exv4w41








Exhibit 4.41


CONFORMED COPY










Fixed and floating charge



Asbestos Injuries Compensation Fund Limited

ACN 117 363 461

in its capacity as trustee of the Charitable Fund established under a trust deed dated 7 April 2006

(as amended and restated) between it as trustee and James Hardie Industries SE as settlor




ABN 60 Pty Limited (under NSW administered winding up)

ACN 000 009 263




Amaca Pty Ltd (under NSW administered winding up)

ACN 000 035 512




Amaba Pty Ltd (under NSW administered winding up)

ACN 000 387 342




The State of New South Wales




Gilbert + Tobin




2 Park Street

Sydney NSW 2000

Australia




GPO Box 3810

Sydney NSW 2001




T +61 2 9263 4000

F +61 2 9263 4111




DX 10348 SSE




www.gtlaw.com.au




 









 





	 	 	 	 	 
	Contents	 	Page	 
	1 Defined terms and interpretation
	 	 	1	 
	1.1 Definitions in the Dictionary
	 	 	1	 
	1.2 Interpretation
	 	 	1	 
	2 Charge
	 	 	1	 
	2.1 Charge
	 	 	1	 
	2.2 Priority
	 	 	2	 
	2.3 Consideration
	 	 	2	 
	2.4 Fixed charge
	 	 	2	 
	2.5 Floating charge
	 	 	2	 
	2.6 Dealing with proceeds — Bank Accounts
	 	 	2	 
	2.7 Proceeds and Book Debts
	 	 	3	 
	2.8 Crystallisation
	 	 	4	 
	2.9 De-crystallisation
	 	 	5	 
	2.10 Prospective liability
	 	 	5	 
	2.11 Increase in prospective liability
	 	 	5	 
	2.12 Dealing with proceeds of Book Debts
	 	 	5	 
	3 Release of the charge
	 	 	6	 
	3.1 Release of Charge
	 	 	6	 
	3.2 Partial release of Charge
	 	 	6	 
	3.3 Reinstatement of Charge
	 	 	6	 
	3.4 Release of Title Documents
	 	 	7	 
	3.5 Continuing security
	 	 	7	 
	4 Representations and warranties
	 	 	7	 
	4.1 Representations and warranties
	 	 	7	 
	4.2 Survival of representations and warranties
	 	 	7	 
	4.3 Reliance
	 	 	7	 
	5 Undertakings of the Chargor
	 	 	7	 
	5.1 Performance under Transaction Documents
	 	 	7	 
	5.2 Undertakings about the Secured Property
	 	 	8	 





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	5.3 Negative pledge
	 	 	8	 
	5.4 Registration and protection of security
	 	 	9	 
	5.5 Term of undertakings
	 	 	9	 
	6 Events of default
	 	 	9	 
	6.1 Consequences of an Event of Default
	 	 	9	 
	6.2 Assistance in realisation
	 	 	10	 
	6.3 Title documents
	 	 	10	 
	6.4 Completion of blank securities
	 	 	10	 
	7 Powers on default
	 	 	10	 
	7.1 Chargee’s powers
	 	 	10	 
	7.2 Chargee may enter Secured Property
	 	 	12	 
	7.3 Right to rectify
	 	 	12	 
	7.4 Nature of Chargee’s powers
	 	 	12	 
	7.5 Not mortgagee in possession
	 	 	13	 
	7.6 Give up possession
	 	 	13	 
	7.7 Exclusion of liability
	 	 	13	 
	7.8 Protection of third parties
	 	 	13	 
	7.9 Disposal final
	 	 	13	 
	7.10 No notice required unless mandatory
	 	 	14	 
	7.11 Mandatory notice period
	 	 	14	 
	8 Appointment of receiver
	 	 	14	 
	8.1 Appointment
	 	 	14	 
	8.2 Agent of Chargor
	 	 	15	 
	8.3 Powers of Receiver
	 	 	15	 
	9 Power of attorney
	 	 	15	 
	9.1 Appointment of attorney
	 	 	15	 
	9.2 Ratification
	 	 	15	 
	10 Receipt and application of money
	 	 	16	 
	10.1 Order of application
	 	 	16	 
	10.2 Money actually received
	 	 	16	 





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	10.3 Amounts contingently due
	 	 	16	 
	10.4 Surplus money
	 	 	17	 
	10.5 Receipts by the Chargee
	 	 	17	 
	10.6 Notice of a subsequent Security Interest
	 	 	17	 
	10.7 Conversion of currencies on application
	 	 	18	 
	11 Payments
	 	 	18	 
	11.1 Payments by Chargor
	 	 	18	 
	11.2 Amounts payable on demand
	 	 	18	 
	11.3 Gross payments
	 	 	18	 
	11.4 Withholdings and deductions
	 	 	18	 
	12 Indemnities
	 	 	19	 
	12.1 General indemnity
	 	 	19	 
	12.2 Currency indemnity
	 	 	19	 
	12.3 Continuing indemnities and survival of indemnities
	 	 	19	 
	12.4 Payment
	 	 	19	 
	13 Preservation of rights
	 	 	19	 
	13.1 No merger of security
	 	 	19	 
	13.2 Moratorium legislation
	 	 	20	 
	13.3 Principal obligations
	 	 	20	 
	13.4 No obligation to marshal
	 	 	20	 
	13.5 Set-off
	 	 	20	 
	13.6 Certificate
	 	 	21	 
	13.7 Increase in financial accommodation
	 	 	21	 
	14 General
	 	 	21	 
	14.1 Confidential information
	 	 	21	 
	14.2 Performance by Chargee of the Chargor’s obligations
	 	 	21	 
	14.3 Chargor to bear cost
	 	 	21	 
	14.4 Legal advice
	 	 	21	 
	14.5 Consent and Opinions of Chargee
	 	 	21	 
	14.6 Authority to fill in blanks
	 	 	22	 





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	14.7 Supply of information
	 	 	22	 
	14.8 Prompt performance
	 	 	22	 
	14.9 Discretion in exercising rights
	 	 	22	 
	14.10 Partial exercising of rights
	 	 	22	 
	14.11 Conflict of interest
	 	 	22	 
	14.12 Chargee or Receiver in possession
	 	 	22	 
	14.13 Other encumbrances or judgments
	 	 	22	 
	14.14 Continuing security
	 	 	23	 
	14.15 Rights and obligations are unaffected
	 	 	23	 
	14.16 Further assurances
	 	 	23	 
	14.17 Counterparts
	 	 	23	 
	14.18 Cumulative rights
	 	 	23	 
	14.19 Governing law
	 	 	23	 
	14.20 Jurisdiction
	 	 	23	 
	14.21 Notices
	 	 	24	 
	14.22 Severability
	 	 	24	 
	14.23 Variation
	 	 	24	 
	14.24 Waiver
	 	 	24	 
	15 Third party provisions
	 	 	24	 
	15.1 Independent obligations
	 	 	24	 
	15.2 Unconditional nature of obligations
	 	 	24	 
	15.3 No competition
	 	 	26	 
	15.4 Suspense account
	 	 	27	 
	15.5 Variation
	 	 	28	 
	15.6 Indemnity
	 	 	28	 
	16 Limitation of liability
	 	 	28	 
	16.1 Capacity
	 	 	28	 
	16.2 Limitation of liability
	 	 	28	 
	16.3 Waiver of rights
	 	 	29	 
	16.4 Qualifications to limit
	 	 	29	 





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	16.5 Right of indemnity out of assets of the Charitable Fund
	 	 	29	 
	Schedule 1 — Dictionary
	 	 	30	 
	Schedule 2 — Form of Notice of Charge of Bank Account
	 	 	34	 
	Execution page
	 	 	36	 





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Date: 9 December 2010



Parties





	 	1	 	Asbestos Injuries Compensation Fund Limited ACN 117 363 461 (AICF) in
its capacity as trustee of the Charitable Fund established under a trust deed
dated 7 April 2006 (as amended and restated) between it as trustee and James
Hardie Industries SE as settlor, of Level 7, 233 Castlereagh Street, Sydney, New
South Wales (Borrower);
	 
	 	2	 	ABN 60 Pty Limited (under NSW administered winding up) ACN 000 009
263 of Level 7, 233 Castlereagh Street, Sydney, New South Wales (ABN 60);
	 
	 	3	 	Amaca Pty Ltd (under NSW administered winding up) ACN 000 035 512 of
Level 7, 233 Castlereagh Street, Sydney, New South Wales (Amaca);
	 
	 	4	 	Amaba Pty Ltd (under NSW administered winding up) ACN 000 387 342 of
Level 7, 233 Castlereagh Street, Sydney, New South Wales (Amaba);
	 
	 	 	 	(each of the Borrower, ABN 60, Amaca and Amaba separately referred to as the
Chargor); and
	 
	 	5	 	The State of New South Wales of c/- The NSW Treasury, Level 27,
Governor Macquarie Tower, 1 Farrer Place, Sydney, New South Wales (Chargee).






The parties agree




	1	 	Defined terms and interpretation






	 	1.1	 	Definitions in the Dictionary
	 
	 	 	 	A term or expression starting with a capital letter:






	 	(a)	 	which is defined in the Dictionary in Schedule 1 (Dictionary), has
the meaning given to it in the Dictionary;
	 
	 	(b)	 	which is defined in, or for the purposes of, the Facility Agreement,
but is not defined in the Dictionary, has the meaning given to it in the Facility
Agreement;
	 
	 	(c)	 	which is defined in the Corporations Act, but is not defined in the
Dictionary or the Facility Agreement, has the meaning given to it in the
Corporations Act; and
	 
	 	(d)	 	which is defined in the GST Law, but is not defined in the
Dictionary, the Facility Agreement or the Corporations Act, has the meaning given
to it in the GST Law.






	 	1.2	 	Interpretation






	 	 	 	The interpretation clause in Schedule 1 (Dictionary) sets out rules of interpretation
for this deed.






	2	 	Charge






	 	2.1	 	Charge






	 	 	 	The Chargor charges all of its present and future right, title and interest in the
Secured Property to the Chargee as security for the due and punctual payment of the
Secured Money.






			
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	 	2.2	 	Priority






	 	 	 	The Charge takes priority over all other Security Interests of the Chargor, subject to
the Permitted Security Interests.






	 	2.3	 	Consideration






	 	 	 	The Chargor enters into this Deed for valuable consideration from the Chargee, and
acknowledges receipt of that consideration including the Chargee’s agreement to enter
into the Facility Agreement at the request of the Chargor.






	 	2.4	 	Fixed charge






	 	 	 	The Charge is a fixed charge over all the Chargor’s present and future interests in all
of the Secured Property of the Chargor, subject to clause 2.5.






	 	2.5	 	Floating charge






	 	(a)	 	The Chargor must deal with the proceeds from Insurances, from any
Advances, from any Annual Payment and from any Book Debt in accordance with
clauses 2.6(a) and 2.12.
	 
