Exhibit 4.5.6


 


Australian Share Mortgage
of

Purchaser Shares (Project H)



Hertz Investment (Holdings) Pty Limited

ACN 006 181 755



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

  	
  4

  
	
   

  	
  1.3

  	
  Incorporated
  definitions

  	
  5

  
	
   

  	
  1.4

  	
  Business
  Day

  	
  6

  
	
   

  	
  1.5

  	
  Inclusive
  expressions

  	
  6

  
	
   

  	
  1.6

  	
  Consent
  of Mortgagor

  	
  6

  
	
   

  	
  1.7

  	
  Limited
  recourse

  	
  6

  
	
   

  	
   

  	
   

  
	
  2

  	
  Mortgage

  	
  7

  
	
   

  	
   

  	
   

  
	
   

  	
  2.1

  	
  Mortgage

  	
  7

  
	
   

  	
  2.2

  	
  Priority

  	
  7

  
	
   

  	
  2.3

  	
  Prospective
  liability

  	
  7

  
	
   

  	
   

  	
   

  
	
  3

  	
  Discharge of the Mortgage

  	
  7

  
	
   

  	
   

  	
   

  
	
   

  	
  3.1

  	
  Discharge

  	
  7

  
	
   

  	
  3.2

  	
  Automatic
  release

  	
  8

  
	
   

  	
   

  	
   

  
	
  4

  	
  Representations and warranties

  	
  8

  
	
   

  	
   

  	
   

  
	
   

  	
  4.1

  	
  Representations
  and warranties

  	
  8

  
	
   

  	
  4.2

  	
  Bridge
  Facility Agreement representations and warranties

  	
  9

  
	
   

  	
  4.3

  	
  Survival
  of representations and warranties

  	
  9

  
	
   

  	
  4.4

  	
  Reliance

  	
  9

  
	
   

  	
   

  	
   

  
	
  5

  	
  Undertakings of the Mortgagor

  	
  9

  
	
   

  	
   

  	
   

  
	
   

  	
  5.1

  	
  Dividends
  and voting

  	
  9

  
	
   

  	
  5.2

  	
  Designated
  Account

  	
  10

  
	
   

  	
  5.3

  	
  Other
  Additional Rights

  	
  10

  
	
   

  	
  5.4

  	
  Performance
  under the Transaction Documents

  	
  11

  
	
   

  	
  5.5

  	
  Notices
  to the Mortgagee

  	
  11

  
	
   

  	
  5.6

  	
  Maintenance
  of the Mortgaged Property

  	
  11

  
	
   

  	
  5.7

  	
  Negative
  pledge

  	
  12

  
	
   

  	
  5.8

  	
  Compliance
  with statutes

  	
  12

  
	
   

  	
  5.9

  	
  Further
  security

  	
  12

  
	
   

  	
  5.10

  	
  Title
  Documents

  	
  13

  
	
   

  	
  5.11

  	
  Registration
  and protection of security

  	
  13

  
	
   

  	
  5.12

  	
  Proxies
  and authorised representatives

  	
  13

  
	
   

  	
  5.13

  	
  Irrevocable
  direction

  	
  14

  
	
   

  	
  5.14

  	
  Title
  Documents for Mortgaged Property

  	
  14

  
	
   

  	
  5.15

  	
  Undertakings
  in Bridge Facility Agreement

  	
  14

  
	
   

  	
  5.16

  	
  Term
  of undertakings

  	
  14

  
	
   

  	
   

  	
   

  
	
  6

  	
  Enforcement

  	
  15

  
	
   

  	
   

  	
   

  
	
   

  	
  6.1

  	
  When
  enforceable

  	
  15

  



 


1

















 


 


	
  Clause

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
   

  	
  6.2

  	
  Assistance
  in realisation

  	
  15

  
	
   

  	
   

  	
   

  
	
  7

  	
  Receiver

  	
  15

  
	
   

  	
   

  	
   

  
	
   

  	
  7.1

  	
  Appointment
  of Receiver

  	
  15

  
	
   

  	
  7.2

  	
  Agency
  of Receiver

  	
  15

  
	
   

  	
  7.3

  	
  Powers
  of Receiver

  	
  16

  
	
   

  	
  7.4

  	
  Nature
  of Receiver’s Powers

  	
  18

  
	
   

  	
  7.5

  	
  Status
  of Receiver after commencement of winding up

  	
  18

  
	
   

  	
  7.6

  	
  Powers
  exercisable by the Mortgagee

  	
  18

  
	
   

  	
  7.7

  	
  Set-off

  	
  18

  
	
   

  	
  7.8

  	
  Notice
  of exercise of rights

  	
  18

  
	
   

  	
  7.9

  	
  Termination
  of receivership and possession

  	
  19

  
	
   

  	
   

  	
   

  
	
  8

  	
  Application and receipts of money

  	
  19

  
	
   

  	
   

  	
   

  
	
   

  	
  8.1

  	
  Order
  of application

  	
  19

  
	
   

  	
  8.2

  	
  Money
  actually received

  	
  20

  
	
   

  	
  8.3

  	
  Amounts
  contingently due

  	
  20

  
	
   

  	
  8.4

  	
  Notice
  of a subsequent Encumbrance

  	
  20

  
	
   

  	
  8.5

  	
  Mortgagee’s
  statement of indebtedness

  	
  21

  
	
   

  	
  8.6

  	
  Mortgagee’s
  receipts

  	
  21

  
	
   

  	
  8.7

  	
  Conversion
  of currencies on application

  	
  21

  
	
   

  	
  8.8

  	
  Payments
  in gross

  	
  21

  
	
   

  	
  8.9

  	
  Additional
  payments

  	
  21

  
	
   

  	
  8.10

  	
  Taxation
  deduction procedures

  	
  22

  
	
   

  	
  8.11

  	
  Amounts
  payable on demand

  	
  22

  
	
   

  	
  8.12

  	
  Currency
  of payments

  	
  22

  
	
   

  	
   

  	
   

  
	
  9

  	
  Power of Attorney

  	
  22

  
	
   

  	
   

  	
   

  
	
   

  	
  9.1

  	
  Appointment
  of Attorney

  	
  22

  
	
   

  	
  9.2

  	
  Purposes
  of appointment

  	
  22

  
	
   

  	
  9.3

  	
  Delegation
  and substitution

  	
  23

  
	
   

  	
   

  	
   

  
	
  10

  	
  Protection

  	
  23

  
	
   

  	
   

  	
   

  
	
   

  	
  10.1

  	
  Protection
  of third parties

  	
  23

  
	
   

  	
  10.2

  	
  Protection
  of the Mortgagee, Receiver and Attorney

  	
  23

  
	
   

  	
   

  	
   

  
	
  11

  	
  Indemnities

  	
  24

  
	
   

  	
   

  	
   

  
	
   

  	
  11.1

  	
  General
  indemnity

  	
  24

  
	
   

  	
  11.2

  	
  Foreign
  currency indemnity

  	
  24

  
	
   

  	
  11.3

  	
  Continuing
  indemnities

  	
  25

  
	
   

  	
   

  	
   

  
	
  12

  	
  Tax, costs and expenses

  	
  25

  
	
   

  	
   

  	
   

  
	
   

