<PAGE>
As filed with the Securities and Exchange Commission on April 17, 1998
Registration No. 333-46945
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
PRE-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-11
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED
(ACN 081 709 211)
(Exact name of registrant as specified in its governing instruments)
Level 4, 60 Martin Place
Sydney, NSW 2000
Australia
Telephone: 612-9226-3589
(Address, including zip code/post code, and telephone number, including area
code, of registrant's principal executive offices)
----------------------
Lewis E. Love, Jr.
Director & Secretary
Westpac Securitisation Management Pty Limited
575 Fifth Avenue, 39th Floor
New York, New York 10017-2422
Telephone: (212) 551-1905
(Name, address, including zip code and telephone number, including area code,
of agent for service)
----------------------
With a copy to:
<TABLE>
<S> <C> <C>
Kimberley Gire Diane Citron, Esq. Cathy M. Kaplan, Esq.
Director Mayer, Brown & Platt Brown & Wood LLP
Westpac Securitisation Management 190 South LaSalle Street One World Trade Center
Pty Limited Chicago, Illinois 60603 New York, New York 10048
Level 6, 60 Martin Place
Sydney, NSW 2000
Australia
</TABLE>
----------------------
Approximate date of commencement of proposed sale to the public:
From time to time on or after the effective date of the registration
statement, as determined by market conditions.
----------------------
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / __________
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. / / _____________
If this form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. / / __________
If delivery of the prospectus is expected to be made pursuant to
Rule 434 check the following box. / /
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION>
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Each Class of to be Offering Price Aggregate Registration
Securities to Be Registered Registered Per Unit* Offering Price* Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Mortgage Backed Floating Rate Notes...................... $1,000,000 100% $1,000,000 $295.00
====================================================================================================================================
</TABLE>
* Estimated for the purpose of calculating the registration fee.
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall
<PAGE>
thereafter become effective in accordance with Section 8(a) of the Securities
Act of 1933, or until the Registration Statement shall become effective on such
date as the Commission, acting pursuant to said Section 8(a), may determine.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
CROSS REFERENCE SHEET
<TABLE>
<CAPTION>
Name and Caption in Form S-11 Caption in Prospectus
- ----------------------------------------------------------------- --------------------------------------------------------------
<S> <C>
1. Forepart of Registration Statement and Outside Front
Cover Page of Prospectus.................................. Front Cover of Registration Statement; Outside Front Cover
Page of Prospectus
2. Inside Front and Outside Back Cover Pages of
Prospectus................................................ Inside Front Cover Page of Prospectus; Outside Back Cover
Page of Prospectus
3. Summary Information, Risk Factors and Ratio of
Earnings to Fixed Charges................................. Summary of Terms; Risk Factors
4. Determination of Offering Price............................. *
5. Dilution.................................................... *
6. Selling Security Holders.................................... *
7. Plan of Distribution........................................ Underwriting
8. Use of Proceeds............................................. Use of Proceeds
9. Selected Financial Data..................................... *
10. Management's Discussion and Analysis of Financial
Condition and Results of Operations......................... The Trust Fund; The Trust Manager
11. General Information as to Registrant......................... Description of the Offered Notes; The Trust Manager
12. Policy with respect to Certain Activities.................... Description of the Offered Notes
13. Investment Policies of Registrant............................ Description of the Offered Notes
14. Description of Real Estate................................... The Trust Fund; Westpac Residential Loan Program
15. Operating Data............................................... *
16. Tax Treatment of Registrant and Its Security Holders......... United States Federal Income Tax Consequences; Certain
Australian Tax Matters
17. Market Price of and Dividends on the Registrant's
Common Equity and Related Stockholder Matters............... *
18. Description of Registrant's Securities....................... Description of the Offered Notes
19. Legal Proceedings............................................ *
20. Security Ownership of Certain Beneficial Owners and
Management................................................... The Trust Manager
21. Directors and Executive Officers............................. The Trust Manager
22. Executive Compensation....................................... *
23. Certain Relationships and Related Transactions............... *
24. Selection, Management and Custody of Registrant's
Investments.................................................. Description of the Offered Notes; Westpac Residential Loan
Program
25. Policies with Respect to Certain Transactions................ Description of the Offered Notes
26. Limitations of Liability..................................... Description of the Offered Notes
27. Financial Statements and Information......................... *
28. Interests of Named Experts and Counsel....................... *
29. Disclosure of Commission Position on Indemnification for
Securities Act Liabilities................................... Part II of Registration Statement
30. Quantitative and Qualitative Disclosures about Market Risk... *
</TABLE>
- ------------
* Not Applicable
<PAGE>
Information contained herein is subject to completion or amendment. A
Registration Statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the Registration Statement becomes
effective. This Prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED APRIL 17, 1998
PRELIMINARY PROSPECTUS
US$_____________
Westpac Securities Administration Limited
(ACN 000 049 472)
in its capacity as Trustee of the
Series 1998-1G WST Trust
US$___________ Class A Mortgage Backed Floating Rate Notes due ____
US$___________ Class B Mortgage Backed Floating Rate Notes due ____
Interest on the Class A Mortgage Backed Floating Rate Notes (the "Class
A Notes") and the Class B Mortgage Backed Floating Rate Notes (the "Class B
Notes" and together with the Class A Notes, the "Offered Notes") offered hereby
and issued by Westpac Securities Administration Limited solely in its capacity
as trustee of the Series 1998-1G WST Trust (the "Trust") (the "Issuer Trustee")
will be payable quarterly on the 19th day of each of April, July, October and
January (or if such 19th day is not a Business Day (as defined herein), the next
succeeding Business Day in the same month or, if not in the same month, the
immediately preceding Business Day), commencing July 19, 1998 (each, a "Payment
Date"). The principal of a class of Offered Notes will be payable on its
maturity date indicated above, subject to earlier redemption in whole or in part
as described herein. Only the Offered Notes are offered hereby.
The Offered Notes will be collateralized by a pool of variable and
fixed rate residential housing loans secured by Mortgaged Properties (as
defined herein) located in Australia (the "Housing Loans") which are
repayable in Australian dollars, rights under certain insurance policies with
respect to the Housing Loans, amounts on deposit in certain accounts, amounts
invested in Authorized Investments (as defined herein) and the Issuer
Trustee's rights under the Transaction Documents (as defined herein)
(collectively, the "Trust Assets"). The Housing Loans are from a general
portfolio of residential Housing Loans which have been originated by Westpac
Banking Corporation (ARBN 007 457 141) ("Westpac") in the ordinary course of
its business. The Housing Loans will be sold either by Westpac or the Seller
Trustee (as defined herein) to the Issuer Trustee. The Offered Notes and the
Transaction Documents (other than the Security Trust Deed) are governed by,
and shall be construed in accordance with, the laws of New South Wales,
Australia. The Security Trust Deed (as defined herein) is governed by, and
shall be construed in accordance with, the laws of the Australian Capital
Territory.
(Continued on next page)
--------------------------
PROSPECTIVE INVESTORS IN THE NOTES SHOULD REVIEW THE INFORMATION SET FORTH UNDER
"RISK FACTORS" BEGINNING ON PAGE 23 HEREIN.
THE OFFERED NOTES REPRESENT OBLIGATIONS OF THE ISSUER TRUSTEE IN ITS CAPACITY AS
TRUSTEE OF THE TRUST ONLY AND DO NOT REPRESENT INTERESTS IN OR OBLIGATIONS OF
WESTPAC, THE MORTGAGE COMPANY PTY LIMITED, WESTPAC SECURITISATION MANAGEMENT PTY
LIMITED, ANY OF THEIR RESPECTIVE AFFILIATES (OTHER THAN THE ISSUER TRUSTEE) OR
ANY GOVERNMENT OR GOVERNMENTAL AGENCY. NEITHER THE OFFERED NOTES NOR THE HOUSING
LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENT OR GOVERNMENTAL AGENCY EXCEPT
TO THE LIMITED EXTENT DESCRIBED HEREIN.
THE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
Price to Public Underwriting Discount Proceeds to Issuer Trustee(2)
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Class A Notes(1)........................ % % %
- ----------------------------------------------------------------------------------------------------------------------------------
Class B Notes(1)........................ % % %
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Total .................................. US$ US$ US$
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Plus accrued interest, if any, at the applicable rate from __________.
(2) Before deducting expenses, estimated to be US$___________.
Application has been made to the London Stock Exchange Limited
(the "London Stock Exchange") for the Offered Notes to be admitted to the
Official List. Copies of this Prospectus, which comprises Listing Particulars
with regard to the Issuer Trustee and the Notes in accordance with the
listing rules made under Part IV of the Financial Services Act of 1986, have
been delivered to the Registrar of Companies in England of Wales for
registration in accordance with Section 149 of that Act.
The Offered Notes are offered by the Underwriters (as defined herein)
subject to prior sale when, as and if issued to and accepted by them, subject to
approval of certain legal matters by counsel for the Underwriters. The
Underwriters reserve the right to reject any order in whole or in part and to
withdraw, cancel or modify the offer without notice. It is expected that
delivery of the Offered Notes will be made in book-entry form through the
facilities of The Depository Trust Company ("DTC"), Cedel Bank, societe anonyme
("Cedel") and the Euroclear System ("Euroclear") on or about _____________,
against payment therefor in immediately available funds.
J.P. Morgan & Co. MORGAN STANLEY DEAN WITTER
J.P. Morgan Securities Inc. and Morgan Stanley & Co. Incorporated are acting as
joint bookrunners in connection with the activities relating to this offering.
The date of this Prospectus is ___________.
<PAGE>
(Continued from the cover page)
The Issuer Trustee was incorporated on 11th July 1944 as, and
continues to exist and operate as, a limited liability public company under
the Corporations Law of New South Wales, Australia. The Trust was formed on
___________ pursuant to the Notice of Creation of Trust (as defined herein)
executed by the Issuer Trustee and Westpac Securitisation Management Pty
Limited (the "Trust Manager"). The Issuer Trustee will issue the Offered
Notes in its capacity as trustee of the Trust.
The Offered Notes shall be subject to mandatory redemption in part on
any Payment Date if on that date there are any Principal Collections (as defined
herein) available to be distributed in relation to the Offered Notes. The
Offered Notes are also subject to optional redemption in full in certain
circumstances described herein.
The Class A Notes rank pari passu and without any preference among
themselves and the Class B Notes rank pari passu and without any preference
among themselves. The right to payment of principal of and interest on the Class
B Notes is subordinated and may be limited as more particularly described
herein. In addition, under certain limited circumstances, the Trust may issue
certain additional debt securities, the Redraw Funding Securities ("RFSs"),
which in certain circumstances will convert to RFS Class A Notes (the "RFS Class
A Notes"). Upon conversion, the RFS Class A Notes will rank pari passu in
respect of priority of principal and interest with the Class A Notes. The RFSs,
along with repayments under the Redraw Facility (as defined herein), will be
senior in priority of distributions of principal to the Class A Notes and the
RFS Class A Notes. The RFSs, the RFS Class A Notes and fees with respect to the
Redraw Facility and the Class A Notes will rank pari passu in respect to
priority of payments of interest. Payments in respect of principal and interest
in respect of the Class B Notes are subordinated to such payments in respect of
the Class A Notes, RFSs and RFS Class A Notes. See "DESCRIPTION OF THE OFFERED
NOTES--Description of the Redraw Facility, the Redraw Funding Securities and the
RFS Class A Notes," "--Interest Payable on the RFSs and the RFS Class A Notes"
and "--Subordination of the Class B Notes." The RFSs and the RFS Class A Notes
are not being offered hereby.
The Offered Notes should not be acquired by any associate (as defined
in Section 128F of the Income Tax Assessment Act of 1936 of Australia) of the
Issuer Trustee (which for these purposes, is Westpac and its associates).
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN
TRANSACTIONS THAT STABILIZE, MAINTAIN, OR OTHERWISE AFFECT THE PRICE OF THE
SECURITIES. SPECIFICALLY, THE UNDERWRITERS MAY OVERALLOT IN CONNECTION WITH THE
OFFERING, AND MAY BID FOR, AND PURCHASE, THE SECURITIES IN THE OPEN MARKET. SEE
"UNDERWRITING."
Until 90 days after the date of this Prospectus, all dealers effecting
transactions in the Offered Notes, whether or not participating in this
distribution, may be required to deliver a Prospectus. This is in addition to
the obligation of dealers to deliver a Prospectus when acting as underwriters
and with respect to their unsold allotments or subscriptions.
---------------------
ANNOUNCEMENT
By distributing or arranging for the distribution of this Prospectus to
the Underwriters and the persons to whom this Prospectus is distributed, the
Issuer Trustee announces to the Underwriters and each such person that: (1) the
Offered Notes will be issued in the form of one or more Global Notes issued to
and lodged with the Common Depository for Euroclear and Cedel Bank; (2) in
connection with the issue, DTC, Euroclear and/or Cedel Bank will confer rights
in relation to the Offered Notes and Noteholders and will record the existence
of those rights; and (3) as a result of the issue of the Offered Notes in this
manner, such rights will be able to be created.
-----------------------
REPORTS TO NOTEHOLDERS
Unless and until Definitive Notes (as defined herein) are issued,
quarterly and annual unaudited reports containing information concerning the
Trust and the Offered Notes will be prepared by the Trust Manager and sent on
behalf of the Issuer Trustee to Cede & Co. ("Cede"), as nominee of DTC as
registered holder of the Offered Notes pursuant to the Note Trust Deed. See
"DESCRIPTION OF THE OFFERED NOTES--Book-Entry Registration" and "--Determination
Date- Calculations and Reports to Noteholders." Such reports will be made
available by the Issuer Trustee to DTC and its participants. DTC and its
participants will make such reports available to holders of interests in the
Offered Notes in accordance with the rules, regulations and procedures creating
and affecting DTC. However, such reports will not be sent
2
<PAGE>
directly to each beneficial owner while the Offered Notes are in book-entry
form. Upon the issuance of fully registered, certificated Offered Notes, such
reports will be sent directly to each Noteholder. Such reports will not
constitute financial statements prepared in accordance with generally accepted
accounting principles. The Trust Manager, on behalf of the Issuer Trustee, will
file with the Securities and Exchange Commission (the "Commission") such
periodic reports as are required under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the rules and regulations of the Commission
thereunder. However, in accordance with the Exchange Act and the rules and
regulations of the Commission thereunder, the Trust Manager expects that the
Issuer Trustee's obligation to file such reports will be terminated following
the end of 1998.
UNITED KINGDOM DISCLAIMERS
This Prospectus does not constitute an offer of, or an invitation by or
on behalf of, the Issuer Trustee or the Underwriters or any of them, to
subscribe for or purchase any of the Offered Notes, and must not be relied
upon by anybody intending to purchase the Offered Notes.
No action has been or will be taken by the Issuer Trustee or the
Underwriters that would permit a public offer of the Offered Notes in any
country or jurisdiction (other than in the United States of America) where
action for that purpose is required. Accordingly, the Offered Notes may not
be offered or sold, directly or indirectly, and neither this Prospectus nor
any offering circular, prospectus, form of application, advertisment or other
offering material may be issued or distributed or published in any country or
jurisdiction, except in circumstances that will result in compliance with
all applicable laws and regulations and the Underwriters have represented
that all offers and sales by them have been and will be made on such terms.
Persons into whose possession this document comes are required by the Issuer
Trustee and the Underwriters to inform themselves about and to observe any
such restrictions. [For a description of certain further restricctions on
offers and sales of Offered Notes, distribution of this document as to non-US
beneficial ownership, see "UNDERWRITING."]
For purposes of the Financial Services Act 1986, the Issuer Trustee
accepts responsibility for the information contained in this Prospectus. To
the best of the knowledge and belief of the Issuer Trustee (which has taken
all reasonable care to ensure that such is the case), the information
contained in this Prospectus is in accordance with the facts and does not
omit anything likely to affect the import of such information.
The Currency Swap Provider (as defined herein) accepts responsibility
for the information contained in "CURRENCY SWAP PROVIDER". To the best of the
knowledge and belief of the Currency Swap Provider (which has taken all
reasonable care to ensure that such is the case), such information is in
accordance with the facts and does not omit anything likely to affect the
import of such information. The Currency Swap Provider does not accept
responsibility for any other information contained in this Prospectus. Save
for the above information, the Currency Swap Provider has not separately
verified the information contained herein. No representation, warranty or
undertaking, express or implied, is made and no responsibility or liability
is accepted by the Currency Swap Provider as to the accuracy or completeness
of any of the information in this Prospectus (other than the above
information) or any other information supplied in connection with the Offered
Notes or their distribution.
Each Noteholder is required to accept any distribution of moneys under the
Security Trust Deed in full and final satisfaction of all moneys owing to it,
and any debt represented by any shortfall that exists after any such final
distribution is extinguished. The Issuer Trustee shall not be liable to
satisfy any obligations or liabilities in relation to the Offered Notes from
its personal assets except arising from (and to the extent of ) any fraud,
negligence or breach of trust on the part of the Issuer Trustee.
3
<PAGE>
AUSTRALIAN DISCLAIMERS
(a) The Offered Notes do not represent deposits or other liabilities of
Westpac or associates of Westpac.
(b) The holding of the Offered Notes is subject to investment risk,
including possible delays in repayment and loss of income and principal
invested.
(c) Neither Westpac nor any associate of Westpac in any way stands
behind the capital value and/or performance of the Offered Notes or the assets
of the Trust except to the limited extent provided in the Transaction Documents
for the Trust.
(d) None of Westpac, the Issuer Trustee, The Mortgage Company Pty
Limited (the "Servicer") or the Trust Manager guarantees the payment of interest
or the repayment of principal due on the Offered Notes.
(e) None of the obligations of the Trust Manager are guaranteed in any
way by Westpac or any associate of Westpac.
--------------
4
<PAGE>
AVAILABLE INFORMATION
The Trust Manager has filed with the Commission a Registration
Statement (together with all amendments and exhibits thereto, referred to herein
as the "Registration Statement") under the Securities Act of 1933, as amended
(the "Securities Act") with respect to the Offered Notes offered pursuant to
this Prospectus. For further information, reference is made to the Registration
Statement and amendments thereof and to the exhibits thereto, which are
available for inspection without charge at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549;
and at the Commission's regional offices at Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661, and 7 World Trade Center, Suite
1300, New York, New York 10048. Copies of the Registration Statement and
amendments thereof and exhibits thereto may be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. The Commission also maintains a World Wide Web site
which provides on-line access to reports, proxy and information statements and
other information regarding registrants that file electronically with the
commission at the address "http://www.sec.gov."
ENFORCEMENT OF FOREIGN JUDGMENTS IN AUSTRALIA
The Trust Manager is an Australian proprietary company incorporated
with limited liability under the Corporations Law. Any final and conclusive
judgment of any New York State or United States Federal Court sitting in the
Borough of Manhattan in the City of New York having jurisdiction recognized by
the relevant Australian jurisdiction in respect of an obligation of the Trust
Manager in respect of an Offered Note, which is for a fixed sum of money and
which has not been stayed or satisfied in full, would be enforceable by action
against the Trust Manager in the courts of the relevant Australian jurisdiction
without a re-examination of the merits of the issues determined by the
proceedings in the New York State or United States Federal Court, as applicable,
unless: (a) the proceedings in New York State or United States Federal Court, as
applicable, involved a denial of the principles of natural justice; (b) the
judgment is contrary to the public policy of the relevant Australian
jurisdiction; (c) the judgment was obtained by fraud or duress or was based on a
clear mistake of fact; (d) the judgment is a penal or revenue judgment; or (e)
there has been a prior judgment in another court between the same parties
concerning the same issues as are dealt with in the judgment of the New York
State or United States Federal Court, as applicable. A judgment by a court may
be given in some cases only in Australian dollars. The Trust Manager has
expressly submitted to the jurisdiction of New York State and United States
Federal Courts sitting in the Borough of Manhattan in the City of New York for
the purpose of any suit, action or proceedings arising out of this offering. The
Trust Manager has appointed Lewis E. Love, Jr., its Director and Secretary, 575
Fifth Avenue, New York, New York 10017-2422, as its agent upon whom process may
be served in any such action.
The majority of the directors and executive officers of the Trust
Manager, and certain experts named herein, reside outside the United States (in
the Commonwealth of Australia). Substantially all or a substantial portion of
the assets of all or many of such persons are located outside the United States.
As a result, it may not be possible for holders of the Offered Notes to effect
service of process within the United States upon such persons or to enforce
against them judgments obtained in United States courts predicated upon the
civil liability provisions of Federal securities laws of the United States. The
Trust Manager has been advised by its Australian counsel Allen Allen & Hemsley,
that, based on the restrictions referred to above, there is doubt as to the
enforceability in the Commonwealth of Australia, in original actions or in
actions for enforcement of judgments of United States courts, of civil
liabilities predicated upon the Federal securities laws of the United States.
EXCHANGE CONTROLS AND LIMITATIONS
Under temporary Australian foreign exchange controls, payments by an
Australian resident to, or on behalf of: (a) the Government of Iraq or its
agencies or nationals; (b) the authorities of the Federal Republic of Yugoslavia
(Serbia and Montenegro); or (c) the Government of Libya or any public authority
or controlled entity of the Government of Libya may only be made with Reserve
Bank of Australia approval. Such restrictions may change in the future. See
"RISK FACTORS--Risks of Currency Exchange Controls."
U.S. DOLLAR PRESENTATION
In this Prospectus, references to "U.S. dollars" and "US$" are
references to U.S. currency and references to "Australian dollars" and "A$" are
references to Australian currency. Unless otherwise stated herein, the
translations of Australian dollars into U.S. dollars have been made at a rate of
US$[ ]=A$1.00, the noon buying rate in New York City for cable transfers in
Australian dollars as certified for customs purposes by the Federal Reserve Bank
of New York on _________, 1998. Use of such rate is not a representation that
Australian dollar amounts actually represent such U.S.
dollar amounts or could be converted into U.S. dollars at that rate.
5
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
SUMMARY OF TERMS............................................................. 10
STRUCTURAL CHART............................................................. 20
CASH FLOW SUMMARY............................................................ 21
Collections.............................................................. 21
Gross Principal Collections.............................................. 21
Principal Losses......................................................... 22
Income Collections....................................................... 22
Liquidity Support........................................................ 23
Currency Swap............................................................ 23
CASH FLOW CHART.............................................................. 24
RISK FACTORS................................................................. 25
Limited Liability under the Offered Notes................................ 25
Risk of Equitable Assignment............................................. 25
Risk of Losses and Delays from Enforcement of the Housing Loans.......... 26
Mortgage Insurance Policies.............................................. 26
Risks Associated with High LVR Housing Loans............................. 26
Risks Associated with Westpac's Ability to Set Rates on Variable
Rate Housing Loans at its Discretion.................................... 26
Risks of Currency Exchange Controls...................................... 27
Risks Related to a Termination of the Swap Agreements.................... 27
Delinquency and Default Risk............................................. 28
Risk of Early Defaults................................................... 28
Prepayment and Yield Considerations...................................... 28
Reinvestment Risk........................................................ 29
Servicer Risk............................................................ 29
Priority of RFSs and RFS Class A Notes Owned by Australian
Resident Investors...................................................... 29
Credit Enhancement Provides Only Limited Protection Against Losses....... 30
Limitations on the Liquidity Support..................................... 30
Exercise of Clean-up Offer may result in Shortfalls to Noteholders....... 30
Redemption of the Notes.................................................. 30
Geographic Concentration May Affect Performance.......................... 30
Consumer Credit Legislation.............................................. 31
Risk of Commingling...................................................... 31
Limited Liquidity........................................................ 32
Ratings of the Notes; Factors Affecting Ability to Maintain Ratings...... 32
Book-Entry Notes......................................................... 32
Other Considerations..................................................... 32
FORMATION OF THE TRUST....................................................... 32
Westpac Securitisation Trust Programme................................... 32
Series 1998-1G WST Trust................................................. 33
Trust Assets............................................................. 33
SECURITY FOR THE NOTES....................................................... 33
Charge................................................................... 33
Security Trustee......................................................... 33
Enforcement.............................................................. 34
Priorities under the Security Trust Deed................................. 35
Security Trustee's Fees and Expenses..................................... 36
Retirement and Removal................................................... 36
Additional Provisions of the Security Trust Deed......................... 37
6
<PAGE>
THE TRUST FUND............................................................... 37
General.................................................................. 37
Transfer and Assignment of Housing Loans................................. 37
Representations and Warranties........................................... 38
Breach of Representations and Warranties................................. 40
Housing Loan Statistics.................................................. 40
THE ISSUER TRUSTEE........................................................... 45
Incorporation............................................................ 46
Share Capital............................................................ 46
Business................................................................. 46
Experience............................................................... 46
Directors................................................................ 46
Powers................................................................... 47
Duties................................................................... 47
Delegation............................................................... 48
Issuer Trustee Fees and Expenses......................................... 48
Removal of the Issuer Trustee............................................ 48
Voluntary Retirement of the Issuer Trustee............................... 48
Limitation of Issuer Trustee's Liability................................. 49
Rights of Indemnity of Issuer Trustee.................................... 49
Limitation of Seller Trustee's Liability and Rights of Indemnity......... 49
Rights of Indemnity of Seller Trustee.................................... 50
ORIGINATOR OF THE HOUSING LOANS.............................................. 50
Year 2000................................................................ 50
THE SERVICER................................................................. 50
General.................................................................. 50
Servicing of Housing Loans............................................... 50
Document Custody......................................................... 51
Collection and Enforcement Procedures.................................... 51
Delinquencies and Mortgagee in Possession with respect
to the Securitized Portfolios........................................... 51
THE TRUST MANAGER............................................................ 54
General.................................................................. 54
Incorporation............................................................ 54
Share Capital............................................................ 54
Business................................................................. 54
Directors................................................................ 54
Duties and Role of the Trust Manager..................................... 55
WESTPAC RESIDENTIAL LOAN PROGRAM............................................. 56
Origination of Housing Loans............................................. 56
Underwriting of Housing Loans............................................ 56
Servicing of Housing Loans............................................... 57
Housing Loan Products.................................................... 57
Housing Loan Features.................................................... 58
THE MORTGAGE INSURANCE POLICIES.............................................. 60
Mortgage Insurance Policies - General.................................... 60
The HLIC Mortgage Pool Insurance Policy.................................. 60
Primary Mortgage Insurance Policies...................................... 63
PREPAYMENT AND YIELD CONSIDERATIONS.......................................... 64
General.................................................................. 64
Prepayments.............................................................. 65
Weighted Average Lives................................................... 65
DESCRIPTION OF THE OFFERED NOTES............................................. 66
7
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General.................................................................. 66
Collections and Payment.................................................. 67
Collections.............................................................. 68
Calculation of Total Available Funds..................................... 68
Available Income......................................................... 68
Principal Draws.......................................................... 70
Liquidity Draws.......................................................... 70
Remaining Liquidity Shortfall............................................ 70
Distribution of Total Available Funds.................................... 71
Excess Available Income.................................................. 73
Gross Principal Collections.............................................. 73
Principal Collections.................................................... 74
Distribution of Principal Collections.................................... 74
Payments of Principal on the Notes....................................... 75
Application of Principal Charge Offs..................................... 77
Payments into US$ Account................................................ 78
Payments out of US$ Account.............................................. 79
Prepayment Costs and Prepayment Benefits................................. 79
Description of the Redraw Facility, the Redraw Funding Securities
and the RFS Class A Notes............................................... 79
Redraw Facility.......................................................... 79
Issuance of Redraw Funding Securities ("RFS")............................ 82
RFS Class A Notes........................................................ 82
Form of the RFSs and the RFS Class A Notes............................... 83
Interest Payable on the RFSs and the RFS Class A Notes................... 83
Subordination of Class B Notes........................................... 83
Substitution of Housing Loans............................................ 83
Clean-up Offer........................................................... 84
Redemption of the Notes.................................................. 84
Termination of the Trust................................................. 84
Trust Accounts........................................................... 85
General.................................................................. 85
Determination Date - Calculations and Reports to Noteholders............. 86
Book-Entry Registration.................................................. 87
Definitive Notes......................................................... 89
Modification of Master Trust Deed Without Noteholder Consent............. 90
Modification of Master Trust Deed With Noteholder Consent................ 90
Meetings of Voting Mortgagees and Meetings of Class A Noteholders;
Modification; Consents; Waiver.......................................... 90
Meetings of Voting Mortgagees and Meetings of Class B Noteholders;
Modifications; Consents; Waiver......................................... 91
Events of Default; Rights Upon Event of Default.......................... 92
Enforcement.............................................................. 93
Certain Covenants........................................................ 95
The Note Trustee......................................................... 96
Governing Law............................................................ 96
DESCRIPTION OF THE SERVICING AGREEMENT....................................... 96
General.................................................................. 96
Servicing................................................................ 96
Document Custody......................................................... 98
Amendment................................................................ 99
Termination of Servicing Agreement....................................... 99
THE LIQUIDITY FACILITY....................................................... 99
General Description...................................................... 99
Liquidity Draws.......................................................... 99
Conditions Precedent to a Liquidity Draw.................................100
Deposit into a Collateral Account........................................100
Interest on Liquidity Draws..............................................100
Commitment Fee...........................................................100
Repayment of Liquidity Drawings..........................................100
Events of Default........................................................101
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Consequences of Default..................................................101
Termination..............................................................101
DESCRIPTION OF THE SWAP AGREEMENTS...........................................101
Description of Interest Rate Swap Agreements.............................101
Description of Currency Swap.............................................103
Replacement of Currency Swap.............................................105
Downgrade of Currency Swap Provider......................................105
CURRENCY SWAP PROVIDER.......................................................105
CERTAIN LEGAL ASPECTS OF THE HOUSING LOANS...................................105
General..................................................................105
Nature of Housing Loans as Security......................................106
Enforcement of Housing Loans.............................................107
Penalties and Prohibited Fees............................................107
Consumer Credit Legislation..............................................108
Bankruptcy...............................................................109
Environmental............................................................109
Insolvency Considerations................................................109
Treatment of Interest Payments with respect to Australian
Housing Loans...........................................................109
USE OF PROCEEDS..............................................................109
UNITED STATES FEDERAL INCOME TAX CONSEQUENCES................................109
General..................................................................110
Sales of Notes...........................................................110
Market Discount..........................................................110
Premium..................................................................111
Backup Withholding.......................................................111
CERTAIN AUSTRALIAN TAX MATTERS...............................................111
Payments of Principal, Premiums and Interest.............................111
Profit on Sale...........................................................112
Other Taxes..............................................................112
ERISA CONSIDERATIONS.........................................................112
RATINGS OF THE NOTES.........................................................113
LEGAL INVESTMENT CONSIDERATIONS..............................................113
UNDERWRITING.................................................................113
LISTING AND GENERAL INFORMATION FOR NON-U.S. INVESTORS.......................114
Listing..................................................................114
Authorization............................................................114
Litigation...............................................................114
Euroclear and Cedel......................................................114
Documents Available for Collection and Inspection........................114
Temporary Australian Foreign Exchange Controls...........................115
LEGAL MATTERS................................................................115
INDEX OF DEFINED TERMS.......................................................116
APPENDIX I - GLOSSARY OF AUSTRALIAN LEGAL TERMS.....................Appendix I-1
</TABLE>
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SUMMARY OF TERMS
This Summary of Terms is qualified in its entirety by reference to the
detailed information appearing elsewhere in this Prospectus. Certain capitalized
terms used in this Summary of Terms are defined elsewhere in this Prospectus on
the pages indicated "Index of Defined Terms."
<TABLE>
<S> <C>
Issuer Trustee...................... Westpac Securities Administration Limited (ACN 000 049 472), a limited liability
public company under the Corporations Law of New South Wales, Australia, a
wholly owned, indirect subsidiary of Westpac Banking Corporation, in its capacity
as trustee of the Series 1998-1G WST Trust (the "Trust") (the "Issuer Trustee") will
issue the Offered Notes.
Approved Seller..................... Either Westpac Banking Corporation (ARBN 007 457 141) ("Westpac"), a
corporation organized under the laws of New South Wales in the Commonwealth of
Australia, in its capacity as seller under a notice of sale (the "Sale Notice") between
Westpac and the Issuer Trustee or the Seller Trustee as defined herein) under a Sale
Notice between the Seller Trustee and the Issuer Trustee. Westpac and Westpac Securities
Administration Limited, in its capacity as Seller Trustee, are referred to herein as
"Approved Sellers."
Servicer............................ The Mortgage Company Pty Limited (ACN 070 968 302) (the "Servicer" or
"TMC"), a wholly owned indirect subsidiary of Westpac, in its capacity as servicer
under the Servicing Agreement among Westpac, the Servicer and the Issuer Trustee
dated February 18, 1997, as amended from time to time (the "Servicing
Agreement").
Trust Manager and Registrant........ Westpac Securitisation Management Pty Limited (ACN 081 709 211) (the "Trust
Manager"), a wholly owned indirect subsidiary of Westpac, in its capacity as trust
manager under the Master Trust Deed, dated February 14, 1997 (the "Master Trust
Deed"), as amended by the Series Notice (as defined herein), among the Issuer
Trustee and the Trust Manager dated on or about the Closing Date. See
"FORMATION OF THE TRUST."
Note Trustee........................ Morgan Guaranty Trust Company of New York (the "Note Trustee"), a ________________,
in its capacity as note trustee under the Note Trust Deed among the Issuer Trustee,
the Trust Manager and the Note Trustee dated __________, 1998, as amended from time
to time (the "Note Trust Deed").
Security Trustee.................... Perpetual Trustee Company Limited (ACN 000 001 007) (the "Security Trustee"),
a company within the Perpetual group with its holding company being Perpetual
Trustees Australia Limited (ACN 000 431 827), in its capacity as security trustee
under the Security Trust Deed among the Issuer Trustee, the Trust Manager, the
Note Trustee and the Security Trustee dated _______, 1998, as amended from time
to time (the "Security Trust Deed").
Seller Trustee...................... Westpac Securities Administration Limited in its capacity as trustee of any other WST
trust established under the Master Trust Deed (in that capacity, the "Seller Trustee").
The Seller Trustee may sell housing loans relating to such other trusts to the Trust and
may repurchase the Housing Loans relating to the Trust upon the exercise of the
Clean-up Offer (as defined herein).
Paying Agents....................... Morgan Guaranty Trust Company of New York will act as the principal paying agent ("Principal
Paying Agent") and Morgan Guaranty Trust Company of New York, 60 Victoria Embankment,
London, EC4Y OJP, will act as a paying agent (the "Paying Agent" and together with the
Principal Paying Agent, the "Paying Agents").
Roles of the Security Trustee
and Note Trustee.................... The structure of the Series 1998-1G WST Trust transaction employs several different
trustees. The Security Trustee is the entity that holds a security interest over the
assets of the Trust and has the responsibility of securing such assets and distributing
the proceeds received upon the liquidation of such assets upon the occurrence of a
default and enforcement of the security interest. The Note Trustee is the entity
which represents the interest of the Noteholders. The provisions of the Security
Trust Deed require the Security Trustee to consult with, and obtain the consent of,
the Note Trustee before taking certain actions. Thus, not only does the Security
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Trustee owe fiduciary duties to the Note Trustee (and the Offered Noteholders and the other
secured creditors), it has contractual obligations to consult and act at the Note Trustee's
direction in accordance with the Security Trust Deed. The Note Trustee owes fiduciary duties
to the Offered Noteholders and must act in accordance with those duties when directing the
Security Trustee to act or not to act. The roles of the Note Trustee and the Security Trustee
together approximate the role of an Indenture Trustee in a United States transaction.
Securities Offered.................. The Issuer Trustee, in its capacity as trustee of the Series 1998-1G WST Trust,
which was formed under Australian law, will issue and hereby offer the following
Mortgage Backed Floating Rate Notes:
Class A Mortgage Backed Floating Rate Notes due __________ in the aggregate
principal amount of US$________________ (the "Class A Notes").
Class B Mortgage Backed Floating Rate Notes due _________ in the aggregate
principal amount of US$______________ (the "Class B Notes").
The Class A Notes and the Class B Notes are collectively referred to herein as the
"Offered Notes."
Redraws, RFSs and RFS Class A
Notes............................... Certain Housing Loans provide the relevant Borrower (as defined herein) with the
ability to "reborrow" from Westpac amounts that have been previously paid by the
Borrower on the relevant Housing Loan which are in excess of scheduled repayments
required under the contractual amortization schedule. Amounts drawn by Borrowers
on principal repayments made in excess of scheduled payments are called "redraws".
Westpac is entitled to be reimbursed by the Issuer Trustee for such redraws from
Gross Principal Collections (as defined herein) and from Principal Collections (as
defined herein) prior to any payments to the Offered Notes from such Collections.
On or before the Closing Date, Westpac as provider of the Redraw Facility (as
defined herein) will enter into a Redraw Facility Agreement (as defined herein). If
Gross Principal Collections for a period are insufficient to fund a redraw provided
to a Borrower by Westpac, drawings will be made under the Redraw Facility
Agreement to fund the redraw (up to the limit set out in the Redraw Facility
Agreement).
If there are insufficient amounts available under the Redraw Facility Agreement to
fund redraws the Trust Manager may direct the Issuer Trustee to issue additional
debt securities known as "Redraw Funding Securities" or "RFSs". The RFSs and
payments under the Redraw Facility will be senior in priority of distributions of
principal to the Class A Notes and RFS Class A Notes (as defined herein). Interest
on the RFSs, RFS Class A Notes and Class A Notes and fees with respect to the
Redraw Facility will rank pari passu in respect in priority.
If any RFSs remain outstanding for a period of five or more Collection Periods (as
defined herein), they shall convert into RFS Class A Notes (the "RFS Class A
Notes"), the holders of which will rank pari passu with the Class A Notes as to the
payment of interest and principal and have certain rights of payment senior to those
rights of holders of the Class B Notes. The RFSs, RFS Class A Notes and the
Offered Notes are referred to herein as the "Notes."
The RFSs and RFS Class A Notes, if issued, will be denominated in Australian
dollars and issued in Australia to Australian residents only. The RFSs and RFS
Class A Notes will be in book-entry form and will not be registered with the
Securities and Exchange Commission in the United States and will not be registered
with the relevant companies authority in Australia. The RFSs and RFS Class A
Notes are not offered hereby.
For a description of the RFSs, the RFS Class A Notes and the priority of their
payment, see "Priority of Distribution with respect to the Offered Notes, RFSs and
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RFS Class A Notes" herein and "DESCRIPTION OF THE OFFERED NOTES--Description of the Redraw
Facility, Redraw Funding Securities and the RFS Class A Notes," "--Interest Payable on the
RFSs and the RFS Class A Notes" and "--Subordination of the Class B Notes" herein.
Cut-Off Date........................ April 29, 1998 (the "Cut-Off Date").
Closing Date........................ June 2, 1998 (the "Closing Date").
Maturity Date....................... May 8, 2029 (the "Maturity Date").
Terms of the Offered Notes
General........................... Payments of interest and principal on each class ("Class") of Offered Notes will be
made quarterly on the 19th day of each of April, July, October and January (or if
such 19th day is not a Business Day, the next succeeding Business Day in the same
month or, if not in the same month, the immediately preceding Business Day),
commencing on July 19, 1998 (each such date, a "Payment Date").
As used in this Prospectus, "Business Day" means any day, other than a Saturday,
Sunday or public holiday, on which banks in Sydney, [London], New York City, the
city in which the corporate trust office of the paying agent is located and the city in
which the office of the Swap Providers are open. If a public holiday is occurring
in any of the referenced locales, then such day is not a Business Day, and no
scheduled payments will be made on such day.
Payments of interest and principal will be made to the holders of the Offered Notes
(the "Offered Noteholders") of record as of the day which is two Business Days
preceding the Payment Date (so long as the Offered Notes are held in book-entry
form) or the last day of the prior calendar month (if Definitive Notes have been
issued) (such day, the "Record Date"). Each Offered Note bears interest on its
Invested Amount. The "Invested Amount" of an Offered Note is equal to the Initial
Invested Amount (as defined herein) of such Offered Note less all payments
previously made in respect of principal in respect of such Offered Note. The "Initial
Invested Amount" of a Class of Notes is its principal balance on the date of its
issuance. Each "Interest Period" (other than the initial Interest Period and the final
Interest Period) with respect to the Offered Notes commences on (and includes) a
Payment Date and ends on (but excludes) the next Payment Date. The initial Interest
Period with respect to the Offered Notes commences on (and includes) the Closing
Date and ends on (but excludes) the first Payment Date. The final Interest Period
ends on (but excludes) the Maturity Date.
The "Interest Rate" for the Class A Notes for a particular Interest Period is equal to
USD-LIBOR-BBA on the related Interest Determination Date (as defined herein) plus
___%. The "Interest Rate" for the Class B Notes for a particular Interest Period is
equal to USD-LIBOR-BBA on the related Interest Determination Date plus ___%.
The Interest Rate on the Class A Notes for the first Interest Period is _____. The
Interest Rate on the Class B Notes for the first Interest Period is ____. See
"DESCRIPTION OF THE OFFERED NOTES--Calculation of USD-LIBOR-BBA"
herein.
On the second London banking day before the beginning of each Interest Period
(each an "Interest Determination Date"), ____________________ (the "Agent Bank")
will determine the rate "USD-LIBOR-BBA" as the applicable Floating Rate Option
under the Definitions of the International Swaps and Derivatives Association, Inc.
("ISDA") (the "ISDA Definitions") being the rate applicable to any Interest Period
for three-month deposits in U.S. dollars which appears on the Telerate Page 3750
as of 11:00 a.m., London time, on the Interest Determination Date. If such rate does
not appear on the Telerate Page 3750, the rate for that Interest Period will be
determined as if the Issuer Trustee and Agent Bank had specified
"USD-LIBOR-Reference Banks" as the applicable Floating Rate Option under the
ISDA Definitions. "USD-LIBOR-Reference Banks" means that the rate for an
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Interest Period will be determined on the basis of the rates at which deposits in U.S. Dollars
are offered by the Reference Banks (being four major banks in the London interbank market) at
approximately 11:00 a.m., London time, on the Interest Determination Date to prime banks in the
London interbank market for a period of three months commencing on the first day of the
Interest Period and in a Representative Amount (as defined in the ISDA Definitions). The Agent
Bank will request the principal London office of each of the Reference Banks to provide a
quotation of its rate. If at least two such quotations are provided, the rate for that Interest
Period will be the arithmetic mean of the quotations. If fewer than two quotations are provided
as requested, the rate for that Interest Period will be the arithmetic mean of the rates quoted
by major banks in New York City, selected by the Agent Bank, at approximately 11:00 a.m., New
York City time, on that Interest Determination Date for loans in U.S. dollars to leading
European banks for a period of three months commencing on the first day of the Interest Period
and in a Representative Amount, provided that on the first day of the first Interest Period
USD-LIBOR-BBA shall be an interpolated rate calculated with reference to the period from
(and including) the Closing Date to (but excluding) the first Payment Date.
With respect to any Payment Date, interest on a Class of Notes will be calculated as
the product of (a) the Invested Amount of such Class as of the first day of that
Interest Period after giving effect to any payments of principal to be made thereon,
(b) the Interest Rate for such Class for the related Interest Period; and (c) a fraction,
the numerator of which is the actual number of days in that Interest Period and the
denominator of which is 360 days (such product with respect to a Payment Date,
"Interest"); provided, however, that once the Stated Amount of such Class has been
reduced to zero, the related Class will no longer accrue interest because the related
Class will have been redeemed pursuant to the terms of the Transaction Documents.
The "Stated Amount" of a Note is the Invested Amount of the Note less the
Carryover Charge Offs (as defined herein) applied against it.
If Total Available Funds (as defined herein) available after payment of any Accrued
Interest Adjustment (as defined herein), interest or fees payable under the Liquidity
Facility (as defined herein), Trust Expenses (as defined herein) and certain amounts
payable to any Swap Provider (as defined herein) are sufficient to pay Interest on
each Class of Offered Notes, Interest will be payable in arrears on each Payment
Date to each Class of Offered Notes in respect of the Interest Period ending on that
Payment Date. If Total Available Funds are available on a Payment Date for the
payment of Interest on the Offered Notes, failure to pay such Interest within 10
Business Days of the date such payment is due will be an event of default under the
Security Trust Deed.
If Total Available Funds available after payment of Trust Expenses and certain
amounts payable under any Fixed Rate and Variable Rate Basis Swaps are
insufficient to pay full Interest on all Classes of Notes for an Interest Period, Total
Available Funds available for the payment of Interest on the Notes on the Payment
Date will be paid in the following order of priority either through a direct payment
in Australian dollars with respect to the RFSs, the RFS Class A Notes or any
payment in respect of the Redraw Facility (as defined herein) or through a payment
to the Currency Swap Provider (as defined herein) with respect to the Offered Notes:
(i) pro rata, to the Class A Notes, RFS Class A Notes (if any), RFSs (if any) and
any fee or outstanding amount payable under the Redraw Facility, based on their
related interest or income entitlements, as the case may be; and
(ii) any remaining Total Available Funds, to the Class B Notes.
See "DESCRIPTION OF THE OFFERED NOTES" herein.
Principal......................... On each Payment Date, Gross Principal Collections (as described herein) will be
used first to reimburse Westpac for any Redraws (as defined herein) funded by
Westpac during the related Collection Period. See "WESTPAC RESIDENTIAL
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LOAN PROGRAM - Housing Loan Features - Redraw." Any amount of Gross Principal Collections
remaining after such reimbursement will be distributed in the following order of priority:
(i) to Westpac as reimbursement for any outstanding Redraws, to the extent not otherwise
reimbursed;
(ii) to Westpac, as the provider of the Redraw Facility Agreement (the "Redraw
Facility Provider"), to repay any Principal Outstanding under the Redraw Facility;
(iii) to fund any Principal Draw for such Payment Date; and
(iv) to any holder of an RFS, in chronological order of issuance, until each such RFS
is repaid in full.
Any amount of Gross Principal Collections remaining after the distributions
described in clauses (i) through (iv) above will be referred to herein as "Net
Principal Collections." On any Payment Date, Net Principal Collections will be
available to pay any RFS Class A Noteholder and the Currency Swap Provider to
enable the Issuer Trustee to make payments to the Class A Noteholders and Class
B Noteholders in the amounts and priorities set forth herein under "DESCRIPTION
OF THE OFFERED NOTES--Payments of Principal on the Notes."
Priority of Distribution
with respect to the Offered Notes,
RFSs and RFS Class A Notes.......... The Class A Notes rank pari passu and without any preference among themselves
and the Class B Notes rank pari passu and without any preference among
themselves. The right to payment of principal of and interest on the Class B Notes
is subordinated and may be limited as more particularly described herein. In
addition, under certain limited circumstances, the Trust may issue RFSs, which in
certain circumstances will convert to RFS Class A Notes. Upon conversion, the
RFS Class A Notes will rank pari passu in respect of priority of payment of
principal and interest with the Class A Notes. The RFSs and any repayments under
the Redraw Facility will be senior to the Class A Notes and the RFS Class A Notes
in priority of distributions of principal. Interest on the RFSs, the RFS Class A Notes
and the Class A Notes and fees with respect to the Redraw Facility will rank pari
passu in respect of priority. Payments of principal and interest in respect of the
Class B Notes are subordinated to such payments in respect of Class A Notes, RFSs
and RFS Class A Notes. See "RISK FACTORS-Priority of RFSs and RFS Class A
Notes Owned by Australian Resident Investors" and "DESCRIPTION OF THE
OFFERED NOTES-Description of the Redraw Facility, the Redraw Funding
Securities and the RFS Class A Notes," "-Interest Payable on the RFSs and the RFS
Class A Notes" and "-Subordination of the Class B Notes."
Credit Enhancement.................. Credit enhancement with respect to the Class A Notes will be provided by (i) the
Mortgage Insurance Policies, (ii) subordination of the Excess Available Income (as
defined herein) and (iii) the subordination of payments of the Class B Notes to
payments to the Class A Notes. Credit enhancement with respect to the Class B
Notes will be provided by (i) the Mortgage Insurance Policies and (ii) subordination
of the Excess Available Income.
A. Mortgage Insurance
Policies..................... On or before the Closing Date, a mortgage pool insurance policy (the "Mortgage
Pool Insurance Policy") will be provided by Housing Loans Insurance Corporation
Limited (ACN 071 466 344) of 31 Market Street, Sydney NSW 2000, Australia
("HLIC") to the Issuer Trustee to cover losses in respect of each Housing Loan that
is not subject to a primary mortgage insurance policy (a "PMI Policy" and, together
with the Mortgage Pool Insurance Policy, the "Mortgage Insurance Policies"). The
Mortgage Pool Insurance Policy generally applies to loans with a Loan to Value
Ratio ("LVR") of 80% or less at the Cut-Off Date. The Mortgage Pool Insurance
Policy will cover losses up to a maximum aggregate amount of A$___________.
HLIC is a private insurance company which is a subsidiary of GE Capital Australia.
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For a description of HLIC, see "THE MORTGAGE INSURANCE POLICIES - The HLIC
Mortgage Pool Insurance Policy."
Each Housing Loan with an LVR of greater than 80% at the time of origination (or
a lower LVR where required by Westpac's standard credit policy) will have been
insured under a PMI Policy issued by one of the following: Royal and SunAlliance
Lenders Mortgage Insurance Limited (ACN 001 825 725) of Level 9, 465 Victoria
Avenue, Chatswood NSW ("SunAlliance"), MGICA Limited (ACN 000 511 017) of
Level 23 AMP Centre, 50 Bridge Street, Sydney NSW ("MGICA"), Westpac
Lenders Mortgage Insurance Limited (ACN 074 042 934) of Level 11, 50 Pitt Street,
Sydney NSW ("WLMI") or HLIC. Approximately ___% of the Housing Loans are
subject to a PMI Policy. Each Approved Seller will equitably assign its interest in
each PMI Policy to the Issuer Trustee on the Closing Date.
These Mortgage Insurance Policies are intended to enhance the likelihood of regular
receipt by the holders of the Notes of the full amount of interest and principal
payments due to such holders and to provide holders of the Notes limited protection
against losses on the Housing Loans. See "THE MORTGAGE INSURANCE
POLICIES" herein.
HLIC, SunAlliance, MGICA and WLMI are referred to herein as "Mortgage
Insurers."
B. Subordination of Excess
Available Income............. On each Payment Date, Excess Available Income will be applied either in reduction
of any current or outstanding Principal Charge Offs (as defined herein) or as
repayment of any unrepaid Principal Draws on such Payment Date. The application
of such amounts, if any, will reduce the likelihood of the Offered Noteholders
receiving less than their Initial Invested Amount on or prior to the Maturity Date.
C. Subordination of Class B
Notes........................ The rights of the holders of the Class B Notes to receive payments of Interest on
each Payment Date will be subordinated to such rights of the holders of the RFSs (if
any), Class A Notes, RFS Class A Notes (if any) and the Redraw Facility Provider.
In addition, the rights of the holders of the Class B Notes to receive distributions of
principal on each Payment Date generally will be subordinated to such rights of the
holders of the RFSs (if any) and the Redraw Facility Provider with respect to repayments
pursuant to the Redraw Facility Agreement and to the holders of the Class A Notes
and RFS Class A Notes (if any). For a description of the priority among the RFSs,
Class A Notes, RFS Class A Notes and the Redraw Facility Provider, see "Priority
of Distribution with respect to the Offered Notes, RFSs and RFS Class A Notes"
herein. Further, any Principal Charge Offs will be applied first in reduction of the
principal balance of the Class B Notes. The subordination described above is
intended to enhance the likelihood of regular receipt by the holders of the Class A
Notes of the full amount of interest and principal payments due to such Noteholders
and to afford such holders protection against losses on the Housing Loans. See
"DESCRIPTION OF THE OFFERED NOTES--Collections and Payment" herein.
Security for the Offered Notes
General........................... The Offered Notes are debt obligations of the Issuer Trustee in its capacity as trustee
of the Trust only (and therefore the Issuer Trustee's liability to make payments of
interest and principal on the Offered Notes is limited to the collections received by the
Issuer Trustee from the Trust Assets) and except in certain limited circumstances are not
the personal obligation of the Issuer Trustee. See "THE ISSUER TRUSTEE - Limitation of
Issuer Trustee's Liability." They are issued with the benefit of, and subject to the
Transaction Documents. The Issuer Trustee's liability in respect of the Offered
Notes is limited to the assets of the Trust available in accordance with the terms of
the Transaction Documents to meet its obligations in relation to the Offered Notes
and, except in certain limited circumstances, the Issuer Trustee will not be personally
liable.
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A. The Housing Loans............. The Housing Loans will consist of _______ Housing Loans with an aggregate
Balance Outstanding on the Cut-Off Date of A$_______________. The Housing
Loans are also referred to herein as the "Mortgage Pool." The Housing Loans will
be secured by Mortgaged Properties (as defined herein) located in any of the six
states or two territories of Australia. A "Mortgaged Property" means the land,
including all improvements thereon, that is the subject of a Mortgage.
Each Housing Loan is secured by a registered first ranking mortgage over the related
Mortgaged Property. "Registered" means the mortgage has been filed with the lands
office in the relevant Australian State, granting certain rights with respect to the
applicable Mortgaged Property. See "APPENDIX I -- GLOSSARY OF
AUSTRALIAN LEGAL TERMS."
Each Housing Loan requires that borrowers on such Housing Loan (each, a
"Borrower") make a minimum payment (the "Scheduled Payment") on or before the
due date for such Scheduled Payment under the relevant Housing Loan documents.
Scheduled Payments not received with respect to certain Housing Loans on the
related due date may cause either a default rate of interest to be charged or a
compounding interest effect.
All weighted averages specified herein are weighted based on the Cut-Off Date
Balances Outstanding of the Housing Loans. With respect to each Housing Loan,
the "Cut-Off Date Balance Outstanding" is the unpaid principal balance of such
Housing Loan as of the close of business on the Cut-Off Date. All Housing Loan
statistics set forth herein are based on principal balances, interest rates, terms to
maturity, mortgage loan counts and similar statistics as of the Cut-Off Date, unless
indicated to the contrary herein. References to percentages of the Housing Loans
mean percentages of the Cut-Off Date Balance Outstanding.
The Housing Loans bear interest at variable and fixed rates (the "Mortgage Rates")
which range from approximately _______ to ________. The weighted average
Mortgage Rate of the Housing Loans on the Cut-Off Date is approximately ____%
per annum. The Cut-Off Date Balances Outstanding of the Housing Loans ranged
from approximately A$_____________ to A$______________. The average Cut-Off
Date Balance Outstanding of the Housing Loans is approximately
A$________________. The weighted average original term to stated maturity of the
Housing Loans was approximately ____ months. The weighted average remaining
term to stated maturity of the Housing Loans was approximately ____ months. As
of the Cut-Off Date, the weighted average number of months that had elapsed since
origination of the Housing Loans is approximately ___ months.
Housing Loans representing approximately __% of the Cut-Off Date Pool Balance
are secured by Mortgaged Properties which are investment properties (based solely
upon statements made by the related Mortgagors at the time of origination of the
related Housing Loans).
The lowest and highest LVR as of the Cut-Off Date of the Housing Loans were
approximately ___% and ___%. LVR is calculated as a fraction, expressed as a
percentage, the numerator of which is the outstanding amount of the Housing Loan,
plus any other amount serviced on the Servicing System of the Servicer (the
"Mortgage Servicing System") and secured by the relevant Mortgage Property at the
Cut-Off Date and the denominator of which is the aggregate value of the Mortgaged
Property subject to the related Mortgage for that Housing Loan.
B. Mortgage Insurance
Policies..................... See "Mortgage Insurance Policies" in this summary and "THE MORTGAGE
INSURANCE POLICIES" herein.
C. Collections Account........... Westpac or the Servicer will be required to remit Collections received with respect
to the Housing Loans during a Collection Period to one or more accounts in the
name of the Issuer Trustee (the "Collections Account"). Under certain conditions
described herein, such remittances may be made on a quarterly basis, two Business
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Days prior to the related Payment Date. If such conditions are not met, the Servicer
shall deposit all Collections in its possession or control into the Collections
Account no later than five Business Days following receipt. See "DESCRIPTION OF THE
OFFERED NOTES--Collections and Payment."
D. Liquidity Support............. 1. Principal Draws: If the Trust Manager determines on any Collection
Determination Date that the Available Income (as defined herein) of the Trust for a
Collection Period is insufficient to meet Total Payments of the Trust on the following
Payment Date (a "Payment Shortfall"), then Principal Collections collected during
that Collection Period can be used to fund the Payment Shortfall (a "Principal
Draw"). See "DESCRIPTION OF THE OFFERED NOTES--Principal Draws"
below.
Amounts paid from any Principal Collections in this way will be reimbursed through
any Excess Available Income to the extent available in subsequent periods after all
Principal Charge Offs and Carryover Charge Offs (as defined herein) have been met
out of that Excess Available Income for the relevant period. If there is insufficient
Excess Available Income to reimburse Principal Draws, the principal repayable on
the Notes at maturity may be reduced in respect of such shortfall.
2. Liquidity Facility: Under the Liquidity Facility, Westpac in its capacity as the
provider of the Liquidity Facility (the "Liquidity Facility Provider") agrees to make
advances to the Issuer Trustee for the purpose of funding certain income shortfalls
in the Trust, up to an aggregate amount being the lesser of: (1) A$____________,
(2) the Unpaid Balance of all Performing Loans from time to time, and (3) any lesser
amount as is agreed in writing between the Liquidity Facility Provider, the Issuer
Trustee, the Trust Manager and the Rating Agencies, as such amount may be
reduced or cancelled under the Liquidity Facility (the "Liquidity Limit"). The
"Unpaid Balance" of a Housing Loan, means the sum of (a) the unpaid principal
amount of that Housing Loan; and (b) the unpaid amount of all finance charges,
interest payments and other amounts accrued on or payable under or in connection
with that Housing Loan or the related Mortgage or other rights relating to the
Housing Loan.
A "Performing Loan" at any date is a Housing Loan which is not Delinquent or has
been Delinquent for less than 90 consecutive days, or if it has been Delinquent for
90 or more consecutive days, was insured under a Mortgage Insurance Policy at the
date of the Liquidity Facility. A Housing Loan is "Delinquent" if the related
Borrower fails to pay any amount due on the related due date. Delayed payments
arising from agreed payment holidays based on early repayments, or from maternity
or paternity leave repayment reductions will not, by themselves, lead to a Housing
Loan being considered Delinquent. See "WESTPAC RESIDENTIAL LOAN
PROGRAM--Housing Loan Features" and "THE LIQUIDITY FACILITY" herein.
E. Transaction Documents......... Master Trust Deed and Series Notice: The Master Trust Deed, which is governed
by the laws of New South Wales, Australia, provides for the creation of an unlimited
number of WST trusts. Each WST trust is a separate and distinct trust fund. The
Series 1998-1G WST Trust (the "Trust") will be created pursuant to the Master Trust
Deed, the Notice of Creation of Trust and a series notice (the "Series Notice") which
sets forth specific provisions regarding the Trust and details the provisions of the
Notes. See "FORMATION OF THE TRUST" and "DESCRIPTION OF THE
OFFERED NOTES."
Security Trust Deed: Pursuant to the Security Trust Deed, the Issuer Trustee will
grant a first ranking floating charge over the Trust Assets to the Security Trustee,
in order to secure the Issuer Trustee's obligations to the Noteholders, the Note
Trustee, the Trust Manager, the Swap Providers (as defined herein), the Security
Trustee, and each provider of a Support Facility (other than the provider of a
Mortgage Insurance Policy) to an Approved Seller and in respect of any Accrued
Interest Adjustment, to Westpac in respect of Redraws and to the holders of the
RFSs (if any) and the holders of the RFS Class A Notes (if any) (such creditors,
together the "Mortgagees"). A "Support Facility" is any of the Liquidity Facility,
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the Redraw Facility, the Swap Agreements (as defined herein) or any of the
Mortgage Insurance Policies. See "SECURITY FOR THE NOTES."
The Issuer Trustee will grant a "floating charge" over the Trust Assets to the
Security Trustee in order to secure the Issuer Trustee's obligations in respect of the
Notes and the Transaction Documents. A "charge" is a proprietary interest created
over property. A floating charge is a grant of a security interest which "floats" over
a group of assets which assets may change from time to time. A floating charge
allows the person or entity granting the charge (the "chargor") to deal with the assets
and to give third parties title to those assets free from any encumbrance. For a
description of a floating charge and the crystallization of floating charges, see
"SECURITY FOR THE NOTES--Nature of Security", "--Charge" and "APPENDIX I - GLOSSARY OF
AUSTRALIAN LEGAL TERMS."
Servicing Agreement: Under the Servicing Agreement, TMC is appointed as the
initial Servicer of the Housing Loans and custodian of the documents relating to the
Housing Loans and Mortgages. See "DESCRIPTION OF THE SERVICING
AGREEMENT."
Note Trust Deed: The Note Trust Deed provides for the issuance and registration
of the Offered Notes. See "DESCRIPTION OF THE OFFERED NOTES."
The Master Trust Deed, the Series Notice, the Servicing Agreement, the Security
Trust Deed, the Note Trust Deed, the Swap Agreements and the Agency Agreement
(as defined below) are collectively referred to herein as the "Transaction
Documents."
F. Swap Agreements............... The rights of the Issuer Trustee under the Swap Agreements will be subject to the
security created by the Security Trust Deed. The "Swap Agreements" include the
1991 ISDA Master Agreement (the "ISDA Master Agreement") and the amended
schedules and Swap confirmations covering the Variable Rate Basis Swap, two Fixed
Rate Basis Swaps and the Currency Swap. See "DESCRIPTION OF THE SWAP
AGREEMENTS."
G. Agency Agreement.............. Pursuant to the Agency Agreement, the Issuer Trustee will appoint paying agents
with respect to the Offered Notes.
Clearance and Settlement............ Noteholders may elect to hold their Notes through any of DTC (in the United States)
or Cedel or Euroclear (in Europe). Transfers within DTC, Cedel or Euroclear, as
the case may be, will be in accordance with the usual rules and operating procedures
of the relevant system. Crossmarket transfers between persons holding directly or
indirectly through DTC, on the one hand, and counterparties holding directly or
indirectly through Cedel or Euroclear, on the other, will be effected in DTC through
the Relevant Depositaries of Cedel or Euroclear. See "DESCRIPTION OF THE
OFFERED NOTES--Book-Entry Registration."
Clean-up Offer...................... If at any time the aggregate Housing Loan Principal, expressed as a percentage of
the aggregate Housing Loan Principal as of the Cut-Off Date, is less than 10%, then,
if instructed by the Trust Manager, the Seller Trustee, as trustee of certain other
trusts under the Master Trust Deed, may repurchase, on the following Payment Date,
the equitable title to the Housing Loans held by the Trust for an amount equal to the
Unpaid Balance (in the case of performing Housing Loans) or the Fair Market Value
(in the case of non-performing Housing Loans) (the "Clean-up Offer"). The
proceeds of sale will be applied by the Issuer Trustee to repay moneys owing to
Noteholders at that time in accordance with the priorities for applying payments of
Interest and principal between the Classes of Notes. With respect to any Housing
Loan and date, "Housing Loan Principal" shall be the unpaid principal amount of
that Housing Loan on such date. "Unpaid Balance" of a Housing Loan, means the
sum of (a) the unpaid principal amount of that Housing Loan; and (b) the unpaid
amount of all finance charges, interest payments and other amounts accrued on or
payable under or in connection with that Housing Loan or the related Mortgage or
other rights relating to the Housing Loan. The "Fair Market Value" with respect to
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any non-performing Housing Loans is the fair market value of such Housing Loan
agreed on by the Trust Manager (based on appropriate expert advice) and the
Approved Seller.
Legal Investment
Considerations.................... The Offered Notes will not constitute "mortgage related securities" for purposes of
the Secondary Mortgage Market Enhancement Act of 1984 ("SMMEA"). No
representation is made as to whether the Offered Notes constitute legal investments
under any applicable statute, law, rule, regulation or order for any entity whose
investment activities are subject to investment laws and regulations or to review by
certain regulatory authorities. Prospective purchasers are urged to consult with their
counsel concerning the status of the Offered Notes as legal investments for such
purchasers. See "LEGAL INVESTMENT CONSIDERATIONS" herein.
Tax Status.......................... In the opinion of Mayer, Brown & Platt, special tax counsel for the Trust, the
Offered Notes will be characterized as debt for U.S. federal income tax purposes and
the Trust will not be characterized as an association (or a publicly traded partnership)
taxable as a corporation for federal income tax purposes. Each Offered Noteholder,
by acceptance of an Offered Note, will agree to treat the Offered Notes as
indebtedness. See "CERTAIN UNITED STATES FEDERAL INCOME TAX
CONSEQUENCES" herein.
ERISA Considerations................ Subject to the considerations discussed under "ERISA CONSIDERATIONS," the
Offered Notes are eligible for purchase by employee benefit plans. See "ERISA
CONSIDERATIONS" herein.
Ratings of the
Offered Notes..................... It is a condition to the issuance of the Class A Notes that they be rated "AAA" by
Standard & Poor's Ratings Group, a division of The McGraw-Hill Companies
("Standard & Poor's"), "Aaa" by Moody's Investors Service, Inc. ("Moody's") and
"AAA" by Fitch IBCA, Inc. ("Fitch") and together with Standard & Poor's, the "Rating
Agencies"). It is a condition to the issuance of the Class B Notes that they be rated
"AA-" by Standard & Poor's and "AA-" by Fitch. The security ratings of the Offered Notes
should be evaluated independently from similar ratings on other types of securities. A
security rating is not a recommendation to buy, sell or hold securities and may be subject
to revision or withdrawal at any time by the Rating Agencies. See "RATINGS OF THE NOTES"
herein.
Governing Law....................... The Notes and the Transaction Documents (other than the Security Trust Deed) are
governed by, and shall be construed in accordance with, the laws of New South
Wales, Australia. The Security Trust Deed is governed by, and shall be construed
in accordance with, the laws of the Australian Capital Territory.
The Issuer Trustee has, under the Note Trust Deed, submitted to the non-exclusive
jurisdiction of the courts of New South Wales for all purposes in connection with the
Offered Notes.
Risk Factors........................ In considering an investment in the Offered Notes, investors should recognize that
there are risks associated with such an investment. See "Risk Factors" herein.
</TABLE>
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STRUCTURAL CHART
[Insert chart which shows parties and general structure]
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CASH FLOW SUMMARY
The following is a brief summary of the allocation of cashflows in relation
to the Trust. This Cash Flow Summary is qualified in its entirety by
reference to the detailed information appearing elsewhere in this Prospectus
- -- see "DESCRIPTION OF THE OFFERED NOTES" for a full description of cashflow
allocation. Terms defined below are defined in more detail elsewhere - the
definitions below are for convenience only.
Collections
Amounts collected by or on behalf of the Issuer Trustee in respect of the
Trust are calculated for each Collection Period and include, for the relevant
Collection Period:
1. scheduled payments (of interest, principal and fees) and prepayments
of principal under the Housing Loans;
2. proceeds from enforcement of Housing Loans and related Mortgages (see
"CERTAIN LEGAL ASPECTS OF THE HOUSING LOANS--Enforcement of Housing
Loans");
3. amounts payable under Mortgage Insurance Policies with respect to
losses on Housing Loans and related Mortgages;
4. amounts received from an Approved Seller or the Servicer for breaches
of representations or undertakings; and
5. interest on amounts in the Collections Account.
These amounts are known as "Collections", which will be attributed
between income and principal. The Collections attributed to income, less
certain amounts, are "Available Income". The Collections attributed to
principal, less certain amounts, are "Gross Principal Collections."
The cashflow allocation methodology treats Available Income and Gross
Principal Collections in two separate "streams". Generally, the two streams
are treated separately. However, in some circumstances, principal will be
treated as income and applied in the income stream, and in other
circumstances income will be treated as principal and applied in the
principal stream.