	 	(b)	 	Subject to this clause 2.5, if despite clause 2.4 the Charge is in
accordance with law not fixed over any of the Secured Property, the Charge is a
floating charge over all the Secured Property which is not subject to a fixed
charge under clause 2.4.
	 
	 	(c)	 	Subject to clause 2.12, the Chargor may deal with any Secured
Property for the time being subject to a floating charge only in the ordinary
course of the Chargor’s ordinary business and in accordance with the Transaction
Legislation, the Transaction Documents and the AFFA (as applicable).
	 
	 	(d)	 	If the Charge crystallises in accordance with clause 2.8 on any part
of the Secured Property, the Chargor may not deal with that part of the Secured
Property except by a Controller appointed under this deed.






	 	2.6	 	Dealing with proceeds — Bank Accounts






	 	(a)	 	The Chargor must deposit in its Bank Accounts any proceeds it
receives from Insurances, from any Advances, from any Annual Payment or from any
Book Debt in accordance with the requirements of the Transaction Legislation, the
Transaction Documents and the AFFA (as applicable) and may deal with those
proceeds only in the ordinary course of the Chargor’s ordinary business and in
accordance with the Transaction Legislation, the Transaction Documents and the
AFFA (as applicable).
	 
	 	(b)	 	At any time an Event of Default subsists and the Chargee so requires:






	 	(i)	 	Authorised Officers of the Chargee shall be the only
signatories to the Bank Accounts of the Chargor; and
	 
	 	(ii)	 	no withdrawals may be made from the Bank Accounts without
the approval of the Chargee.






	 	(c)	 	The Chargor shall ensure that the terms and conditions of the Bank
Accounts:






	 	(i)	 	comply with the requirements under paragraph (b); and
	 
	 	(ii)	 	provide that the Chargee shall receive monthly copies of
the bank statements showing a record of the transactions for the account.





			
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	 	(d)	 	The Chargor shall give notices and directions to the Account Bank necessary or
requested by the Chargee to ensure paragraphs (b) and (c) are complied with,
including forwarding a form of notice of charge as set out in Schedule 2 to the
Account Bank and forwarding the acknowledgment of that form of notice by the
Account Bank to the Chargee.
	 
	 	(e)	 	Failure by the Chargee to require the Chargor to comply with this
clause will not constitute a waiver.
	 
	 	(f)	 	Without prejudice to paragraph (e), if for any reason the Chargee
waives or is taken to have waived the requirements of this clause, the Charge will
still operate as a fixed charge in respect of the Bank Accounts.






	 	2.7	 	Proceeds and Book Debts






	 	(a)	 	Event of Default: Notwithstanding and in addition to the Chargee’s
rights under clause 2.6, the Chargor must, if the Chargee requires by notice in
writing while an Event of Default subsists, ensure that the Bank Accounts operate
on terms that:






	 	(i)	 	nominated Authorised Officers of the Chargee are
signatories to the Bank Accounts;
	 
	 	(ii)	 	no withdrawals can be made from the Bank Accounts unless
one of those Authorised Officers authorises the withdrawal by signature; and
	 
	 	(iii)	 	at any time the Chargee (without giving any notice under
any law or otherwise) may, subject to the Transaction Legislation, operate
the Bank Accounts by the signature of only one of those Authorised Officers
and give notice to the Account Bank that this right has arisen.






	 	(b)	 	Assurances: The Chargor must give all notices and directions and sign
all necessary documents which the Chargee requests to ensure paragraph (a) is
complied with.
	 
	 	(c)	 	Fixed Charge continues: If the Chargee or an Attorney or Receiver
waives a Power under this clause 2.7, the fixed charge created by this deed over
the relevant Book Debt, Insurance or other relevant asset continues to operate as
a fixed charge.
	 
	 	(d)	 	Collection of Book Debts by Chargee: The Chargee may notify the
Chargor at any time on or after the time the Chargee gives a notice under
paragraph (a) that:






	 	(i)	 	the Chargor is prohibited from collecting the Chargor’s
Book Debts; and
	 
	 	(ii)	 	the Chargee intends to collect the Chargor’s Book Debts.






	 
	 	 	 	If a notice is given under this paragraph, then the Chargor agrees to:






	 
	 	(iii)	 	the Chargee collecting the Book Debts and notifying
debtors of the Chargee’s interest in the Book Debts;
	 
	 	(iv)	 	the Chargee preparing and dispatching invoices in
connection with the Book Debts, whether or not an invoice has been prepared
previously or dispatched in respect of a Book Debt; and





			
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	 	(v)	 	use its best endeavours in assisting the Chargee to
collect the Book Debts.






	 	(e)	 	Waivers: Paragraph (c) is subject to clauses 14.23 (Variation) and 14.24
(Waiver)






	 	2.8	 	Crystallisation






     The floating charge created in clauses 2.1 and 2.5 automatically and immediately
crystallises and becomes fixed:




	 	(a)	 	automatic crystallisation: on all of the Secured Property which is
not already subject to a fixed charge, without any notice, if:






	 	(i)	 	demand to pay Secured Money: the Chargee makes a demand
of the Chargor to pay the Secured Money in exercise of a right under a
Transaction Document or the Charge is enforced in any other way;
	 
	 	(ii)	 	Insolvency Event: an Insolvency Event occurs in relation
to the Chargor or another Security Provider;
	 
	 	(iii)	 	breach negative pledge: the Chargor breaches clause 5.3;
	 
	 	(iv)	 	unpaid Taxes: the Commissioner of Taxation signs a notice
relating to the Chargor for unpaid Tax or anything else occurs which could
create a Security Interest in favour of a Government Agency over the Secured
Property;






	 	(b)	 	crystallisation by notice: on all Secured Property which is not
already subject to a fixed charge if the Chargee gives a notice in writing to the
Chargor at any time if the Chargee reasonably considers it is necessary to do so
to protect its rights under this deed or for so long as an Event of Default
subsists;
	 
	 	(c)	 	Book Debts: on the proceeds of any Book Debt or other debt or other
money now or in the future payable to the Chargor (to the extent that the proceeds
are not secured by way of fixed charge under clause 2.4), when notice of
crystallisation is given to the Chargor by the Chargee either generally, or in
relation to specific proceeds or other money; or
	 
	 	(d)	 	crystallisation without notice: on a particular asset forming part of
the Secured Property and not already subject to a fixed charge, without any
notice, if:






	 	(i)	 	the Chargor deals with that asset in breach of a
Transaction Document or the Transaction Legislation or the AFFA, or attempts
to do so; or
	 
	 	(ii)	 	a Security Interest, other than this Charge, over that
asset becomes enforceable or a person enforces or attempts to enforce a
Security Interest over that asset or any floating Security Interest over
that asset crystallises or otherwise becomes a fixed Security Interest
(other than the exercise by AICF of its right to be indemnified out of the
assets of the Charitable Fund in a manner which is not inconsistent with the
AFFA, the Transaction Legislation or the Transaction Documents);
	 
	 	(iii)	 	when any step is taken to issue, levy or enforce any
distress, attachment, execution or other process against or upon that asset;
	 
	 	(iv)	 	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





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






	 	(e)	 	on a particular asset forming part of the Secured Property and not already
subject to a fixed charge if the Chargee gives a notice in writing to the Chargor
in relation to that asset while an Event of Default is subsisting.






	 	2.9	 	De-crystallisation






	 	(a)	 	If the floating charge over an asset has become fixed under clause
2.8, the Chargee may release the asset from that fixed charge by notice in writing
to the Chargor.
	 
	 	(b)	 	If the Chargee gives a notice under paragraph (a), the asset is again
subject to a floating charge under clause 2.1 and 2.5, and subject to the further
operation of clause 2.8 and this clause 2.9 any number of times.






	 	2.10	 	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 $A1,000,000,000.
	 
	 	(b)	 	Paragraph (a) does not affect or limit the actual amount of Secured
Money secured by the Charge.






	 	2.11	 	Increase in prospective liability






From time to time, the Chargee may lodge a notice under s 268(2) of the Corporations
Act on behalf of the Chargor specifying an increase in the maximum prospective
liability secured by this deed. From the date of lodgement the sum specified in clause
2.10 (Prospective liability) will be taken to be varied to the sum specified in the
notice.




	 	2.12	 	Dealing with proceeds of Book Debts






The Chargor may deal with the proceeds of any Book Debt in the ordinary course of its
ordinary business in accordance with the Transaction Legislation, the Transaction
Documents and the AFFA (as applicable) where:




	 	(a)	 	the Book Debt arose in the ordinary course of business;
	 
	 	(b)	 	the proceeds do not arise from the disposal of, or grant of an
interest in, an asset the subject of the fixed charge under clause 2.4;
	 
	 	(c)	 	the proceeds are received while no Event of Default is subsisting or
before the floating charge crystallises in respect of all of the Secured Property
and before anything described in clause 2.8 occurs with respect to the Book Debts
or those proceeds; and
	 
	 	(d)	 	the proceeds are received before the Chargee notifies the Chargor
that it is prohibited from collecting the Book Debts in accordance with clause
2.7(d).






	 	2.13	 	Adverse effect on operations






The parties acknowledge that, if at any time the Borrower forms the view that the
operation of clause 2.6, 2.7, 2.8, 2.9 or 2.12 adversely effects the ability of the
Obligors to conduct operations as contemplated by the AFFA or the Transaction
Legislation, the parties will meet to discuss those concerns.



			
	 
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3 Release of the charge





	 	3.1	 	Release of Charge






	 	(a)	 	The Chargee is not obliged to discharge the Charge unless the Chargee
is satisfied that:






	 	(i)	 	the Secured Money has been paid in full;
	 
	 	(ii)	 	the Chargor and each other Security Provider has complied
with its obligations under each Transaction Document, the Transaction
Legislation and the AFFA;
	 
	 	(iii)	 	there is no reasonable possibility that money received
or recovered to satisfy Secured Money must be repaid or refunded under any
law, including a law about preferences, bankruptcy, insolvency, Winding Up
or the protection of creditors; and
	 
	 	(iv)	 	no further Secured Money will be owed by the Chargor or
any Security Provider to the Chargee within a reasonable time after the date
on which the Chargor requests the Chargee to discharge the Charge.






	 	(b)	 	The parties intend that paragraphs (a)(iii) or (a)(iv) (or both) be
severed from paragraph (a) if it is (or they are) void or unenforceable under
applicable law. This paragraph (b) does not exclude the general law of severance.






	 	3.2	 	Partial release of Charge






	 	(a)	 	The Chargee may release a part of the Secured Property from the
Charge at any time.
	 
	 	(b)	 	A release under paragraph (a) does not adversely affect:






	 	(i)	 	the Charge over other Secured Property; or
	 
	 	(ii)	 	a Transaction Document.






