointment
  of Attorney

  	
  17

  
	
   

  	
  8.2

  	
  Purposes
  of appointment

  	
  18

  
	
   

  	
  8.3

  	
  Delegation
  and substitution

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
  9

  	
  Protection

  	
  18

  
	
   

  	
   

  	
   

  
	
   

  	
  9.1

  	
  Protection
  of third parties

  	
  18

  
	
   

  	
  9.2

  	
  Protection
  of the Chargee, Receiver and Attorney

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  10

  	
  Saving provisions

  	
  19

  
	
   

  	
   

  	
   

  
	
   

  	
  10.1

  	
  Statutory
  powers

  	
  19

  
	
   

  	
  10.2

  	
  Continuing
  security

  	
  19

  
	
   

  	
  10.3

  	
  No
  merger of security

  	
  20

  
	
   

  	
  10.4

  	
  Exclusion
  of moratorium

  	
  20

  
	
   

  	
  10.5

  	
  Conflict

  	
  20

  
	
   

  	
  10.6

  	
  Completion
  of blank securities

  	
  20

  
	
   

  	
  10.7

  	
  Principal
  obligations

  	
  20

  
	
   

  	
  10.8

  	
  No
  obligation to marshal

  	
  21

  
	
   

  	
  10.9

  	
  Non-avoidance

  	
  21

  
	
   

  	
  10.10

  	
  Increase
  in financial accommodation

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
  11

  	
  Third party provisions

  	
  21

  
	
   

  	
   

  	
   

  
	
   

  	
  11.1

  	
  Suspense
  account

  	
  21

  
	
   

  	
  11.2

  	
  Independent
  obligations

  	
  22

  
	
   

  	
  11.3

  	
  Unconditional
  nature of obligations

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  12

  	
  General

  	
  22

  
	
   

  	
   

  	
   

  
	
   

  	
  12.1

  	
  Performance
  by Chargee of the Chargor’s obligations

  	
  22

  
	
   

  	
  12.2

  	
  Chargor
  to bear cost

  	
  22

  
	
   

  	
  12.3

  	
  Notices

  	
  22

  
	
   

  	
  12.4

  	
  Governing
  law and jurisdiction

  	
  22

  
	
   

  	
  12.5

  	
  Prohibition
  and enforceability

  	
  23

  
	
   

  	
  12.6

  	
  Waivers

  	
  23

  
	
   

  	
  12.7

  	
  Variation

  	
  24

  
	
   

  	
  12.8

  	
  Cumulative
  rights

  	
  24

  
	
   

  	
  12.9

  	
  Assignment

  	
  24

  
	
   

  	
  12.10

  	
  Counterparts

  	
  24

  
	
   

  	
  12.11

  	
  Attorneys

  	
  24

  



 


2

















 


This
deed of charge


 


is made on 21 December 2005 between the following
parties:


 


1.                                     Hertz
Australia Pty Limited

ACN 004 407 087

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;


 


Bridge
Facility Agreement has the meaning given in
the Principal Agreement;


 


Buy-Back
Agreement means any purchase and buy-back
agreement between the Chargor and a manufacturer of any Fleet Asset or related
equipment or a dealer who sells any Fleet Asset;


 


Buy-Back
Guarantee means any Guarantee given in
favour of the Chargor in respect of obligations under a Buy-Back Agreement;


 


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,
but does not include any Excluded Assets;


 


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;


 


1

















 


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 has the meaning given in the
Principal Agreement;


 


Excluded
Assets means:


 


(a)                               any undertaking, assets or rights of the Chargor as at the date of
this deed which as at that date are located, or taken for the purpose of any
law of an Australian State or Territory relating to stamp duty to be located,
in South Australia or Queensland; and


 


(b)                              any real property acquired at any time within 12 months after the
date of this deed which is located, or taken for the purposes of any law of any
Australian State or Territory relating to stamp duty to be located, in
Queensland;


 


Fleet
Assets means:


 


(a)                               all motor vehicles owned by the Chargor, including the engines,
components, equipment and accessories installed in or on them;


 


(b)                              all substitutions, renewals, replacements and additions made from
time to time to them;


 


(c)                               all spare and replacement parts and equipment owned by the Chargor
for use in relation to them; and


 


Fleet
Proceeds means:


 


(a)                               all money received or receivable under or in connection with a Fleet
Asset (including under a Material Document); and


 


(b)                              any other asset derived from or arising in any way out of or in
relation to a Fleet Asset or into which they are converted;


 


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
Documents means:


 


(a)                               each Buy-Back Agreement;


 


(b)                              each Buy-Back Guarantee;


 


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


 


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


 


2

















 


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;


 


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 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 purchase consideration, 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;


 


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; or


 


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


 


3

















 


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;


 


(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


 


4

















 


(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                              Business
Day


 


When the day on or by which any thing is to be done is not a Business
Day, that thing must be done on or by the preceding Business Day.


 


1.5                              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.


 


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;


 


5

















 


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


 


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


 


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


 


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


 


(14)                         each Note;


 


(15)                         any chose in action in respect of any Notes Proceeds;


 


(16)                         any chose in action in respect of any Notes Income;


 


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


 


(b)                                 a
floating charge over all other Charged Property, including the Fleet Assets,
the Fleet Proceeds, the Note Income, the Note Proceeds and any book debts and
other debts and the proceeds of those debts.


 


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;


 


6

















 


(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 a Fleet Asset, the proceeds of any
book debt or other debt, any Fleet Proceeds, any Note Proceeds or any Note
Income 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 the
occurrence of an Event of Default or at any time after 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.


 


7

















 


(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 while it 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 while it 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, any Fleet
Proceeds, any Note Proceeds or any Note Income 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;


 


8

















 


(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 Chargee 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 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.


 


9

















 


(b)                              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                              Registration


 


At any time after the occurrence of an Event of Default while it is
continuing, if the Chargee directs the Chargor to do so, the Chargor must, at
its own cost, register the Charge and any Collateral Security against each
motor vehicle charged by that document under the Registration of Interest in
Goods Act 1986 (NSW) or corresponding legislation in other States and
Territories of Australia, whichever is applicable and any other relevant
legislation which deals with registration of security interests in goods.


 


4.5                              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.


 


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 


 


10

















 


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:


 


11

















 


(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;


 


12

















 


(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;


 


13

















 


(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, on 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.


 


(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;


 


14

















 


(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 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 


 


15

















 


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


 


16

















 


(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.


 


17

















 


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


 


18

















 


(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.


 


19

















 


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                       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


 


20

















 


(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.


 


10.8                       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 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.


 


10.10                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;


 


(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.


 


21

















 


(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


 


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


 


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.


 


22

















 


(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.


 


(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.


 


23

















 


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.


 


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.


 


24

















 


Executed as a deed:


 


CHARGOR:


 


Signed sealed and delivered for


Hertz Australia 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)

  	
   

  



 


25