Gross Principal Collections
Gross Principal Collections are applied first to repay Westpac for any
Redraws funded by Westpac in the relevant Collection Period. The balance of
Gross Principal Collections remaining after such repayment of Westpac is
known as "Principal Collections". Those Principal Collections are applied:
1. First, to repay Westpac for any Redraws funded by Westpac to the
extent not previously reimbursed (i.e., not restricted to Redraws
funded during the relevant Collection Period);
2. Second, to repay amounts outstanding under the Redraw Facility
Agreement;
3. Third, to be treated as income to the extent necessary if there is
insufficient income for the Collection Period to make required
income payments (this application of principal as income is a
"Principal Draw");
4. Fourth, to pay principal outstanding under the RFSs until repaid
in full;
5. Fifth, to pay principal outstanding under the Class A Notes and
the RFS Class A Notes. Those payments may be applied either
sequentially or serially with respect to Class B Notes, depending
on whether certain threshold tests have been satisfied.
Initially all Principal Collections will be applied
"sequentially," meaning that such Principal Collections will be
applied to the RFSs (if any), Class A Notes and RFS Class A Notes
(if any), pro rata, until such classes are paid in full. The Class
B Notes are then entitled to Principal Collections.
If certain distribution tests have been met, Principal Collections
will be applied "serially," entitling the Class A Notes and the
Class B Notes to share in Principal Collections. There are two
serial distribution tests which focus on whether the Subordination
provided by the Class B Notes to the Class A Notes effectively
doubles from the initial level of subordination at the start of
the transaction, whether the distribution of Principal Collections
is occurring prior to a certain date and whether certain credit
tests focusing on delinquencies and losses on the Housing Loans
have been met. For a complete description of the serial
distribution tests, see the definitions of "Serial Method 1
Distribution Test" and "Series Method 2 Distribution Test" set
forth in "DESCRIPTION OF THE OFFERED NOTES--Payments of Principal
on the Notes."
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<PAGE>
6. Sixth, to pay principal outstanding under the Class B Notes under
the sequential or serial methods referred to above.
Principal Losses
It may be that principal losses are incurred in respect of a Housing Loan
during a Collection Period.
If (i) a Borrower defaults; (ii) the relevant Housing Loan and related
Mortgage are enforced; and (iii) the amount recovered (after payment of
enforcement expenses) will not satisfy the Unpaid Balance of the Housing
Loan, there will be a "Liquidation Loss". A Liquidation Loss will usually
comprise both income and principal. To the extent that it relates to
principal, a Liquidation Loss is known as a "Principal Loss". If, following a
Principal Loss, the relevant Mortgage Insurance Policy does not cover that
loss and the Issuer Trustee does not have a right to recover any amounts from
an Approved Seller or the Servicer due to a breach of representation or
undertaking, there will be a loss on the underlying principal in the pool.
Such a loss is a "Mortgage Shortfall". The total amount of all Mortgage
Shortfalls in a Collection Period is known as the "Principal Charge Off" for
that Collection Period.
Any Principal Charge Off for a Collection Period may be met by any excess
income which is available from the income stream for that purpose (as
summarized below). If the Principal Charge Off cannot be satisfied in full
from that excess income, the principal loss represented by the balance of the
Principal Charge Off which is not so satisfied must be "carried over" into
succeeding periods. This is a "Carryover Charge Off".
Each Carryover Charge Off must be represented by a reduction in the
principal amount of the Notes. Thus, the principal amount of the Notes (the
"Invested Amount") is reduced:
(a) First, in respect of Class B Notes; and
(b) Second, if the Class B Notes are reduced to zero, pro rata, in respect
of the Class A Notes, the RFSs, the RFS Class A Notes and the Redraw
Facility Agreement.
The "Stated Amount" of a Note is thus the Invested Amount of the Note
less the Carryover Charge Offs applied against it as set out above.
Excess income may be used to recover principal which has been reduced
following a Carryover Charge Off. The application of income for this purpose
is summarized below.
Income Collections
Available Income is applied in the following order of priority:
(a) first, in respect of the first Collection Period, to the Approved
Seller for income received by the Issuer Trustee on the pool relating
to the period prior to the Closing Date. This is the "Accrued
Interest Adjustment";
(b) second, to Trust Expenses which have not previously been paid;
(c) third, to repay amounts outstanding under the Support Facilities
(other than the Currency Swap and fees under the Liquidity Facility
Agreement);
(d) fourth, to repay Liquidity Draws under the Liquidity Facility
Agreement;
(e) fifth, pari passu and ratably, to interest on the Class A Notes, the
RFSs and the RFS Class A Notes and to fees under the Redraw Facility
Agreement; and
(f) sixth, to interest on the Class B Notes.
These payments are "Total Payments".
Any Available Income in excess of Total Payments for a Collection Period is
"Excess Available Income", and is applied in the following order of priority:
(i) First, against Principal Charge Offs for the Collection Period;
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<PAGE>
(ii) Second, pari passu and ratably, against Carryover Charge Offs for
Class A Notes, RFSs, RFS Class A Notes and fees or amounts owing
under the Redraw Facility Agreement;
(iii) Third, against Carryover Charge Offs for Class B Notes; and
(iv) Fourth, to Principal Draws which have not previously been repaid.
Any amount remaining after application of these payments is an "Excess
Collections Distribution", and will be paid to Westpac as beneficiary of the
Trust.
Liquidity Support
If there are insufficient interest Collections to meet Total Payments for a
Collection Period, principal may be used to provide liquidity by way of a
"Principal Draw" (see above).
If Principal Draws are not available to meet Total Payments, a drawing must
be made under the Liquidity Facility Agreement up to its facility limit (being
A$__________) to provide liquidity to allow Total Payments to be made.
Currency Swap
All payments required to be made to Noteholders will be made in Australian
dollars to the Currency Swap Provider, who will swap the amounts into US
dollars.
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CASH FLOW CHART
[Insert chart which summarizes cash flows]
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RISK FACTORS
In addition to the matters described elsewhere in this Prospectus,
prospective investors should carefully consider the following factors before
deciding to invest in the Offered Notes.
Limited Liability under the Offered Notes
The Offered Notes are debt obligations of the Issuer Trustee in its capacity
as trustee of the Trust. They are issued with the benefit of, and subject to the
Master Trust Deed, the Series Notice, the Security Trust Deed and the Note Trust
Deed. The Issuer Trustee's liability in respect of the Offered Notes is limited
to the assets of the Trust available in accordance with the terms of the Master
Trust Deed, the Series Notice, the Note Trust Deed and the Security Trust Deed
to meet its obligations in relation to the Offered Notes and, except in certain
limited circumstances, the Issuer Trustee will not be personally liable in
respect of the Offered Notes. See "THE ISSUER TRUSTEE--Limitation of Issuer
Trustee's Liability."
In addition, the Offered Notes will not represent an interest in or
obligation of the Servicer, the Trust Manager, the Approved Sellers, the Note
Trustee, the Security Trustee or any of their respective affiliates (other than
the Issuer Trustee to the extent referred to above). The only obligations of the
foregoing entities with respect to the Offered Notes or any Housing Loan will be
the obligations of the Approved Sellers pursuant to certain limited
representations and warranties made with respect to the Housing Loans, of the
Servicer with respect to its servicing obligations under the Servicing Agreement
and the Trust Manager in respect of its undertakings in the Transaction
Documents. The Offered Notes will not be guaranteed or insured by any
governmental agency or instrumentality, or by the Issuer Trustee, the Servicer,
the Trust Manager, the Approved Sellers, the Note Trustee, the Security Trustee
or any of their respective affiliates. The Housing Loans are subject to certain
mortgage insurance policies, but only limited losses are covered. Housing Loans
insured by HLIC prior to December 12, 1997 will have the benefit of a
Commonwealth Government Guarantee. See "THE MORTGAGE INSURANCE POLICIES."
Proceeds of the assets included in the Trust (including the Housing Loans) will
be the sole source of payments on the Offered Notes, and there will be no
recourse to the Servicer, the Trust Manager, the Approved Sellers, the Note
Trustee, the Security Trustee or any other entity in the event that such
proceeds are insufficient or otherwise unavailable to make all payments provided
for under the Offered Notes.
Risk of Equitable Assignment of Housing Loans rather than Legal Assignment
The Housing Loans and the related Mortgages will initially be equitably
assigned, not legally assigned, by the Approved Sellers to the Issuer Trustee.
If a Title Perfection Event (as defined below) occurs, the Issuer Trustee, with
the assistance of the Servicer, must take such steps as are necessary to perfect
the Issuer Trustee's legal title in the Housing Loans. A "Title Perfection
Event" in relation to the Housing Loans occurs if: (i) Westpac ceases to have a
long term credit rating of at least "BBB" from Standard & Poor's, "Baa2" from
Moody's; and _________________ from Fitch (ii) an Insolvency Event occurs with
respect to Westpac; and (iii) Westpac fails to transfer Collections within five
Business Days after receiving notice from the Issuer Trustee or the Trust
Manager to do so. Until such time, pursuant to the Transaction Documents, the
Issuer Trustee is not permitted to take any steps to perfect legal title and it
cannot, and will not, notify the Borrowers of the equitable assignment of the
Housing Loans to the Issuer Trustee.
The delay in the notification to a Borrower of the assignment of the Housing
Loans to the Issuer Trustee may have the following consequences:
(1) until a Borrower has notice of the assignment, that Borrower is not
bound to make payments under the relevant Housing Loan to anyone other
than Westpac and can obtain a valid discharge from Westpac. However,
the Servicer, a delegate of Westpac, will act as the initial Servicer
of the Housing Loans and is obligated to deal with all moneys received
from the Borrowers in accordance with the Servicing Agreement and the
Master Trust Deed;
(2) for so long as the Issuer Trustee holds only an equitable interest in
the Housing Loans, the Issuer Trustee's interest in them may become
subject to the interests of third parties created after the creation
of the Issuer Trustee's equitable interest but prior to it acquiring a
legal interest in the Housing Loans. However, the Servicer undertakes
not to consent to the creation or existence of any higher or equal
ranking security interest over the Mortgaged Property (the "Servicer's
Security Undertaking"); and
(3) for so long as the Issuer Trustee holds only an equitable interest in
the Housing Loans, it must join Westpac as a party to any legal
proceedings against any Borrower in relation to the enforcement of any
Housing Loan. In this regard, Westpac undertakes in the Servicing
Agreement to co-operate with the Servicer in connection with the
enforcement of any Housing Loans. Westpac has granted an irrevocable
power of attorney to the Issuer Trustee to perfect its interest in the
Housing Loans.
So long as the Issuer Trustee holds equitable title, rather than legal
title, to a Housing Loan, the Issuer Trustee's interest in such Housing Loan may
be impaired by the creation or existence of any higher or equal ranking security
interest over
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the related Mortgaged Property if the Servicer fails to adhere to the Servicer's
Security Undertaking. Such failure may result in losses to Noteholders.
Risk of Losses and Delays from Enforcement of the Housing Loans
Substantial delays could be encountered in connection with the
liquidation of such Housing Loan and result in shortfalls in distributions to
Noteholders to the extent not covered by a Mortgage Insurance Policy or if
the relevant Mortgage Insurance Policy provider fails to perform its
obligations. Further, liquidation expenses such as legal fees, real estate
taxes, and maintenance and preservation expenses (to the extent not covered
by a Mortgage Insurance Policy) will reduce the net amounts recoverable by
the Issuer Trustee from an enforced Housing Loan and mortgage and will reduce
Excess Available Income. In the event any of the Mortgaged Properties fail to
provide adequate security for the related Housing Loans, Noteholders could
experience a loss to the extent not covered by a Mortgage Insurance Policy or
if the relevant Mortgage Insurance Policy provider fails to perform its
obligations and the subordination of Excess Available Income is not
sufficient.
Mortgage Insurance Policies are subject to Exclusions and Limitations
The liability of each of the Mortgage Insurers under the Mortgage Pool
Insurance Policy and the PMI Policies, as applicable, is subject to certain
exclusions. Each of them also has the right to cancel the coverage of, or
terminate its Mortgage Insurance Policy in respect of, a Housing Loan in certain
circumstances. The exclusions and rights vary among the different Mortgage
Insurance Policies and may affect the ability of the Issuer Trustee to make
timely and full payments of principal and Interest on the Notes.
See "THE MORTGAGE INSURANCE POLICIES" for further details.
Risks Associated with High LVR Housing Loans
Approximately ___% of the Housing Loans by aggregate principal balance of
the related Housing Loans as of the CutOff Date, had an LVR in excess of 80%.
Housing Loans with higher LVRs may present a greater risk of delinquency.
Although each Housing Loan in the Trust with an LVR in excess of 80% is covered
by a PMI Policy which insures the full amount of the Unpaid Balance of the
related Housing Loan, if a Borrower fails to make payments under such a Housing
Loan and the applicable Mortgage Insurer cancels the relevant PMI Policy,
reduces the amount of a claim or fails to honor its obligation under the PMI
Policy, proceeds from a liquidation of such Housing Loan may be insufficient to
cover the Unpaid Balance thereof. As a result, Noteholders may experience losses
including Principal Charge Offs (as defined herein) with respect to the Offered
Notes. For a description of such coverage, see "THE MORTGAGE INSURANCE
POLICIES."
Risks Associated with Westpac's Ability to Set Rates on Variable Rate Housing
Loans at its Discretion
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<PAGE>
The interest rates with respect to the Variable Rate Housing Loans are not
tied to an objective interest index but rather may be set at the sole discretion
of Westpac, as originator of the Housing Loans. See "WESTPAC RESIDENTIAL LOAN
PROGRAM - Housing Loan Features." In the event that Westpac increases interest
rates on the Variable Rate Housing Loans, Borrowers may be unable to meet their
Scheduled Payment and accordingly, may be delinquent or default on their
respective Housing Loans. In addition, if such increase raises interest rates
above market interest rates, Borrowers may refinance their loans with another
lender to obtain a lower interest rate, which in turn could cause investors in
the Offered Notes to experience higher rates of principal prepayment on the
Offered Notes than anticipated.
Ability to Change Housing Loan Features may Result in Changes to the Mortgage
Pool and Higher Rates of Principal Prepayment on the Offered Notes.
During the term of any Housing Loan, Westpac may from time to time or at the
request of the related Borrower change certain features of such Housing Loan. A
Borrower may request, among other changes, (a) additional funds with respect to
its Housing Loan (a "top up"), (b) a substitution or modification of the
security for the related Mortgage, (c) a switch to another type of Housing Loan
product, (d) a draw on principal repayments made in excess of scheduled
repayments (a "Redraw"), (e) an interest rate switch form variable to fixed or
vice versa, (f) reduced payments due to maternity or paternity leave, (g) a
repayment holiday if a prepayment of certain amounts has resulted in a buffer of
funds and (h) a switch from owner occupied or investment property status (which
may result in a change in interest rates). For a more detailed discussion of the
various features available to Borrowers, see "WESTPAC RESIDENTIAL LOAN PROGRAM--
Housing Loan Features."
In addition, Westpac may initiate certain changes to the Housing Loans. Most
frequently, Westpac will change the Mortgage Rate. The change to the Mortgage
Rate can be either product or individual loan specific. In addition, subject to
certain conditions, Westpac may begin to offer additional product features with
respect to the Housing Loans which are not set forth herein. See "WESTPAC
RESIDENTIAL LOAN PROGRAM-Housing Loan Features-Additional Features."
As a result of both Borrower and Westpac initiated changes, the
characteristics of the Housing Loans as of the Cut-Off Date may differ from the
characteristics of the Housing Loans at any other point in time. In addition,
certain types of modifications to a Housing Loan result in the removal of such
Housing Loan from the Mortgage Pool, which in turn could cause investors in the
Offered Notes to experience higher rates of principal prepayment on the Offered
Notes than anticipated. Similarly, if Westpac elects to change certain features
of the Housing Loans, Borrowers may elect to refinance their loan with another
lender to obtain more favorable features, which also could lead to higher
principal prepayment on the Offered Notes than expected. See "PREPAYMENT AND
YIELD CONSIDERATIONS."
Risks of Currency Exchange Controls
The Issuer Trustee will receive Australian dollar payments on the Housing
Loans in Australia and, under the Currency Swap, is required to pay certain
collections to the Currency Swap Provider as required under the Series
Notice. It is possible that in the future Australia may impose exchange
controls that affect the availability of Australian dollar payments for
making payments under the Currency Swap. The Noteholders will bear the risk
of the imposition of foreign exchange controls by the Australian government
that impact upon the Issuer Trustee's ability to exchange the Collections for
U.S. dollars. The Issuer Trustee has no control over such risk, which will
generally be affected by economic and political events in Australia. If the
Issuer Trustee does not pay some or all the amounts in Australian dollars
which it is required by the Transaction Documents to pay to the Currency Swap
Provider under the Currency Swap, the Currency Swap Provider is only required
to pay the U.S. dollar equivalent of the amounts it actually receives. In
such event, it is unlikely that the Trust would have sufficient U.S. dollars
to make the payments due on the Offered Notes.
Risks Related to a Termination of the Swap Agreements
By entering into the Swap Agreements, the Trust intends to transfer to the
Interest Rate Swap Provider and Currency Swap Provider, as applicable, the risks
set forth below that the Trust would otherwise have with respect to the Offered
Notes and the Housing Loans.
(a) Currency Exchange Risk. Interest and principal on the Offered
Notes is payable in U.S. dollars and the Trust's primary source for funding its
payments on the Offered Notes is its collections on the Housing Loans, which
will be in Australian dollars. If the Currency Swap Provider were to fail to
perform under the Currency Swap or were to be discharged from such performance
because of a default thereunder by the Trust, the Trust might have to exchange
its Australian dollars for U.S. dollars at an exchange rate that is less
favorable to the Trust than the original Swap Currency Exchange Rate (which is
____ Australian dollars for each U.S. dollar) and might therefore not have
sufficient U.S. dollars to make timely payments on the Offered Notes, even
though the delinquency and loss experience on the Housing Loans may be
acceptable.
(b) Risks specific to the Variable Rate Basis Swap. The basis risk
between the floating rate obligations of the Trust (including Interest payable
on the Notes) and the variable administered rates set by Westpac will be hedged
by means
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of the Variable Rate Basis Swap. Pursuant to the Variable Rate Basis Swap, each
month Westpac will pay the Trust the three month Bank Bill Rate plus a fixed
margin and receive from the Trust the weighted average variable housing rate.
The margin is fixed for the life of the swap and has been set having regard for
the ongoing expenses of the Trust.
If Westpac is downgraded below A1+/A2 and fails to provide eligible
collateral or arrange for a suitable alternative swap provider, it will be an
Additional Termination Event under the terms of the ISDA Master Agreement. If
the Variable Rate Basis Swap is terminated, the Trust Manager is required to
calculate each month the minimum interest rate required to be set on the
variable rate Housing Loans in order to cover amounts payable by the Issuer
Trustee (including anticipated Trust Expenses and taxes) and amounts due to the
Issuer Trustee, the Trust Manager, the Servicer, the Liquidity Facility
Provider, the Redraw Facility Provider and the Noteholders (the "Threshold
Rate"). In this situation, the Housing Loan rates may be set at above market
interest rates on the variable housing loans to meet Trust Expenses which could
result in the affected Borrowers refinancing their loan with another bank, which
in turn could cause Noteholders to experience higher rates of principal
repayment on the Offered Notes than anticipated.
(c) Risks Specific to the Fixed Rate Swaps. Two Fixed Rate Swaps will
be used to hedge the interest rate risk between the floating rate obligations of
the Trust (including Interest payable on the Notes) and the discretionary fixed
rate set by Westpac on those Housing Loans being charged a fixed rate of
interest (a "Fixed Rate") (not including those loans with a Concessional Fixed
Rate). A Housing Loan is being charged a "Concessional Fixed Rate" when it has a
fixed rate of interest for the first 12 months, which converts to the standard
variable rate after that period. Loans subject to a Concessional Fixed Rate are
included under the Variable Rate Basis Swap. An amortizing Fixed Rate Swap will
be entered into as at Closing Date to hedge that portion of the pool earning a
Fixed Rate of interest as at Cutoff Date. The Issuer Trustee will pay the
applicable daily weighted average fixed rate and receive the three month Bank
Bill Rate plus a fixed margin. The margin is fixed for the life of the swap and
has been set based on the actual margin on the underlying Fixed Rate Housing
Loans and the prevailing market rate existing on the Closing Date. A further
Fixed Rate Basis Swap will be entered into to hedge the interest rate risk
occurring when the Borrowers switch from a variable rate of interest to a fixed
rate of interest. Under that second Fixed Rate Basis Swap, the Issuer Trustee
will pay the applicable daily weighted average fixed rate and receive the three
month Bank Bill Rate plus a fixed margin. The margin is fixed for the life of
the swap.
If Westpac is downgraded below A1+/A2 and fails to provide eligible
collateral or arrange for a suitable alternative swap provider, it will be an
Additional Termination Event under the terms of the ISDA Master Agreement only
at the discretion of the Issuer Trustee at the direction of the Trust Manager.
If the swap remains in place, the Rating Agencies may consider downgrading the
Offered Notes and an investor may then be holding Offered Notes which have been
downgraded. If the swap is terminated, the investor is exposed to the risk of
the possible narrowing of the spread between the customer rate applicable on the
Housing Loans and the floating rate obligations of the Trust (including the
Interest on the Notes).
Delinquency and Default Risk
If Borrowers fail to make Scheduled Payments under Housing Loans when due
there is a possibility that the Issuer Trustee may have insufficient funds to
make full payments of Interest and principal due to the Noteholders.
The Issuer Trustee's obligation to pay principal in respect of the Offered
Notes in full is limited by reference to, among other things, receipts by the
Issuer Trustee of amounts due under or in respect of the outstanding Housing
Loans. Noteholders must rely for payment of principal and interest under the
Offered Notes on Borrowers making payments under the Housing Loans and on
amounts being available under the Mortgage Insurance Policies and any amounts
payable by an Approved Seller or the Servicer in respect of any breach of a
representation and warranty or undertaking respectively and, in addition, in the
case of Interest, on receipts of principal and required payments under the
Liquidity Facility. Furthermore, the Issuer Trustee is not required to make any
advances to cover shortfalls. See "DESCRIPTION OF THE OFFERED NOTES" and "THE
LIQUIDITY FACILITY."
A wide variety of factors of a legal, economic, political or other nature
could affect the performance of Borrowers in making payments of principal and
interest under the Housing Loans. In particular, if interest rates increase
significantly, Borrowers may experience distress and increased default rates
on the Housing Loans may result. Under the Consumer Credit Legislation (as
defined herein), among other remedies, a court may order a Housing Loan to be
varied on the grounds of hardship. See "CERTAIN LEGAL ASPECTS OF THE HOUSING
LOANS." Any such variance may reduce the principal or interest payable under
a particular Housing Loan.
If a Borrower defaults on payments under a Housing Loan and the Servicer
enforces the Housing Loan and takes possession of the relevant Mortgaged
Property, many factors may affect the price for which the Mortgaged Property is
sold and the length of time required to realize the proceeds of sale. Any delay,
and any loss incurred as a result of the realized proceeds of the sale of a
Mortgaged Property being less than the amount due under the Housing Loan, may
affect the ability of the Issuer Trustee to make payments, or the timing of
those payments, in respect of the Offered Notes,
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notwithstanding any amounts that may be claimed under a Mortgage Insurance
Policy or otherwise allocated from Principal Collections or drawn under the
Liquidity Facility.
Risk of Early Defaults
No more than ___% of the Housing Loans were originated within ___ months
prior to the Cut-Off Date. The weighted average remaining term to stated
maturity of such Housing Loans (by Cut-Off Date Balance Outstanding) is
approximately ___ months. Although little data is available and no empirical
verification has been made by the Registrant, the Underwriters or the Issuer
Trustee, defaults on mortgage loans, including mortgage loans similar to the
Housing Loans, are generally expected to occur with greater frequency in the
early years of the terms of mortgage loans.
Prepayment and Yield Considerations
The yield to maturity experienced by a Noteholder may be affected by the
rate of payment of principal of the Housing Loans. The Trust may receive early
payments of principal on the Housing Loans and, therefore, pay Principal
Collections to the Noteholders earlier than would otherwise have been the case.
For example, early payments of principal may occur in the following situations:
(1) receipt by the Issuer Trustee of enforcement proceeds due to a
Borrower having defaulted on its Housing Loan;
(2) receipt by the Issuer Trustee of insurance proceeds in relation to a
claim under a Mortgage Insurance Policy in respect of a Housing Loan;
(3) repurchase by Westpac of Housing Loans as a result of a breach by it
of certain representations (see "THE TRUST FUND--Representations and
Warranties" and "--Breach of Representations and Warranties");
(4) receipt by the Trust of any net amount attributable to principal from
another WST trust established under the Master Trust Deed with respect
to the substitution of a Housing Loan;
(5) repurchase of the Housing Loans as a result of a Clean-Up Offer (see
"DESCRIPTION OF THE OFFERED NOTES--Clean-Up Offer");
(6) receipt of proceeds of enforcement of the Security Trust Deed prior to
the Maturity Date of the Notes (see "DESCRIPTION OF THE OFFERED
NOTES--Redemption of the Notes"); or
(7) receipt of proceeds of the sale of Housing Loans if the Trust is
terminated while Notes are outstanding (for example, if required by
law) and the Housing Loans are then either (a) repurchased by Westpac
under its right of first refusal or (b) sold to a third party.
Additionally, in certain limited circumstances (for example, if the
principal amount of a Housing Loan is increased other than as a result of a
Redraw (see "DESCRIPTION OF THE OFFERED NOTES--Description of the Redraw
Facility, the Redraw Funding Securities and the Class A RFS Notes"), the Issuer
Trustee may transfer Housing Loans which comprise assets of the Trust to another
WST trust established under the Master Trust Deed. The consideration for that
transfer, to the extent it constitutes principal, will form part of Gross
Principal Collections (as defined herein) during the related Collection Period
and will be distributed as if it were a prepayment of principal by the relevant
Borrower.
Also, the Trust's prepayment experience may be affected by a wide variety of
factors, including general economic conditions, interest rates, the availability
of alternative financing, homeowner mobility and the non tax-deductibility of
interest on owner-occupied housing (See "CERTAIN LEGAL ASPECTS OF THE HOUSING
LOANS - Treatment of Interest Payments with respect to Australian Housing
Loans.").
Reinvestment Risk
If a prepayment is received on a Housing Loan during any Collection Period,
interest at the then current interest rate on the Housing Loan will cease to
accrue on that part of the Housing Loan prepaid from the date of the prepayment.
The amount prepaid will be invested in Authorized Investments for the balance of
the Collection Period at a rate that may be less than the then rate on the
Housing Loan. Interest will, however, continue to be payable in respect of an
Invested Amount of principal on the Offered Notes until the next Payment Date
following the prepayment. Accordingly, the difference between the rate earned on
the prepaid amount of the Housing Loan and the amount of interest payable on the
Offered Notes may affect the ability of the Issuer Trustee to pay interest in
full on the Offered Notes. Certain Principal Collections and the Liquidity
Facility may cover such shortfalls in whole or in part but there is no assurance
that sufficient amounts will be available. For further details see "DESCRIPTION
OF THE OFFERED NOTES--Available Income and "--Principal Draws."
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Servicer Risk
The appointment of the Servicer under the Master Trust Deed and Servicing
Agreement may be terminated under certain circumstances or the Servicer may
resign (see "DESCRIPTION OF THE SERVICING AGREEMENT"). If the Servicer is
removed for any reason, the Issuer Trustee is obligated to appoint a suitably
qualified person as Servicer whose appointment would not materially prejudice
the interests of Noteholders (an "Eligible Servicer") to assume responsibility
for servicing the Housing Loans in accordance with the Master Trust Deed and the
Servicing Agreement. There is no guarantee (a) that an Eligible Servicer will be
found who would be willing to service the Housing Loans on the terms of the
Master Trust Deed and the Servicing Agreement, in which case the Issuer Trustee
must act as the Eligible Servicer or (b) that an Eligible Servicer will be able
to service the Housing Loans with the same level of skill and competence as the
initial Servicer. The ability of the Eligible Servicer (whether it is the Issuer
Trustee or a third party) to perform the servicing functions under the Master
Trust Deed and Servicing Agreement would depend on the information and records
available to it.
Priority of RFSs and RFS Class A Notes Owned by Australian Resident Investors
In certain limited circumstances, the Trust will issue RFSs and RFS Class A
Notes, which will be issued to Australian resident investors only. The RFSs will
be senior to the Class A Notes with respect to payments of principal and which
will rank pari passu with the Class A Notes with respect to Interest. In
addition, on each Payment Date, Gross Principal Collections will be used to
reimburse Westpac for any Redraws funded by Westpac during the related
Collection Period prior to payments to the Class A Notes. Additionally, if RFS,
are not repaid on the fifth Collection Determination Date following the date
such RFS's were issued, such RFS's will convert to RFS Class A Notes. The RFS
Class A Notes will rank pari passu with the Class A Notes with respect to
payments of both principal and Interest. In addition, payments due on the Redraw
Facility, RFSs and RFS Class A Notes, if any, will be senior in right of payment
to the Class B Notes with respect to principal, Interest and fees. If proceeds
of the assets included in the Trust are not sufficient to pay all obligations of
the Issuer Trustee in its capacity as trustee of the Trust, Noteholders with a
lower priority of payment are at a greater risk for losses on their investment.
See "DESCRIPTION OF THE OFFERED NOTES--Description of the Redraw Facility, the
Redraw Funding Securities and the RFS Class A Notes."
Credit Enhancement Provides Only Limited Protection Against Losses
Credit enhancement with respect to the Class A Notes will be provided by (i)
the Mortgage Insurance Policies, (ii) subordination of the Excess Available
Income and (iii) the subordination of payments of the Class B Notes to payments
to the Class A Notes. Credit enhancement with respect to the Class B Notes will
be provided by (i) the Mortgage Insurance Policies and (ii) subordination of the
Excess Available Income. Although the credit enhancement is intended to reduce
the risk of delinquent payments or losses to the Noteholders entitled to the
benefit thereof, the amount of such enhancement is limited, will decline and
could be depleted under certain circumstances prior to the payment in full of
the Offered Notes. As a result , the available credit enhancement may be
insufficient to reduce the risk of delinquent payments of losses to the
Noteholders. See "THE MORTGAGE INSURANCE POLICIES" and "DESCRIPTION OF THE
NOTES".
Limitations on the Liquidity Support
If on any Collection Determination Date, the Available Income of the Trust
is insufficient to meet Total Payments of the Trust for a Collection Period,
Principal Collections collected during such Collection Period may be used to
provide liquidity by way of a Principal Draw. If Principal Draws are not
available to meet Total Payments, a drawing must be made under the Liquidity
Facility up to the Liquidity Limit (as defined herein). In the event that there
are shortfalls in excess of the Liquidity Limit prior to the payment in full of
the Offered Notes, Noteholders may suffer losses. See "DESCRIPTION OF THE
OFFERED NOTES--Principal Draws" and "THE LIQUIDITY FACILITY."
Exercise of Clean-up Offer may result in Shortfalls to Noteholders
If at any time the aggregate Housing Loan Principal, expressed as a
percentage of the aggregate Housing Loan Principal as of the Cut-Off Date, is
less than 10%, then, if instructed by the Trust Manger, the Seller Trustee may
repurchase, on the following Payment Date, the equitable title to the Housing
Loans held by the Trust. The proceeds of sale will be applied by the Issuer
Trustee to repay moneys owing to Noteholders at that time in accordance with the
priorities for applying payments of Interest and principal between the Classes
of Notes. In the event that a Housing Loan is non-performing, the purchase price
for such Housing Loan will be based on the Fair Market Value. Fair Market Value
with respect to a Housing Loan may be less than the Unpaid Balance of such
Housing Loan. If a significant number of Housing Loans are non-performing, the
total proceeds from exercising the Clean-up Offer may be less than amounts owing
to Noteholders and Noteholders may suffer losses.
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Redemption of the Notes
If an Event of Default occurs under the Security Trust Deed while the Notes
are outstanding, the Security Trustee may (subject to the prior written consent
of the Note Trustee in accordance with the provisions of the Security Trust
Deed), and will (if so directed by the Note Trustee alone where it is the only
Voting Mortgagee or, otherwise by a resolution of 75% of the Voting Mortgagees)
enforce the security created by the Security Trust Deed. That enforcement can
include the sale of some or all of the Housing Loans. There is no guarantee that
the Security Trustee will be able to sell the Housing Loans for their then
Unpaid Balance. Accordingly, the Security Trustee may not be able to realize the
full value of the Housing Loans and this may have an impact upon the Issuer
Trustee's ability to repay all amounts outstanding in relation to the Notes. Any
proceeds from the enforcement of the security will be applied in accordance with
the order of priority of payments as set out in the Security Trust Deed. See
"SECURITY FOR THE NOTES."
If the Trust terminates while Notes are outstanding, Westpac has a right of
first refusal to acquire the Housing Loans. The price to be paid by Westpac for
performing and non-performing Housing Loans must be not less than their fair
market value. In the case of performing Housing Loans, the Issuer Trustee is
required to offer to sell them to Westpac under its right of first refusal for
their then Unpaid Balance. Where the fair market value of a Housing Loan is less
than its then Unpaid Balance, its acquisition by Westpac will be subject to
prior approval by an Extraordinary Resolution (as defined herein) of
Noteholders. This is because in such circumstances there may be a shortfall in
the amount available to the Issuer Trustee to fully repay all amounts
outstanding in relation to the Notes. See "DESCRIPTION OF THE OFFERED
NOTES--Termination of the Trust."
Geographic Concentration May Affect Performance
Approximately _____%, _____% and _____% (by Cut-Off Date Principal Balance)
of the Housing Loans are secured by Mortgaged Properties in the regions of New
South Wales, Victoria and Queensland, respectively. To the extent that one or
more of such regions has experienced or may experience in the future weaker
economic conditions or greater rates of decline in real estate values than
Australia generally, such a concentration of the Housing Loans may be expected
to increase the risk of delinquencies and losses on the Housing Loans with
respect to such region. None of the Issuer Trustee, the Approved Sellers nor the
Servicer can quantify the impact of any recent property value declines on the
Housing Loans or predict whether, to what extent or for how long such declines
may continue.
Consumer Credit Legislation
Some of the Housing Loans are regulated by consumer credit legislation (the
"Consumer Credit Legislation"). Under that legislation, a Borrower may have a
right to apply to a court to:
(1) vary the terms of his or her Housing Loan on the grounds of hardship
or that it is an unjust contract;
(2) reduce or cancel any interest rate payable on the Housing Loan which
is unconscionable;
(3) have certain provisions of the Housing Loan or relevant Mortgage which
are in breach of the legislation declared unenforceable; or
(4) obtain restitution or compensation from the Issuer Trustee, in
relation to any breaches of the Consumer Credit Legislation in
relation to the Housing Loan or relevant Mortgage.
Any such order may affect the timing or amount of interest or principal
payments or repayments under the relevant Housing Loan (which might in turn
affect the timing or amount of interest or principal payments or repayments
under the Offered Notes).
In addition, a mortgagee's ability to enforce a mortgage which is subject to
the Consumer Credit Legislation is limited by various demand and notice
procedures which are required to be followed. For example, as a general rule
enforcement cannot occur unless the relevant default is not remedied within 30
days after a default notice is given. Borrowers may also be entitled to initiate
negotiations with the mortgagee for a postponement of enforcement proceedings.
Such procedures and negotiations may also affect the timing or amount of
interest or principal payments or repayments under the Housing Loans.
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Breaches of the Consumer Credit Legislation may also lead to civil penalties
or criminal fines being imposed on Westpac, for so long as it holds legal title
to the Housing Loans and the Mortgages. If the Issuer Trustee acquires legal
title, it will then become primarily responsible for compliance with the
Consumer Credit Legislation. The Issuer Trustee will (subject to limited
exceptions) be indemnified out of the assets of the Trust for its liabilities
under the Consumer Credit Legislation. If the Issuer Trustee is indemnified with
respect to such liabilities out of the assets of the Trust, proceeds of the
Trust may be insufficient to make all payments provided for under the Offered
Notes.
Westpac will give, or has given, certain representations and warranties that
the Housing Loans and related Mortgages comply in all material respects with the
Consumer Credit Legislation in force at the time documents were entered into.
The representation and warranties are set forth in "THE TRUST
FUND--Representations and Warranties." The Servicer has undertaken to comply
with the Consumer Credit Legislation in connection with servicing the Housing
Loans and related Mortgages where failure to do so would have an Adverse Effect.
An "Adverse Effect" is an event which will materially and adversely affect the
amount of any payment to be made to any Noteholder, or will materially and
adversely affect the timing of such payment. In certain circumstances the Issuer
Trustee may have the right to claim damages from Westpac or the Servicer, as the
case may be, where the Issuer Trustee suffers loss in connection with a breach
of the Consumer Credit Legislation which is caused by a breach of a relevant
representation or undertaking. See "CERTAIN LEGAL ASPECTS OF THE HOUSING LOANS."
Risk of Commingling
Collections under the Housing Loans are received by Westpac or the
Servicer. As described in "DESCRIPTION OF THE OFFERED NOTES--Collections,"
provided Westpac has a short term rating of at least "A-1+" from Standard &
Poor's, "P-1" from Moody's and--from Fitch and the Collections Account is
maintained with Westpac or a subsidiary of Westpac, neither Westpac nor the
Servicer is required to pay the Collections into the Collections Account
until two (2) Business Days before the relevant Payment Date. If Westpac does
not have the relevant rating, Collections must be paid into the Collections
Account within five (5) Business Days (if the Collection Account is with
Westpac or one of its subsidiaries) or two (2) Business Days (in any other
case) following receipt. In each of these circumstances, the Collections may
be commingled with the assets of the Servicer or Westpac (as the case may be)
and, in the event of the insolvency of Westpac or the Servicer (as relevant),
the Issuer Trustee may only be able to claim those Collections as an
unsecured creditor of the insolvent company.
Limited Liquidity
There will be no market for the Offered Notes prior to the issuance thereof,
and there can be no assurance that a secondary market will develop, or if it
does develop, that it will provide the Noteholders with liquidity of investment
or that it will remain for the term of any Notes. The Underwriters presently
expect to make a secondary market in the Offered Notes, but have no obligation
to do so.
Ratings of the Notes; Factors Affecting Ability to Maintain Ratings
It is a condition to the issuance of the Class A Notes that they be rated
"Aaa" by Moody's, "AAA" by Standard & Poor's and ___________ by Fitch that
the Class B Notes be rated at least "AA-" by Standard & Poor's and "AA-"by
Fitch. A rating is not a recommendation to purchase, hold or sell the Offered
Notes, inasmuch as such rating does not comment as to market price or
suitability for a particular investor. The rating of the Offered Notes
addresses the likelihood of the payment of principal and interest on the
Offered Notes pursuant to their terms. There is no assurance that a rating
will remain for any given period of time or that a rating will not be lowered
or withdrawn entirely by a Rating Agency if in its judgment circumstances
(including without limitation a reduction in the credit rating of the
Interest Rate Swap Provider, the Currency Swap Provider, the Mortgage
Insurance Providers or a reduction in the domestic currency rating of
Australia) in the future so warrant. The ratings of the Offered Notes will be
based primarily on the creditworthiness of the Housing Loans, the
subordination provided by the Class B Notes with respect to the Class A
Notes, the availability of Excess Available Income, if any, the Mortgage Pool
Insurance Policy and the PMI Mortgage Insurance Policies, the availability of
the Liquidity Facility, the creditworthiness of the Interest Rate Swap
Provider, the Currency Swap Provider and the Mortgage Insurer Providers and
the domestic currency rating of Australia. In the context of an asset
securitization, the domestic currency rating of a country reflects, in
general, a Rating Agency's view of the likelihood that cash flow on the
assets in such country's currency will be permitted to be sent outside of
that country.
Book-Entry Notes
Issuance of the Offered Notes in book-entry form may reduce the liquidity of
such Notes in the secondary trading market since investors may be unwilling to
purchase Offered Notes for which they cannot obtain physical certificates. Since
transactions in the Offered Notes can be effected only through DTC, Cedel,
Euroclear, participating organizations, indirect participants and certain banks,
the ability of a Noteholder to pledge an Offered Note to persons or entities
that do not participate in the DTC, Cedel or Euroclear systems or otherwise to
take actions in respect of such Notes, may be limited due to lack of a physical
certificate representing the Offered Notes. Noteholders may experience some
delay in
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their receipt of distributions of interest and principal on the Offered Notes
since such distributions will be forwarded by the Note Trustee to DTC and DTC
will credit such distributions to the accounts of its Participants (as defined
herein) which will thereafter credit them to the accounts of Noteholders either
directly or indirectly through indirect participants. See "DESCRIPTION OF THE
OFFERED NOTES--Book-Entry Registration" herein.
Other Considerations
There is no assurance that the market value of the Housing Loans will at any
time be equal to or greater than the Invested Amount of the Notes then
outstanding, plus accrued interest thereon. Moreover, upon an Event of Default
under the Security Trust Deed and a sale of the Trust Assets, the Security
Trustee, the Note Trustee, the Liquidity Facility Provider, the Swap Providers
and any other service provider generally will be entitled to receive the
proceeds of any such sale to the extent of unpaid fees and expenses and other
amounts owing to such persons prior to distributions to holders of the Notes.
After such payment of fees and expenses, the remaining proceeds thereof may be
insufficient to pay in full the principal of and interest on the Notes.
FORMATION OF THE TRUST
Westpac Securitisation Trust Programme
The Westpac Securitisation Trust Programme was established pursuant to
the Master Trust Deed for the purpose of enabling Westpac Securities
Administration Limited as trustee of each Trust established pursuant thereto,
to invest in pools of consumer assets originated from time to time by the
Westpac Banking Corporation group (the "Westpac Group"). The Master Trust
Deed provides for the creation of an unlimited number of WST trusts. Each WST
trust will be a separate and distinct trust fund and will be created subject
to the Master Trust Deed and a supplemental series notice establishing
specific provisions of the relevant WST trust and the instruments to be
issued by that trust. The Trust Assets are not available to meet the
liabilities of any other WST trust formed under the Master Trust Deed.
Likewise, the assets of any other trust formed under the Master Trust Deed
are not available to meet the liabilities of the Trust Series 1998-1G WST.
Multiple classes of notes may be issued by the Issuer Trustee in relation to
each WST trust that differ among themselves as to priority of payments and
ratings.
Series 1998-1G WST Trust
The detailed terms of the Trust will be as set out in the Series Notice
and the Master Trust Deed. The Master Trust Deed establishes the general
framework under which WST trusts may be established from time to time. It
does not actually establish any trusts. To establish a trust, the Trust
Manager and the Issuer Trustee have executed a notice of creation of trust
dated _______________ (the "Notice of Creation of Trust").
In order to supplement the general framework under the Master Trust Deed
with respect to the Trust, all relevant parties (including the Trust Manager,
the Issuer Trustee and each Approved Seller) will execute the Series Notice,
which (among other things) specifies the details of the Notes, establishes the
cashflow allocation, sets out various representations and undertakings of the
parties specific to the Housing Loans, which are additional to those in the
Master Trust Deed, and amends the Master Trust Deed to the extent necessary to
give effect to the specific aspects of the Trust and the issue of the Notes.
The Transaction Documents should therefore be read together when determining
the rights, powers and obligations of the Issuer Trustee, the Trust Manager and
the Approved Sellers in relation to the Trust. Forms of the Master Trust Deed
and the Series Notice have been filed as an exhibit to the Registration
Statement of which this Prospectus is a part. The summaries herein do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all of the provisions of such documents.
The issuance of the Notes will fund the purchase by the Trust of a pool of
residential housing loans originated by Westpac, which will be specified in a
Sale Notice from each of Westpac in its capacity as originator of the Housing
Loans or Westpac Securities Administration Limited in its capacity as trustee of
any other WST trusts established under the Master Trust Deed (in that capacity,
the "Seller Trustee"). The Seller Trustee owes a fiduciary duty to Westpac, the
entity which is the beneficiary of each "warehouse" trust established under the
Master Trust Deed.
In addition, the Trust may issue certain additional debt securities as
discussed herein under "DESCRIPTION OF THE OFFERED NOTES--Description of the
Redraw Facility, the Redraw Funding Securities and the RFS Class A Notes."
Trust Assets
The Trust Assets will include:
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1. a pool of Housing Loans, including all monies at any time paid or
payable thereon or in respect thereof from and after the Cut-Off Date with
respect to payments of principal and after the Closing Date with respect to
payments of interest;
2. rights under certain insurance policies with respect to the Housing
Loans;
3. amounts on deposit in certain accounts established pursuant to the
Master Trust Deed, including the Collections Account, and amounts invested
in Authorized Investments; and
4. the Issuer Trustee's rights under the Transaction Documents.
SECURITY FOR THE NOTES
Charge
Under the Security Trust Deed, dated _______ among the Issuer Trustee,
the Trust Manager, the Note Trustee and the Security Trustee, the Issuer
Trustee will grant a first ranking floating charge, to be registered with
the Australian Securities Commission, over all of the Trust Assets in favor
of Perpetual Trustee Company Limited (ACN 000 001 007) (the "Security
Trustee"), a company within the Perpetual group with its holding company
being Perpetual Trustees Australia Limited (ACN 000 431 827), in order to
secure the Issuer Trustee's obligations to the Noteholders, the Note Trustee,
the Trust Manager, the Interest Rate Swap Provider, the Currency Swap
Provider, the Security Trustee, each Paying Agent and each provider of a
Support Facility (other than any provider of a Mortgage Insurance Policy) to
the Issuer Trustee, any Accrued Interest Adjustment (as defined herein) owed
to an Approved Seller, to Westpac in respect of Redraws and to the holders of
the RFSs (if any) and the holders of the RFS Class A Notes (if any) (such
creditors, together the "Mortgagees").
Security Trustee
The Security Trustee is appointed to act as trustee on behalf of the
Mortgagees on the terms and conditions of the Security Trust Deed. It holds the
benefit of the charge over the secured property (as defined herein) and the
benefit of each of the Transaction Documents to which the Issuer Trustee is a
party in trust for each Mortgagee in accordance with the terms and conditions of
the Security Trust Deed.
If there is a conflict between the duties owed by the Security Trustee to
any Mortgagees or class of Mortgagees, the Security Trustee must give priority
to the interests of the holders of the RFSs (if any) and the RFS Class A Notes
(if any) and the Class A Noteholders and the Class B Noteholders (which in the
case of the Class A Noteholders and the Class B Noteholders shall be determined
by the Note Trustee acting on their behalf). Subject to the provisions of the
Security Trust Deed (other than the provision in the previous sentence), the
Security Trustee must give priority to the interests only of the Class A
Noteholders and the holders of the RFSs (if any) and the holders of the RFS
Class A Notes (if any) if, in the Security Trustee's opinion, there is a
conflict between the interests of Class A Noteholders and the holders of the
RFSs (if any) and the holders of the RFS Class A Notes (if any) and the
interests of the Class B Noteholders or other Mortgagees. Provided that the
Security Trustee acts in good faith, it shall not incur any liability to any
Mortgagee for giving effect or seeking to give effect to the preceding
provisions of this paragraph.
The Security Trustee has had no involvement in the preparation of any part
of this Prospectus, other than the particular reference to the Security Trustee
in this section and the disclosure of additional provisions of the Security
Trust Deed set forth herein. The Security Trustee makes no statement or
representation in this Prospectus, has not authorized or caused the issue of any
part of it and takes no responsibility for any part of it.
Nature of Security
If a company grants a fixed security over any of its assets, those assets
may not be dealt with by the company without the consent of the relevant
mortgagee. In this way, the security is said to "fix" over the specific
assets. Fixed securities are usually given over real property, marketable
securities and other assets which will not be dealt with by the company.
Unlike fixed securities, floating charges do not attach to specific
assets but instead "float" over a class of assets which may change from time
to time, allowing the person or entity granting the charge (the "Chargor") to
deal with those assets and to give third parties title to those assets free
from any encumbrance in the event of sale, discharge or modification, for
example. The security created by the Security Trust Deed is a floating charge
over the Trust Assets. The Security Trust Deed provides that the Issuer
Trustee may not deal with the assets of the Trust subject to the floating
charge, except in the ordinary course of its business. It is common in
Australia for special purpose securitization vehicles to give floating
charges rather than fixed charges. If the Issuer Trustee disposes of any of
the Trust Assets (including any Housing Loan) in the ordinary course of its
business, the acquirer of that property will take them free of the floating
charge.
The floating charge created by the Security Trust Deed may "crystallize"
and become a fixed charge over the relevant class of assets owned by the
Issuer Trustee at the time of crystallization. Crystallization will occur
automatically following the occurrence of specific events set out in the
Security Trust Deed, including, among other events, notice to the Issuer
Trustee from the Security Trustee following an event of default. See "CERTAIN
LEGAL ASPECTS OF THE HOUSING LOANS" and "APPENDIX I--GLOSSARY OF AUSTRALIAN
LEGAL TERMS" herein.
Enforcement
The Security Trustee must promptly convene a meeting of the Voting
Mortgagees (as defined herein) after it receives notice, or has actual knowledge
of, an Event of Default (as defined herein). The Security Trustee may waive
(such waiver, being subject to the prior written consent of the Note Trustee in
accordance with the provisions of the Security Trust Deed), an Event of Default
before it is required to convene a meeting of Mortgagees if that Event of
Default is not (in the opinion of the Security Trustee) materially prejudicial
to the Mortgagees' interests.
At the meeting, the Voting Mortgagees must vote by Extraordinary Resolution
(being a resolution passed at a duly convened meeting by a majority consisting
of not less than 75% of the votes capable of being cast by Voting Mortgagees
present in person or by proxy or by written resolution signed by all of the
Voting Mortgagees) on whether to direct the Security Trustee to:
(1) declare the charge to be enforceable;
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<PAGE>
(2) declare all amounts owing by the Issuer Trustee which are secured by
the Security Trust Deed (including amounts outstanding under the Notes
plus accrued and unpaid interest) to be immediately due and payable on
demand;
(3) crystallize the floating charge created under the Security Trust Deed
in relation to any or all of the Secured Property (for a description
of the crystallization process, see "- Nature of Security"
above); and/or
(4) appoint a receiver over the Trust's assets or itself exercise the
powers that a receiver would otherwise have under the Security Trust
Deed.
With respect to voting, every person who is present at a meeting shall have
one vote in respect of each US$ in principal amount of the Stated Amount of the
Offered Notes then outstanding of the Class A Notes or the Class B Notes, as the
case may be, so produced or represented by the voting certificate so produced or
in respect of which he is a proxy.
See "APPENDIX I -- GLOSSARY OF AUSTRALIAN LEGAL TERMS."
The Security Trustee cannot exercise the powers referred to above unless
directed by an Extraordinary Resolution in the manner outlined above. The
Security Trustee is not obligated to act unless it obtains an indemnity from the
Voting Mortgagees, or funds have been deposited on behalf of the Security
Trustee to the extent to which it may become liable for the relevant enforcement
actions. For so long as the Note Trustee is the only Voting Mortgagee it may
direct the Security Trustee to do any act which the Security Trustee is required
to do, or may only do, at the direction of an Extraordinary Resolution of Voting
Mortgagees. Neither the Security Trustee nor the Trust Manager may call a
meeting of Voting Mortgagees while the Note Trustee is the only Voting
Mortgagee, unless the Note Trustee otherwise consents.
The Note Trustee will be the only Voting Mortgagee for so long as the
amounts outstanding under the Notes are 75% or more of all amounts secured by
the Security Trust Deed.
Upon the occurrence of an Event of Default: (i) if the Note Trustee is not
the only Voting Mortgagee; and (ii) the Note Trustee directs the Security
Trustee to enforce the charge (whether directed to do so by Class A Noteholders
or as the Note Trustee determines on behalf of the Class A Noteholders), the
Security Trustee shall enforce the charge as if directed to do so by an
Extraordinary Resolution of Voting Mortgagees. For the purposes of the Security
Trust Deed and the Note Trust Deed, a reference to Class A Noteholders include
RFS Class A Noteholders, if any.
No Mortgagee is entitled to enforce the charge under the Security Trust
Deed, or appoint a receiver or otherwise exercise any power conferred by any
applicable law on charges, other than in accordance with the Security Trust
Deed.
Priorities under the Security Trust Deed
The proceeds from the enforcement of the Security Trust Deed (which will not
include amounts required by law to be paid to the holder of any prior ranking
security interest, the proceeds of or amounts credited to the collateral account
under the Liquidity Facility and payable to the Liquidity Facility Provider and
the proceeds of cash collateral lodged with and payable to a provider of a Swap
Agreement or provider of another Support Facility to the Issuer Trustee) are to
be applied in the order of priority set forth below, subject to any other
priority which may be required by statute or law. Priority of proceeds in
enforcement over secured creditors includes certain federal taxes, unpaid wages,
long service leave, annual leave and similar employee benefits and certain
auditor's fees.
(1) first, to pay all costs, charges, expenses and disbursements properly
incurred in the exercise of any power by the Security Trustee, the
Note Trustee, a receiver or an attorney or other amounts (other than
those referred to in paragraph (4) below) payable to the Security
Trustee or the Note Trustee under the Security Trust Deed;
(2) second, to pay pro rata based on their respective entitlements:
(i) any fees and other expenses (including Trust Expenses) due to
the Security Trustee, the Note Trustee or the Principal Paying
Agent;
(ii) any fees and unpaid expenses, due to the Issuer Trustee; and
(iii) the receiver's remuneration;
(3) third, to pay pro rata any unpaid Accrued Interest Adjustment due to
an Approved Seller;
(4) fourth, to pay pro rata based on their respective entitlements:
(i) all Secured Moneys (as defined herein) owing to the providers of
each Support Facility by the Issuer Trustee (other than the Currency
Swap Provider);
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<PAGE>
(ii) all Secured Moneys owing to the holders of RFSs (if any);
(iii) all Secured Moneys owing to the holders of RFS Class A Notes (if
any);
(iv) all the Secured Moneys owing to the Class A Noteholders (as at
the date of payment);
(v) all Secured Moneys owed by the Issuer Trustee as trustee of the
Trust to a WST trust other than the Trust;
(vi) all Secured Moneys owing in relation to any Redraws made by
Westpac for which it has not been reimbursed under the Transaction
Documents; and
(vii) all Secured Moneys owing to the Currency Swap Provider under a
confirmation relating to Class A Notes (but without double counting
with payments under sub-paragraph (iv));
(5) fifth, all Secured Moneys owing to the Class B Noteholders (as at the
date of payment) and to the Currency Swap Provider under a
confirmation relating to the Class B Notes, but without double
counting;
(6) sixth, to pay (pari passu and rateably) any amounts not covered above
owing to any Mortgagee under any Transaction Document;
(7) seventh, to pay the holder of any subsequent security interest over
the assets charged by the Security Trust Deed of which the Security
Trustee has notice of the amount properly secured by the security
interest;
(8) eighth, to pay any surplus to the Issuer Trustee to be distributed in
accordance with the Master Trust Deed.
The surplus will not carry interest. If the Security Trustee pays the
surplus to the credit of an account in the name of the Issuer Trustee with
any bank carrying on business in Australia, the Security Trustee, receiver,
Mortgagee or attorney (as the case may be) will be under no further
liability in respect of it.
The "Accrued Interest Adjustment" represents interest and fees which have
accrued on the relevant Housing Loans but which are unpaid as at (and excluding)
the Closing Date, and all amounts received by the relevant Approved Seller under
those Housing Loans applied by the Servicer to payment of interest and fees
under those Housing Loans for the period from (but excluding) the Cut-Off Date
to (but excluding) the Closing Date. During the period between the Cut-Off Date
and the Closing Date, the Housing Loans continue to be owned by the Approved
Sellers. However, any Collections with respect to the period from the Cut-Off
Date through the Closing Date will not be paid back to Westpac until after the
assignment of the Housing Loans to the Trust. The purchase price for the Housing
Loans excludes any such accrual. Therefore, an amount equal to that accrued
interest and fees and Collections in respect of interest and fees for the period
between the Cut-Off Date and the Closing Date will be paid to the Approved
Sellers on the first Payment Date as a priority payment from Total Available
Funds.
"Secured Moneys" means all money which the Issuer Trustee (whether alone or
with another person) is or at any time may become actually or contingently
liable to pay to or for the account of any Mortgagee (whether alone or with
another person) for any reason whatever under or in connection with a
Transaction Document.
Security Trustee's Fees and Expenses
The Issuer Trustee shall reimburse the Security Trustee for all costs and
expenses of the Security Trustee properly incurred in acting as Security
Trustee. The Security Trustee shall be entitled to a fee payable quarterly (the
"Security Trustee Fee") in the amount agreed from time to time by the Issuer
Trustee, the Security Trustee and the Trust Manager. The Issuer Trustee has
agreed to indemnify the Security Trustee against any loss, cost, liability,
expense or damage under or in relation to the Transaction Documents, except
where arising from the Security Trustee's fraud, negligence, willful default or
breach of trust.
Retirement and Removal
Subject to the appointment of a successor Security Trustee, the Security
Trustee may retire on three months' notice in writing to the Issuer Trustee, the
Trust Manager, the Note Trustee and the Rating Agencies.
An Extraordinary Resolution of the Voting Mortgagees may at any time remove
the Security Trustee.
Subject to the appointment of a successor Security Trustee and prior notice
being given to each of the Rating Agencies, the Trust Manager may remove the
Security Trustee if any of the following occurs in relation to the Security
Trustee: (i) an Insolvency Event occurs in relation to the Security Trustee in
its personal capacity; (ii) the cessation by the Security Trustee of its
business; (iii) the failure by the Security Trustee to remedy within 14 days
after written notice by the Trust
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<PAGE>
Manager any material breach of duty on the part of the Security Trustee; or (iv)
if without the prior written consent of the Trust Manager there occur certain
changes in the control or management of the Security Trustee.
Upon notice of resignation or removal of the Security Trustee the Trust
Manager has the right to appoint a successor Security Trustee who has been
previously approved by an Extraordinary Resolution of the Voting Mortgagees and
who accepts the appointment. If no successor Security Trustee is appointed
within 30 days after notice, the retiring Security Trustee may on behalf of the
Mortgagees appoint a successor Security Trustee (other than Westpac or a related
corporation of Westpac) who accepts the appointment. There are currently several
third party security trustee organizations in Australia which may be available
to replace a resigning or removed security trustee.
Additional Provisions of the Security Trust Deed
The Security Trust Deed may be amended by the Issuer Trustee and the
Security Trustee with the approval of the Trust Manager and the Note Trustee in
the manner (and subject to the restrictions) set out in the Security Trust Deed.
The Security Trust Deed contains a range of provisions regulating the scope
of the Security Trustee's duties and liability. These include the following:
(1) The Security Trustee is not responsible for the adequacy or
enforceability of the Security Trust Deed or other Transaction
Documents.
(2) The Security Trustee is not required to exercise its powers under the
Security Trust Deed without being directed to do so by the Note
Trustee or by an Extraordinary Resolution (as referred to above) of
the Voting Mortgagees.
(3) The Security Trustee may rely on documents provided by the Issuer
Trustee or Trust Manager and others, and the advice of consultants and
advisors.
(4) The Security Trustee is not required to monitor whether an event of
default has occurred or compliance by the Issuer Trustee or Trust
Manager with the Transaction Documents, or their other activities.
(5) The Security Trustee is not required to do anything unless its
liability is limited in a manner satisfactory to it.
(6) The Security Trustee need not give Mortgagees information concerning
the Issuer Trustee which comes into the possession of the Security
Trustee.
(7) The rights, remedies and discretion of the Noteholders including all
rights to vote or give instructions or consents to the Security
Trustee and to enforce its undertakings and warranties may only be
exercised by the Note Trustee and the Security Trustee may rely on any
instructions or directions given to it by Note Trustee as being given
on behalf of the Noteholders without enquiry about compliance with the
Note Trust Deed.
(8) The Security Trustee has no duties or responsibilities except those
expressly set out in the Security Trust Deed or any collateral
security.
(9) Any action taken by the Security Trustee under the Security Trust Deed
or any collateral security binds all the Mortgagees.
(10) Each Mortgagee must make its own investigations, without reliance on
the Security Trustee, as to the affairs of the Issuer Trustee and
whether or not to take action under any Transaction Document.
(11) The Security Trustee in its capacity as a Mortgagee can exercise its
rights and powers as such as if it were not acting as the Security
Trustee. It and its affiliates may engage in any kind of business with
the Issuer Trustee, the Trust Manager, Mortgagees and others as if it
were not Security Trustee and may receive consideration for services
in connection with any Transaction Document or otherwise without
having to account to the Mortgagees.
THE TRUST FUND
General
The Housing Loans are expected to include ___________ Housing Loans secured
by registered first ranking mortgages (collectively, the "Mortgages") on
Mortgaged Properties located in Australia. This subsection describes generally
the characteristics of the Housing Loans. The Mortgaged Properties consist of
owner-occupied properties and investment properties. The Mortgaged Properties do
not include mobile homes which are not permanently affixed to the ground,
commercial properties or unimproved land. With respect to each Housing Loan, the
"Cut-Off Date Balance Outstanding"
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is the unpaid principal balance of such Housing Loan as of the close of business
on the Cut-Off Date. Housing Loans included in the Trust Fund consist of
floating and fixed rate loans originated by Westpac.
Transfer and Assignment of Housing Loans
On the Closing Date, the Housing Loans purchased by the Trust will be those
specified in a Sale Notice from each of the Approved Sellers to the Issuer
Trustee. The Housing Loans to be sold by either the Seller Trust or by Westpac
from Westpac's general portfolio of residential Housing Loans have been in both
cases originated by Westpac in the ordinary course of its business. Each Housing
Loan may have some or all of the product features set out in "WESTPAC
RESIDENTIAL LOAN PROGRAM--Housing Loan Features" below. The Housing Loans are,
generally, required to be secured by a registered first ranking real property
mortgage and, in certain circumstances, there may also be a second ranking
mortgage in favor of Westpac. For more information on the Housing Loans, see
"WESTPAC RESIDENTIAL LOAN PROGRAM" below.
On the Closing Date, the Approved Sellers will equitably assign the Housing
Loans, the Mortgages and the Related Securities (as defined herein) securing
those Housing Loans to the Issuer Trustee, pursuant to the Sale Notices
substantially in the form annexed to the Master Trust Deed, after which the
Issuer Trustee will be entitled to receive (with the assistance of TMC in its
capacity as servicer (the "Servicer") of the Housing Loans and custodian of
Related Documents (as defined herein), including the mortgage documents relating
to the Housing Loans) Collections on the Housing Loans. If a Title Perfection
Event occurs, the Issuer Trustee must, with the assistance of the Trust Manager
and Westpac, take certain actions to perfect its legal title in the Housing
Loans pursuant to an irrevocable power of attorney granted by Westpac.
"Related Security" in relation to a Housing Loan means: (a) any Relevant
Document for that Housing Loan; (b) any insurance policy or insurance proceeds
with respect to the Housing Loan; (c) any Mortgage Insurance Policy or Mortgage
Insurance Proceeds with respect to the Housing Loan; or (d) any other agreement
specified as "Related Security" for the Housing Loan in the Series Notice.
"Relevant Document" means, with respect to a Housing Loan, (a) the loan
agreement relating to that Housing Loan; (b) the mortgage document in relation
to such Housing Loan, (c) the certificate of title for the Mortgaged Property
secured by such mortgage, (d) any amendment or replacement of such documents and
any other document which is entered into by or executed in favor of the Approved
Seller or Issuer Trustee in connection with that Housing Loan after the Cut-Off
Date, or (e) any other document specified as a "Relevant Document" in the Series
Notice.
An Approved Seller may in some instances assign to the Issuer Trustee a
Housing Loan secured by an "all moneys" Mortgage, which may also secure
financial indebtedness that has not been sold into the Mortgage Pool and is
instead retained by Westpac. The Issuer Trustee will hold the benefit of the
relevant Mortgage as bare trustee in relation to that other financial
indebtedness, although the Mortgage will secure the assigned Housing Loan in
priority to that other financial indebtedness.
Representations and Warranties
Westpac will make certain representations and warranties to the Issuer
Trustee in relation to the Housing Loans to be assigned by it to the Issuer
Trustee. Westpac also made representations and warranties in relation to the
Housing Loans to be sold by the Seller Trustee at the time those Housing Loans
were first transferred by Westpac to each relevant Seller Trustee, and the
benefit of those prior representations and warranties will be passed on to the
Issuer Trustee. The Servicer will make certain representations and warranties to
the Issuer Trustee in relation to the servicing of the Housing Loans to be sold
by the Seller Trustee to the Issuer Trustee. These representations and
warranties cover the period from when those Housing Loans were first transferred
by Westpac to other Seller Trusts until the Cut-Off Date. The Seller Trustee
will make certain limited representations and warranties in relation to the
Housing Loans to be assigned by it (e.g., as to title) to the Issuer Trustee.
Westpac Representations
Westpac will make the following representations and warranties with respect
to each Housing Loan as of the Cut-Off Date and (except as specified below) the
Closing Date:
(1) it is subject to a Mortgage Insurance Policy;
(2) it is the sole legal and beneficial owner of each Housing Loan, free
and clear of any security interest (unless arising solely as a result
of action by the Security Trustee);
(3) in relation to the Housing Loans to be sold by Westpac to the Issuer
Trustee as at the Cut-Off Date, each Housing Loan satisfies the
following eligibility criteria ("Eligibility Criteria"):
(i) it was approved and originated in the ordinary course of its
business;
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(ii) the Mortgage securing each Housing Loan constitutes (a) a
registered first ranking mortgage over residential property, or (b)
where the Mortgage is not, or will not be when registered, a first
ranking mortgage, Westpac has made an offer to the Issuer Trustee in
relation to all prior ranking registered mortgages to sell such
Mortgages to the Issuer Trustee and upon such sale, the Mortgage will
constitute a registered first ranking mortgage;
(iii) it is denominated and payable only in Australian dollars in
Australia;
(iv) it has an LVR less than or equal to 95%;
(v) it has less than A$750,000.00 outstanding under it;
(vi) it is repayable within 30 years of the Cut-Off Date;
(vii) it is not Delinquent for more than 30 consecutive days;
(viii) it is subject to the terms and conditions of a Premium Option
Home Loan, a First Option Home Loan, a Basic Option Home Loan, a Fixed
Option Home Loan, a Special Offer Fixed Option Home Loan, a Fixed Rate
Investment Property Loan, an Investment Property Loan earning a
variable rate of interest, a Special Offer Fixed Rate Investment
Property Loan or any other similar loan product, however named, with
some or all of the features referred to under "WESTPAC RESIDENTIAL
LOAN PROGRAM--Housing Loan Features";
(ix) it is secured by a Mortgage over a Mortgaged Property which
has erected on it a residential dwelling;
(x) the sale of an equitable interest in the Housing Loan, or the
sale of an equitable interest in any related Mortgage for the Housing
Loan, does not contravene or conflict with any law;
(xi) together with the related Mortgage, it has been or will be
stamped, or has been taken by the relevant stamp duties authority to
be stamped, with all applicable duty;
(xii) it is not governed or regulated by the Credit Act 1984 (NSW)
(or the corresponding legislation for any other Australian
jurisdiction) or any rural, primary production, moratorium or
mediation legislation, other than the Consumer Credit Legislation;
(xiii) it is not a loan with an interest only payment type and a
bullet principal repayment at the end of the interest only period as
set out in the letter of offer relating to that Housing Loan; and
(xiv) the Borrower is a resident of Australia; and
(4) at the time each Housing Loan and Mortgage which is specified in
the Sale Notice and each Related Security was entered into it complied
in all material respects with applicable laws, including, without
limitation, where the Consumer Credit Legislation applies, the
Consumer Credit Legislation.