	 	3.3	 	Reinstatement of Charge






	 	(a)	 	The Chargor must do or cause to be done anything the Chargee requires
the Chargor to do to reinstate the Charge, if anyone claims that money applied to
satisfy Secured Money has to be repaid or refunded under any law after the Charge
has been discharged.
	 
	 	(b)	 	A law referred to in paragraph (a) includes a law about preferences,
bankruptcy, insolvency, Winding Up or the protection of creditors.
	 
	 	(c)	 	The Chargee may require the Chargor to sign documents under paragraph
(a) and may do so as the Chargor’s attorney if the Chargor does not do so.
	 
	 	(d)	 	If a claim referred to in paragraph (a) is upheld or admitted, the
Chargee is entitled to the same Powers against the Chargor and the Secured
Property as it would have had if the relevant money had not been applied to
satisfy Secured Money, and the Charge had never been discharged.





					
	 
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	 	(e)	 	This clause 3.3 survives discharge of the Charge.






	 	3.4	 	Release of Title Documents






The Chargee may retain any Title Documents delivered under this deed until the Charge
is finally discharged under this clause 3.4.




	 	3.5	 	Continuing security






	 	 	 	This deed is a continuing security despite a settlement of account or any other matter
or thing until a final discharge is given to the Chargor.






	4	 	Representations and warranties






	 	4.1	 	Representations and warranties






	 	(a)	 	The Chargor represents and warrants to the Chargee that each of the
representations and warranties of the Chargor in each Transaction Document are, or
will be, true and correct in all respects when made or regarded as having been
made.
	 
	 	(b)	 	Each representation and warranty must be construed independently and
is not limited by reference to another one.






	 	4.2	 	Survival of representations and warranties






The representations and warranties given in this clause 4 survive the execution of this deed.




	 	4.3	 	Reliance






The Chargor acknowledges that:




	 	(a)	 	it has not entered into this deed or another Transaction Document in
reliance on a representation, warranty or promise made by the Chargee or another
person on behalf of the Chargee; and
	 
	 	(b)	 	the Chargee has entered into this deed in reliance on the
representations and warranties given in this clause 4.






	5	 	Undertakings of the Chargor






	 	5.1	 	Performance under Transaction Documents






	 	(a)	 	The Chargor must comply with its obligations under the Transaction
Documents in full and on time.
	 
	 	(b)	 	Without limiting paragraph (a), the Chargor must pay the Secured
Money in accordance with the Transaction Documents or, if the Transaction
Documents do not prescribe the time for or manner of its payment, on demand or as required by the Chargee and in
Cleared Funds.






	 	(c)	 	The Chargor must ensure that no Event of Default occurs.








					
	 
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	 	5.2	 	Undertakings about the Secured Property






	 	 	 	Unless permitted under a Transaction Document or the Chargee otherwise consents in
writing, the Chargor must:
	 
	 	(a)	 	title: remedy any defect in its title to any part of the Secured
Property;
	 
	 	(b)	 	legal proceedings: take or defend legal proceedings or other action
which the Chargee thinks advisable to protect or recover Secured Property;
	 
	 	(c)	 	not prejudice: not do, fail to do or permit to occur, anything which
adversely affects a Power of the Chargee under this deed, or which may result in
any Secured Property being:







	 	(i)	 	surrendered, forfeited, exchanged, cancelled or adversely affected in
any manner; or
	 
	 	(ii)	 	reduced in value;






	 	(d)	 	pay Taxes: pay all Taxes and outgoings relating to the Secured
Property when due, whether or not the Chargee has taken possession of Secured
Property, and give the Chargee copies of the receipts if required by the Chargee;
	 
	 	(e)	 	damage: promptly notify the Chargee of any event which affects or
might affect the rights of the Chargee under this deed;
	 
	 	(f)	 	access: provide to the Chargee, an Attorney or Receiver or their
professional advisers full access to the Secured Property and all premises and
employees of the Chargor at reasonable times to inspect Secured Property or
exercise a Power of the Chargee;
	 
	 	(g)	 	inventory: on demand by the Chargee, provide to the Chargee a
complete inventory of the Secured Property including all details (including the
value and location) of each item of the Secured Property; and
	 
	 	(h)	 	Title Documents: on demand by the Chargee, deposit with the Chargee
all Title Documents for Secured Property over which the Charge is at the time of
the demand a fixed charge.






	 	5.3	 	Negative pledge






	 	(a)	 	Subject to clauses 2.5(c), 2.6 and clause 2.12, and except as
permitted under a Transaction Document, the Chargor must not do any of the
following things without first getting the written consent of the Chargee:






	 	(i)	 	deal with any of the Secured Property, sell it or
otherwise dispose of it or part with possession of it;
	 
	 	(ii)	 	create a Security Interest or allow a Security Interest
to subsist over any of the Secured Property, or allow that or agree to it,
other than a Permitted Security Interest;
	 
	 	(iii)	 	attempt to do anything listed in paragraph (i) or (ii);
	 
	 	(iv)	 	cause the operating procedures of the Bank Accounts of
the Chargor under clause 2.6 to be varied, repudiated, rescinded, terminated
or rendered void, voidable or unenforceable;





					
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	 	(v)	 	abandon, settle, compromise, discontinue or become
non-suited in respect of any proceedings against any person (other than the
Chargee) in respect of any right of the Chargor in respect of the Secured
Property (other than in the ordinary course of its ordinary business); or
	 
	 	(vi)	 	waive any of its rights or release any person from its
obligations in respect of the Secured Property.






	 	(b)	 	Where, by law, the Chargee may not restrict the creation of any
Security Interest over an asset ranking after the Charge, paragraph (a) will not
restrict that creation, but the Chargor shall ensure that before that Security
Interest is created the holder of that Security Interest enters into a deed of
priority in form and substance specified by the Chargee.






	 	5.4	 	Registration and protection of security






The Chargor must ensure that this deed and each Security is registered and filed in all
registers in all jurisdictions in which it must be registered and filed to ensure that
it is fully effective and enforceable and has priority as a first ranking charge,
subject to any priority agreed to in writing by the Chargee.




	 	5.5	 	Term of undertakings






Each of the Chargor’s undertakings in this clause 5 continues in full force and effect
from the date of this deed until the Charge in respect of all the Secured Property is
discharged under clause 3.




	6	 	Events of default







	 	6.1	 	Consequences of an Event of Default






	 	(a)	 	The Charge and each Security are immediately enforceable if an Event
of Default subsists without the need for any demand or notice to be given to the
Chargor or any other person.
	 
	 	(b)	 	Whilst an Event of Default is subsisting, the Secured Money is
immediately due and payable by the Chargor without the need for any demand or
notice to be given to the Chargor or any other person other than a notice
expressly required by a Transaction Document.
	 
	 	(c)	 	The Chargee may enforce this Charge before it enforces other rights
or remedies:






	 	(i)	 	against any other person; or
	 
	 	(ii)	 	under another document, such as another Security.






	 	(d)	 	If the Chargee has more than one Security, it may enforce them in any
order it chooses.
	 
	 	(e)	 	The right of the Chargor to deal, for any purpose, with the Secured
Property, other than by or through an Attorney or a Receiver appointed under this
deed, immediately ceases on the crystallisation of the Charge in respect of the
Secured Property.
	 
	 	(f)	 	The right of the Chargor to deal, for any purpose, with an asset
which forms part of the Secured Property, other than by or through an Attorney or
a Receiver





			
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appointed under this deed, immediately ceases on the crystallisation of
the Charge of the Chargor in respect of that asset.




	 	6.2	 	Assistance in realisation






After the Charge has become enforceable, the Chargor must take all action required by
the Chargee, an Attorney or a Receiver for the purpose of assisting them to realise the
Secured Property and exercise any Power including:




	 	(a)	 	signing all transfers, conveyances, assignments and assurances of any
of the Secured Property;
	 
	 	(b)	 	doing anything necessary or desirable for the above purpose under the
law of the place where Secured Property is situated; and
	 
	 	(c)	 	giving all notices, orders, directions and consents which the Chargee
or an Attorney or a Receiver thinks expedient.






	 	6.3	 	Title documents






     If the Charge is enforced by the Chargee, the Chargee, an Attorney or a Receiver is
entitled:




	 	(a)	 	to deal with the Title Documents as if it was the absolute and
unencumbered owner of the Secured Property to which the Title Documents relate;
and
	 
	 	(b)	 	in exercising a power of sale, to deliver a Title Document to a
purchaser of the Secured Property.






	 	6.4	 	Completion of blank securities






	 	(a)	 	At any time after the Charge has become enforceable, the Chargee, an
Attorney or a Receiver may complete any instrument which is signed in blank by or
on behalf of the Chargor and deposited with the Chargee as security under this
deed or any other Security.
	 
	 	(b)	 	An instrument referred to in paragraph (a) may be completed in favour
of the Chargee, an appointee of the Chargee or a purchaser.





7 Powers on default





	 	7.1	 	Chargee’s powers






If an Event of Default subsists, the Chargee, an Attorney or a Receiver has the power
to do all acts and things and exercise all Powers that the Chargor could do or exercise
in relation to the Secured Property, including the Power to do any of the following:




	 	(a)	 	manage, possession or control: manage, enter into possession or
assume control of Secured Property;
	 
	 	(b)	 	receive rents: receive income and profits of the Secured Property;
	 
	 	(c)	 	sale: sell or agree to sell Secured Property to any person on terms
the Chargee thinks fit and irrespective of:






	 	(i)	 	whether or not the Chargee has taken possession;





					
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	 	(ii)	 	whether by auction, private treaty or tender;
	 
	 	(iii)	 	whether for cash or on deferred purchase terms or a
combination of those and whether or not deferred purchase terms provide for
the charging of interest or the giving of security;
	 
	 	(iv)	 	whether in one lot or in parcels;
	 
	 	(v)	 	whether or not it is sold with other property by the
Chargee or another person;
	 
	 	(vi)	 	whether with or without special provisions including
provisions about title and payment of purchase price;






	 	(d)	 	grant options to purchase: grant to any person an option to purchase
any of the Secured Property on terms that the Chargee thinks fit;
	 
	 	(e)	 	acquire assets: acquire assets including any interest in any
property, in the name or on behalf of the Chargor, which on acquisition forms part
of the Secured Property;
	 
	 	(f)	 	carry on business: carry on any business of the Chargor forming part
of the Secured Property;
	 
	 	(g)	 	borrowings and security:






	 	(i)	 	advance money for the account of the Chargor;
	 
	 	(ii)	 	raise or borrow money in its name or in the name of the
Chargor or on the Chargor’s behalf, from a person approved by the Chargee;
	 
	 	(iii)	 	secure money advanced under paragraph (i) or raised or
borrowed under paragraph (ii) by a Security Interest over Secured Property
whether ranking in priority to, equal with or after this deed or any
Transaction Document;