  	
  12.1

  	
  Tax

  	
  25

  
	
   

  	
  12.2

  	
  GST

  	
  26

  
	
   

  	
  12.3

  	
  Costs
  and expenses

  	
  26

  



 


2

















 


	
  Clause

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  13

  	
  Interest on overdue amounts

  	
  26

  
	
   

  	
   

  	
   

  
	
   

  	
  13.1

  	
  Payment
  of interest

  	
  26

  
	
   

  	
  13.2

  	
  Accrual
  of interest

  	
  27

  
	
   

  	
  13.3

  	
  Rate
  of interest

  	
  27

  
	
   

  	
   

  	
   

  
	
  14

  	
  Saving provisions

  	
  27

  
	
   

  	
   

  	
   

  
	
   

  	
  14.1

  	
  Statutory
  powers

  	
  27

  
	
   

  	
  14.2

  	
  Continuing
  security

  	
  27

  
	
   

  	
  14.3

  	
  No
  merger of security

  	
  27

  
	
   

  	
  14.4

  	
  Exclusion
  of moratorium

  	
  28

  
	
   

  	
  14.5

  	
  Conflict

  	
  28

  
	
   

  	
  14.6

  	
  Consent
  of Mortgagee

  	
  28

  
	
   

  	
  14.7

  	
  Completion
  of blank securities

  	
  28

  
	
   

  	
  14.8

  	
  Principal
  obligations

  	
  28

  
	
   

  	
  14.9

  	
  No
  obligation to marshal

  	
  29

  
	
   

  	
  14.10

  	
  Non-avoidance

  	
  29

  
	
   

  	
  14.11

  	
  Increase
  in financial accommodation

  	
  29

  
	
   

  	
   

  	
   

  
	
  15

  	
  Third party provisions

  	
  29

  
	
   

  	
   

  	
   

  
	
   

  	
  15.1

  	
  Suspense
  account

  	
  29

  
	
   

  	
  15.2

  	
  Independent
  obligations

  	
  30

  
	
   

  	
  15.3

  	
  Unconditional
  nature of obligations

  	
  30

  
	
   

  	
  15.4

  	
  No
  competition

  	
  32

  
	
   

  	
   

  	
   

  
	
  16

  	
  General

  	
  33

  
	
   

  	
   

  	
   

  
	
   

  	
  16.1

  	
  Performance
  by Mortgagee of the Mortgagor’s obligations

  	
  33

  
	
   

  	
  16.2

  	
  Mortgagor
  to bear cost

  	
  33

  
	
   

  	
  16.3

  	
  Notices

  	
  33

  
	
   

  	
  16.4

  	
  Governing
  law and jurisdiction

  	
  33

  
	
   

  	
  16.5

  	
  Prohibition
  and enforceability

  	
  33

  
	
   

  	
  16.6

  	
  Waivers

  	
  33

  
	
   

  	
  16.7

  	
  Variation

  	
  34

  
	
   

  	
  16.8

  	
  Cumulative
  rights

  	
  34

  
	
   

  	
  16.9

  	
  Assignment

  	
  34

  
	
   

  	
  16.10

  	
  Counterparts

  	
  34

  
	
   

  	
  16.11

  	
  Attorneys

  	
  34

  
	
   

  	
   

  	
   

  
	
  Schedule 1

  	
   

  



 


3

















 


This
share mortgage


 


is made on 21 December 2005 between the following parties:


 


1              Hertz Investment (Holdings) Pty Limited

ACN 006 181 755

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

(Mortgagor)


 


2              HA Funding Pty Limited

ACN 117 549 498

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

(Mortgagee)


 


Recitals


 


A.            The Mortgagor is or will be the legal and beneficial owner of the
Mortgaged Property.


 


B.            The Mortgagor has agreed to mortgage the Mortgaged 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;


 


Additional
Rights means all present and future rights
and property interests attaching to or arising out of or otherwise in respect
of the holding of an interest in:


 


(a)           the
Shares;


 


(b)           any
Distributions paid or payable, any bonus shares or other Marketable Securities
issued, and any rights to take up Marketable Securities, in respect of the
Shares;


 


(c)           any
proceeds of, or from the disposal of, any Shares;


 


(d)           any
Marketable Security resulting from the conversion, consolidation or subdivision
of any Share; and


 


(e)           any in
specie distribution in respect of any Shares;


 


Attorney means an attorney appointed under this deed;


 


Business
Day means:


 


1

















 


(a)           for
the purposes of clause 16.3, a day on which banks are open for business in
the city where the notice or other communication is received excluding a
Saturday, Sunday or public holiday; and


 


(b)           for
all other purposes, a day on which banks are open for business in Sydney
excluding a Saturday, Sunday or public holiday;


 


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


 


Corporations
Act means the Corporations Act 2001;


 


Designated
Account means the bank account opened by the
Mortgagor in accordance with clause 5.2;


 


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


 


Distribution means any money owing now or in the future in respect of the
Mortgaged Property and includes, but is not limited to, a cash dividend or
other monetary distribution;


 


Dollars, A$ and $
means the lawful currency of the Commonwealth of Australia;


 


Encumbrance means an interest or power:


 


(a)           reserved in or over an interest in any asset including, but not
limited to, any retention of title; or


 


(b)           created or otherwise arising in or over any interest in any asset
under a bill of sale, mortgage, charge, lien, pledge, trust or power,


 


by way of, or having similar commercial effect to, security for the
payment of a debt, any other monetary obligation or the performance of any
other obligation, and includes, but is not limited to, any agreement to grant
or create any of the above;


 


Event of Default has the meaning given in the Principal Agreement;


 


Excluded Tax means any Tax imposed by any jurisdiction on the net income of the
Mortgagee;


 


Government
Agency means any government or any
governmental, semi-governmental, administrative, fiscal or judicial body,
department, commission, authority, tribunal, agency or entity;


 


GST means the goods and services tax levied under A New Tax
System (Goods and Services Tax) Act 1999 (GST Act);


 


Intercreditor
Deed means the deed entitled “Intercreditor
Deed” dated on or about the date of this deed between Hertz International, Ltd,
the Original Obligors party thereto, BNP Paribas in its various capacities, the
Original Banks party thereto, the Intra-Group Creditors party thereto and the
Intra-Group Debtors party thereto;


 


Marketable Securities has the following meaning:


 


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


 


(b)           any unit (whatever called) in a trust estate which represents a
legal or beneficial interest in any of the income or assets of a trust estate
and includes,


 


2

















 


but is not limited to, any option to
acquire any unit as described in this paragraph (b);


 


(c)           any option or right in respect of an unissued share;


 


(d)           any convertible note; and


 


(e)           any instrument or security which is a combination of any of the
above;


 


Mortgage
means the security created by this deed;


 


Mortgaged Property means all of the Mortgagor’s present and future interest in:


 


(a)           the Shares;


 


(b)           the Additional Rights; and


 


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


 


Officer
means:


 


(a)           in
relation to the Mortgagor or the Mortgagee, any Authorised Signatory of it
under the Bridge Facility Agreement;


 


(b)           in
relation to a Receiver or an Attorney which is a corporation, any officer, as
that expression is defined in section 9 of the Corporations Act, of that
Receiver or Attorney;


 


Payment Currency means the currency in which any payment is actually made;