Servicer Representations
In relation to the Housing Loans to be sold by the Seller Trustee to the
Issuer Trustee, the Servicer has made representations and warranties for the
benefit of the Issuer Trustee including that:
(1) as of the Cut-Off Date, each Housing Loan meets the Eligibility
Criteria;
(2) each Housing Loan is the subject of a Mortgage Insurance Policy; and
(3) each Housing Loan originally sold to the Seller Trustee, has been
serviced by the Servicer in accordance with the Servicing Agreement,
in some cases as the Servicing Agreement has been amended, until the
Closing Date. That servicing includes, without limitation, ensuring
compliance with the Consumer Credit Legislation in connection with
servicing the Housing Loans where failure to do so would have an
Adverse Effect.
Seller Trustee Representations
In relation to the Housing Loans to be sold by the Seller Trustee to the
Issuer Trustee, the Seller Trustee will make representations and warranties for
the benefit of the Issuer Trustee including that:
(1) it has good equitable title to the Housing Loans free and clear of any
security interest other than under the Security Trust Deed given by
the Seller Trustee in favor of the Security Trustee in respect of
the warehouse trust. That Security Trust Deed created only a floating
charge over the Housing Loans; and
(2) the sale, transfer and assignment of the Seller Trustee's interest in
the Housing Loans will not constitute a breach of any documents
binding on the Seller Trustee.
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General
The Issuer Trustee has not investigated or made any inquiries regarding the
accuracy of the representations and warranties, and under the Master Trust Deed
is under no obligation to do so. The Issuer Trustee is entitled to rely entirely
upon the representations and warranties being correct (unless it has actual
notice of any event to the contrary). The rights of the Issuer Trustee in
respect of any representation or warranty being incorrect are described in
"--Breach of Representations" below.
Breach of Representations and Warranties
If Westpac, the Trust Manager or the Issuer Trustee becomes aware within 120
days after the Closing Date that a representation or warranty from Westpac
relating to any Housing Loan or Mortgage is incorrect, it must notify the other
parties and the Rating Agencies within five Business Days of becoming so aware.
If such a notice in relation to a breach is given not later than five Business
Days before 120 days after the Closing Date and the breach is not waived or
remedied to the satisfaction of the Issuer Trustee within five Business Days
then, without any action being required by either party, Westpac shall be
obligated to repurchase the affected Housing Loan and Mortgage for an amount
equal to its Unpaid Balance.
On payment of that amount the Issuer Trustee shall cease to have any
interest in the affected Housing Loan and Mortgage, and Westpac shall hold both
the legal and beneficial interest in such Housing Loan and Mortgage and be
entitled to all interest and fees that accrue in respect of them from (and
including) the date of repurchase.
In any other case, the Issuer Trustee's rights in relation to a breach of a
representation or warranty shall give rise only to a claim for damages, limited
to an amount equal to the Unpaid Balance of that Housing Loan at the time
Westpac pays the damages.
Housing Loan Statistics
The Housing Loans will consist of ________ Housing Loans secured by
Mortgages on Mortgaged Properties located in the six states and two territories
in Australia, being New South Wales ("NSW"), Victoria ("Vic"), Queenslands
("QLD"), South Australia ("SA"), Western Australia ("WA"), Tasmania ("TAS"),
Northern Territory ("NT") and the Australian Capital Territory ("ACT"). 100% of
the Housing Loans by Cut-Off Date Balances Outstanding are secured by first
ranking mortgages on the related Mortgaged Properties. The aggregate Cut-Off
Date Balances Outstanding of the Housing Loans (the "Cut-Off Date Pool Balance")
totaled approximately A$____________. The Housing Loans bear interest at
variable and fixed rates. As of the Cut-Off Date, ____% of the Housing Loans by
Cut-Off Date Loan Balance are variable rate loans (the "Variable Rate Housing
Loans") and ____% of the Housing Loans by Cut-Off Date Loan Balance are fixed
rate loans (the "Fixed Rate Housing Loans"). The weighted average Mortgage Rate
for the Fixed Rate Housing Loans as of the Cut-Off Date was approximately ____%
per annum. The weighted average Mortgage Rate for the Variable Rate Housing
Loans as of the Cut-Off Date was approximately ____% per annum. The lowest
Cut-Off Date Balance Outstanding of any Housing Loan was approximately
A$__________ and the highest was approximately A$____________. The average
Cut-Off Date Balance Outstanding of the Housing Loans was approximately
A$_____________. The weighted average original term to stated maturity of the
Housing Loans was approximately ___ months. The weighted average remaining term
to stated maturity of the Housing Loans was approximately ____ months. As of the
Cut-Off Date, the weighted average number of months that have elapsed since
origination of the Housing Loans was approximately ____ months. The lowest and
highest LVR of the Housing Loans at origination were approximately ____% and
______%, respectively. The weighted average LVR of the Housing Loans was
approximately ____%.
Housing Loans representing approximately _____% of the Cut-Off Date Pool
Balance are secured by Mortgaged Properties which are investment properties
(based solely upon statements made by the related Mortgagors at the time of
origination of the related Housing Loans).
As of the Cut-Off Date, no Housing Loans were greater than 30 days
Delinquent.
Set forth below is a description of certain additional characteristics with
respect to the Housing Loans held by the Trust and are not indicative of the
entire portfolio of Westpac. All percentages are approximate and may not total
100% due to rounding.
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(All amounts expressed in Australian dollars)
(All %'s are approximate and may not total 100% due to rounding)
BALANCE OUTSTANDING DISTRIBUTION
<TABLE>
<CAPTION>
Total
Number Security Balance Average Average % by % by
Balance of Loans Value A$ Outstanding A$ Balance A$ LVR (%) Number Balance
- --------------------------------- ------- --------- -------------- ---------- --------- --------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
A$10,001-A$20,000................
A$20,001-A$30,000................
A$30,001-A$40,000................
A$40,001-A$50,000................
A$50,001-A$100,000...............
A$100,001-A$150,000..............
A$150,001-A$200,000..............
A$200,001-A$250,000..............
A$250,001-A$300,000..............
A$300,001-A$350,000..............
A$350,001-A$400,000..............
A$400,001-A$450,000..............
A$450,001-A$500,000..............
Above A$500,000..................
------- --------- -------------- ---------- --------- --------- --------
Total........................
======= ========= ============== ========== ========= ========= --------
</TABLE>
LOAN RATES OF THE FIXED RATE HOUSING LOANS AS OF THE CUT-OFF DATE
<TABLE>
<CAPTION>
Loan Rate(%) Number of Loans % by Balance
- ---------------------------------------------------------- --------------------- ---------------------
<S> <C> <C>
6.001- 6.500%.............................................
6.501- 7.000%.............................................
7.001- 7.500%.............................................
7.501- 8.000%.............................................
8.001- 8.500%.............................................
8.501- 9.000%.............................................
9.001- 9.500%.............................................
9.501- 10.000%............................................
10.001- 10.500%...........................................
10.501- 11.000%...........................................
11.001- 11.500%...........................................
11.501- 12.000%...........................................
12.001- 12.500%...........................................
12.501- 13.000%...........................................
13.001- 13.500%...........................................
13.501- 14.000%...........................................
--------------------- ---------------------
Total.................................................
===================== =====================
</TABLE>
- -----------
* Each Fixed Rate Housing Loan can convert to a Variable Rate Housing Loan
subject to certain related penalties.
41
<PAGE>
GEOGRAPHIC DISTRIBUTION BY REGION*
<TABLE>
<CAPTION>
Total
Number Security Current Average Average % by % by
Region of Loans Value A$ Balance A$ Balance A$ LVR (%) Number Balance
- --------------------------------- ------- --------- ------------- ---------- --------- --------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
ACT-Metro........................
NSW-Metro........................
NSW-Other........................
NT-Metro.........................
NT-Other.........................
QLD-Metro........................
QLD-Other........................
SA-Metro.........................
SA-Other.........................
TAS-Metro........................
TAS-Other........................
Vic-Metro........................
Vic-Other........................
WA-Metro.........................
WA-Other.........................
------- --------- ------------- ---------- --------- --------- --------
Total........................
======= ========= ============= ========== ========= ========= ========
</TABLE>
- -----------
* Geographic distributions are split by State or Territory and by metropolitan
(Metro) or country (Other). The distributions are based on the post code of
the Mortgaged Property. "Metro" areas comprise the city and surrounding
suburbs of the capital city of each State or Territory and "Other" comprises
all other areas within the State or Territory.
LVR RATIO DISTRIBUTION
<TABLE>
<CAPTION>
Total Current
Number Security Balance Average Average % by % by
LVR of Loans Value A$* Outstanding A$ Balance A$ LVR (%) Number Balance
- --------------------------------- ------- ----------- --------------- ---------- --------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
0% less than= 5%.........................
5% less than= 10%........................
10% less than= 15%.......................
15% less than= 20%.......................
20% less than= 25%.......................
25% less than= 30%.......................
30% less than= 35%.......................
35% less than= 40%.......................
40% less than= 45%.......................
45% less than= 50%.......................
50% less than= 55%.......................
55% less than= 60%.......................
60% less than= 65%.......................
65% less than= 70%.......................
70% less than= 75%.......................
75% less than= 80%.......................
80% less than= 85%.......................
85% less than= 90%.......................
90% less than= 95%.......................
------- ----------- --------------- ---------- --------- -------- --------
Total........................
======= =========== =============== ========== ========= ======== ========
</TABLE>
- -----------
* Total Security Value is determined by either contract of sale,
valuation by a registered panel or in remote areas, a Manager's Assessment.
See "WESTPAC RESIDENTIAL LOAN PROGRAM--Underwriting of Housing Loans."
42
<PAGE>
MORTGAGE INSURER DISTRIBUTION
<TABLE>
<CAPTION>
Total Current
Number Security Balance Average Average % by % by
Insurer of Loans Value A$ Outstanding A$ Balance A$ LVR (%) Number Balance
- --------------------------------- ------- --------- -------------- ---------- --------- --------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
None.............................
HLIC (post 12/12/97).............
HLIC (prior to 12/12/97).........
MGICA............................
Sun Alliance/WLMI................
------- --------- -------------- ---------- --------- --------- --------
Total........................
======= ========= ============== ========== ========= ========= ========
</TABLE>
PRODUCT DISTRIBUTION
<TABLE>
<CAPTION>
Total Current
Number Security Balance Average Average % by % by
Product of Loans Value A$ Outstanding A$ Balance A$ LVR (%) Number Balance
- --------------------------------- ------- --------- -------------- ---------- --------- --------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Basic Option
Home Loan......................
First Option
Home Loan......................
Fixed Options
Home Loan......................
IPL - First Option...............
IPL - Fixed Rate.................
IPL - Special
Fixed Rate.....................
IPL - Variable Rate..............
Premium Option
Home Loan......................
Special Options Fixed
Rate Home Loan.................
------- --------- -------------- ---------- --------- --------- --------
Total........................
======= ========= ============== ========== ========= ========= ========
</TABLE>
SETTLEMENT PERIOD DISTRIBUTION
<TABLE>
<CAPTION>
Total Current
Settlement Number Security Balance Average Average % by % by
Period of Loans Value A$ Outstanding A$ Balance A$ LVR (%) Number Balance
- --------------------------------- ------- --------- -------------- ---------- --------- --------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
------- --------- -------------- ---------- --------- --------- --------
Total........................
======= ========= ============== ---------- --------- --------- --------
</TABLE>
43
<PAGE>
<TABLE>
<CAPTION>
Month/Year of Conversion from
Fixed Rate Housing Loan to Current Balance % by
Variable Rate Housing Loan Number of Loans Outstanding A$ Balance
- ----------------------------------------------- --------------------- ---------------------- ------------
<S> <C> <C> <C>
...............................................
...............................................
...............................................
...............................................
...............................................
...............................................
...............................................
...............................................
...............................................
...............................................
...............................................
--------------------- ---------------------- ------------
Total.....................................
===================== ====================== ============
</TABLE>
MORTGAGES BY YEAR OF MATURITY
<TABLE>
<CAPTION>
Total Current Average
Number Security Balance Balance A$ Average % by % by
Year of Maturity of Loans Value A$ Outstanding A$ LVR (%) Number Balance
- --------------------------------- ------- ---------- --------------- ---------- --------- --------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
1999.............................
2000.............................
2001.............................
2002.............................
2003.............................
2004.............................
2005.............................
2006.............................
2007.............................
2008.............................
2009.............................
2010.............................
2011.............................
2012.............................
2013.............................
2014.............................
2015.............................
2016.............................
2017.............................
2018.............................
2019.............................
2020.............................
2021.............................
2022.............................
2023.............................
2024.............................
2025.............................
2026.............................
2027.............................
2028.............................
------- ---------- --------------- ---------- --------- --------- -------
Total.......................
======= ========== =============== ========== ========= ========= =======
</TABLE>
44
<PAGE>
YEAR OF ORIGINATION (Quarterly)
<TABLE>
<CAPTION>
Total Current
Number Security Balance Average Average % by % by
Origination of Loans Value A$ Outstanding A$ Balance A$ LVR (%) Number Balance
- --------------------------------- ------- --------- -------------- ---------- --------- --------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
------- --------- -------------- ---------- --------- --------- --------
Total.......................
======= ========= ============== ========== ========= ========= --------
</TABLE>
OCCUPANCY OF MORTGAGE PROPERTY DISTRIBUTION*
<TABLE>
<CAPTION>
Total Current
Number Security Balance Average Average % by % by
Loan Type of Loans Value A$ Outstanding A$ Balance A$ LVR (%) Number Balance
- --------------------------------- ------- --------- -------------- ---------- --------- --------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Investment.......................
Owner Occupied...................
------- --------- -------------- ---------- --------- --------- --------
Total.......................
======= ========= ============== ========== ========= ========= ========
</TABLE>
- -----------
*Based solely on statements of Mortgagors at time of origination.
PAYMENT TYPE DISTRIBUTION
<TABLE>
<CAPTION>
Total Current
Number Security Balance Average Average % by % by
Payment Type of Loans Value A$ Outstanding Balance LVR (%) Number Balance
A$ A$
- --------------------------------- ------- --------- ------------- --------- --------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Interest Only....................
Principal & Interest.............
------- --------- ------------- --------- --------- -------- --------
Total.......................
======= ========= ============= ========= ========= ======== ========
</TABLE>
HOUSING LOAN PROPERTY TYPES
<TABLE>
<CAPTION>
Total Current
Number Security Balance % by
Property Type of Loans Value Outstanding A$ Balance
- ----------------------------------------------------- -------------- ---------- ---------------- --------
<S> <C> <C> <C> <C>
Detached houses......................................
Semi-detached houses.................................
Townhouses...........................................
Strata title units...................................
-------------- ---------- ---------------- --------
Total...........................................
============== ========== ================ ========
</TABLE>
THE ISSUER TRUSTEE
Westpac Securities Administration Limited (the "Issuer Trustee") will act as
trustee under the Trust and, in such capacity, as issuer of the Notes on the
terms set out in the Transaction Documents.
45
<PAGE>
Incorporation
The Issuer Trustee was incorporated on 11th July 1944 as, and continues to
exist and operate as, a limited liability public company under the Corporations
Law of New South Wales, Australia. The Australian Company Number ("ACN") of the
Issuer Trustee is 000 049 472, and its registered office is at Level 36, 60
Margaret Street, Sydney with its principal office at Level 10, 130 Pitt Street,
Sydney.
The Issuer Trustee will issue Notes in its capacity as trustee of the Trust.
Share Capital
The authorized share capital of the Issuer Trustee is A$10,000,000 divided
into 5,000,000 shares of A$2.00 each. The issued share capital of the Issuer
Trustee is 92,000 fully paid shares of A$2.00 each. Those shares are held by
Westpac Financial Services Group Limited (ACN 000 326 312), a wholly owned
subsidiary of Westpac.
Business
The Issuer Trustee is indirectly a wholly owned subsidiary of Westpac and is
dedicated to supporting core bank activities of Westpac by providing trustee and
custody services. The Issuer Trustee currently holds funds under administration
of A$[___] billion in this capacity and has been servicing Westpac and Westpac's
clients since 1944.
The Issuer Trustee is an Authorized Trustee Corporation under Regulation
7.1.01 Schedule 9 of the Corporations Law; is an approved trustee for the
purposes of the Superannuation Industry (Supervision) Act 1993; and holds a
Securities Dealers License No. 11123 under the Corporations Law of New South
Wales, Australia.
The Issuer Trustee has five subsidiaries incorporated in New South Wales.
Experience
Currently, the Issuer Trustee is the trustee for superannuation trusts with
assets exceeding [A$___] billion. In total the Issuer Trustee acts as trustee or
custodian (through its subsidiary company Westpac Custodian Nominees Limited)
for clients with assets exceeding A$69.8 billion.
The Issuer Trustee's experience in trusteeship began in the 1940's. The
Issuer Trustee is associated with leading investment managers and in addition,
the Issuer Trustee's experience with administrators, consultants and industry
specialists complements its capacity to service the diversified requirements of
corporate trust schemes.
The Issuer Trustee's balance sheet for the year ended September 30, 1997
showed Total Shareholder's Equity as A$40.7 million.
Directors
The directors of the Issuer Trustee are as follows:
<TABLE>
<CAPTION>
Name Home Address Principal Activities
- ---- ------------ --------------------
<S> <C> <C>
Martyn John Berry 5 Bimbimbie Place, Bayview, Investment Fund Executive
New South Wales, 2104 Australia
David Matthew Fite 51 Bower Street, Manly, Bank Executive
New South Wales, 2095 Australia
John Charles Lawson 4 Allerton Road, Beecroft, Banker
New South Wales, 2119 Australia
Robert McDonald 46/26 Werona Avenue, Padstow, Finance Executive
New South Wales, 2211 Australia
Michael Anthony Migro 4 Stack Street, Balmain, Manager
New South Wales, 2041 Australia
</TABLE>
46
<PAGE>
Powers
Subject to the Master Trust Deed and the Series Notice, the Issuer Trustee
has all the rights, powers and discretion over and in respect of the Trust
Assets which it could exercise as if it were the beneficial owner of those
assets. These powers include the ability to invest in Authorized Investments, to
issue Notes and to enter into Support Facilities.
The Master Trust Deed expressly permits the Issuer Trustee to appoint the
Servicer to retain custody of the mortgage documents for the Trust in accordance
with the Servicing Agreement, and for the Issuer Trustee to lodge documents with
the Servicer.
Full details of the powers of the Issuer Trustee are set out in the Master
Trust Deed.
Duties
The Issuer Trustee is required to act honestly and in good faith and to
exercise such diligence and prudence as a prudent person of business would
exercise in performing its express functions and in exercising its discretion
under the Master Trust Deed. It must keep each WST trust separate from the
others and do everything necessary to ensure it can comply with its obligations
under the Transaction Documents.
In particular the Issuer Trustee has the duty to maintain a register of
Authorized Investments and to ensure that the Trust Manager keeps accounting
records which correctly record and explain all amounts paid and received by the
Issuer Trustee.
The Issuer Trustee is required to act continuously as trustee of the Trust
until the Trust is terminated as provided by the Master Trust Deed or the Issuer
Trustee has retired or been removed from office in the manner detailed below.
Each Noteholder acknowledges that:
(1) In the absence of fraud, negligence or breach of trust on its part,
the Issuer Trustee shall not be liable personally in the event of
failure to make payments on the Payment Date for payment to any
Noteholder, any Beneficiary, the Trust Manager or any other person or
for any loss howsoever caused in respect of any of the trusts or to
any Noteholder, any Beneficiary, the Trust Manager or any other
person.
(2) The Issuer Trustee acts as trustee only in its capacity as trustee of
the Trust and in no other capacity. Any liability arising under or in
connection with a Transaction Document (including, without limitation,
the Offered Notes) can be enforced against the Issuer Trustee only to
the extent to which it can be satisfied out of property of the Trust
out of which the Issuer Trustee is actually indemnified for the
liability. This limitation of the Issuer Trustee's liability applies
despite any other provision of the Transaction Documents and extends
to all liabilities and obligations of the Issuer Trustee in any way
connected with any representation, warranty, conduct, omission,
agreement or transaction related to the Transaction Documents or the
Trust. The limitation will not apply if there is a reduction in the
Issuer Trustee's indemnification out of trust assets as a result of
the Issuer Trustee's fraud, negligence or breach of trust.
(3) the Issuer Trustee has no duty, and is under no obligation, to
investigate whether a Trust Manager's Default, Servicer Transfer Event
or Title Perfection Event has occurred in relation to the Trust other
than where it has actual notice;
(4) the Issuer Trustee is required to provide the notices referred to in
the Master Trust Deed in respect of a determination of Adverse Effect
only if it is actually aware of the facts giving rise to the Adverse
Effect; and
(5) in making any such determination, the Issuer Trustee will seek and
rely on advice given to it by its advisers in a manner contemplated by
the Master Trust Deed.
The Issuer Trustee is entitled to rely conclusively on, and is not required
to investigate the accuracy of:
(i) the contents of a Sale Notice given to it by an Approved Seller;
(ii) the contents of any report given to it by the Trust Manager or the
Servicer;
(iii) any calculations made by an Approved Seller, a Servicer or the Trust
Manager including the calculation of payments due to, or to be charged
against, the Noteholders;
(iv) the amount of, or allocation of, Collections; or
47
<PAGE>
(v) the contents of any certificate provided to the Issuer Trustee under the
Master Trust Deed or any certificate given by the Trust Manager or the
Servicer,
unless the Issuer Trustee is actually aware to the contrary. The Issuer Trustee
is not liable to any person in any manner whatsoever in respect of these
matters.
The Master Trust Deed also contains other provisions which regulate the
Issuer Trustee's liability to Noteholders, other creditors and any Beneficiary.
The Issuer Trustee is not liable to any person for any losses, costs,
liabilities or expenses arising out of the exercise or non exercise of its
discretion (or by the Trust Manager of its discretion) or for any instructions
or directions given to it by the Trust Manager, the Servicer or either of the
Approved Sellers. The Issuer Trustee is also not liable for any Trust Manager's
Default, Servicer Transfer Event or Title Perfection Event. The Issuer Trustee
is not liable for any act, omission or default of the Servicer in relation to
its custodian duties or its obligations under the Servicing Agreement.
Delegation
In exercising its powers and performing its obligations and duties under the
Master Trust Deed, the Issuer Trustee may, with the approval of the Trust
Manager, delegate any or all of the duties, powers, discretion or other
functions of the Issuer Trustee under the Master Trust Deed or otherwise in
relation to the Trust, to a related company of the Issuer Trustee which is a
trustee company or trustee corporation for the purposes of any State or
Territory legislation governing the operation of trustee companies.
Issuer Trustee Fees and Expenses
The Issuer Trustee is entitled to a quarterly fee (the "Issuer Trustee Fee")
based on the average daily balance of the aggregate Housing Loan principal
during each Collection Period, payable in arrears on the relevant Payment Date.
The Issuer Trustee is entitled to be reimbursed out of the assets of the
Trust for all expenses incurred in connection with the performance of its
obligations in respect of the Trust (other than general overhead costs and
expenses).
Removal of the Issuer Trustee
The Issuer Trustee is required to retire as trustee after a direction from
the Trust Manager following an "Issuer Trustee's Default." An Issuer Trustee's
Default occurs if:
(1) an Insolvency Event has occurred and is continuing in relation to the
Issuer Trustee;
(2) any action is taken by or in relation to the Issuer Trustee which
causes the rating of any Notes to be downgraded;
(3) the Issuer Trustee, or any employee, delegate, agent or officer of the
Issuer Trustee, breaches any obligation or duty imposed on the Issuer
Trustee under the Master Trust Deed or any other Transaction Document in
relation to the Trust where the Trust Manager reasonably believes it may
have an Adverse Effect and the Issuer Trustee fails or neglects after 30
days' notice from the Trust Manager to remedy that breach;
(4) the Issuer Trustee merges or consolidates with another entity without
obtaining the consent of the Trust Manager and ensuring that the resulting
merged or consolidated entity assumes the Issuer Trustee's obligations under
the Transaction Documents; or
(5) there is a change in effective control of the Issuer Trustee from that
subsisting as at the date of the Master Trust Deed unless approved by the
Trust Manager.
Where the Issuer Trustee is removed because of its default, it shall bear
the costs of its removal. The Issuer Trustee indemnifies the Trust Manager and
the Trust for those costs.
On the removal of the Issuer Trustee, the Trust Manager, subject to giving
prior notice to the Rating Agencies, shall be entitled to appoint in writing
some other statutory trustee to be the Issuer Trustee under the Master Trust
Deed provided that appointment will not in the reasonable opinion of the Trust
Manager materially prejudice the interests of Noteholders. Until the appointment
is completed the Trust Manager shall act as Issuer Trustee and will be entitled
to the trustee's fee for the period it so acts as Issuer Trustee.
48
<PAGE>
Voluntary Retirement of the Issuer Trustee
The Issuer Trustee may resign on giving to the Trust Manager (with a copy to
the Rating Agencies) not less than 3 months' notice in writing (or such other
period as the Trust Manager and the Issuer Trustee may agree) of its intention
to do so.
Before retirement, the Issuer Trustee must appoint a successor trustee who
is approved by the Trust Manager, or who may be the Trust Manager, and whose
appointment will not materially prejudice the interests of Noteholders. If a
successor trustee has not been appointed by the end of the 3 months' notice
period the Trust Manager shall act as trustee until a successor trustee is
appointed.
Limitation of Issuer Trustee's Liability
In the absence of fraud, negligence or breach of trust on its part, the
Issuer Trustee shall not be liable personally in the event of failure to pay
moneys on the Payment Date for payment to any Noteholder, any Beneficiary,
the Trust Manager or any other person or for any loss howsoever caused in
respect of any of the trusts or to any Noteholder, any Beneficiary, the Trust
Manager or any other person.
The Issuer Trustee acts as trustee only in its capacity as trustee of the
Trust and in no other capacity. A Noteholder cannot sue the Issuer Trustee
personally except in the case of fraud, negligence or breach of trust on the
part of the Issuer Trustee. Any liability arising under or in connection with a
Transaction Document (including, without limitation, any Offered Note) can be
enforced against the Issuer Trustee only to the extent to which it can be
satisfied out of property of the Trust out of which the Issuer Trustee is
actually indemnified for the liability. This limitation of the Issuer Trustee's
liability applies despite any other provision of the Transaction Documents and
extends to all liabilities and obligations of the Issuer Trustee in any way
connected with any representation, warranty, conduct, omission, agreement or
transaction related to the Transaction Documents or the Trust. The limitation
will not apply if there is a reduction in the Issuer Trustee's indemnification
out of trust assets as a result of the Issuer Trustee's fraud, negligence or
breach of trust.
The Issuer Trustee is also indemnified out of the Trust assets against
certain payments which it may be liable to make under the Consumer Credit
Legislation. Westpac has also indemnified the Issuer Trustee in relation to such
payments and the Issuer Trustee is required to first call on the indemnity from
Westpac.
Rights of Indemnity of Issuer Trustee
Except where the Issuer Trustee fails to exercise due care or is otherwise
disentitled (including, without limitation, because of fraud, negligence or
breach of trust on its part) the Issuer Trustee will be indemnified out of the
Trust Assets against all losses and liabilities incurred by the Issuer Trustee
in properly performing any of its duties or exercising any of its powers under
the Transaction Documents in relation to the Trust.
The description of the Issuer Trustee set forth above has been provided by
the Issuer Trustee; the Issuer Trustee has not, however, been involved in the
preparation of, and does not accept responsibility for, this Prospectus as a
whole.
Limitation of Seller Trustee's Liability and Rights of Indemnity
In the absence of fraud, negligence or breach of trust on its part, the
Seller Trustee shall not be liable personally in the event of failure to pay
moneys on the Payment Date for payment to any Noteholder, any Beneficiary,
the Trust Manager or any other person or for any loss howsoever caused in
respect of any of the trusts or to any Noteholder, any Beneficiary, the Trust
Manager or any other person.
The Seller Trustee acts as Seller Trustee only in its capacity as seller
trustee of the relevant Seller Trust and in no other capacity. A liability
arising under or in connection with a Transaction Document can be enforced
against the Seller Trustee only to the extent to which it can be satisfied out
of property of the relevant Seller Trust out of which the Seller Trustee is
actually indemnified for the liability. This limitation of the Seller Trustee's
liability applies despite any other provision of the Transaction Documents and
extends to all liabilities and obligations of the Seller Trustee in any way
connected with any representation, warranty, conduct, omission, agreement or
transaction related to the Transaction Documents, the Trust or the relevant
Seller Trust. The limitation will not apply if there is a reduction in the
Seller Trustee's indemnification out of trust assets or the relevant Seller
Trust as a result of the Seller Trustee's fraud, negligence or breach of trust.
The Seller Trustee is also indemnified out of the assets of the relevant
Seller Trust against certain payments which it may be liable to make under the
Consumer Credit Legislation. Westpac has also indemnified the Seller Trustee in
relation to such payments and the Seller Trustee is required to first call on
the indemnity from Westpac.
49
<PAGE>
Rights of Indemnity of Seller Trustee
Except where the Seller Trustee fails to exercise due care or is otherwise
disentitled (including, without limitation, because of fraud, negligence or
breach of trust on its part) the Seller Trustee will be indemnified out of
each relevant Seller Trust against all losses and liabilities incurred by the
Seller Trustee in properly performing any of its duties or exercising any of its
powers under the Transaction Documents in relation to the Trust or any Seller
Trust.
The description of the Seller Trustee set forth above has been provided by
the Seller Trustee; the Seller Trustee has not, however, been involved in the
preparation of, and does not accept responsibility for, this Prospectus as a
whole.
ORIGINATOR OF THE HOUSING LOANS
Westpac Banking Corporation ("Westpac") was established from an amalgamation
of the Bank of New South Wales and the Commercial Bank of Australia Limited (the
"CBA") in 1982. The Bank of New South Wales was Australia's first bank and was
established in 1817 to promote the commercial growth of the colony and thus
helped to lay the foundations of Australia's banking system. The CBA was
established in Melbourne, Victoria in 1866 in response to the needs of the
expanding business community, principally brought about by the Victorian gold
rush of the period.
Today Westpac is one of the four major commercial banks in Australia and is
the largest commercial bank in New Zealand. The Westpac Group undertakes a wide
range of banking and financial activities including commercial and investment
banking, personal and small business banking, retail and wholesale funds
management, financial services and finance company operations.
The banking activities of Westpac come under the supervision of the Reserve
Bank of Australia.
Year 2000
The origin of the Year 2000 "millennium bug" problem lies in the way
information in computer systems relating to calendar dates has been stored.
Computer systems, built when data storage was expensive, saved only the last two
digits of a year for date calculations in order to reduce data storage
requirements. These systems are therefore unable to differentiate, for example,
between the years 1900 and 2000. This inability to differentiate between the
different centuries could result in discrepancies such as erroneous interest
rate calculations and inaccurate statement reporting.
In recognition of the seriousness of the problem, work within the Westpac
Group began in 1996 when a Year 2000 project was initiated. The conversion plan
for making the Westpac Group's applications Year 2000 compliant is estimated to
cost A$57 million, of which A$8 million has been spent as of September 30, 1997.
To the maximum extent possible, the project will utilize existing Westpac Group
resources. The objective is that all critical systems are Year 2000 compliant by
September 1998, to allow adequate time for testing and to minimize resource
requirements in later years. Management of Westpac currently estimates that the
balance of the Year 2000 project conversion will be completed by December 1998.
THE SERVICER
General
In 1996, Westpac established a wholly owned subsidiary, TMC of Level 6, 228
Pitt Street, Sydney 2000, Australia, to provide mortgage servicing capability to
both Westpac and to third parties. TMC operates from a new purpose built
servicing center in Adelaide, known as the Mortgage Processing Centre ("MPC").
The MPC employs over 1,000 staff, and processes approximately 1400 new
applications per day.
The MPC performs the following functions for Westpac: application
processing, telephone support, pre-settlement, settlement, post-settlement,
servicing and account maintenance, collections and enforcement and document
custody.
Servicing of Housing Loans
Under the Servicing Agreement, the ongoing servicing of the Housing Loans
will be performed by TMC, as the Servicer at the MPC. Servicing procedures
include responding to customer inquiries, managing and servicing the features
and facilities available under the Housing Loans and the management of
delinquent Housing Loans. The servicing functions performed by the MPC support,
and are supported by, the activities of Westpac's branches, telemarketing and
telebanking centers. In addition, the MPC services housing loans for third
parties.
The Servicer is contractually obligated to administer the Housing Loans in
accordance with (i) the Servicing Agreement; (ii) Westpac's policies, which are
under regular review and may change from time to time in accordance with
business
50
<PAGE>
judgment and changes to legislation and guidelines established by relevant
regulatory bodies; and (iii) to the extent not covered by paragraphs (i) and
(ii), by exercising the degree of diligence and care expected of an
appropriately qualified Servicer of the relevant Housing Loans. See "DESCRIPTION
OF THE SERVICING AGREEMENT."
Document Custody
The Servicer is responsible for custody of the mortgage title documents on
behalf of the Issuer Trustee and has custody of the Relevant Documents in
accordance with the Servicing Agreement. See "DESCRIPTION OF THE SERVICING
AGREEMENT--Document Custody."
Collection and Enforcement Procedures
Borrowers must make the minimum payment due under the terms and conditions
of the Housing Loan on or before the due date for that instalment under the
relevant loan documents. Payments are credited to the Housing Loan on the day of
receipt. Interest is calculated daily and can be charged monthly or when a
payment is made. Any payments not received by the due date will produce a
compounding interest effect.
A Housing Loan is considered delinquent ("Delinquent") whenever the minimum
instalment amount is not met. The collections system inspects all accounts which
are delinquent and records those Housing Loans for action and follow-up.
Borrowers are notified by telephone and/or by mail when their Housing Loan
becomes Delinquent. Housing Loans are allocated to collections officers who take
action depending on the delinquency history, equity in the property and the
ability of the Borrower to meet future installments. Where a Housing Loan that
is Delinquent is subject to a Mortgage Insurance Policy, the relevant Mortgage
Insurer is notified of progress of the Housing Loan and all follow-up actions
are taken by Westpac and the Servicer.
When a housing loan is 10 days delinquent, it is identified in the
Mortgage Servicing System and transferred to the MPC Collections System.
Generally, once a housing loan is 15 days delinquent, a computer generated
letter is sent to the borrower advising of the arrears and requesting that
the borrower make payments so that his account is current. When the account
reaches between 23 and 29 days delinquent, the borrower may be issued a
second letter or contacted by telephone. When the account reaches between 45
and 58 days delinquent, a third letter is generally issued which requests
that the account be made current within 15 days of the date thereof.
Generally, after an account is between 62 and 73 days overdue, a demand for
full arrears is issued. Between 97 and 110 days, if the account continues to
be in arrears, a demand notice will generally be issued to the borrower and
the process of contract enforcement and loss recovery begins. The time
periods specified herein assume the borrower has either taken no action or
has not honored any commitments made in relation to the arrears.
After a default by a borrower a mortgagee can exercise its power of
sale of the mortgaged property. To exercise this power, a mortgagee must
comply with the statutory restrictions of the relevant state or territory as
to notice requirements (see "CERTAIN LEGAL ASPECTS OF THE HOUSING LOANS -
Enforcement of Housing Loans"). The length of time between the decision to
exercise its power of sale and final completion of the sale will be dependent
on factors outside the control of the Servicer, such as whether the relevant
mortgagor contests the sale and the market conditions at the time.
Under some Housing Loans which are subject to a variable rate of interest, a
Borrower may prepay amounts which are additional to their minimum payments to
build up a buffer of funds, which is the difference between the total amount
paid by them and the total of the minimum payments required to have been made by
them. If the Borrower subsequently fails to make some or all of a minimum
payment, the collection system will apply the amount of that buffer of funds
against that missed payment. The relevant Housing Loan will not be considered to
be Delinquent until the total amount of missed payments exceeds the "credit
buffer."
Under a Housing Loan which is charged a variable rate of interest, a
Borrower who is on maternity or paternity leave and who meets specific
eligibility criteria may apply to reduce their monthly home loan repayment by up
to 50% for a maximum of six months. During the reduced repayments period, if the
payment is not sufficient to meet the interest due, the unpaid interest payment
will capitalize on the loan balance and the loan may negatively amortize.
Repayments are adjusted at the end of the parental leave period to ensure that
the loan will be repaid within its original contracted maturity.
The collection and enforcement procedures may change from time to time in
accordance with business judgment and changes to legislation and guidelines
established by the relevant regulatory bodies.
Delinquencies and Mortgagee in Possession with respect to the Securitized
Portfolios
The following tables set forth delinquency and MIP information for each of
the Securitized Portfolios (as defined herein) serviced by the Servicer in its
capacity as Servicer of securitized loans as of December 1997 and March 1998.
"Mortgage in Possession" or "MIP" means a mortgagee in possession of the related
Mortgaged Property who, following an enforcement of the relevant mortgage, is
able to deal with the Mortgaged Property without becoming the absolute owner of
the Mortgaged Property. The portfolios of securitized housing loans (the
"Securitized Portfolios") consist of the Housing Loans relating to the Series
1997-2 WST Trust, Series 1997-3 WST Trust and the Series 1997-4E WST Trust. The
indicated periods of delinquency are based on the number of days past due on a
contractual basis. The information contained in the reports presented through
Reuters which will be sent to investors will be compiled using the same
methodology as that used to compile the information contained in the table
below.
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<PAGE>
Delinquencies and MIP
Series 1997-2 WST Trust
(Dollars in Thousands)
<TABLE>
<CAPTION>
As of As of
December 14, 1997 March 14, 1998
------------------------------------------ -------------------------------------------
Percent Percent
By Percent By By Percent By
By No. Dollar By No. Dollar By No. Dollar By No. Dollar
of Loans Amount of Loans Amount of Loans Amount of Loans Amount
-------- --------- --------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Series 1997-2 Portfolio
Period of Delinquency:
30-59 Days........
60-89 Days........
90 Days or more...
Total Delinquent Loans
Housing Loans in MIP(1)
</TABLE>
- ---------------
(1) Housing Loans in MIP are also included under the heading "Total Delinquent
Loans."
Delinquencies and MIP
Series 1997-3 WST Trust
(Dollars in Thousands)
<TABLE>
<CAPTION>
As of As of
December 31, 1997 March 14, 1998
------------------------------------------ -------------------------------------------
Percent Percent
By Percent By By Percent By
By No. Dollar By No. Dollar By No. Dollar By No. Dollar
of Loans Amount of Loans Amount of Loans Amount of Loans Amount
-------- --------- --------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Series 1997-3 Portfolio
Period of Delinquency:
30-59 Days........
60-89 Days........
90 Days or more...
Total Delinquent Loans
Housing Loans in MIP(1)
</TABLE>
- ---------------
(1) Housing Loans in MIP are also included under the heading "Total Delinquent
Loans."
Delinquencies and MIP
Series 1997-4E WST Trust
(Dollars in Thousands)
<TABLE>
<CAPTION>
As of As of
December 9, 1997 March 7, 1998
------------------------------------------ -------------------------------------------
Percent Percent
By Percent By By Percent By
By No. Dollar By No. Dollar By No. Dollar By No. Dollar
of Loans Amount of Loans Amount of Loans Amount of Loans Amount
-------- --------- --------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Series 1997-4E Portfolio
Period of Delinquency:
30-59 Days........
60-89 Days........
90 Days or more...
Total Delinquent Loans
Housing Loans in MIP(1)
</TABLE>
- ---------------
(1) Housing Loans in MIP are also included under the heading "Total Delinquent
Loans."
As of the date hereof, there have been no gains or losses with respect to
the Securitized Portfolios. Accordingly, no gain/loss tables are presented
herein.
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<PAGE>
It is unlikely that the delinquency experience of the Housing Loans
comprising the Series 1998-1G WST Trust will correspond to the delinquency
experience of the Securitized Portfolios set forth in the foregoing tables. The
statistics shown above represent the delinquency experience for the Securitized
Portfolios only for the periods presented, whereas the aggregate delinquency
experience on the Housing Loans comprising the Securitized Portfolios will
depend on the results obtained over the life of the Securitized Portfolios.
There can be no assurance that the Housing Loans comprising the Series 1998-1G
WST Trust will perform consistently with the delinquency or foreclosure
experience described herein. It should be noted that if the residential real
estate market in Australia should experience an overall decline in property
values, the actual rates of delinquencies and foreclosures could be higher than
those previously experienced by the Servicer with respect to the Securitized
Portfolios. In addition, adverse economic conditions may affect the timely
payment by Borrowers of scheduled payments of principal and interest on the
Housing Loans and, accordingly, the actual rates of delinquencies and
foreclosures with respect to the Series 1998-1G WST Trust.
THE TRUST MANAGER
General
Westpac Securitisation Management Pty Limited (ACN 081 709 211) is appointed
as trust manager (the "Trust Manager" or "WSML") of the Trust on the terms set
out in the Master Trust Deed and the Series Notice. WSML is a wholly owned
indirect subsidiary of Westpac and located at Level 5, 60 Martin Place, Sydney,
NSW 2000, Australia. The subsidiary was formed to provide specialized trust
management services for securitization programs for the Westpac Group.
Incorporation
The Trust Manager was incorporated on February 19, 1998 in the Australian
Capital Territory under the Corporations Law of the Commonwealth of Australia.
Share Capital
The authorized share capital of the Trust Manager is A$100,000,000 shares.
The issued share capital of the Trust Manager is 1 fully paid share of A$1.00.
Such share is held by Westpac Equity Holdings Pty Ltd.
Business
The Trust Manager is a wholly owned indirect subsidiary of Westpac formed to
provide specialized trust management services for securitization programs for
the Westpac Group.
Directors
The directors of the Trust Manager are as follows:
<TABLE>
<CAPTION>
Name Home Address Principal Activities
---- ------------ --------------------
<S> <C> <C>
R. Patrick Handley 3/22 Alpert Street Bank Executive
Edgecliff
New South Wales 2027
Australia
Philip Chronican 86 Cremorne Road Bank Executive
Cremorne Point
New South Wales 2090
Australia
Lewis E. Love, Jr. 160 West End Avenue, Legal Counsel
Apartment 7J
New York, New York 10023
Marten Touw Group Treasurer
Kimberley Gire Head of Group Securitization
</TABLE>
53
<PAGE>
Duties and Role of the Trust Manager
Powers
The Trust Manager will carry out and perform the duties and obligations
contained in the Master Trust Deed and will have full and complete powers of
management of the Trust, including in relation to the conduct of the day to day
operation of the Trust and the administration and servicing of the assets (which
are not serviced by the Servicer), borrowings and other liabilities of the
Trusts. The Issuer Trustee has no duty to supervise the Trust Manager in the
performance of its functions and duties or the exercise of its discretion.
The Trust Manager has the absolute discretion to recommend Authorized
Investments to the Issuer Trustee and direct the Issuer Trustee in relation to
those Authorized Investments. The Issuer Trustee's role is to give effect to all
such recommendations or directions.
Delegation
The Trust Manager may in carrying out and performing its duties and
obligations contained in the Master Trust Deed delegate to Westpac, or any of
the Trust Manager's or Westpac's officers and employees, all acts, matters and
things (whether or not requiring or involving the Trust Manager's judgment or
discretion), or appoint any person to be its attorney, agent, delegate or
sub-contractor for such purposes and with such powers as the Trust Manager
thinks fit.
Trust Manager's Fees and Expenses
The Trust Manager is entitled to a quarterly fee (the "Trust Manager Fee")
on the average daily balance of the aggregate principal balance of Housing Loans
outstanding during the Collection Period payable in arrears on the relevant
Payment Date.
The Trust Manager is entitled to be reimbursed out of the Trust Assets for
all expenses incurred in connection with the performance of its obligations in
respect of the Trust (other than general overhead costs and expenses).
Removal of the Trust Manager
The Trust Manager shall retire as trust manager if so directed by the Issuer
Trustee following a Trust Manager's Default. A "Trust Manager's Default" occurs
if:
(1) the Trust Manager fails to make any payment required by it within the
time period specified in a Transaction Document, and that failure is not
remedied within 10 Business Days of receipt from the Issuer Trustee of
notice of that failure;
(2) an Insolvency Event has occurred and is continuing in relation to
the Trust Manager;
(3) the Trust Manager breaches any obligation or duty imposed on the Trust
Manager under the Master Trust Deed, any other Transaction Document or any
other deed, agreement or arrangement entered into by the Trust Manager under
the Master Trust Deed in relation to the Trust, the Issuer Trustee
reasonably believes that breach has an Adverse Effect and the breach is not
remedied within 30 days' notice being given by the Issuer Trustee (except in
the case of reliance by the Trust Manager on the Servicer); or
(4) a representation, warranty or statement by or on behalf of the Trust
Manager in a Transaction Document or a document provided under or in
connection with a Transaction Document, is not true in a material respect or
is misleading when repeated and is not remedied to the Issuer Trustee's
reasonable satisfaction within 90 days after notice from the Issuer Trustee
where (as determined by the Issuer Trustee) it has an Adverse Effect.
The costs of removal of the Trust Manager after a Trust Manager's Default
shall be borne by the Trust Manager. The Trust Manager has agreed to indemnify
the Issuer Trustee and the Trust for those costs.
On retirement or removal of the Trust Manager, the Issuer Trustee may
appoint another trust manager, provided the appointment will not materially
prejudice the interests of Noteholders. Until a replacement Trust Manager is
appointed, the Trust Manager must continue as Trust Manager. If a replacement
Trust Manager is not appointed within 120 days of the Issuer Trustee electing to
appoint a new Trust Manager, the Issuer Trustee will be the new Trust Manager.
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<PAGE>
Voluntary Retirement of the Trust Manager
The Trust Manager may resign on giving to the Issuer Trustee (with a copy to
the Rating Agencies) not less than 3 months' notice in writing (or such other
period as the Trust Manager and the Issuer Trustee may agree) of its intention
to do so.
Before retirement, the Trust Manager must appoint a successor Trust Manager
who is approved by the Issuer Trustee, or who may be the Issuer Trustee, and
whose appointment will not materially prejudice the interests of Noteholders. If
a successor Trust Manager has not been appointed by the end of the 3 months'
notice period the Issuer Trustee shall act as Trust Manager until a successor
trust manager is appointed.
Limitation of Trust Manager's Liability
The principal limitations on the Trust Manager's liability are set out in
full in the Master Trust Deed. These include the following limitations:
(1) in the absence of fraud, negligence or wilful default on its part or on
the part of any of its officers, employees, agents or delegates, the Trust
Manager shall not be liable personally in the event of failure to pay moneys
on the due date for payment to any Noteholder, any Beneficiary, the Issuer
Trustee or any other person or for any loss howsoever caused in respect of
any of the Trusts or to any Noteholder, any Beneficiary, the Issuer Trustee
or other person;
(2) the Trust Manager will not be personally liable to indemnify the Issuer
Trustee or make any payments to any other person in relation to the Trust
except that there will be no limit on the Trust Manager's liability for any
fraud, negligence or wilful misconduct by it in its capacity as the Trust
Manager of the Trust;
(3) the Trust Manager will be indemnified out of the Trust in respect of any
liability, cost or expense properly incurred by it in its capacity as Trust
Manager of the Trust or so incurred by any of its delegates, sub-delegates
or agents; and
(4) subject to the Master Trust Deed, the Trust Manager is not responsible
for any act, omission, misconduct, mistake, oversight, error of judgment,
forgetfulness or want of prudence on the part of the Issuer Trustee, the
Servicer or any agent appointed by the Issuer Trustee or the Trust Manager
or on whom the Issuer Trustee or the Trust Manager is entitled to rely under
this deed (other than a related company), attorney, banker, receiver,
barrister, solicitor, agent or other person acting as agent or adviser to
the Issuer Trustee or the Trust Manager.
WESTPAC RESIDENTIAL LOAN PROGRAM
Origination of Housing Loans
The primary sources for the origination of housing loans for Westpac are:
the Westpac branch network, mobile finance managers, accredited brokers and
national telemarketing centers. Inquiries are also often generated by
advertising and direct mail campaigns.
The origination process for housing loans is carried out initially within
the appropriate Westpac branch or broker office. The origination process for all
housing loans is completed within the MPC.
Underwriting of Housing Loans
The following is a description of the underwriting processes employed by
Westpac in evaluating whether to fund a particular housing loan. When an
application is received, it is processed in accordance with Westpac's credit
policy and procedures. Credit assessment is undertaken initially using Westpac's
centrally controlled credit scoring system. The scoring system is based on
proprietary information, such as Westpac's own historical credit underwriting
experience and product policy rules. The process also includes a reference from
the Credit Reference Association of Australia. Housing loans passing through the
credit scoring system will either be approved, declined or referred to a credit
specialist. Where a housing loan is referred to a credit specialist, it is
generally because the application is more complex (for example, where the
Housing Loan principal is over A$300,000 or because the application is from a
self-employed individual). An assessment is carried out by either credit
officers within the Credit Unit at the MPC or, in some cases, by State based
Credit Centers, in accordance with designated Westpac credit policy and their
credit approval limits. Each housing loan is considered on its merits within
Westpac's credit policy and procedures.
Central to the approval process is the verification of the information
provided by the applicant(s), valuation of the proposed security property and
confirmation of the ability of the applicant to make payments on the housing
loan. The verification process involves conducting an independent check as to
the accuracy and correctness of the information
55
<PAGE>
provided by the potential Borrower, particularly the documentation provided by
the prospective borrower and the employment and income details of the
prospective borrower. Verification relating to the income of self-employed
applicants involves checking annual accounts and other financial information.
All applicants are required to have a minimum monthly income net of taxes in
excess of all monthly expenditures (including the housing loan being applied
for) with consideration given to likely increases in future interest rates.
Westpac policy requires substantiation of the property value either by
contract of sale or valuation by a registered panel valuer. A valuation of the
security property is required where lender's mortgage insurance is required,
where the Housing Loan Principal is greater than A$250,000 or the LVR is greater
than 80% (although the LVR may be lower if the relevant Mortgaged Property is in
a particular geographic area). Valuations must be performed by registered
valuers who are members of the Australian Institute of Valuers and Land
Economists. In some remote centers, assessment of the security value is
undertaken by the local branch manager. In addition, housing loans may be
secured by more than one property and in such cases the combined values of all
relevant security properties is considered.
Following pre-approval of a housing loan, a terms and conditions letter is
sent to the applicant from the MPC. When Westpac has verified details relating
to the Housing Loan to its satisfaction and acceptance of the loan offer is
received, the housing loan can proceed through to settlement and disbursement.
Once all documentation is completed to Westpac's satisfaction and settlement or
disbursement has occurred, the security documents are stamped and registered. It
is a condition of Westpac's standard mortgage documentation that the mortgagor
must maintain full replacement value property insurance at all times.
Approval policies are under regular review and may change from time to time
in accordance with business judgment and changes to legislation and guidelines
established by the relevant regulatory bodies.
Servicing of Housing Loans
Under the Servicing Agreement, the ongoing servicing of the Housing Loans
will be performed by the Servicer. See "THE SERVICER" and "DESCRIPTION OF THE
SERVICING AGREEMENT."
Housing Loan Products
Westpac originates loans for both owner-occupied and investment housing. The
products within the housing loan portfolio are the following: Premium Option
Home Loan, Premium Option Home Loan with 1 year Guaranteed Rate, Special Offer
Fixed Option Home Loan, First Option Home Loan, Fixed Option Home Loan, Variable
Rate Investment Property Loan, Fixed Rate Investment Property Loan, First Option
Investment Property Loan and Special Fixed Rate Investment Property Loan or any
other similar loan product, however named, with some or all the features
referred to under "Housing Loan Features." During the term of any Housing Loan,
Westpac may from time to time or at the request of the related Borrower change
any of the features of such Housing Loans.
The following provides a general description of some of the Housing Loan
products detailed above. The Housing Loans comprising the Mortgage Pool must
satisfy certain eligibility criteria as specified under "THE TRUST
FUND--Representations and Warranties."
Owner Occupied Home Loans
First Option Home Loans: These loans are low variable rate owner-occupied
home loans for borrowers motivated by price. The product was developed to
compete with products offered by non-bank originators. Additional loan features
(as described below) can be activated on request by the borrower for a fee. The
current maximum term for this product is 25 years, although it may be changed to
30 years in the future.
Premium Option Home Loans: These loans are variable rate owner-occupied home
loans. These loans have a maximum term to maturity of 30 years and a higher rate
of interest than the First Option Home Loan and as a result, borrowers are
allowed access to the various loan features at no or reduced additional cost.
Premium Option Home Loans with 1 Year Guaranteed Rate: These loans have an
introductory discounted fixed rate for 12 months that then converts to a Premium
Option Home Loan. Apart from the introductory fixed rate period, the loan has
the same features as the Premium Option Home Loan.
Special Offer Fixed Option Home Loans: These loans have a fixed rate period
of one or two years that converts to a Premium Option Home Loan. Apart from the
fixed rate period, the loan has the same features as the Premium Option Home
Loan. In 1996, this product was replaced by the Premium Option Home Loan with 1
Year Guaranteed Rate product described above.
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<PAGE>
Fixed Option Home Loans: These loans are fixed rate owner-occupied home
loans. Loan terms are to a maximum of 30 years with a maximum fixed rate term of
10 years. On maturity of the fixed rate term, the loan converts to the Premium
Option Home Loan unless the borrower requests a further fixed rate period.
Certain product features (e.g., redraw) are not available during the fixed rate
period.
Investment Property Loans
An investment property loan is a loan which assists with the purchase or
refinance of residential property for investment purposes such as rental income
or capital gain. The primary security for the loan is a registered first party
first ranking mortgage over residential property.
Investment property loans can be either fixed rate or variable rate loans
with a maximum term of 25 years. The loans may provide for interest only
payments for a maximum term of 5 years and then must convert to required payment
of principal and interest. Loans may have fixed rate terms for up to a maximum
of 10 years which will convert at such time to a variable rate unless the
borrower requests another fixed rate term.
The First Option Investment Property Loan is a low variable rate loan which
is similar to the First Option Home Loan and the Variable Investment Property
Loan is similar to the Premium Option Home Loan, the major difference being the
loan purpose.
Housing Loan Features
General
Housing Loans originated by Westpac may have some or all of the features
described below. In addition, during the term of any Housing Loan, Westpac may
change any of the features of such Housing Loan from time to time at the request
of the related Borrower.
Substitution of Security
A Borrower may apply to substitute a new Mortgage over a residential
property for an existing Mortgage, to add a further Mortgage as security for a
Housing Loan or to release a security property under a Mortgage. Provided that
the application meets certain credit criteria, the Mortgage which secures a loan
may be portable and may be discharged without full repayment of the Housing Loan
provided another acceptable Mortgage is substituted in its place.
Where the substitute property meets the Eligibility Criteria and is
acceptable to the relevant Mortgage Insurer, and settlement on the substitute
property can occur simultaneously with the discharge of the current property,
the Housing Loan will remain in the Mortgage Pool. Where the substitute property
does not meet the Eligibility Criteria or is not acceptable to the Mortgage
Insurer, or the settlement does not occur simultaneously with discharge, the
Housing Loan will be transferred out of the Mortgage Pool for a corresponding
cash payment in the amount of the Unpaid Balance.
Redraw
Certain Housing Loans in the Mortgage Pool which are charged a variable rate
of interest have the benefit of a redraw facility which allows the Borrower to
draw on repayments made in excess of scheduled repayments (a "Redraw").
Borrowers may request a redraw at any time. In certain circumstances, Westpac
has a contractual obligation under the loan document to provide the redraw
should the Borrower be entitled to a redraw because of prepayments and the
Housing Loan is not delinquent.
A Redraw will not result in the Housing Loan being removed from the Mortgage
Pool.
See "DESCRIPTION OF THE OFFERED NOTES--Description of the Redraw Facility,
Redraw Funding Securities and RFS Class A Notes."
Repayment Holiday
The terms of the Mortgage securing a Housing Loan which is charged a
variable rate of interest may provide for a "payment holiday." A payment holiday
can occur where the Borrower has prepaid amounts of principal, creating a buffer
of funds between the current principal balance and the amortization scheduled
balance. In such a case, the Borrower may cease to make payments until the
outstanding balance of the Housing Loan plus unpaid interest equals the balance
of the theoretical amortization schedule. Where the Housing Loan allows for a
"payment holiday", the Housing Loan payment will be taken from the buffer of
funds between the current principal balance and the amortization scheduled
balance at that payment date. If a buffer of funds is available, the system will
recognize this as an installment received. Housing Loans are not considered
Delinquent during a payment holiday and remain in the Mortgage Pool.
57
<PAGE>
Early Repayment
Early repayment and partial prepayment of any Housing Loan is permitted
while such Housing Loan is subject to a variable rate of interest. Housing Loans
which are charged a fixed rate of interest, if repaid within their fixed rate
term, may be subject to an economic break cost or benefit in accordance with the
terms of the Housing Loan. For Housing Loans not regulated by the Consumer
Credit Legislation, an early termination fee may be payable.
Top Up
The loan agreement and/or Mortgage relating to a Housing Loan may allow for
the relevant Borrower to request from Westpac additional funds such that the
resulting principal balance will exceed the amortization scheduled balance at
that time. These are "top ups." Top ups will only be provided by Westpac in
accordance with its then current underwriting and credit policies. Any Housing
Loan subject to a top up will be removed from the Mortgage Pool.
Parental Leave
Under a Housing Loan which is charged a variable rate of interest, any
Borrower who is on maternity or paternity leave and who meets specific
eligibility criteria may apply to reduce the related monthly home loan repayment
by up to 50% of such payment amount for a maximum of six months. During the
reduced repayment period, if the payment is not sufficient to meet the interest
due, the unpaid interest payment will capitalise on the loan balance and the
loan may negatively amortize. Scheduled repayments are adjusted at the end of
the parental leave period to ensure that the loan will be repaid within its
original contracted maturity.
Interest Rate Switching
The interest rate charged on Housing Loans may be either fixed rate or
variable rate. Fixed rate loans will automatically convert to variable rate at
the end of the fixed rate period (as specified in the related loan agreement)
unless the relevant Borrower elects another fixed rate period. Some loans have
an introductory fixed rate of interest which converts to a variable rate of
interest at the end of such introductory period. Some loans allow the Borrower
the option to convert from a variable rate to a fixed rate (or vice versa).
Account Management Facility
A Borrower may elect to have his/her regular salary paid in full into their
Housing Loan account. If this amount exceeds the amortised scheduled balance at
that time, surplus funds are created therein that may be redrawn. This feature
will allow the customer up to five automatic disbursements in each payment cycle
against these surplus funds to other accounts. These disbursements will be
treated as Redraws.
Payment Type
On the Cut-Off Date, the payment types under the Housing Loans will be
interest only or principal, interest and fees ("P & I"). Interest only periods
can be for terms of 1-5 years. At the end of any interest only period, the
payment type under the relevant Housing Loan will convert to P & I payments such
that the scheduled payments will result in the Housing Loan being repaid on an
amortizing schedule within the contractual term of the Housing Loan.
Switching to an Investment or Owner-Occupied Loan
The Borrower may elect to switch the purpose of a Housing Loan from
owner/occupied property finance to investment property finance or vice versa.
Any such switch will not require the relevant Housing Loan to be removed from
the Mortgage Pool. The Borrower is required to notify Westpac of such switch and
the Mortgage Rate with respect to such Housing Loan may be changed accordingly.
Capitalized Fees
Westpac may offer Borrowers the ability to choose certain product features
without paying an up-front fee. Instead, the fee may be capitalized under the
Housing Loan and would constitute part of the principal to be amortized over the
life of the Housing Loan.
Combination Housing Loans
A Borrower may split his/her Housing Loan into different portions which may
(among other things) be subject to different interest rate options. This could
occur, for example, where a Borrower elects to have one part of their Housing
Loan at a fixed rate and the other at a variable rate. Each loan is effectively
a separate loan which operates independently of the other loans in the combined
product and is governed by its own policy and procedures.
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<PAGE>
If a Housing Loan is "split" into more than one loan, any newly created
loans will not form part of the pool. In the event that the original loan is
retained (potentially at a reduced balance) in certain circumstances (e.g., it
satisfies all Eligibility Criteria and does not have any feature that would
require it to be removed from the pool) it will remain in the pool.
Additional Features
Westpac may, in relation to a Housing Loan in the Mortgage Pool, from time
to time seek to offer additional features which are not referred to above.
Before doing so, Westpac must satisfy the Trust Manager that the additional
features would not affect any relevant Mortgage Insurance Policy and would not
cause the rating of any Offered Notes to be downgraded or withdrawn.
THE MORTGAGE INSURANCE POLICIES
Mortgage Insurance Policies - General
On or before the Closing Date, the Mortgage Pool Insurance Policy will be
provided by Housing Loans Insurance Corporation Limited of 31 Market Street,
Sydney NSW 2000, Australia ("HLIC") to the Issuer Trustee to cover losses in
respect of each Housing Loan that is not subject to a PMI Policy. The Mortgage
Pool Insurance Policy generally applies to loans with an LVR of 80% or less at
the Cut-Off Date. The Mortgage Pool Insurance Policy will cover losses up to a
maximum aggregate amount of A$___________.
Each Housing Loan with an LVR of greater than 80% at the time of origination
(or a lower LVR where required by Westpac's standard credit policy) will have
been insured under a PMI Policy issued by SunAlliance and Royal Mortgage
Insurance Limited (ACN 001 825 725) of Level 9, 465 Victoria Avenue, Chatswood
NSW ("SunAlliance"), MGICA Limited (ACN 000 511 017) of Level 23 AMP Centre, 50
Bridge Street, Sydney NSW ("MGICA"), Westpac Lenders Mortgage Insurance Limited
(ACN 074 042 934) of Level 11, 50 Pitt Street, Sydney NSW ("WLMI") or HLIC. Each
Approved Seller will equitably assign its interest in each PMI Policy to the
Issuer Trustee on the Closing Date.
The HLIC Mortgage Pool Insurance Policy
General
The HLIC Mortgage Pool Insurance Policy (the "Mortgage Pool Insurance
Policy") is an insurance policy put in place to cover Housing Loans that were
not insured prior to the Cut-Off Date and which had an LVR of less than or equal
to 80% as of the Cut-Off Date. Under the Mortgage Pool Insurance Policy, HLIC
will insure the Issuer Trustee with effect from the Closing Date for Finance
Charge Losses and Principal Losses in respect of the Housing Loans (other than
those Housing Loans which are individually covered by an HLIC, a SunAlliance,
WLMI or an MGICA Insurance Policy) (see "--Primary Mortgage Insurance Policies"
below).
Period of Cover
The Issuer Trustee has the benefit of the Mortgage Insurance Policy in
respect of each Housing Loan from the date the Housing Loan and the relevant
Mortgage are beneficially assigned to it until the earliest of:
(i) other than with respect to the assignment to the Security Trustee
under the Security Trust Deed, the date the Housing Loan or the
relevant Mortgage is assigned, transferred or mortgaged to a person
other than a person who is or becomes insured under the Mortgage
Pool Insurance Policy;
(ii) the date the Housing Loan is repaid in full;
(iii) the date the Housing Loan ceases to be secured by the relevant
Mortgage (other than in the case where the Mortgage is discharged
by the operation of a compulsory acquisition or sale by a
government for public purposes);
(iv) the maturity date set out in the "Certificate of Insurance" (as
defined in the Mortgage Pool Insurance Policy), or as extended with
the consent of the Mortgage Insurer or as varied by a court under
the Consumer Credit Legislation; and
(v) the date the Mortgage Pool Insurance Policy is cancelled in respect
of the Housing Loan in accordance with the Mortgage Pool Insurance
Policy.
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Cover for Losses
HLIC is obliged to pay to the Issuer Trustee the loss as at the Loss Date
(as defined herein) in respect of a Housing Loan, being the aggregate of:
(i) the principal amount outstanding under such Housing Loan together
with any interest, fees or charges (whether capitalized or not),
that are outstanding at the Loss Date;
(ii) fees and charges paid or incurred by the Issuer Trustee; and
(iii) such other amounts (including fines or penalties) which HLIC
approves in its absolute discretion;
which the Issuer Trustee is entitled to recover under the relevant Housing Loan
contract and Mortgage less deductions including:
(iv) any sale proceeds or compensation for compulsory acquisition of the
Mortgaged Property;
(v) in the event of foreclosure, the value of the Issuer Trustee's
interest in the Mortgaged Property;
(vi) any amount received by the Issuer Trustee under any collateral
security;
(vii) amounts paid to the Issuer Trustee by way of rents, profits or
proceeds in relation to the Mortgaged Property or under any policy
of insurance relating to the Mortgaged Property not applied in
restoration or repair;
(viii) any interest whether capitalized or not that exceeds interest at
the (non-default) interest rate (in accordance with the Consumer
Credit Legislation, if applicable) payable in relation to that
Housing Loan;
(ix) any fees or charges, whether capitalized or not, that are not of a
type, or which exceed certain maximum amounts, as specified in the
Mortgage Pool Insurance Policy;
(x) losses directly arising out of physical damage to the Mortgaged
Property (other than from fair wear and tear or losses recovered
and applied in the restoration or repair of the Mortgaged Property
prior to the Loss Date or which were recovered under a policy of
insurance and applied to reduce the amount outstanding under the
Housing Loan; and
(xi) any amounts by which a claim may be reduced under the Mortgage Pool
Insurance Policy.
"Loss Date" means, in respect of a Mortgage:
(a) where, following an event on or following which the Approved Seller
or the Issuer Trustee's power of sale in relation to the relevant
Mortgaged Property becomes exercisable whether immediately or at
the option of the Approved Seller or the Issuer Trustee or upon the
expiration of any notice or period of time and whether or not the
power of sale only arises if before the expiration of the notice or
period of time the default remains unremedied (a "Mortgage
Default"), the Approved Seller or the Issuer Trustee or a prior
mortgagee in respect of the Mortgaged Property sells the Mortgaged
Property, the date on which the sale is completed;
(b) where, following a Mortgage Default, the Approved Seller or the
Issuer Trustee or a prior mortgagee in respect of the Mortgaged
Property becomes the absolute owner by foreclosure, the date on
which that event occurs;
(c) where, following a Mortgage Default, the Borrower sells the
Mortgaged Property with the prior approval of the Approved Seller,
the Issuer Trustee and HLIC, the date on which the sale is
completed;
(d) where the Mortgaged Property is compulsorily acquired or sold by a
government for public purposes and there is a Mortgage Default (or
where the Mortgage has been discharged by the operation of the
compulsory acquisition or sale and there is a default in repayment
of the loan secured by the Mortgage which would have been a
Mortgage Default but for the occurrence of that event), the date
being the later of the date of the completion of the acquisition or
sale or the date twenty-eight days after the date of the Mortgage
Default; and
(e) where the HLIC has agreed or determined to pay a claim under the
Mortgage Pool Insurance Policy, the date specified in that
agreement or determination.
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If the Consumer Credit Legislation applies to a Mortgage, HLIC's liability
is limited to the amount required to discharge the mortgage under the Consumer
Credit Legislation.
Aggregate Limit
The Mortgage Pool Insurance Policy will be subject to an aggregate limit of
loss of A$_________.
Issuer Trustee's Interest Extinguished
If the Issuer Trustee's interest in a Housing Loan is extinguished in favor
of Westpac as a result of:
(1) a breach of Westpac's representations and warranties in relation
to the Housing Loan which is discovered within 120 days of the
Closing Date (or, in relation to Housing Loans assigned to the Issuer
Trustee from the assets of another Seller Trust, 120 days after the
date on which those Housing Loans were first sold by Westpac to the
Issuer Trustee in its capacity as trustee of other Seller Trusts) and
which breach was not remedied within that period (see "WESTPAC
RESIDENTIAL LOAN PROGRAM--Eligibility Criteria"); or
(2) a repurchase of a Housing Loan in accordance with Westpac's right of
first refusal,
then Westpac will be entitled to the benefit of the Mortgage Pool Insurance
Policy in so far as it applies to that Housing Loan.