	 	(h)	 	maintain or improve Secured Property: do anything to protect or
improve any of the Secured Property;
	 
	 	(i)	 	income and bank accounts: operate any bank account forming part of
the Secured Property;
	 
	 	(j)	 	access to Secured Property: have access to the Secured Property, the
premises at which the business of the Chargor is conducted and any of the
administrative services of the Chargor’s business;
	 
	 	(k)	 	insure Secured Property: insure Secured Property;
	 
	 	(l)	 	compromise: make or accept a compromise or arrangement;
	 
	 	(m)	 	exchange Secured Property: exchange with any person any of the
Secured Property for any other property, whether or not of equal value;
	 
	 	(n)	 	employ: employ or engage any person on terms that the Chargee thinks
fit for the purpose of exercising a Power of the Chargee under this deed;
	 
	 	(o)	 	delegate: delegate to any person any Power of the Chargee on terms
that the Chargee thinks fit;





			
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	 	(p)	 	perform or enforce documents: carry out and enforce, or refrain from
carrying out or enforcing contracts entered into or held by the Chargor in
relation to the Secured Property in the exercise of a Power of the Chargee under
this deed;
	 
	 	(q)	 	receipts: give effective receipts for all money and other assets
which may come into the hands of the Chargee;
	 
	 	(r)	 	take proceedings: commence, conduct, defend, discontinue, settle or
compromise any proceedings including proceedings about insurance of the Secured
Property;
	 
	 	(s)	 	insolvency proceedings: 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 Chargee thinks necessary or desirable
including, but not limited to, attending and voting at creditors’ meetings and
appointing proxies for those meetings;
	 
	 	(t)	 	sign documents: sign and deliver documents on behalf of the Chargor
under seal or under hand;
	 
	 	(u)	 	vote: exercise any voting rights or powers in respect of any part of
the Secured Property; and
	 
	 	(v)	 	incidental power: do anything necessary or incidental to the exercise
of any Power of the Chargee.






	 	7.2	 	Chargee may enter Secured Property






The Chargee may, on reasonable notice and at reasonable times (or, if an Event of
Default subsists, at any time) enter land and buildings owned or occupied by the
Chargor, any place where the Secured Property is located, the Chargor’s places of
business or its registered office to:




	 	(a)	 	inspect the Secured Property;
	 
	 	(b)	 	find out whether the Chargor is complying with this Charge;
	 
	 	(c)	 	carry out the Chargee’s rights under this Charge; or
	 
	 	(d)	 	inspect and copy records relating to the Chargor or the Secured
Property.






The Chargor must assist the Chargee in entering any relevant premises, including by
obtaining any necessary consent.




	 	7.3	 	Right to rectify






The Chargee may do anything which the Chargor should have done under this Charge but
which the Chargor either has not done, or in the Chargee’s opinion, has not done
properly. If the Chargee does so, the Chargor agrees to pay the Chargee’s costs,
charges and expenses on demand.




	 	7.4	 	Nature of Chargee’s powers






	 	(a)	 	The Powers of the Chargee, an Attorney or a Receiver must be
construed independently and no one Power limits the generality of another Power.
	 
	 	(b)	 	A dealing under a Power of the Chargee, an Attorney or a Receiver is
on the terms and conditions the Chargee, Attorney or Receiver thinks fit.





			
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	 	(c)	 	The Powers of the Chargee, an Attorney or a Receiver listed in clause
7.1 are in addition to Powers conferred by law, and the Powers conferred on the
Chargee, an Attorney or a Receiver by law are excluded or varied only so far as
they are inconsistent with the express terms of this deed.






	 	7.5	 	Not mortgagee in possession






	 	(a)	 	If the Chargee, an Attorney or a Receiver takes possession of any
Secured Property, none of the Chargee, Attorney or Receiver is liable as a
mortgagee in possession.
	 
	 	(b)	 	The Chargee, an Attorney or a Receiver does not become a mortgagee in
possession because it enters the Secured Property under clause 7.2 or exercises
its rights under clause 7.3.






	 	7.6	 	Give up possession






The Chargee, an Attorney or a Receiver may give up possession of the Secured Property
or any part of it at any time and may discontinue a receivership.




	 	7.7	 	Exclusion of liability






Neither the Chargee, an Attorney or a Receiver is responsible for losses of any kind
which may occur in relation to the exercise or attempted exercise or non-exercise of a
Power of the Chargee, an Attorney or Receiver, including negligence or default by any
person.




	 	7.8	 	Protection of third parties






	 	(a)	 	A person dealing with the Chargee, an Attorney or a Receiver in
connection with the exercise of any of the Chargee’s Powers:






	 	(i)	 	is not bound to enquire whether an Event of Default has
occurred, if the appointment of a Receiver is duly made, or otherwise as to
the propriety or regularity of dealings with any of them; and
	 
	 	(ii)	 	is not affected by express notice that a dealing or an
exercise of a Power is or was unnecessary or improper.






	 	(b)	 	A dealing or an exercise of a Power is taken to be valid and
effective despite an irregularity or impropriety described in paragraph (a).






	 	7.9	 	Disposal final






The Chargor agrees that if the Chargee, an Attorney or a Receiver sells or otherwise
disposes of the Secured Property:




	 	(a)	 	the Chargor must not challenge the acquirer’s right to acquire the
Secured Property (including on the ground that the Chargee, the Attorney or the
Receiver were not entitled to dispose of the Secured Property or that the Chargor
did not receive notice of the intended disposal) and the Chargor must not seek to
reclaim that property; and
	 
	 	(b)	 	the person who acquires the Secured Property need not check whether
the Chargee, the Attorney or the Receiver has a right to dispose of the Secured
Property or whether the Chargee, the Attorney or the Receiver exercise that right
properly.





			
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	 	7.10	 	No notice required unless mandatory






	 	 	 	Neither the Chargee nor any Attorney or Receiver need give the Chargor any notice or
demand or allow time to elapse before exercising a right under this Charge or conferred
by law (including a right to sell) unless the notice, demand or lapse of time is
required by law and cannot be excluded.






	 	7.11	 	Mandatory notice period






	 	 	 	If the law requires that a period of notice must be given or a lapse of time must occur
or be permitted before a right under this deed or conferred by law may be exercised,
then:






	 	(a)	 	when a period of notice or lapse of time is mandatory, that period of
notice must be given or that lapse of time must occur or be permitted by the
Chargee, an Attorney or a Receiver; or
	 
	 	(b)	 	when the law provides that a period of notice or lapse of time may be
stipulated or fixed by this Charge, then one day is stipulated and fixed as that
period of notice or lapse of time including, if applicable, as the period of
notice or lapse of time during which:






	 	(i)	 	an Event of Default must continue before a notice is
given or requirement otherwise made for payment of the Secured Money or the
observance of other obligations under this Charge; and
	 
	 	(ii)	 	a notice or request for payment of the Secured Money or
the observance of other obligations under this Charge must remain not
complied with before the Chargee, an Attorney or a Receiver may exercise
Powers.






	8	 	Appointment of receiver






	 	8.1	 	Appointment






	 	(a)	 	If an Event of Default subsists, the Chargee may appoint in writing
one or more persons to be a receiver or receiver and manager of the Secured
Property or part of it.
	 
	 	(b)	 	The Chargee may appoint different receivers and managers for
different parts of the Secured Property.
	 
	 	(c)	 	The Chargee may appoint a receiver or receiver and manager under
paragraph (a) on terms that the Chargee thinks fit:






	 	(i)	 	whether or not the Chargee has taken possession of the
Secured Property; and
	 
	 	(ii)	 	even if an order has been made or a resolution passed to
wind-up the Chargor.






	 	(d)	 	The Chargee may, by notice in writing, remove a Receiver and may
appoint a replacement for a Receiver who is removed or who retires or dies.
	 
	 	(e)	 	The Chargee may fix the remuneration of the Receiver at an amount or
rate of commission agreed between the Chargee and the Receiver or a rate
determined by the Chargee, in the absence of an agreement.





			
	 	 	 
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	 	(f)	 	If the Chargee appoints two or more persons under paragraph (a), the
Chargee may appoint them jointly or severally or jointly and severally.






	 	8.2	 	Agent of Chargor






	 	(a)	 	A Receiver is the agent of the Chargor unless and until:






	 	(i)	 	the Chargee notifies the Chargor and the Receiver in
writing that it requires that the Receiver act as the agent of the Chargee;
or
	 
	 	(ii)	 	an order is made or a resolution is passed to wind-up the
Chargor, except to the extent that approval is given under section 420C(1)
of the Corporations Act.






	 	(b)	 	If, for any reason, a Receiver ceases to be the agent of the Chargor,
the Receiver immediately becomes the Agent of the Chargee.
	 
	 	(c)	 	While the Receiver is the agent of the Chargor, the Chargor alone is
responsible for the acts and defaults of the Receiver and for the Receiver’s
remuneration, costs, charges and expenses. However, in exercising a Power of the
Chargee, the Receiver has the authority of both the Chargor and the Chargee.






	 	8.3	 	Powers of Receiver






	 	(a)	 	A Receiver may do any act, matter or thing and exercise any Power
that may be done or exercised by the Chargee in relation to the Secured Property.
	 
	 	(b)	 	The power conferred on a Receiver under paragraph (a)is in addition
to any Power conferred on the Receiver by law, but is subject to any specific
limitations placed on a Receiver by the terms of the appointment of that Receiver.






	9	 	Power of attorney






	 	9.1	 	Appointment of attorney






	 	 	 	The Chargor irrevocably appoints the Chargee, a Receiver and their respective
Authorised Officers, severally its attorney (Attorney) to:






	 	(a)	 	after an Event of Default has occurred and while it subsists, perform
the obligations of the Chargor under the Transaction Documents;
	 
	 	(b)	 	after an Event of Default has occurred and while it subsists, do
everything the Attorney considers necessary or desirable to assist the Chargee or
a Receiver to give full effect to a Power under a Transaction Document, including
signing and lodging proofs of debt or similar claims in legal proceedings;
	 
	 	(c)	 	appoint, substitute and otherwise revoke or delegate its rights,
including this right of delegation; and
	 
	 	(d)	 	after an Event of Default has occurred and while it subsists, do
everything that the Chargor may lawfully authorise an agent to do in respect of
the Secured Property.






	 	9.2	 	Ratification






	 	 	 	The Chargor must ratify anything which an Attorney does in exercising its rights as the
Chargor’s attorney under clause 9.1, whether or not the exercise of the right
constitutes a conflict of interest or duty.





			
	 	 	 
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	10	 	Receipt and application of money






	 	10.1	 	Order of application






	 	(a)	 	The Chargee, an Attorney or a Receiver appointed by the Chargee may
appropriate and apply money which it receives or recovers toward any amount in any
order it may determine in its absolute discretion.
	 