 


Power means any right, power, authority, discretion or remedy conferred
on the Mortgagee, 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 Company, the Mortgagee and Perpetual Trustee Company
Limited;


 


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


 


Relevant
Currency means the currency in which a
payment is required to be made under the Transaction Documents and, if not
expressly stated to be another currency, is Dollars;


 


Secured
Moneys means all debts and monetary
liabilities of the Company to the Mortgagee 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, duties or other imposts, damages (whether for breach of contract or tort
or incurred on any other ground), losses, costs or expenses, or on any other
account;


 


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


 


3

















 


(1)           the assignment
to the Mortgagee of any debt or liability of the Company; or


 


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


 


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


 


(g)           comprise
any combination of the above;


 


Shares
means any shares in the Company;


 


Title
Document means any original, duplicate or
counterpart certificate or document evidencing title or ownership of an asset
including, but not limited to, any contract note, entitlement notice, marked
transfer or 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 Mortgagor and the Mortgagee 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 Mortgagor;


 


(b)           the Company; 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 otherwise
requires:


 


(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 importing a natural person includes any company, partnership, joint
venture, association, corporation or other body corporate and any Government
Agency;


 


(e)           a
reference to any thing (including, but not limited to, 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;


 


4

















 


(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 a party to a document includes that party’s successors and
permitted assigns;


 


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


 


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


 


(l)            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;


 


(m)          a
reference to an asset includes all property of any nature, including, but not
limited to, a business, and all rights, revenues and benefits;


 


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


 


(o)           a
reference to liquidation includes official management, appointment of an
administrator, compromise, arrangement, merger, amalgamation, reconstruction,
winding-up, dissolution, 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;


 


(p)           a
reference to a body, other than a party to this deed (including, without
limitation, 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; and


 


(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.


 


(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.


 


5

















 


1.4          Business
Day


 


Where 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.


 


1.6          Consent
of Mortgagor


 


The Mortgagor (as the sole member of the Company):


 


(a)           consents
to the Company entering into and performing its obligations under the Documents
to which it is a party;


 


(b)           acknowledges
that the Mortgagee has entered into the Documents in reliance on the consent
given in clause 1.6(a); and


 


(c)           agrees
not to pass any resolution of the Company or given any direction to the Company
or take any other action which would:


 


(1)           result
in a breach of any Document by the Company; or


 


(2)           alter
the nature of the business of the Company.


 


1.7          Limited
recourse


 


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


 


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


 


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


 


(2)           levy
execution or bring any other proceedings (other than to enforce the Mortgage)
against any property of the Mortgagor which does not form part of the Mortgaged
Property to recover any part of the Secured Moneys.


 


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


 


(d)           Nothing
in this clause 1.7 affects the right of the Mortgagee or the liability of the
Mortgagor with respect to fraud, negligence or breach of warranty by the
Mortgagor.


 


6

















 


2              Mortgage


 


2.1          Mortgage


 


The Mortgagor as beneficial owner mortgages and assigns the Mortgaged
Property to the Mortgagee as security for the due and punctual payment of the
Secured Moneys.


 


2.2          Priority


 


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


 


2.3          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
Mortgagee may from time to time lodge a notice under section 268(2) of
the Corporations Act on behalf of the Mortgagor specifying an increase in the
maximum amount of the prospective liability referred to in clause 2.3(a) and
from the date of lodgment the amount specified in clause 2.3(a) is to
be regarded as varied to the amount specified in that notice.


 


(c)           Neither
clause 2.3(a) nor clause 2.3(b) in any way affects or limits the actual amount of Secured Moneys which may in
fact be secured by the Mortgage.


 


(d)           Clauses 2.3(a),
(b) and (c) are to be construed independently of each other.


 


3              Discharge of the Mortgage


 


3.1          Discharge


 


The Mortgagee must discharge from the Mortgage the Mortgaged 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 Mortgagee is under no further
actual or contingent obligation to provide financial accommodation to the
Mortgagor or any other person under any Transaction Document;


 


(b)           the
Mortgagee 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
Mortgagor requests such discharge and pays to the Mortgagee 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,


 


7

















 


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 Mortgaged
Property is a Permitted Disposal, the relevant property will be deemed to be
automatically released from the Mortgage with effect from the day of such
disposal and the Mortgagee will (at the expense of the Mortgagor) do all such
acts as are reasonably requested by the Mortgagor in order to release such
property.


 


4              Representations and warranties


 


4.1          Representations
and warranties


 


The Mortgagor represents and warrants that:


 


(a)           representations
true: each of the representations and warranties
given in clause 4.2 is true and correct when made or repeated or regarded as
made or repeated;


 


(b)           legal
and beneficial owner:


 


(1)           it is
the legal and beneficial owner of the Mortgaged Property; and


 


(2)           on it
acquiring any property forming part of the Mortgaged Property, it will be the
legal and beneficial owner of that property,


 


and no person other than the Mortgagee holds or is entitled to hold an
interest in the Mortgaged Property other than under a Permitted Encumbrance;


 


(c)           no
Encumbrances: there is no Encumbrance over any of
the Mortgaged Property other than:


 


(1)           an
Encumbrance created by a Transaction Document; and


 


(2)           a
Permitted Encumbrance;


 


(d)           securities
fully paid: all Marketable Securities forming part
of the Mortgaged Property are, or upon acquisition will be, fully paid;


 


(e)           no
further securities: it is the holder of all the
Shares and there is no agreement, arrangement or understanding under which
further Marketable Securities with rights of conversion to Shares may be issued
to any person;


 


(f)            no
assignment of Distributions: no dividend, other
Distribution, right, power, authority, discretion or remedy in respect of any
of the Mortgaged Property has been assigned or Encumbered, or agreed to be
assigned or Encumbered, to any person other than under:


 


(1)           any
Encumbrance created by a Transaction Document; or


 


8

















 


(2)           any
Permitted Encumbrance;


 


(g)           constitutional
documents: its constitutional documents do not and
could not:


 


(1)           restrict
the creation of the Mortgage; or


 


(2)           inhibit
any transfer of the Shares on enforcement of the Mortgage; and


 


(h)           location
of Mortgaged Property: on the date of execution of
this deed, all of the Mortgaged Property is located, or taken for stamp duty
purposes to be located, in Victoria.


 


4.2          Bridge
Facility Agreement representations and warranties


 


The Mortgagor makes each of the representations and warranties set out
in clause 19 of the Bridge Facility Agreement as if that clause were set out in
full in this deed and as if:


 


(a)           references
to “Obligor” or “Obligors” were references to the Mortgagor;


 


(b)           references
to “this Agreement” were to this deed; and


 


(c)           capitalised
terms used in that clause have the meaning given in the Bridge Facility
Agreement.


 


4.3          Survival
of representations and warranties


 


The representations and warranties in clauses 4.1 and 4.2:


 


(a)           survive
the execution of this deed; and


 


(b)           are
repeated on each date on which the representations and warranties under the
Purchase Deed are repeated with respect to the facts and circumstances then
subsisting.


 


4.4          Reliance


 


The Mortgagor acknowledges that it has not entered into this deed or
any Transaction Document in reliance on any representation, warranty, promise
or statement made by the Mortgagee or any person on behalf of the Mortgagee.