Refusal or Reduction in Claim
The amount of a claim may be reduced or cancelled by HLIC in the following
circumstances:
(i) any premium is not paid within twenty-eight days of the due date
therefor;
(ii) The Housing Loan contract for the relevant Mortgaged Property does
not require the Mortgaged Property to be insured under a general
insurance policy;
(iii) there ceases to be a Servicer approved by HLIC to service the
Housing Loans for the Issuer Trustee;
(iv) a claim is not lodged within twenty-eight days of the relevant Loss
Date;
(v) there is any representation or statement (deemed or otherwise) in a
proposal for a Pool Mortgage Insurance Policy that is incorrect or
the duty of disclosure under the Mortgage Pool Insurance Policy is
breached;
(vi) the Issuer Trustee or the Servicer does not comply with the
reporting obligations under the Mortgage Pool Insurance Policy;
(vii) the relevant Mortgage has not been duly registered with the land
titles office in the jurisdiction where the related Mortgaged
Property is located; and
(viii) the Housing Loan contract, the Mortgage or any collateral security
for the relevant Mortgaged Property has not been duly stamped, or
the stamp duty thereon has not been paid, in each relevant
jurisdiction.
Under the Servicing Agreement, the Servicer undertakes to perform (and
indemnifies the Issuer Trustee against) certain obligations of the Issuer
Trustee, including the Issuer Trustee's duties of disclosure and its reporting
obligations under the Mortgage Pool Insurance Policy. See "-Servicer
Undertakings with Respect to Insurance Policies". This arrangement is
acknowledged in the Mortgage Insurance Policy.
Circumstances in which claims under a Mortgage Insurance Policy may be
reduced or cancelled also include the following events occurring in relation to
the Issuer Trustee without the approval of the Mortgage Insurer:
(i) the making of any additional advance (other than Redraws) upon the
security of a Mortgaged Property that ranks for payment ahead of
the Housing Loan;
(ii) materially altering the terms of a Housing Loan contract, any
related Mortgage or any collateral security other than an
alteration made in accordance with the Consumer Credit Legislation;
(iii) allowing its rights to be reduced against the Borrower, the
relevant mortgagor, any mortgage guarantor, any provider of any
collateral security or the Mortgaged Property by compromise,
postponement, partial discharge or otherwise;
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(iv) approving any transfer or assignment of the Mortgaged Property
without full discharge of the Housing Loan;
(v) a violation by the Issuer Trustee of any provision of such Mortgage
Pool Insurance Policy; and
(vi) consenting to a further advance by a prior mortgagee previously
approved by HLIC upon the security of an approved prior mortgage.
Exclusions
The Mortgage Insurance Policy does not cover any loss arising from:
(i) any war or warlike activities;
(ii) nuclear contamination;
(iii) the existence or escape of any pollution or environmentally
hazardous material;
(iv) the fact that the Housing Loan contract, the relevant Mortgage or
any collateral security is void or unenforceable; or
(v) where the Consumer Credit Legislation applies, any failure of the
Housing Loan contract, the relevant Mortgage or any collateral
security to comply with the requirements of the Consumer Credit
Legislation. See "CERTAIN LEGAL ASPECTS OF THE HOUSING LOANS -
Consumer Credit Legislation."
Claims
A claim may only be made under the Mortgage Pool Insurance Policy following
the Loss Date for the relevant Mortgage. If a Housing Loan has been in
default for at least 6 months HLIC may in its absolute discretion pay the claim
for the loss even if the Loss Date has not occurred. Claims are payable within
14 days of receipt by HLIC of the completed claim form.
HLIC may, as a condition to payment of a claim, require an assignment to it
by the Issuer Trustee of rights against the Borrower or any mortgagor or require
the Issuer Trustee to take action, or empower HLIC, in relation to the relevant
Housing Loan or related Mortgage.
Variations
HLIC may not vary the Mortgage Insurance Policy for any Housing Loan except
where the variation is generally applied to all insured customers of the same
type in relation to the same type of insurance and where the variation is
necessitated to ensure that, as a consequence of a change in law after the date
of the Mortgage Insurance Policy, HLIC is not in breach of the law.
Housing Loan Insurance Corporation Ltd (HLIC Ltd)
HLIC was established in 1965 by the Commonwealth Government of Australia
("Government") and is Australia's leading lenders' mortgage insurer ("LMI") with
approximately 50% of the Australian LMI market. In December 1997, the Government
sold HLIC to GE Capital Australia ("GECA") which is a wholly owned subsidiary of
GE Capital Services Inc.
GE is a diversified industrial and financial services company with
operations in over 100 countries. It is rated AAA by Standard & Poor's, Aaa by
Moody's and AAA by Fitch IBCA. It has significant LMI business around the world,
operating in the United States, United Kingdom, Canada and now Australia and has
over US$165 billion of loans insured globally.
HLIC has been given a AAA claims paying rating in its own right by Standard
& Poor's and a Aa1 rating by Moody's. Loans insured prior to the sale to GECA
will also have the benefit of a guarantee by the Government. That proportion
that has the benefit of the Government guarantee is $_____ as of the Cut-Off
Date.
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Primary Mortgage Insurance Policies
General
Each Borrower under a Housing Loan which had an LVR of greater than 80% at
the date of origination (or a lower LVR where required by Westpac's standard
credit policy) was required to effect a mortgage insurance policy with either
SunAlliance, MGICA, WLMI or HLIC (a "PMI Policy"). Westpac is required to
equitably assign its interest in each Primary Mortgage Insurance Policy to the
Issuer Trustee on the Closing Date. The consent of SunAlliance, MGICA, WLMI and
HLIC is required for the assignment of the relevant Mortgages and the Primary
Mortgage Insurance Policies, and for the Servicer servicing the insured Housing
Loans. Westpac must ensure that these consents are obtained on or prior to the
Closing Date.
Where a provision of the HLIC PMI Policy is inconsistent with the HLIC
Mortgage Pool Insurance Policy, the provision in the HLIC Mortgage Pool
Insurance Policy will be taken to apply to the HLIC PMI Policy.
The HLIC Mortgage Pool Insurance Policy provides for the assignment to the
Trust of any HLIC PMI Policy.
Restrictions and Cancellation
The amount recoverable under each PMI Policy will generally be the amount
owing in relation to the relevant Mortgage (including unpaid principal, accrued
interest at any non-default rate, proper tax and reasonable enforcement costs
(subject in certain instances to insurer's consent)) less all amounts recovered
from enforcement of the Mortgage. However, there are a number of requirements
and restrictions imposed on the insured under each PMI Policy which may entitle
the Mortgage Insurer to cancel the PMI Policy or reduce the amount of a claim;
including:
(1) the existence of an encumbrance or other interest which affects or has
priority over the Mortgage;
(2) the relevant Mortgage, or a guarantee or indemnity relating to the
Mortgage, ceasing to be effective;
(3) that there is a material omission or misstatement by the insured in
relation to the Primary Mortgage Insurance Policy;
(4) that any premium is not paid within the relevant grace period (if any);
(5) termination by the insurer upon the giving of a set period of notice;
(6) a breach by the insured of the PMI Policy; and
(7) certain circumstances which affect the insured's rights or recoveries
under the relevant Housing Loan or Mortgage.
Each PMI Policy has different provisions. The above is a summary of certain
provisions -- some may not relate to, or may differ from, a particular PMI
Policy.
Servicer Undertakings with Respect to Insurance Policies
Under the Servicing Agreement, the Servicer undertakes to:
(1) act in accordance with the terms of any Mortgage Insurance Policy;
(2) not do anything that would prejudicially affect the rights of the
Issuer Trustee under a Mortgage Insurance Policy; and
(3) promptly make claims and notify the Trust Manager when claims are made.
Description of SunAlliance, MGICA and WLMI
The Royal SunAlliance Group entered into the lenders mortgage insurance
market in Australia in 1989. Since then SunAlliance's Mortgage Insurance
Division has displayed solid growth and operates as one of the major divisions
of the Royal and SunAlliance Group. SunAlliance is a subsidiary of Royal and
SunAlliance Insurance Australia Limited, which is one of the five largest
insurers in Australia with premium revenue of some A$1.1 billion, assets in
excess of A$1.8 billion and a net asset position at December 31, 1997 of over
A$373 million. Royal & Sun Alliance Lenders Mortgage Insurance Ltd ("RSALMI") is
rated AA- by Standard & Poor's, and is owned by the Sun Alliance group. Under a
deed of indemnity, RSALMI is explicitly indemnified for past, present and future
obligations arising from insurance contracts
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net of reinsurance by the Australian holding company for the group, Sun Alliance
and Royal Insurance Australia Holdings Ltd. The business address of SunAlliance
is Level 9, 465 Victoria Avenue, Chatswood, New South Wales, Australia.
MGICA has been operating in the Australian housing market since 1965 and is
a specialist insurer of residential mortgage loans. MGICA is owned and
explicitly supported by, Australian Mutual Provident Society ("AMP"),
Australia's largest insurance company rated AAA by Standard & Poor's and Aa2 by
Moody's. MGICA is rated AA- by Standard & Poor's and A1 by Moody's for its
claims paying ability. MGICA is strongly capitalized after receiving an
injection of A$50mm of capital from its parent, AMP, in 1995. Moody's indicates
the geographic diversity of MGICA's insurance risk profile is good and
underwriting standards are considered appropriately conservative. The business
address of MGICA is Level 23 AMP Centre, 50 Bridge Street, Sydney, New South
Wales, Australia.
WLMI is an unrated insurance company authorized under the Insurance Act 1973
to carry on insurance business in Australia. WLMI is a wholly owned subsidiary
of Westpac Insurance Services (Brokers) Limited. The ultimate parent entity is
Westpac Banking Corporation. Under a Management Agreement and Quota Share
Reinsurance Agreement between WLMI and Royal and SunAlliance Mortgage Insurance
Limited both dated August 27, 1996 SunAlliance agrees to provide management and
administration services to WLMI and accepts 65% of the obligation on each and
every policy issued by WLMI. WLMI retains the remaining 35% of the obligation.
Under a Deed of Guarantee, SunAlliance will unconditionally and irrevocably
guarantee the obligations of WLMI arising under policies issued by WLMI prior to
the termination of the deed, and to the extent that those obligations are not
recovered or met by contracts of reinsurance. The business address of WLMI is 50
Pitt Street, Sydney, New South Wales, Australia.
PREPAYMENT AND YIELD CONSIDERATIONS
The following information is given solely to illustrate the effect of
prepayments of the Housing Loans on the weighted average life of the Offered
Notes under the stated assumptions and is not a prediction of the prepayment
rate that might actually be experienced by the Housing Loans.
General
The rate of principal payments on the Offered Notes, the aggregate amount of
distributions on the Offered Notes and the yield to maturity of the Offered
Notes will be related to the rate and timing of payments of principal on the
Housing Loans. The rate of principal payments on the Housing Loans will in turn
be affected by the amortization schedules of the Housing Loans and by the rate
of principal prepayments (including for this purpose prepayments resulting from
refinancing, liquidations of the Housing Loans due to defaults, casualties,
condemnations and repurchases by an Approved Seller). The Housing Loans may be
prepaid by the Mortgagors at any time (subject, in the case of fixed rate
Housing Loans, to the payment of any applicable fees).
Prepayments
Prepayments, liquidations and purchases of the Housing Loans (including
optional purchase of the remaining Housing Loans in connection with the
termination of the Trust) will result in distributions on the Offered Notes of
principal amounts which would otherwise be distributed over the remaining terms
of such Housing Loans. Since the rate of payment of principal of the Housing
Loans will depend on future events and a variety of factors, no assurance can be
given as to such rate or the rate of principal prepayments. The extent to which
the yield to maturity of any Offered Note may vary from the anticipated yield
will depend upon the degree to which a Note is purchased at a discount or
premium, and the degree to which the timing of payments thereon is sensitive to
prepayments, liquidations and purchases of such Housing Loans. The rate of
prepayment on the Housing Loans cannot be predicted. The prepayment experience
of the Trust with respect to the Housing Loans may be affected by a wide variety
of factors, including economic conditions, prevailing interest rate levels, the
availability of alternative financing and homeowner mobility.
As with obligations generally, the rate of prepayment on the Mortgage Pool
is affected by prevailing market rates for Housing Loans of a comparable term
and risk level. When the market interest rate is below the interest rate on the
Housing Loan, Borrowers may have an increased incentive to refinance their
Housing Loans. Depending on prevailing market rates, the future outlook for
market rates and economic conditions generally, some Borrowers may sell or
refinance Mortgaged Properties in order to realize their equity in the Mortgaged
Properties, to meet cash flow needs or to make other investments.
Weighted Average Lives
Generally, greater than anticipated prepayments of principal will increase
the yield on Offered Notes purchased at a price less than par and will decrease
the yield on Offered Notes purchased at a price greater than par. The effect on
an investor's yield due to principal prepayments on the Housing Loans occurring
at a rate that is faster (or slower) than the rate anticipated by the investor
in the period immediately following the issuance of the Notes will not be
entirely offset by
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a subsequent like reduction (or increase) in the rate of principal payments. The
weighted average life of the Offered Notes will also be affected by the amount
and timing of delinquencies and defaults on the Housing Loans and the
recoveries, if any, on defaulted Housing Loans and foreclosed properties.
The "weighted average life" of a Note refers to the average amount of time
that will elapse from the date of issuance of the Note to the date each dollar
in respect of principal repayable under such Note is reduced to zero. The
weighted average life of the Offered Notes will be influenced by, among other
factors, the rate at which principal payments are made on the Housing Loans.
The following tables are based on a constant prepayment rate model ("CPR" or
the "Prepayment Model"). CPR represents an assumed constant rate of prepayment
each month, expressed as a per annum percentage of the principal balance of the
pool of mortgage loans for that month. CPR does not purport to be a historical
description of prepayment experience or a prediction of the anticipated rate of
prepayment of any pool of housing loans, including the Housing Loans. The
Prepayment Model does not purport to be a historical description of prepayment
experience or a prediction of the anticipated rate of prepayment of any pool of
mortgage loans, including the Housing Loans. None of the Approved Sellers, the
Trust Manager nor the Issuer Trustee believes that any existing statistics of
which it is aware provide a reliable basis for holders of Offered Notes to
predict the amount or the timing of receipt of prepayments on the Housing Loans.
Since the following table was prepared on the basis of the assumptions in
the following paragraph, there are discrepancies between characteristics of the
actual Housing Loans and the characteristics of the Housing Loans assumed in
preparing the tables. Any such discrepancy may have an effect upon the
percentages of the principal balances outstanding and weighted average lives of
the Offered Notes set forth in the tables. In addition, since the actual Housing
Loans in the Trust have characteristics which differ from those assumed in
preparing the tables set forth below, the distributions of principal on the
Offered Notes may be made earlier or later than as indicated in the tables.
For the purpose of the tables below, it is assumed that: (i) the Housing
Loans consist of level pay loans, (ii) the Closing Date for the Offered Notes is
June __, 1998, (iii) payments on the Offered Notes are made on the 19th day of
each Quarter regardless of the day on which the Payment Date actually occurs,
commencing in July 1998 and are made in accordance with the priorities described
herein, (iv) the scheduled monthly payments of principal and interest on the
Housing Loans will be timely delivered on the first day of each month commencing
in July 1998 (with no defaults), (v) the Housing Loans' prepayment rates are a
multiple of the Prepayment Model, (vi) all prepayments are prepayments in full
received on the last day of each month and include 30 days' interest thereon,
(vii) no optional termination is exercised and (viii) the Offered Notes have the
Interest Rate and initial principal balances set forth herein. The preceding
clauses are the assumptions used in preparing the following tables and are not
necessarily expected to be predictive of the Mortgage Pool's actual performance.
It is not likely that the Housing Loans will prepay at any constant
percentage of the Prepayment Model to maturity or that all Housing Loans will
prepay at the same rate. In addition, the diverse remaining terms to maturity of
the Housing Loans (which include recently originated Housing Loans) could
produce slower distributions of principal than as indicated in the tables at the
various percentages of the Prepayment Model specified even if the weighted
average remaining term to maturity of the Housing Loans is the same as the
weighted average remaining term to maturity of the assumptions described above.
Investors are urged to make their investment decisions on a basis that includes
their determination as to anticipated prepayment rates under a variety of the
assumptions discussed herein as well as other relevant assumptions.
Percent of Original Invested Amount Outstanding
at the Following Percentages of CPR(1)
<TABLE>
<CAPTION>
Class A Notes: US$
-------------------------------------------
Date 0% % % % % %
---- --- --- --- --- --- ---
<S> <C> <C> <C> <C> <C> <C>
Initial Percent................... 100 100 100 100 100 100
June 1999.........................
June 2000.........................
June 2001.........................
June 2002.........................
Weighted Average Life(2) --
To Maturity (Years)...........
To Call (Years)...............
</TABLE>
(1) The percentages in this table have been rounded to the nearest whole number.
(2) The weighted average life of a Class is determined by (a) multiplying the
amount of each payment of principal thereof by the number of years from the
date of issuance to the related Payment Date, (b) summing the results and
(c) dividing the sum by the aggregate distributions of principal referred to
in clause (a) and rounding to one decimal place.
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Percent of Original Invested Amount Outstanding
at the Following Percentages of CPR(1)
<TABLE>
<CAPTION>
Class B Notes: $
------------------------------------------------------------------------------------------------
Date 0% % % % % %
---- --- -- -- -- -- --
<S> <C> <C> <C> <C> <C> <C>
Initial Percent................... 100 100 100 100 100 100
June 1999.........................
June 2000.........................
June 2001.........................
June 2002.........................
Weighted Average Life(2) --
To Maturity (Years)...........
To Call (Years)...............
</TABLE>
(1) The percentages in this table have been rounded to the nearest whole number.
(2) The weighted average life of a Class is determined by (a) multiplying the
amount of each payment of principal thereof by the number of years from the
date of issuance to the related Payment Date, (b) summing the results and
(c) dividing the sum by the aggregate distributions of principal referred to
in clause (a) and rounding to one decimal place.
DESCRIPTION OF THE OFFERED NOTES
General
The Notes will be issued pursuant to the terms of the Transaction Documents.
The following section contains summaries of the basic terms of the Transaction
Documents. The summaries do not purport to be complete and are qualified in
their entirety by reference to the provisions of the Transaction Documents. A
copy of the Master Trust Deed, and a form of each of the Series Notice, the Note
Trust Deed and the Security Trust Deed has been filed with the Commission as an
Exhibit to the Registration Statement of which this Prospectus is a part.
Pursuant to the Transaction Documents, on the Closing Date the Issuer
Trustee will issue two classes of notes (the "Offered Notes"), consisting of
one class of senior notes, designated as the Class A Mortgage Backed Floating
Rate Notes due May 8, 2029, in the original principal amount of US$[ ] (the
"Class A Notes") and one class of subordinated notes, designated as the Class
B Mortgage Backed Floating Rate Notes, due May 8, 2029, in the original
principal amount of US$[ ] (the "Class B Notes"). In addition to the Class
A Notes and the Class B Notes, the Issuer Trustee may from time to time issue
RFSs, which may convert to RFS Class A Notes in certain circumstances. The
Offered Notes, the RFSs and the RFS Class A Notes are referred to herein as
the "Notes." See "--Description of the Redraw Facility, the Redraw Funding
Securities and the RFS Class A Notes" herein.
Payments on the Notes will be made by the Note Trustee on each Payment Date
to persons in whose names the Notes are registered as of the related Record Date
(the "Holders" or "Noteholders"). The Payment Date for the Notes will be the
19th day of each Quarter. A "Quarter" is each three-month period in a year which
period begins on July 1, October 1, January 1 and April 1. If any Payment Date
would otherwise fall on a day which is not a Business Day, it shall be postponed
to the next day which is a Business Day unless it would thereby fall into the
next calendar month in which event it shall be brought forward to the
immediately preceding Business Day. The first Payment Date will be July 19, 1998
in respect of the period from (and including) the Closing Date to (but
excluding) that date. The Record Date for any Payment Date will be the second
Business Day immediately preceding the Payment Date (so long as the Notes are
held in book-entry form), or the last day of the prior calendar month (if
Definitive Notes have been issued).
A "Business Day" means (1) in relation to the Note Trust Deed, the Agency
Agreement and any Note, any day, other than a Saturday, Sunday or public
holiday, on which banks are open for business in Sydney, [London] and New York
City; and (2) in relation to any other Transaction Document, any day, other than
a Saturday, Sunday or public holiday, on which Banks are open for business in
Sydney. If a public holiday is occurring in any of the referenced locales, then
such day is not a Business Day, and no scheduled payments will be made on such
day.
A "Collection Period" commences on and includes the 10th day of each Quarter
and runs until (and includes) the 9th day of the following Quarter with the
exception of the first Collection Period, which will commence on (and include)
the day after the Cut-Off Date and end on (and include) July 9, 1998.
The first Interest Period in relation to the Notes commences on (and
includes) the Closing Date and ends on (but excludes) the first Payment Date
(being July 19, 1998). Each succeeding Interest Period, commences on (and
includes)
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a Payment Date and ends on (but excludes) the next Payment Date. The final
Interest Period ends on (but excludes) the Maturity Date.
For any Interest Period other than the initial Interest Period, the
"Interest Determination Date" is the second Business Day prior to the
commencement of that Interest Period. The initial Interest Determination Date is
- -------------, 1998. The "Collection Determination Date" is four Business Days
prior to each Payment Date.
Each Class of Offered Notes initially will be represented by one or more
global notes (the "Book-Entry Notes") registered in the name of the nominee of
DTC (together with any successor depository selected by the Note Trustee, the
"Depository"), except as set forth below. Beneficial interests in each Class of
Offered Notes will be available for purchase in minimum denominations of
US$100,000. The Issuer Trustee has been informed by DTC that DTC's nominee will
be Cede & Co. Accordingly, Cede & Co. is expected to be the Noteholder of record
of the Offered Notes. Unless and until Definitive Notes are issued under the
limited circumstances described herein, no Note Owner (as defined herein)
acquiring an interest in any Class of Offered Notes will be entitled to receive
a certificate representing such Note Owner's interest in such Notes. Until such
time, all references herein to actions by Noteholders of any Class of Offered
Notes will refer to actions taken by the Depository upon instructions from its
participating organizations and all references herein to distributions, notices,
reports and statements to Noteholders of any Class of Offered Notes will refer
to distributions, notices, reports and statements to the Depository or its
nominee, as the registered Noteholder of such Class, for distribution to Note
Owners of such Class in accordance with the Depository's procedures. See
"--Book-Entry Registration" and "--Definitive Notes."
The Issuer Trustee will maintain a Paying Agent in London until the
date the Notes are redeemed.
Collections and Payment
With respect to each Collection Period and on or prior to the Collection
Determination Date, the Trust Manager will determine the Collections (as defined
below) received and reconcile the receipts against expenses, including Interest
payable to Noteholders, that have accrued during such Collection Period. To the
extent necessary, the Trust Manager must direct the Issuer Trustee to draw on or
claim against the Liquidity Facility where available to make up shortfalls in
Collections due but not received. Various amounts will also be swapped under the
Swap Agreements.
On the Collection Determination Date, the Trust Manager shall advise the
Issuer Trustee of the amounts to be paid. The Issuer Trustee will arrange for
the relevant payments to occur on the Payment Date.
Set out below is an example of relevant dates and periods for the allocation
of cashflows and their payments. All dates are assumed to be Business Days.
<TABLE>
<S> <C>
Collection Period 10th April to (and including) 9th July
Collection Determination Date 15th July
Remittance Date 17th July
Interest Determination Date 17th April
Notice Date 18th July
Payment Date/Rate Set Date 19th July
Interest Period 19th April to (but excluding) 19th July
</TABLE>
Collections
With respect to any Collection Period, "Collections" shall consist of
interest and principal receipts from the Housing Loans, the proceeds of
enforcement of Mortgages, the proceeds of claims under Mortgage Insurance
Policies and payments by the Approved Sellers or the Servicer in respect of
breaches of representations or warranties with respect to the Housing Loans.
Westpac or the Servicer, as a delegate of Westpac under the Servicing Agreement,
will receive the Collections in respect of the Housing Loans in the Mortgage
Pool.
So long as both (a) Westpac has a short term rating of at least A-1+
from Standard & Poor's, P-1 from Moody's and _________ from Fitch and (b) the
Collections Account is maintained with Westpac or a subsidiary or Westpac,
each of Westpac and the Servicer shall deposit the amount equal to the
Collections it receives during the related Collection Period into the
relevant Collections Account two Business Days prior to the relevant Payment
Date (the "Remittance Date") together with an amount equivalent to the
interest that would have accrued at the Bank Bill Rate on such amounts if
they had been deposited into the Collections Account five Business Days
following receipt by it (less any relevant tax).
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If Westpac has a short term rating of less than A-1+ from Standard &
Poor's, less than P-1 from Moody's and less than ------ from Fitch, then
Westpac and the Servicer shall pay all Collections in its possession or
control into the Collections Account no later than five Business Days
following receipt. Notwithstanding the foregoing, the Collections Account may
continue to be maintained with Westpac.
If, however, the Collections Account is not maintained with Westpac, or a
subsidiary of Westpac, all Collections in relation to the Trust must be
deposited into the Collections Account no later than two Business Days following
receipt of them by Westpac or the Servicer (as the case may be).
Calculation of Total Available Funds
On each Collection Determination Date the Trust Manager will, for the
immediately preceding Collection Period, calculate the total of the Available
Income, plus Principal Draws, plus Liquidity Draws (the sum of such amounts,
(the "Total Available Funds")), all as further described below.
Available Income
"Available Income" for a Collection Period equals the aggregate of:
(1) Finance Charge Collections plus
to the extent not included in paragraph (1):
(2) any amount received or due to be received by or on behalf of the Issuer
Trustee with respect to net receipts under any Swap Agreement (other than the
Currency Swap);
(3) any amount received by or on behalf of the Issuer Trustee under any
Support Facility (other than the Currency Swap), including under a Mortgage
Insurance Policy, which the Trust Manager determines should be accounted for in
respect of a Finance Charge Loss;
(4) any interest income received by or on behalf of the Issuer Trustee in
respect of moneys credited to the Collections Account in relation to the Trust;
(5) amounts in the nature of interest otherwise paid by Westpac, the
Servicer or the Trust Manager to the Issuer Trustee in respect of Collections
held by it;
(6) any net amount attributable to income from another WST trust established
under the Master Trust Deed with respect to the substitution of a Housing Loan
("Substitution Net Transfer Amount "Income"); and
(7) all other amounts received by or on behalf of the Issuer Trustee in
respect of the Trust assets in the nature of income,
excluding
(8) any interest credited to a Collateral Account for a Support Facility;
and
(9) any amount received by the Issuer Trustee on entry into a replacement
Currency Swap which is payable prior to the prior Currency Swap Provider.
"Finance Charge Collections" shall equal:
(1) all amounts received by or on behalf of the Issuer Trustee in respect of
interest, fees and other income payable under Housing Loans in the Mortgage
Pool, including:
(i) amounts on account of interest recovered from the
enforcement of a Housing Loan;
(ii) any payments by Westpac to the Issuer Trustee on the
repurchase of a Housing Loan which are attributable to interest;
(iii) any interest adjustments received by the Trust in
relation to the transfer of Housing Loans or related Mortgages from the
Trust to another WST trust; and
(iv) the Prepayment Cost Surplus for that Collection Period
(if any); and
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(2) all amounts in respect of interest, fees and other amounts in the nature
of income, received by or on behalf of the Issuer Trustee during that Collection
Period including:
(i) from an Approved Seller or the Servicer in respect of any
breach of a representation, warranty or undertaking contained in the Master
Trust Deed, Servicing Agreement or Series Notice;
(ii) from an Approved Seller or the Servicer under any obligation
under the Master Trust Deed, Servicing Agreement or Series Notice to
indemnify or reimburse or pay damages to the Issuer Trustee for any amount,
in each case which are determined by the Trust Manager to be in respect of
interest; and
(3) any amount received in respect of a Housing Loan in the Mortgage Pool,
or a related Mortgage, after a Finance Charge Loss has occurred, which has not
been received under a Mortgage Insurance Policy and which is not payable to an
insurer under a Mortgage Insurance Policy; less
(4) any amount debited in respect of the Housing Loans in the Mortgage Pool
representing government charges collected by or on behalf of the Issuer Trustee,
financial institutions duty, bank accounts debit tax or similar taxes and fees
or charges due to the Servicer or Westpac under the Housing Loans and the
Prepayment Cost Surplus due to Westpac and collected by Westpac or the Servicer.
With respect to any Housing Loan, a "Finance Charge Loss" means Liquidation
Losses which are attributable to interest, fees and expenses in relation to the
relevant Housing Loan including on the early discharge of Housing Loans which
bear a fixed rate of interest (other than a Housing Loan subject to a
concessional rate of interest for 12 months or less) the amount, if any, owed by
the relevant Borrower in accordance with the Relevant Documents. With respect to
any Housing Loan, "Liquidation Losses" for a Collection Period, means the amount
(if any) by which the Unpaid Balance of a Housing Loan (together with the
enforcement expenses relating to the Housing Loan and the related Mortgage)
exceeds the Liquidation Proceeds in relation to the Housing Loan. "Liquidation
Proceeds" means all amounts recovered from the enforcement of a Mortgage
(excluding proceeds of a Mortgage Insurance Policy).
With respect to any Housing Loan, a "Prepayment Cost Surplus" means, in
relation to a Collection Period, the amount by which the total of all Prepayment
Costs (as defined below) for that Collection Period exceeds the total of all
Prepayment Benefits for that Collection Period. With respect to any Housing
Loan, a "Prepayment Benefit Shortfall" means, in relation to a Collection
Period, the amount by which the total of all Prepayment Benefits for that
Collection Period exceeds the total of all Prepayment Costs for that Collection
Period.
With respect to any Housing Loan which is a Fixed Option Home Loan or
otherwise bears a fixed rate of interest (other than a Housing Loan subject to
an introductory rate of interest for 12 months or less), "Prepayment Cost"
means, on the early discharge of such Housing Loan, the amount (if any) owed by
the relevant Borrower and collected by Westpac or the Servicer, in accordance
with the relevant Housing Loan agreement with respect to such early discharge.
With respect to any Housing Loan which is a Fixed Option Home Loan or otherwise
bears a fixed rate of interest (other than a Housing Loan subject to an
introductory rate of interest for 12 months or less), a "Prepayment Benefit"
means, on the early discharge of such Housing Loan, the amount (if any) credited
to the relevant Borrower's loan account by Westpac by means of a reduction in
the Housing Loan Principal of that Housing Loan, in accordance with the relevant
Housing Loan agreement.
With respect to a Collection Period and any Housing Loan, "Principal Loss"
means the amount of any Liquidation Loss for that Collection Period which is
attributable to principal in relation to the relevant Housing Loan.
Principal Draws
If the Trust Manager determines on any Collection Determination Date that
the Available Income of the Trust for the Collection Period ending immediately
prior to that Collection Determination Date is insufficient to meet Total
Payments (as defined herein under "--Remaining Liquidity Shortfall") of the
Trust for that Collection Period (a "Payment Shortfall"), then Principal
Collections collected during that Collection Period will be applied to the
Payment Shortfall (a "Principal Draw") to the extent available for this purpose.
Principal Draws will be reimbursed out of any Excess Available Income
available for this purpose on subsequent Payment Dates.
Liquidity Draws
If, on any Collection Determination Date, the Trust Manager determines that
the related Payment Shortfall, if any, will not be covered fully by a Principal
Draw, the Trust Manager must direct the Issuer Trustee to draw on the Liquidity
Facility in an amount equal to the lesser of the remaining Payment Shortfall or
the Available Liquidity Amount. Any
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direction by the Trust Manager to the Issuer Trustee to draw on the Liquidity
Facility is subject to there being available funds under the Liquidity Facility.
Remaining Liquidity Shortfall
If the amount available to be drawn under the Liquidity Facility is not
sufficient to satisfy the remaining Payment Shortfall in full, the amount of
such shortfall will be a "Remaining Liquidity Shortfall." If the Trust Manager
determines that a Remaining Liquidity Shortfall exists, then the Trust Manager
must reduce the Interest payable in respect of the Notes as follows:
(1) first, reduce the A$ Class B Interest Amount payable to the Currency
Swap Provider under the swap confirmation relating to the Class B Notes;
(2) second, if the A$ Class B Interest Amount has been reduced to zero, any
excess Remaining Liquidity Shortfall shall reduce pro rata, based on their
applicable entitlements:
(i) the A$ Class A Interest Amount payable to the Currency Swap
Provider under the swap confirmation relating to the Class A Notes;
(ii) the RFS Interest for all RFSs (if any);
(iii) interest payable for all RFS Class A Notes (if any); and
(iv) any fee payable by the Issuer Trustee under the Redraw Facility.
If there is a reduction in the A$ Class B Interest Amount under (1) above,
the Interest entitlement of the Class B Noteholders shall be reduced by the same
proportion as the reduction in the A$ Class B Interest Amount. If there is a
reduction in the A$ Class A Interest Amount under (2)(i) above, the Interest
entitlement of the Class A Noteholders shall be reduced by the same proportion
as the reduction in the A$ Class A Interest Amount.
With respect to any Payment Date, the "A$ Class A Interest Amount" means the
amount in A$ which is calculated:
(1) on a daily basis at the applicable rate set out in the swap confirmation
relating to the Class A Notes (being AUD- BBR-BBSW, as defined in the ISDA
Definitions, as at the first day of the Interest Period ending on (but
excluding) that Payment Date with a designated maturity of 90 days plus the
spread set out in the Currency Swap);
(2) on the A$ Equivalent (with respect to an amount denominated or to be
denominated in U.S. dollars, the amount converted to (and denominated in)
Australian dollars at the applicable exchange rate) of the aggregate of the
Invested Amount of the Class A Notes as at the first day of the Interest Period
ending on (but excluding) that Payment Date; and
(3) on the basis of the actual number of days in that Interest Period and a
year of 360 days.
With respect to any Payment Date, the "A$ Class B Interest Amount" means,
for any Payment Date, the amount in A$ which is calculated:
(1) on a daily basis at the applicable rate set out in the swap confirmation
relating to the Class B Notes (being AUD- BBR-BBSW, as defined in the ISDA
Definitions, as at the first day of the Interest Period ending on (but
excluding) that Payment Date with a designated maturity of 90 days plus the
spread);
(2) on the A$ Equivalent of the aggregate of the Invested Amount of the
Class B Notes as at the first day of the Interest Period ending on (but
excluding) that Payment Date; and
(3) on the basis of the actual number of days in that Interest Period and a
year of 360 days.
With respect to any Payment Date, "RFS Interest" means all interest on the
outstanding RFSs in respect of an Interest Period. With respect to any Payment
Date, "RFS Class A Interest" means all interest on the outstanding RFS Class A
Notes in respect of an Interest Period.
Distribution of Total Available Funds
General
On each Payment Date, Total Available Funds will be applied in making
the following payments in respect of the preceding Collection Period in the
following order of priority:
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(1) in relation to the first Payment Date only, the Accrued Interest
Adjustment;
(2) unpaid or unreimbursed Trust Expenses;
(3) amounts payable under any Support Facility (other than the Currency
Swap), pro rata, based on their respective entitlements, including:
(i) the net amount (if any) payable by the Issuer Trustee under the
Variable Rate Basis Swap;
(ii) the net amount (if any) payable by the Issuer Trustee under each
Fixed Rate Basis Swap; and
(iii) any interest or fees payable by the Issuer Trustee under the
Liquidity Facility,
but not including amounts due under paragraph (4), (5) or (6) below;
(4) repayment of any Liquidity Draw made on or prior to the previous Payment
Date;
(5) pro rata, to each of the following, based on their respective
entitlements:
(i) any interest payable on all RFSs (if any);
(ii) the payment to the Currency Swap Provider under the swap
confirmation relating to the Class A Notes of the A$ Class A Coupon
Amount at that date;
(iii) the interest payable on all RFS Class A Notes (if any); and
(iv) any fee payable by the Issuer Trustee under the Redraw
Facility; and
(6) the payment to the Currency Swap Provider under the swap confirmation
relating to the Class B Notes of the A$ Class B Coupon Amount as at that date.
The sum of paragraphs (1) to (6) above represents "Total Payments" for a
Collection Period.
The Issuer Trustee shall only make a payment described in paragraphs (1) to
(6) above to the extent that Total Available Funds remain available to do so
after each payment is made in accordance with the above priority in accordance
with the Series Notice.
Trust Expenses
On each Collection Determination Date the Trust Manager will determine
the following payments to be made for the relevant Collection Period
(together, the "Trust Expenses") in the following order of priority (as
between themselves) on the next Payment Date:
(1) taxes payable in relation to the Trust;
(2) the Issuer Trustee Fee;
(3) the Trust Manager Fee;
(4) any fee payable to the Security Trustee under the Security Trust Deed;
(5) the Servicing Fee;
(6) any fee payable to the Note Trustee under the Note Trust Deed;
(7) any fee payable to the Agent Bank under the Agency Agreement;
(8) pro rata based on their respective entitlements any costs, charges or
expenses (other than fees) incurred by, and any liabilities owing under any
indemnity granted to, the Security Trustee, the Servicer, the Note Trustee or
the Agent Bank in relation to the Trust under the Transaction Documents, for
that Collection Period; and
(9) pro rata based on their respective entitlements any other costs, charges
or expenses incurred by the Issuer Trustee or the Trust Manager in the
administration or operation of the Trust.
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Calculation of Interest Payable on the Notes
The "Interest Rate" for the Class A Notes for a particular Interest Period
is equal to USD-LIBOR-BBA on the related Interest Determination Date (as defined
herein) plus ___%. The Interest Rate on the Class A Notes for the first Interest
Period will be equal to ___%. The "Interest Rate" for the Class B Notes for a
particular Interest Period is equal to USD- LIBOR-BBA on the related Interest
Determination Date plus ___%. The Interest Rate on the Class B Notes for the
first Interest Period will be equal to ____%. See "--Calculation of
USD-LIBOR-BBA" below.
With respect to any Payment Date, interest on a Class of Notes will be
calculated as the product of (a) the Invested Amount of such Class as of the
first day of that Interest Period after giving effect to any payments of
principal made with respect to such Class on such day, (b) the Interest Rate for
such Class for that Interest Period; and (c) a fraction, the numerator of which
is the actual number of days in that Interest Period and the denominator of
which is 360 days (such product, "Interest"). No Noteholder will be entitled to
payments of Interest after the related Stated Amount is reduced to zero.
Calculation of USD-LIBOR-BBA
On the second London banking day before the beginning of each Interest
Period (each an "Interest Determination Date"), the Agent Bank will determine
the rate "USD-LIBOR-BBA" as the applicable Floating Rate Option under the
Definitions of the International Swaps and Derivatives Association, Inc.
("ISDA") (the "ISDA Definitions") being the rate applicable to any Interest
Period for three-month deposits in U.S. dollars which appears on the Telerate
Page 3750 as of 11:00 a.m., London time, on the Interest Determination Date. If
such rate does not appear on the Telerate Page 3750, the rate for that Interest
Period will be determined as if the Issuer Trustee and Agent Bank had specified
"USD-LIBOR-Reference Banks" as the applicable Floating Rate Option under the
ISDA Definitions. "USD-LIBOR-Reference Banks" means that the rate for an
Interest Period will be determined on the basis of the rates at which deposits
in U.S. Dollars are offered by the Reference Banks (being four major banks in
the London interbank market) at approximately 11:00 a.m., London time, on the
Interest Determination Date to prime banks in the London interbank market for a
period of three months commencing on the first day of the Interest Period and in
a Representative Amount (as defined in the ISDA Definitions). The Agent Bank
will request the principal London office of each of the Reference Banks to
provide a quotation of its rate. If at least two such quotations are provided,
the rate for that Interest Period will be the arithmetic mean of the quotations.
If fewer than two quotations are provided as requested, the rate for that
Interest Period will be the arithmetic mean of the rates quoted by major banks
in New York City, selected by the Agent Bank, at approximately 11:00 a.m., New
York City time, on that Interest Determination Date for loans in U.S. dollars to
leading European banks for a period of three months commencing on the first day
of the Interest Period and in a Representative Amount, provided that on the
first day of the first Interest Period USD-LIBOR-BBA shall be an interpolated
rate calculated with reference to the period from (and including) the Closing
Date to (but excluding) the first Payment Date.
Excess Available Income
General
On each Collection Determination Date, the Trust Manager must determine the
amount (if any) by which the Total Available Funds for the Collection Period
ending immediately prior to that Collection Determination Date exceeds the Total
Payments for that same Collection Period (such amount, the "Excess Available
Income").
Distribution of Excess Available Income
On each Collection Determination Date, the Trust Manager must apply such
Excess Available Income for the Collection Period relating to that Collection
Determination Date in the following order of priority:
(1) to reimburse Principal Charge Offs for that Collection Period;
(2) pro rata, based on the Stated Amount of the RFSs (if any), the Stated
Amount of the RFS Class A Notes (if any), the Principal Outstanding under the
Redraw Facility and the A$ Equivalent of the Stated Amount of the Class A Notes:
(i) as a payment to the holders of the RFSs (if any) in or towards
reinstating the Stated Amount of such RFSs, to the extent of any
Carryover RFS Charge Offs;
(ii) as a payment to the holders of the RFS Class A Notes (if any) in or
towards reinstating the Stated Amount of such RFS Class A Notes, to the
extent of any Carryover RFS Class A Charge Offs;
(iii) as a repayment under the Redraw Facility Agreement, as a reduction
of, and to the extent of, any Carryover Redraw Charge Offs;
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(iv) as a payment to the Currency Swap Provider under the swap
confirmation relating to the Class A Notes, of the A$ Equivalent of any
Carryover Class A Charge Offs; and
(3) as a payment, denominated in A$, to the Currency Swap Provider under the
swap confirmation relating to the Class B Notes of the A$ Equivalent of any
Carryover Class B Charge Offs;
(4) to all Principal Draws which have not been repaid as at that date; and
(5) as a distribution to any Beneficiaries (an "Excess Collections
Distribution").
All amounts to be paid pursuant to paragraphs (2), (3) and (5) will be paid
on the Payment Date immediately following the Collection Determination Date.
Once distributed to a Beneficiary, an Excess Collections Distribution will
not be available to the Issuer Trustee to meet its obligations in respect of the
Trust in subsequent periods unless there has been an error in the relevant
calculation of the Excess Collections Distribution. A "Beneficiary" is any party
which holds a residual income unit in the Trust.
Gross Principal Collections
On each Collection Determination Date, the Trust Manager must determine
Gross Principal Collections for the Collection Period ending immediately prior
to that Collection Determination Date. With respect to any Collection
Determination Date, "Gross Principal Collections" are the sum of:
(1) all amounts received by or on behalf of the Issuer Trustee under or in
respect of the Housing Loans during the Collection Period in respect of
principal, including principal prepayments;
(2) all other amounts received under or in respect of the Housing Loans
during the Collection Period in respect of principal, including:
(i) amounts on account of principal recovered from the enforcement of a
Housing Loan or Mortgage;
(ii) any payments by Westpac to the Issuer Trustee on the repurchase of a
Housing Loan in respect of principal;
(iii) any amounts in the nature of principal received by or on behalf of
the Issuer Trustee from the sale of any Trust Asset, including any amount
received on the issue of Notes and which was not used to purchase a
Housing Loan or Mortgage and which the Trust Manager determines is
surplus to the requirements of the Trust;
(iv) any Prepayment Costs applied towards Prepayment Benefit; and
(v) any Prepayment Benefit Shortfall paid by Westpac to the Trust;
(3) all amounts received by or on behalf of the Issuer Trustee during that
Collection Period under any Support Facility (other than the Currency Swap)
which the Trust Manager determines should be accounted for to reduce a Principal
Loss;
(4) all amounts received by or on behalf of the Issuer Trustee during that
Collection Period:
(i) from an Approved Seller or the Servicer in respect of any breach of a
representation, warranty or undertaking contained in the Master Trust
Deed, Series Notice or Servicing Agreement determined by the Trust
Manager to be in respect of principal; and
(ii) from an Approved Seller or the Servicer under any obligation under
the Master Trust Deed, Series Notice or Servicing Agreement to indemnify,
reimburse or pay damages to the Issuer Trustee for any amount determined
by the Trust Manager to be in respect of principal;
(5) any amount of Excess Available Income to be applied to meet a Principal
Charge Off or a Carryover Charge Off;
(6) any amount received by or on behalf of the Issuer Trustee during that
Collection Period as proceeds from the issue of any RFS to the extent not
applied to reimburse amounts drawn under the Redraw Facility;
(7) any Excess Available Income to be applied to Principal Draws made on a
previous Payment Date;
(8) any Prepayment Calculation Adjustment for that Collection Period; and
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(9) any net amount attributable to principal received by the Trust from
another trust established under the Master Trust Deed with respect to any
substitution of a Housing Loan during that Collection Period ("Substitution Net
Transfer Amount ("Principal)";
but excluding a premium receivable by the Issuer Trustee on entry into a
replacement Currency Swap.
On the Closing Date, the A$ Equivalent of the total Initial Invested Amount
of the Notes issued by the Issuer Trustee may exceed the Housing Loan Principal
as of the Cut-Off Date. The amount of this difference, if any, will be treated
as a Gross Principal Collection and the US$ Equivalent will be passed through to
Noteholders on the first Payment Date.
With respect to any Collection Period and a Housing Loan, a "Prepayment
Calculation Adjustment" is any amount credited to the related Borrower by
Westpac to reflect an interest adjustment resulting from a change in computer
systems.
Principal Collections
On each Collection Determination Date the Trust Manager must calculate
Principal Collections for the preceding Collection Period. With respect to any
Collection Determination Date, "Principal Collections" shall be equal to:
(1) the Gross Principal Collections for that Collection Period; less
(2) any amounts deducted by or paid to Westpac to reimburse Redraws funded
by Westpac during that Collection Period for which Westpac has not been
reimbursed previously.
Distribution of Principal Collections
Initial Principal Distributions
On each Payment Date, Principal Collections will be distributed in the
following order of priority:
(1) to repay any Redraws provided by Westpac to the extent not previously
reimbursed;
(2) to repay any Principal Outstanding under the Redraw Facility;
(3) to allocate to Total Available Funds any Principal Draw; and
(4) to repay all amounts outstanding under each RFS Series (if any), in
chronological order of issue, until repaid in full,
(together, "Initial Principal Distributions").
Only after Initial Principal Distributions have been distributed will
Principal Collections be available to be paid to the Currency Swap Provider to
enable the Issuer Trustee to make payments to the Class A Noteholders and the
Class B Noteholders in US$ in accordance with the appropriate principal
allocation methodology set forth below. With respect to any Payment Date, "Net
Principal Collections" shall equal the amount of Principal Collections remaining
after the distribution of Initial Principal Distributions.
Payments of Principal on the Notes
With respect to any Collection Determination Date, the Trust Manager shall
determine the appropriate principal allocation methodology as set forth below.
On each Payment Date, the Trust Manager shall instruct the Issuer Trustee to pay
principal to the Noteholders in the manner and subject to the priority set forth
below.
Serial Method 1
If, on the related Collection Determination Date, the Serial Method 1
Distribution Test has been met, then the Issuer Trustee will pay out of any Net
Principal Collections, on the immediately following Payment Date the following
amounts in the following order of priority:
(1) first, pro rata, based on their respective entitlements:
(i) as a payment, denominated in A$, to the Currency Swap Provider under
the swap confirmation relating to the Class A Notes of an amount equal to
the lesser of:
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(a) the Class A Forex Percentage of the sum of: (1) the Class A
Percentage of Net Principal Collections; and (2) 50% of the Class B
Percentage of Net Principal Collections; and
(b) the A$ Equivalent of the Class A Stated Amounts for all Class A
Notes; and
(ii) as a payment denominated in A$ to the holders of the RFS Class A
Notes (if any) of an amount equal to the lesser of:
(a) the RFS Class A Forex Percentage of the sum of: (1) the Class A
Percentage of Net Principal Collections; and (2) 50% of the Class B
Percentage of Net Principal Collections; and
(b) the RFS Class A Stated Amounts for all RFS Class A Notes (if any);
and
(2) second, as a payment, denominated in A$, to the Currency Swap Provider
under the swap confirmation relating to the Class B Notes of an amount equal
to 50% of the Class B Percentage of Net Principal Collections.
The "Serial Method 1 Distribution Test" is met if, on any Collection
Determination Date the following conditions are all satisfied:
(i) the Subordinated Percentage at the previous Collection Determination
Date was greater than or equal to ___% (twice the Initial Subordinated
Percentage);
(ii) that Collection Determination Date occurs on or before April 19, 2001;
(iii) the fraction, expressed as a percentage, the numerator of which is the
Total Invested Amount on such Collection Determination Date and the
denominator of which is the Total Initial Invested Amount, is greater than
or equal to 10%; and
(iv) the Average Quarterly Percentage on such Collection Determination Date:
(a) does not exceed [2]% and the Total Carryover Charge Off on that
Collection Determination Date does not exceed [30]% of the Class B
Initial Invested Amount; or
(b) does not exceed [4]% and the Total Carryover Charge Off on such
Collection Determination Date does not exceed [10]% of the Class B
Initial Invested Amount; and
(v) the Stated Amount of the Class B Notes on such Collection Determination
Date exceeds 0.25% of the sum of the Class A Initial Invested Amount and the
Class B Initial Invested Amount.
Serial Method 2
If, on the related Collection Determination Date, the Serial Method 2
Distribution Test has been met, then the Issuer Trustee will pay out of any Net
Principal Collections, on the immediately following Payment Date the following
amounts in the following order of priority:
(1) first, pro rata, based on their respective entitlements:
(i) as a payment, denominated in A$, to the Currency Swap Provider under
the swap confirmation relating to the Class A Notes of an amount equal to
the lesser of:
(a) the Class A Forex Percentage of the Class A Percentage of Net
Principal Collections; and
(b) the A$ Equivalent of the Class A Stated Amounts for all Class A
Notes; and
(ii) as a payment denominated in A$ to the holders of the RFS Class A
Notes (if any) of an amount equal to the lesser of:
(a) the RFS Class A Forex Percentage of the Class A Percentage of Net
Principal Collections; and
(b) the RFS Class A Stated Amounts for all RFS Class A Notes (if
any); and
(2) second, as a payment, denominated in A$, to the Currency Swap Provider
under the swap confirmation relating to the Class B Notes of an amount equal
to the Class B Percentage of Net Principal Collections.
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The "Serial Method 2 Distribution Test" is met if, on any Collection
Determination Date the following conditions are all satisfied:
(i) the Subordinated Percentage at the previous Collection Determination
Date was greater than or equal to __% (twice the Initial Subordinated
Percentage);
(ii) that Collection Determination Date occurs after April 19, 2001,
(iii) the fraction, expressed as a percentage, the numerator of which is
the Total Invested Amount on such Collection Determination Date and the
denominator of which is the Total Initial Invested Amount, is greater than
or equal to 10%;
(iv) the Average Quarterly Percentage as at the Collection Determination
Date:
(a) does not exceed 2% and the Total Carryover Charge Off on that
Collection Determination Date does not exceed 30% of the Class B
Initial Invested Amount; or
(b) does not exceed 4% and the Total Carryover Charge Off on that
Collection Determination Date does not exceed 10% of the Class B
Initial Invested Amount; and
(v) the Stated Amount of the Class B Notes on such Collection
Determination Date exceeds 0.25% of the sum of (x) the Class A Initial
Invested Amount, (y) the Class B Initial Invested Amount and (z) the US$
Equivalent of the Invested Amounts of all RFS Class A Notes (if any).
Sequential Method
If neither the Serial Method 1 Distribution Test nor the Serial Method 2
Distribution Test has been met, then the Issuer Trustee will pay out of any Net
Principal Collections, on the immediately following Payment Date the following
amounts in the following order of priority:
(1) first, pro rata, based on their respective entitlements:
(i) as a payment, denominated in A$, to the Currency Swap Provider under the
swap confirmation relating to the Class A Notes of an amount equal to the
lesser of:
(a) the Class A Forex Percentage of the Net Principal Collections;
and
(b) the A$ Equivalent of the Class A Stated Amounts for all Class A
Notes; and
(ii) as a payment denominated in A$ to the holders of the RFS Class A Notes
(if any) of an amount equal to the lesser of:
(a) the RFS Class A Forex Percentage of the Net Principal
Collections; and
(b) the RFS Class A Stated Amounts for all RFS Class A Notes (if
any); and
(2) second, as a payment, denominated in A$, to the Currency Swap Provider under
the swap confirmation relating to the Class B Notes of an amount equal to the
lesser of (i) the amount remaining after all distributions in (1) above and (ii)
the A$ Equivalent of the Class B Stated Amounts for all Class B Notes.
Certain Related Definitions
With respect to any date, the "Average Quarterly Percentage" is the sum of
Quarterly Percentage for the four full Quarters preceding that date, divided by
four. With respect to any Collection Period, the "Quarterly Percentage" equals a
fraction, expressed as a percentage, the numerator of which is the aggregate
Housing Loan Principal of all Housing Loans which are Delinquent for more than
60 consecutive days as of the close of business on the last day of that
Collection Period, and the denominator of which is the aggregate Housing Loan
Principal of all Housing Loans as of the close of business on the last day of
that Collection Period. With respect to any Housing Loan and date, "Housing Loan
Principal" shall be the unpaid principal amount of that Housing Loan on such
date.
The "Class A Forex Percentage" equals a fraction, expressed as a percentage,
the numerator of which is the A$ Equivalent of the Class A Stated Amounts at
that date and the denominator of which is the sum of the A$ Equivalent of the
Class A Stated Amounts and the RFS Class A Stated Amounts at that date.
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The "Class A Percentage" means, on a Collection Determination Date,
the sum of the aggregate of the A$ Equivalent of the Class A Stated Amounts,
the RFS Class A Stated Amounts and the Redraw Limit for the preceding
Collection Determination Date as a percentage of the sum of the aggregate of
the A$ Equivalent of the Class A Stated Amounts, the RFS Class A Stated Amounts
and the Class B Stated Amounts and the Redraw Limit calculated as at the
preceding Collection Determination Date. The "Class B Percentage" means, on a
Collection Determination Date, the aggregate of the A$ Equivalent of the
Class B Stated Amounts for the preceding Collection Determination Date as a
percentage of the sum of the aggregate A$ Equivalent of the Class A Stated
Amounts, the RFS Class A Stated Amounts and the Class B Stated Amounts and the
Redraw Limit calculated as at the preceding Collection Determination Date.
The "Initial Subordinated Percentage" shall be ___%.
With respect to any date, the "RFS Class A Forex Percentage" shall be 100%
minus the Class A Forex Percentage as of that date.
The "Subordinated Percentage" means the fraction, expressed as a
percentage, calculated on each Collection Determination Date by the Trust
Manager by the numerator of which is the A$ Equivalent of the aggregate of
the Class B Stated Amounts and the denominator of which is the sum of (i) the
A$ Equivalent of the aggregate of the A$ Equivalent of the Class A Stated
Amounts, the RFS Class A Stated Amounts and the Class B Stated Amounts at
that time, plus (ii) the Redraw Limit at that time, plus (iii) the aggregate
of the RFS Stated Amounts at that time, plus (iv) the aggregate of the RFS
Class A Stated Amounts at that time.
Application of Principal Charge Offs
General
If there is any Liquidation Loss under a Housing Loan, the Trust Manager
will direct the Servicer to make a claim under the relevant Mortgage Insurance
Policy for the aggregate amount of that Liquidation Loss if the Servicer has not
already done so. If a claim on account of a Principal Loss may not be made (or
is reduced) under the Mortgage Insurance Policy for any reason (including
because the maximum amount available under the Mortgage Pool Insurance Policy
has been exhausted, the Mortgage Insurance Policy has been terminated in respect
of that Housing Loan, the Mortgage Insurer is entitled to reduce the amount of
the claim or the Mortgage Insurer defaults in payment of a claim) then a
"Mortgage Shortfall" will arise if:
(1) the total amount recovered and recoverable under the Mortgage Insurance
Policy attributable to principal; plus
(2) any damages or other amounts payable by an Approved Seller or the Servicer
under or in respect of the Master Trust Deed, the Series Notice or Servicing
Agreement relating to the Housing Loan which the Trust Manager determines to be
on account of principal, is insufficient to meet the full amount of the
Principal Loss. In that case, the aggregate amount of all Mortgage Shortfalls
for that Collection Period (a "Principal Charge Off") will be applied to reduce
the Stated Amounts of the Notes as described below.
Charge Offs
On any Collection Determination Date, the Excess Available Income (if any)
will be applied to meet Principal Charge Offs calculated on that Collection
Determination Date for the Collection Period ending immediately prior to that
Collection Determination Date. If the amount of Excess Available Income is less
than the amount of those Principal Charge Offs, then the balance of the
Principal Charge Offs will be:
(1) applied to reduce the Stated Amounts of the Class B Notes by the US$
Equivalent of that balance (a "Class B Charge Off"), until the Class B Stated
Amount is zero; and
(2) to the extent that balance cannot be applied under paragraph (1) because the
Class B Stated Amount is zero, applied pro rata, based on their respective
Stated Amounts or Principal Outstanding, as applicable, to the reduction of the
RFSs (if any) (an "RFS Charge Off"), the RFS Class A Notes (if any) (an "RFS
Class A Charge Off") and the Class A Notes (a "Class A Charge Off") until the
respective Stated Amounts of the Class A Notes, the RFSs (if any) and the RFS
Class A Notes (if any) are zero and the Principal Outstanding under the Redraw
Facility until the Principal Outstanding is zero (a "Redraw Facility Charge
Off") (using US$ Equivalent amounts in the case of the Class A Notes).
With respect to any date, the "Total Carryover Charge Off" means the sum of:
(1) all Carryover Class A Charge Offs for all Class A Notes (other than RFS
Class A Notes) as at that date;
(2) all Carryover Class B Charge Offs for all Class B Notes as at that date;
(3) the US$ Equivalent of all Carryover RFS Charge Offs for all RFSs as at
that date; and
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(4) the US$ Equivalent of all Carryover RFS Class A Charge Offs for all RFS
Class A Charge Offs as at that date.
Reimbursement of Charge Offs
On any Collection Determination Date, if there is Excess Available Income in
respect of the Collection Period ending immediately prior to that Collection
Determination Date remaining after the reimbursement of any Principal Charge
Offs for that Collection Period, then the remaining Excess Available Income will
be used to reinstate the Stated Amounts of the Notes in the following priority:
(1) first, the Carryover Redraw Charge Offs, Carryover RFS Charge Offs,
Carryover RFS Class A Charge Offs and Carryover Class A Charge Offs, pro rata
based on the amount of their respective Charge Offs (using A$ Equivalent amounts
in the case of Carryover Class A Charge Offs); and
(2) second, the A$ Equivalent of any Carryover Class B Charge Offs.
On any Collection Determination Date in relation to a Class A Note,
"Carryover Class A Charge Offs" means the aggregate of Class A Charge Offs in
relation to that Class A Note prior to that Collection Determination Date which
have not been reinstated as provided for herein. On any Collection Determination
Date in relation to a Class B Note, "Carryover Class B Charge Offs" means on any
Collection Determination Date in relation to a Class B Note, the aggregate of
Class B Charge Offs in relation to that Class B Note prior to that Collection
Determination Date which have not been reinstated as provided for herein. On any
Collection Determination Date in relation to the Redraw Facility, "Carryover
Redraw Charge Offs" means, the aggregate of Redraw Charge Offs prior to that
Collection Determination Date which have not been reinstated as provided for
herein. On any Collection Determination Date in relation to the RFSs, the
aggregate of RFS Charge Offs in relation to that RFS prior to that Collection
Determination Date which have not been reinstated as provided for herein. On any
Collection Determination Date in relation to an RFS Class A Note, "Carryover RFS
Class A Charge Offs" means the aggregate of RFS Class A Charge Offs in relation
to that RFS Class A Note prior to that Collection Determination Date which have
not been reinstated as provided for herein.
Payments into US$ Account
The Principal Paying Agent shall open and maintain, or cause to be opened
and maintained, an account (the "US$ Account") into which the Currency Swap
Provider shall deposit amounts denominated in US$.
(1) The Issuer Trustee shall direct the Currency Swap Provider to pay all
amounts denominated in US$ payable to the Issuer Trustee by the Currency Swap
Provider under the Currency Swap into the US$ Account or to the Principal Paying
Agent under the Agency Agreement on behalf of the Issuer Trustee.
(2) If any of the Issuer Trustee, the Trust Manager or the Servicer receives
any amount denominated in US$ from the Currency Swap Provider under the Currency
Swap they will promptly pay that amount to the credit of the US$ Account.
Payments out of US$ Account
The Issuer Trustee shall, or shall require that the Paying Agents shall on
its behalf, pay all amounts credited to the US$ Account or otherwise referred to
above to meet its US$ obligations under the Series Notice and the Notes, and in
accordance with the Note Trust Deed and the Agency Agreement.
Prepayment Costs and Prepayment Benefits
(1) On each Collection Determination Date the Trust Manager will determine
total Prepayment Benefits and total Prepayment Costs for the relevant Collection
Period and will apply an amount equal to those total Prepayment Costs in payment
of those total Prepayment Benefits. If:
(i) there is a Prepayment Cost Surplus, it will be applied under
paragraph (2) below; and
(ii) there is a Prepayment Benefit Shortfall, it will be funded
under paragraph (3) below.
(2) On each Payment Date based on calculations provided to it by the Trust
Manager, the Issuer Trustee will pay to Westpac an amount equal to the
Prepayment Cost Surplus (if any) for the Collection Period on that Payment Date
to the extent received by or on behalf of the Issuer Trustee.
(3) If, on any Collection Determination Date, the Trust Manager calculates
that there is a Prepayment Benefit Shortfall, the Trust Manager must by the
close of business on that Collection Determination Date notify Westpac of the
amount of that Prepayment Benefit Shortfall. Westpac must, by 4:00 p.m. (Sydney
time) on the Remittance Date, deposit
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in the Collections Account for the credit of the Issuer Trustee an amount equal
to that Prepayment Benefit Shortfall. That amount will be treated as a Gross
Principal Collection.
Description of the Redraw Facility, the Redraw Funding Securities and the RFS
Class A Notes
Certain Housing Loans in the Mortgage Pool which are charged a variable rate
of interest have the benefit of a facility which allows the borrower to draw on
repayments made by the Borrower in excess of scheduled repayments on the related
Housing Loan (any such draw, a "Redraw"). Borrowers may require Westpac to
re-advance to them previously prepaid principal. In certain circumstances,
Westpac has a contractual obligation under the related loan document to provide
the Redraw if the Borrower has made prepayments on the related Housing Loan and
such Borrower is not delinquent. A Redraw will not result in the Housing Loan
being removed from the Mortgage Pool.
Westpac is entitled to be reimbursed by the Issuer Trustee for Redraws
funded by Westpac first, from Gross Principal Collections as described herein
under "--Principal Collections" herein, second, from drawings under the Redraw
Facility and third, from the proceeds of the issue of RFSs (if any), to the
extent each is available.
If Westpac is not fully reimbursed in relation to a Redraw (a "Redraw
Shortfall"), it will bear the cost of funding that Redraw until such time as it
can be reimbursed by the Issuer Trustee.
Redraw Facility
General
On or prior to the Closing Date, Westpac will enter into a Redraw Facility
Agreement (the "Redraw Facility Agreement") in its capacity as "Redraw Facility
Provider" with the Issuer Trustee. Pursuant to the terms of the Redraw Facility
Agreement, the Redraw Facility Provider shall be obligated, subject to the
limitations set forth below, to fund the amount of any Redraws not funded with
Gross Principal Collections. To the extent that Gross Principal Collections are
insufficient to fund Redraws and amounts are available under the Redraw
Facility, the Trust Manager must direct the Issuer Trustee to draw on the Redraw
Facility. Under the Redraw Facility, the Redraw Facility Provider agrees to make
advances to the Issuer Trustee up to the limit from time to time (the "Redraw
Limit") or any lesser amount as agreed between the Redraw Facility Provider, the
Issuer Trustee and the Trust Manager. At the Closing Date, the Redraw Limit is
expected to be A$_________. The Redraw Limit may not be increased without
written confirmation from the Rating Agencies that the increase would not result
in a downgrading or withdrawal of the rating for the Offered Notes then
outstanding.
The Redraw Facility Provider may revoke the Redraw Facility at any time
immediately on giving notice to the Issuer Trustee and the Trust Manager.
Drawings
In the event of a Redraw Shortfall on any Collection Determination Date, the
Trust Manager must direct the Issuer Trustee to draw down on the Redraw Facility
for an amount (a "Redraw Advance") equal to the lesser of the Redraw Shortfall
and the amount available under the Redraw Facility at that time ("Available
Redraw Amount"). A drawing may only be made under the Redraw Facility on account
of a Redraw Shortfall.
A drawing may only be made by the Issuer Trustee giving to the Redraw
Facility Provider a duly completed drawdown notice signed by the Issuer Trustee;
provided, however, that each of the following conditions precedent to drawing
are met. The sum of all Redraw Advances outstanding on any particular date shall
be the "Principal Outstanding."
Conditions Precedent to Drawing
The obligations of the Redraw Facility Provider to make available each
Redraw Advance are subject to the conditions precedent that:
(1) no event of default has occurred and is continuing under the Redraw
Facility at the date of the relevant drawdown notice and the relevant drawdown
date or will result from the provision of the Redraw Advance; and
(2) the representations and warranties by the Issuer Trustee in the Redraw
Facility are true as at the date of the relevant drawdown notice and the
relevant drawdown date as though they had been made at that date in respect of
the facts and circumstances then subsisting.
Draw Fee
With respect to any Redraw Advance made by the Redraw Facility Provider, a
fee (the "Draw Fee") will accrue on such Redraw Advance from the date of its
advance at a rate equal to the Bank Bill Rate plus a margin, calculated on the
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basis of the actual number of days elapsed since the advance and a year of 365
days. The Draw Fee shall be payable on each Payment Date and on termination of
the Redraw Facility. To the extent any Draw Fee is not paid, the amount of such
unpaid Draw Fee will be capitalized and interest will accrue on any such unpaid
Draw Fee. On any date, the "Bank Bill Rate" shall be the rate calculated by
taking the rates quoted on the Reuters Screen BBSW Page at approximately 10:00
am, Sydney time, on that date for each Reference Bank so quoting (but not fewer
than five) as being the mean buying and selling rate for a bill (which for the
purpose of this definition means a bill of exchange of the type specified for
the purpose of quoting on the Reuters Screen BBSW Page) having a tenor of 90
days eliminating the highest and lowest mean rates and taking the average of the
remaining mean rates and then (if necessary) rounding the resultant figure
upwards to four decimal places. If on any date fewer than five Reference Banks
have quoted rates on the Reuters Screen BBSW Page, the rate for that date shall
be calculated as above by taking the rates otherwise quoted by five of the
Reference Banks on application by the parties for such a bill of the same tenor.
If in respect of any date the rate for that date cannot be determined in
accordance with the foregoing procedures then the rate for that date shall mean
such rate as is agreed between the Trust Manager and Westpac having regard to
comparable indices then available, provided that on the first day of any first
Interest Period as it relates to a Class of Notes the Bank Bill Rate shall be an
interpolated rate calculated with reference to the tenor of the relevant period.