	 	(b)	 	If no determination under paragraph (a) is made, the Chargee or
Attorney or Receiver must apply money received or recovered in the following
manner and order:






	 	(i)	 	first, in payment of all amounts which, to the extent
required by law, have priority over the payments specified in the remaining
paragraphs of this clause;
	 
	 	(ii)	 	second, in payment of all costs, charges and expenses
incurred or payable by the Chargee, an Attorney or a Receiver in connection
with the exercise or attempted exercise of a Power under a Transaction
Document;
	 
	 	(iii)	 	third, in payment of the Receiver’s remuneration;
	 
	 	(iv)	 	fourth, in payment of any Security Interests of which the
Chargee has notice having priority over the Charge in order of their
priority and to the extent of their priority;
	 
	 	(v)	 	fifth, in payment of the Secured Money;
	 
	 	(vi)	 	sixth, in payment of any other Security Interests in
respect of the Secured Property of which the Chargee has notice and which
are due and payable in accordance with their terms, in the order of their
priority; and
	 
	 	(vii)	 	seventh, in payment of the surplus, if any, to Chargor
in accordance with Clause 10.4.






	 	10.2	 	Money actually received
	 
	 	 	 	In applying any money towards satisfaction of the Secured Money the Chargor is to be
credited only with that money actually received by the Chargee, an Attorney or a
Receiver in Cleared Funds. The credit dates from the time of actual receipt.






	 	10.3	 	Amounts contingently due
	 
	 	 	 	If money available for distribution to the Chargee relates to that part of the Secured
Money which is contingently due to the Chargee:






	 	(a)	 	the Chargee, an Attorney or a Receiver may place that money in a
short-term interest bearing deposit account:






	 	(i)	 	with any person selected by the Chargee, including the
Chargee or a Government Agency;
	 
	 	(ii)	 	on terms approved by the Chargee;
	 
	 	(iii)	 	until that part of the Secured Money becomes actually
due and payable or otherwise ceases to be contingently due; and





			
	 	 	 
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	 	(b)	 	at that time the amount actually owing may be paid to the Chargee and
the balance distributed in accordance with clause 10.1.






	 	10.4	 	Surplus money






	 	(a)	 	If, at any time after satisfaction of the Secured Money, the Chargee
holds surplus money payable to the Chargor, that money:






	 	(i)	 	does not carry interest; and
	 
	 	(ii)	 	may be placed to the credit of an account in the name of
the Chargor with a Bank.






	 	(b)	 	The Chargee, an Attorney or a Receiver (as the case may be) have no
further liability for money dealt with in accordance with paragraph (a).






	 	10.5	 	Receipts by the Chargee
	 
	 	 	 	The receipt by an Authorised Officer of the Chargee, an Attorney or a Receiver for
money or another asset payable to the Chargee or received by or for the account of the
Chargee under a Transaction Document exonerates the paying person from all liability to
enquire about:






	 	(a)	 	how that money or asset is applied;
	 
	 	(b)	 	whether the Secured Money is due or payable; or
	 
	 	(c)	 	the priority or regularity of the appointment of an Attorney or a
Receiver.






	 	10.6	 	Notice of a subsequent Security Interest






	 	(a)	 	If the Chargee receives actual or constructive notice of a subsequent
Security Interest other than a Permitted Security Interest in respect of the
Secured Property, the Chargee:






	 	(i)	 	may open a new account in the name of the Chargor in its
books or with a bank; or
	 
	 	(ii)	 	is deemed to have opened a new account in the name of the
Chargor in its books,







	 	 	 	on the date it received or was deemed to have received notice of the subsequent
Security Interest.





	 	(b)	 	From the date on which that new account is opened or deemed to be
opened:






	 	(i)	 	all payments made by the Chargor to the Chargee; and
	 
	 	(ii)	 	all financial accommodation and advances by the Chargee
to the Chargor,






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






	 	(c)	 	The payments by the Chargor under clause 10.6(b) must be applied:






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





			
	 	 	 
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	 	(ii)	 	next, if there is no debit balance in the new account, in
reduction of the Secured Money which has not been debited or deemed to have
been debited to the new account.






	 	10.7	 	Conversion of currencies on application
	 
	 	 	 	In making an application under clause 10.1, the Chargee, an Attorney or a Receiver 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.






	11	 	Payments






	 	11.1	 	Payments by Chargor
	 
	 	 	 	A payment by the Chargor to the Chargee under a Transaction Document must be made:






	 	(a)	 	no later than 11.00 am on the due date for payment;
	 
	 	(b)	 	in Cleared Funds or bank cheque in Dollars; and
	 
	 	(c)	 	to the account specified by the Chargee,






	 	 	 	or in another manner which the Chargee notifies the Chargor.
	 
	 	11.2	 	Amounts payable on demand
	 
	 	 	 	An amount payable under a Transaction Document is payable on demand by the Chargee if
it is not payable on a specified date.
	 
	 	11.3	 	Gross payments
	 
	 	 	 	Subject to clause 11.4, the Chargor must pay amounts which are payable by it under a
Transaction Document unconditionally and in full without:






	 	(a)	 	set-off or counter claim; or
	 
	 	(b)	 	deduction or withholding for Tax or another reason, unless the
deduction or withholding is required by applicable law.






	 	11.4	 	Withholdings and deductions
	 
	 	 	 	If the Chargor or another person is required to make a deduction or withholding from a
payment to the Chargee, the Chargor:






	 	(a)	 	indemnifies the Chargee against the amount of that deduction or
withholding;
	 
	 	(b)	 	must pay more so that the Chargee receives for its own benefit the
full amount which it would have received if no deductions or withholdings had been
required; and
	 
	 	(c)	 	must pay the full amount of the deduction or withholding to the
appropriate Governmental Agency under applicable law, and deliver the original
receipts to the Chargee.





			
	 	 	 
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	12	 	Indemnities






	 	12.1	 	General indemnity
	 
	 	 	 	The Chargor unconditionally and irrevocably indemnifies the Chargee, an Attorney or a
Receiver, and their respective employees, officers and agents, against any claim, loss,
liability, cost or expense which the Chargee pays or is liable for, arising directly or
indirectly from:






	 	(a)	 	an Event of Default or the exercise by the Chargee of a Power arising
from an Event of Default;
	 
	 	(b)	 	a failure by the Chargor to make a payment or perform an obligation
under a Transaction Document; or
	 
	 	(c)	 	the Secured Property or the use of the Secured Property by any
person.






	 	12.2	 	Currency indemnity
	 





	 	 	 	The Chargor indemnifies the Chargee on demand against any deficiency which arises at
any time and for any reason (including as a result of a judgment or order) where:






	 	(a)	 	the Chargee receives or recovers an amount in one currency (the
Payment Currency) in respect of an amount denominated under a Transaction Document
in another currency (the Due Currency); and
	 
	 	(b)	 	the amount actually received or recovered by the Chargee in
accordance with its normal practice when it converts the Payment Currency into the
Due Currency is less than the relevant amount of the Due Currency.






	 	12.3	 	Continuing indemnities and survival of indemnities






	 	(a)	 	Each indemnity contained in this deed is a continuing obligation
despite a settlement of account or the occurrence of any other thing, and remains
fully effective until all money owing, contingently or otherwise, under an
indemnity has been paid in full.
	 
	 	(b)	 	Each indemnity contained in this deed:






	 	(i)	 	is an additional, separate and independent obligation and
no one indemnity limits the generality of another indemnity; and
	 
	 	(ii)	 	survives the termination of this deed.






	 	12.4	 	Payment
	 
	 	 	 	It is not necessary for the Chargee to incur an expense or make a payment before
enforcing a right of indemnity under this deed.






	13	 	Preservation of rights






	 	13.1	 	No merger of security






	 	(a)	 	No Security or Transaction Document merges, discharges, postpones or
otherwise adversely affects the Chargee’s Powers under this deed.





			
	 	 	 
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	 	(b)	 	Nothing in this deed merges, discharges, postpones or otherwise
adversely affects any Security in favour of the Chargee at any time or any of the Chargee’s Powers against any person at any time.







	 	(c)	 	If a judgment or order is made in favour of the Chargee against the
Chargor about the Secured Money, the Chargee holds the judgment collaterally with
the Transaction Documents as security for the payment of the Secured Money, and no
Transaction Document merges in the judgment or order.






	 	13.2	 	Moratorium legislation
	 
	 	 	 	To the extent permitted by law, a provision of a law is excluded if it does or may, at
any time, directly or indirectly:






	 	(a)	 	lessen or otherwise vary an obligation of the Chargor under this deed
or another Transaction Document; or
	 
	 	(b)	 	delay, curtail or otherwise prevent or adversely affect the exercise
by the Chargee of any of its Powers under a Transaction Document.






	 	13.3	 	Principal obligations
	 
	 	 	 	The Charge and each Security is:






	 	(a)	 	a principal obligation and is not ancillary or collateral to any
other Security Interest or other obligation however created other than another
Transaction Document; and
	 
	 	(b)	 	independent of any other Security Interest or other obligation which
the Chargee may hold at any time for the Secured Money.






	 	13.4	 	No obligation to marshal
	 
	 	 	 	The Chargee is not required before it enforces the Charge or any other Security, to do
any of the following things unless it thinks fit:






	 	(a)	 	give notice of this deed to any person or allow any period of time to
expire, to the extent not prohibited by law;
	 
	 	(b)	 	enforce payment of or appropriate Secured Money or other money or
assets which it at any time holds or is entitled to receive;
	 
	 	(c)	 	marshal, enforce, realise or otherwise resort to any other Security;
or
	 
	 	(d)	 	take steps or proceedings for any purpose.






	 	13.5	 	Set-off






	 	(a)	 	While an Event of Default subsists, the Chargee may set-off the
credit balance of any account of the Chargor with the Chargee and apply it against
any part of the Secured Money, without notice to the Chargor or any other person
irrespective of:






	 	(i)	 	whether the account is subject to notice;
	 
	 	(ii)	 	whether the account is matured; or
	 
	 	(iii)	 	the currency of the account.





			
	 	 	 
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	 	(b)	 	If the currency of the Chargor’s account is not Australian Dollars,
the Chargee may buy Australian Dollars with that other currency in accordance with
its usual procedures.
	 
	 	(c)	 	The right of set-off contained in this clause is in addition to any
general or banker’s lien, right of set-off, right to combine accounts or other
right to which it may be entitled.






	 	13.6	 	Certificate
	 
	 	 	 	A certificate signed by an Authorised Officer of the Chargee stating an amount or rate
or any other matter under a Transaction Document is, in the absence of manifest error,
conclusive and binding on the Chargor.
	 
	 	13.7	 	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.






	14	 	General






	 	14.1	 	Confidential information
	 
	 	 	 	The Chargee, an Attorney or a Receiver may, for the purpose of exercising any Power
under a Transaction Document, disclose to any person any documents, records or
information relating to the Chargor, the Secured Property or the Chargor’s business or
affairs, whether or not confidential and whether or not the disclosure is in breach of
a law or of a duty owed to the Chargor.
	 