 


5              Undertakings of the Mortgagor


 


5.1          Dividends
and voting


 


(a)           Until
an Event of Default occurs:


 


(1)           the
Mortgagor may receive all Distributions in respect of the Mortgaged Property;
and


 


(2)           the
Mortgagor may exercise all voting powers in respect of the Mortgaged Property,


 


without the need for any consent or direction from the Mortgagee.


 


(b)           The
Mortgagor must not:


 


9

















 


(1)           exercise
any voting powers in respect of the Mortgaged Property under clause 5.1(a)(2) in
any way; or


 


(2)           otherwise
permit or agree to any variation of the rights attaching to or conferred by any
of the Shares or any increase in the issued share capital of the Company,


 


which might adversely affect the value of the Mortgaged Property or the
ability to enforce the Mortgage or cause an Event of Default to occur.


 


(c)           If an
Event of Default occurs, the rights of the Mortgagor under clause 5.1(a) immediately
cease and the Mortgagee, Receiver or Attorney is entitled to receive all
Distributions and exercise all voting powers in respect of the Mortgaged
Property to the exclusion of the Mortgagor.


 


5.2          Designated
Account


 


(a)           If an
Event of Default occurs and is continuing, the Mortgagee may require the
Mortgagor to open and maintain the Designated Account at a bank and branch
approved by the Mortgagee on terms complying with this deed.


 


(b)           Nominated
Officers of the Mortgagee must be signatories to the Designated Account and no
withdrawal can be made from the Designated Account without the signature of one
of those Officers.


 


(c)           Immediately
after opening the Designated Account, the Mortgagor must:


 


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


 


(2)           obtain
an acknowledgment from the Designated Bank of that mortgage and the notice;


 


(3)           obtain
an agreement from the Designated Bank that it will not repay any money in the
Designated Account to the Mortgagor or any other person without the prior
written consent of the Mortgagee;


 


(4)           obtain
an agreement from the Designated Bank that it waives all rights of set-off and
combination in respect of the Designated Account;


 


(5)           obtain
an agreement from the Designated Bank that it must not exercise an Encumbrance
in respect of the Designated Account;


 


(6)           obtain
an agreement from the Designated Bank that the agreement of the Designated Bank
may not be varied or terminated without the prior written consent of the
Mortgagee.


 


(d)           After
the occurrence of an Event of Default while it is continuing, the Mortgagor
must deposit, or cause to be deposited, all Distributions in the Designated
Account.


 


5.3          Other
Additional Rights


 


(a)           The
Mortgagor may acquire, at its own cost, any Additional Rights (other than
Distributions) it is entitled to acquire but upon acquisition must


 


10

















 


comply
with clause 5.10 in respect of the Title Documents to those Additional Rights.


 


(b)           The
Mortgagor must immediately notify the Mortgagee as soon as the Mortgagor
becomes aware of any entitlement to any Additional Rights.


 


5.4          Performance
under the Transaction Documents


 


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


 


(b)           Without
limiting clause 5.4(a), the Mortgagor must pay the Secured Moneys to the
Mortgagee in accordance with this deed, each other Transaction Document and
each other obligation under which the Secured Moneys are payable.


 


(c)           The
Mortgagor must ensure that no Event of Default occurs. Without affecting the
liability of the Mortgagor or the Powers in any other respect (including where
a breach of this clause 5.4(c) is also a breach of another provision of a
Transaction Document), the Mortgagor is not liable in damages for breach of
this clause 5.4(c) but, subject to clause 6.1, the Mortgagee may exercise
its Powers consequent upon or following that breach.


 


5.5          Notices
to the Mortgagee


 


The Mortgagor must give notice to the Mortgagee as soon as it becomes
aware of any of the following:


 


(a)           any
Event of Default occurring;


 


(b)           any
Potential Event of Default occurring;


 


(c)           any
litigation, arbitration or administrative proceeding in respect of the
Mortgagor or the Mortgaged Property being commenced or threatened;


 


(d)           any
Encumbrance, other than any Transaction Document, being created or entered into
in respect of the Mortgaged Property or by any Subsidiary of the Mortgagor;


 


(e)           any
Guarantee, other than any Transaction Document, being created or entered into
by the Mortgagor or any Subsidiary of the Mortgagor; and


 


(f)            any
proposal of, or notification being given to, the Mortgagor by any Government
Agency requiring the divestiture of any of the Mortgaged Property;


 


(g)           the
acquisition of any Additional Rights or the right to acquire any Additional
Rights; and


 


(h)           any
proposed special resolutions or general meetings of the Company.


 


5.6          Maintenance
of the Mortgaged Property


 


The Mortgagor must maintain and protect the Mortgaged Property and
must, without limitation:


 


(a)           remedy
every defect in its title to any part of the Mortgaged Property;


 


11

















 


(b)           take
or defend all legal proceedings or other action as the Mortgagee thinks
advisable for the protection or recovery of any of the Mortgaged Property;


 


(c)           fully
and punctually comply with all applicable laws, and requirements of any
Government Agency where non-compliance would or might impose some Encumbrance
or other liability, restriction or disability on any of the Mortgaged Property
or prejudicially affect any Power;


 


(d)           keep
the Mortgaged Property valid and subsisting and free from liability to
forfeiture, cancellation, avoidance, divestiture or loss;


 


(e)           pay as
they become due all calls, premiums and other money payable on or in respect of
the Mortgaged Property;


 


(f)            fully
and punctually comply with all obligations under the constitution or other
constituent documents of the Company; and


 


(g)           exercise
any votes in respect of the Mortgaged Property to ensure compliance with this
deed.


 


5.7          Negative
pledge


 


The Mortgagor must not:


 


(a)           deal
with, sell or otherwise part with possession of;


 


(b)           create,
permit, suffer to exist, or agree to, any interest or Encumbrance, other than
an Encumbrance in favour of the Mortgagee or a Permitted Encumbrance over; or


 


(c)           attempt
to do anything listed in clause 5.7(a) and (b) in respect of,


 


any of the Mortgaged Property except as permitted under the Bridge
Facility Agreement-.


 


5.8          Compliance
with statutes


 


The Mortgagor must comply with and observe all statutes and lawful
requirements including, but not limited to, notices, judgments, orders or
decrees of a Government Agency which affect or relate to the Mortgaged
Property.


 


5.9          Further
security


 


The Mortgagor must, whenever requested by the Mortgagee, do or cause to
be done anything which:


 


(a)           more
satisfactorily mortgages, secures the priority of the Mortgage or assures to
the Mortgagee the Mortgaged Property or any part of it in a manner not
inconsistent with any provision of any Transaction Document; or


 


(b)           aids
in the exercise of any Power,


 


including, but not limited to, the execution of any document or the
execution and delivery of blank transfers.


 


12

















 


5.10        Title
Documents


 


(a)           The
Mortgagor must deposit with the Mortgagee, or as the Mortgagee directs, all the
Title Documents in respect of any of the Mortgaged Property immediately on:


 


(1)           the
Mortgagor’s execution of this deed;


 


(2)           acquisition
of any asset which forms part of the Mortgaged Property.


 


(b)           Subject
to clause 5.10(c), the Mortgagee may retain the Title Documents until this
Mortgage is discharged under clause 3.