Availability Fee
For so long as the Redraw Facility exists, a fee (the "Availability Fee")
shall accrue daily from the date of the Redraw Facility on the available redraw
amount, which Availability Fee is payable on each Payment Date and on
termination of the Redraw Facility. The Availability Fee is calculated on the
actual number of days elapsed and a year of 365 days.
Repayment of Redraw Advances
To the extent a Redraw Advance has been made and has not been repaid to the
Redraw Facility Provider, the amount of such unreimbursed Redraw Advance is
repayable on the following Payment Date and on termination of the Redraw
Facility, to the extent that there are funds available for such payment. It is
not an event of default if the Issuer Trustee does not have funds available to
repay the full amount of the unreimbursed Redraw Advance on the following
Payment Date.
Events of Default under the Redraw Facility
It is an event of default under the Redraw Facility (whether or not such
event is within the control of the Issuer Trustee) if:
(1) an amount is available for payment under the Redraw Facility, and the
Issuer Trustee does not pay that amount within 10 Business Days of its due date;
(2) an Insolvency Event occurs in relation to the Trust;
(3) an Insolvency Event occurs in relation to the Issuer Trustee, and a
successor trustee of the Trust is not appointed within 30 days of that
Insolvency Event;
(4) the Termination Date occurs in relation to the Trust; or
(5) an event of default (as defined in the Security Trust Deed) occurs and
any action is taken to enforce the security interest under the Security Trust
Deed over the assets of the Trust (including appointing a receiver or receiver
and manager or selling any of those assets).
With respect to the Issuer Trustee (in its personal capacity and as trustee
of a Trust), the Trust Manager, a Servicer, or a Mortgage Insurer (each a
"relevant corporation"), an "Insolvency Event" will occur upon the happening of
any of the following events:
(1) an administrator of the relevant corporation is appointed;
(2) except for the purpose of a solvent reconstruction or amalgamation:
(i) an application or an order is made, proceedings are
commenced, a resolution is passed or proposed in a notice
of proceedings or an application to a court or other steps
(other than frivolous or vexatious applications,
proceedings, notices and steps) are taken for:
(a) the winding up, dissolution or administration
of the relevant corporation; or
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(b) the relevant corporation entering into an
arrangement, compromise or composition with or
assignment for the benefit of its creditors or a
class of them; or
(ii) the relevant corporation ceases, suspends or
threatens to cease or suspend the conduct of all or
substantially all of its business or disposes of or
threatens to dispose of substantially all of its assets;
or
(3) the relevant corporation is, or under applicable legislation is taken to
be, unable to pay its debts (other than as the result of a failure to pay a debt
or claim the subject of a good faith dispute) or stops or suspends or threatens
to stop or suspend payment of all or a class of its debts (except, in the case
of the Issuer Trustee where this occurs in relation to another trust of which it
is the trustee);
(4) a receiver, receiver and manager or administrator is appointed (by the
relevant corporation or by any other person) to all or substantially all of the
assets and undertaking of the relevant corporation or any part thereof (except,
in the case of the Issuer Trustee where this occurs in relation to another trust
of which it is the trustee); or
(5) anything analogous to an event referred to in paragraphs (1) to (5)
(inclusive) or having substantially similar effect, occurs with respect to the
relevant corporation.
The "Termination Date" shall be earlier to occur of:
(1) the date which is 80 years after the date of creation of the Trust;
(2) the termination of the Trust under statute or general law;
(3) full and final enforcement of the Security Trust Deed; or
(4) at any time after all Notes have been repaid in full and the Issuer
Trustee and the Trust Manager agree that no further Notes are proposed to be
issued by the Issuer Trustee in relation to the Trust, the Business Day
immediately following that date.
Consequences of Occurrence of Events of Default
At any time after an event of default (whether or not it is continuing) the
Redraw Facility Provider may do all or any of the following:
(1) by notice to the Issuer Trustee and the Trust Manager declare all moneys
actually or contingently owing under the Redraw Facility immediately due and
payable, and the Issuer Trustee must immediately pay the Principal Outstanding
together with accrued interest and fees and all such other moneys; or
(2) by notice to the Issuer Trustee and the Trust Manager cancel the Redraw
Limit with effect from any date specified in that notice.
Termination of the Redraw Facility
The Redraw Facility will terminate on the earliest of the following:
(1) the date on which the Issuer Trustee enters into a replacement Redraw
Facility;
(2) one month after the Offered Notes have been redeemed in full in
accordance with the Master Trust Deed and the Series Notice;
(3) following an event of default under the Redraw Facility, the date on
which the Redraw Facility Provider declares the Redraw Facility terminated;
(4) the date on which the Issuer Trustee, on giving not less than five
Business Days irrevocable notice to the Redraw Facility Provider, has cancelled
all or part of the Redraw Limit;
(5) the date which is one year after the Maturity Date of the Offered Notes;
(6) the date on which the Redraw Limit is cancelled in full by the Redraw
Facility Provider. On such date the Redraw Facility Provider may cancel all or
part of the Redraw Limit immediately on giving notice to the Issuer Trustee and
the Trust Manager; or
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(7) the date on which Westpac Securitisation Management Pty Limited retires
or is removed as Trust Manager under the Master Trust Deed.
Issuance of Redraw Funding Securities ("RFS")
If on a Collection Determination Date:
(1) Gross Principal Collections for the Collection Period preceding that
Collection Determination Date and all amounts available to be drawn under the
Redraw Facility are insufficient to fund Redraws made during that Collection
Period; or
(2) the Principal Outstanding under the Redraw Facility divided by the
Redraw Limit, expressed as a percentage, is equal to or greater than 90% of the
Redraw Limit;
then the Trust Manager may give the Issuer Trustee a direction to issue a series
of RFSs (the "RFS Series").
Condition Precedent to the Issue of RFSs
Notwithstanding the requirements referred to above, before giving a
direction for the issue of an RFS Series the Trust Manager must confirm with the
Rating Agencies that the issue will not result in the downgrading or withdrawal
of the rating of any Offered Note.
RFS Class A Notes
If, on the fifth Collection Determination Date following the date on which
an RFS Series was issued, the RFS Stated Amount for all RFSs in that RFS Series
has not been reduced to zero, each of those outstanding RFSs will convert to an
"RFS Class A Note." The converted RFS will:
(1) have an Initial Invested Amount equal to the RFS Initial Invested Amount
of that Note when it was an RFS;
(2) have an Invested Amount equal to the RFS Invested Amount of that Note
when it was an RFS at the date of conversion;
(3) have a Stated Amount equal to the RFS Stated Amount of that Note when it
was an RFS at the date of conversion;
(4) be denominated in Australian dollars;
(5) receive all payments of principal and interest denominated in Australian
dollars;
(6) have an Interest Rate calculated by reference to the Bank Bill Rate, not
"USD-LIBOR-BBA";
(7) be a registered instrument, not bearer instruments; and
(8) have a Margin equal to the margin under the Class A Notes.
"Margin" means: (1) in the case of Class A Notes, ___% and in the case of
the Class B Notes, ____%; (2) in the case of any RFSs, the margin inscribed in
the register maintained by the Issuer Trustee in relation to those RFSs on their
issue date; and (3) in the case of any RFS Class A Note, the Margin for the
Class A Notes plus the spread under the Currency Swap.
Form of the RFSs and the RFS Class A Notes
The RFSs and the RFS Class A Notes will be book entry instruments
denominated in Australian dollars which will be issued in Australia to
Australian resident investors only. The total issue amount of RFS Class A Notes
(if any) will be determined by the amount of RFSs (if any) issued during the
term of the Offered Notes. The RFSs and RFS Class A Notes are not offered
hereby.
Interest Payable on the RFSs and the RFS Class A Notes
Commencing on the issue date of an RFS or the conversion date of an RFS
Class A Note, Interest is payable monthly in arrears on each RFS and RFS Class A
Note to the person whose name is registered under the Master Trust Deed and the
Series Notice as the holder of the RFS or RFS Class A Note, until the Maturity
Date or until the Stated Amount of the RFS or RFS Class A Note is reduced to
zero (whichever is earlier). "Interest", with respect to an RFS or an RFS
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Class A Note, shall be equal to the interest accrued on the Invested Amount for
such RFS or RFS Class A Note at a rate equal to the Bank Bill Rate on the first
day of that Interest Period plus the margin for the RFS or RFS Class A Note,
during the period from the subsequent Payment Date to the day preceding the
Payment Date, calculated on the actual number of days in the related Interest
Period over 365. With respect to any RFS and Payment Date, the margin shall be a
per annum rate specified by the Trust Manager to the Issuer Trustee as applying
to that RFS on its issue date as inscribed in the register for that RFS. With
respect to any RFS Class A Note and a Payment Date, the related margin will be
the Margin applicable to Class A Notes for the same Interest Period (as defined
in the Currency Swap).
Payments to the holders of RFSs and the holders of RFS Class A Notes will be
in Australian dollars. Payments of Interest on the RFSs and the RFS Class A
Notes are pari passu with respect to Interest payable on the Class A Notes and
rank ahead of Interest payable on the Class B Notes.
Subordination of Class B Notes
The Class A Noteholders, the holders of RFSs (if any), the holders of RFS
Class A Notes (if any) and the Redraw Facility Provider will have the benefit of
the subordination of the Class B Notes. That is, to the extent that there is a
loss on a Housing Loan which is not satisfied by a claim (or deemed claim) under
a Mortgage Insurance Policy, by amounts recoverable by the Issuer Trustee from
an Approved Seller or the Servicer, or by the application of Excess Available
Income, the amount of that loss will be allocated to the Class B Notes, reducing
the Stated Amount of the Class B Notes until their Stated Amount is zero. The
amount of any remaining loss will then be allocated pari passu, between the
Class A Notes, the RFSs (if any), the RFS Class A Notes (if any) and the Redraw
Facility, reducing the Stated Amount of the Class A Notes, the RFSs (if any) and
the RFS Class A Notes (if any) until their Stated Amount is zero and reducing
the Principal Outstanding under the Redraw Facility until it is zero. For
further details see "--Application of Principal Charge Offs" above. Payments of
principal on the RFSs will be made prior to payments of principal to the Offered
Noteholders and the holders of the RFS Class A Notes.
Substitution of Housing Loans
The Trust Manager may substitute a housing loan from a WST warehouse trust
for a Housing Loan in the Trust. For a housing loan in a WST trust to be
eligible for substitution for a Housing Loan, the housing loan in the other WST
trust must have a maturity date not later than the date which is one year before
the Maturity Date of the Notes, have similar product features to one or more of
the Housing Loans, have an Unpaid Balance within A$30,000 of the Unpaid Balance
of the Housing Loan for which it is being substituted and must otherwise be
suitable for substitution in the Trust Manager's sole and absolute discretion.
The Trust Manager may take into account the geographic locations of the
properties securing the Housing Loan and the substituted housing loan. The Trust
Manager may not substitute a housing loan unless it has received written
confirmation from the Rating Agencies that the substitution will not result in
the downgrade or withdrawal of the rating given to the Offered Notes. In
addition, if the Unpaid Balance of the Housing Loan removed from the Trust is
greater than the Unpaid Balance of the substituted housing loan, the WST
warehouse trust must pay the Issuer Trustee such difference, and, on the
following Payment Date, any relevant interest adjustment.
Presription
An offered Note shall become void in its entirety unless surrendered for
payment within ten years of the Relevant Date in respect of any payment
thereon the effect of which would be to reduce the Stated Amount of such Note
to zero. After the date on which a Note becomes void in its entirety, no claim
may be made in respect of it.
The "Relevant Date" means the date on which a payment first becomes due
but, if the full amount of the money payable has not been received in New
York City by the Principal Paying Agent or the Note Trustee on or prior to
that date, it means the date on which, the full amount of such money having
been so received, notice to that effect is duly given in accordance with the
terms of the Notes.
Clean-up Offer
If at any time the aggregate Housing Loan Principal, expressed as a
percentage of the aggregate Housing Loan Principal as of the Cut-Off Date, is
less than 10%, then, if instructed by the Trust Manager, the Seller Trustee may
repurchase, on the following Payment Date, the equitable title to the Housing
Loans held by the Trust for an amount equal to the Unpaid Balance (in the case
of performing Housing Loans) or the Fair Market Value (in the case of
non-performing Housing Loans). The proceeds of sale will be applied by the
Issuer Trustee to repay moneys owing to Noteholders at that time in accordance
with the priorities for applying payments of Interest and principal between the
Classes of Notes.
Redemption of the Notes
If an event of default occurs under the Security Trust Deed while the Notes
are outstanding, the Security Trustee may (subject, in certain circumstances, to
the prior written consent of the Note Trustee in accordance with the provisions
of the Security Trust Deed), (and will if so directed by the Note Trustee alone
where it is the only Voting Mortgagee, or, otherwise by a resolution of 75% of
the Voting Mortgagees) enforce the security created by the Security Trust Deed.
That enforcement can include the sale of some or all of the Housing Loans. There
is no guarantee that the Security Trustee will be able to sell the Housing Loans
for their then Unpaid Balance. Accordingly, the Security Trustee may not be able
to realize the full value of the Housing Loans and this may have an impact upon
the Issuer Trustee's ability to repay all amounts outstanding in relation to the
Notes.
Any proceeds from the enforcement of the security will be applied in
accordance with the order of priority of payments as set out in the Security
Trust Deed. See "SECURITY FOR THE NOTES--Priorities Under the Security Trust
Deed."
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If the Trust terminates while Notes are outstanding, Westpac has a right of
first refusal to acquire the Housing Loans. The price to be paid by Westpac for
performing and non-performing Housing Loans must not be less than their Fair
Market Value. In the case of performing loans, the Issuer Trustee is required to
offer to sell them to Westpac under its right of first refusal for their then
Unpaid Balance. The "Unpaid Balance" of a Housing Loan, means the sum of (a) the
unpaid principal amount of that Housing Loan; and (b) the unpaid amount of all
finance charges, interest payments and other amounts accrued on or payable under
or in connection with that Housing Loan or the related Mortgage or other rights
relating to the Housing Loan. Where the Fair Market Value of a Housing Loan is
less than its then Unpaid Balance, its acquisition by Westpac will be subject to
prior approval by an Extraordinary Resolution of Noteholders. This is because in
such circumstances there may be a shortfall in the amount available to the
Issuer Trustee to fully repay all amounts outstanding in relation to the Notes.
The Servicer will determine whether a Housing Loan is performing or
non-performing.
Termination of the Trust
Termination Events
The Trust will terminate on any date which is a Termination Date.
Realization Upon Trust Assets
On the termination of the Trust, subject to Westpac's right of first refusal
outlined below, the Issuer Trustee must sell and realize the assets of the Trust
within 180 days. During the 180 day period, the Housing Loans, if performing,
must not be sold for less than their Unpaid Balance and in the case of
non-performing Housing Loans, for less than their Fair Market Value. The Issuer
Trustee may not sell any performing Housing Loan, within the 180 day period, for
less than its Fair Market Value without the consent of an Extraordinary
Resolution of the relevant Noteholders. The Servicer will determine whether a
Housing Loan is performing or non-performing.
Approved Seller's Right of First Refusal
As soon as practical after the Termination Date of the Trust, the Trust
Manager will direct the Issuer Trustee to offer (by written notice to Westpac)
irrevocably to extinguish in favor of Westpac, or if the Issuer Trustee has
perfected its title, to equitably assign to Westpac, its entire right, title and
interest in and to the Housing Loans, and related Mortgages (if any) for their
Unpaid Balance (for performing Housing Loans) and their Fair Market Value (for
non-performing Housing Loans).
If the Fair Market Value of a Housing Loan is less than its Unpaid Balance,
the sale requires the approval of an Extraordinary Resolution of Noteholders.
The Issuer Trustee is not entitled to sell any Housing Loans unless Westpac
has failed to accept the offer within 180 days after the occurrence of the
Termination Date by paying to the Issuer Trustee, within 180 days, the purchase
price.
Distribution
After deducting expenses, the Trust Manager shall direct the Issuer Trustee to
distribute the proceeds of realization of the assets of the Trust in accordance
with the cashflow allocation methodology set out above, and in accordance with
any directions given to it by the Trust Manager.
If all Notes relating to the Trust have been fully redeemed and the Trust's
creditors paid in full, the Issuer Trustee may distribute all or part of the
Trust Assets to the relevant Beneficiary.
Trust Accounts
The Issuer Trustee will establish and maintain under the Master Trust
Deed bank accounts with an Approved Bank, consisting of the "Collection
Account" and the US$ Account (collectively, the "Trust Accounts"). Each bank
account shall be opened by the Issuer Trustee in its name and in its capacity
as trustee of the Trust. No bank account shall be used for any purpose other
than for the Trust and in accordance with the Master Trust Deed. An "Approved
Bank" means: (a) a Bank which has a short term rating of at least A-1+ from
Standard & Poor's, P-1 from Moody's and _________ from Fitch; or (b) any bank
or financial institution which is specified to be an Approved Bank in the
Series Notice, but means Westpac for so long as it has a short term rating of
A-1 or better from Standard & Poor's.
The Trust Manager shall have the discretion and the duty to recommend or
to propose in writing to the Issuer Trustee, the manner in which any moneys
forming part of the Trust shall be invested in Authorized Investments and
what purchases, sales, transfers, exchanges, collections, realizations or
alterations of Trust Assets shall be effected and when and how the same
should be effected. It is the role of the Issuer Trustee to give effect to
all such recommendations or proposals of the Trust
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Manager. Each investment of moneys on deposit in the Trust Accounts shall be in
Authorized Investments that will mature not later than the Business Day
preceding the applicable monthly Payment Date. "Authorized Investments" consist
of the following: (a) Housing Loans, Mortgages and other related securities, (b)
cash, (c) bonds, debentures, stock or treasury bills of the Commonwealth of
Australia or the Government of any State or Territory of the Commonwealth; (d)
debentures or stock of any public statutory body constituted under the law of
the Commonwealth of Australia or of any State of the Commonwealth where the
repayment of the principal is secured and the interest payable thereon is
guaranteed by the Commonwealth or any State or Territory of the Commonwealth;
(e) notes of other securities of the Commonwealth of Australia or the Government
of any State or Territory of the Commonwealth; (f) (i) deposits with, or the
acquisition of certificates of deposit (whether negotiable, convertible or
otherwise), issued by, a bank which carries on business in Victoria and New
South Wales; (ii) bills of exchange which at the time of acquisition have a
remaining term to maturity of not more than 200 days, accepted or endorsed by a
bank which carries on business in Victoria and New South Wales, which, in each
case, has either: (A) the highest short-term rating available to be given by the
Rating Agencies; or (B) if such investment has a maturity of 30 days or less and
does not exceed 20% of the total Invested Amount of all relevant Notes on the
date of the investment, a short-term rating of "A-1"/"P-1" by the Rating
Agencies; and (g) any other assets of a class of assets that are both: (i)
prescribed for the purposes of sub-paragraph (iv) of the definition of a "pool
of mortgages" in section 84FA(1) of the Stamp Duties Act, 1920 of New South
Wales, or are otherwise included within that definition of "pool of mortgages";
and (ii) declared by order of the Governor in Council of Victoria and published
in the Victorian Government Gazette to be assets for purposes of Subdivision 17A
of the Stamps Act, 1958 of Victoria or are otherwise included within
sub-paragraph (b)(ii) of the definition of "pool of mortgages" in section 137NA
of that Act.
General
Collections and other amounts credited to the Collection Account will be
allocated by the Trust Manager, and paid by the Issuer Trustee as directed by
the Trust Manager, as set forth herein.
Determination Date - Calculations and Reports to Noteholders
On each Determination Date, the Trust Manager will, in respect of the
Collection Period ending before that Determination Date, calculate or otherwise
ascertain:
(i) the Available Income;
(ii) the Total Available Funds;
(iii) in the case of the first Determination Date, the Accrued Interest
Adjustment payable to each Approved Seller;
(iv) the aggregate of all Redraws made during that Collection Period;
(v) the Redraw Shortfall;
(vi) the Trust Expenses;
(vii) the Subordinated Percentage;
(viii) the Initial Subordinated Percentage;
(ix) the Total Payments;
(x) the Payment Shortfall (if any);
(xi) the Principal Draw (if any) for that Collection Period, together
with all Principal Draws made before the start of that Collection
Period and not repaid;
(xii) the Gross Principal Collections;
(xiii) the Principal Collections;
(xiv) the Excess Available Income (if any);
(xv) the Excess Collections Distribution (if any);
(xvi) the Liquidity Shortfall (if any);
(xvii) the Remaining Liquidity Shortfall (if any);
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(xviii) the aggregate of all Liquidation Losses (if any);
(xix) the Principal Charge Off (if any);
(xx) the Class A Percentage and the Class B Percentage;
(xxi) the Class A Bond Factor, the Class B Bond Factor, the RFS Class A
Bond Factor and the RFS Bond Factor for each RFS Series;
(xxii) the Class A Charge Offs, the Class B Charge Offs, the RFS Class A
Charge Offs, the RFS Charge Offs and the Redraw Charge Offs (if
any);
(xxiii) all Carryover Charge Offs (if any);
(xxiv) the Purchase Price adjustment;
(xxv) if required, the Threshold Rate at that Collection Determination
Date;
(xxvi) total Prepayment Costs (if any);
(xxvii) total Prepayment Benefits (if any);
(xxviii) the Prepayment Cost Surplus (if any);
(xxix) the Prepayment Benefit Shortfall (if any);
(xxx) the Substitution Net Transfer Amount (Income) an the Substitution
Net Transfer Amount (Principal) (if any);
(xxxi) the Quarterly Percentage;
(xxxii) each US$ Equivalent amount, and each A$ Equivalent amount,
required to be calculated under the Series Notice;
(xxxiii) LIBOR, as at the first day of the related Interest Period ending
immediately after that Collection Determination Date as
calculated by the Agent Bank; and
(xxxiv) all other calculations necessary for the Issuer Trustee to make
allocations and distributions to Noteholders.
The Notes will be registered in the name of a nominee of DTC and will not
be registered in the names of the beneficial owners or their nominees. As a
result, unless and until Definitive Notes are issued in the limited
circumstances described under "--Definitive Notes" below, beneficial owners
will not be recognized by the Issuer Trustee as Noteholders, as that term is
used in the Master Trust Deed. Hence, until such time, beneficial owners will
receive reports and other information provided for under the Transaction
Documents only if, when and to the extent provided by DTC and its
participating organizations.
Book-Entry Registration
Each Class of Notes will be represented by one or more book-entry Notes (the
"Book-Entry Notes"). Persons acquiring beneficial ownership interests in the
Notes ("Note Owners") will hold their Notes through the Depository Trust Company
("DTC") in the United States, or Cedel or Euroclear (in Europe) if they are
participants of such systems, or indirectly through organizations which are
participants in such systems. The Book-Entry Notes will be issued in one or more
certificates which equal the aggregate principal balance of each Class of Notes
and will initially be registered in the name of Cede & Co., the nominee of DTC.
Cedel and Euroclear will hold omnibus positions on behalf of their participants
through customers' securities accounts in Cedel's and Euroclear's names on the
books of their respective depositaries which in turn will hold such positions in
customers' securities accounts in the depositaries' names on the books of DTC.
Citibank will act as depositary for Cedel, and Chase will act as depositary for
Euroclear (in such capacities, individually, the "Relevant Depositary" and
collectively, the "European Depositaries"). Investors may hold such beneficial
interests in the Book-Entry Notes in minimum denominations of US$100,000. Except
as described below, no person acquiring a Book-Entry Note (each, a "beneficial
owner") will be entitled to receive a physical certificate representing such
Note (a "Definitive Note"). Unless and until Definitive Notes are issued, it is
anticipated that the only "Noteholder" of each Class of Notes will be Cede &
Co., as nominee of DTC. Note Owners will not be Noteholders as that term is used
in the Master Trust Deed. Note Owners are only permitted to exercise their
rights indirectly through Participants and DTC.
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The beneficial owner's ownership of a Book-Entry Note will be recorded on
the records of the brokerage firm, bank, thrift institution or other financial
intermediary (each, a "Financial Intermediary") that maintains the beneficial
owner's account for such purpose. In turn, the Financial Intermediary's
ownership of such Book-Entry Note will be recorded on the records of DTC (or of
a participating firm that acts as agent for the Financial Intermediary, whose
interest will in turn be recorded on the records of DTC, if the beneficial
owner's Financial Intermediary is not a DTC participant and on the records of
Cedel or Euroclear, as appropriate).
Note Owners will receive all distributions of principal of, and interest on,
each Class of Notes from the Trustee through DTC and DTC participants. While the
Notes are outstanding (except under the circumstances described below), under
the rules, regulations and procedures creating and affecting DTC and its
operations (the "Rules"), DTC is required to make book-entry transfers among
Participants on whose behalf it acts with respect to the Notes and is required
to receive and transmit distributions of principal of, and interest on, the
Notes. Participants and indirect participants with whom Note Owners have
accounts with respect to Notes are similarly required to make book-entry
transfers and receive and transmit such distributions on behalf of their
respective Note Owners. Accordingly, although Note Owners will not possess
certificates, the Rules provide a mechanism by which Note Owners will receive
distributions and will be able to transfer their interest.
Note Owners will not receive or be entitled to receive certificates
representing their respective interests in the Offered Notes, except under the
limited circumstances described below. Unless and until Definitive Notes are
issued, Note Owners who are not Participants may transfer ownership of Notes
only through Participants and indirect participants by instructing such
Participants and indirect participants to transfer Notes, by book-entry
transfer, through DTC for the account of the purchasers of such Offered Notes,
which account is maintained with their respective Participants. Under the Rules
and in accordance with DTC's normal procedures, transfers of ownership of Notes
will be executed through DTC and the accounts of the respective Participants at
DTC will be debited and credited. Similarly, the Participants and indirect
participants will make debits or credits, as the case may be, on their records
on behalf of the selling and purchasing Note Owners.
Because of time zone differences, credits of securities received in Cedel or
Euroclear as a result of a transaction with a Participant will be made during
subsequent securities settlement processing and dated the Business Day following
the DTC settlement date. Such credits or any transactions in such securities
settled during such processing will be reported to the relevant Euroclear or
Cedel Participants on such Business Day. Cash received in Cedel or Euroclear as
a result of sales of securities by or through a Cedel Participant (as defined
below) or Euroclear Participant (as defined below) to a DTC Participant will be
received with value on the DTC settlement date but will be available in the
relevant Cedel or Euroclear cash account only as of the Business Day following
settlement in DTC. For information with respect to tax documentation procedures
relating to the Notes, [see "UNITED STATES FEDERAL INCOME TAX
CONSEQUENCES--Federal Income Tax Consequences to Foreign Investors" and
"--Backup Withholding" herein and "GLOBAL CLEARANCE, SETTLEMENT AND TAX
DOCUMENTATION PROCEDURES--Certain U.S. Federal Income Tax Documentation
Requirements" in Annex I hereto.]
Transfers between Participants will occur in accordance with DTC rules.
Transfers between Cedel Participants and Euroclear Participants will occur in
accordance with their respective rules and operating procedures.
Cross-market transfers between persons holding directly or indirectly
through DTC, on the one hand, and directly or indirectly through Cedel
Participants or Euroclear Participants, on the other, will be effected in DTC in
accordance with DTC rules on behalf of the relevant European international
clearing system by the Relevant Depositary; however, such cross market
transactions will require delivery of instructions to the relevant European
international clearing system by the counterparty in such system in accordance
with its rules and procedures and within its established deadlines (European
time). The relevant European international clearing system will, if the
transaction meets its settlement requirements, deliver instructions to the
Relevant Depositary to take action to effect final settlement on its behalf by
delivering or receiving securities in DTC, and making or receiving payment in
accordance with normal procedures for same day funds settlement applicable to
DTC. Cedel Participants and Euroclear Participants may not deliver instructions
directly to the European Depositaries.
DTC, which is a New York-chartered limited purpose trust company, performs
services for its participants, some of which (and/or their representatives) own
DTC. In accordance with its normal procedures, DTC is expected to record the
positions held by each DTC participant in the Book-Entry Notes, whether held for
its own account or as a nominee for another person. In general, beneficial
ownership of Book-Entry Notes will be subject to the rules, regulations and
procedures governing DTC and DTC participants as in effect from time to time.
Cedel is incorporated under the laws of Luxembourg as a professional
depository. Cedel holds securities for its participating organizations ("Cedel
Participants") and facilitates the clearance and settlement of securities
transactions between Cedel Participants through electronic book-entry changes in
accounts of Cedel Participants, thereby eliminating the need for physical
movement of certificates. Transactions may be settled in Cedel in any of 28
currencies, including United States dollars. Cedel provides to its Cedel
Participants, among other things, services for safekeeping,
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administration, clearance and settlement of internationally-traded securities
and securities lending and borrowing. Cedel interfaces with domestic markets in
several countries. As a professional depository, Cedel is subject to regulation
by the Luxembourg Monetary Institute. Cedel participants are recognized
financial institutions around the world, including underwriters, securities
brokers and dealers, banks, trust companies, clearing corporations and certain
other organizations. Indirect access to Cedel is also available to others, such
as banks, brokers, dealers and trust companies that clear through or maintain a
custodial relationship with a Cedel Participant, either directly or indirectly.
Euroclear was created in 1968 to hold securities for its participants
("Euroclear Participants") and to clear and settle transactions between
Euroclear Participants through simultaneous electronic book-entry delivery
against payment, thereby eliminating the need for physical movement of
certificates and any risk from lack of simultaneous transfers of securities and
cash. Transactions may be settled in any of 32 currencies, including United
States dollars. Euroclear includes various other services, including securities
lending and borrowing and interfaces with domestic markets in several countries
generally similar to the arrangements for cross-market transfers with DTC
described above. Euroclear is operated by the Brussels, Belgium office of Morgan
Guaranty Trust Company of New York (the "Euroclear Operator"), under contract
with Euroclear Clearance Systems S.C., a Belgian cooperative corporation (the
"Cooperative"). All operations are conducted by the Euroclear Operator, and all
Euroclear securities clearance accounts and Euroclear cash accounts are accounts
with the Euroclear Operator, not the Cooperative. The Cooperative establishes
policy for Euroclear on behalf of Euroclear Participants. Euroclear Participants
include banks (including central banks), securities brokers and dealers and
other professional financial intermediaries. Indirect access to Euroclear is
also available to other firms that clear through or maintain a custodial
relationship with a Euroclear Participant, either directly or indirectly.
The Euroclear Operator is the Belgian branch of a New York banking
corporation which is a member bank of the Federal Reserve System. As such, it is
regulated and examined by the Board of Governors of the Federal Reserve System
and the New York State Banking Department, as well as the Belgian Banking
Commission.
Securities clearance accounts and cash accounts with the Euroclear Operator
are governed by the Terms and Conditions Governing Use of Euroclear and the
related Operating Procedures of the Euroclear System and applicable Belgian law
(collectively, the "Terms and Conditions"). The Terms and Conditions govern
transfers of securities and cash within Euroclear, withdrawals of securities and
cash from Euroclear, and receipts of payments with respect to securities in
Euroclear. All securities in Euroclear are held on a fungible basis without
attribution of specific certificates to specific securities clearance accounts.
The Euroclear Operator acts under the Terms and Conditions only on behalf of
Euroclear Participants, and has no record of or relationship with persons
holding through Euroclear Participants.
Distributions on the Book-Entry Notes will be made on each Payment Date by
the Note Trustee to DTC. DTC will be responsible for crediting the amount of
such payments to the accounts of the applicable DTC participants in accordance
with DTC's normal procedures. Each DTC participant will be responsible for
disbursing such payments to the beneficial owners of the Book-Entry Notes that
it represents and to each Financial Intermediary for which it acts as agent.
Each such Financial Intermediary will be responsible for disbursing funds to the
beneficial owners of the Book-Entry Notes that it represents.
Under a book-entry format, beneficial owners of the Book-Entry Notes may
experience some delay in their receipt of payments, since such payments will be
forwarded by the Trustee to Cede & Co. Distributions with respect to Notes held
through Cedel or Euroclear will be credited to the cash accounts of Cedel
Participants or Euroclear Participants in accordance with the relevant system's
rules and procedures, to the extent received by the Relevant Depositary. Such
distributions will be subject to tax reporting in accordance with relevant
United States tax laws and regulations. [See "UNITED STATES FEDERAL INCOME TAX
CONSEQUENCES--Federal Income Tax Consequences to Foreign Investors" and
"--Backup Withholding" herein.] Because DTC can only act on behalf of Financial
Intermediaries, the ability of a beneficial owner to pledge Book-Entry Notes to
persons or entities that do not participate in the Depository system, or
otherwise take actions in respect of such Book-Entry Notes, may be limited due
to the lack of physical certificates for such Book-Entry Notes. In addition,
issuance of the Book-Entry Notes in book-entry form may reduce the liquidity of
such Notes in the secondary market since certain potential investors may be
unwilling to purchase Notes for which they cannot obtain physical certificates.
Monthly and annual reports on the Trust will be provided to Cede & Co., as
nominee of DTC, and may be made available by Cede & Co. to beneficial owners
upon request, in accordance with the rules, regulations and procedures creating
and affecting the Depository, and to the Financial Intermediaries to whose DTC
accounts the Book-Entry Notes of such beneficial owners are credited.
DTC has advised the Note Trustee that, unless and until Definitive Notes are
issued, DTC will take any action permitted to be taken by the holders of the
Book-Entry Notes under the Master Trust Deed only at the direction of one or
more Financial Intermediaries to whose DTC accounts the Book-Entry Notes are
credited, to the extent that such actions are taken on behalf of Financial
Intermediaries whose holdings include such Book-Entry Notes. Cedel or the
Euroclear Operator, as the case may be, will take any other action permitted to
be taken by a Noteholder under the Transaction Documents on behalf of a Cedel
Participant or Euroclear Participant only in accordance with its relevant rules
and
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procedures and subject to the ability of the Relevant Depositary to effect such
actions on its behalf through DTC. DTC may take actions, at the direction of the
related Participants, with respect to some Notes which conflict with actions
taken with respect to other Notes.
Although DTC, Cedel and Euroclear have agreed to the foregoing procedures in
order to facilitate transfers of Notes among participants of DTC, Cedel and
Euroclear, they are under no obligation to perform or continue to perform such
procedures and such procedures may be discontinued at any time.
Neither the Issuer Trustee, the Servicer nor the Trustee will have any
responsibility for any aspect of the records relating to or payments made on
account of beneficial ownership interests of the Book-Entry Notes held by Cede &
Co., as nominee for DTC, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Definitive Notes
The Notes of each Class will be issued in registered, certificated form to
the Note Owners of such Class or their nominees ("Definitive Notes"), rather
than to the Depository or its nominee, only if (i) the Depository advises the
Note Trustee in writing that it is no longer willing or able to discharge
properly its responsibilities as Depository with respect to the Notes of such
Class, and the Note Trustee is unable to locate a qualified successor, or (ii)
an Event of Default has occurred, and Note Owners representing not less than 75%
of the Invested Amount of such Class advise the Note Trustee and the Depository
through Participants in writing that the continuation of a book-entry system
through the Depository is no longer in the best interest of the Note Owners of
such Class.
Upon the occurrence of any of the events described in the immediately
preceding paragraph, the Depository is required to notify all Participants of
the availability through the Depository of Definitive Notes [and the Note
Trustee will be required to notify all beneficial owners of the occurrence of
such event.] Upon surrender by the Depository of the definitive certificate
representing the Notes of the affected Class and instructions for registration,
the Trustee will issue the Notes of such Class as Definitive Notes, and
thereafter the Trustee will recognize the Note Owners of such Definitive Notes
as Noteholders under the Master Trust Deed, Series Notice and Note Trust Deed.
Distributions of principal and interest on the Notes will be made by the
Trustee directly to Noteholders in accordance with the procedures set forth
herein and in the Master Trust Deed, Series Notice and the Note Trust Deed.
Interest payments and any principal payments on each Payment Date will be made
to Noteholders in whose names the Definitive Notes were registered at the close
of business on the related Record Date. Distributions will be made by check
mailed to the address of such Noteholder as it appears on the register
maintained by the Trustee. The final payment, on any Note, however, will be made
only upon presentation and surrender of such Note at the office or agency
specified in the notice of final distribution to Noteholders. The Trustee will
provide such notice to registered Noteholders mailed not later than the fifth
day of the month of such final distributions.
Definitive Notes will be transferable and exchangeable at the offices of the
transfer agent and registrar, which initially will be the Trustee (in such
capacity, the "Transfer Agent and Registrar"). No service charge will be imposed
for any registration of transfer or exchange, but the Transfer Agent and
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge imposed in connection therewith. The Transfer Agent and
Registrar will not be required to register the transfer or exchange of
Definitive Notes for the period from the Record Date preceding the due date for
any payment to the Payment Date with respect to such Definitive Notes.
Modification of Master Trust Deed Without Noteholder Consent
The Issuer Trustee, the Trust Manager and the Servicer may by way of
supplemental deed alter, add to or modify the Master Trust Deed or a Series
Notice so long as such alteration, addition or modification was effected upon
consent of the Noteholders or Beneficiaries (see "--Modification of Master Trust
Deed with Noteholder Consent" below) or is:
(a) to correct a manifest error or ambiguity or is of a formal,
technical or administrative nature only;
(b) necessary to comply with the provisions of any statute or regulation
or with the requirements of any Australian governmental agency;
(c) appropriate or expedient as a consequence of an amendment to any
statute or regulation or altered requirements of any Government
Agency (including, without limitation, an alteration, addition or
modification which is appropriate or expedient as a consequence of
the enactment of a statute or regulation or an amendment to any
statute or regulation or ruling by the Australian Commissioner or
Deputy Commissioner of Taxation or any governmental announcement or
statement, in any case which has or may have the effect of altering
the manner or basis of taxation of trusts generally or of trusts
similar to any of the Trusts); or
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(d) in the opinion of the Issuer Trustee desirable to enable the
provisions of the Master Trust Deed to be more conveniently,
advantageously, profitably or economically administered or is
otherwise desirable for any reason (including to give effect, in the
Trust Manager's reasonable opinion, to an allocation of expenses).
Modification of Master Trust Deed With Noteholder Consent
Where in the reasonable opinion of the Issuer Trustee a proposed alteration,
addition or modification to the Master Trust Deed (except an alteration,
addition or modification referred to in "--Modification of Master Trust Deed
Without Noteholder Consent" above) is prejudicial or likely to be prejudicial to
the interests of the Noteholders or a Class of Noteholders or the Beneficiaries
such alteration, addition or modification may only be effected by the Issuer
Trustee with the prior consent of the Noteholders or a Class of Noteholders (as
the case may be) under an Extraordinary Resolution of the Noteholders or a Class
of Noteholders (as the case may be) in the Trust or with the prior written
consent of the Beneficiaries (as the case may be).
Meetings of Voting Mortgagees and Meetings of Class A Noteholders; Modification;
Consents; Waiver
The Security Trust Deed contains provisions for convening meetings of the
Voting Mortgagees to, inter alia, enable the Voting Mortgagees to direct or
consent to the Security Trustee taking or not taking certain actions under the
Security Trust Deed, for example to enable the Voting Mortgagees to direct the
Security Trustee to enforce the Security Trust Deed.
For so long as the amounts outstanding under the Offered Notes are 75% or
more of all amounts secured by the Security Trust Deed, the Note Trustee may
direct the Security Trustee to do any act or thing which the Security Trustee is
required to do, or may only do, at the direction of an Extraordinary Resolution
of the Voting Mortgagees.
Neither the Security Trustee nor the Trust Manager may call a meeting of
Voting Mortgagees without the Note Trustee's consent, if the amounts outstanding
under the Notes are 75% or more of all amounts secured by the Security Trust
Deed.
The Note Trust Deed contains provisions for convening meetings of Class A
Noteholders to consider any matter affecting their interests, including the
directing, of the Note Trustee to direct the Security Trustee to enforce the
security under the Security Trust Deed, or the sanctioning by Extraordinary
Resolution of the Class A Noteholders of a modification of the Class A Notes or
the provisions of any of the Relevant Documents, provided that no modification
of certain terms including, inter alia, the date of maturity of the Class A
Notes, or a modification which would have the effect of postponing any day for
payment of interest in respect of any Class A Notes, reducing or cancelling the
amount of principal payable in respect of any Class A Notes or the rate of
interest applicable to any Class A Notes or altering the majority required to
pass an Extraordinary Resolution or altering the currency of payment of any
Class A Notes or an alteration of the date or priority of redemption of the
Class A Notes (any such modification being referred to below as a "Basic Terms
Modification") shall be effective except that, if the Note Trustee is of the
opinion that such a Basic Terms Modification is being proposed by the Issuer
Trustee as a result of, or in order to avoid, an Event of Default, such Basic
Terms Modification may be sanctioned by Extraordinary Resolution of the Class A
Noteholders as described below. The quorum at any meeting of Class A Noteholders
for passing an Extraordinary Resolution shall be two or more persons holding or
representing over 50% of the aggregate of the Class A Notes then outstanding or,
at any adjourned meeting, two or more persons being or representing Class A
Noteholders whatever the aggregate Invested Amount of the Class A Notes so held
or represented except that, at any meeting the business of which includes the
sanctioning of a Basic Terms Modification, the necessary quorum for passing an
Extraordinary Resolution shall be two or more persons holding or representing
75% or at any adjourned such meeting 25%, or more of the aggregate Invested
Amount of the Class A Notes (irrespective of class) then outstanding. The Note
Trust Deed contains provisions limiting the powers of the Class B Noteholders,
inter alia, to request or direct the Note Trustee to take any action or to pass
an effective Extraordinary Resolution according to the effect thereof on the
interests of the Class B Noteholders. Except in certain circumstances, the Note
Trust Deed imposes no such limitations on the powers of the Class B Noteholders,
the exercise of which will be binding on the Class B Noteholders, irrespective
of the effect on their interests. An Extraordinary Resolution passed at any
meeting of Class A Noteholders shall be binding on all Class A Noteholders,
whether or not they are present at the meeting. The majority required for an
Extraordinary Resolution shall be 75% of the votes cast in respect of that
Extraordinary Resolution.
Pursuant to the terms of the Note Trust Deed, the Note Trustee may agree,
without the consent of the Class A Noteholders, among other things, (i) to any
modification (except a Basic Terms Modification) of, or to the waiver or
authorization of any breach or proposed breach of the Class A Notes (including
the Conditions), or any of the Transaction Documents which is not, in the
opinion of the Note Trustee materially prejudicial to the interests of the Class
A Noteholders or (ii) to any modification of the Class A Notes (including the
Conditions, or any of the Transaction Documents which, in the Note Trustee's
opinion, is to correct a manifest error or is of a formal, minor or technical
nature. The Note Trustee may also, without the consent of the Class A
Noteholders, determine that any Event of Default or any condition, event or act
which with the giving of notice and/or lapse of time and/or the issue of a
certificate would constitute an Event of Default shall not, or shall not subject
to specified conditions, be treated as such. Any such modification,
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waiver, authorization or determination shall be binding on the Class A
Noteholders and, unless the Note Trustee agrees otherwise, any such modification
shall be notified to the Class A Noteholders as specified in the Transaction
Documents as soon as practicable thereafter.
Meetings of Voting Mortgagees and Meetings of Class B Noteholders;
Modifications; Consents; Waiver
The Security Trust Deed contains provisions for convening meetings of the
Voting Mortgagees to, inter alia, enable the Voting Mortgagees to direct or
consent to the Security Trustee taking or not taking certain actions under the
Security Trust Deed, for example to enable the Voting Mortgagees to direct the
Security Trustee to enforce the Security Trust Deed.
For so long as the amounts outstanding under the Notes are 75% or more of
all amounts secured by the Security Trust Deed, the Note Trustee may direct the
Security Trustee to do any act or thing which the Security Trustee is required
to do, or may only do, at the direction of an Extraordinary Resolution of the
Voting Mortgagees.
Neither the Security Trustee nor the Trust Manager may call a meeting of
Voting Mortgagees without the Note Trustee's consent, if the amounts outstanding
under the Notes are 75% or more of all amounts secured by the Security Trust
Deed.
The Note Trust Deed contains provisions for convening meetings of Class B
Noteholders to consider any matter affecting their interests, including the
directing of the Note Trustee, to direct the Security Trustee to enforce the
security under the Security Trust Deed, or the sanctioning by Extraordinary
Resolution of the Class B Noteholders of a modification of the Class B Notes
(including the Conditions with respect to the Class B Notes) or the provisions
of any of the Transaction Documents, provided that no modification of certain
terms including, inter alia, the date of maturity of the Class B Notes, or a
modification which would have the effect of postponing any day for payment of
interest in respect of any Class B Notes, reducing or cancelling the amount of
principal payable in respect of any Class B Notes or the rate of interest
applicable to any Class B Notes or altering the majority required to pass an
Extraordinary Resolution or altering the currency of payment of any Class B
Notes or an alteration of the date or priority of redemption of the Class B
Notes (any such modification being referred to below as a "Basic Terms
Modification") shall be effective except that, if the Note Trustee is of the
opinion that such a Basic Terms Modification is being proposed by the Issuer
Trustee as a result of, or in order to avoid, an Event of Default, such Basic
Terms Modification may be sanctioned by Extraordinary Resolution of the Class B
Noteholders as described below. The quorum at any meeting of Class B Noteholders
for passing an Extraordinary Resolution shall be two or more persons holding or
representing over 50% of the aggregate of the Class B Notes then outstanding or,
at any adjourned meeting, two or more persons being or representing Class B
Noteholders whatever the aggregate Invested Amount of the Class A Notes so held
or represented except that, at any meeting the business of which includes the
sanctioning of a Basic Terms Modification, the necessary quorum for passing an
Extraordinary Resolution shall be two or more persons holding or representing
75% or at any adjourned such meeting 25%, or more of the aggregate Invested
Amount of the Class B Notes (irrespective of class) then outstanding. The Note
Trust Deed contains provisions limiting the powers of the Class B Noteholders,
inter alia, to request or direct the Note Trustee to take any action or to pass
an effective Extraordinary Resolution according to the effect thereof on the
interests of the Class B Noteholders. Except in certain circumstances, the Note
Trust Deed imposes no such limitations on the powers of the Class B Noteholders,
the exercise of which will be binding on the Class B Noteholders, irrespective
of the effect on their interests. An Extraordinary Resolution passed at any
meeting of Class B Noteholders shall be binding on all Class B Noteholders,
whether or not they are present at the meeting. The majority required for an
Extraordinary Resolution shall be 75% of the votes cast in respect of that
Extraordinary Resolution.
Pursuant to the terms of the Note Trust Deed, the Note Trustee may agree,
without the consent of the Class B Noteholders; among other things (i) to any
modification (except a Basic Terms Modification) of; or to the waiver or
authorization of any breach or proposed breach of the Class B Notes (including
the Conditions with respect to the Class B Notes), or any of the Transaction
Documents which is not, in the opinion of the Note Trustee materially
prejudicial to the interests of the Class B Noteholders or (ii) to any
modification of the Class B Notes (including the Conditions with respect to the
Class B Notes, or any of the Transaction Documents which, in the Note Trustee's
opinion, is to correct a manifest error or is of a formal, minor or technical
nature. The Note Trustee may also, without the consent of the Class B
Noteholders, determine that any Event of Default or any condition, event or act
which with the giving of notice and/or lapse of time and/or the issue of a
certificate would constitute an Event of Default shall not, or shall not subject
to specified conditions, be treated as such. Any such modification, waiver,
authorization or determination shall be binding on the Class B Noteholders and,
unless the Note Trustee agrees otherwise, any such modification shall be
notified to the Class B Noteholders as specified in the Transaction Documents as
soon as practicable thereafter.
Events of Default; Rights Upon Event of Default
An "Event of Default" under the Security Trust Deed will occur if:
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(1) the Issuer Trustee fails to pay any Interest within 10 Business Days
of the Payment Date on which the Interest was due to be paid to Class
A Noteholders, Class B Noteholders, holders of RFSs or holders of RFS
Class A Notes;
(2) the Issuer Trustee fails to pay any other amount owing to Class A
Noteholders, Class B Noteholders, holders of RFSs, holders of RFS
Class A Notes or any other Mortgagee (as defined in the Security
Trust Deed) within 10 Business Days of the due date for payment (or
within any applicable grace period agreed with the relevant Mortgagee
or where the Mortgagee is a Noteholder with the Note Trustee);
(3) the Issuer Trustee fails to perform or observe any other provisions
(other than the obligations referred to in paragraphs (1) and (2))
of a Transaction Document (other than the Underwriting Agreement or
the Subscription Agreement) where such failure will have a material
and adverse effect on the amount of any payment to be made to any
Noteholder or will materially and adversely affect the timing of
such payment, and that default (if in the opinion of the Security
Trustee capable of remedy (that opinion, being subject in certain
circumstances to the approval of the Note Trustee in accordance with
the provisions of the Security Trust Deed) is not remedied within 30
days (or such longer period as may be specified in the notice, that
longer period having been approved by the Note Trustee, for so long
as amounts outstanding under the Notes are the Majority Secured
Amounts) after written notice from the Security Trustee requiring
the failure to be remedied;
(4) an Insolvency Event occurs relating to the Issuer Trustee (in its
personal capacity or as trustee of the Trust);
(5) the charge created by the Security Trust Deed is not or ceases to be
a first ranking charge over the Trust Assets, or any other obligation
of the Issuer Trustee (other than as mandatorily preferred by law)
ranks ahead of or pari passu with any of the moneys secured by the
Security Trust Deed;
(6) any security interest over the Trust Assets is enforced;
(7) all or any part of any Transaction Document, other than the
Underwriting Agreement, the Redraw Facility or the Swap Agreements,
is terminated or is or becomes void, illegal, invalid, unenforceable
or of limited force and effect, or a party becomes entitled to
terminate, rescind or avoid all or part of any Transaction Document
(other than the Underwriting Agreement, the Redraw Facility or the
Swap Agreements); or
(8) without the prior consent of the Security Trustee (that consent
being subject in certain circumstances to the prior written consent
of the Note Trustee in accordance with the provisions of the
Security Trust Deed), (i) the Trust is wound up, or the Issuer
Trustee is required to wind up the Trust under the Master Trust Deed
or applicable law, or the winding up of the Trust commences; (ii)
the Trust is held or is conceded by the Issuer Trustee not to have
been constituted or to have been imperfectly constituted; or (iii)
unless another trustee is appointed to the Trust under the Relevant
Documents, the Issuer Trustee ceases to be authorized under the
Trust to hold the property of the Trust in its name and to perform
its obligations under the Relevant Documents.
Enforcement
The Security Trustee must promptly convene a meeting of the Voting
Mortgagees after it receives notice, or has actual knowledge of, an Event of
Default. The Security Trustee may waive (such waiver, being subject to the prior
written consent of the Note Trustee in accordance with the provisions of the
Security Trust Deed), an Event of Default before it is required to convene a
meeting of Mortgagees if that Event of Default is not (in the opinion of the
Security Trustee) materially prejudicial to the Mortgagees' interests.
At the meeting, the Voting Mortgagees must vote by Extraordinary Resolution
(being a resolution passed at a duly convened meeting by a majority consisting
of not less than 75% of the votes capable of being cast by Voting Mortgagees
present in person or by proxy or by written resolution signed by all of the
Voting Mortgagees) on whether to direct the Security Trustee to:
(1) declare the charge to be enforceable;
(2) declare all amounts owing by the Issuer Trustee which are secured by the
Security Trust Deed (including amounts outstanding under the Notes plus accrued
and unpaid interest) to be immediately due and payable on demand;
(3) crystalize the floating charge created under the Security Trust Deed in
relation to any or all of the Mortgaged Property; and/or
(4) appoint a receiver over the Trust Assets or itself exercise the powers
that a receiver would otherwise have under the Security Trust Deed.
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The Security Trustee cannot exercise the powers referred to above unless
directed by an Extraordinary Resolution in the manner outlined above or unless
in the reasonable opinion of the Security Trustee it is necessary to do so to
protect the interests of the Security Trustee in its personal capacity. The
Security Trustee is not obligated to act unless it obtains an indemnity from the
Voting Mortgagees, and is put in funds to the extent to which it may become
liable for the relevant enforcement actions.
For so long as the Note Trustee is the only Voting Mortgagee it may direct
the Security Trustee to do any act which the Security Trustee is required to do,
or may only do, at the direction of an Extraordinary Resolution of Voting
Mortgagees.
Neither the Security Trustee nor the Trust Manager may call a meeting of
Voting Mortgagees while the Note Trustee is the only Voting Mortgagee, unless
the Note Trustee otherwise consents.
The Note Trustee will be the only Voting Mortgagee for so long as the
amounts outstanding under the Notes are 75% or more of all amounts secured by
the Security Trust Deed.
At any time after an Event of Default occurs,the Security Trustee shall
enforce the charge as if directed to do so by an Extraordinary Resolution of
Voting Mortgagees:
(i) if the Note Trustee is not the only Voting Mortgagee; and
(ii) the Note Trustee directs the Security Trustee to enforce the charge
(whether directed to do so by Class A Noteholders or as the Note Trustee
determines on behalf of the Class A Noteholders).
No Mortgagee is entitled to enforce the charge under the Security Trust
Deed, or appoint a receiver or otherwise exercise any power conferred by any
applicable law on charges, otherwise than in accordance with the Security
Trust Deed. "Voting Mortgagee" means:
(1) for so long as the amounts outstanding under the Class A Notes and the
Class B Notes are 75% or more of all amounts secured by the Security Trust Deed,
the Note Trustee alone; and
(2) at any other time:
(i) the Note Trustee, acting on behalf of the Noteholders under the Note
Trust Deed and the Security Trust Deed; and
(ii) each other Mortgagee under the Security Trust Deed (other than the
Noteholders).
Subject to being indemnified in accordance with the Security Trust Deed, the
Security Trustee shall take all action necessary to give effect to any direction
by the Note Trustee where it is the only Voting Mortgagee or to any
Extraordinary Resolution of the Voting Mortgagees and shall comply with all
directions given by the Note Trustee where it is the only Voting Mortgagee or
contained in or given pursuant to any Extraordinary Resolution of the Voting
Mortgagees in accordance with the Security Trust Deed.
No Noteholder is entitled to enforce the Security Trust Deed or to appoint
or cause to be appointed a receiver to any of the assets secured by the Security
Trust Deed or otherwise to exercise any power conferred by the terms of any
applicable law on charges except as provided in the Security Trust Deed.
(3) If any of the Class A Notes remains outstanding and are due and payable
otherwise than by reason of a default in payment of any amount due on the Class
A Notes, the Note Trustee must not vote under the Security Trust Deed to, or
otherwise direct the Security Trustee to, dispose of the Mortgaged Property
unless either:
(i) a sufficient amount would be realized to discharge in full all amounts
owing to the Class A Noteholders and any other amounts payable by the Issuer
Trustee ranking in priority to or pari passu with the Class A Notes; or
(ii) the Note Trustee is of the opinion, reached after considering at any
time and from time to time the advice of a merchant bank or other financial
adviser selected by the Note Trustee, that the cash flow receivable by the
Issuer Trustee (or the Security Trustee under the Security Trust Deed) will
not (or that there is a significant risk that it will not) be sufficient,
having regard to any other relevant actual, contingent or prospective
liabilities of the Issuer Trustee, to discharge in full in due course all
the amounts referred to in paragraph (i).
(4) Neither the Note Trustee nor the Security Trustee will be liable for any
decline in the value, nor any loss realized upon any sale or other dispositions
made under the Security Trust Deed, of any Mortgaged Property or any other
property which is charged to the Security Trustee by any other person in respect
of or relating to the obligations of the Issuer
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Trustee or any third party in respect of the Issuer Trustee or the Notes or
relating in any way to the Mortgaged Property. Without limitation, neither the
Note Trustee nor the Security Trustee shall be liable for any such decline or
loss directly or indirectly arising from its acting, or failing to act, as a
consequence of an opinion reached by it.
(5) The Note Trustee shall not be bound to vote under the Security Trust
Deed, or otherwise direct the Security Trustee under the Security Trust Deed or
to take any proceedings, actions or steps under, or any other proceedings
pursuant to or in connection with the Security Trust Deed, the Note Trust Deed,
any Class A Notes, unless directed or requested to do so (i) by an Extraordinary
Resolution of the Class A Noteholders or the Class B Noteholders, as
appropriate; or (ii) in writing by the holders of at least one-quarter of the
aggregate Invested Amount of the Class A Notes or the Class B Notes, as
appropriate, and then only if the Note Trustee is indemnified to its
satisfaction against all action, proceedings, claims and demands to which it may
render itself liable and all costs, charges, damages and expenses which it may
incur by so doing.
(6) Only the Security Trustee may enforce the provisions of the Security
Trust Deed and neither the Note Trustee nor any holder of a Class A Note is
entitled to proceed directly against the Issuer Trustee to enforce the
performance of any of the provisions of the Security Trust Deed, the Class A
Notes (including the Class A Conditions).
(7) The rights, remedies and discretion of the Class A Noteholders under the
Security Trust Deed including all rights to vote or give instructions or consent
can only be exercised by the Note Trustee on behalf of the Class A Noteholders
in accordance with the Security Trust Deed. The Security Trustee may rely on any
instructions or directions given to it by the Note Trustee as being given on
behalf of the Class A Noteholders from time to time and need not enquire whether
the Note Trustee or the Noteholders from time to time have complied with any
requirements under the Note Trust Deed or as to the reasonableness or otherwise
of the Note Trustee. The Security Trustee is not obliged to take any action,
give any consent or waiver or make any determination under the Security Trust
Deed without being directed to do so by the Note Trustee or the Voting
Mortgagees in accordance with the Security Trust Deed.
Upon enforcement of the security created by the Security Trust Deed, the net
proceeds thereof may be insufficient to pay all amounts due on redemption to the
Noteholders. The proceeds from enforcement (which will not include amounts
required by law to be paid to the holder of any prior ranking security interest,
the proceeds of or amounts credited to the collateral account under the
Liquidity Facility Agreement and payable to the Liquidity Facility Provider and
the proceeds of cash collateral lodged with and payable to a Swap Provider or
other provider of a Support Facility will be applied in the order of priority as
set out in the Security Trust Deed (see "SECURITY FOR THE NOTES--Priorities
under the Security Trust Deed." Any claims of the Noteholders remaining after
realization of the security and application of the proceeds as aforesaid shall,
except in certain limited circumstances, be extinguished.
See "SECURITY FOR THE NOTES" for a description of the Security Trust Deed
and the order of priorities for the proceeds from the enforcement of the
Security Trust Deed.
Certain Covenants
So long as any of the Class A Notes or the Class B Notes remains
outstanding, the Issuer Trustee has made the following covenants for the benefit
of Class A Noteholders and the Class B Noteholders which are set out in the
Master Trust Deed, including the following:
(1) The Issuer Trustee shall act continuously as trustee of the Trust until
the Trust is terminated as provided by the Master Trust Deed or the Issuer
Trustee has retired or been removed from office in the manner provided under
the Master Trust Deed.
(2) The Issuer Trustee shall:
(i) act honestly and in good faith in the performance of its duties
and in the exercise of its discretion under the Master Trust Deed;
(ii) subject to the Master Trust Deed, exercise such diligence and
prudence as a prudent person of business would exercise in performing
its express functions and in exercising its discretion under the Master
Trust Deed, having regard to the interests of the Class A Noteholders
and the Class B Noteholders and other creditors and beneficiaries of
the Trust;
(iii) use its best endeavors to carry on and conduct its business in so
far as it relates to the Master Trust Deed in a proper and efficient
manner;
(iv) keep, or ensure that the Trust Manager keeps, accounting records
which correctly record and explain all amounts paid and received by the
Issuer Trustee;
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(v) keep the Trust separate from each other trust which is constituted
under the Master Trust Deed and account for assets and liabilities of
the Trust separately from those of other trusts constituted under the
Master Trust Deed; and
(vi) do everything and take all such actions which are necessary
(including obtaining all appropriate authorizations) to ensure that it
is able to exercise all its powers and remedies and perform all its
obligations under the Master Trust Deed, the Transaction Documents and
all other deeds, agreements and other arrangements entered into by the
Issuer Trustee under the Master Trust Deed.
(3) Except as provided in the Master Trust Deed, the Issuer Trustee shall
not, nor shall it permit any of its officers to, sell, mortgage, charge or
otherwise encumber or part with possession of any Trust Assets.
(4) The Issuer Trustee's officers, employees, agents, attorneys, delegates
and sub-delegates shall duly observe and perform the covenants and
obligations of the Master Trust Deed in the same manner as is required of
the Issuer Trustee, and the Issuer Trustee agrees to indemnify the Trust
Manager for its own benefit or for the benefit of the Trust against any loss
or damage that the Trust, the Trust Manager, the Servicer, the Class A
Noteholders, the Class B Noteholders, the Beneficiaries (as defined in the
Master Trust Deed) the holders of RFSs (if any) and the holders of RFS Class
A Notes (if any) or other creditors incur or sustain in connection with, or
arising out of, any breach or default by such officers, employees, agents,
delegates and persons in the observance or performance of any such covenant
or obligation, to the extent that the Issuer Trustee would have been liable
if that breach or default had been the Issuer Trustee's own act or omission.
(5) The Issuer Trustee will open and operate certain bank accounts in
accordance with the Master Trust Deed and the Series Notice.
(6) Subject to the Master Trust Deed and any Transaction Document to which
it is a party, the Issuer Trustee shall act on all directions given to it by
the Trust Manager in accordance with the terms of the Master Trust Deed.
(7) The Issuer Trustee shall properly perform the functions which are
necessary for it to perform under all Transaction Documents in respect of
the Trust.
The Note Trustee
_________________ will be the Note Trustee. The Note Trustee may resign at
any time, in which event the Issuer Trustee will be obligated to appoint a
successor trustee. The Issuer Trustee may also remove the Note Trustee if the
Note Trustee ceases to be eligible to continue as such under the Master Trust
Deed, if the Note Trustee becomes insolvent or if the rating assigned to the
long-term unsecured debt, obligations of the Trustee (or the holding company
thereof) by the Rating Agencies shall be lowered below ______________________ or
equivalent rating or be withdrawn by any Rating Agency. In such circumstances
and others set forth in the Master Trust Deed, the Issuer Trustee will be
obligated to appoint a successor trustee. Any resignation or removal of the Note
Trustee and appointment of a successor trustee will not become effective until
acceptance of the appointment by a successor trustee.
Governing Law
The Notes and the Transaction Documents are governed by, and shall be
construed in accordance with, the laws of New South Wales, Australia.
DESCRIPTION OF THE SERVICING AGREEMENT
General
Under the Servicing Agreement, TMC will be appointed as the initial Servicer
of the Housing Loans and custodian of the Relevant Documents relating to the
Housing Loans and Mortgages. The following section contains a summary of the
basic terms of the Servicing Agreement. The summary does not purport to be
complete and is qualified in its entirety by reference to the provisions of the
Servicing Agreement.
Servicing
The Servicer manages and services the Housing Loans in accordance with the
Servicing Agreement. To the extent not provided in the Servicing Agreement, the
Servicer shall manage and service the Housing Loans in accordance with the
Procedures Manual as that is interpreted and applied by the Servicer in the
ordinary course of its business. "Procedures Manual" means, in relation to the
Housing Loans, those policies and procedures of Westpac or the Servicer (as the
case may be) relating to the origination, management and enforcement of the
Housing Loans as those policies and procedures
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are amended in accordance with the Servicing Agreement with and applied from
time to time in Westpac's or the Servicer's ordinary course of business (as the
case may be). To the extent not covered by the Servicing Agreement or the
Procedures Manual, the Servicer manages and services the Housing Loans by
exercising the degree of diligence and care expected of an appropriately
qualified servicer of the relevant financial products and custodian of
documents. All acts of the Servicer in servicing the Housing Loans in accordance
with the relevant procedures manual are binding on the Issuer Trustee.
Powers
Subject as set out in the Servicing Agreement, the Servicer has the express
power, among other things, to the extent such action will not cause an Adverse
Effect (that is, an event which will materially and adversely affect the amount
of any payment to be made to any Noteholder, or will materially and adversely
affect the timing of such payment):
(1) to waive any fees and break costs which may be collected in the ordinary
course of servicing the Housing Loans or arrange the rescheduling of
interest due and unpaid following a default under any Housing Loans;
(2) in its discretion, to waive any right in respect of any Housing Loans
and Mortgages in the ordinary course of servicing the Housing Loans and
Mortgages (including in accordance with its normal collection procedures);
and
(3) to grant an extension of maturity beyond 30 years from the date any
Housing Loan that relates to a Mortgage was made, when required to do so by
law or a government agency. The restriction on granting extensions that will
not have an Adverse Effect shall not apply where the extension is required
by law or a governmental agency.
Delegation by the Servicer
The Servicer is entitled to delegate its duties under the Servicing
Agreement. The Servicer at all times remains liable for the acts or omissions of
any delegate.
Servicer Undertakings
The Servicer has undertaken, among other things, the following:
(1) If so directed by the Issuer Trustee following a Title Perfection Event,
it will promptly take action to perfect the Issuer Trustee's title to
Housing Loans and related Mortgages in the Mortgage Pool by notifying the
Issuer Trustee's interests to Borrowers and mortgagors, registering
transfers, delivering documents to the Issuer Trustee and taking other
action required to perfect title.
(2) In relation to Housing Loans of which Westpac is the legal owner, it
will assist Westpac in collecting all moneys due under those Housing Loans
and Mortgages and pay them into the Collections Account.
(3) In relation to Housing Loans of which the Issuer Trustee is the legal
owner, it will collect all moneys due under those Housing Loans and
Mortgages and pay them into the Collections Account.
(4) If a Material Default occurs in respect of a Housing Loan, it will take
action to enforce the relevant Housing Loan and the related Mortgage to the
extent it determines to be appropriate.
(5) Act in accordance with the terms of any Mortgage Insurance Policies, not
to do or omit to do anything which could be reasonably expected to
prejudicially affect or limit its rights or the rights of the Issuer Trustee
under or in respect of a Mortgage Insurance Policy, and promptly make a
claim under any Mortgage Insurance Policy when it is entitled to do so and
notify the Trust Manager.
(6) Except in limited circumstances, it will not consent to the creation or
existence of any security interest in favor of a third party in relation to
any Mortgaged Property in connection with a Housing Loan and the related
Mortgage.
(7) It will not, except as required by law, release a Borrower or otherwise
vary or discharge any Housing Loan or Mortgage where it would have an
Adverse Effect.
(8) It will set the interest rate on the Housing Loans in accordance with
the requirements of the Series Notice.
(9) If directed by the Issuer Trustee following a Title Perfection Event, it
will take action to perfect the Issuer Trustee's legal title to the Housing
Loans and related Mortgages.
The Servicer undertakes that it will not consent to the creation or
existence of any security interest in favor of a third party in relation to any
Mortgaged Property in connection with a Housing Loan and the related Mortgage:
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(1) unless priority arrangements are entered into with that third party
under which the third party acknowledges that the Housing Loan and the
Mortgage ranks ahead in priority to the third party security interest on
enforcement for an amount not less than the Unpaid Balance of the Housing
Loan plus such other amount as the Servicer determines in accordance with
the Procedures Manual or its ordinary course of business; or
(2) which would rank before or pari passu with the relevant Housing Loan and
Mortgage.
Performance of Services
In performing any services under the Servicing Agreement the Servicer shall
have regard to whether its performance of such services does or does not have
any Adverse Effect. The Servicer may ask the Issuer Trustee or the Trust Manager
if, and may rely upon any statement by the Issuer Trustee or the Trust Manager
that, any action or inaction on its part is reasonably likely to, or will, have
an Adverse Effect.
Servicing Compensation and Payment of Expenses
The Servicer is entitled to a fee (the "Servicing Fee") for servicing the
Housing Loans, payable in arrears on the Payment Date following the end of the
Collection Period. The Servicing Fee is based on the average daily balance of
Housing Loan Principal during the Collection Period and on the actual number of
days in that Collection Period divided by 365 days.