	 	14.2	 	Performance by Chargee of the Chargor’s obligations
	 
	 	 	 	If the Chargor fails to perform an obligation in a Transaction Document, the Chargee
may do all things which the Chargee considers necessary or desirable to make good or
attempt to make good that failure without adversely affecting a Power of the Chargee.
	 
	 	14.3	 	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, is to be done at the cost of the Chargor unless otherwise
provided.
	 
	 	14.4	 	Legal advice
	 
	 	 	 	The Chargor acknowledges that it has received legal advice about this deed.
	 
	 	14.5	 	Consent and Opinions of Chargee






	 	(a)	 	The Chargee may give its consent conditionally or unconditionally or
withhold its approval or consent in its absolute discretion unless a Transaction
Document provides otherwise.
	 
	 	(b)	 	The Chargee may form an opinion or hold a considered view under a
Transaction Document in its absolute discretion, including any Authorised Officer
of the Chargee.
	 
	 	(c)	 	The Chargee may give reasons for a matter described in paragraph (a) or (b)
but is not obliged to do so.





			
	 	 	 
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	 	14.6	 	Authority to fill in blanks
	 
	 	 	 	The Chargor agrees that the Chargee may fill in any blanks in this Charge or a document
connected with it (such as Corporations Act forms or transfers for the Secured
Property).
	 
	 	14.7	 	Supply of information
	 
	 	 	 	If the Chargee requests, the Chargor agrees to supply the Chargee with any information
about or documents affecting:






	 	(a)	 	the Secured Property;
	 
	 	(b)	 	this Charge; or
	 
	 	(c)	 	the Chargor’s financial affairs or business.






	 	14.8	 	Prompt performance
	 
	 	 	 	If this Charge specifies when the Chargor agrees to perform an obligation, the Chargor
agrees to perform it by the time specified. The Chargor agrees to perform all other
obligations promptly.
	 
	 	14.9	 	Discretion in exercising rights
	 
	 	 	 	The Chargee, an Attorney or a Receiver may exercise a right or remedy or give or refuse
its consent in any way they consider appropriate (including by imposing conditions),
unless this charge expressly states otherwise.
	 
	 	14.10	 	Partial exercising of rights
	 
	 	 	 	If the Chargee, an Attorney or a Receiver do not exercise a right or remedy fully or at
a given time, the Chargee, Attorney or Receiver may still exercise it later.
	 
	 	14.11	 	Conflict of interest
	 
	 	 	 	The Chargee’s and any Attorney’s or Receiver’s Powers under this deed may be exercised
even if this involves a conflict of duty or the Chargee, Attorney or Receiver has a
personal interest in their exercise.
	 
	 	14.12	 	Chargee or Receiver in possession
	 
	 	 	 	If the Chargee, an Attorney or a Receiver exercises any Power under this Charge or at
law to enter or take possession of the Secured Property, it:






	 	(a)	 	has a complete and unfettered discretion as to how the Secured
Property is managed; and
	 
	 	(b)	 	is liable to account only for amounts actually received by it.






	 	14.13	 	Other encumbrances or judgments
	 
	 	 	 	This Charge does not merge with or adversely affect, and is not adversely affected by,
any of the following:






	 	(a)	 	any Security or other right or remedy to which the Chargee is
entitled; or
	 
	 	(b)	 	a judgment which the Chargee obtains against the Chargor in
connection with the Secured Money.





			
	 	 	 
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	 	 	 	The Chargee may still exercise its Powers under this Charge as well as
under the judgment or other Security.
	 
	 	14.14	 	Continuing security
	 
	 	 	 	This Charge is a continuing security despite any intervening payment, settlement or
other thing until the Chargee releases the Secured Property from this Charge.






	 	14.15	 	Rights and obligations are unaffected
	 
	 	 	 	To the extent permitted by law, Powers given to the Chargee or any Attorney or Receiver
under this Charge and the Chargor’s liabilities under it are not affected by anything
which might otherwise affect them at law.
	 
	 	14.16	 	Further assurances
	 
	 	 	 	The Chargor must, at its own expense and whenever requested by the Chargee, promptly do
or cause to be done anything which the Chargee considers necessary or desirable to:






	 	(a)	 	bind the Chargor and any other person intended to be bound under this
Charge; or
	 
	 	(b)	 	to provide more effective security over the Secured Property for
payment of the Secured Money; or
	 
	 	(c)	 	perfect or give full effect to a Transaction Document or any
transaction contemplated by it; or
	 
	 	(d)	 	more fully secure the Powers of the Chargee under a
Transaction Document or to enable the Chargee to exercise those Powers,






	 	 	 	including obtaining consents, signing and delivering documents, producing receipts,
getting documents completed and signed, and doing anything required under the Personal
Property Securities Act 2009 (Cth) to ensure that this deed continues to be effective
as intended when this Charge was executed.
	 
	 	14.17	 	Counterparts
	 
	 	 	 	This deed may be executed in any number of counterparts, each of which, when executed,
is an original. Those counterparts together make one instrument.
	 
	 	14.18	 	Cumulative rights
	 
	 	 	 	Except as expressly provided in this deed, the rights of a party under this deed are in
addition to and do not exclude or limit any other rights or remedies provided by law.
	 
	 	14.19	 	Governing law
	 
	 	 	 	This deed is governed by the laws of New South Wales.
	 
	 	14.20	 	Jurisdiction
	 
	 	 	 	Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the
courts of New South Wales.





			
	 	 	 
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	 	14.21	 	Notices
	 
	 	 	 	Clause 14.1 of the Facility Agreement applies to this document as if set out in full,
subject to necessary changes.
	 
	 	14.22	 	Severability
	 
	 	 	 	Any term of this deed which is wholly or partially void or unenforceable is severed to
the extent that it is void or unenforceable. The validity or enforceability of the
remainder of this deed is not affected.
	 
	 	14.23	 	Variation
	 
	 	 	 	No variation of this deed is effective unless made in writing and signed by each party.
	 
	 	14.24	 	Waiver






	 	(a)	 	No waiver of a right or remedy under this deed is effective unless it
is in writing and signed by the party granting it. It is only effective in the
specific instance and for the specific purpose for which it is granted.
	 
	 	(b)	 	A single or partial exercise of a right or remedy under this deed
does not prevent a further exercise of that or of any other right or remedy.
	 
	 	(c)	 	Failure to exercise or delay in exercising a right or remedy under
this deed does not operate as a waiver or prevent further exercise of that or of
any other right or remedy.






	15	 	Third party provisions






	 	15.1	 	Independent obligations
	 
	 	 	 	The Charge of the Chargor is enforceable against the Chargor:






	 	(a)	 	without first having recourse to any other Security;
	 
	 	(b)	 	whether or not the Chargee or any other person has:






	 	(i)	 	made demand upon any Security Provider (other than the
Chargor);
	 
	 	(ii)	 	given notice to any Security Provider (other than the
Chargor) or any other person in respect of any thing; or
	 
	 	(iii)	 	taken any other steps against any Security Provider
(other than the Chargor) or any other person;






	 	(c)	 	whether or not any Secured Money is due; and
	 
	 	(d)	 	despite the occurrence of any event described in clause 15.2.






	 	15.2	 	Unconditional nature of obligations






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





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






	 	(i)	 	the grant to any Security Provider or any other person of
any time, waiver, covenant not to sue or other indulgence;
	 
	 	(ii)	 	the release (including a release as part of any novation)
or discharge of any Security Provider or any other person;
	 
	 	(iii)	 	the cessation of the obligations, in whole or in part,
of any Security Provider or any other person under a Transaction Document or
another document or agreement;
	 
	 	(iv)	 	the liquidation of any Security Provider or any other
person;
	 
	 	(v)	 	an arrangement, composition or compromise entered into by
the Chargee, any Security Provider or any other person;
	 
	 	(vi)	 	a Transaction Document or another document or agreement
being in whole or in part illegal, void, voidable, avoided, unenforceable or
otherwise of limited force or effect;
	 
	 	(vii)	 	an extinguishment, failure, loss, release, discharge,
abandonment, impairment, compounding, composition or compromise, in whole or
in part of a Transaction Document or another document or agreement;
	 
	 	(viii)	 	any Security being given to the Chargee by any Security Provider or any
other person;
	 
	 	(ix)	 	any alteration, amendment, variation, supplement, renewal
or replacement of a Transaction Document or another document or agreement;
	 
	 	(x)	 	any moratorium or other suspension of a Power;
	 
	 	(xi)	 	the Chargee, a Receiver or an Attorney exercising or
enforcing, delaying or refraining from exercising or enforcing, or not being
entitled or unable to exercise or enforce a Power;
	 
	 	(xii)	 	the Chargee obtaining a judgment against any Security
Provider or any other person for the payment of any of the Secured Money;
	 
	 	(xiii)	 	any transaction, agreement or arrangement that may take place with the
Chargee, any Security Provider or any other person;
	 
	 	(xiv)	 	any payment to the Chargee, a Receiver or an 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;
	 
	 	(xv)	 	any failure to give effective notice to any Security
Provider or any other person of a default under a Transaction Document or
another document or agreement;
	 
	 	(xvi)	 	any legal limitation, disability or incapacity of any
Security Provider or of any other person;
	 
	 	(xvii)	 	any breach of a Transaction Document or another document or agreement;





			
	 	 	 
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	 	(xviii)	 	the acceptance of the repudiation of, or termination of, a Transaction
Document or another document or agreement;
	 
	 	(xix)	 	any Secured Money being irrecoverable for any reason;
	 
	 	(xx)	 	any disclaimer by any Security Provider or any other
person of a Transaction Document or another document or agreement;
	 
	 	(xxi)	 	any assignment, novation, assumption or transfer of, or
other dealing with, any Powers or any other rights or obligations under a
Transaction Document or another document or agreement;
	 
	 	(xxii)	 	the opening of a new account of any Security Provider with the Chargee or
a transaction on or relating to the new account;
	 
	 	(xxiii)	 	any prejudice (including material prejudice) to a person as a result of
any thing done, or omitted by the Chargee, any Security Provider or any
other person;
	 
	 	(xxiv)	 	any prejudice (including material prejudice) to a person as a result of
the Chargee, a Receiver, an Attorney or any other person selling or
realising any property the subject of Security at less than the best price;
	 
	 	(xxv)	 	any prejudice (including material prejudice) to a person
as a result of a failure or neglect by the Chargee, a Receiver, an Attorney
or any other person to recover the Secured Money from the Chargor or any
Security Provider or by the realisation of any property the subject of a
Security;
	 
	 	(xxvi)	 	any prejudice (including material prejudice) to any person as a result of
any other thing;
	 
	 	(xxvii)	 	the receipt by the Chargee of a dividend, distribution or other payment
in respect of a liquidation;
	 
	 	(xxviii)	 	the failure of any other Security Provider or any other person to
execute any Transaction Document or any other document; or
	 
	 	(xxix)	 	any other act, omission, matter or thing whatsoever whether negligent or
not.