 


(c)           If the
Mortgage is enforced by the Mortgagee, the Mortgagee, Receiver or Attorney is
entitled:


 


(1)           to
deal with the Title Documents as if it was the absolute and unencumbered owner
of the Mortgaged Property to which the Title Documents relate; and


 


(2)           in
exercising a power of sale, to deliver any Title Document to a purchaser of the
Mortgaged Property to which it relates.


 


5.11        Registration
and protection of security


 


(a)           The
Mortgagor must ensure that this deed and each Collateral Security is registered
and filed in all registers in all jurisdictions in which it must be registered
and filed to ensure enforceability, validity and priority against all persons
and to be effective as a security.


 


(b)           Whenever
any part of the Mortgaged Property is transferred to or retained in a place
where this deed or any Collateral Security, because of an increase in the
Secured Moneys or otherwise, bears insufficient stamp duty or is not registered
or recorded, or for any other reason is of limited or of no force or effect,
unenforceable, inadmissible in evidence or of reduced priority, the Mortgagor
must within 14 days after that transfer or retention ensure that:


 


(1)           this
deed and each Collateral Security is stamped to the satisfaction of the
Mortgagee;


 


(2)           this
deed and each Collateral Security is in full force and effect, enforceable,
admissible in evidence and not of reduced priority; and


 


(3)           this
deed and each Collateral Security is registered in that place, or that part of
the Mortgaged Property is removed from that place.


 


5.12        Proxies
and authorised representatives


 


(a)           The
Mortgagor must not:


 


(1)           appoint
any proxy in respect of the Mortgaged Property without the prior written
consent of the Mortgagee;


 


13

















 


(2)           appoint
any authorised representative under section 250D of the Corporations Act
or any attorney in respect of the Mortgaged Property without the prior written
consent of the Mortgagee;


 


(b)           The
Mortgagor must ensure that any proxy, authorised representative or attorney:


 


(1)           complies
with any conditions specified by the Mortgagee in respect of the appointment of
the proxy, authorised representative or attorney; and


 


(2)           complies
with the Transaction Documents.


 


5.13        Irrevocable
direction


 


The Mortgagor must execute and deliver to the Mortgagee on the date of
this deed (or before such later date as the Mortgagee may agree in writing) the
document in the form and substance of schedule 1.


 


5.14        Title
Documents for Mortgaged Property


 


(a)           While
Title Documents for Mortgaged Property are, or in accordance with this deed
should be, lodged with the Mortgagee, the Mortgagor must not elect to convert
evidence of the Mortgaged Property from certificates to an uncertificated mode
for the purposes of any automated transfer system operated by the Australian
Stock Exchange Limited.


 


(b)           If the
Mortgagor makes any election referred to in clause 5.14(a), the Mortgagee
may treat it as having no effect.


 


5.15        Undertakings
in Bridge Facility Agreement


 


The Mortgagor undertakes to perform each of the covenants, undertakings
and agreements in each of clauses 20.5, 20.7, 21, 22, 36, 43 and 44 of the Bridge
Facility Agreement and clauses 3.2, 4 and 16 of the Intercreditor Deed as if each of those clauses were
set out in full in this deed and:


 


(a)           references to “Obligor” or “Obligors”
were references to the Mortgagor;


 


(b)           in the case of the relevant
clauses of the Bridge Facility Agreement, references to “this Agreement” were
to this deed;


 


(c)           in the
case of the relevant clauses of the Intercreditor Deed, references to “this
Deed” were to this deed; and


 


(d)           capitalised
terms used in those clauses have the meaning given in the Bridge Facility
Agreement or the Intercreditor Deed (as the case may be).


 


5.16        Term
of undertakings


 


Each of the Mortgagor’s undertakings in this clause 5 continues in
full force and effect from the date of this deed until the Mortgage is
discharged under clause 3.


 


14

















 


6             Enforcement


 


6.1          When
enforceable


 


Upon the occurrence of an Accelerated Event of Default:


 


(a)           the
Mortgage and each Collateral Security are immediately enforceable;


 


(b)           the
Secured Moneys are immediately due and payable by the Mortgagor; and


 


(c)           the
right of the Mortgagor to deal, for any purpose, with any of the Mortgaged
Property, other than by or through a Receiver appointed under this deed,
immediately ceases,


 


without the need for any demand or notice to be given to the Mortgagor
or any other person.


 


6.2          Assistance
in realisation


 


Upon the occurrence of an Accelerated Event of Default, the Mortgagor
must take all action required by the Mortgagee, Receiver or Attorney to assist
any of them in the realisation of the Mortgaged Property and the exercise of
any Power including, but not limited to:


 


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


 


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


 


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


 


7             Receiver


 


7.1          Appointment
of Receiver


 


At any time after the occurrence of an Accelerated Event of Default and
while it is continuing, the Mortgagee 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 Mortgaged 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
Mortgaged Property.


 


7.2          Agency
of Receiver


 


(a)           Subject
to clause 7.5, every Receiver is the agent of the Mortgagor.


 


15

















 


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


 


7.3          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, power to do any of the following whether or not in
possession of the Mortgaged Property or any part of it:


 


(a)           manage
or control: to manage, take possession of Title
Documents or assume control of any of the Mortgaged Property;


 


(b)           sale: to sell or concur in selling any of the Mortgaged Property to any
person:


 


(1)           by
auction, private treaty or tender;


 


(2)           on
such terms and special conditions as the Mortgagee 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,


 


and to complete a share transfer in favour of the Mortgagee, or any
other person designated by the Mortgagee;


 


(c)           grant
options to purchase: to grant to any person an
option to purchase any of the Mortgaged Property;


 


(d)           acquire
property: to acquire any interest in any property,
in the name or on behalf of the Mortgagor, which on acquisition forms part of
the Mortgaged Property;


 


(e)           borrowings
and security:


 


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


 


(2)           to
secure money raised or borrowed under clause 7.3(e)(1) by an
Encumbrance over any of the Mortgaged Property, ranking in priority to, equal
with, or after, the Mortgage or any Collateral Security;


 


(f)            income
and bank accounts: to do anything to manage or
obtain income from any of the Mortgaged Property including, but not limited to,
operating any bank account which forms part of the Mortgaged Property or
opening and operating a new bank account;


 


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


 


(h)           surrender
Mortgaged Property: to surrender or transfer any of
the Mortgaged Property to any person;


 


16

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(n)           take
proceedings: to commence, discontinue, prosecute,
defend, settle or compromise in its name or the name or on behalf of the
Mortgagor, any proceedings including, but not limited to, proceedings in
relation to any insurance in respect of any of the Mortgaged Property;


 


(o)           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, but not limited to, attending and voting at creditors’ meetings and
appointing proxies for those meetings;


 


(p)           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
Mortgagor for any of the purposes of this deed;


 


(q)           rights: to exercise any right, power, authority, discretion or remedy in
respect of the Mortgaged Property including, but not limited to:


 


(1)           any voting
right or power;


 


(2)           the
acceptance of any rights issue;


 


(3)           proving
in any liquidation, scheme of arrangement or other composition for or
arrangement with a member or any secured or unsecured creditor and whether or
not under an order of the court;


 


(4)           consenting
on behalf of the Mortgagor in respect of the proof referred to in
clause 7.3(q)(3); and


 


(5)           receiving
all Distributions;


 


(r)            ability
of Mortgagor: to do anything the Mortgagor could do
in respect of the Mortgaged Property; and


 


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


 


17

















 


7.4          Nature
of Receiver’s Powers


 


The Powers of the Receiver are to be construed independently and none
limits the generality of any other. Any dealing under any Power of the Receiver
will be on the terms and conditions the Receiver thinks fit.