The Servicer must pay from such fee all expenses incurred in connection with
servicing the Housing Loans except for expenses relating to the enforcement of
any Housing Loan or its related securities, the recovery of any amounts owing
under any Housing Loan or any amount repaid to a liquidator or trustee in
bankruptcy pursuant to any applicable law, binding code, order or decision of
any court, tribunal or the like or based on advice of the Servicer's legal
advisers.
Servicer Transfer Event and Removal
The Issuer Trustee may only terminate the Servicer's appointment if the
Issuer Trustee determines that a Servicer Transfer Event has occurred and is
continuing. A "Servicer Transfer Event" is any of the following:
(1) an Insolvency Event occurs in relation to the Servicer;
(2) the Servicer fails to pay any amount within five Business Days of
receipt of a notice to do so;
(3) the Servicer fails to comply with any of its other obligations under any
Transaction Document and such action has had, or, if continued will have, an
Adverse Effect and that failure is not remedied within 30 days after the
Servicer becomes aware of that failure by receipt of notice;
(4) any representation, warranty or certification made by the Servicer is
incorrect when made and is not waived by the Issuer Trustee or remedied to
the Issuer Trustee's reasonable satisfaction within 90 days after notice,
and the Issuer Trustee determines that breach would have an Adverse Effect;
or
(5) if it is unlawful for the Servicer to perform the services under the
Servicing Agreement.
In the event of a Servicer Transfer Event, the Issuer Trustee must, upon
notice to the Trust Manager, the Approved Sellers, Westpac, the Servicer and the
Rating Agencies, terminate the rights and obligations of the Servicer with
immediate effect and appoint an Eligible Servicer. Until an Eligible Servicer is
appointed and that Eligible Servicer agrees to act as the servicer, the Issuer
Trustee shall act as the Servicer and is entitled to the fee for so acting.
The Servicer has indemnified the Issuer Trustee against all expenses
incurred as a result of a Servicer Transfer Event or a failure by the Servicer
to perform its duties under the Servicing Agreement.
Resignation
The Servicer must not resign without first giving three months' notice to
the Rating Agencies, the Trust Manager and the Issuer Trustee. If an Eligible
Servicer has not agreed to act as Servicer by the expiration of that notice
period the Issuer Trustee shall act as Servicer.
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Document Custody
General
The Servicer will be responsible for custody of the Relevant Documents on
behalf of the Issuer Trustee. The Servicer must hold those documents as
custodian at the direction of the Issuer Trustee in accordance with its standard
safekeeping practices and in the same manner and to the same extent that it
holds documents for Westpac. The Servicer will hold custody of the Relevant
Documents in accordance with procedures contained in the Servicing Agreement.
The procedures include the following: (i) keeping the Housing Loan and mortgage
documents for Housing Loans in the Mortgage Pool separate from other documents;
(ii) maintaining reports on movements of documents; and (iii) being able to
locate security packets.
The Servicer will be audited on an annual basis (or more regularly if any
audit gives an adverse finding) in relation to its custodial procedures,
identification of documents, security and tracking systems.
Termination of Servicer as document custodian
If any of the following occurs:
(1) the Servicer does not comply with the requirements of the Servicing
Agreement to the satisfaction of the auditor, and a further audit also
results in an adverse finding by the auditor;
(2) the long term credit rating of the holding company of the Servicer is
downgraded:
(i) below BBB by Standard & Poor's;
(ii) below Baa2 by Moody's; or
(iii) below ____________ by Fitch
(3) the Servicer is in default under a servicing agreement between it and
any other person, and by reason of the default that other person removes any
documents in the Servicer's custody under the servicing agreement where that
person would otherwise not have been entitled to do so; or
(4) a Servicer Transfer Event occurs,
then the Servicer must deliver the Title Documents to, or at the direction of,
the Issuer Trustee. If the Servicer does not do so within 10 Business Days, then
the Issuer Trustee must enter the premises where the Title Documents are kept,
take possession of and remove the Title Documents. If the Issuer Trustee does
not have possession of the documents within 10 Business Days it must lodge
caveats in relation to and/or take all other action it considers necessary to
protect its interests.
Amendment
The Servicing Agreement may be amended by the parties thereto in writing and
provided that prior notice of any proposed amendment is given to the Rating
Agencies.
Termination of Servicing Agreement
The Servicing Agreement shall continue until the expiration of the Term. The
"Term" means the period from the date of the Servicing Agreement until the
earlier of:
(a) the date on which the Servicing Agreement is terminated pursuant to a
Servicer Transfer Event;
(b) the date which is one month after the Notes have been redeemed in full
in accordance with the Transaction Documents and the Trustee ceases to
have any obligation to any creditor in relation to any Trust;
(c) the date on which the Trustee replaces the Servicer with an Eligible
Servicer; and
(d) the date on which the Servicer is replaced after resigning pursuant to
the Servicing Agreement.
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THE LIQUIDITY FACILITY
The following section contains a summary of the basic terms of the Liquidity
Facility. The summary does not purport to be complete and is qualified in its
entirety by reference to the provisions of the Liquidity Facility.
General Description
Under the Liquidity Facility, the Liquidity Facility Provider agrees to make
advances to the Issuer Trustee for the purpose of funding certain income
shortfalls in the Trust, up to an aggregate amount being the lesser of:
(1) A$__________;
(2) the Unpaid Balance of all Performing Loans from time to time; and
(3) any lesser amount as is agreed in writing between the Liquidity Facility
Provider, the Issuer Trustee, the Trust Manager and the Rating Agencies for
each class of Notes,
as reduced or cancelled under the Liquidity Facility (the "Liquidity Limit").
A "Performing Loan" at any date is a Housing Loan which is not Delinquent or
has been Delinquent for less than 90 consecutive days, or if it has been
Delinquent for 90 or more consecutive days was insured under a Mortgage
Insurance Policy at the date of the Liquidity Facility.
A Housing Loan is "Delinquent" if the related Borrower fails to pay any
amount due on the related due date. Delayed payments arising from agreed payment
holidays based on early repayments, or from maternity or paternity leave
repayment reductions will not, by themselves, lead to a Housing Loan being
Delinquent.
Liquidity Draws
If the Trust Manager determines on any Collection Determination Date that
the Available Income of the Trust plus Principal Draws for the Collection Period
relating to that Collection Determination Date is insufficient to meet Total
Payments of the Trust (a "Liquidity Shortfall"), then the Trust Manager must
direct the Issuer Trustee to make a drawing under the Liquidity Facility to
apply towards the Liquidity Shortfall. The drawing will (subject to certain
assumptions as to payment) be the lesser of the Liquidity Shortfall and the
difference between the Liquidity Limit and the aggregate of all outstanding
amounts under the Liquidity Facility (the "Available Liquidity Amount"). A
drawing may only be made by a duly completed drawdown notice signed by an
authorized signatory of the Issuer Trustee.
Conditions Precedent to a Liquidity Draw
A drawing may only be made under the Liquidity Facility (a "Liquidity Draw")
if (among other things) no event of default (see "--Events of Default" below)
subsists at the date of the relevant drawdown notice and the relevant drawdown
date or will result from the provision of the Liquidity Draw.
Deposit into a Collateral Account
If at any time the Liquidity Facility Provider's short term credit
rating is less than A-1+ from Standard & Poor's, P-1 from Moody's or ____
from Fitch, the Liquidity Facility Provider must within five Business Days or
such longer period as the Rating Agencies or ____ from Fitch may agree,
deposit into an account held in the name of the Issuer Trustee an amount
equal to the Available Liquidity Amount at that time.
If and for so long as the Liquidity Facility Provider has a short term
credit rating of not lower than A-1 from Standard & Poor's, P-1 from Moody's
and ____ from Fitch, the Collateral Account shall be maintained with the
Liquidity Facility Provider.
If at any time the short term credit rating of the bank holding the
Collateral Account is less than A-1 from Standard & Poor's, P-1 from Moody's
and ____ from Fitch then the Collateral Account, and all amounts standing to
the credit of the Collateral Account, must (subject to certain limited
restrictions) be transferred to a bank with a short term credit rating from
Standard & Poor's of not lower than A-1+, not lower than P-1 from Moody's and
not lower than ___ from Fitch.
If the short term credit rating of the Liquidity Facility Provider is not
less than A-1 from Standard & Poor's and P-1 from Moody's, and the total of the
credit balance of the Collateral Account with the Liquidity Facility Provider
plus the amount of all short term investments of the Issuer Trustee is greater
than 20% of the Total Invested Amount, then so much of the credit balance of the
Collateral Account as is necessary for the 20% threshold not to be breached must
(subject to certain limited restrictions) be deposited with a bank with a short
term credit rating from Standard & Poor's of not lower than A-1+ and not lower
than P-1 from Moody's.
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Withdrawals from a Collateral Account are restricted to, among other things,
making a Liquidity Draw, paying financial institutions duty and bank account
debit tax (being taxes charged on account transactions) and investing in short
term investments.
All interest accrued on the moneys in the Collateral Account shall belong to
the Liquidity Facility Provider. If the Liquidity Facility Provider's short term
credit rating is upgraded to not lower than A-1+/P-1, then the balance in the
Collateral Account deposit must be repaid to the Liquidity Facility Provider and
any advances under the Liquidity Facility thereafter will be made directly from
the Liquidity Facility Provider in the normal course of business.
Interest on Liquidity Draws
Interest is payable to the Liquidity Facility Provider on the principal
amount drawn under the Liquidity Facility. This interest is payable at the Bank
Bill Rate plus a margin, calculated on days elapsed and a year of 365 days.
Interest is payable on each Payment Date and on repayment of a drawing. Unpaid
interest will capitalize, and interest accrues on any unpaid interest.
Commitment Fee
A commitment fee accrues daily from the date of the Liquidity Facility on
the Available Liquidity Amount, and is payable on each Payment Date and on
termination of the facility.
The commitment fee is calculated on the actual number of days elapsed and a
year of 365 days.
Repayment of Liquidity Drawings
If an amount has been drawn down under the Liquidity Facility, the principal
amount is repayable on the following Payment Date, to the extent that amounts
are available for this purpose under the Series Notice; see "DESCRIPTION OF THE
OFFERED NOTES--Distribution of Total Available Funds" above. It is not an event
of default if the Issuer Trustee does not have funds available to repay the full
amount outstanding on the following Payment Date.
Events of Default
It is an event of default under the Liquidity Facility (whether or not such
event is within the control of the Issuer Trustee) if:
(1) at any time the Available Liquidity Amount is zero, and the Issuer
Trustee fails to pay an amount payable by it under the Liquidity Facility
within 10 Business Days of its due date;
(2) an amount is available for payment under the Liquidity Facility and the
Issuer Trustee does not pay that amount;
(3) an Insolvency Event occurs in relation to the Trust;
(4) an Insolvency Event occurs in relation to the Issuer Trustee, and a
successor trustee of the Trust is not appointed within 30 days of that
Insolvency Event;
(5) the Termination Date occurs in relation to the Trust; or
(6) all or any part of the Liquidity Facility is terminated or is or becomes
void, illegal, invalid or unenforceable.
Consequences of Default
In addition to rights provided by law or any Transaction Document, at any
time after an event of default has occurred under the Liquidity Facility
(whether or not it is continuing), the Liquidity Facility Provider may do all or
any of the following by notice to the Issuer Trustee and the Trust Manager:
(1) declare all moneys actually or contingently owing at that time
immediately due and payable, and the Issuer Trustee must immediately pay the
total amount of all outstanding Liquidity Draws, together with accrued
interest and fees and all other such moneys; and
(2) cancel the Liquidity Limit with effect from any date specified in that
notice.
Termination
The Liquidity Facility will terminate on the earliest of the following to
occur:
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(1) the date on which the Issuer Trustee enters into a replacement liquidity
facility;
(2) one month after the Notes have been redeemed in full in accordance with
the Master Trust Deed;
(3) following an event of default under the Liquidity Facility, the date on
which the Liquidity Facility Provider declares the Liquidity Facility
terminated; and
(4) the date on which the Issuer Trustee, on giving not less than five
Business Days irrevocable notice to the Liquidity Facility Provider, has
cancelled all or part of the Liquidity Limit. Cancellation is conditional on
the Rating Agencies confirming that such cancellation will not result in a
downgrading of the credit rating assigned by the Rating Agencies to the
Notes.
DESCRIPTION OF THE SWAP AGREEMENTS
Description of Interest Rate Swap Agreements
The following section contains a summary of the basic terms of the Swap
Agreements, which the Issuer Trustee will enter into with the Interest Rate Swap
Provider. The summary does not purport to be complete and is qualified in its
entirety by reference to the provisions of the Swap Agreements.
Fixed Rate and Variable Rate Basis Swaps
The Issuer Trustee will enter into a Variable Rate Basis Swap and two Fixed
Rate Basis Swaps with Westpac, in its capacity as the provider of the Variable
Rate Basis Swap and Westpac, in its capacity as the provider of the Fixed Rate
Basis Swaps (together the "Interest Rate Swap Provider"). Such swaps will use
the ISDA Master Agreement amended by a supplementary schedule and a confirmation
for each swap. See "ORIGINATOR OF THE HOUSING LOANS" for a description of the
Interest Rate Swap Provider.
A Variable Rate Basis Swap will be used to hedge the basis risk between the
floating rate obligations of the Trust (including Interest payable on the Notes)
and the variable rate set, as permitted by the relevant Housing Loan agreements,
at the discretion of Westpac. The Variable Rate Basis Swap will include those
loans with a concessional fixed rate of interest for the first 12 months,
converting to the standard variable rate after that period. The Issuer Trustee
will pay an amount based on the applicable daily weighted average variable
housing rates and receive the Bank Bill Rate (as defined herein) plus a fixed
margin. The margin is fixed for the life of the swap and has been set having
regard to the ongoing obligations of the Trust.
Two Fixed Rate Basis Swaps will be used to hedge the basis risk between the
floating rate obligations of the Trust (including Interest payable on the Notes)
and the discretionary fixed rates set by Westpac on the Housing Loans which are
subject to a fixed rate of interest (not including those loans with a
concessional fixed rate of interest for the first 12 months, which converts to
the standard variable rate after that period).
The first Fixed Rate Basis Swap will be used to hedge the basis risk
occurring when Borrowers switch from a variable rate of interest to a Fixed Rate
of interest after the Cut-Off Date. The Issuer Trustee will pay the applicable
daily weighted average Fixed Rate and the Interest Rate Swap Provider will pay
the Bank Bill Rate plus a fixed margin. The margin is fixed for the life of the
swap and has been set having regard to the ongoing obligations of the Trust.
The second Fixed Rate Basis Swap will be entered into as at the Closing Date
to hedge those Housing Loans subject to a Fixed Rate of interest as of the
Cut-Off Date. The Issuer Trustee will pay the applicable daily weighted average
Fixed Rate and the Interest Rate Swap Provider will pay the Bank Bill Rate plus
a fixed margin. The margin is fixed for the life of the swap and has been set
based on the actual margin on the Fixed Rate Housing Loans and the prevailing
wholesale market rate existing at the Cut-Off Date.
All Housing Loans being charged a Fixed Rate of interest as of the Cut-Off
Date have a maximum Fixed Rate period of 5 years.
Downgrade of Interest Swap Provider
If there is a downgrading of the Interest Rate Swap Provider's long term
or short term debt rating below A-1+, A2 or _____ by either Standard &
Poor's, Moody's or Fitch, respectively, the Interest Swap Provider will
either:
(1) provide cash collateral security sufficient to enable Standard &
Poor's, Moody's and Fitch to confirm that the downgrade will not cause a
reduction in or a withdrawal of the rating of the Notes; or
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(2) arrange for a suitably rated counterparty to intermediate the swap or
act as substitute swap provider.
Termination
The following events are events of default under the Interest Rate Swap
Agreements: (i) failure by Westpac or the Issuer Trustee to make, when due, any
payment or delivery required by the agreement and such failure is not remedied
by the tenth local business day; and (ii) an Insolvency Event has occurred in
respect of Westpac or the Issuer Trustee; provided, however, that an Insolvency
Event in relation to the Issuer Trustee in its personal capacity is not an event
of default if the relevant Swap is novated within 30 Business Days of that
Insolvency Event and the novation will not cause a reduction or withdrawal of
the rating of the Notes. Upon novation of the Swap, the successor Issuer Trustee
will assume the rights and obligations of the Issuer Trustee under the Interest
Rate Swap.
An event which constitutes illegality will be a termination event under
the Interest Rate Swap Agreements. If there is a downgrading of the Interest
Rate Swap Provider's short term debt rating below Al+, A2 or ______ by either
Standard & Poor's, Moody's or Fitch and the Interest Rate Swap Provider fails
to act, as described in "--Downgrade of Interest Swap Provider" above, it
will be an "Additional Termination Event" under the Variable Rate Basis Swap.
If under similar circumstances the Interest Rate Swap Provider fails to
establish certain collateral arrangements it will be an "Additional
Termination Event" under each of the Fixed Rate Basis Swaps only at the
discretion of the Issuer Trustee. The "Automatic Early Termination"
provisions under the Fixed and Variable Rate Basis Swaps do not apply.
Threshold Rate
If at any time the Variable Rate Basis Swap is terminated, the Trust Manager
must, on each Collection Determination Date following that termination,
calculate the minimum rate of interest that must be set on the Housing Loans
which are subject to a discretionary variable rate, in order to cover (assuming
all counterparties to the Transaction Documents, the Housing Loans and any
Mortgages and other relevant securities meet their obligations), when aggregated
with the income produced by all other Housing Loans and taking into account the
other Swap Agreements, the obligations of the Trust (the "Threshold Rate"). If
the Servicer is notified of the Threshold Rate, it is required, subject to the
terms of the relevant Housing Loans, to ensure that the rate of interest on each
relevant discretionary variable rate Housing Loan is not less than the Threshold
Rate (see "DESCRIPTION OF THE SERVICING AGREEMENT" above).
Description of Currency Swap
The following summary describes certain terms of the Currency Swap, which
the Issuer Trustee will enter into with Morgan Guaranty Trust Company of New
York, acting through its [Sydney Branch] (the "Currency Swap Provider" and
together with the Interest Rate Swap Provider, the "Swap Providers"). The
summary does not purport to be complete and is qualified in its entirety by
reference to the provisions of the Currency Swap.
Collections in relation to the Housing Loans and related Mortgages and under
the Variable Rate Basis Swap and the Fixed Rate Basis Swap ("Collections") will
be denominated in Australian dollars. However, the payment obligations of the
Issuer Trustee in relation to Interest and principal on the Notes are
denominated in United States dollars. To hedge its currency exposure, the Issuer
Trustee will enter into two distinct swap transactions, relating to the Class A
Notes and the Class B Notes, respectively (together, the "Currency Swap") with
the Currency Swap Provider. The Currency Swap will be evidenced by two swap
confirmations which will be governed by an ISDA Master Agreement dated ________,
1998, as supplemented by the Schedule thereto (such ISDA Master Agreement,
Schedule and swap confirmations, the "Agreement"). Under the Currency Swap, the
Issuer Trustee is required to pay to the Currency Swap Provider amounts in A$
equal to the amount of any Collections received by the Issuer Trustee and the
Currency Swap Provider is required to pay to or at the direction of the Issuer
Trustee an amount denominated in US$ which is equivalent to such A$ payment
(calculated by reference to an exchange rate which is fixed at the Closing Date
and set forth in the swap confirmations). In addition, under the Currency Swap
on each Payment Date the Issuer Trustee will make A$ floating rate payments to
the Currency Swap Provider and the Currency Swap Provider will make US$ floating
rate payments which are equivalent in amount to the Interest payable in US$ to
the Noteholders. If on any Payment Date, the Issuer Trustee does not make the
full floating payment, the US$ floating rate payment to be made by the Currency
Swap Provider on such Payment Date will be reduced by the same proportion as the
reduction in the payment from the Issuer Trustee.
Subscription amounts for the Notes will be paid by investors in US$, but the
consideration for the purchase by the Issuer Trustee of equitable title to the
Housing Loans and related Mortgages will be in A$. Under the Currency Swap, an
amount equal to the US$ subscription amounts will be paid to the Currency Swap
Provider, which will pay the A$ Equivalent of such amounts to the Issuer
Trustee. See "CURRENCY SWAP PROVIDER" below for more information.
In the event that the Currency Swap Provider is ever downgraded below a
specified level, the Currency Swap Provider will give a commitment to provide
cash collateral or other credit enhancement in respect of the Currency Swap.
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The Currency Swap comprises two distinct swap transactions, relating to the
Class A Notes and the Class B Notes respectively. On the Closing Date the Issuer
Trustee will be obliged to pay to the Currency Swap Provider an amount equal to
the proceeds of the issue of the Notes in US$. In return the Issuer Trustee will
be paid the A$ equivalent of that US$ amount (calculated by reference to an
exchange rate which is fixed by the Closing Date (in the Swap confirmations)).
The cash flow methodology in the Series Notice provides that amounts equal
to certain amounts allocated from Principal Collections and (in some cases) from
Excess Available Income are paid by the Issuer Trustee to the Currency Swap
Provider on each Payment Date. Under the Currency Swap the Currency Swap
Provider pays to the Issuer Trustee, against receipt of the A$ denominated
payment, an amount denominated in US$ which is equivalent to the A$ payment from
the Issuer Trustee (calculated by reference to the exchange rate referred to
above).
The cash flow methodology in the Series Notice provides that the Issuer
Trustee also pays to the Currency Swap Provider amounts equal to scheduled A$
floating rate payments (the A$ Class A Interest Amount and the A$ Class B
Interest Amount) on each Payment Date. Under the Currency Swap the Currency
Swap Provider pays to the Issuer Trustee on each Payment Date, against
receipt of those A$ denominated payments, scheduled US$ floating rate
payments equivalent to the Interest due to the Noteholders. If on any Payment
Date the Issuer Trustee does not make the full scheduled A$ payment, the
scheduled US$ payment from the Currency Swap Provider will be reduced by the
same proportion as the reduction in the payment from the Issuer Trustee.
The Series Notice requires that the US$ amounts received by the Issuer
Trustee from the Currency Swap Provider are paid to the Noteholders in
accordance with their entitlements and the priorities set out in "DESCRIPTION OF
THE OFFERED NOTES."
Termination of the Currency Swap
Termination by the Currency Swap Provider
Under the Currency Swap, the Currency Swap Provider has the following rights
to terminate:
(1) An immediate right of termination if the Issuer Trustee fails to make a
payment under the Currency Swap within the applicable grace period of 10
Business Days.
(2) If due to change in law it becomes illegal for either party to make or
receive payments or comply with any other material provision of the Currency
Swap, the Currency Swap requires each party to make certain efforts to
transfer their rights and obligations to avoid this illegality. If those
efforts are not successful then the Currency Swap Provider will have the
right to terminate. These provisions relating to termination following an
illegality have been modified so that they are not triggered by the
introduction of certain exchange controls by any Australian Government body.
(3) The Currency Swap Provider has the limited right to terminate where it
is required to gross-up or receive payments from which amounts have been
withheld.
(4) Any Event of Default under the Conditions of the Notes occurs.
If neither the Currency Swap Provider nor the Issuer Trustee elect to
terminate the Currency Swap following an Event of Default under the Conditions
of the Notes occurs, then the Note Trustee may do so.
Termination by the Issuer Trustee
There are a number of circumstances in which the Issuer Trustee has the
right to terminate the Currency Swap. In each of these cases it is only
permitted to exercise that right if directed by the Trust Manager and with
the prior written consent of the Note Trustee:
(1) Where the Currency Swap Provider fails to make a payment under the
Currency Swap within any applicable grace period or the Currency Swap
Provider becomes insolvent or merges into another entity without that entity
properly assuming responsibility for the obligations of the Currency Swap
Provider under the Currency Swap.
(2) If it becomes illegal for either party to make or receive payments under
the Currency Swap or perform any of its other material obligations under it,
both the Issuer Trustee and the Currency Swap Provider are obliged to make
certain efforts to transfer their rights and obligations to avoid that
illegality. If those efforts fail the Currency Swap may be terminated.
(3) If the Issuer Trustee becomes obliged under the Currency Swap to receive
payments from which amounts have been withheld or deducted (including where
this situation arises from a merger affecting the Currency Swap Provider).
(4) Any Event of Default under the Conditions of the Notes occurs.
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(5) The Currency Swap may also be terminated if the Issuer Trustee becomes
obliged to make a withholding or deduction in respect of the Notes and the
Notes are redeemed as a result or if the Issuer Trustee is or will be
subject to certain increased costs or expenses.
If neither the Currency Swap Provider nor the Issuer Trustee elect to
terminate the Currency Swap following an Event of Default under the Conditions
of the Notes occurs, then the Note Trustee may do so.
The Issuer Trustee (and the Note Trustee) may only terminate the Currency
Swap following prior consultation by the Note Trustee with the Currency Swap
Provider as to the timing of termination.
Termination Payments
On the Termination Date or the Early Termination Date (each as defined in
the Currency Swap) in respect of the Currency Swap, a termination payment will
be due to be paid by the Issuer Trustee to the Currency Swap Provider or to the
Issuer Trustee by the Currency Swap Provider in respect of the Currency Swap.
There is no guarantee that upon any such termination the funds realized from the
sale of the relevant Loans and Mortgages plus or minus (as the case may be) the
termination payment due in respect of the Currency Swap will be sufficient to
pay in full amounts owing to the holders of the relevant Notes.
The termination payment in respect of a Currency Swap will be determined on
the basis of quotations from four leading dealers in the relevant market
(selected by the Currency Swap Provider) to enter into a replacement transaction
that would have the effect of preserving the economic equivalent of any payment
that would, but for the early termination, have been required under the terms of
the Currency Swap.
Replacement of Currency Swap
If the Currency Swap is terminated, the Issuer Trustee may at the
direction of the Trust Manager enter into a currency swap which replaces the
Currency Swap (other than by way of transfer under section 6(b) of the
Currency Swap) (a "Replacement Currency Swap") if and only if the amount
payable (if any) to the Issuer Trustee by the provider of the Replacement
Currency Swap as an up front premium to enter into the Replacement Currency
Swap is greater than or equal to the termination payment payable (if any) to
the Currency Swap Provider by the Trustee on termination of the Currency
Swap. If the condition in the previous sentence is satisfied, the Issuer
Trustee may enter into the Replacement Currency Swap and if it does so it
must direct the amount payable (if any) by the provider of the Replacement
Currency Swap to be paid directly to the Currency Swap Provider in
satisfaction of and to the extent of the Issuer Trustee's obligation to pay
the termination payment to the Currency Swap Provider.
Downgrade of Currency Swap Provider
The Currency Swap Provider will give a commitment to provide cash collateral
or other credit enhancement in respect of the Currency Swap in the event that
the Currency Swap Provider is ever downgraded below a specified level.
CURRENCY SWAP PROVIDER
Morgan Guaranty Trust Company of New York, a Delaware corporation whose
principal office is located in New York, New York, is a wholly owned subsidiary
and the principal asset of J.P. Morgan & Co. Incorporated ("J.P. Morgan"). The
Currency Swap Provider is a commercial bank offering a wide range of banking
services to its customers both domestically and internationally. Its business is
subject to examination and regulation by Federal and New York State banking
authorities. As of December 31, 1997, the Currency Swap Provider and its
subsidiaries had total assets of $196.4 billion, total net loans of $30.9
billion, total deposits of $60.7 billion, and stockholder's equity of $10.4
billion. As of December 31, 1996, the Currency Swap Provider and its
subsidiaries had total assets of $164.8 billion, total net loans of $27.4
billion, total deposits of $53.1 billion and stockholder's equity of $9.9
billion.
The Consolidated Statement of Condition of the Currency Swap Provider as of
December 31, 1997 is set forth on page 11 of Exhibit 99b to Form 8-K dated
January 15, 1998, as filed by J.P. Morgan with the Commission. The Currency Swap
Provider will provide without charge to each person to whom this Prospectus is
delivered, on the request of any such person, a copy of the Form 8-K referred to
above. Written requests should be directed to: Morgan Guaranty Trust Company of
New York, 60 Wall Street, New York, New York 10260-0060, Attention: Office of
the Secretary.
The information with respect to the Currency Swap Provider contained herein
has been obtained from the Currency Swap Provider. The delivery of this
Prospectus will not create any implication that there has been no change in the
affairs of the Currency Swap Provider since the date hereof or that the
information contained or referred to herein is correct as of any time subsequent
to its date.
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The Offered Notes do not represent an obligation of the Currency Swap
Provider, J.P. Morgan Securities Inc., J.P. Morgan or any of their respective
affiliates. Holders of the Offered Notes will not have any right to proceed
directly against the Currency Swap Provider in respect of the Currency Swap
Provider's obligations under the Currency Swap.
CERTAIN LEGAL ASPECTS OF THE HOUSING LOANS
The following discussion contains summaries of legal aspects of Australian
retail housing loans and mortgages that are general in nature. The summaries do
not purport to be complete. In addition, certain of those legal aspects are
governed by state law (which laws may differ substantially from state to state),
and the summaries do not reflect the particular laws of any particular state or
encompass all relevant laws of all states in which any Mortgaged Property may be
situated. The summaries are qualified in their entirety by reference to the
applicable Australian federal and state laws governing real property and the
granting and enforcement of security over real property.
General
Each Housing Loan will be secured by a mortgage which is to have a first
ranking priority over all other mortgages granted by the relevant Borrower and
over all unsecured creditors of the Borrower (except in respect of certain
statutory rights such as some rates and taxes, which are granted statutory
priority). The Borrower is prohibited under its loan documents from creating
another mortgage or other security interest over the relevant Mortgaged Property
without the consent of Westpac. There are two parties to a mortgage, the
mortgagor, who is the borrower and homeowner (or, where the relevant loan is
guaranteed and the guarantee is secured by a mortgage, the guarantor) and who
grants the mortgage over their property, and the mortgagee who is the lender.
Under Torrens title, registration of a mortgage using the prescribed form
executed by the mortgagor is required in order for the mortgagee to obtain the
remedies of a mortgagee granted by statute and the relevant priorities against
other secured creditors. To this extent the mortgagee is said to have a legal
(i.e., registered) title. However, registration does not transfer title in the
property - the mortgagor remains as legal owner. Rather, the Torrens mortgage
operates as a statutory charge. The mortgagee does not obtain an estate in the
property but does have an interest in the land which is marked on the register
and the "certificate of title" for the property. A search of the register by any
subsequent lender will reveal the existence of the prior mortgage. See "--Nature
of Housing Loans as Security" below for a further description of Torrens title.
A mortgagee will retain the relevant certificate of title until the mortgage
is discharged. Although the certificate is not a document of title as such, the
procedure for replacement is sufficiently onerous to act as a deterrent against
most mortgagor fraud. In addition, failure to retain the certificate may in
certain circumstances constitute negligent conduct resulting in a postponement
of the mortgagee's priority to a later secured creditor.
Once the mortgagor has repaid the debt, a discharge is lodged with the
registrar and the mortgage is noted as having been released.
Nature of Housing Loans as Security
There are a number of different forms of title to land in Australia. The
most common forms of title in Australia, and the only form of title which may
constitute Mortgaged Property is "Torrens title."
Torrens title
"Torrens title" land is freehold title, interests in which are created by
registration in a central land registry of the relevant State or Territory. Each
parcel of land is represented by a specific certificate of title. The original
certificate is retained by the registry, and in most States a duplicate
certificate is issued to the owner. Any dealing with the relevant land is
carried out by pro forma instruments which become effective on registration.
Ordinarily the relevant certificate of title (or any registered plan
referred to in it) will reveal the position and dimensions of the land, the
present owner, and any leases, mortgages and registered easements to which it is
subject. The certificate is conclusive evidence (except in limited
circumstances, such as fraud) of the matters stated in it.
Strata title
"Strata title" was developed to facilitate the creation of, and dealings
with, apartment units (which are similar to condominiums in the United States)
and is governed by the legislation of the State or Territory in which the
property is situated. Under strata title, the relevant land is divided into the
relevant number of units. Each proprietor has title to, and may freely dispose
of, their unit. All proprietors are members of a "body corporate", which
monitors compliance with
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rules governing the apartment block. Certain parts of the property, such as
stairwells, entrance lobbies and the like are known as "common property" and are
owned by the body corporate as a whole rather than by individual proprietors.
Only Torrens title land can be the subject of strata title in this way, and
so the provisions referred to in this section in relation to Torrens title apply
to the title in a unit held by a strata proprietor.
Taking Security Over Land
The law relating to the granting of securities over real property is made
complex by the fact that each State and Territory has separate governing
legislation. The following is a brief overview of general issues involved in
taking security over land.
Under Torrens title, registration of a mortgage using the prescribed form
executed by the mortgagor is required in order for the mortgagee to obtain the
remedies of a mortgagee granted by statute and the relevant priorities against
other secured creditors. To this extent the mortgagee is said to have a legal
(i.e., registered) title. However, registration does not transfer title in the
property -- the mortgagor remains as legal owner. Rather, the Torrens mortgage
operates as a statutory charge. The mortgagee does not obtain an estate in the
property but does have an interest in the land which is marked on the register
and the "certificate of title" for the property. A search of the register by any
subsequent lender will reveal the existence of the prior mortgage.
A mortgagee will retain the relevant certificate of title until the mortgage
is discharged. Although the certificate is not a document of title as such, the
procedure for replacement is sufficiently onerous to act as a deterrent against
most mortgagor fraud. Failure to retain the certificate may in certain
circumstances constitute negligent conduct resulting in a postponement of the
mortgagee's priority to a later secured creditor.
Once the mortgagor has repaid the debt, a discharge executed by the
mortgagee is lodged with the registrar by the mortgagor or the mortgagee and the
mortgage is noted as having been released.
Westpac as Mortgagee
Westpac is, and until a Title Perfection Event occurs intends to remain, the
registered mortgagee of all the Mortgages. The relevant Borrowers will not be
aware of the equitable assignment of the Housing Loans and Mortgages to the
Issuer Trustee.
Prior to any Title Perfection Event Westpac, or the Servicer on its behalf,
will undertake any necessary enforcement action with respect to defaulted
Housing Loans and Mortgages. Following a Title Perfection Event, the Issuer
Trustee is entitled (under an irrevocable power of attorney granted to it by
Westpac) to be registered as mortgagee of the Mortgages. Until that registration
is achieved, the Issuer Trustee or the Trust Manager is entitled to lodge
caveats on the register to notify its interest publicly. See "APPENDIX I --
GLOSSARY OF AUSTRALIAN LEGAL TERMS."
Enforcement of Housing Loans
Subject to the discussion below, if a Borrower defaults under a Housing
Loan, the loan documents provide that all moneys under the loan may be declared
immediately due and payable. The lender may sue to recover all outstanding
principal, interest and fees under the personal covenant of the borrower
contained in the loan documents to repay those amounts. In addition, the lender
may enforce a registered mortgage in relation to the defaulted loan. Enforcement
may occur in a number of ways, including the following.
(a) The mortgagee may enter into possession of the property. If it does so, it
does so in its own right and not as agent of the mortgagor, and so may be
personally liable for mismanagement of the property and to third parties as
occupier of the property.
(b) The mortgagee may, in limited circumstances, lease the property to third
parties.
(c) The mortgagee may foreclose on the property - that is, extinguish the
mortgagor's title to the property so that the mortgagee becomes the absolute
owner of the property (a remedy that is, because of procedural constraints,
rarely used). If the mortgagee forecloses on the property, it loses the
right to sue the borrower under the personal covenant to repay and can look
only to the value of the property for satisfaction of the debt.
(d) The mortgagee may appoint a receiver to deal with income from the property
or exercise certain other rights delegated to the receiver by the mortgagee.
Unlike a mortgagee in possession, a receiver is the agent of the mortgagor
and so in theory the mortgagee is not liable for the receiver's acts or as
occupier of the property. In practice, the receiver will require indemnities
from the mortgagee that appoints it.
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(e) The mortgagee may sell the property, subject to various duties to ensure
that the mortgagee exercises proper care in relation to the sale. This power
of sale is usually expressly contained in the mortgage documents, and is
also implied into registered mortgages under the relevant Torrens title
legislation. The Torrens title legislation prescribes forms and periods of
notice to be given to the mortgagor prior to enforcement.
A sale under a mortgage may be by public auction or private treaty. Once
registered, the purchaser of property sold pursuant to a mortgagee's power
of sale becomes absolute owner of the property.
A mortgagee's ability to call all amounts under a housing loan or enforce a
mortgage which is subject to the Consumer Credit Legislation is limited by
various demand and notice procedures which are required to be followed. For
example, as a general rule enforcement cannot occur unless the relevant default
is not remedied within 30 days after a default notice is given. Borrowers may
also be entitled to initiate negotiations with the mortgagee for a postponement
of enforcement proceedings.
Penalties and Prohibited Fees
Australian courts will not enforce an obligation of a borrower to pay
default interest on delinquent required payments if the court determines that
the relevant default interest rate is a penalty. Certain jurisdictions prescribe
a maximum recoverable interest rate, although in most jurisdictions there is no
specified threshold rate to determine what is a penalty. In those circumstances,
whether a rate is a penalty or not will be determined by reference to such
factors as the prevailing market interest rates. The Consumer Credit Legislation
does not impose a limit on the rate of default interest, but a rate which is too
high may entitle the borrower to have the loan agreement re-opened on the ground
that it is unjust. Under the Corporations Law, the liquidator of a company may
avoid a loan under which an extortionate interest rate is levied.
The Consumer Credit Legislation requires that any fee or charge to be levied
by the lender must be provided for in the contract, otherwise it cannot be
levied. The regulations under the Consumer Credit Legislation may also from time
to time prohibit certain fees and charges. The Consumer Credit legislation also
requires that establishment fees, termination fees and prepayment fees must be
reasonable otherwise they may be reduced or set aside.
Consumer Credit Legislation
Some of the Housing Loans are regulated by consumer credit legislation (the
"Consumer Credit Legislation"). Under that legislation, a Borrower may have a
right to apply to a court to:
(1) vary the terms of his or her Housing Loan on the grounds of hardship or
that it is an unjust contract;
(2) reduce or cancel any interest rate payable on the Housing Loan which is
unconscionable;
(3) have certain provisions of the Housing Loan or relevant Mortgage which
are in breach of the legislation declared unenforceable; or
(4) obtain restitution or compensation from the Issuer Trustee, in relation
to any breaches of the Consumer Credit Legislation in relation to the
Housing Loan or relevant Mortgage.
Any such order may affect the timing or amount of interest or principal
payments or repayments under the relevant Housing Loan (which might in turn
affect the timing or amount of interest or principal payments or repayments
under the Offered Notes).
Breaches of the Consumer Credit Legislation may also lead to civil penalties
or criminal fines being imposed on Westpac, for so long as it holds legal title
to the Housing Loans and the Mortgages. If the Issuer Trustee acquires legal
title, it will then become primarily responsible for compliance with the
Consumer Credit Legislation. The Issuer Trustee will (subject to limited
exceptions) be indemnified out of the assets of the Trust for its liabilities
under the Consumer Credit Legislation. If the Issuer Trustee is indemnified with
respect to such liabilities out of the assets of the Trust, proceeds of the
Trust may be insufficient to make all payments provided for under the Offered
Notes.
Westpac will give, or has given, certain representations and warranties that
the Housing Loans and related Mortgages comply in all material respects with the
Consumer Credit Legislation in force at the time documents were entered into.
The Servicer has undertaken to comply with the Consumer Credit Legislation in
connection with servicing the Housing Loans and related Mortgages where failure
to do so would have an Adverse Effect. An "Adverse Effect" is an event which
will materially and adversely affect the amount of any payment to be made to any
Noteholder, or will materially and adversely affect the timing of such payment.
In certain circumstances the Issuer Trustee may have the right to claim damages
from Westpac or the Servicer, as the case may be, where the Issuer Trustee
suffers loss in connection with a breach of the Consumer Credit Legislation
which is caused by a breach of a relevant representation or undertaking.
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Bankruptcy
The insolvency of a natural person is governed by the provisions of the
Bankruptcy Act 1966, which is a federal statute. Generally, secured creditors of
a natural person (such as mortgagees under real property mortgages) stand
outside the bankruptcy - that is, the property of the bankrupt which is
available for distribution by the trustee in bankruptcy does not include the
secured property. The secured creditor may, if it wishes, prove in the
bankruptcy proceeding as an unsecured creditor in a number of circumstances,
including if they have realized the related mortgaged property and their debt
has not been fully repaid (in which case they can prove for the unpaid balance).
Certain dispositions of property by a bankrupt may be avoided by the trustee
in bankruptcy. These include where (a) the disposition was made to defraud
creditors; or (b) the disposition was made by an insolvent debtor within 6
months of the petition for bankruptcy and gave a preference to an existing
creditor over at least one other creditor.
The insolvency of a company is governed by the Corporations Law of the
relevant Australian jurisdiction. Again, secured creditors generally stand
outside the insolvency. However, a liquidator may avoid a mortgage which is
voidable under the Corporations Law because it is an uncommercial transaction,
or an unfair preference to a creditor or a transaction for the purpose of
defeating creditors, and that transaction occurred when the company was
insolvent (or an act is done to give effect to the transaction when the company
is insolvent, or the company becomes insolvent because of the transaction or the
doing of an act to give effect to the transaction), and the transaction occurred
within a prescribed period prior to the commencement of the winding up of the
company. The liquidator may also avoid a loan under which an extortionate
interest rate is levied.
Environmental
Real property which is mortgaged to a lender may be subject to unforeseen
environmental problems, including land contamination. Environmental legislation
which deals with liability for such problems exists at both state and federal
levels, although the majority of relevant legislation is imposed by the states.
No Australian statute expressly imposes liability on "passive" lenders or
security holders for environmental matters, and some states expressly exclude
such liability. However, liability in respect of environmentally damaged land
(which liability may include the cost of rectifying the damage) may attach to a
person who is, for instance, an owner, occupier or person in control of the
relevant property. In some but not all states, lenders are expressly excluded
from the definitions of one or more of these categories.
Merely holding security over property will not convert a lender into an
occupier. However, a lender or receiver who goes into possession of contaminated
mortgaged property or otherwise enforces its security may be liable as an
occupier.
Some environmental legislation provides that security interests may be
created over contaminated or other affected property to secure payment of the
costs of any necessary rectification of the property. The security interests may
have priority over pre-existing mortgages.
Insolvency Considerations
The current transaction is designed to minimize insolvency risk. For
example, the equitable assignment of the Housing Loans by Westpac to the Issuer
Trustee should ensure that the Housing Loans are not assets available to the
liquidator or creditors of Westpac in the event of an insolvency of Westpac.
Similarly, the assets in the Trust should not be available to other creditors of
the Issuer Trustee in its personal capacity or as trustee of any other trust in
the event of an insolvency of the Issuer Trustee.
If any Insolvency Event occurs with respect to the Issuer Trustee, the
Security Trust Deed may be enforced by the Security Trustee at the direction of
the Voting Mortgagees (see "SECURITY FOR THE NOTES--Enforcement"). The security
created by the Security Trust Deed will stand outside any liquidation of the
Issuer Trustee, and the assets the subject of that security will not be
available to the liquidator or any creditor of the Issuer Trustee (other than a
creditor which has the benefit of the Security Trust Deed) in priority to the
Security Trust Deed. The proceeds of enforcement of the Security Trust Deed are
to be applied by the Security Trustee as set out in "SECURITY FOR THE
NOTES--Priorities under the Security Trust Deed". If the proceeds from
enforcement of the Security Trust Deed are not sufficient to redeem the Notes in
full, some or all of the Noteholders will incur a loss.
Treatment of Interest Payments with respect to Australian Housing Loans
Under Australian law, interest on loans used to purchase a person's
primary place of residence is not ordinarily deductible for taxation
purposes. Conversely, interest payments on mortgage loans and other
non-capital expenditures relating to investment properties that generate
taxable income are generally allowable as tax deductions.
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USE OF PROCEEDS
The net proceeds from the sale of the Notes will amount to _________ and
will be used by the Issuer Trustee to acquire equitable title to the Housing
Loans and related Mortgages from the Approved Sellers and for general
expenses (including any premium payable to any Swap Provider) in relation to
the Trust.
UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
The following is a general discussion of the anticipated material United
States federal income tax consequences of the purchase, ownership and
disposition of Notes by Noteholders who are subject to United States federal
income tax. The summary is based on laws, regulations, rulings and decisions now
in effect, all of which are subject to change (possibly with retroactive effect)
or to different interpretation. The summary does not purport to address federal
income tax consequences applicable to particular categories of investors, some
of which (for example, insurance companies, dealers in securities, financial
institutions or foreign investors) may be subject to special rules. In addition,
this summary is generally limited to investors who will hold the Notes as
"capital assets" (generally, property held for investment) within the meaning of
Section 1221 of the Internal Revenue Code of 1986, as amended (the "Code").
Investors are urged to consult their own tax advisors with regard to the
application of the tax considerations discussed below to their particular
situations, as well as the consequences to them under, state, local, non-United
States and any other tax law of the purchase, ownership and disposition of
Notes, including the advisability of making any election discussed below.
Prospective investors should note that no rulings have been or will be sought
from the Internal Revenue Service (the "IRS" or the "Service") with respect to
any of the federal income tax consequences discussed below, and no assurance can
be given that the IRS will not take contrary positions. It is anticipated that
the Issuer Trustee will not be indemnified for any United States federal income
taxes that may be imposed upon it, and the imposition of any such taxes on the
Trust could result in a reduction in the amounts available for distribution to
the Noteholders.
In the opinion of Mayer, Brown & Platt, tax counsel to the Issuer Trustee
("Tax Counsel"), for United States federal income tax purposes, the Notes will
be characterized as debt of the Issuer Trustee. Each Noteholder, by the
acceptance of a Note, will agree to treat the Notes as indebtedness for federal
income tax purposes.
General
Each Noteholder will be required to report on its federal income tax return
interest income on Notes held by it in accordance with such Noteholder's method
of accounting.
Sales of Notes
A Noteholder's tax basis in a Note will equal its cost of such Note, reduced
by any amortized premium (as described below) and any payments other than
interest made on such Note and increased by any market discount or original
issue discount included in the Noteholder's income. A Noteholder that sells a
Note will recognize gain or loss (in the aggregate) in an amount equal to the
difference between its adjusted tax basis in the Note and the amount realized on
the sale (except to the extent attributable to accrued interest, which should be
taxable as interest income). Subject to the market discount provisions of the
Code (described below), any such gain or loss will be capital gain or loss if
the Note was held as a capital asset and, if the Note was held for more than one
year, will be long-term capital gain or loss. In the case of an individual
taxpayer, any capital gain on the sale of a Note will be taxed at a maximum rate
of 39.6% if the Note is held for not more than 12 months, at 28% if the Note is
held for more than 12 months, but not more than 18 months, and at 20% if the
Note is held for more than 18 months. Any capital losses realized will be
deductible by a corporate taxpayer only to the extent of capital gains and by an
individual taxpayer only to the extent of capital gains plus U.S. $3,000 of
other income.
Market Discount
A purchaser of a Note will be considered to have acquired such Note at a
"market discount" to the extent the remaining principal amount of such Note
exceeds the Noteholder's tax basis in such Note, unless the excess does not
exceed a prescribed de minimis amount. In the event such excess exceeds the de
minimis amount, the Noteholder will be subject to the market discount rules of
Sections 1276 and 1278 of the Code with regard to such Note.
In the case of a sale or other disposition of a Note subject to the market
discount rules, Section 1276 of the Code requires that gain, if any, from such
sale or disposition be treated as ordinary income to the extent such gain
represents market discount that has accrued during the period in which the Note
was held by such Noteholder. In addition, a disposition of a Note by gift (and
in certain other circumstances), could result in the recognition of market
discount income, computed as if such Note had been sold for its fair market
value.
In the case of a partial principal payment on a Note subject to the market
discount rules, Section 1276 of the Code requires that such payment be included
in gross income as ordinary income to the extent such payment does not exceed
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the market discount that has accrued during the period such Note was held by
such Noteholder. The amount of any accrued market discount later required to be
included in income upon a disposition, or subsequent partial principal payment,
will be reduced by the amount of accrued market discount previously included in
income.
Generally, market discount accrues under a straight line method, or, at the
election of the taxpayer, under a constant interest rate method. However, in the
case of bonds the principal of which may be paid in two or more installments
(such as the Notes), the manner in which market discount is to be accrued will
be described in Treasury regulations that have yet to be issued. Until such
Treasury regulations are issued, the explanatory conference committee Report to
the Tax Reform Act of 1986 (the "Conference Report") indicates that holders of
such obligations may elect to accrue market discount either on the basis of a
constant interest rate or as follows: (1) for those obligations that have
original issue discount ("OID"), market discount shall be deemed to accrue in
proportion to the accrual of OID for any accrual period, and (2) for those
obligations which do not have OID, the amount of market discount that is deemed
to accrue is the amount of market discount that bears the same ratio to the
total amount of remaining market discount that the amount of stated interest
paid in the accrual period bears to the total amount of stated interest
remaining to be paid on the obligation as of the beginning of such period.
Under Section 1277 of the Code, if in any taxable year interest paid or
accrued by a Noteholder on indebtedness incurred or continued to purchase or
carry a Note subject to the market discount rules exceeds the interest
(including OID) currently includible in income with respect to such Note,
deductions of such interest must be deferred to extent of the market discount
allocable to the taxable year. The deferred portion of any interest expense will
generally be deductible when such market discount is included in income upon the
sale or other disposition (including repayment) of the indebtedness.
Section 1278 of the Code allows a taxpayer to make an election to include
market discount in its gross income currently. If such election is made, the
rules of Sections 1276 and 1277 of the Code (described above) will not apply to
the taxpayer.
Due to the complexity of the market discount rules, prospective Noteholders
are urged to consult their tax advisors as to the applicability and operation of
the market discount rules.
Premium
A Noteholder will generally be considered to have acquired a Note at a
premium to the extent the Noteholder's tax basis in such Note exceeds the
remaining principal amount of such Note. In that event, a Noteholder who holds a
Note as a capital asset may amortize the premium as an offset to interest income
under Section 171 of the Code, with corresponding reductions in the Noteholder's
tax basis in the Note if an election under Section 171 of the Code is or has
been made with respect to all debt instruments held by the taxpayer (including
the Notes). Generally, such amortization is on a constant yield basis. However,
in the case of bonds the principal of which may be paid in two or more
installments (such as the Notes), the Conference Report indicates a
Congressional intent that amortization will be in accordance with the same rules
that will apply to the accrual of market discount on such obligations (see the
discussion of market discount above).
Backup Withholding
A Noteholder may be subject, under certain circumstances, to backup
withholding at a 31% rate with respect to "reportable payments" on the
Securities. This withholding generally applies only if the Noteholder (i) fails
to provide the Noteholder's social security or other taxpayer identification
number ("TIN"); (ii) furnishes an incorrect TIN; (iii) is notified by the
Service that the Noteholder has failed to report properly payments of interest
and dividends and the Service has notified the Issuer Trustee that the
Noteholder is subject to backup withholding; or (iv) fails, under certain
circumstances, to provide a certified statement, signed under penalty of
perjury, that the TIN provided is the Noteholder's correct number and that the
Noteholder is not subject to backup withholding. Any amount withheld from
payment to a Noteholder under the backup withholding rules is allowable as a
credit against such Noteholder's federal income tax liability, provided that the
required information is furnished to the Service. Certain Noteholders
(including, among others, corporations and foreign individuals who comply with
certain certification requirements) are not subject to backup withholding.
Noteholders should consult their tax advisors as to their qualifications for
exemption from backup withholding and the procedure for obtaining such an
exemption.
ALL INVESTORS SHOULD CONSULT THEIR OWN TAX ADVISORS REGARDING THE FEDERAL,
STATE, LOCAL OR FOREIGN INCOME TAX CONSEQUENCES OF THE PURCHASE, OWNERSHIP AND
DISPOSITION OF THE NOTES.
CERTAIN AUSTRALIAN TAX MATTERS
The following statements with respect to Australian taxation are only
general summaries and are based on advice received by the Issuer Trustee.
Purchasers of Offered Notes should consult their own tax advisers concerning the
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consequences, in their particular circumstances, under Australian tax laws, and
the laws of any other taxing jurisdiction, of the ownership of or any dealing in
the Notes. Any such dealing would need to comply with the selling restrictions
and securities law generally.
Payments of Principal, Premiums and Interest
Under existing Australian tax law, non-resident holders of Notes or
interests in any Global Note (other than persons holding such securities or
interest as part of a business carried on, at or through a permanent
establishment in Australia (an "Australian Establishment")) are not subject to
Australian income tax on payments of interest or amounts in the nature of
interest, other than interest withholding tax. Under Article 11 of the 1983
United States-Australia Tax Convention, the maximum Australian withholding rate
on interest paid to United States recipients is 10%. Under Australian law, the
withholding rates for payments to other jurisdictions is currently 10% on
interest or amounts in the nature of interest paid on the Notes. A premium on
redemption would generally be treated as an amount in the nature of interest for
this purpose.
Pursuant to section 128F of the Australian Income Tax Assessment Act 1936
(the "Tax Act"), an exemption from Australian interest withholding tax applies
provided all prescribed conditions are met. Such conditions include the issue of
the Offered Notes in a way that satisfies an objective public offer test. The
Issuer Trustee will seek to issue the Offered Notes in a way that will satisfy
such test and otherwise meet the requirements of section 128F including by
listing the Offered Notes.
The test will not be satisfied if the Issuer Trustee knew, or had reasonable
grounds to suspect, that the Offered Notes were being or would later be acquired
either directly or indirectly by:
(1) a resident of Australia for the purpose of section 128F of the Income
Tax Assessment Act 1936 of Australia; or
(2) an associate of the Issuer Trustee within the meaning of that section,
other than in the capacity of a dealer, manager or underwriter in relation
to the placement of an Offered Note.
The exemption from Australian withholding tax will also not apply to
interest paid by the Issuer Trustee to an associate of the Issuer Trustee within
the meaning of section 128F if, at the time of the payment, the Issuer Trustee
knows, or has reasonable grounds to suspect, that the person is an associate.
In a press release of the Federal Government of Australia late last year
entitled Investing for Growth, it was announced that "in order to encourage the
deepening and greater liquidity of the domestic corporate debt market, the
interest withholding tax exemption provided under section 128F of the Income Tax
Assessment Act 1936 will be widened by removing, for eligible debentures issued
by companies, the present requirement that such exemptions be issued outside
Australia and that the interest be paid outside Australia...this measure will
remove tax discrimination in favor corporate debt issued and foreign financial
markets over corporate debt issued in Australia markets."
The effect, form and timing of the proposed amendments are currently
unclear.
Profit on Sale
Under existing Australian law, non-resident holders of Offered Notes will
not be subject to Australian income tax on profits derived from the sale or
disposal of the Offered Notes provided that:
(1) the Offered Notes are not held as part of an Australian Establishment;
and
(2) the profits do not have an Australian source.
The source of any profit on the disposal of Offered Notes will depend on the
factual circumstances of the actual disposal. Where the Offered Notes are
acquired and disposed of pursuant to contractual arrangements entered into and
concluded outside Australia, and the seller and the purchaser are non-residents
of Australia and do not have an Australian Establishment, the profit should not
have an Australian source. There are, however, specific withholding tax rules
that can apply to treat a portion of the sale price of Notes as interest for
withholding tax purposes (and which amounts are not covered by the exemption
conditions in section 128F). These rules can apply when:
(1) Offered Notes are sold for an amount in excess of their issue price
prior to maturity; or
(2) Offered Notes are sold to an Australian resident in connection with a
"washing arrangement" (as defined in the Tax Act).
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Other Taxes
No stamp, issue, registration or similar taxes are payable in Australia in
connection with the issue of the Offered Notes. Furthermore, a transfer of, or
agreement to transfer, Offered Notes executed outside of Australia will not be
subject to Australian stamp duty.
ERISA CONSIDERATIONS
Subject to the considerations discussed below, the Offered Notes are
eligible for purchase by employee benefit plans.
Section 406 of the Employee Retirement Income Security Act ("ERISA"), and/or
Section 4975 of the Code, prohibits a pension, profit-sharing or other employee
benefit plan, as well as individual retirement accounts and certain types of
Keogh Plans (each a "Benefit Plan") from engaging in certain transactions with
persons that are "parties in interest" under ERISA or "disqualified persons"
under the Code with respect to such Benefit Plan. A violation of these
"prohibited transaction" rules may result in an excise tax or other penalties
and liabilities under ERISA and the Code for such persons. Title I of ERISA also
requires that fiduciaries of a Benefit Plan subject to ERISA make investments
that are prudent, diversified (except if prudent not to do so) and in accordance
with governing plan documents.
Certain transactions involving the purchase, holding or transfer of the
Notes might be deemed to constitute prohibited transactions under ERISA and the
Code if assets of the Issuer Trustee were deemed to be assets of a Benefit Plan.
Under a regulation issued by the United States Department of Labor (the "Plan
Assets Regulation"), the assets of the Issuer Trustee would be treated as plan
assets of a Benefit Plan for the purposes of ERISA and the Code only if the
Benefit Plan acquires an "equity interest" in the Issuer Trustee and none of the
exceptions contained in the Plan Assets Regulation is applicable. An equity
interest is defined under the Plan Assets Regulation as an interest in an entity
other than an instrument which is treated as indebtedness under applicable local
law and which has no substantial equity features. Although there can be no
assurances in this regard, it appears that the Notes should be treated as debt
without substantial equity features for purposes of the Plan Assets Regulation
and that the Notes do not constitute equity interests in the Issuer Trustee for
purposes of the Plan Assets Regulation. However, without regard to whether the
Notes are treated as an equity interest for such purposes, the acquisition or
holding of Notes by or on behalf of a Benefit Plan could be considered to give
rise to a prohibited transaction if the Issuer Trustee or the Trustee, or any of
their respective affiliates is or becomes a party in interest or a disqualified
person with respect to such Benefit Plan. In such case, certain exemptions from
the prohibited transaction rules could be applicable depending on the type and
circumstances of the plan fiduciary making the decision to acquire a Note.
Included among these exemptions are: Prohibited Transaction Class Exemption
("PTCE") 96-23, regarding transactions effected by "in-house asset managers";
PTCE 90-1, regarding investments by insurance company pooled separate accounts;
PTCE 95-60, regarding transactions effected by "insurance company general
accounts"; PTCE 91-38, regarding investments by bank collective investment
funds; and PTCE 84-14, regarding transactions effected by "qualified
professional asset managers." By its acquisition of a Note, each purchaser shall
be deemed to represent and warrant that its purchase and holding of the Note
will not result in a non-exempt prohibited transaction under ERISA or the Code.
Employee benefit plans that are governmental plans (as defined in Section
3(32) of ERISA) and certain church plans (as defined in Section 3(33) of ERISA)
are not subject to ERISA requirements.
A PLAN FIDUCIARY CONSIDERING THE PURCHASE OF ANY OF THE NOTES SHOULD CONSULT
ITS TAX AND/OR LEGAL ADVISORS REGARDING WHETHER THE ASSETS OF THE ISSUER TRUSTEE
WOULD BE CONSIDERED PLAN ASSETS, THE POSSIBILITY OF EXEMPTIVE RELIEF FROM THE
PROHIBITED TRANSACTION RULES AND OTHER ISSUES AND THEIR POTENTIAL CONSEQUENCES.
RATINGS OF THE NOTES
It is a condition to the issuance of the Class A Notes that they
be rated "AAA" by Standard & Poor's Ratings Group, a division of The
McGraw-Hill Companies ("Standard & Poor's"), "Aaa" by Moody's Investors
Service, Inc. ("Moody's") and _______ by Fitch IBCA, Inc. ("Fitch" and
together with Standard & Poor's, the "Rating Agencies"). It is a
condition to the issuance of the Class B Notes that they be rated "AA-"
by Standard & Poor's and "AA-" by Fitch. The security ratings of the
Offered Notes should be evaluated independently from similar ratings on
other types of securities. A security rating is not a recommendation to
buy, sell or hold securities and may be subject to revision or
withdrawal at any time by the Rating Agencies.
LEGAL INVESTMENT CONSIDERATIONS
The Offered Notes will not constitute "mortgage related securities" for
purposes of the Secondary Mortgage Market Enhancement Act of 1984 ("SMMEA"),
because the originator of the Mortgage Loans was not subject to United States
112
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State of Federal regulatory authority. Accordingly, many institutions with legal
authority to invest in comparably rated securities based on such mortgage loans
may not be legally authorized to invest in the Offered Notes, which, for the
reasons stated herein, do not constitute "mortgage related securities" under
SMMEA.
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting Agreement,
the Issuer Trustee has agreed to sell to the underwriters named below (the
"Underwriters"), and each of the Underwriters have severally agreed to purchase,
the principal amount of Notes set forth opposite its name below.
<TABLE>
<CAPTION>
Principal Amount Principal Amount
Underwriter of Class A Notes of Class B Notes
- -------------------------------------------------- ------------------- --------------------
<S> <C> <C>
J.P. Morgan Securities Inc........................
Morgan, Stanley & Co. Incorporated................
Other Underwriters................................
------------------- --------------------
Total........................................ US$__________ US$__________
</TABLE>
The Underwriters have entered into the Underwriting Agreement with the
Issuer Trustee.
In the Underwriting Agreement, the Underwriters named therein have agreed,
subject to the terms and conditions set forth therein, to purchase all of the
Offered Notes offered hereby if any Offered Notes are purchased. In the event of
default by an Underwriter, the Underwriting Agreement provides that, in certain
circumstances, the Underwriting Agreement may be terminated.
The Issuer Trustee has been advised by the Underwriters that they propose
initially to offer the Offered Notes to the public at the respective offering
prices set forth on the cover page hereof and to certain dealers at such prices
less concessions not to exceed ______% of the Class A Principal Balance and
____% of the Class B Principal Balance.
With respect to the Class A Notes, the Underwriters may allow and such
dealers may reallow, a concession not to exceed ____% of the aggregate of the
Class A Principal Balance. With respect to the Class B Notes, the Underwriters
may allow and such dealers may reallow, a concession not to exceed ____% of the
Class B Principal Balance.
In connection with the offering, the Underwriters may engage in transactions
that stabilize, maintain or otherwise affect the price of the Securities.
Specifically, the Underwriters may overallot the offering, creating a syndicate
short position. In addition, the Underwriters may bid for, and purchase, the
Securities in the open market to cover syndicate shorts or to stabilize the
price of the Securities. Any of these activities may stabilize or maintain the
market price of the Securities above independent market levels. The Underwriters
are not required to engage in these activities, and if commenced, such
activities may be discontinued at any time.
After the initial public offering of the Offered Notes, the public offering
price and such concessions may be changed.
Pursuant to the Underwriting Agreement, Westpac Securities
Administration Limited (in its capacity as trustee of the Trust only),
Westpac Banking Corporation and Westpac Securitisation Management Pty Limited
have agreed to indemnify the Underwriters against certain liabilities,
including civil liabilities under the Securities Act, or contribute to
payments which the Underwriters may require to make in respect thereof.
In the ordinary course of [its][their] business, [J.P. Morgan Securities
Inc.][the Underwriters] and certain of [its][their] affiliates have in the past
and may in the future engage in commercial and investment banking activities
with Westpac and its affiliates.
LISTING AND GENERAL INFORMATION FOR NON-U.S. INVESTORS
Listing
The listing of the Notes on the London Stock Exchange will be expressed as a
percentage of their principal amount (exclusive of accrued interest). It is
expected that listing of the Offered Notes on the London Stock Exchange will be
granted on _____________. The Offered Notes will be issued in the form of one
or more Global Notes. There will be no temporary global notes.
113
<PAGE>
Authorization
The Issuer Trustee has obtained all necessary consents, approvals and
authorizations in connection with the issue and performance of the Notes. The
issue of the Notes has been authorized by the resolutions of the Board of
Directors of the Issuer Trustee passed on __________________.
Litigation
The Issuer Trustee is not involved in any litigation or arbitration
proceedings which may have, or have had during the twelve months preceding the
date of this Prospectus, a significant effect on the Issuer Trustee's financial
position nor, so far as the Issuer Trustee is aware, are any such litigation or
arbitration proceedings pending or threatened.
Euroclear and Cedel
The Offered Notes have been accepted for clearance through Euroclear and
Cedel Bank with a common code of _______ for the Class A Notes and a common code
of _________ for the Class B Notes. The ISIN for the Class A Notes is _________
and the ISIN for the Class B Notes is ____________.
Documents Available for Collection and Inspection
Copies of the following documents may be inspected during normal
business hours on any weekday (excluding Saturdays, Sundays and public
holidays) at the offices of the Note Trustee at 60 Victoria Embankment,
London ECHY 0UP, [during the period of fourteen days from the date of this
Prospectus] (except for (a), together the "Transaction Documents"):
(a) the Memorandum and Articles of Association of the Issuer Trustee;
(b) the Master Trust Deed between the Issuer Trustee and the Trust Manager
dated 14th February 1997; (c) the following (which, prior to the Closing
Date, will be in draft form):
(i) the Series Notice;
(ii) the Servicing Agreement and the Servicing Agreement Amendment
Agreement;
(iii) the Note Trust Deed;
(iv) the Agency Agreement;
(v) the Security Trust Deed;
(vi) the Liquidity Facility Agreement;
(vii) the Redraw Facility Agreement;
(viii) the Variable Rate Basis Swap;
(ix) the Fixed Rate Basis Swaps;
(x) the Currency Swap;
(xi) the Mortgage Pool Insurance Policy between HLIC, Westpac and the
Issuer Trustee;
(xii) the PMI Policies issued by SunAlliance, MGICA, WLMI and HLIC which
cover individual loans for principal and interest losses; and
(xiii) Underwriting Agreement.
Temporary Australian Foreign Exchange Controls
Under temporary Australian foreign exchange controls, payments to, or on
behalf of:
(1) the Government of Iraq or to its agencies or nationals:
114
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(2) the authorities of the Federal Republic of Yugoslavia (Serbia and
Montenegro); or
(3) the Government of Libya or any public authority or controlled entity of
the Government of Libya,
may only be made with the approval of the Reserve Bank of Australia.
LEGAL MATTERS
Certain legal matters with respect to the Offered Notes will be passed
upon for the Trust and the Issuer Trustee by Mayer, Brown & Platt, Chicago,
Illinois, and Allen Allen & Hemsley, Sydney, Australia and for the
Underwriters by Brown & Wood LLP, New York, New York. The material U.S.
federal income tax consequences of the Offered Notes will be passed upon for
the Trust and the Issuer Trustee by Mayer, Brown & Platt, and certain
Australian income tax consequences will be passed upon for the Trust and
Issuer Trustee by Allen Allen & Hemsley.