	 	(c)	 	Clauses 15.2(a) and 15.2(b) apply irrespective of:






	 	(i)	 	the consent or knowledge or lack of consent or knowledge,
of the Chargee, any Security Provider or any other person of any event
described in clause 15.2(b); or
	 
	 	(ii)	 	any rule of law or equity to the contrary.






	 	15.3	 	No competition






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






	 	(i)	 	be subrogated or exercise any right of subrogation to the
Chargee or another Security Provider under a Transaction Document or other
document or agreement or to any other creditor (or former creditor) of the
Chargor or another Security Provider under any document or agreement;





			
	 	 	 
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	 	(ii)	 	claim or receive the benefit of any Security Interest,
Guarantee, Security (including any Transaction Document) or other document
or agreement of which the Chargee or another Security Provider or any other
creditor (or former creditor) of the Chargor or another Security Provider
has the benefit;
	 
	 	(iii)	 	claim or receive the benefit, whether in respect of debt
or other amount arising out of a Transaction Document or another document or
agreement, of any moneys held by the Chargee;
	 
	 	(iv)	 	claim or receive the benefit of any Power;
	 
	 	(v)	 	either directly or indirectly prove in, claim or receive
the benefit of, whether in respect of debt or other amount arising out of a
Transaction Document or another document or agreement, any distribution,
dividend or payment arising out of or relating to the Winding Up of any
Security Provider, except in accordance with clause 15.3(b);
	 
	 	(vi)	 	make a claim or exercise or enforce a right, power or
remedy (including under a Security Interest or Guarantee or by way of
contribution) against any Security Provider liable to pay the Secured Money;
	 
	 	(vii)	 	accept, procure the grant of, or allow to exist any
Security Interest in favour of the Chargor from any Security Provider liable
to pay the Secured Money;
	 
	 	(viii)	 	exercise or attempt to exercise any right of set off against, nor realise
any Security Interest taken from, any Security Provider liable to pay the
Secured Money; or
	 
	 	(ix)	 	raise any defence or counterclaim in reduction or
discharge of its obligations under the Transaction Documents.






	 	(b)	 	If required by the Chargee, the Chargor must prove in any Winding Up
of any Security Provider or other person for all moneys owed to the Chargor.
	 
	 	(c)	 	All moneys recovered by the Chargor from any Winding Up or under a
Security Interest from any Security Provider or other person must be received and
be held by the Chargor for the Chargee to the extent of the unsatisfied liability
of the Chargor under the Transaction Documents.
	 
	 	(d)	 	The Chargor must not do or seek, attempt or purport to do any thing
referred to in clause 15.3(a), and waives its right to do any of those things
until the Secured Money have been fully paid and the Charge of the Chargor has
been finally discharged under clause 3.






	 	15.4	 	Suspense account






	 	(a)	 	The Chargee may apply to the credit of an interest bearing suspense
account:






	 	(i)	 	any amounts received under this deed;
	 
	 	(ii)	 	any dividends, distributions or other amounts received in
respect of the Secured Money in any Winding Up; and
	 
	 	(iii)	 	any other amounts received from the Chargor or another
Security Provider or any other person in respect of the Secured Money.





			
	 	 	 
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	 	(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 Money and may appropriate them at the discretion of the Chargee.






	 	15.5	 	Variation
	 
	 	 	 	Without limiting the above provisions, this deed and any Security covers the Secured
Money as varied from time to time including as a result of:






	 	(a)	 	any new Transaction Document or any amendment to any Transaction
Document; or
	 
	 	(b)	 	the provision of further accommodation to another Security Provider,






	 	 	 	and whether or not with the consent of or notice to the Chargor.
	 
	 	15.6	 	Indemnity
	 
	 	 	 	If any Secured Money (including moneys which would have been Secured Money if they were
recoverable) is not recoverable from the Chargor or another Security Provider for any
reason, including any legal limitation, disability or incapacity affecting the Chargor
or another Security Provider or an obligation in any Transaction Document being or
becoming unenforceable, void or illegal and whether or not:






	 	(a)	 	any transaction relating to the Secured Money was void or illegal or
has been subsequently avoided; or
	 
	 	(b)	 	any matter or fact relating to that transaction was or ought to have
been within the knowledge of the Chargee,






	 	 	 	the Chargor indemnifies the Chargee in respect of that money and must pay that money to
the Chargee.






	16	 	Limitation of liability






	 	16.1	 	Capacity
	 
	 	 	 	AICF enters into this deed in its capacity as trustee of the Charitable Fund and in no
other capacity. Subject to clause 16.4, each of the parties to this deed acknowledges
that the obligations, and any representations and warranties, of AICF under this deed
are incurred or given by AICF to the other parties in its capacity as trustee of the
Charitable Fund.
	 
	 	16.2	 	Limitation of liability






	 	(a)	 	Subject to clause 16.4, AICF is not liable to pay or satisfy any of
its obligations under this deed except out of the assets of the Charitable Fund
out of which it is entitled to be indemnified as trustee. Subject to clause 16.4,
any other party to this deed may enforce its rights against AICF arising from
non-performance of any obligation of AICF under this deed only to the extent of
AICF’s right of indemnity out of the assets of the Charitable Fund.
	 
	 	(b)	 	Subject to clause 16.4, if another party to this deed does not
recover all moneys owing to it arising from the non-performance of any obligation
of AICF under this deed by enforcing the rights referred to in clause 16.2(a),
that party may not seek to recover the shortfall by:






	 	(i)	 	bringing proceedings against AICF in its personal
capacity;





			
	 	 	 
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	 	(ii)	 	applying to have AICF wound up or proving in the winding up of AICF; or
	 
	 	(iii)	 	seeking to set off against the Borrower the relevant amount.






	 	16.3	 	Waiver of rights
	 
	 	 	 	Subject to clause 16.4, each party to this deed (other than AICF) waives its rights
against and releases AICF from any personal liability whatsoever, in respect of any
loss or damage:






	 	(a)	 	which it may suffer as a result of any breach or non performance by
AICF of any of its obligations under this deed; and
	 
	 	(b)	 	which cannot be paid or satisfied out of the assets of the Charitable
Fund.






	 	16.4	 	Qualifications to limit
	 
	 	 	 	The limitations in clauses 16.1 to 16.3 do not apply to the extent that AICF’s right to
be indemnified out of the assets of the Charitable Fund is reduced due to any fraud,
negligence or breach of trust by AICF. In the event that AICF’s right of indemnity is
so reduced, AICF will be liable both:






	 	(a)	 	in its capacity as trustee of the Charitable Fund; and
	 
	 	(b)	 	in its personal capacity but then only to the extent of the total
amount, if any, by which AICF’s right to be indemnified out of the assets of the
Charitable Fund has been reduced by reason of the fraud, negligence or breach of
trust by AICF.






	 	16.5	 	Right of indemnity out of assets of the Charitable Fund
	 
	 	 	 	This clause 16 is not intended to limit any rights which AICF has to be indemnified out
of the assets of the Charitable Fund.





			
	 	 	 
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Schedule 1
— Dictionary





	1	 	Dictionary






	 	 	 	In this deed:
	 
	 	 	 	Account Bank means, in respect of a Bank Account, Australia and New Zealand Banking
Group Limited, or any other bank which from time to time holds the Bank Account.
	 
	 	 	 	Attorney means an attorney appointed under this deed.
	 
	 	 	 	Authorised Officer means:






	 	(a)	 	in relation to the Chargor, a director or company secretary of the
Chargor;
	 
	 	(b)	 	in relation to a Receiver, a partner, director or secretary of the
Receiver and each employee of the Receiver whose title includes “Manager” or a
person acting in that capacity; or
	 
	 	(c)	 	in relation to the Chargee, any person who holds the position (or is
acting in the position) of Director Crown Asset and Liability Management or Deputy
Secretary Budget and Financial Management Directorate, or any other person
notified to the Chargor by the Chargee in writing as being an “Authorised Officer”
for the purpose of the Transaction Documents.






	 	 	 	Bank Account means each of the following:






	 	(a)	 	in relation to the Borrower, BSB 012-010, Account No. 8378 69904;
	 
	 	(b)	 	in relation to ABN 60, BSB 012-010, Account No. 8378 70147;
	 
	 	(c)	 	in relation to Amaca, BSB 012-010, Account No. 8378 70059; and
	 
	 	(d)	 	in relation to Amaba, BSB 012-010, Account No. 8378 70091.






	 	 	 	Book Debts means, in respect of the Chargor, all book debts or other debts of the
Chargor included in paragraphs (a) to (e) (inclusive) of the definition of “Secured
Property”.
	 
	 	 	 	Charge means the security created by the Chargor under this deed.
	 
	 	 	 	Chargor means each Chargor, and, where the context allows, all of them.
	 
	 	 	 	Event of Default means an event specified in clause 11.2 of the Facility Agreement.
	 
	 	 	 	Excluded Property means any interest of the Chargor in an Insurance Policy to the
extent only that the creation of the Charge over the relevant interest would entitle
the relevant insurer to lawfully terminate the relevant Insurance Policy or lawfully
refuse to make any payment to the Chargor under the relevant Insurance Policy but, for
the avoidance of doubt, does not include any proceeds of an Insurance Policy.
	 
	 	 	 	Facility Agreement means the document entitled “AICF Facility Agreement” dated on
or about the date of this deed between the parties to this deed.





			
	 	 	 
	Gilbert + Tobin
	 	Schedule 1 — Dictionary | page | 30






 









 







	 	 	 	Insurance means at any time, each policy of insurance included in the Secured Property
that the Chargor enters or has entered into or is required to enter into, including
each Insurance Policy.
	 
	 	 	 	Insurance Policy has the meaning given in the Facility Agreement.
	 
	 	 	 	Power means a power, right, authority, discretion or remedy which is conferred on the
Chargee or a Receiver or Attorney:






	 	(a)	 	by this deed or any Security; or
	 
	 	(b)	 	by law in relation to this deed or any Security.






	 	 	 	Receiver means a receiver or receiver and manager appointed under this deed.
	 
	 	 	 	Secured Money means, in relation to the Chargor, all money which the Chargor (whether
alone or not) or any other Security Provider (whether alone or not) is or at any time
may become actually or contingently liable to pay to or for the account of the Chargee
(whether alone or not) for any reason whatever under or in connection with a
Transaction Document.
	 
	 	 	 	It includes money by way of principal, interest, fees, costs, Financial Indebtedness,
Guarantee, indemnity, charges, duties or expenses or payment of liquidated or
unliquidated damages under or in connection with a Transaction Document or as a result
of a breach of or default under or in connection with, a Transaction Document.
	 