 


7.5          Status
of Receiver after commencement of winding up


 


(a)           The
power to appoint a Receiver under clause 7.1 may be exercised even if at
the time an Accelerated Event of Default occurs or, at the time when a Receiver
is appointed, an order has been made or a resolution has been passed for the
winding-up of the Mortgagor.


 


(b)           If for
any reason, including, but not limited to operation of law, a Receiver:


 


(1)           appointed
in the circumstances described in clause 7.5(a); or


 


(2)           appointed
at any other time,


 


ceases to be the agent of the Mortgagor upon or by virtue of, or as a
result of, an order being made or a resolution being passed for the winding-up
of the Mortgagor, the Receiver immediately becomes the agent of the Mortgagee.


 


7.6          Powers
exercisable by the Mortgagee


 


(a)           Whether
or not a Receiver may be appointed under clause 7.1, the Mortgagee may, on
or after the occurrence of an Accelerated Event of Default and without giving
notice to any person, exercise any Power of the Receiver in addition to any
Power of the Mortgagee.


 


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


 


7.7          Set-off


 


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


 


7.8          Notice
of exercise of rights


 


The Mortgagee, Receiver or Attorney is not required:


 


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


 


(b)           to
enforce payment of any money payable to the Mortgagor including, but not
limited to, any of the debts or monetary liabilities charged by this deed or by
any Collateral Security; or


 


18

















 


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


 


7.9          Termination
of receivership and possession


 


The Mortgagee may, at any time, terminate the appointment of a Receiver
and may, at any time, give up possession of the Mortgaged Property.


 


8             Application and receipts of money


 


8.1          Order
of application


 


At any time after the occurrence of an Accelerated Event of Default,
all money received by the Mortgagee, 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 as the Mortgagee,
Receiver, Attorney or that other person in its, to the extent not prohibited by
law, absolute discretion determines, or failing a determination must be applied
in the following manner and order:


 


(a)           first,
in payment of all amounts which, to the extent required by law, have priority
over the payments specified in the balance of clause 8.1;


 


(b)           second,
in payment of all costs, charges and expenses (including any GST) of the
Mortgagee, Receiver or Attorney incurred in or incidental to the exercise or
performance or attempted exercise or performance of any Power;


 


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


 


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


 


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


 


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


 


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


 


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


 


19

















 


8.2          Money
actually received


 


In applying any money towards satisfaction of the Secured Moneys the
Mortgagor 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 Mortgagee, Receiver or Attorney. The credit dates from the time
of receipt.


 


8.3          Amounts
contingently due


 


(a)           If at
the time of a distribution of any money under clause 8.1 any part of the
Secured Moneys is contingently owing to the Mortgagee, the Mortgagee, Receiver
or Attorney may retain an amount equal to the amount contingently owing or any
part of it.


 


(b)           If the
Mortgagee, Receiver or Attorney retains any amount under clause 8.3(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 Mortgagee, Receiver or Attorney must:


 


(1)           pay to
the Mortgagee 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 8.1.


 


8.4          Notice
of a subsequent Encumbrance


 


(a)           If the
Mortgagee receives actual or constructive notice of a subsequent Encumbrance in
respect of the Mortgaged Property, the Mortgagee:


 


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


 


(2)           is
regarded as having opened a new account in the name of the Mortgagor 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 Mortgagor to the Mortgagee; and


 


(2)           all
financial accommodation and advances by the Mortgagee to the Mortgagor,


 


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


 


(c)           The
payments by the Mortgagor under clause 8.4(b) must be applied:


 


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


 


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


 


20

















 


8.5          Mortgagee’s
statement of indebtedness


 


A certificate signed by any Officer of the Mortgagee 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 prima facie evidence of that amount as at the date stated on the
certificate or failing that as at the date of the certificate.


 


8.6          Mortgagee’s
receipts


 


(a)           The
receipt of any Officer of the Mortgagee for any money payable to or received by
the Mortgagee 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 Mortgagee 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.


 


8.7          Conversion
of currencies on application


 


In making an application under clause 8.1, the Mortgagee, Receiver
or Attorney may itself or through its bankers purchase one currency with
another, whether or not through an intermediate currency, whether spot or
forward, in the manner and amounts and at the times it thinks fit.


 


8.8          Payments
in gross


 


All payments which the Mortgagor is required to make under any
Transaction Document must be:


 


(a)           without
any set-off, counter-claim or condition; and


 


(b)           without
any deduction or withholding for any Tax or any other reason unless the
Mortgagor is required to make a deduction or withholding by applicable law.


 


8.9          Additional
payments


 


If:


 


(a)           the
Mortgagor is required to make a deduction or withholding in respect of Tax,
other than an Excluded Tax, from any payment to be made to the Mortgagee under
any Transaction Document; or


 


(b)           the
Mortgagee is required to pay any Tax, other than an Excluded Tax, in respect of
any payment it receives from the Mortgagor under any Transaction Document,


 


then the Mortgagor:


 


21

















 


(c)           indemnifies
the Mortgagee against that Tax; and


 


(d)           must
pay to the Mortgagee an additional amount as the Mortgagee determines to be
necessary to ensure that the Mortgagee receives when due a net amount (after
payment of any Tax, other than an Excluded Tax, in respect of that additional
amount) that is equal to the full amount it would have received had a
deduction, withholding or payment of Tax not been made.


 


8.10        Taxation
deduction procedures


 


If the Mortgagor is required to make a deduction or withholding in respect
of Tax from any payment to be made to the Mortgagee under any Transaction
Document, then:


 


(a)           the
Mortgagor must pay the amount deducted or withheld to the appropriate
Government Agency as required by applicable law;


 


(b)           the
Mortgagor must use its best endeavours to obtain official receipts or other
documentation from that Government Agency and within 2 Business Days after
receipt, the Mortgagor must deliver them to the Mortgagee.


 


8.11        Amounts
payable on demand


 


If any of the Secured Moneys is not expressed in a Transaction Document
or elsewhere to be payable on a specified date, that amount is payable by the
Mortgagor on demand by the Mortgagee.


 


8.12        Currency
of payments


 


The Mortgagor must make each payment under this deed in the Relevant
Currency.


 


9              Power of Attorney


 


9.1          Appointment
of Attorney


 


In consideration of the Mortgagee entering into the Transaction
Documents, the Mortgagor irrevocably appoints each Receiver and each Officer of
the Mortgagee severally its Attorney for the purposes set out in
clause 9.2.