115
<PAGE>
INDEX OF DEFINED TERMS
<TABLE>
<S> <C>
"Agent Bank"........................................................12
"Charge" ...........................................................18
"Interest Determination Date".......................................12
"Offered Noteholders"...............................................12
"Registered"........................................................16
A$ Class A Interest Amount..........................................70
A$ Class B Interest Amount..........................................71
A$ Equivalent.......................................................71
Accrued Interest Adjustment.....................................22, 36
ACN ................................................................46
ACT ................................................................40
Additional Termination Event.......................................102
Adverse Effect.................................................31, 108
Agreement..........................................................103
AMP.................................................................64
Approved Bank.......................................................85
Approved Sellers....................................................10
Australian Establishment...........................................111
Authorized Investments..............................................85
Availability Fee....................................................80
Available Income................................................21, 68
Available Liquidity Amount.........................................100
Available Redraw Amount.............................................80
Average Quarterly Percentage........................................77
Bank Bill Rate......................................................80
Basic Terms Modification........................................90, 92
beneficial owner....................................................87
Beneficiary.........................................................73
Benefit Plan.......................................................112
Book-Entry Notes................................................67, 87
Borrower............................................................16
Business Day....................................................12, 67
Carryover Charge Off................................................22
Carryover Class A Charge Offs.......................................78
Carryover Class B Charge Offs.......................................78
Carryover Redraw Charge Offs........................................78
Carryover RFS Class A Charge Offs...................................78
CBA.................................................................50
Cede.................................................................3
Cedel................................................................1
Cedel Participants..................................................88
Chargor.............................................................34
Class...............................................................12
Class A Charge Off..................................................78
Class A Forex Percentage............................................77
Class A Notes................................................1, 11, 67
Class A Percentage..................................................77
Class B Charge Off..................................................78
Class B Notes................................................1, 11, 67
Class B Percentage..................................................77
Clean-up Offer......................................................18
Closing Date........................................................12
Code...............................................................109
Collection Account..................................................85
Collection Determination Date.......................................67
Collection Period...................................................67
Collections................................................21, 68, 103
Collections Account.................................................17
Commission...........................................................3
common property....................................................106
Concessional Fixed Rate.............................................27
</TABLE>
116
<PAGE>
<TABLE>
<S> <C>
Conference Report..................................................110
Consumer Credit Legislation....................................31, 108
Cooperative.........................................................88
CPR.................................................................65
Currency Swap......................................................103
Currency Swap Provider.............................................103
Cut-Off Date........................................................12
Cut-Off Date Balance Outstanding................................16, 37
Cut-Off Date Loan Balance...........................................37
Definitive Note.....................................................87
Definitive Notes....................................................89
Delinquent..................................................17, 51, 99
Depository..........................................................67
Draw Fee ...........................................................80
DTC..............................................................1, 87
Eligibility Criteria................................................38
Eligible Servicer...................................................29
ERISA..............................................................112
Euroclear............................................................1
Euroclear Operator..................................................88
Euroclear Participants..............................................88
European Depositaries...............................................87
Event of Default....................................................92
Excess Available Income.........................................22, 73
Excess Collections Distribution.................................23, 73
Exchange Act.........................................................3
Fair Market Value...................................................19
Finance Charge Collections..........................................69
Finance Charge Loss.................................................69
Financial Intermediary..............................................87
Fitch...............................................................19
Fixed Rate..........................................................27
Fixed Rate Housing Loans............................................40
GECA................................................................63
Government..........................................................63
Gross Principal Collections.....................................21, 73
HLIC............................................................14, 60
Holders.............................................................67
Housing Loan Principal..............................................77
Housing Loans........................................................1
Initial Principal Distributions.....................................75
Initial Subordinated Percentage.....................................77
Insolvency Event....................................................81
Insurance policy....................................................38
Insurance proceeds..................................................38
Interest....................................................13, 72, 83
Interest Determination Date.................................12, 67, 72
Interest Period.....................................................12
Interest Rate...................................................12, 72
Interest Rate Swap Provider........................................101
Invested Amount.................................................12, 22
IRS................................................................109
ISDA............................................................12, 72
ISDA Definitions................................................12, 72
ISDA Master Agreement...............................................18
Issuer Trustee...............................................1, 10, 45
Issuer Trustee Fee..................................................48
Issuer Trustee's Default............................................48
J.P. Morgan........................................................105
Liquidation Loss....................................................22
Liquidation Losses..................................................69
Liquidation Proceeds................................................69
Liquidity Draw.....................................................100
Liquidity Facility Provider.........................................17
Liquidity Limit.................................................17, 99
</TABLE>
117
<PAGE>
<TABLE>
<S> <C>
Liquidity Shortfall.................................................99
LMI.................................................................63
London Stock Exchange................................................1
Loss Date...........................................................61
Master Trust Deed...................................................10
Maturity Date.......................................................12
MGICA...........................................................15, 60
MIP.................................................................51
Moody's........................................................19, 113
Mortgage in Possession..............................................51
Mortgage Insurance Policies.........................................14
Mortgage Insurers...................................................15
Mortgage Pool.......................................................16
Mortgage Pool Insurance Policy..................................14, 60
Mortgage Rates......................................................16
Mortgage Servicing System...........................................16
Mortgage Shortfall..............................................22, 77
Mortgaged Property..................................................16
Mortgagees......................................................18, 33
Mortgages...........................................................37
MPC.................................................................50
Net Principal Collections.......................................14, 75
Note Owners.........................................................87
Noteholder..........................................................87
Noteholders.........................................................67
Notes...........................................................11, 67
NSW.................................................................40
NT..................................................................40
Offered Notes................................................1, 11, 66
OID................................................................110
P & I...............................................................59
Paying Agent........................................................10
Paying Agents.......................................................10
Payment Date.....................................................1, 12
payment holiday.....................................................58
Payment Shortfall...............................................17, 70
Performing Loan.................................................17, 99
Plan Assets Regulation.............................................112
PMI Policy......................................................14, 63
Prepayment Benefit..................................................70
Prepayment Benefit Shortfall........................................69
Prepayment Calculation Adjustment...................................74
Prepayment Cost.....................................................69
Prepayment Cost Surplus.............................................69
Prepayment Model....................................................65
Principal Charge Off............................................22, 78
Principal Collections...........................................21, 74
Principal Draw..............................................17, 21, 70
Principal Loss..................................................22, 70
Principal Outstanding...............................................80
Principal Paying Agent..............................................10
Procedures Manual...................................................96
PTCE...............................................................113
QLD.................................................................40
Quarter.............................................................67
Quarterly Percentage................................................77
Rating Agencies................................................19, 113
Record Date.........................................................12
Redraw..........................................................58, 79
Redraw Advance......................................................80
Redraw Facility Agreement...........................................79
Redraw Facility Charge Off..........................................78
Redraw Facility Provider............................................79
Redraw Limit........................................................79
Redraw Shortfall....................................................79
Registration Statement...............................................5
Related Securities..................................................38
Related Security....................................................38
relevant corporation................................................81
</TABLE>
118
<PAGE>
<TABLE>
<S> <C>
Relevant Date.......................................................84
Relevant Depositary.................................................87
Relevant Document...................................................38
Relevant Documents..................................................69
Remaining Liquidity Shortfall.......................................70
Remittance Date.....................................................68
Replacement Currency Swap..........................................105
RFS.................................................................82
RFS Charge Off......................................................78
RFS Class A Charge Off..............................................78
RFS Class A Forex Percentage........................................77
RFS Class A Interest................................................71
RFS Class A Note....................................................82
RFS Class A Notes...................................................11
RFS Interest........................................................71
RFS Series..........................................................82
RFSs.................................................................2
RSALMI..............................................................64
Rules...............................................................87
SA..................................................................40
Sale Notice.........................................................10
Scheduled Payment...................................................16
Secured Moneys......................................................36
Securities Act.......................................................5
Securitized Portfolios..............................................52
Security Trustee....................................................33
Security Trustee Fee................................................36
Seller Trustee..................................................10, 33
Serial Method 1 Distribution Test...................................75
Serial Method 2 Distribution Test...................................76
Series Notice.......................................................17
Service............................................................109
Servicer........................................................10, 38
Servicer Transfer Event.............................................98
Servicer's Security Undertaking.....................................25
Servicing Agreement.................................................10
Servicing Fee.......................................................97
SMMEA..........................................................19, 113
Standard & Poor's..............................................19, 113
Stated Amount.......................................................22
Strata title.......................................................106
Subordinated Percentage.............................................77
Substitution Net Transfer Amount................................69, 74
SunAlliance.....................................................15, 60
Support Facility....................................................18
Swap Agreements.....................................................18
Swap Providers.....................................................103
TAS.................................................................40
Tax Act............................................................111
Tax Counsel........................................................110
Term................................................................99
Termination Date....................................................81
Terms and Conditions................................................89
Threshold Rate.................................................27, 102
TIN................................................................111
TMC.................................................................10
top ups.............................................................59
Torrens title......................................................106
Total Available Funds...............................................68
Total Carryover Charge Off..........................................78
Total Payments..................................................22, 71
Transaction Documents...............................................18
Transfer Agent and Registrar........................................90
Trust........................................................1, 10, 17
Trust Accounts......................................................85
Trust Assets.........................................................1
Trust Expenses......................................................72
</TABLE>
119
<PAGE>
<TABLE>
<S> <C> <C>
Trust Manager...................................................10, 54
Trust Manager Fee...................................................55
Trust Manager's Default.............................................55
Underwriters.......................................................113
Unpaid Balance......................................................17
US$ Account.........................................................78
USD-LIBOR-Reference Banks.......................................13, 72
Variable Rate Housing Loans.........................................40
Vic.................................................................40
Voting Mortgagee....................................................93
WA..................................................................40
weighted average life...............................................65
Westpac......................................................1, 10, 50
Westpac Group.......................................................32
WLMI............................................................15, 60
WSML................................................................54
</TABLE>
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A1-I
APPENDIX I - GLOSSARY OF AUSTRALIAN LEGAL TERMS
"Charge" means the charge created by the Security Trust Deed. A Charge is a
proprietary interest created over property.
"Chargor" means the person or entity granting a Charge.
Mortgagee in Possession ("MIP") means a mortgagee in possession of the related
Mortgaged Property who, following an enforcement of the relevant mortgage, is
able to deal with the Mortgaged Property without becoming the absolute owner of
the Mortgaged Property.
"Registered" means the mortgage has been filed with lands office in the relevant
Australian State, granting certain rights with respect to the applicable
Mortgaged Property.
"Secured Moneys" means all money which the Issuer Trustee (whether alone or with
another person) is or at any time may become actually or contingently liable to
pay to or for the account of any Mortgagee (whether alone or with another
person) for any reason whatever under or in connection with a Trust Document.
Strata title means a system of title in which the relevant land is divided into
the relevant number of units. Each proprietor has title to, and may freely
dispose of, their unit. All proprietors are members of a "body corporate", which
monitors compliance with rules governing the apartment block. Certain parts of
the property, such as stairwells, entrance lobbies and the like are known as
"common property" and are owned by the body corporate as a whole rather than by
individual proprietors.
Torrens title means a system of title in which the relevant land is freehold
title, interests in which are created by registration in a central land registry
of the relevant State or Territory. Each parcel of land is represented by a
specific certificate of title. The original certificate is retained by the
registry, and in most States a duplicate certificate is issued to the owner. Any
dealing with the relevant land is carried out by pro forma instruments which
become effective on registration.
Appendix I -1
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution*
The following table sets forth the estimated expenses in connection with
the issuance and distribution of the Notes being registered under this
Registration Statement, other than underwriting discounts and commissions:
<TABLE>
<S> <C>
SEC Registration Fee.................................... $ 295.00
Printing and Engraving.................................. $ **
Legal Fees and Expenses................................. $ **
Trustee Fees and Expenses............................... $ **
Rating Agency Fees...................................... $ **
Miscellaneous........................................... $ **
============
Total................................................... $ **
====
</TABLE>
- ------------
* All amounts except the SEC Registration Fee are estimates of expenses
incurred in connection with the issuance and distribution of the Notes.
** To be supplied by amendment.
Item 14. Indemnification of Directors and Officers.
[Include Indemnification Arrangements from Registrant's Certificate of
Incorporation]
Item 15. Recent Sales of Unregistered Securities.
The Registrant has not previously sold unregistered securities.
Item 16. Exhibits and Financial Statement Schedules.
1.1 Form of Underwriting Agreement.*
3.1 Certificate of Incorporation of the Registrant.*
3.2 By-laws of the Registrant.*
4.1 Form of Master Trust Deed.*
4.2 The Series Notice.*
4.3 The Note Trust Deed.*
4.4 The Security Trust Deed.*
5.1 Opinion of Mayer, Brown & Platt as to legality of the Notes.*
8.1 Opinion of Mayer, Brown & Platt as to certain tax matters.*
10.1 The Servicing Agreement.*
10.2 Form of Servicing Agreement Amendment Agreement.*
10.3 The Liquidity Facility Agreement.*
23.1 Consent of Mayer, Brown & Platt (included in Exhibit 5.1 and Exhibit
8.1 hereof).*
24.1 Power of Attorney (included on signature pages).
25.1 Statement of Eligibility of Trustee.*
99.1 Opinion of Allen Allen & Hemsley as to Enforceability of U.S. Judgments
under Australian Law.*
- --------------------------
*To be filed by amendment.
Item 17. Undertakings.
The undersigned Registrant on behalf of the Westpac Securitization Trust, Series
1998-1G (the "Trust") hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the "Act");
II-1
<PAGE>
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information
set forth in the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
(2) That, for the purpose of determining any liability under the
Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(4) To file a post-effective amendment to the registration
statement to include any financial statements required by Rule 3-19 at
the start of any delayed offering or throughout a continuous offering.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
For the purposes of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-11 and has duly caused this Amendment
No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Sydney, Australia, on the
16th day of April 1998.
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED
By /s/ Lewis E. Love, Jr.
--------------------------
Lewis E. Love, Jr.
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 to the Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
*/s/ R. Patrick Handley Principal Executive Officer April 16, 1998
----------------------------------- and Director
R. Patrick Handley
*/s/ Marten Touw Principal Financial Officer April 16, 1998
----------------------------------- and Director
Marten Touw
*/s/ David Vaz Principal Accounting April 16, 1998
----------------------------------- Officer
David Vaz
*/s/ Kimberley Gire Director April 16, 1998
-----------------------------------
Kimberley Gire
*/s/ Lewis E. Love, Jr. Director April 16, 1998
-----------------------------------
Lewis E. Love, Jr.
*/s/ Phil Chronican Director April 16, 1998
-----------------------------------
Phil Chronican
*/s/ Lewis E. Love, Jr.
----------------------------------
By: Lewis E. Love, Jr.
Attorney-in-fact
</TABLE>
II-3
<PAGE>
SIGNATURE OF AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of the Securities Act of
1933, the undersigned hereby certifies that it is the duly authorized
representative in the United States of the Registrant with respect to the
Registration Statement and signs this Amendment No. 1 to the Registration
Statement solely in such capacity and for the limited purpose of said Section
6(a).
/s/ Lewis E. Love, Jr.
---------------------------------------------------------------
Name: Lewis E. Love, Jr.
Director & Secretary
Address: Westpac Securitisation Management Pty Limited
575 Fifth Avenue
39th Floor
New York, New York 10017-2422
Telephone: (212) 551-1905
II-4
<PAGE>
EXHIBITS INDEX
<TABLE>
<CAPTION>
Sequential
Exhibit Page
No. Description of Exhibit Number
- ------- ---------------------- ----------
<S> <C> <C>
1.1 Form of Underwriting Agreement.*
3.1 Certificate of Incorporation of the Registrant.*
3.2 By-laws of the Registrant.*
4.1 Master Trust Deed.*
4.2 The Series Notice.*
4.3 The Note Trust Deed.*
4.4 The Security Trust Deed.*
5.1 Opinion of Mayer, Brown & Platt as to legality
of the Notes.*
8.1 Opinion of Mayer, Brown & Platt as to certain
tax matters.*
10.1 The Servicing Agreement.*
10.2 Form of the Servicing Agreement Amendment Agreement.*
10.3 The Liquidity Facility Agreement.*
23.1 Consent of Mayer, Brown & Platt (included in
Exhibit 5.1 and Exhibit 8.1 hereof).*
24.1 Power of Attorney (included on signature pages).
25.1 Statement of Eligibility of Trustee.*
99.1 Opinion of Allen Allen & Hemsley as to
Enforceability of U.S. Judgments under Australian Law.*
</TABLE>
- --------------------------
*To be filed by amendment.
<PAGE>
CONFORMED COPY
WESTPAC SECURITIES ADMINISTRATION LIMITED
(the Trustee)
and
THE MORTGAGE COMPANY PTY LIMITED
(the Trust Manager)
MASTER TRUST DEED
WST TRUSTS
<PAGE>
T A B L E O F C O N T E N T S
<TABLE>
<CAPTION>
<S> <C>
1. DEFINITIONS AND INTERPRETATION ................................................................................... 1
1.1 Definitions ............................................................................................. 1
1.2 Interpretation ......................................................................................... 21
1.3 Binding on Noteholders ................................................................................. 22
2. TRUSTEE OF WST TRUSTS ........................................................................................... 22
2.1 Appointment of Trustee ................................................................................. 22
2.2 Trustee to act in interests of Beneficiary and Noteholders
of a Trust ............................................................................................. 22
2.3 Separate and distinct Trusts ........................................................................... 22
2.4 Termination of deed .................................................................................... 22
3. THE TRUSTS ...................................................................................................... 22
3.1 Beneficial Interest in the Trusts ...................................................................... 22
3.2 Creation of Trusts ..................................................................................... 23
3.3 Name of the Trusts ..................................................................................... 23
3.4 Duration of a Trust .................................................................................... 23
3.5 Termination; winding up ................................................................................ 23
3.6 Costs of winding up of a Trust ......................................................................... 25
4. INVESTMENT OF THE TRUSTS GENERALLY .............................................................................. 25
4.1 Authorised Investments only ............................................................................ 25
4.2 Trust Manager selects investments ...................................................................... 25
4.3 Investment proposals ................................................................................... 26
4.4 Disposal or realisation of Authorised Investments ...................................................... 26
4.5 Temporary investment of cash and limitation on maturity of
Authorised Investments ................................................................................. 27
4.6 Support Facilities ..................................................................................... 27
4.7 Authorised Trustee Investments ......................................................................... 28
4.8 Limitation of Trustee's personal liability ............................................................. 28
4.9 Moneys payable to Trustee .............................................................................. 29
4.10 Segregation of Assets of a Trust ....................................................................... 29
4.11 Assets of Trusts ....................................................................................... 29
4.12 Liabilities of a Trust ................................................................................. 29
5. GENERAL ......................................................................................................... 30
5.1 Power to acquire Assets ................................................................................ 30
5.2 Borrowings - general ................................................................................... 30
5.3 Borrowings - Support Facilities etc. ................................................................... 30
6. ORIGINATION ..................................................................................................... 31
2
<PAGE>
7. ACQUISITION OR FUNDING BY WAREHOUSE TRUST FROM ANOTHER TRUST .................................................... 31
7.1 Direction by Trust Manager ............................................................................. 31
7.2 Required information ................................................................................... 31
7.3 Conditions to acceptance ............................................................................... 32
7.4 Effect of acceptance ................................................................................... 32
7.5 Implementation ......................................................................................... 32
7.6 General direction ...................................................................................... 32
7.7 Transfers between Trusts ............................................................................... 32
7.8 Acknowledgement by Approved Seller ..................................................................... 34
8. ACQUISITION FROM APPROVED SELLER ................................................................................ 34
8.1 Note Issue Direction ................................................................................... 34
8.2 Accession of Approved Sellers .......................................................................... 34
8.3 Sale Notices ........................................................................................... 34
8.4 Constitution and Entitlement of the Trust Back ......................................................... 35
8.5 Conditions Precedent to Purchase ....................................................................... 38
8.6 Representations and warranties of Approved Seller ...................................................... 39
8.7 Undertakings ........................................................................................... 42
8.8 Priority ............................................................................................... 42
8.9 Title Perfection Event; Termination; Repurchase ...................................................... 44
8.10 Subsequent adjustment .................................................................................. 46
8.11 Substitution ........................................................................................... 47
8.12 Indemnification ........................................................................................ 48
8.13 Power of Attorney ...................................................................................... 48
9. ACQUISITION FROM WAREHOUSE TRUST BY ANOTHER TRUST ............................................................... 49
9.1 Direction .............................................................................................. 49
9.2 Implementation of acquisition .......................................................................... 49
9.3 Survival of rights and remedies ........................................................................ 49
9.4 Acknowledgement by Approved Seller ..................................................................... 49
10. NOTES ........................................................................................................... 50
10.1 Acknowledgement of indebtedness ........................................................................ 50
10.2 Legal nature of Notes .................................................................................. 50
10.3 Terms of Notes ......................................................................................... 50
10.4 Interest and Principal Entitlement of Noteholders ...................................................... 50
10.5 Minimum denomination of Notes .......................................................................... 50
10.6 Notes not invalid if issued in breach .................................................................. 50
10.7 Location of Notes ...................................................................................... 50
10.8 No discrimination between Noteholders .................................................................. 51
11. SELLER NOTE ..................................................................................................... 51
11.1 Seller Note ............................................................................................ 51
11.2 Form ................................................................................................... 51
(ii)
<PAGE>
12. LIMITS ON RIGHTS OF NOTEHOLDERS AND BENEFICIARY ................................................................. 51
12.1 General Limits ......................................................................................... 51
12.2 Interests of Beneficiary assignable .................................................................... 52
12.3 Ranking of interest of Beneficiary ..................................................................... 52
12.4 Further limit on interest of Noteholders ............................................................... 52
12.5 No liability of Noteholders or Beneficiary ............................................................. 52
13. PROCEDURE FOR ISSUE OF NOTES .................................................................................... 53
13.1 Note Issue Direction for a Trust ....................................................................... 53
13.2 Requirements for a Note Issue Direction ................................................................ 53
13.3 Series Notice .......................................................................................... 55
13.4 Amendment .............................................................................................. 56
13.5 Comply with Note Issue Direction ....................................................................... 56
13.6 Proviso on compliance with Note Issue Direction ........................................................ 56
13.7 Dealer Agreement ....................................................................................... 56
13.8 Issue of Notes and transfer of benefit of Mortgages .................................................... 56
13.9 Action following Note Issue ............................................................................ 57
13.10 No liability for insufficient moneys.................................................................... 58
13.11 Further assurance....................................................................................... 58
13.12 Further issues subject to Rating Agency approval........................................................ 58
13.13 Issue of unrated Notes.................................................................................. 58
13.14 No limit on Notes....................................................................................... 58
13.15 Excluded issue, offer or invitation only................................................................ 58
14. TRANSFERS OF NOTES .............................................................................................. 58
14.1 No restrictions on transfer of Notes ................................................................... 58
14.2 Minimum transfer ....................................................................................... 59
14.3 Form of transfer ....................................................................................... 59
14.4 Execution of Note Transfer ............................................................................. 59
14.5 Stamping of Note Transfer .............................................................................. 59
14.6 Delivery of Note Transfer to Trustee ................................................................... 59
14.7 Registration of Transferee as Noteholder ............................................................... 59
14.8 Trustee entitled to refuse to register Transfer ........................................................ 59
14.9 Refusal to register absolute ........................................................................... 59
14.10 No fee for registration of a Note Transfer.............................................................. 60
14.11 Taking effect of Note Transfers......................................................................... 60
14.12 Rights and obligations of transferee.................................................................... 60
14.13 Payments to transferee ................................................................................. 60
14.14 Transmission of entitlements............................................................................ 60
14.15 Marked Note Transfer.................................................................................... 61
14.16 Reliance on documents................................................................................... 61
14.17 Specimen signatures..................................................................................... 61
14.18 Notes lodged with Austraclear........................................................................... 61
(iii)
<PAGE>
15. NOTE ACKNOWLEDGEMENT ............................................................................................ 62
15.1 Issue of Note Acknowledgement .......................................................................... 62
15.2 Note Acknowledgement not certificate of title .......................................................... 62
15.3 Execution of Note Acknowledgement ...................................................................... 62
15.4 More than one Note Acknowledgement ..................................................................... 62
15.5 Worn out, defaced or lost Note Acknowledgement ......................................................... 62
15.6 Joint holdings ......................................................................................... 62
15.7 Delivery of Note Acknowledgement ....................................................................... 63
16. THE REGISTER .................................................................................................... 63
16.1 Details to be kept on Register ......................................................................... 63
16.2 Asset register ......................................................................................... 64
16.3 Place of keeping Register, copies and access ........................................................... 64
16.4 Details on Register conclusive ......................................................................... 64
16.5 Closing of Register .................................................................................... 64
16.6 Alteration of details on Register ...................................................................... 64
16.7 Rectification of Register .............................................................................. 65
16.8 Correctness of Register ................................................................................ 65
16.9 Trust Manager must provide information ................................................................. 65
16.10 Third party registrar................................................................................... 65
17. MEETINGS OF NOTEHOLDERS ......................................................................................... 65
17.1 Application of this clause ............................................................................. 65
17.2 Convening of meetings by Trustee and Trust Manager ..................................................... 66
17.3 Notice of meetings ..................................................................................... 66
17.4 Chairman ............................................................................................... 67
17.5 Quorum ................................................................................................. 67
17.6 Adjournment ............................................................................................ 67
17.7 Voting procedure ....................................................................................... 67
17.8 Right to attend and speak .............................................................................. 68
17.9 Appointment of proxies ................................................................................. 68
17.10 Corporate representatives............................................................................... 69
17.11 Rights of Representatives............................................................................... 69
17.12 Powers of a meeting of Noteholders...................................................................... 69
17.13 Extraordinary Resolution binding on Noteholders......................................................... 70
17.14 Minutes and records..................................................................................... 70
17.15 Written resolutions..................................................................................... 70
17.16 Further procedures for meetings......................................................................... 71
(iv)
<PAGE>
18. THE TRUST MANAGER ............................................................................................... 71
18.1 Appointment of Trust Manager ........................................................................... 71
18.2 Complete powers of management .......................................................................... 71
18.3 Note issuance .......................................................................................... 72
18.4 Trust Manager to act in interests of Beneficiary and
Noteholders ............................................................................................ 72
18.5 Trust Manager to assist Trustee ........................................................................ 72
18.6 Trust Manager's power to delegate ...................................................................... 72
18.7 Trust Manager's power to appoint advisers .............................................................. 73
18.8 Trust Manager's books available to Trustee ............................................................. 73
18.9 Trust Manager will account to Trustee for moneys received .............................................. 73
18.10 Trust Manager to report Pool Data on Reuters............................................................ 73
18.11 Trust Manager to prepare notices etc.................................................................... 74
18.12 Prior approval of circulars............................................................................. 74
18.13 Taxes................................................................................................... 74
18.14 Acquisition or disposal of Assets....................................................................... 74
18.15 Monitor Support Facilities.............................................................................. 74
18.16. Make calculations, co-ordinate and provide reports...................................................... 74
18.17 Trust Manager cannot bind Trustee unless authorised..................................................... 75
18.18 Trust Manager must perform obligations under other
Transaction Documents .................................................................................. 75
18.19 Trust Manager to provide personnel and systems ......................................................... 75
18.20 Additional covenants by Trust Manager................................................................... 75
19. TRUST MANAGER'S FEE ............................................................................................. 76
20. RETIREMENT, REMOVAL AND REPLACEMENT OF TRUST MANAGER ............................................................ 76
20.1 Retirement on Trust Manager's Default .................................................................. 76
20.2 Trustee may remove recalcitrant Trust Manager .......................................................... 77
20.3 Trustee appoints replacement Trust Manager ............................................................. 77
20.4 Voluntary Retirement ................................................................................... 77
20.5 No resignation by Trust Manager unless successor
appointed .............................................................................................. 77
20.6 Trustee to act as Trust Manager if no successor appointed .............................................. 78
20.7 Release of outgoing Trust Manager ...................................................................... 78
20.8 New Trust Manager to execute deed ...................................................................... 78
20.9 Settlement and discharge ............................................................................... 78
20.10 Delivery of books, documents, etc....................................................................... 78
20.11 Notice to Noteholders of new Trust Manager ............................................................. 79
20.12 Waiver of Trust Manager's Defaults...................................................................... 79
(v)
<PAGE>
21. TRUSTEE'S POWERS ................................................................................................ 79
21.1 General power .......................................................................................... 79
21.2 Specific powers ........................................................................................ 79
21.3 Powers to be exercised with others ..................................................................... 81
21.4 Delegation to Related Bodies Corporate ................................................................. 81
21.5 Trustee's power to appoint attorneys and agents ........................................................ 82
21.6 Generally unlimited discretion ......................................................................... 82
22. TRUSTEE'S COVENANTS ............................................................................................. 82
22.1 General ................................................................................................ 82
22.2 To act continuously as Trustee ......................................................................... 82
22.3 To act honestly, diligently and prudently .............................................................. 82
22.4 No dispositions of Assets except in accordance with Trust
Deed ................................................................................................... 83
22.5 Indemnity re acts of Trustee's delegates ............................................................... 83
22.6 Forward notices etc to Trust Manager ................................................................... 83
22.7 Trustee will implement Trust Manager's directions ...................................................... 83
22.8 Custodian .............................................................................................. 83
22.9 Bank accounts .......................................................................................... 84
22.10 Perform Transaction Documents........................................................................... 84
23. TRUSTEE'S FEES AND EXPENSES ..................................................................................... 84
23.1 Trustee's Fee .......................................................................................... 84
23.2 Reimbursement of expenses .............................................................................. 84
23.3 Segregation of Trust Expenses .......................................................................... 84
24. REMOVAL, RETIREMENT AND REPLACEMENT OF TRUSTEE .................................................................. 84
24.1 Retirement for Trustee's Default ....................................................................... 84
24.2 Trust Manager may remove recalcitrant Trustee .......................................................... 85
24.3 Trust Manager appoints replacement ..................................................................... 85
24.4 Voluntary Retirement ................................................................................... 85
24.5 No resignation by Trustee unless successor appointed ................................................... 85
24.6 Trust Manager to act as Trustee if no successor appointed .............................................. 86
24.7 Trusts to be vested in new Trustee ..................................................................... 86
24.8 Release of outgoing Trustee ............................................................................ 86
24.9 New Trustee to execute deed ............................................................................ 86
24.10 Trust Manager and outgoing Trustee to settle amounts
payable ................................................................................................ 87
24.11 Outgoing Trustee to retain lien......................................................................... 87
24.12 Delivery of books, documents, etc....................................................................... 87
24.13 Notice to Noteholders of New Trustee.................................................................... 87
25. APPOINTMENT OF SERVICER.......................................................................................... 87
(vi)
<PAGE>
26. LEAD MANAGER..................................................................................................... 87
26.1 Appointment of Lead Manager............................................................................. 87
26.2 Fees ................................................................................................... 88
27. BANK ACCOUNTS.................................................................................................... 88
27.1 Opening of bank accounts................................................................................ 88
27.2 Location of bank accounts............................................................................... 88
27.3 Name of bank accounts................................................................................... 89
27.4 Purpose of bank accounts................................................................................ 89
27.5 Authorised signatories.................................................................................. 89
27.6 Trust Manager not entitled to have access............................................................... 89
27.7 Bank statements and account information................................................................. 89
27.8 Deposits................................................................................................ 89
27.9 Withdrawals............................................................................................. 89
27.10 All transactions through central accounts............................................................... 90
28. AUDITOR.......................................................................................................... 90
28.1 Auditor must be registered.............................................................................. 90
28.2 Appointment of Auditor.................................................................................. 90
28.3 Removal and retirement of Auditor....................................................................... 90
28.4 Appointment of replacement Auditor...................................................................... 90
28.5 Auditor may have other offices.......................................................................... 91
28.6 Access to working papers................................................................................ 91
28.7 Auditor's remuneration and costs........................................................................ 91
28.8 Access to information................................................................................... 91
29. ACCOUNTS AND AUDIT............................................................................................... 91
29.1 Keeping Accounts........................................................................................ 91
29.2 Location and inspection of books........................................................................ 91
29.3 Accounts to be kept in accordance with Approved
Accounting Standards.................................................................................... 91
29.4 Preparation of annual Accounts.......................................................................... 91
29.5 Annual audited Accounts................................................................................. 92
29.6 Inspection and copies of audited Accounts............................................................... 92
29.7 Tax returns............................................................................................. 92
29.8 Audit................................................................................................... 92
29.9 No Responsibility for Servicer.......................................................................... 92
(vii)
<PAGE>
30. PAYMENTS......................................................................................................... 92
30.1 Cashflow Allocation Methodology......................................................................... 92
30.2 Payments to Beneficiary................................................................................. 93
30.3 Subordination of Beneficiary's Entitlements............................................................. 93
30.4 Insufficient moneys..................................................................................... 93
30.5 Income or capital....................................................................................... 93
30.6 Income of Trust......................................................................................... 94
31. INDEMNITY........................................................................................................ 94
32. REPRESENTATIONS AND WARRANTIES................................................................................... 95
32.1 General representations and warranties.................................................................. 95
32.2 Trustee entitled to assume accuracy of representations
and warranties.......................................................................................... 95
33. TRUSTEE'S AND TRUST MANAGER'S POWERS, LIABILITY AND INDEMNITY
GENERALLY........................................................................................................ 96
33.1 Reliance on certificates................................................................................ 96
33.2 Trustee and Trust Manager may assume signed documents to
be genuine.............................................................................................. 96
33.3 Trustee's reliance on Trust Manager, Approved Seller or
Servicer................................................................................................ 97
33.4 Trust Manager's reliance on Trustee, Approved Seller or
Servicer................................................................................................ 97
33.5 Compliance with laws.................................................................................... 98
33.6 Taxes................................................................................................... 98
33.7 Reliance on experts..................................................................................... 98
33.8 Oversights of others.................................................................................... 98
33.9 Powers, authorities and discretions..................................................................... 98
33.10 Impossibility or impracticability....................................................................... 98
33.11 Duties and charges...................................................................................... 99
33.12 Legal and other proceedings............................................................................. 99
33.13 No liability except for negligence etc.................................................................. 100
33.14 Further limitations on Trustee's liability.............................................................. 100
33.15 Further limitations on Trust Manager's liability........................................................ 100
33.16 Liability of Trustee limited to its right of indemnity.................................................. 101
33.17 Trustee's right of indemnity - general.................................................................. 102
33.18 Trustee's right of indemnity - Consumer Credit
Legislation ............................................................................................ 103
33.19 Extent of liability of Trust Manager.................................................................... 104
33.20 Right of indemnity...................................................................................... 104
33.21 Conflicts............................................................................................... 104
(viii)
<PAGE>
33.22 Trustee not obliged to investigate the Trust Manager
etc..................................................................................................... 105
33.23 Independent investigation of credit..................................................................... 105
33.24 Information............................................................................................. 105
33.25 Entering into Transaction Documents..................................................................... 105
33.26 Reliance by Trustee..................................................................................... 106
33.27 Investigation by Trustee................................................................................ 106
34. NOTICES.......................................................................................................... 106
34.1 Notices Generally....................................................................................... 106
34.2 Notices to Noteholders.................................................................................. 107
34.3 Notices to Designated Rating Agencies .................................................................. 107
35. PAYMENTS GENERALLY............................................................................................... 107
35.1 Payments to Noteholders................................................................................. 107
35.2 Payment Methods......................................................................................... 107
35.3 Payment to be made on Business Day ..................................................................... 108
35.4 Payment good discharge.................................................................................. 108
35.5 Trust Manager to arrange payments....................................................................... 108
35.6 Valid receipts.......................................................................................... 108
35.7 Taxation................................................................................................ 108
36. AMENDMENT ...................................................................................................... 109
36.1 Amendment without consent............................................................................... 109
36.2 Amendment with consent.................................................................................. 109
36.3 Copy of amendments to Noteholders....................................................................... 109
36.4 Copy of amendments in advance to Designated Rating
Agencies................................................................................................ 110
37. CONFIDENTIALITY.................................................................................................. 110
38. MISCELLANEOUS.................................................................................................... 112
38.1 Data Base to be retained as confidential................................................................ 112
38.2 Certificates by Trust Manager........................................................................... 112
38.3 Waivers, remedies cumulative............................................................................ 112
38.4 Retention of documents.................................................................................. 112
38.5 Governing law........................................................................................... 113
38.6 Severability of provisions.............................................................................. 113
38.7 Counterparts............................................................................................ 113
38.8 Inspection of this deed................................................................................. 113
</TABLE>
(ix)
^[owner]:^[docname]:^[dated]
<PAGE>
MASTER TRUST DEED
MASTER TRUST DEED dated 14 February 1997 between:
1. WESTPAC SECURITIES ADMINISTRATION LIMITED (ACN 000 049 472) of Level
9, 66 Pitt Street, Sydney, New South Wales 2000 (the Trustee); and
2. THE MORTGAGE COMPANY PTY LIMITED (ACN 070 968 302) of Level 6, 228
Pitt Street, Sydney, New South Wales (the Trust Manager).
RECITALS
A. It is intended by this deed to provide for the establishment of
separate trusts, all being Trusts (collectively the WST Trusts) (or
such other name as the Trustee and the Trust Manager may from time to
time agree).
B. The Trustee has agreed to act as the trustee and the Trust Manager as
the manager of the Trusts. The Mortgage Company Pty Limited has
agreed to act as the servicer of certain Trusts.
C. The Trustee may enter into Support Facilities and a Security Trust
Deed in connection with the issue of Notes by the Trustee as the
trustee of a Trust.
D. Notes issued by the Trustee will not be deposit or other liabilities
of Westpac or its Associates, nor do Westpac or its Associates stand
by the capital value and/or performance of the Notes, or any Assets
of any Trust, except as expressly provided in the Transaction
Documents for that Trust.
IT IS AGREED as follows.
PART A - DEFINITIONS AND INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
The following definitions apply unless the context requires
otherwise.
Accounts means accounts as defined in section 9 of the Corporations
Law.
Adverse Effect means an event which will materially and adversely
affect the amount of any payment to be made to any Noteholder, or
will materially and adversely affect the timing of such payment.
Application for Notes means an application for Notes in the form of
schedule 1 or in such other form as may from time to time be agreed
between the Trustee and the Trust Manager.
Approved Accounting Standards means:
(a) the accounting standards from time to time approved under
the Corporations Law;
(b) the requirements of the Corporations Law in relation to
the preparation and content of accounts; and
<PAGE>
Page 2
(c) generally accepted accounting principles and practices in
Australia consistently applied, except where inconsistent
with the standards or requirements referred to in
paragraphs (a) or (b).
Approved Bank means:
(a) a Bank which has a short term rating of at least A-1+
from S&P and P-1 from Moody's; or
(b) in relation to a Trust, any bank or financial institution
which is specified to be an Approved Bank in the relevant
Series Notice,
but (in relation to a Rated Trust for which S&P is a Designated
Rating Agency) means Westpac Banking Corporation for so long as it
has a short term rating of A-1 or better from S&P.
Approved Seller means:
(a) other than in clauses 8.1, 8.2, 8.3, 8.5(b), 8.6, 8.7,
8.11, 8.12, 11, 33 and 37, the Trustee as trustee of any
Warehouse Trust; or
(b) other than in clauses 8.2, 8.5(b), 8.6, 8.7, 8.11, 8.12,
11, 33 and 37, the Trustee as trustee of any other Trust
that is not a Warehouse Trust; or
(c) any person which the Trust Manager notifies the Trustee
is an Approved Seller for the purposes of this deed and
who has executed a Seller Accession Certificate,
and where used in the context of a Trust means the Approved Seller in
relation to that Trust.
Assets in relation to a Trust means the assets being property of that
Trust from time to time including the following to the extent to
which they relate to the Trust:
(a) any Loans, Mortgages or other Receivables and any other
Receivable Securities and Related Securities and other
rights held by the Trustee in its capacity as the Trustee
of that Trust on and subject to the terms of the
Transaction Documents;
(b) cash, debts or other Authorised Investments;
(c) the interests of the Trustee in any Support Facility; and
(d) income accrued from Receivables and Authorised Investments.
Associate in relation to an entity means:
(a) a Related Corporation of that entity;
(b) an entity, or the trustee or manager of a trust, which
has a Controlling Interest in that entity, or a Related
Corporation of that entity;
(c) a Related Corporation of an entity included in paragraph
(b) or (e);
(d) a director of that entity or an entity included in
paragraph (a), (b) or (c) or of the manager or of the
trustee of any trust included in paragraph (a), (b) or
(c) or a spouse, child, parent or sibling of that
director;
<PAGE>
Page 3
(e) a corporation, or the trustee or manager of a trust, in
which one or more entity or person mentioned in paragraph
(a), (b), (c), (d), (e), (f) or (g) alone or together has
a Controlling Interest;
(f) the trustee of a discretionary trust of which an entity
or person included in paragraph (a), (b), (c), (d), (e)
or (g) is a beneficiary (whether or not through one or
more other discretionary trusts); or
(g) an entity of which a director of that entity or a Related
Corporation of that entity is also a director.
For the purposes of this definition:
(i) where a person is a beneficiary of a discretionary trust,
that person shall be taken to own, and control, all the
assets of that trust;
(ii) director has the meaning given in the Corporations Law;
and
(iii) a person has a Controlling Interest in a corporation or
trust if:
(A) the corporation or its directors, or the
trustee or manager of the trust or its
directors, are accustomed, or under an
obligation, whether formal or informal, to
act in accordance with the directions,
instructions or wishes of that person or of
that person in concert with others; or
(B) the person has a relevant interest (as
defined in the Corporations
Law) in aggregate in more than 20% of the
issued or voting shares, units or other
interests in the corporation or trust (in
number, voting power or value), or would
have that relevant interest if any rights
were exercised to subscribe for, or acquire
or convert into, shares, units or other
interests which are issued or unissued.
The definition of relevant interest applies
as if units or other interests were shares.
Auditor in relation to a Trust means the auditor of that Trust
appointed from time to time under clause 28.
Austraclear means Austraclear Limited.
Austraclear Regulations means the regulations published by
Austraclear.
Austraclear System means the System as defined in the Austraclear
Regulations.
Australian Jurisdiction means a State or Territory of the
Commonwealth and the Commonwealth of Australia.
Authorisation includes:
(a) any consent, authorisation, registration, filing,
lodgement, agreement, notarisation, certificate,
permission, licence, approval, authority or exemption
from, by or with a Governmental Agency; or
(b) in relation to anything which will be fully or partly
prohibited or restricted by law if a Governmental Agency
intervenes or acts in any way within a specified period
after lodgement, filing, registration or notification,
the expiry of that period without intervention or action.
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Authorised Investments in respect of a Trust means, unless otherwise
specified in the relevant Series Notice, any investments which at
their date of acquisition are:
(a) Loans secured by Mortgages, those Mortgages and any other
Related Securities and Receivable Rights;
(b) other Receivables, Receivable Securities and Receivable
Rights approved by the Trust Manager;
(c) cash;
(d) bonds, debentures, stock or treasury bills of the
Commonwealth of Australia or the Government of any State
or Territory of the Commonwealth;
(e) debentures or stock of any public statutory body
constituted under the law of the Commonwealth of
Australia or of any State of the Commonwealth where the
repayment of the principal secured and the interest
payable thereon is guaranteed by the Commonwealth or any
State or Territory of the Commonwealth;
(f) notes of other securities of the Commonwealth of
Australia or the Government of any State or Territory of
the Commonwealth;
(g) (i) deposits with, or the acquisition of
certificates of deposit (whether negotiable,
convertible or otherwise), issued by, a Bank
which carries on business in Victoria and New
South Wales;
(ii) bills of exchange which at the time of
acquisition have a remaining term to
maturity of not more than 200 days, accepted
or endorsed by a Bank which carries on
business in Victoria and New South Wales,
which, in each case, has either:
(A) the highest short-term rating available to be
given by the Rating Agencies; or
(B) if such investment has a maturity of 30 days
or less and does not exceed 20% of the total
Invested Amount of all relevant Notes on the
date of the investment a short-term rating
of A-1/P-1 by the Rating Agencies;
(h) any other assets of a class of assets that are both:
(i) prescribed for the purposes of sub-paragraph
(iv) of the definition of a pool of
mortgages in section 84FA(1) of the Stamp
Duties Act, 1920 of New South Wales, or are
otherwise included within that definition of
pool of mortgages; and
(ii) declared by order of the Governor in Council
of Victoria and published in the Victorian
Government Gazette to be assets for purposes
of Subdivision 17A of the Stamps Act, 1958
of Victoria or are otherwise included within
sub-paragraph (b)(ii) of the definition of
pool of mortgages in section 137NA of that
Act.
(In paragraphs (b) - (g) inclusive of this definition, expressions
shall be construed and, if necessary read down, so that the Notes in
relation to any Trust constitute mortgage-backed securities for the
purposes of both the Stamp Duties Act, 1920 of New South Wales and
the Stamps Act, 1958 of Victoria.)
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Authorised Signatory means:
(a) in relation to The Mortgage Company Pty Limited (in
whatever capacity) or Westpac Banking Corporation (in
whatever capacity), any person from time to time
nominated as an Authorised Officer by an authorised
attorney of the Mortgage Company Pty Limited or Westpac
Banking Corporation (as the case may be) by notice to the
Trustee accompanied by:
(i) a certified copy of the power of attorney (if
not previously provided); and
(ii) a certified copy of the signatures of each
person so appointed;
(b) in relation to the Trustee, any duly appointed attorney
of the Trustee;
(c) except as provided in the relevant Series Notice or
Security Trust Deed, in relation to the Security Trustee
any officer or employee of the Security Trustee whose
title includes the word "Manager"; and
(d) in relation to any other person, any person from time to
time whose name, title or position and specimen signature
are set out in a certificate signed by two directors or
one director and one secretary of that person confirming
that person's appointment as an Authorised Signatory for
the purposes of this deed and/or any Transaction Document
to which that corporation is a party.
Authorised Trustee Investment means an investment in which a trustee
is for the time being authorised to invest trust funds under the laws
of an Australian Jurisdiction.
Bank means a corporation authorised under the Banking Act 1959 to
carry on general banking business in Australia or a corporation
formed or incorporated under an Act of the Parliament of an
Australian Jurisdiction to carry on the general business of banking.
Beneficiary means, in relation to a Trust, the person nominated in
the Notice of Creation of Trust for that Trust as the beneficiary of
that Trust (including, where relevant, the holder of any unit
representing an interest as beneficiary of the Trust).
Borrowing means, in relation to a Trust, any Financial Indebtedness
of the Trustee in its capacity as trustee of the Trust but does not
include any Financial Indebtedness of the Trustee in any other
capacity or in respect of any other Trust. Borrow has an equivalent
meaning.
Business Day means any day, other than a Saturday, Sunday or public
holiday, on which Banks are open for business in Sydney.
Carryover Charge Off in relation to Notes relating to a Trust has the
meaning, if any, given to that term in the relevant Series Notice for
that Trust.
Certificate of Title means, in relation to a Mortgaged Property, the
certificate of title (or, if one is not issued, the original
registration confirmation statement or similar document) (if any) to
that Mortgaged Property issued under any relevant legislation (and,
in the case of Land, issued under any Real Property Legislation).
Class in relation to Notes issued, or to be issued, in respect of a
Trust means Notes having as amongst themselves in all respects the
same rights or restrictions (and for this purpose a Seller Note is a
Class of Notes).
Closing Date means, in respect of a Trust, the date specified as the
Closing Date in the Series Notice or Sale Notice for that Trust.
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Collection Account means the account established and maintained under
clause 27 or, in relation to a Trust, any other account specified as
the Collection Account in the Series Notice for that Trust.
Collections in respect of a Trust means such amounts as may be
specified as Collections for the Trust in the relevant Series Notice.
Consumer Credit Legislation means any legislation relating to
consumer credit including:
(a) the Credit Act of any Australian Jurisdiction;
(b) the Consumer Credit Code (NSW) 1996; and
(c) any other equivalent legislation of any Australian Jurisdiction.
Coupon in relation to a Note and a Coupon Payment Date means the
amount of interest (if any) accrued in respect of that Note and due
for payment on that Coupon Payment Date, determined in accordance
with the corresponding Series Notice.
Coupon Payment Date in relation to a Note means each date for the
payment of interest under the Note as specified in the corresponding
Series Notice.
Creditor in relation to a Trust means a creditor of the Trustee
(including the Security Trustee, the Noteholders, the Approved
Seller, the Trustee as trustee of another Trust, the Servicer, the
Trust Manager, the Support Facility Providers and the Lead Manager
(if any) in relation to the Trust) in its capacity as trustee of the
Trust.
Cut-Off Date means, in relation to a Portfolio of Receivables, the
date specified as the Cut-off Date for the Receivables relating to
that Portfolio of Receivables in the relevant Note Issue Direction or
Series Notice.
Data Base in relation to the Trustee, the Trust Manager and any
Servicer means all information, data and records collected, held or
stored in any way or in any medium (including, without limitation,
computer retention and storage) by or for the Trustee, the Trust
Manager and the Servicer respectively relating to and including any
Receivable, Receivable Security or Related Security which is given or
transferred to the Trustee under or as contemplated by this deed.
Dealer Agreement means, in relation to any Notes, any dealer
agreement, subscription agreement, underwriting agreement or other
distribution agreement (however called) under which dealers, managers
or other persons agree to subscribe for, underwrite or otherwise
arrange the distribution of those Notes.
Designated Rating in relation to a Support Facility provided to, or
the benefit of which is held by, the Trustee as trustee of a Rated
Trust, means a credit rating of the party providing the Support
Facility as specified or approved by each Designated Rating Agency
for that Trust.
Designated Rating Agency in relation to Notes issued or to be issued
by the Trustee of a Trust, means each Rating Agency which has been
requested by the Trust Manager to rate such Notes in relation to that
Trust.
Distributable Income has the meaning given in clause 30.6.
Eligible Receivable means a Receivable or Receivable Security (as the
case may be) which meets the Eligibility Criteria for that
Receivable.
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Eligibility Criteria in respect of a Receivable or a Receivable
Security and a Trust has the meaning given in the corresponding
Series Notice for that Trust.
Enforcement Expenses in relation to a Purchased Receivable or a
Purchased Receivable Security has the meaning given in the relevant
Series Notice.
Expenses in relation to a Trust means any costs, charges or expenses
incurred by the Trustee or the Trust Manager in the administration or
operation of the Trust under the Transaction Documents for that
Trust, including the following to the extent to which they relate to
that Trust:
(a) any such amounts payable or incurred by the Trustee or
the Trust Manager in the acquisition, maintenance,
review, administration or disposal of an Authorised
Investment or Asset;
(b) any such amounts payable under or incurred by the Trustee
or the Trust Manager under any Security Trust Deed;
(c) any fees and other amounts payable to the Trust Manager
under this deed (including Enforcement Expenses incurred
in connection with the enforcement of any Receivable
Security);
(d) any fees and expenses payable to the Auditor or any other
auditor;
(e) any fees and expenses payable by the Trustee (including
in its personal capacity) to the Designated Rating Agency
as agreed between the Trustee and the Trust Manager from
time to time;
(f) the cost and expenses of registering caveats or
transfers of any Receivable or Receivable Security;
(g) any fees and expenses charged from time to time by
Austraclear to the Trustee's account in the exercise of
the Trustee's power under clause 21.2(k);
(h) any costs of postage and printing of all cheques,
accounts, statements, notices, Note Acknowledgements and
other documents required to be posted to a Beneficiary or
Noteholders of the Trust under this deed;
(i) any costs of any valuation of the Trust or of any Asset
of the Trust;
(j) any expenses incurred in connection with Trust Accounts
of the Trustee in relation to the Trust and bank fees
(including account keeping fees) and other bank or
government charges (including bank account debits, tax
and charges in respect of financial institutions duty)
incurred in connection with the keeping of, or the
transaction of business through, the internal accounts
and bank accounts of the Trustee and their management;
(k) any fees, charges and amounts which are paid or payable
to any person appointed or engaged by the Trustee or the
Trust Manager pursuant to this deed to the extent that
the fees, charges and amounts would be payable or
reimbursable to the Trustee or the Trust Manager under
any other provision of this definition or under any
other provision of this deed if the services performed
by the person so appointed or engaged had been carried
out directly by the Trustee or the Trust Manager and to
the extent that those fees, charges and amounts are
reasonable in amount and properly incurred;
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(l) the amount of any indemnity from the Trust claimed by the
Trustee or the Trust Manager under clause 33.12;
(m) all legal costs and disbursements (calculated in the same
manner as under clause 33.12) incurred by the Trust
Manager and the Trustee in relation to:
(i) any subsequent consent, agreement, approval,
waiver or amendment under, of or to any
Transaction Document; or
(ii) any matter of concern to the Trust Manager
or the Trustee in relation to a Transaction
Document or the Trust (provided that those
costs and disbursements cannot be incurred
unless the expenditure has first been
notified to the Trust Manager);
(n) any costs incurred by the Trust Manager or the Trustee
in, or in connection with, the retirement or removal
(other than removal on the grounds of their own default)
of the Trustee or the Trust Manager respectively under
this deed and the appointment of any person in
substitution to the extent that those costs are
reasonable in amount and properly incurred;
(o) any other costs, charges, expenses, fees, liabilities,
Taxes (including stamp duty payable on cheques), imposts
and other outgoings properly incurred by the Trustee or
the Trust Manager in exercising their respective powers,
duties and obligations under this deed or any other
Transaction Document (other than the Notes);
(p) any legal costs and disbursements incurred by the Trustee
in connection with court proceedings brought against it
under this deed (except where the Trustee is found to
have been in breach of this deed or to have acted in
breach of its duties);
(q) any costs incurred by the Trustee in, or in connection
with, the retirement or removal of the Servicer and the
appointment of any substitute to the extent those costs
are reasonable in amount and properly incurred;
(r) any costs and expenses which the Trustee is obliged to
reimburse under clause 7.1 or 7.2 of the Servicing
Agreement; and
(s) any amount specified as an Expense in the Series Notice
for a Trust,
provided that general overhead costs and expenses of the Trustee and
the Trust Manager (including, without limitation, rents and any
amounts payable by the Trustee or the Trust Manager (as applicable)
to its employees in connection with their employment) incurred
directly or indirectly in connection with the business of the Trustee
or the Trust Manager (as applicable) or in the exercise of its
rights, powers and discretions or the performance of its duties and
obligations in relation to the Trust shall not constitute Expenses.
Expiry Time means, in relation to a Sale Notice, the time specified
as the expiry time in that Sale Notice.
Extraordinary Resolution in relation to the Noteholders of a Trust or
any Class means, subject to the provisions of any Security Trust Deed
in respect of the relevant Trust:
(a) a resolution passed at a meeting of the Noteholders of
that Trust or Class (as the case may be) duly convened
and held in accordance with the provisions contained in
clause 17 by a majority consisting of not less than 75%
of the votes able to be cast by Noteholders cast (by show
of hands or poll, as the case may be); or
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(b) a resolution in writing under clause 17.15 signed by all
the Noteholders of that Trust or Class.
Fair Market Value means:
(i) in relation to a Purchased Receivable and the related
Receivable Rights, the fair market value of that
Purchased Receivable and those Receivable Rights agreed
between the Trustee (acting on appropriate expert advice)
and the Approved Seller, or in the absence of such
agreement as determined by the Auditor; or
(ii in relation to any other Receivable and the related
Receivable Rights, the fair market value of that
Receivable and those Receivable Rights determined by the
Trust Manager (acting on appropriate expert advice,
including where relevant the Auditor),
in all cases as reflecting the status of the Receivable as a
performing or non-performing Receivable (as determined by the
relevant Servicer) and any benefit in respect of that Receivable
which the intended purchaser will have under any relevant Support
Facility. The Trustee shall be entitled to assume that a purchase
price offered to it for a Purchased Receivable and the related
Receivable Rights which is equal to or exceeds the relevant Unpaid
Balance is equal to or exceeds the Fair Market Value of that Purchase
Receivable and the related Receivable Rights.
Financial Indebtedness means any indebtedness, present or future,
actual or contingent in respect of moneys borrowed or raised or any
financial accommodation whatever. It includes indebtedness under or
in respect of a negotiable or other financial instrument, guarantee,
interest, gold or currency exchange, hedge or arrangement of any
kind, redeemable share, share the subject of a guarantee, discounting
arrangement, finance or capital lease, hire purchase, deferred
purchase price (for more than 90 days) of an asset or service or an
obligation to deliver goods or other property or provide services
paid for in advance by a financier or in relation to another
financing transaction.
Financial Year in relation to each Trust means:
(a) each consecutive period of 12 months from 1 July in each
year until 30 June in the following year; or
(b) any other consecutive period of 12 months as may at any
time be substituted for the consecutive period referred
to in paragraph (a) of this definition by determination
of the Trust Manager with the approval of the Trustee,
and includes,
(c) any consecutive period greater or less than 12 months
that may arise as a result of the adoption of any
substituted period under paragraph (b) of this
definition;
(d) the period commencing on the date of its creation under
this deed to the next succeeding 30 June, or, if a
substituted period is in force under this definition in
respect of the Trust at its commencement, then to the
immediately succeeding date of termination of that
substituted period; and
(e) the period to the Termination Date of the Trust from the
immediately preceding 1 July or, if a substituted period
is in force under this definition at the Termination Date
then from the immediately preceding date of commencement
of that substituted period.
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Future Agreement means the agreement formed between an Approved
Seller and the Trustee if the Trustee accepts a Sale Notice given
under clause 8.
Government Agency means:
(a) any body politic or government in any jurisdiction,
whether federal, state, territorial or local;
(b) any minister, department, office, commission,
instrumentality, agency, board, authority or organisation
of any government or in which any government is
interested;
(c) any corporation owned or controlled by any government.
Hedge Agreement means, in relation to a Trust, any futures contract,
option agreement, hedge, swap, cap, forward rate agreement or other
arrangement in relation to interest rates made by the Trustee
(whether alone or with the Trust Manager or any other person) with
respect to the Receivables in, or Notes issued in relation to, that
Trust in accordance with this deed, as specified in the relevant
Series Notice.
Information Memorandum means, in relation to the issue of any Notes,
any publicity documents publicly circulated to prospective investors
in relation to that issue entitled "Information Memorandum",
"Offering Circular" or a similar name, but does not include any term
sheet or general correspondence in relation to the placement of any
Notes.
Initial Invested Amount in relation to a Note has the meaning given
in the relevant Series Notice for that Note.
Insolvency Event in relation to the Trustee (in its personal capacity
and as trustee of a Trust), the Trust Manager, a Servicer, or a
Mortgage Insurer (each a relevant corporation) means the happening of
any of the following events:
(a) an administrator of the relevant corporation is
appointed;
(b) except for the purpose of a solvent reconstruction or
amalgamation:
(i) an application or an order is made,
proceedings are commenced, a resolution is
passed or proposed in a notice of meeting or
an application to a court or other steps
(other than frivolous or vexatious
applications, proceedings, notices and
steps) are taken for:
(A) the winding up, dissolution or
administration of the relevant
corporation; or
(B) the relevant corporation
entering into an arrangement,
compromise or composition with
or assignment for the benefit of
its creditors or a class of
them; or
(ii) the relevant corporation ceases, suspends or
threatens to cease or suspend the conduct of
all or substantially all of its business or
disposes of or threatens to dispose of
substantially all of its assets; or
(c) the relevant corporation is, or under applicable
legislation is taken to be, unable to pay its debts
(other than as the result of a failure to pay a debt or
claim the subject of a good faith dispute) or stops or
suspends or threatens to stop or suspend payment of all
or a class of its debts (except, in the case of the
Trustee where this occurs in relation to another trust of
which it is the trustee);
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(d) a receiver, receiver and manager or administrator is
appointed (by the relevant corporation or by any other
person) to all or substantially all of the assets and
undertaking of the relevant corporation or any part
thereof (except, in the case of the Trustee where this
occurs in relation to another trust of which it is the
trustee); or
(e) anything analogous to an event referred to in paragraphs
(a) to (d) (inclusive) or having substantially similar
effect, occurs with respect to the relevant corporation.
Insurance Policy means:
(a) in relation to a Loan, any fire and/or risks insurance
policy or other general insurance policy in force in
respect of that Loan or the related Mortgaged Property;
or
(b) in relation to any other Receivable, any insurance policy
taken out with respect to the assets from which that
Receivable is derived.
Insurance Proceeds means any payments received by the designated
beneficiary of an Insurance Policy.
Invested Amount in relation to a Note has the meaning given in the
relevant Series Notice for that Note.
Investment Direction means:
(a) a Note Issue Direction; or
(b) a Warehouse Trust Direction.
Land means:
(a) any estate or interest whether at law or in equity in
freehold or leasehold land situated in an Australian
Jurisdiction, including all improvements on that land;
and
(b) any parcel and any lot, common property and land
comprising a parcel within the meaning of the Strata
Titles Act, 1973 (New South Wales) or the Community Land
Development Act, 1989 (New South Wales) or any equivalent
legislation in any other Australian Jurisdiction.
Lead Manager means, in relation to any issue of Notes, any person who
is appointed as lead manager, co-lead manager, arranger, co-arranger
or any similar participant in relation to that issue.
Liquidity Facility Agreement in relation to a Trust means any
agreement specified as a Liquidity Facility Agreement in the Series
Notice for that Trust.
Liquidity Facility Provider means in relation to a Liquidity Facility
Agreement the bank or financial institution which provides that
facility or if it is a syndicated facility the bank or financial
institution which is the agent under that facility.
Loan means a loan originated or acquired by the Trustee in accordance
with this deed.
Marked Note Transfer means a Note Transfer marked by the Trustee in
accordance with clause 14.15.
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Maturity Date in relation to a Note means the date specified in the
corresponding Series Notice to be the last or, where there is only
one specified, the Payment Date for the Note.
Moody's means Moody's Investor Services Inc or Moody's Investor
Services Pty Limited, and their respective successors and assigns.
Mortgage means a registered (or pending registration, registrable)
mortgage over Land, situated in any Australian Jurisdiction, which is
either:
(a) originated by the Trustee under this deed; or
(b) originally granted to the relevant Approved Seller,
and securing the repayment of the principal amount of a Loan and all
other moneys payable under the Loan.
Mortgaged Property means:
(a) in relation to a Mortgage, the Land the subject of that
Mortgage; and
(b) in relation to any other Receivable Security, the
property subject to that Receivable Security.
Mortgage Insurance Policy means a policy of insurance under which a
Mortgage Insurer insures the Trustee as trustee of a Trust against
loss under a Receivable which is an Asset of that Trust.
Mortgage Insurance Proceeds means any amounts received by the Trustee
(or a Servicer on its behalf) under any Mortgage Insurance Policy.
Mortgage Insurer means any mortgage insurer specified, in relation to
a Trust, as a Mortgage Insurer in the Series Notice for that Trust.
Mortgagor means the security provider under a Receivable Security.
Note means:
(a) a debt security issued by the Trustee as trustee of a
Trust in accordance with clause 10;
(b) a Seller Note; or
(c) any other security or instrument issued by the Trustee
and agreed by the Trustee and the Trust Manager to be a
Note.
Note Acknowledgement means an acknowledgment of the registration of a
person as the holder of a Note in the form set out in schedule 2 or
in such other form as may from time to time be agreed between the
Trustee and the Trust Manager.
Noteholder means, in relation to a Trust at any given time:
(a) a person then appearing in the Register as the holder of
a Note with respect to that Trust;
(b) the holder of a Seller Note with respect to that Trust
(if not covered in paragraph (a)); or
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(c) in relation to a Warehouse Trust, each Warehouse Facility
Provider in relation to that Warehouse Trust except where
the relevant reference to Noteholder relates to the
application or subscription for, or the issue or holding
of, Notes.
Note Issue Date in relation to a Trust and Notes means the date on
which the Notes are issued by the Trustee as trustee of that Trust
and, in the case of a proposed issue of Notes, means the date for
this referred to in the corresponding Note Issue Direction.
Note Issue Direction means a direction by the Trust Manager to the
Trustee substantially in the form of schedule 3 or in such other form
as may from time to time be agreed between the Trustee and the Trust
Manager.
Note Transfer means a transfer and acceptance of Notes materially in
the form of schedule 4 or in such other form as may from time to time
be agreed between the Trustee and the Trust Manager.
Notice of Creation of Trust means a notice substantially in the form
of schedule 5 or in such other form as may from time to time be
agreed between the Trustee and the Trust Manager.
Obligor means, in relation to a Receivable, the person who is obliged
to make payments with respect to that Receivable, whether as a
principal or secondary obligation (and in the case of a Loan means
the person who is the account debtor under that Loan), and includes
where the context requires, any other person obligated to make
payments with respect to that Receivable (including any guarantor).
Other Secured Liability means a loan, financial obligation or other
liability that is at any time secured by a Purchased Receivable
Security, other than a Purchased Receivable and any amounts payable
under any relevant Receivable Agreement or otherwise payable in
connection with a Purchased Receivable.
Payment Date means a Coupon Payment Date or a Principal Repayment
Date.
Portfolio of Receivables means the Receivables specified by the Trust
Manager in an Investment Direction as a class or type of Receivable
that has substantially the same terms and conditions.
Principal Entitlement in relation to a Note and a Principal Repayment
Date means the amount of principal in respect of the Note due to be
repaid on that Principal Repayment Date, determined in accordance
with the corresponding Series Notice.
Principal Repayment Date in relation to a Note means each date for
the repayment of part or all of the outstanding principal in relation
to the Note as specified in the corresponding Series Notice.
Privacy Act means the Privacy Act 1988 (Cth) or any equivalent law of
any Australian Jurisdiction.
Purchase Price means, in relation to Receivables and related
Receivable Rights offered for sale under a Sale Notice, the Purchase
Price specified in the relevant Sale Notice as adjusted (where
relevant) in accordance with that Sale Notice.
Purchased Receivable means a Receivable referred to in a Sale Notice
which is accepted by the Trustee unless the Trustee has ceased to
have an interest in that Receivable.
Purchased Receivable Security means a Receivable Security referred to
in a Sale Notice which is accepted by the Trustee, unless the Trustee
has ceased to have any interest in that Receivable Security.
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Rated Trust means a Trust in respect of which there is a Designated
Rating Agency.
Rating Agency means Moody's, S&P or any other recognised rating
agency designated from time to time in writing by the Trust Manager
to the Trustee.
Real Property Legislation means any law relating to the registration,
priority or effectiveness of any mortgage over land in any State or
Territory of Australia.
Receivable means a right or interest under or in relation to any
asset which generates revenue over time, including:
(a) a residential or commercial loan (including a Loan);
(b) an operating or finance lease (including a lease of real
property, plant and equipment and a hire purchase
agreement);
(c) a trade receivable;
(d) an automobile receivable;
(e) a credit or charge card receivable; and
(f) any other receivable or other form of monetary
obligation.
Receivable Agreement means in relation to a Receivable, any agreement
or arrangement entered into between:
(a) if the Receivable is originated by the Trustee under this
deed, the Trustee; or
(b) if the Receivable is acquired by the Trustee from an
Approved Seller under this deed, the Approved Seller,
and the Obligor under which the Obligor incurs obligations to the
Trustee or Approved Seller (as the case may be) with respect to the
Receivable, and in the case of an agreement entered into by an
Approved Seller in a form provided to the Trustee by the Approved
Seller before the Sale Notice with respect to that Receivable is
given.
Receivable Rights means, in relation to Receivables to be acquired by
the Trustee from an Approved Seller, all of the Approved Seller's or
the Trustee's (as the context requires) right, title, benefit and
interest (present and future) in, to, under or derived from:
(a) the Receivables and Receivable Securities specified in
the relevant Sale Notice; and
(b) such of the following as relate to those Receivables and
Receivable Securities:
(i) the Related Securities;
(ii) the Relevant Documents;
(iii) the Collections; and
(iv) all moneys, present, future, actual or
contingent, owing at any time by an Obligor
(whether alone or with another person) or
any other person (other than the Approved
Seller) under or in connection with a
Related Security, including all principal,
interest, reimbursable costs and expenses
and any other amounts incurred by or payable
to the Approved Seller, irrespective
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of whether such amounts relate to advances
made or other financial accommodation
provided by the Approved Seller to any
Obligor before or after the Closing Date,
but does not include:
(c) any Other Secured Liability; and
(d) in relation to the Receivables and Receivable Securities
specified in a Sale Notice:
(i) any interest or finance charges accrued up
to but excluding the Closing Date (or any
other date specified for that purpose in the
Sale Notice) which are unpaid as at close of
business on that date; and
(ii) any interest in Collections received or
applied by the Approved Seller before the
Cut-Off Date (or any other date specified
for that purpose in the Sale Notice),
if so specified in the Sale Notice.