	 	 	 	It also includes amounts due for payment or which will or may become due for payment or
which remain unpaid to the Chargee in its capacity as an assignee because it has taken
an assignment of a Transaction Document or this deed itself, and whether or not:






	 	(a)	 	the Chargor or another Security Provider was aware of the assignment
or consented to it; or
	 
	 	(b)	 	the assigned obligation was secured before the assignment; or
	 
	 	(c)	 	the assignment takes place before, at the same time as, or after this
deed is executed.






	 	 	 	Where the Chargor or another Security Provider would have been liable but for its
Winding Up, it will be taken still to be liable.
	 
	 	 	 	Secured Property means, in relation to the Chargor, all of the Chargor’s right, title
and interest (whether present or future, actual or contingent) in, to, under and in
connection with:






	 	(a)	 	the Insurance Policies (including the proceeds of those policies and
the right to receive those proceeds);
	 
	 	(b)	 	each Bank Account of the Chargor and any other bank account of the
Chargor into which the proceeds of the Insurance Policies, the Annual Payments and
any Advances (as the case may be) are, or are to be, paid (including the right to
make withdrawals or transfers and the proceeds of either);
	 
	 	(c)	 	each Transaction Document (including the proceeds of any Advance made
to the Chargor);
	 
	 	(d)	 	the AFFA (including the proceeds of each Annual Payment paid to the
Chargor); and





			
	 	 	 
	Gilbert + Tobin
	 	Schedule 1 — Dictionary | page | 31






 









 






			
	(e)
	 	any right of the Chargor against, including a right to receive any
payment from,
another Security Provider,







	 	 	 	including any Book Debt of the Chargor and its proceeds but excluding any Excluded
Property.
	 
	 	 	 	Security means each Guarantee, Security Interest or other document or agreement entered
into by any person to secure Secured Money.
	 
	 	 	 	Security Provider means a person who grants a Security (and for the avoidance of doubt,
in relation to the Chargor, includes another Chargor).
	 
	 	 	 	Title Document means any original, duplicate or counterpart certificate or document of
title including any real property certificate of title or any share certificate and, in
respect of an Insurance Policy, an original counterpart of the Insurance Policy
executed by each party to it and each original annual certificate of currency in
respect of it.
	 
	 	 	 	Winding Up includes receivership, compromise, arrangement, amalgamation,
administration, reconstruction, liquidation, dissolution, assignment for the benefit of
creditors, bankruptcy or death.






	2	 	Interpretation




	 
	 	 	 	In this deed the following rules of interpretation apply unless the contrary
intention appears:



	 	(a)	 	headings are for convenience only and do not affect the
interpretation of this deed;
	 
	 	(b)	 	the singular includes the plural and vice versa;
	 
	 	(c)	 	words that are gender neutral or gender specific include each gender;
	 
	 	(d)	 	where a word or phrase is given a particular meaning, other
capitalised parts of speech and grammatical forms of that word or phrase have
corresponding meanings;
	 
	 	(e)	 	the words ‘such as’, ‘including’, ‘particularly’ and similar
expressions are not used as, nor are intended to be, interpreted as words of
limitation;
	 
	 	(f)	 	a reference to:






	 	(i)	 	a person includes a natural person, partnership, joint
venture, government agency, association, corporation or other body
corporate;
	 
	 	(ii)	 	a thing (including, but not limited to, a chose in action
or other right) includes a part of that thing;
	 
	 	(iii)	 	a party includes its successors and permitted assigns;
	 
	 	(iv)	 	a document includes all amendments or supplements to that
document;
	 
	 	(v)	 	a clause, term, party, schedule or attachment is a
reference to a clause or term of, or party, schedule or attachment to this
deed;
	 
	 	(vi)	 	this deed includes all schedules and attachments to it;





			
	 	 	 
	Gilbert + Tobin
	 	Schedule 1 — Dictionary | page | 32






 









 







	 	(vii)	 	a law includes a constitutional provision, treaty,
decree, convention, statute, regulation, ordinance, by-law, judgment, rule
of common law or equity and is a reference to that law as amended,
consolidated or replaced;
	 
	 	(viii)	 	an agreement other than this deed includes an undertaking, or legally
enforceable arrangement or understanding, whether or not in writing; and
	 
	 	(ix)	 	a monetary amount is in Australian dollars;






	 	(g)	 	an agreement on the part of two or more persons binds them jointly
and severally;
	 
	 	(h)	 	when the day on which something must be done is not a Business Day,
that thing must be done on the preceding Business Day;
	 
	 	(i)	 	in determining the time of day, where relevant to this deed, the
relevant time of day is:






	 	(i)	 	for the purposes of giving or receiving notices, the time
of day where a party receiving a notice is located; or
	 
	 	(ii)	 	for any other purpose under this deed, the time of day in
the place where the party required to perform an obligation is located; and






	 	(j)	 	no rule of construction applies to the disadvantage of a party
because that party was responsible for the preparation of this deed or any part of
it.





			
	 	 	 
	Gilbert + Tobin
	 	Schedule 1 — Dictionary | page | 33






 









 






Schedule 2
— Form of Notice of Charge of Bank Account





			
	To:	 	[Account Bank]
 [Address]






	 	 	We, [ ] ABN [ ] (the Chargor), refer to our bank account with you in your
branch at [*] and numbered [*] (the Bank Account).
	 
	 	 	WE NOTIFY YOU AS FOLLOWS:






	 	(a)	 	By a Deed entitled “Fixed and Floating Charge” dated [*] 20[**] (the
Charge) made between us as one of the Chargors and the State of New South Wales
(the Chargee), we have charged in favour of the Chargee all our right and interest
in the Bank Account.
	 
	 	(b)	 	Subject to paragraph (d) below, we have agreed with the Chargee that
we may make certain agreed withdrawals or transfers from the Bank Account in the
ordinary course of our ordinary business.
	 
	 	(c)	 	We require you to send monthly copies of the bank statements showing
a record of transactions in relation to the Bank Account to the Chargee.
	 
	 	(d)	 	Notwithstanding paragraph (b) above, we have further agreed with the
Chargee that, in certain circumstances, the Chargee may give you a notice (an
Enforcement Notice) which states that the Bank Account may be operated only by the
Chargee including providing its own substitute signatories for the Bank Account.
If you receive such an Enforcement Notice from the Chargee, you are instructed by
us to act in accordance with such notice without reference to us until notified
otherwise by the Chargee and you need not enquire whether the Chargee is in fact
entitled to give such a notice.
	 
	 	(e)	 	You are irrevocably authorised and directed on receipt of an
Enforcement Notice from the Chargee to pay to the Chargee or as it may direct any
sums which may become due to us in respect of the Bank Account.
	 
	 	(f)	 	The instructions contained in this notice cannot be revoked or varied
by us except with written consent to that effect from the Chargee.





	 	 	 

	DATED

	 	20[**]
	 
	 	 
	On behalf of
	 	 
	[ ]
	 	 






	 	 	 	 	 	 	 

	 


	 	 
	 	 

	 	 
	Director

	 	 	 	Director	 	 
	 
	 	 	 	 	 	 
	Name: 


	 	 
	 	Name:  

	 	 






			
	 	 	 
	Gilbert + Tobin
	 	Schedule 2 | page |  34






 









 






          THE TERMS of the notice set out above are confirmed by the Chargee.




On behalf of

The State of New South Wales





			
	To:	 	The State of New South Wales






	 	 	WE ACKNOWLEDGE receipt of the Notice of Charge and agree to be bound by its terms, and
consent to the Charge.
	 
	 	 	We confirm we have received no other notice of any assignment, charge or other dealing
with the Bank Account, and waive all rights of set-off, combination of account or other
equity in relation to the Bank Account in respect of any existing or future
obligations.





	 	 	 

	DATED

	 	20[**]






Authorised Signatory on behalf of




[Account Bank]




			
	 	 	 
	Gilbert + Tobin
	 	Schedule 2 |  page 35







 











 





Execution page




Executed
as a deed

Signed by Asbestos Injuries

Compensation Fund Limited by:




	 	 	 	 	 	 	 

	/s/ J Marchione

	 	 	 	/s/ D Booth	 	 
	 

Signature of director

	 	 	 	 

Signature of secretary
	 	 
	 
	 	 	 	 	 	 
	JOANNE MARCHIONE

	 	 	 	DALLAS BOOTH	 	 
	 

Name of director (print)

	 	 	 	 

Name of secretary (print)
	 	 






Signed for ABN 60 Pty Limited under power

of attorney in the presence of:




	 	 	 	 	 	 	 

	/s/ H D Nguyen
 

Signature of witness

	 	 	 	/s/ D Booth
 

Signature of attorney
	 	 
	 
	 	 	 	 	 	 
	HAI DANG NGUYEN
 

Name of witness (print)

	 	 	 	DALLAS BOOTH
 

Name of attorney (print)
	 	 






Signed by Amaca Pty Ltd by:




	 	 	 	 	 	 	 

	/s/ J Marchione
 

Signature of director

	 	 	 	/s/ D Booth
 

Signature of secretary
	 	 
	 
	 	 	 	 	 	 
	JOANNE MARCHIONE
 

Name of director (print)

	 	 	 	DALLAS BOOTH
 

Name of secretary (print)
	 	 






			
	 	 	 
	Gilbert + Tobin
	 	Execution | page | 36






 









 






Signed by Amaba Pty Ltd by:




	 	 	 	 	 	 	 

	/s/ J Marchione
 

Signature of director

	 	 	 	/s/ D Booth
 

Signature of secretary
	 	 
	 
	 	 	 	 	 	 
	JOANNE MARCHIONE
 

Name of director (print)

	 	 	 	DALLAS BOOTH
 

Name of secretary (print)
	 	 






	 	 	 	 	 	 	 	 	 

	SIGNED by The Honourable Eric Michael

	 	 	)	 	 	 	 	 
	Roozendaal MLC, Treasurer of New South

	 	 	)	 	 	 	 	 
	Wales for the STATE OF NEW SOUTH WALES

	 	 	)	 	 	 	 	 
	in the presence of:

	 	 	)	 	 	 	 	 
	 
	 	 	)	 	 	 	 	 
	/s/ L Sanderson
 

Signature of witness

	 	 	)

)

)	 	 	/s/ E Roozendaal
 

Signature
	 	 
	 
	 	 	)	 	 	 	 	 
	LEIGH RAE SANDERSON

	 	 	)	 	 	Treasurer of New South Wales	 	 
	 

Name of witness (block letters)

	 	 	)

)	 	 	 	 	 
	 

	 	 	)	 	 	 	 	 
	 

	 	 	)	 	 	 	 	 
	 

	 	 	)	 	 	 	 	 
	 

	 	 	)	 	 	 	 	 






			
	 	 	 
	Gilbert + Tobin
	 	Execution | page | 37