 


9.2          Purposes
of appointment


 


The Attorney may, in its name or in the name of the Mortgagor,
Mortgagee or Receiver, at any time after the occurrence of an Accelerated Event
of Default and while it is continuing do any of the following:


 


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


 


(b)           exercise
any right, power, authority, discretion or remedy of the Mortgagor under:


 


(1)           this
deed;


 


(2)           any
other Transaction Document; or


 


22

















 


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


 


(c)           do
anything which in the opinion of the Mortgagee, Receiver or Attorney is
necessary or expedient for securing or perfecting the Mortgage and any
Collateral Security;


 


(d)           execute
in favour of the Mortgagee any legal mortgage, transfer, assignment and any
other assurance of any of the Mortgaged Property;


 


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


 


(f)            do
all things necessary to enable a transfer to be registered in favour of the
Mortgagee, its nominee or any other person as the Mortgagee directs and deliver
any Title Documents as the Mortgagee directs;


 


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


 


(h)           generally,
do any other thing, whether or not of the same kind as those above, which in
the opinion of the Mortgagee, Receiver or Attorney is necessary or expedient
for more satisfactorily securing to the Mortgagee the payment of the Secured
Moneys or is necessary or expedient in relation to any of the Mortgaged
Property.


 


9.3          Delegation
and substitution


 


The Attorney may, at any time, for any of the purposes in
clause 9.2, appoint or remove any substitute or delegate or sub-attorney.


 


10           Protection


 


10.1        Protection
of third parties


 


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


 


(1)           the
Mortgage has become enforceable;


 


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


 


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


 


(b)           No person
dealing with the Mortgagee, 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 Mortgagor and this deed, and is
valid.


 


10.2        Protection
of the Mortgagee, Receiver and Attorney


 


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


 


23

















 


(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 Mortgagor, the Receiver or Attorney.


 


(b)           Clause 10.2(a) does
not apply:


 


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


 


11           Indemnities


 


11.1        General
indemnity


 


The Mortgagor indemnifies the Mortgagee against any claim, action,
damage, loss, liability, cost, charge, expense, outgoing or payment which the
Mortgagee, Receiver (whether acting as agent of the Mortgagor or of the
Mortgagee) or Attorney pays, suffers, incurs or is liable for, in respect of
any of the following:


 


(a)           the
occurrence of any Potential Event of Default or Event of Default;


 


(b)           the
Mortgagee exercising its Powers consequent upon or arising out of the
occurrence of any Potential Event of Default or Event of Default;


 


(c)           the
non exercise, attempted exercise, exercise or delay in the exercise of any
Power;


 


(d)           any
act or omission of the Mortgagor or any of its employees or agents;


 


(e)           the
dealing with or ownership of any of the Mortgaged Property by the Mortgagor or
any of its employees or agents;


 


(f)            any
divestiture of any of the Mortgaged Property; and


 


(g)           any
other thing which is in respect of the Mortgage or the Mortgaged Property.


 


11.2        Foreign
currency indemnity


 


If, at any time:


 


(a)           the
Mortgagee, Receiver or Attorney receives or recovers any amount payable by the
Mortgagor for any reason including, but not limited to:


 


(1)           any
judgment or order of any Government Agency;


 


(2)           any
breach of any Transaction Document;


 


(3)           the
liquidation or bankruptcy of the Mortgagor or any proof or claim in that
liquidation or bankruptcy; or


 


24

















 


(4)           any
other thing into which the obligations of the Mortgagor may have become merged;
and


 


(b)           the
Payment Currency is not the Relevant Currency,


 


the Mortgagor indemnifies the Mortgagee against any shortfall between
the amount payable in the Relevant Currency and the amount actually received or
recovered by the Mortgagee, Receiver or Attorney after the Payment Currency is
converted into the Relevant Currency in accordance with clause 8.7.


 


11.3        Continuing
indemnities


 


(a)           Each
indemnity of the Mortgagor contained in this deed is a continuing obligation of
the Mortgagor, despite:


 


(1)           any
settlement of account; or


 


(2)           the
occurrence of any other thing,


 


and remains in full force and effect until:


 


(3)           all
moneys owing, contingently or otherwise, under any of them have been paid in
full; and


 


(4)           the
Mortgage in respect of all the Mortgaged Property has been finally discharged
under clause 3.


 


(b)           Each
indemnity of the Mortgagor in this deed:


 


(1)           is an
additional, separate and independent obligation of the Mortgagor and no one
indemnity limits the generality of any other indemnity; and


 


(2)           survives
the termination of any Transaction Document.


 


12           Tax, costs and expenses


 


12.1        Tax


 


(a)           The
Mortgagor must pay any Tax, other than an Excluded Tax, in respect of the
execution, delivery, performance, release, discharge, amendment, enforcement or
attempted enforcement or otherwise in respect of any of the following:


 


(1)           any
Transaction Document;


 


(2)           any
agreement or document entered into or signed under any Transaction Document;
and


 


(3)           any
transaction contemplated under any Transaction Document or any agreement or
document described in clause 12.1(a)(2).


 


(b)           The
Mortgagor must pay any fine, penalty or other cost in respect of a failure to
pay any Tax described in clause 12.1(a) except to the extent that the
fine, penalty or other cost is caused by the Mortgagee’s failure to lodge money
received from the Mortgagor within 5 Business Days before the due date for
lodgement.


 


25

















 


(c)           The
Mortgagor indemnifies the Mortgagee against any amount payable under
clause 12.1(a) or clause 12.1(b) or both.


 


12.2        GST


 


(a)           To the
extent that any supply made under or in connection with this deed is a taxable
supply, the recipient must pay, in addition to the consideration to be provided
under this deed for that supply (unless it expressly includes GST) an amount (additional amount) equal to the amount of that consideration
(or its GST exclusive market value) multiplied by the rate at which GST is
imposed in respect of the supply.


 


(b)           Terms
used in this clause which are defined in the GST Act have the same meaning in
this clause.


 


(c)           If
either party is entitled under this deed to be reimbursed or indemnified by the
other party for a cost or expense incurred in connection with this deed, the
reimbursement or indemnity payment must not include any GST component of the
cost or expense for which an input tax credit may be claimed by the party being
reimbursed or indemnified, or by its representative member.


 


12.3        Costs
and expenses


 


The Mortgagor must pay all costs and expenses of the Mortgagee and any
employee, Officer, agent or contractor of the Mortgagee in relation to:


 


(a)           the
negotiation, preparation, execution, delivery, stamping, registration,
completion, variation and discharge of any Transaction Document or other
agreement or document described in clause 12.1(a);


 


(b)           the
enforcement, protection or waiver, or attempted or contemplated enforcement or
protection, of any rights under any Transaction Document or other agreement or
document described in clause 12.1(a);


 


(c)           the
consent or approval of the Mortgagee given under any Transaction Document or
other agreement or document described in clause 12.1(a); and


 


(d)           any
enquiry by any Government Agency involving the Mortgagor,


 


including, but not limited to, any administration costs of the
Mortgagee in connection with the matters referred to in clause 12.3(b) and
(d) and any legal costs and expenses and any professional consultant’s
fees for any of the above on a full indemnity basis.


 


13           Interest on overdue amounts


 


13.1        Payment
of interest


 


The Mortgagor must pay interest on any of the Secured Moneys due and
payable, but unpaid and on any interest payable but unpaid under
clause 13.


 


26

















 


13.2        Accrual
of interest


 


The interest payable under clause 13.1:


 


(a)           accrues
from day to day from and including the due date for payment up to the actual
date of payment, before and, as an additional and independent obligation, after
any judgment or other thing into which the liability to pay the Secured Moneys
becomes merged; and


 


(b)           may be
capitalised by the Mortgagee, Receiver or Attorney at monthly intervals.


