The Trust Deed
The Trust Deed creates a trust whereby the Trustee holds security and rights and powers of enforcement against the Company on trust for the Investors.
An intending Investor should read the Trust Deed in its entirety. In summary the Trust Deed states the following key points:
- Requires the Company to provide specified information, certificates, reports and notices to the Trustee;
- Sets out how fees payable to the Trustee are determined;
- Details the capacity and limitations on the liability of the Trustee;
- Details the types of mortgage security lending the Company will undertake;
- Confirms the Company will create and maintain a register of all Secure Note holders;
- Will not permit the Company to advance money to any related entity; and
- Precludes the Company from causing or permitting any encumbrances on its property other than those that are specified in the Trust Deed or that arise by the operation of law or statute.
Trustee’s Powers and Discretions
The Act and the Trust Deed require that the Trustee perform certain duties.
Subject to the requirements of the Act and the Trust Deed, the Trustee has a discretion on whether and how to exercise its powers. In particular:
- The Trustee is not liable for any loss, damage, cost or expense resulting from the exercise or non-exercise of its discretion in the absence of any fraud, gross negligence or breach of trust on the part of the Trustee;
- The Trustee, to the extent not precluded by the Corporations Act, is entitled to be indemnified by the Company against and in respect of all expenses under the Trust Deed. These amounts will be paid in priority to amounts to be paid to Investors;
- The Trustee has discretion, unless properly instructed by Investors under the Trust Deed, to decide whether or not to take action or enforce any provisions of any Transaction Documents as it sees fit; and
- The Trustee may employ agents and attorneys.