 


13.3        Rate
of interest


 


The rate of interest payable under this clause 13 is the highest
of:


 


(a)           any
rate specified in any Transaction Document; and


 


(b)           the
rate fixed or payable under a judgment or other thing referred to in clause 13.2(a).


 


14           Saving provisions


 


14.1        Statutory
powers


 


(a)           The
powers of the Mortgagee under this deed or any Collateral Security are in
addition to any powers the Mortgagee 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 Mortgagee 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.


 


14.2        Continuing
security


 


The Mortgage is a continuing security despite any settlement of account
or any other thing until the Mortgagee has given a discharge of the Mortgage in
respect of all the Mortgaged Property under clause 3.


 


14.3        No
merger of security


 


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


 


(1)           any
Encumbrance in favour of the Mortgagee at any time;


 


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


 


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


 


27

















 


(b)           No
other Encumbrance including, but not limited to, any Collateral Security, held
by the Mortgagee in any way prejudicially affects any right, Power, authority,
discretion or remedy of the Mortgagee under this deed.


 


14.4        Exclusion
of moratorium


 


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


 


(a)           lessens
or otherwise varies or affects in favour of the Mortgagor any obligations under
this deed or any Collateral Security; or


 


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


 


is negatived and excluded from this deed and any Collateral Security
and all relief and protection conferred on the Mortgagor by or under that
legislation is also negatived and excluded.


 


14.5        Conflict


 


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


 


14.6        Consent
of Mortgagee


 


Whenever the doing of any thing by the Mortgagor is dependent upon the
consent or approval of the Mortgagee, the Mortgagee may withhold its consent or
approval or give it conditionally or unconditionally in its absolute discretion
unless expressly stated otherwise. Any conditions must be complied with by the
Mortgagor.


 


14.7        Completion
of blank securities


 


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


 


14.8        Principal
obligations


 


The Mortgage 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
however created; and


 


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


 


28

















 


14.9        No
obligation to marshal


 


The Mortgagee is not required, before it enforces the Mortgage, 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 Mortgagee; or


 


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


 


14.10      Non-avoidance


 


If any payment by the Mortgagor to the Mortgagee is at any time avoided
for any reason including, but not limited to, any legal limitation, disability
or incapacity of or affecting the Mortgagor 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 Mortgagee,


 


the Mortgagor:


 


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


 


(d)           acknowledges
that any liability of the Mortgagor under this deed and any Power is the same
as if that payment had not been made.


 


14.11      Increase in financial
accommodation


 


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


 


15           Third party provisions


 


15.1        Suspense
account


 


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


 


(1)           any
amounts received under this deed;


 


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


 


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


 


(b)           The
Mortgagee 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.


 


29

















 


15.2        Independent
obligations


 


This deed is enforceable against the Mortgagor:


 


(a)           without
first enforcing any Collateral Security;


 


(b)           whether
or not the Mortgagee has:


 


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


 


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


 


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


 


(c)           whether
or not any Secured Moneys are due; and


 


(d)           despite
the occurrence of any event described in clause 15.3.


 


15.3        Unconditional
nature of obligations


 


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


 


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


 


(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 without limitation a release as part of any novation) or
discharge of any Transaction Party or any other person;


 


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


 


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


 


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


 


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


 


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


 


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


 


30

















 


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


 


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


 


(11)         the
Mortgagee, 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
Mortgagee 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 Mortgagee,
any Transaction Party or any other person;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(23)         any
prejudice (including, but not limited to, material prejudice) to any person as
a result of any thing done, or omitted by the Mortgagee, any Transaction Party
or any other person;


 


(24)         any
prejudice (including, but not limited to, material prejudice) to any person as
a result of the Mortgagee, 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, but not limited to, material prejudice) to any person as
a result of any failure or neglect by the Mortgagee, Receiver, Attorney or any
other person to recover the Secured


 


31

















 


Moneys from any Transaction Party or by the
realisation of any property the subject of a Collateral Security;


 


(26)         any
prejudice (including, but not limited to, material prejudice) to any person as
a result of any other thing;


 


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


 


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


 


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


 


(c)           Clauses 15.3(a) and
(b) apply irrespective of:


 


(1)           the
consent or knowledge or lack of consent or knowledge, of the Mortgagee, any
Transaction Party or any other person of any event described in
clause 15.3(b); or


 


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


 


15.4        No
competition


 


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


 


(1)           be
subrogated to the Mortgagee;


 


(2)           claim
or receive the benefit of any Encumbrance, Guarantee (including, but not
limited to, any Transaction Document) or other document or agreement of which
the Mortgagee has the benefit;


 


(3)           claim
or receive the benefit of any moneys held by the Mortgagee;


 


(4)           claim
or receive the benefit of any Power;


 


(5)           subject
to clause 15.4(b), 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;


 


(6)           make a
claim or exercise or enforce any right, power or remedy (including, but not
limited to, under an Encumbrance or Guarantee or by way of contribution)
against any Transaction Party;


 


(7)           accept,
procure the grant of, or allow to exist any Encumbrance in favour of the
Mortgagor from any Transaction Party;


 


(8)           exercise
or attempt to exercise any right of set-off against, nor realise any
Encumbrance taken from, any Transaction Party; or


 


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


 


(b)           If
required by the Mortgagee, the Mortgagor must prove in any liquidation of a
Transaction Party for all moneys owed to the Mortgagor.


 


(c)           All
moneys recovered by the Mortgagor from any liquidation or under any Encumbrance
from a Transaction Party must be received by the Mortgagor


 


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for the
Mortgagee to the extent of the unsatisfied liability of the Mortgagor under the
Transaction Documents.


 


(d)           The
Mortgagor must not do or seek, attempt or purport to do anything referred to in
clause 15.4(a).


 


16           General


 


16.1        Performance
by Mortgagee of the Mortgagor’s obligations


 


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


 


16.2        Mortgagor
to bear cost


 


Any thing which must be done by the Mortgagor under this deed, whether
or not at the request of the Mortgagee, is to be done at the cost of the
Mortgagor.


 


16.3        Notices


 


Any notice or other communication including, but not limited to, 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.


 


16.4        Governing
law and jurisdiction


 


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


 


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


 


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


 


16.5        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.


 


16.6        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


 


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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.


 


16.7        Variation


 


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


 


16.8        Cumulative
rights


 


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


 


16.9        Assignment


 


(a)           Subject
to any Transaction Document, the Mortgagee may assign its rights under this
deed and each Collateral Security without the consent of the Mortgagor.


 


(b)           The
Mortgagor may not assign any of its rights under this deed or any Collateral
Security without the prior written consent of the Mortgagee.


 


16.10      Counterparts


 


(a)           This
deed may be executed in any number of counterparts.


 


(b)           All
counterparts, taken together, constitute one instrument.


 


(c)           A
party may execute this deed by signing any counterpart.


 


16.11      Attorneys


 


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


 


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Executed as a deed:


 


MORTGAGOR:


 


Signed sealed and delivered for


Hertz Investment (Holdings) 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)

  



 


MORTGAGEE:


 


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)

  



 


35