Receivable Security means:
(a) in relation to a Loan, a Mortgage or any guarantee
relating to that Loan; or
(b) in relation to any other Receivable, any guarantee,
indemnity or Security Interest granted in respect of, or
in connection with, that Receivable.
Record Date means, with respect to a Payment Date for any Note, the
date specified in the Series Notice for the Trust to which that Note
relates.
Redraw Facility Agreement means in relation to a Trust any facility
specified as a Redraw Facility Agreement in the Series Notice for
that Trust.
Redraw Facility Provider means, in relation to a Trust, a person who
has entered into or agreed to make available a Redraw Facility
Agreement to the Trustee in relation to that Trust.
Register means, in relation to a Trust, the register of Noteholders
for that Trust maintained by or on behalf of the Trustee under clause
16.
Registered Company Auditor has the same meaning as in the
Corporations Law.
Related Corporation has the meaning given to related body corporate
in the Corporations Law.
Related Receivable means, in relation to a Receivable Security, the
Receivable secured by that Receivable Security.
Related Security in relation to a Receivable means:
(a) any Relevant Document for that Receivable;
(b) any Insurance Policy or Insurance Proceeds with respect
to the Receivable; and
(c) any Mortgage Insurance Policy or Mortgage Insurance
Proceeds with respect to the Receivable; or
(d) any other agreement specified as a Related Security for
the Receivable in the relevant Series Notice.
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Relevant Document means, with respect to a Receivable:
(a) the Receivable Agreement relating to that Receivable;
(b) the mortgage document in relation to each Receivable
Security for that Receivable;
(c) the Certificate of Title for the Mortgaged Property
secured by each Receivable Security;
(d) any amendment or replacement of such documents and any
other document which is entered into by or executed in
favour of the Approved Seller or Trustee (as the case may
be) in connection with that Receivable after the Cut-Off
Date; or
(e) any other document specified as a Relevant Document in
the relevant Series Notice,
but does not include any document or agreement which relates only to
an Other Secured Liability.
Representative means:
(a) in the case of any Noteholder, a person appointed as a
proxy for that Noteholder under clause 17.9; and
(b) without limiting the generality of paragraph (a), in the
case of a Noteholder which is a body corporate, a person
appointed under clause 17.10 by the Noteholder.
Repurchase Date has the meaning, in relation to a Purchased
Receivable and the related Receivable Rights, given in clause
8.6(d)(ii)(D) with respect to the Purchased Receivable and related
Receivable Rights.
Repurchase Price means, in relation to a Purchased Receivable and the
related Receivable Rights, the price determined under clause
8.9(d)(iv).
S&P means Standard & Poor's (Australia) Pty Limited and its
successors and assigns.
Sale Notice means:
(a) in relation to purchase of Receivables by a Trust other
than from another Trust, a notice in the form of annexure
A given under clause 8; or
(b) in relation to a purchase of Receivables by a Trust from
another Trust, a notice in the form agreed by the Trustee
and the Trustee Manager in relation to that purchase.
Sale Termination Date means in relation to the obligations of a party
relating to a Sale Notice, the earlier of:
(a) the date 3 months after the date on which the last
relevant Purchased Receivable is discharged; and
(b) the date the Trustee (whether in its capacity as trustee
of the Trust to which the Purchased Receivables related
or as trustee of another Trust, including a Warehouse
Trust) ceases to have any interest in the relevant
Purchased Receivable and related Receivable Rights.
Security Interest includes any mortgage, pledge, lien, charge,
encumbrance, hypothecation, title retention, preferential right or
trust arrangement.
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Security Trust Deed in relation to a Trust means a deed between the
Trustee as trustee of that Trust, the Trust Manager and the Security
Trustee for that Trust under which, amongst other things, the Trustee
as trustee of the Trust charges all or some of the Assets of the
Trust to secure the payment of moneys owing to the Noteholders and
other Creditors of the Trust in favour of that Security Trustee as
trustee for such Noteholders and other Creditors.
Security Trustee means, in relation to a Trust, any person who is
appointed as security trustee in relation to the Assets of that
Trust.
Seller Accession Certificate means a certificate in the form of
annexure B.
Seller Note means, in relation to a Trust, a debt security issued by
the Trustee to the relevant Approved Seller under clause 11.
Series Notice means:
(a) in relation to a Warehouse Trust:
(i) to the extent that no notice referred to in
paragraph (b) has been given, a Warehouse
Trust Direction which satisfies the
requirements of Clause 7.2; and
(ii) to the extent so provided in the relevant
Warehouse Facility Agreement, that Warehouse
Facility Agreement; or
(b) in each other case, a written notice from the Trust
Manager to the Trustee materially in the form of annexure
D satisfying the requirements of clause 13.3.
Servicer means, in relation to a Trust, the person appointed to
service the Assets of that Trust.
Servicer Transfer Event in relation to a Trust has the meaning (if
any) given to that term in the Servicing Agreement for that Trust.
Servicer's Report means, in relation to a Trust, the report to be
provided by the relevant Servicer to the Trustee and the Trust
Manager under clause 25.3 which is in the format and includes the
information agreed between the Servicer, the Trust Manager and the
Trustee or set out in any Series Notice.
Servicing Agreement means, in relation to a Trust, any agreement
under which a Servicer is appointed to service any of the Assets of
that Trust.
Stated Amount in relation to a Note has the meaning given in the
relevant Series Notice for that Note.
Subscription Amount in relation to any proposed Notes means the total
amount payable by the proposed Noteholders as specified in the
corresponding Note Issue Direction.
Support Facility in relation to a Trust means:
(a) any Mortgage Insurance Policy;
(b) any Liquidity Facility Agreement;
(c) any Hedge Agreement;
(d) any Redraw Facility Agreement;
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(e) any Warehouse Facility Agreement;
(f) any other security, support, rights or benefits in
support of or substitution for an Authorised Investment
or the income or benefit arising thereon on an Authorised
Investment, for the financial management, credit
enhancement or liquidity support of the assets and
liabilities of the Trust; or
(g) any other facility specified as a Support Facility in
the relevant Series Notice,
entered into by the Trustee for that Trust.
Support Facility Provider means, in relation to a Trust, any person
who has entered into or agreed to make available a Support Facility
(other than a Mortgage Insurance Policy) to the Trustee in relation
to that Trust.
Taxation Act means the Income Tax Assessment Act 1936 (Commonwealth).
Tax and Taxes means any tax, levy, impost, deduction, charge, rate,
stamp duty, financial institutions duty, bank accounts debit tax or
any other tax, withholding or remittance of any nature which is now
or later payable or required to be remitted to, or imposed or levied,
collected or assessed by a Government Agency, together with any
interest, penalty, charge, fee or other amount imposed or made in
respect thereof.
Termination Date in relation to a Trust means the earliest of the
following dates in relation to that Trust:
(a) the eightieth anniversary of the date of creation of
that Trust under this deed;
(b) the date on which the Trust terminates by operation of
statute or by the application of general principles of
law;
(c) if Notes have been issued by the Trustee as trustee of
the Trust the earliest of:
(i) the Business Day immediately following the
date on which the Trustee pays in full all
moneys due or which may become due, whether
contingently or otherwise, to the Creditors
of the Trust (as determined by the Auditor,
that determination to be conclusive); or
(ii) following the occurrence of an Event of
Default under any Security Trust Deed, the
Security Trustee has enforced to the fullest
extent that it is able to do so all of its
powers under the Security Trust Deed which
arise on the occurrence of that Event of
Default or on the Security Trust Deed
becoming enforceable, and has distributed
all of the amounts which it is required to
distribute under the Security Trust Deed (as
determined by the Auditor, that
determination to be conclusive),
and the Trustee has received a confirmation from the
Australian Taxation Office that the Trustee has lodged
its final tax return in relation to that Trust; or
(d) if Notes have not been issued by the Trustee as trustee
of the Trust, the date appointed by the Trust Manager as
the Termination Date by notice in writing to the Trustee
(which, if the Trust is a Warehouse Trust, must be after
the date on which all amounts have been fully and finally
repaid under the relevant Warehouse Facility Agreement)
after the Trustee has received a confirmation from the
Australian Taxation Office that the Trustee has lodged
its final tax return in relation to that matter,
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but a Trust shall not terminate under paragraphs (c) or (d) until the
Trustee, in relation to that Trust, ceases to hold any Trust Back
Assets.
Threshold Rate means, in relation to the Receivables, the interest
rate (expressed as a per centum per annum) determined by the Trust
Manager in accordance with the relevant Series Notice.
Title Documents means any document of title or other document in
relation to any Authorised Investment.
Title Perfection Event means, in relation to a Trust, each of the
events referred to in clause 8.9 for that Trust and the events (if
any) specified as Title Perfection Events in the relevant Series
Notice.
Transaction Documents means:
(a) this deed;
(b) any Series Notice;
(c) any Seller Accession Certificate;
(d) any Security Trust Deed;
(e) any Servicing Agreement;
(f) any Support Facility;
(g) any Note or document evidencing a Note from time to time;
(h) any other document which is expressed (in a Series Notice
or otherwise) to be, or which is agreed by the Trust
Manager and Trustee to be, a Transaction Document for the
purposes of this deed; and
(h) any other document that is executed under or which is or
is expressed to be incidental or collateral to, any
other Transaction Document,
but in relation to a Trust means only those of the above documents
which relate to that Trust.
Transfer of Receivable Security means:
(a) in relation to a Mortgage or other Related Security that
is a registered mortgage of Land, a transfer of mortgage
relating to that Mortgage or Related Security under the
Real Property Legislation which, on registration, would
result in the Trustee being the registered mortgagee of
that Mortgage or Related Security; and
(b) in relation to any other Receivable Security and if
required by relevant legislation or practices a transfer
of Security Interest relating to that Receivable Security
which, on registration, would result in the Trustee being
the registered holder of that Receivable Security.
Trust Back means, in relation to a Trust, the trust (if any) referred
to in Clause 8.4 for that Trust.
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Trust Back Assets means, in relation to a Trust, such right under or
interest in the Receivables and Receivable Securities specified in
the Sale Notice relating to that Trust and the related Collections to
the extent that such right or interest relates to (but only to the
extent that it relates to) any Other Secured Liabilities.
Trust means each Trust constituted from time to time under clause 3.
Trust Manager's Default means:
(a) in relation to a Warehouse Trust, the happening of any
events specified in clauses 20.1(a) and 20.1(b) (but in
the case of an event under clause 20.1(a), only to the
extent that the relevant Warehouse Facility Provider has
not waived or excused that failure to pay); and
(b) in relation to a in relation to any other Trust, means
the happening of any of the events specified in clause
20.1.
Trust Manager's Fee in relation to a Trust means the Trust Manager's
fee in relation to that Trust referred to in clause 19.
Trust Manager's Report means, in relation to a Trust, the report to
be provided by the Trust Manager to the Trustee and the Rating Agency
under clause 18.15 which is in the format and includes the
information agreed by the Trust Manager and the Trustee or set out in
the relevant Series Notice.
Trustee's Default in relation to a Trust means the occurrence of any
of the events specified in clause 24.1.
Trustee's Fee in relation to a Trust means the Trustee's fee for that
Trust under clause 23.1.
Unpaid Balance means:
(a) in relation to any Loan at any time, the sum of:
(i) the unpaid principal amount of that Loan;
and
(ii) the unpaid amount of all finance charges,
interest payments and other amounts accrued
on or payable under or in connection with
that Loan or the related Receivable Rights
at that time,
or the amount otherwise stated to be the Unpaid Balance
for that Loan, in the relevant Series Notice; or
(b) in relation to any other Receivable, the amount stated to
be the Unpaid Balance for the Receivable in the relevant
Series Notice.
Warehouse Facility Agreement means, in relation to a Trust, any
facility specified as a Warehouse Facility Agreement in the Series
Notice for that Trust, under which one or more financial institutions
or other persons agree to make available financial accommodation to
the Trustee to enable it to acquire Receivables.
Warehouse Facility Provider means, in relation to a Trust, a person
who has entered into or agreed to make available a Warehouse Facility
Agreement to the Trustee in relation to that Trust.
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Warehouse Trust means a Trust under which the Trustee originates or
acquires Receivables using the proceeds of financial accommodation
provided under a Warehouse Facility Agreement, some or all of which
Receivables may subsequently be acquired by one or more other Trusts.
Warehouse Trust Direction means a direction by the Trust Manager to
the Trustee materially in the form of Schedule 7 or in such other
form as may from time to time be agreed between the Trustee and the
Trust Manager.
Westpac means Westpac Banking Corporation (ARBN 007 457 141).
1.2 Interpretation
Headings are for convenience only and do not affect interpretation.
The following rules of interpretation apply unless the context
requires otherwise.
(a) The singular includes the plural and conversely.
(b) A gender includes all genders.
(c) Where a word or phrase is defined, its other grammatical
forms have a corresponding meaning.
(d) A reference to a person includes a body corporate, an
unincorporated body or other entity and conversely.
(e) A reference to a clause, schedule or annexure is to a
clause of, or schedule or annexure to, this deed.
(f) A reference to any party to this deed or any other
agreement or document includes the party's successors and
permitted assigns.
(g) A reference to any agreement or document is to that
agreement or document as amended, novated, supplemented,
varied or replaced from time to time, except to the
extent prohibited by this deed.
(h) A reference to any legislation or to any provision of any
legislation includes any modification or re-enactment of
it, any legislative provision substituted for it and all
regulations and statutory instruments issued under it.
(i) Mentioning anything after include, includes or including
does not limit what else might be included
(j) A reference to dollars or $ is to Australian currency.
(k) Where any word or phrase is given a defined meaning any
other part of speech or other grammatical form in respect
of such word or phrase has a corresponding meaning.
(l) Where the day on or by which any sum is payable under
this deed or any act, matter or thing is to be done is a
day other than a Business Day such sum shall be paid and
such act, matter or thing shall be done on the next
succeeding Business Day.
(m) A word or phrase defined in the Corporations Law has the
same meaning in this deed.
(n) All accounting terms shall be interpreted in accordance
with the Approved Accounting Standards.
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(o) A reference to a month is to a calendar month.
(p) A reference to any document is to such document as
amended, varied, supplemented or novated from time to
time.
1.3 Binding on Noteholders
This deed shall be binding on all Noteholders as if each was
originally a party to this deed.
PART B - TRUSTS
2. TRUSTEE OF WST TRUSTS
2.1 Appointment of Trustee
The Trustee is appointed, and agrees to act, as trustee of each Trust
on, and subject to, the terms and conditions of this deed.
2.2 Trustee to act in interests of Beneficiary and Noteholders of a Trust
The Trustee shall, in respect of each Trust, act in the interests of
the Beneficiary and Noteholders in relation to that Trust on, and
subject to, the terms and conditions of this deed. In the event of
any conflict of interests, the interests of the Noteholders will
prevail.
2.3 Separate and distinct Trusts
Each Trust shall be a separate and distinct trust fund held by the
Trustee on separate and distinct terms and conditions.
2.4 Termination of deed
This deed shall terminate on the date agreed by the Trustee and the
Trust Manager if at that date:
(a) there are no Trusts in existence;
(b) the Trustee and the Trust Manager are satisfied that all
Notes have been fully redeemed and all Creditors paid in
full;
(c) there is no Sale Notice which has been given to the
Trustee but which has not at that date been accepted or
rejected by the Trustee; and
(d) there is no Investment Direction which has been given to
the Trustee but which has not been acted on or rejected
by the Trustee.
3. THE TRUSTS
3.1 Beneficial Interest in the Trusts
(a) The Trustee shall hold each part of each Trust, and each
Asset of each Trust from time to time, on trust for the
relevant Beneficiary on and subject to the terms and
conditions of this deed.
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(b) The interest of a Beneficiary under a Trust may be
evidenced by the issue of one or more units by the
Trustee, if the relevant Series Notice so specifies. A
unit may give the holder a right only to capital or only
to income, or may give such other rights as the relevant
Series Notice may provide. If a Beneficiary has paid all
subscription and other moneys payable by it for the
issue of a unit, the interests of that Beneficiary under
paragraph (a) are not affected by the failure of the
Trustee to issue any such unit.
3.2 Creation of Trusts
(a) (Trust Manager may create) The Trust Manager may at any
time create a Trust by lodging with the Trustee:
(i) (notice of creation) a duly completed and
executed Notice of Creation of Trust; and
(ii (initial Assets) the sum of $10.00 to
constitute the initial Assets of the
additional Trust (which sum may be
evidenced, at the time of creation of that
Trust or a later date, by the issue of a
unit under clause 3.1).
(b) (Constitution of a Trust) On satisfaction of clause
3.2(a), the additional Trust referred to in the
corresponding Notice of Creation of Trust under clause
3.2(a)(i) shall be created.
(c) (No limit on Trusts) There shall be no limit on the
number of Trusts that may be created under this deed.
3.3 Name of the Trusts
(a) Each Trust which is not a Warehouse Trust shall be known
as:
(i) (initial name) the Series X-Y Trust, where X
represents the year in which the Trust was
created and Y represents the consecutive
order of creation of the Trust; for example,
in the case of the first Trust the Series
1997-1 WST Trust; or
(ii (alternative name) such other name as the
Trustee, the Trust Manager and the relevant
Approved Seller (if any) may from time to
time agree.
(b) Each Warehouse Trust shall be known as:
(i) the WST Warehouse Trust #Z where Z is the
number of order of creation of Warehouse
Trusts; for example, in the case of the
first Warehouse Trust the WST Warehouse
Trust #1; or
(ii (alternative name) such other name as the
Trustee and the Trust Manager and the
relevant Approved Seller may from time to
time agree.
3.4 Duration of a Trust
Each Trust shall continue until, and shall terminate on, its
respective Termination Date.
3.5 Termination; winding up
(a) (Realisation of Assets) Subject to this clause 3 and to
the Transaction Documents, immediately following the
Termination Date of a Trust the Trustee in consultation
with the Trust Manager must:
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(i) sell and realise the Assets of that Trust
(having obtained appropriate expert advice
prior to the sale of any Receivable or
Receivable Security); and
(ii) so far as reasonably practicable and
reasonably commercially viable, and subject
to this clause, complete the sale within 180
days after the Termination Date for that
Trust.
(b) (First right of refusal) Where an Approved Seller has a
first right of refusal in relation to those Receivables
or Receivable Securities under clause 8.9(c), the Trustee
must comply with that clause 8.9(c).
(c) (Sale within 180 days) During the 180 day period after
the Termination Date of a Trust, the Trustee must not
(subject to paragraph (d)) sell any Receivables and the
related Receivable Rights for an amount less than:
(i) in the case of performing Receivables, their
Unpaid Balance; or
(ii) in the case of non-performing Receivables,
their Fair Market Value.
(d) (Performing Receivables) Notwithstanding paragraph
(c)(i), the Trustee may not sell any performing
Receivable for less than its Fair Market Value without
the consent of an Extraordinary Resolution of the
relevant Noteholders. Any purported sale without that
approval will be ineffective.
(e) (Sale at less than Unpaid Balance) The Trustee must not
sell any Receivable and the related Receivable Rights for
less than the Unpaid Balance of the Receivable unless:
(i) if the Invested Amount of each Note is
greater than zero, the Noteholders
(including the holder of the Seller Note)
have consented to such sale by Extraordinary
Resolution; or
(ii) if the Invested Amount of each Note is zero,
the relevant Beneficiary consents.
(f) (Procedures before winding up) The provisions of this
deed will continue to apply to a Trust for the period
between the Termination Date of that Trust and the date
on which the Assets of that Trust have been realised and
distributed, notwithstanding the occurrence of the
Termination Date.
(g) (Expenses) The Trust Manager must direct the Trustee to,
and the Trustee must, pay or provide for all Taxes,
Expenses, claims and demands due or incurred, or which
the Trustee believes should be provided for, in
connection with or arising out of the administration or
winding up of any Trust, including the fees of any
consultants or advisers employed in connection with the
administration or winding up of the Trust.
(h) (Distribution) The Trust Manager shall direct the Trustee
to distribute the proceeds of realisation of the Assets
of a Trust (after deducting the amounts paid or provided
for under paragraph (g)) in accordance with the cashflow
allocation methodology set out in the relevant Series
Notice and in accordance with any directions given to it
by the Trust Manager. The Trustee shall comply with that
direction.
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(i) (Beneficiary) If all Notes relating to a Trust have been
fully redeemed and the Creditors paid in full, the
Trustee may distribute all or part of the Assets to the
relevant Beneficiary in specie (without recourse to the
Trustee and without any representation or warranty by the
Trustee).
(j) (Performing/non-peforming) The Servicer is to determine
whether a Receivable is performing or non-performing for
the purposes of this clause 3.5.
3.6 Costs of winding up of a Trust
During the winding up of a Trust under clause 3.5:
(a) (Trustee's Fee) the Trustee shall be entitled to the
continued payment of the Trustee' s Fee under clause
23.1;
(b) (Trust Manager's Fee) the Trust Manager shall be entitled
to continued payment of the Trust Manager's Fee under
clause 19; and
(c) (Expenses) the Trustee and the Trust Manager shall be
entitled to reimbursement for, and the Trust Manager and
the Trustee shall make provision for, all Expenses
incurred, made or apprehended in relation to the Trust
(which shall for this purpose include, without
limitation, all Taxes, costs, charges, expenses, claims
and demands incurred, made or apprehended in connection
with the winding up of the Trust, including the fees of
any agents, solicitors, bankers, accountants or other
persons who the Trustee or the Trust Manager may employ
in connection with the winding up of the Trust).
4. INVESTMENT OF THE TRUSTS GENERALLY
4.1 Authorised Investments only
Subject to this deed, each Trust shall comprise only assets and
property which are Authorised Investments as at the date of their
acquisition.
4.2 Trust Manager selects investments
Subject to the terms of this deed:
(a) the Trust Manager alone shall have absolute and
uncontrolled discretion to determine, and it shall be the
duty of the Trust Manager to:
(i) recommend or to propose in writing to the
Trustee (which may be under a Series
Notice), the manner in which any moneys
forming part of a Trust shall be invested
and what purchases, sales, transfers,
exchanges, collections, realisations or
alterations of Assets shall be effected and
when and how the same should be effected;
and
(ii) give to the Trustee all directions which the
Trustee may desire in relation to the above
matters; and
(b) it shall be the role of the Trustee to give effect to all
such recommendations or proposals of the Trust Manager as
are communicated by the Trust Manager to the Trustee in
accordance with this clause.
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4.3 Investment proposals
(a) (Trust Manager's investment proposals) The Trust Manager
shall from time to time give to the Trustee a proposal
for the acquisition or origination of property which is
to constitute Assets of a Trust and for the sale,
transfer or other realisation of or dealing with the
Assets of a Trust.
(b) (Sufficient details) Except where the Trust Manager's
proposal is an Investment Direction, each proposal shall
contain all necessary details relating to the proposal
together with all information and evidence as the Trustee
may reasonably require to satisfy itself that the
implementation of the proposal is permitted under this
deed. Where the Trust Manager's proposal is an Investment
Direction, it will comply with this deed.
(c) (Discretion) The Trust Manager shall have the fullest
discretion to recommend in the proposal the time and mode
of and the broker, contractor or agent (if any) to be
engaged for the implementation of the proposal including
the right to recommend a postponement for so long as the
Trust Manager in its discretion shall think fit.
(d) (Trustee must implement investment proposals) Subject to
clause 4.7 and this deed generally, on receipt of any
written proposal by the Trust Manager under this clause
4, the Trustee shall implement that proposal and the
Trustee shall not be required, nor be under a duty, to
inquire or to make any assessment or judgment in
relation to that proposal or whether the proposed
investment is an Authorised Investment or is otherwise
permitted under this deed. Subject to this deed, the
Trustee must not make an investment if it is knows that
it is not an Authorised Investment.
4.4 Disposal or realisation of Authorised Investments
(a) (Authorised Investments to be held to maturity in Rated
Trusts) Subject to this deed, any applicable Security
Trust Deed or Support Facility, Authorised Investments
in respect of a Rated Trust shall be held until their
maturity (and the Trustee shall accordingly not have
power to dispose of or realise any Authorised Investment
in a Rated Trust) but nothing in this deed shall affect
the rights, powers, duties and obligations of the
Trustee in relation to enforcing any Receivable,
Receivable Security or Related Securities or otherwise
in relation to any other Authorised Invest- ment or
Support Facility.
(b) (Circumstances for disposal in Rated Trusts) Subject to
this clause 4.4(b) and to clause 4.4(c), the Trustee
shall have power to dispose of or realise any Authorised
Investment in a Rated Trust if the Trust Manager confirms
to the Trustee that the disposal or realisation of the
Authorised Investment will not lead to a loss or where to
continue to hold such Authorised Investment would:
(i) (breach) result in a breach of this deed;
(ii) (affect Authorised Trustee Investment
status) affect the status of Notes as an
Authorised Trustee Investment (if
applicable);
(iii) (adversely affect rating) adversely affect
the then rating (if any) of the Notes issued
in relation to the Rated Trust; or
(iv) (prejudicial to Noteholders) in the opinion
of the Trust Manager, be prejudicial to the
interests of Noteholders in the Rated Trust.
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The Trustee may only exercise its power of disposal or
realisation under paragraphs (ii)-(iv) (inclusive) on the
written direction of the Trust Manager.
(c) (No restriction on disposal in unrated Trusts) Subject to
each Transaction Document there shall be no restriction
on the disposal or realisation of or temporary investment
or reinvestment in Authorised Investments:
(i) in a Trust which is not a Rated Trust; or
(ii) where the disposal is to another Trust under
clauses 7, 8.9(d) or 9.
(d) (Proceeds on realisation) On the settlement of the
discharge, realisation or disposal of an Asset, the
Trustee may accept the proceeds in the form of:
(i) a Bank cheque payable to the Trustee; or
(ii) in other immediately available funds.
4.5 Temporary investment of cash and limitation on maturity of Authorised
Investments
The Trust Manager shall in respect of a Trust be entitled to direct
the Trustee to cause cash on hand which represents the income or
capital of the Trust and which is not required for:
(a) (Expenses) the immediate payment of the Expenses of the
Trust;
(b) (Trustee's Fee) the immediate payment of the Trustee's
Fee in relation to the Trust; or
(c) (Noteholders or Beneficiaries) the immediate payment to
the Noteholders or a Beneficiary of the Trust,
to be invested in Authorised Investments provided that such
Authorised Investments shall mature on a date on or before the due
date for such payment.
4.6 Support Facilities
(a) (Enter into Support Facilities) The Trustee shall in
relation to any Trust, on the prior direction of the
Trust Manager (and following a review by the Trustee of
the documentation for the proposed Support Facility),
enter into or acquire and perform any Support Facilities
on such terms and conditions as are reasonably required
by the Trust Manager (subject to this deed).
(b) (Rating of parties to Support Facility) If Notes have
been, or are proposed to be, issued by the Trustee as
trustee of a Rated Trust, the Trust Manager shall
(subject to this deed):
(i) direct the Trustee that each Support
Facility for the benefit of the Rated Trust
must be taken out or executed with a person
having at that time a Designated Rating (if
required by the corresponding Designated
Rating Agency); and
(ii) take, or direct the Trustee to take, such
other action as may be necessary to satisfy
the requirements of the relevant Designated
Rating Agency in relation to that Rated
Trust.
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(c) (Support Facilities for Rated Trusts) If Notes have been,
or are proposed to be, issued by the Trustee as trustee
of a Rated Trust, any Support Facility for the benefit of
the Rated Trust shall be entered into by the Trustee
prior to or on the Note Issue Date in relation to those
Notes provided that the Trustee may, on the prior
direction of the Trust Manager:
(i) enter into a new Support Facility as trustee
of a Rated Trust after a Note Issue Date, if
and only if, the Trust Manager has received
written confirmation from any Designated
Rating Agency that entering into the Support
Facility will not result in a downgrading of
the Notes; or
(ii) substitute a new Support Facility for any
existing Support Facility entered into in
accordance with this clause 4.6 where it has
previously issued Notes as trustee of a
Rated Trust, if and only if, the Trust
Manager considers the same to be in the
interests of that Rated Trust and the Trust
Manager has received written confirmation
from any Designated Rating Agency that the
new Support Facility will not result in a
downgrading of the Notes.
(d) (Downgrading of parties) If a person providing a Support
Facility to the Trustee as trustee of a Rated Trust
ceases to have a Designated Rating (if the corresponding
Designated Rating Agency requires it to have a Designated
Rating) and the Designated Rating Agency has downgraded,
or has indicated that it proposes to downgrade, its
rating of the Notes, the Trustee shall, if directed by
the Trust Manager and subject to this deed:
(i) enter into any substitute or additional
Support Facility identified by the Trust
Manager, and on such terms required by the
Trust Manager; or
(ii) take such other action as may be required by
the relevant Designated Rating Agency,
to maintain the rating of the Notes as it stood prior to
such downgrading or proposed downgrading of the rating of
the Notes.
(e) (No obligation to have Support Facilities) Nothing in
this clause or this deed shall be construed as requiring
that any given Trust has the benefit of any Support
Facility. The Trustee is not required to enter into any
Support Facility except as provided in this clause.
4.7 Authorised Trustee Investments
The Trust Manager shall not direct the Trustee to, and the Trustee
shall not invest, any moneys of a Trust in any Authorised Investment
which prejudices the qualification of Notes in that Trust as an
Authorised Trustee Investment in a given Australian Jurisdiction if
the Trust Manager has indicated to the Trustee that the Notes are, or
are proposed to be, an Authorised Trustee Investment of that
Australian Jurisdiction or any Information Memorandum or prospectus
in relation to such Notes indicates that the Notes are, or are
proposed to be, an Authorised Trustee Investment of that Australian
Jurisdiction.
4.8 Limitation of Trustee's personal liability
Notwithstanding any other provision of this deed, the Trustee is not
obliged to execute any instrument, enter into any agreement, take any
action, or incur any obligation in connection with a Trust
(including, without limitation, in connection with Support Facilities
or Assets) unless:
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(a) in the case of agreements, actions or obligations that
are expressly contemplated by the Transaction Documents
and are between parties to the Transaction Documents, its
personal liability in connection with the instrument,
agreement, action or obligation is limited in a manner
consistent with clause 33.16; or
(b) in any other case, the Trustee's liability is limited in
a manner satisfactory to the Trustee in its absolute
discretion.
4.9 Moneys payable to Trustee
Subject to this deed, the Trust Manager and the Trustee shall ensure
that any agreements entered into in relation to the Trusts contain a
provision to the effect that any moneys belonging to the Trusts under
the agreements shall be paid to the Trustee or to an account, or
Authorised Investment, in the name of the Trustee as trustee of the
relevant Trust.
4.10 Segregation of Assets of a Trust
(a) Subject to this deed (and in particular to clause 27.10)
and any Series Notice the Trustee shall:
(i) ensure that no money or other Assets of a
Trust are commingled with the money or other
Assets of another Trust;
(ii) account for the Assets included in each
Trust separately from the Assets included in
all other Trusts; and
(iii) keep the liabilities of, and principal
amounts outstanding to Noteholders and
providers of Support Facilities or other
Creditors in relation to each Trust separate
and apart from the liabilities of, and
principal amounts outstanding to Noteholders
and providers of Support Facilities or other
Creditors in relation to all other Trusts.
(b) Notwithstanding this clause 4.10:
(i) any Expenses of a Warehouse Trust may be
borne by one or more Warehouse Trusts in the
respective amounts agreed by the Trustee and
the Trust Manager from time to time; and
(ii) the Trustee at the direction of the Trust
Manager may enter any Hedge Agreement which
relates to Assets of any two or more Trusts.
4.11 Assets of Trusts
Assets of a Trust shall not be available to meet any liability of, or
principal amounts outstanding to Noteholders and providers of Support
Facilities or other Creditors in relation to, any Trust other than
the Trust of which those Assets form a part.
4.12 Liabilities of a Trust
Any liabilities to the extent that they relate to a Trust and
principal amounts outstanding to Noteholders and providers of Support
Facilities or other Creditors to the extent that they relate to a
Trust, shall not be aggregated with any liabilities, and principal
amounts outstanding to Noteholders and providers of Support
Facilities or other Creditors, to the extent that they relate to any
other Trust or offset against the Assets of any Trust other than the
Trust of which those liabilities and principal amounts form a part or
to which they relate.
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PART C - ACQUISITION AND ORIGINATION OF ASSETS
5. GENERAL
5.1 Power to acquire Assets
Subject to this deed and any Series Notice, the Trustee may Borrow
for the purpose of or in connection with:
(a) the making of, investment in, or funding of assets
underlying, Loans or other Receivables;
(b) in relation to paragraph (a), investment in other
Authorised Investments; or
(c) the continued funding of any investment in Receivables,
Receivable Securities or other Authorised Investments.
5.2 Borrowings - general
Subject to clause 5.3, the Trustee may only Borrow in relation to a
Trust following receipt of a Warehouse Trust Direction under clause
7.1 or a Note Issue Direction under clause 13 and only by way of:
(a) the issue of Notes (including a Seller Note, and any
Borrowing relating to that Seller Note) at any time and
from time to time under this deed and the relevant Trust;
(b) a Support Facility (and any Notes issued with respect to
that Support Facility);
(c) in the case of a Rated Trust, a Borrowing which is at all
times subordinated and subject to the Notes, the
interests of the Noteholders under the Notes, and the
interests of the providers of any Support Facilities, in
relation to the relevant Trust; or
(d) in the case of a Trust which is not a Rated Trust, any
other Borrowing agreed by the Trustee and the Trust
Manager.
5.3 Borrowings - Support Facilities etc.
(a) Where there are, or may be, ongoing obligations of the
Trustee or Approved Seller (as the case may be) to
provide Obligors with the ability to redraw amounts
prepaid under a Receivable, or to increase the principal
amount of or owing in relation to any Receivable, the
Trustee shall subject to any applicable restriction in
the Transaction Documents at the direction (whether under
a Series Notice or otherwise) of the Trust Manager
(without limiting its rights or powers under this deed):
(i) issue a Seller Note to the Approved Seller
with respect to those obligations of the
Approved Seller;
(ii) enter into a Redraw Facility Agreement or
Warehouse Facility Agreement with respect to
those obligations;
(iii) sell or otherwise transfer that Receivable
to a Warehouse Trust;
(iv) issue Notes to reimburse the relevant
Approved Seller for any redrawn amounts
funded by the Approved Seller; or
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(v) enter any other arrangements as may be
agreed between the Trustee, the Trust
Manager and the Approved Seller.
(b) The Trustee may, at the direction of the Trust Manager in
accordance with clause 13, issue Notes in relation to its
obligations under a Warehouse Facility Agreement or a
Warehouse Trust.
(c) The parties to a Series Notice for a Warehouse Trust may
amend the Series Notice from time to time in writing.
6. ORIGINATION
(a) Where an Investment Direction directs the Trustee to
fund the making of Loans, or the making or creation of
other Receivables, other than by acquisition from an
Approved Seller (an Origination), and the Trustee
implements the direction, the Trustee shall use the
proceeds of the relevant issue of Notes or drawing under
the relevant Support Facility (as the case may be) for
the purpose of the Origination in accordance with the
detailed procedure for Origination set out in the
relevant Series Notice and as agreed by the Trustee, the
Trust Manager and the relevant originator.
(b) The Trustee is not required to Originate Receivables
unless it is satisfied (in its absolute direction) with
the procedures for the Origination (including as to any
indemnity for liability under Consumer Credit
Legislation).
7. ACQUISITION OR FUNDING BY WAREHOUSE TRUST FROM ANOTHER TRUST
7.1 Direction by Trust Manager
(a) Subject to Clause 7.3, the Trust Manager may from time to
time direct the Trustee under a Warehouse Trust Direction
to acquire from another Trust Receivables and/or
Receivable Securities using the proceeds of financial
accommodation under a Warehouse Facility Agreement or in
consideration of the transfer of any Authorised
Investments held by the Warehouse Trust.
(b) The Trustee has power, as trustee of a Trust, to dispose
of Receivables and/or Receivable Securities to a
Warehouse Trust in accordance with a Series Notice
relating to that Trust and that Warehouse Trust.
7.2 Required information
A Warehouse Trust Direction must include:
(a) all relevant details relating to:
(i) the other Trust;
(ii) the Receivables and relevant Receivable
Securities;
(iii) the Warehouse Facility Agreement (including
the amount of financial accommodation to be
raised); and
(iv) all necessary information required in a
Series Notice under this deed; and
(b) all other information reasonably required by the Trustee
in order to make a determination under clause 7.3.
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7.3 Conditions to acceptance
The Trustee will not accept a direction under clause 7.1 unless the
direction (including the Receivables and Receivable Securities
specified in the direction) complies with the requirements of the
relevant Warehouse Trust Direction and any relevant Warehouse
Facility Agreement or as the Trust Manager and the Trustee otherwise
agree.
7.4 Effect of acceptance
(a) A Warehouse Trust Direction must be executed in
accordance with clause 13.3(e).
(b) If the Trustee accepts a Warehouse Trust Direction under
clause 7.1, it shall:
(i) enter into, or ensure that there is in
place, a relevant Warehouse Facility
Agreement;
(ii) acquire or originate the Receivables (as the
case may be),
and otherwise comply with the Warehouse Trust Direction.
7.5 Implementation
If the Trustee accepts a Warehouse Trust Direction under clause 7.1,
the Trust Manager shall do everything reasonably necessary to enable
the Trustee to implement the direction.
7.6 General direction
(a) A Warehouse Trust Direction under clause 7.1 may take the
form of a general direction that specifies one or more
Trusts from which Receivables and Receivable Securities
may be acquired by the Trustee from time to time without
the need for a further Warehouse Trust Direction under
clause 7.1.
(b) Without limiting paragraph (a), a general direction
referred to in that paragraph can provide that the Trust
Manager may draw an amount under the relevant Warehouse
Facility Agreement on behalf of and without prior notice
to the Trustee, on satisfaction of any relevant
procedures specified in the Warehouse Trust Direction.
Those procedures may include:
(i) notice to be given to the Trustee within a
specified period after that drawing; and
(ii) requirements as to whom the proceeds of that
drawing will be paid.
7.7 Transfers between Trusts
(a) Where a transfer of Assets is to occur between Trusts
(whether between two Warehouse Trusts, between a
Warehouse Trust and a Trust which is not a Warehouse
Trusts, or between two Trusts neither of which is a
Warehouse Trust), the provisions of this clause 7.7
apply.
(b) The transfer may take place under a Sale Notice, under a
relevant Series Notice, or by such other method as the
Trustee and the Trust Manager may determine. The
information and timing of that transfer and the delivery
of that Sale Notice or any other document will be as
agreed between the Trustee and the Trust Manager.
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(c) Subject to payment of the agreed Purchase Price (as
adjusted in accordance with the terms of the sale), the
Trustee as trustee of a Trust will hold automatically by
virtue of this deed and without any further act or
instrument or other thing being done or brought into
existence, the benefit of all Receivable Rights
transferred to it by the Trustee as trustee of another
Trust (together with the benefit of all Support
Facilities which the Trustee and the Trust Manager agree
are to be transferred, and all other rights and
entitlements relating to the relevant Receivables). The
Trustee will hold the Receivables so acquired as trustee
of the Trust which acquires those Receivable Rights and
no longer as the trustee of Trust which disposed of the
Receivable Rights.
(d) The Sale Notice, Series Notice or other method of
transfer (as the case may be) may, if so agreed between
the Trustee and the Trust Manager, provide:
(i) that the Trust Manager, the Servicer or the
Approved Seller of the Assets which are the
subject of the transfer shall give for the
benefit of the acquiring Trust specified
representations, warranties and undertakings
in relation to the Assets; and
(ii) for the effect of any breach of a
representation, warranty or undertaking
referred to in sub-paragraph (i).
(e) Following a transfer between Trusts, each of:
(i) the Trustee as trustee of the Trust which
transfers the relevant Receivable Rights
(the Old Trust);
(ii) the Trustee as trustee of the Trust which
acquires the relevant Receivable Rights (the
New Trust); and
(iii) the relevant Approved Seller,
agrees that with effect from the date of transfer of the
relevant Receivable Rights the rights and obligations as
between the Approved Seller and the Trustee as trustee of
the Old Trust will be novated, and enjoyed by, the
Approved Seller and the Trustee as trustee of the New
Trust as between themselves (without the need for further
action on the part of any person). The Approved Seller
and the Trustee as trustee of the Old Trust shall, as
between themselves, cease from that date to owe any
obligations or hold any rights as between themselves.
(f) Where Assets of a Trust which are transferred to another
Trust are subject to a Trust Back, that Trust Back is
dealt with in accordance with clause 8.4(j).
(g) Following a transfer of Assets between Trusts, the Trust
Manager shall calculate, and notify the Trustee of, the
amount of:
(i) any accrued interest under the relevant
Receivables that may be due from the
transferee Trust to the transferor Trust at
any time; and
(ii any repaid or prepaid principal under the
relevant Receivables that may be due from
the transferor Trust to the transferee
Trust,
in accordance with the provisions (if any) of the
relevant Series Notice or Sale Notice.
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The Trust Manager directs the Trustee (as Trustee of the
Trust with any obligation under this paragraph (f)) to
pay any amount so calculated to the other relevant Trust
as an adjustment to the corresponding purchase price, in
accordance with the relevant Series Notice.
7.8 Acknowledgement by Approved Seller
Each Approved Seller acknowledges and agrees that any interest in
Receivables acquired from it by the Trustee as trustee of any Trust
may be disposed of by the Trustee to another Trust.
8. ACQUISITION FROM APPROVED SELLER
8.1 Note Issue Direction
Where:
(a) a Note Issue Direction directs that the Trustee issues
Notes; or
(b) a Warehouse Trust Direction directs that the Trustee
draws any amount under the relevant Warehouse Facility
Agreement,
to fund the acquisition of Authorised Investments from an Approved
Seller under a Sale Notice under clause 8.3, and the Trustee
implements the direction, the Trustee shall use the proceeds of the
relevant issue of Notes or drawing under the Warehouse Facility
Agreement (as the case may be) for the purpose of the acquisition in
accordance with this clause.
8.2 Accession of Approved Sellers
(a) (Approved Seller) A person approved by the Trust Manager
may at any time become an Approved Seller for the
purposes of this deed by entering into a Seller Accession
Certificate. The Trust Manager shall not direct the
Trustee to acquire Receivables and/or Receivable
Securities from an Approved Seller for a Rated Trust
(other than the Approved Seller who first disposed of
Receivables and/or Receivable Securities to that Trust)
without first confirming the rating for that Trust.
(b) (Accession) On execution of a Seller Accession
Certificate by that person and the Trustee, that person
shall be taken to be an Approved Seller for the purposes
of this deed with all the rights and obligations as if it
were an original party to this deed.
(c) (Trustee as Approved Seller) If the Trustee as trustee of
a Trust is to be an Approved Seller, it need not execute
a Seller Accession Certificate but will be bound by this
deed as an Approved Seller as trustee of that Trust.
8.3 Sale Notices
(a) An Approved Seller may (but is not obliged to) offer to
sell its equitable interest in any Authorised Investments
to the Trustee by delivering a Sale Notice to the
Trustee.
(b) Unless the Trustee otherwise agrees, a Sale Notice given
under this deed shall be delivered to the Trustee not
later than 4.00 pm on the Business Day before the day on
which the Expiry Time falls (which must also be a
Business Day).
(c) An offer in a Sale Notice is irrevocable during the
period up to and including the Expiry Time of that Sale
Notice.
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(d) If so directed by the Trust Manager, the Trustee shall
accept the offer contained in a Sale Notice at any time
prior to the Expiry Time by, and only by, the payment by
the Trustee to the Approved Seller (or as it directs) of
the Purchase Price in same day funds to the bank account
specified by the Approved Seller for that purpose in that
Sale Notice.
(e) Notwithstanding:
(i) satisfaction of all relevant conditions
precedent; or
(ii any negotiations undertaken between the
Approved Seller and the Trustee prior to the
Trustee accepting the offer contained in a
Sale Notice,
the Trustee is not obliged to accept the offer contained
in a Sale Notice and no contract for the sale or purchase
of any Receivables or related Receivable Rights referred
to in a Sale Notice will arise unless and until the
Trustee accepts the offer contained in the Sale Notice in
accordance with this clause.
(f) The offer contained in a Sale Notice may only be accepted
in relation to all the Receivables and related Receivable
Rights referred to in the Sale Notice.
8.4 Constitution and Entitlement of the Trust Back
(a) Constitution of Trust Back
On the acceptance of a Sale Notice which relates to
Receivable Securities that secure Other Secured
Liabilities:
(i) a trust shall be constituted; and
(ii the relevant Trust Back Assets shall vest in
the Trustee and be held by the Trustee on
and subject to the trusts, terms and
conditions of this clause.
(b) Declaration of trust
The Trustee declares that it will hold all its right,
title and interest in the Trust Back Assets on bare trust
for the relevant Approved Seller in accordance with this
clause.
(c) Entitlement of the Approved Seller to the Trust Back
Assets
The beneficial interest in the Trust Back Assets relating
to a Trust vests absolutely in the relevant Approved
Seller.
(d) Dealing with Trust Back Assets
Subject to the terms of this deed:
(i) an Approved Seller is entitled to deal with
its Trust Back Assets in its absolute
discretion;
(ii the Trustee must not deal with any Trust
Back Assets other than:
(A) in accordance with directions
given by the relevant Approved
Seller as beneficiary of the
Trust Back, from time to time;
(B) in accordance with all the
Transaction Documents; or
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(C) to the extent necessary to
exercise and enforce any
Receivable Rights; and
(iii) the Trustee must act in accordance with any
direction given to it by the relevant
Approved Seller in respect of its Trust Back
Assets, except that the Trustee is not
obliged to act in accordance with the
direction of that Approved Seller where to
do so would:
(A) be illegal; or
(B) materially prejudice the
exercise of the Trustee's rights
in relation to the Receivables
or Receivable Securities.
(e) Proceeds
Subject to clause 8.8:
(i) an Approved Seller may retain any proceeds
received by it from its Trust Back Assets;
and
(ii) the Trustee must immediately on the
direction of the Trust Manager pay to an
Approved Seller (or otherwise pay as the
Approved Seller directs) any proceeds the
Trustee receives in respect of that Approved
Seller's Trust Back Assets.
That payment constitutes a good discharge of the Trustee.
(f) Trustee's duties
(i) The Trustee owes no fiduciary or other
duties to any Approved Seller in respect of
that Approved Seller's Trust Back Assets
other than pursuant to paragraph (d) or
(e)(ii) and, in any event, is not liable in
any manner whatsoever to any Approved Seller
for any liability, loss, cost or expense to
that Approved Seller's Trust Back Assets
(whether consequential or otherwise)
resulting from doing or omitting to do any
act or thing in relation to those Trust Back
Assets, except where such loss is caused by
the fraud, negligence or wilful default of
the Trustee.
(ii) Subject to sub-paragraphs (d)(iii) and
(e)(ii), the Trustee is not required to take
any action in respect of any Trust Back
Assets.
(g) Indemnity in respect of Trust Back Assets
(i) Without limiting any indemnity to which the
Trustee is otherwise entitled and subject to
paragraph (ii), each Approved Seller
unconditionally and irrevocably indemnifies
the Trustee against any liability, loss,
cost or expense incurred by the Trustee as a
result of the Trustee complying with any
directions by that Approved Seller in
accordance with this deed in connection with
any Trust Back for that Approved Seller
(including the transfer of the Trust Back
Assets to the Approved Seller under
paragraph (j)). That Approved Seller must
pay or reimburse the Trustee on demand for
all reasonable expenses, including but not
limited to stamp duties and taxes, payable
in connection with such indemnity.
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(ii) An Approved Seller's obligations under
sub-paragraph (i) to indemnify and reimburse
the Trustee do not apply to the extent that
such liabilities or expenses arise as a
result of the fraud, negligence or wilful
default of the Trustee.
(h) Conflicts or Inconsistencies
If there is at any time a conflict or inconsistency
between:
(i) any:
(A) directions given by an Approved
Seller, as referred to in
paragraph (d); or
(B) duty owed by the Trustee to an
Approved Seller by virtue of the
Trustee being the trustee of the
Trust Back (whether arising by
operation of law, equity or
otherwise); and
(ii) the obligations and duties of the Trustee
arising under or in connection with the
Transaction Documents (apart from this
clause) or the interests of Mortgagees (as
defined in the Security Trust Deed),
the Trustee:
(iii) must give priority to the obligations,
duties and interests referred to in
paragraph (ii) over any direction or duty
referred to in paragraph (i); and
(iv) shall not, provided it acts in good faith
and without fraud, negligence or wilful
default, incur any liability to the relevant
Approved Seller for so doing.
(i) Termination of Trust Back
A Trust Back shall terminate when the Trustee ceases to
have any right to, or interest in, the Trust Back Assets
of that Trust Back.
(j) Transfer of Trust Back
(i) Where the Trustee holds Trust Back Assets as
trustee of a Trust (the First Trust), and
any of those Trust Back Assets are
transferred to another Trust (the Second
Trust), then automatically and without any
further act or instrument being done or
brought into existence:
(A) the Trustee, as trustee of the
Second Trust, will hold all its
right, title and interest in the
Trust Back Assets so transferred
on bare trust for the relevant
Approval Seller in accordance
with this clause 8.4; and
(B) the Trustee, as trustee of the
First Trust, will cease to hold
any interest in the Trust Back
Assets so transferred on the
Trust Back in relation to the
First Trust.
(ii) The Trust Manager will notify each Approved
Seller of any transfer by that Trust of any
Receivable for which that Approved Seller is
the registered mortgagee, except where the
relevant transferee is the Trustee as
trustee of another Trust.
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(k) Additional financial accommodation
Notwithstanding any other provision of this deed, an
Approved Seller may provide further financial
accommodation to an Obligor on the security of a
Purchased Receivable Security after that Purchased
Receivable Security has been assigned in equity to a
Trust. The Definition of Other Secured Liability includes
such further financial accommodation (except to the
extent that the financial accommodation relates to a
Receivable which is an Asset of the relevant Trust at the
time the financial accommodation was provided).
(l) Caveat
(i) If the Trustee perfects title to any
Receivable Security under this clause 8.4:
(A) the Trustee shall notify the
Security Trustee of the
Receivable Securities which are
affected by a Trust Back; and
(B) neither the Trustee nor the
Security Trustee shall dispose
of or create any interest in
that Receivable Security unless
the person receiving that
Receivable Security or that
interest is first notified of
the relevant Trust Back.
(ii) If an Approved Seller reasonably believes
that the Trustee or the Security Trustee
intends to dispose of or create an interest
in a Receivable Security which secures an
Other Secured Liability of that Approved
Seller without notifying the relevant third
party acquirer of the relevant Trust Back
under paragraph (i), that Approved Seller
may lodge a caveat to protect its interest
in the relevant Trust Back Assets.
8.5 Conditions Precedent to Purchase
(a) General
The right of an Approved Seller (other than the Trustee
as trustee of a Trust) to give a Sale Notice under clause
8.3 shall be subject to the Trustee having received in
form and substance satisfactory to the Trustee on or
before the date such offer is given:
(i) (verification certificate) except where the
Approved Seller is a Trust, a certificate in
relation to the Approved Seller given by an
Authorised Signatory of the Approved Seller
substantially in the form of schedule 6 with
the attachments referred to and dated as at
the date of the Sale Notice;
(ii) (Investment Direction) the Trust Manager
having delivered to the Trustee as the case
may be:
(a) a Note Issue Direction and
executed Series Notice under
clause 13 in relation to the
issue of the relevant Notes; or
(b) a Warehouse Trust Direction and
Series Notice under clause 7 in
relation to a drawing under the
relevant Warehouse Facility
Agreement; and
(iii) (other conditions) any other condition
precedent specified in the relevant Series
Notice.
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(b) Further conditions precedent
The rights of an Approved Seller (other than the Trustee
as trustee of a Trust) to give a Sale Notice shall be
subject to the further conditions precedent that on the
date of giving a Sale Notice the following statements
shall be true (and the Approved Seller, other than the
Trustee, shall, by virtue of giving that Sale Notice be
deemed to have certified that):
(i) (representations true) the representations
and warranties in clause 8.6 are true as of
such day as though they had been made at
that date in respect of the facts and
circumstances then subsisting;
(ii) (no default) no Title Perfection Event has
occurred and is subsisting or would result
from the acceptance of a Sale Notice.
8.6 Representations and warranties of Approved Seller
Each Approved Seller (other than the Trustee as trustee of a Trust)
makes the following representations and warranties.
(a) (i) (Status) It is a corporation validly
existing under the laws of the place of its
incorporation specified in this Deed or the
relevant Seller Accession Certificate.
(ii) (Power) It has the power to enter into and
perform its obligations under the
Transaction Documents to which it is
expressed to be a party and to carry out the
transactions contemplated by those
documents.
(iii) (Corporate authorisations) It has taken on a
timely basis all necessary corporate action
to authorise the entry into and performance
of the Transaction Documents to which it is
expressed to be a party and to carry out the
transactions contemplated by those
documents.
(iv) (Documents binding) Each Transaction
Document to which it is expressed to be a
party is its valid and binding obligation
enforceable in accordance with its terms,
except to the extent it is affected by laws
relating to liquidation or doctrines of
equity.
(v) (Transactions permitted) The execution and
performance by it of the Transaction
Documents to which it is expressed to be a
party and each transaction contemplated
under those documents did not and will not
(as applicable) violate in any respect a
provision of:
(A) a law or treaty or a judgment,
ruling, order or decree of a
Governmental Agency binding on
it; or
(B) its constituent documents.
(vi) (Authorisations) Each Authorisation which
is required in relation
to:
(A) the execution, delivery and
performance by it of Transaction
Documents to which it is
expressed to be a party and the
transactions contemplated by
those documents;
(B) the validity and enforceability
of Transaction Documents to
which it is expressed to be a
party; and
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(C) the perfection of the interest
of the Trustee in the Purchased
Receivables and related
Receivable Rights (not including
such Authorisations, (if any)
pertaining solely
to acts of the Trustee),
has been obtained or effected. Each is in
full force and effect. It has complied with
each of them. It has paid all applicable
fees for each of them.
(vi) (Series Notice) Any representations and
warranties required to be made by the
Approved Seller as set out in the relevant
Series Notice.
(b) Time at which representations and warranties made
The representations and warranties in clause 8.6(a) are
deemed to be made by an Approved Seller, by reference to
the facts and circumstances then existing in relation to
the relevant Trust, on each of the dates on which a Sale
Notice is given and on the Closing Date specified in that
Sale Notice (unless otherwise specified in the
representation or warranty).
(c) Reliance on representations and Warranties
Each Approved Seller acknowledges that the Trustee may
accept an offer in accordance with clause 8.3 and, if an
offer is accepted, will pay the Purchase Price in
reliance on the representations and warranties in clause
8.6(a).
(d) Breach of representations and warranties
(i) (Duty to give notice) For the purposes of
sub-paragraph (ii) (and without affecting
the Trustee's right to damages), if an
Approved Seller, the Trust Manager or the
Trustee becomes aware that a representation
or warranty in relation to any Purchased
Receivable or other Receivable Rights is
incorrect (including, without limitation,
relating to whether a Purchased Receivable
is an Eligible Receivable) otherwise than as
a result of receiving notice from the other,
it must notify the other parties and the
Designated Rating Agency, within 5 Business
Days of it becoming so aware.
(ii) (Offer and acceptance)
If:
(A) such a representation and
warranty is incorrect;
(B) the Approved Seller gives or
receives a notice under
paragraph (d)(i) not later than
5 Business Days before 120 days
after the relevant Closing Date;
and
(C) the Trustee does not waive that
breach, or the Approved Seller
does not remedy the breach to
the satisfaction of the Trustee,
within the period of 5 Business
Days referred to above, or such
longer time as the Trustee in
its absolute discretion permits,
then, without any action being required by
either party:
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(D) the Approved Seller shall be
taken to have offered to
repurchase the relevant
Purchased Receivables and
related Receivable Rights:
(1) where it gives a
notice under
subparagraph (B) on
the date which is
the earlier of the
date specified in
that notice and 10
Business Days after
that notice is
given; or
(2) otherwise, on the
date which is 10
Business Days after
the notice it
receives or should
have given (as the
case may be) under
paragraph (d)(i),
(in either case, the Repurchase
Date) for an amount equal to its
Unpaid Balance;
(E) the Trustee, by not waiving the
breach or agreeing to a longer
time as referred to in paragraph
(C) above, shall be taken to
have accepted that offer;
(F) the Trustee shall be entitled
to:
(1) all Collections
received in relation
to the relevant
Purchased Receivable
and the related
Receivable Rights on
and from the Closing
Date to (but
excluding) the
Repurchase Date; and
(2) the Unpaid Balance
of the relevant
Purchased Receivable
as at the Repurchase
Date; and
(G) the Approved Seller shall pay to
the Trustee the Unpaid Balance
as at the Repurchase Date of
that Receivable within 5
Business Days of the Repurchase
Date, together with any relevant
break costs for which the
Approved Seller is liable in
relation to the prepayment of
any Hedge Agreement for the
relevant Trust.
(iii) (Effect of repurchase) On payment of the
amount under paragraph (d)(ii)(G):
(A) the Trustee shall cease to have
any interest in the relevant
Purchased Receivables and
related Receivable Rights; and
(B) the Approved Seller shall hold
both the legal and beneficial
interest in those Receivables
and Receivable Rights and be
entitled to all interest and
fees that accrue in respect of
them from (and including) the
Repurchase Date; and
(C) no rights or interest under or
in respect of those Receivables
or Receivable Rights shall form
part of the relevant Trust Back
Assets.
(iv) (Other breach) Except where paragraph (ii)
applies, the Trustee's rights in relation to
a breach of a representation or warranty
shall give rise only to a claim for damages.
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(v) (Limit on damages) Subject to clause 8.12,
the maximum amount that an Approved Seller
may become obliged to pay to the Trustee in
relation to the breach of any representation
or warranty relating to a Purchased
Receivable, a Purchased Receivable Security
or other Receivable Rights is an amount
equal to the Unpaid Balance of that
Receivable at the time the Approved Seller
pays the damages.
(vi) (Conditions precedent to damages) No
Approved Seller shall be obliged to pay any
damages for a breach of representation or
warranty under any Transaction Document, or
any indemnity in relation to such breach,
unless:
(A) the Trustee first establishes
that there has been a breach
that has caused loss;
(B) the damages or indemnity claimed
represent no more than the loss
incurred as a result of the
breach;
(C) the Trustee first gives the
Approved Seller a written notice
specifying:
(1) the quantum of the
claim; and
(2) the basis of the
claim.
(vii) (Payment) Where an Approved Seller is liable
to pay damages under this clause, it shall
make such payment within 14 Business Days of
receipt by the Approved Seller of a notice
that complies with paragraph (vi).
8.7 Undertakings
(a) Approved Seller Undertakings
Each Approved Seller undertakes to the Trustee as follows
in relation to the relevant Trust and Portfolio of
Receivables:
(i) (comply with Series Notice) it will comply
with its obligations under the relevant
Series Notice; and
(ii (comply with Servicing Agreement) it will
comply with its obligations under the
Servicing Agreement.
(b) Term of Undertaking
Each undertaking in this clause continues from the date
of this deed until the date following the Sale
Termination Date when the Trustee ceases to have any
interest in the Purchased Receivables or related
Receivable Rights or until the Trustee's interest in the
Purchased Receivables or related Receivable Rights is
perfected.
8.8 Priority
(a) Priority
Notwithstanding:
(i) anything contained in any Purchased
Receivables or the related Receivable Rights
(including any Related Securities);
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(ii) the terms of a Receivable or any Other
Secured Liability;
(iii) the respective dates on which anything is
done or omitted to be done under or in
relation to a Receivable Security or the
moneys secured by that Receivable Security;
or
(iv) any rule of law or equity to the contrary,
all moneys received by an Approved Seller, a Servicer,
the Trust Manager or the Trustee or any receiver,
receiver and manager or attorney under or in relation to
a Purchased Receivable, a Purchased Receivable Security
or any Other Secured Liability as the result of the
enforcement of a Purchased Receivable or a Purchased
Receivable Security shall be applied in the following
order of priority
(A) First, subject to paragraph (b):
(1) all costs, charges
and expenses of the
relevant mortgagee
or any receiver,
receiver and manager
or attorney incurred
in or incidental to
the exercise or
performance or
attempted exercise
or performance of
any right, power or
remedy in relation
to the Receivable
Security;
(2) all outgoings in
relation to the
Receivable Security
which the mortgagee
or any receiver,
receiver and manager
or attorney thinks
fit to pay; and
(3) the remuneration of
any receiver or
receiver and
manager.
(B) Second, in satisfaction of
amounts owing under the
Receivable or any other
Receivable Rights secured by
that Purchased Receivable
Security.
(C) Third, the Other Secured
Liability for all moneys now or
in the future secured by the
Purchased Receivable Security
that relate to that Other
Secured Liability.
(b) Enforcement Expenses
(i) Where, and to the extent that, the costs,
charges, expenses, outgoings and
remuneration referred to in sub-paragraphs
(A)(1)-(3) of paragraph (a) (Enforcement
Expenses) are covered by a Mortgage
Insurance Policy, they shall be treated as a
first priority payment under sub-paragraph
(a)(A).
(ii) Where, and to the extent that, the
Enforcement Expenses are not covered by a
Mortgage Insurance Policy, then subject to
the terms of the relevant Purchased
Receivable, Purchased Receivable
Security or Related Security:
(A) if they arise because the
enforcement arose from default
under an Other Secured
Liability, they shall be treated
as a third priority payment
under sub-paragraph (a)(C); and
(B) otherwise, they shall be treated
as a first priority payment
under sub-paragraph (a)(A).
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(c) Continuing balance
This clause 8.8 applies to a continuing balance and any
present or future moneys secured by a Receivable Security
notwithstanding any subsequent repayment, advance or
provision of accommodation or other increase or decrease
in the amount secured.
8.9 Title Perfection Event; Termination; Repurchase
(a) Title Perfection Event
Unless otherwise provided in the relevant Series Notice,
each of the following is a Title Perfection Event in
relation to a Portfolio of Receivables and the relevant
Approved Seller:
(i) (downgrade) where the Portfolio of
Receivables is held subject to a Rated Trust
the Approved Seller ceases to have a long
term credit rating of at least:
(A) BBB from S&P (if S&P has rated
that Trust or Notes issued by
the Trustee as trustee of that
Trust);
(B) Baa2 from Moody's (if Moody's
has rated that Trust or Notes
issued by the Trustee as trustee
of that Trust);
(C) its equivalent from any other
Designated Rating Agency which
has rates that Trust or Notes
issued by the Trustee as trustee
of that Trust; and
(ii) (Insolvency Event) an Insolvency Event
occurs with respect to the Approved Seller.
(b) Remedies
(i) On the occurrence of a Title Perfection
Event, the Trustee and the Trust Manager
must take all reasonable steps to perfect
the Trustee's title in and to the relevant
Purchased Receivables and related Receivable
Rights, and may:
(A) by notice to the Approved Seller
terminate the rights and
obligations as between the
Trustee and the Approved Seller
in relation to the relevant
Purchase Receivable;
(B) complete, execute and register
on behalf of the Approved Seller
any relevant Transfer of
Receivable Security;
(C) give notice of any sale of the
relevant Receivable Rights under
any relevant Future Agreement to
the relevant Obligors;
(D) give notice of the perfection of
its title in the Purchased
Receivables and related
Receivable Rights to any other
interested person, including the
insurers under the relevant
Mortgage Insurance Policies;
and/or
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(E) do anything else reasonably
necessary to perfect its
interest in the relevant
Purchased Receivables and
related Receivable Rights,
including without limitation,
registering Transfers of
Receivable Securities or
caveats.
Except as otherwise provided in the relevant
Servicing Agreement, the Trustee shall not
take any such action until the occurrence of
a Title Perfection Event.
(ii) The relevant Approved Seller agrees that on
being directed to do so by the Trustee
following a Title Perfection Event, it will
promptly (and in any event within 10
Business Days or such longer period as the
Trustee permits) take all action to perfect
the Trustee's legal title to the Purchased
Receivables and the related Receivable
Rights by:
(A) giving written notice of the
Trustee's interest to any
Obligor;
(B) registering any relevant
Transfer of Receivable Security;
(C) taking any other action required
or permitted by law to perfect
such legal title; and
(D) delivering all Relevant
Documents relating to the
relevant Portfolio of
Receivables to the Trustee.
(c) First Right of Refusal
(i) As soon as practical after the Termination
Date of the Trust, the Trust Manager directs
the Trustee to offer (by written notice to
the Approved Seller) irrevocably to
extinguish in favour of the Approved Seller,
or if the Trustee has perfected its title,
to assign to the Approved Seller, its entire
right, title and interest in and to the
Purchased Receivables, and related
Receivable Rights (if any) in consideration
of the payment to the Trustee by the
Approved Seller in relation to the Trust of:
(A) in the case of performing
Purchased Receivables, the
Unpaid Balance of the relevant
Purchased Receivables; and
(B) in the case of non-performing
Purchased Receivables, their
Fair Market Value.
In each case, the Servicer is to determine
whether a Receivable is performing or
non-performing.
(ii) The Approved Seller cannot accept the offer
if the Fair Market Value of relevant
Purchased Receivables is less than the
Unpaid Balance without the approval of an
Extraordinary Resolution. Any purported
acceptance without that approval will be
ineffective.
(iii) During the 180 day period after the
Termination Date of a Trust, the Trustee
must not sell any Receivables and the
related Receivable Rights for an amount less
than:
(A) in the case of performing
Receivables, their Unpaid
Balance; or
(B) in the case of non-performing
Receivables, their Fair Market
Value.
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(iv) The Approved Seller may accept or reject
that offer in its discretion.
(v) The Trustee will not sell or deal with the
relevant Purchased Receivables and related
Receivable Rights except in accordance with
paragraph (c)(i) unless the Approved Seller
has failed to accept the offer referred to
in paragraph (c)(i) within 180 days after
the occurrence of the Sale Termination Date
by paying to the Trustee, within 180 days,
the purchase price referred to in paragraph
(c)(i) for all of those Purchased
Receivables and related Receivable Rights.
(d) Clean Up Offer
(i) A Series Notice for a Trust may provide that
the Trust Manager may, in certain
circumstances, direct a Warehouse Trust to
purchase Receivables or Receivable
Securities held by another Trust at a
particular time. The parties will comply
with that Series Notice.
(ii) Unless otherwise provided in that Series
Notice, the consideration for the purchase
in sub-paragraph will be:
(A) in the case of performing
Purchased Receivables, the
Unpaid Balance of the relevant
Purchased Receivables; and
(B) in the case of non-performing
Receivables, their Fair Market
Value.
In each case, the Servicer is to determine
whether a Receivable is performing or
non-performing.
(e) Costs of Repurchase; Indemnity
(i) The Approved Seller shall pay all costs and
expenses (including stamp duty) relating to
the repurchase or extinguishment of its
relevant Purchased Receivables and related
Receivable Rights under clauses 8.6(d) and
8.9(c).
(ii) Without limiting any indemnity to which the
Trustee is otherwise entitled, each Approved
Seller unconditionally and irrevocably
indemnifies the Trustee against any
liability, loss, cost or expense incurred by
the Trustee as a result of a Title
Perfection Event relating to that Approved
Seller. That Approved Seller must pay or
reimburse the Trustee on demand for all
reasonable expenses, including but not
limited to stamp duties and taxes, payable
in connection with such indemnity.
8.10 Subsequent adjustment
(a) Where Receivables in a Portfolio of Receivables have been
acquired from an Approved Seller:
(i) (interest) where so specified in the
relevant Series Notice or Sale Notice, the
Trust Manager shall direct the Trustee after
a Note Issue Date for a Trust to debit any
interest or fees received by the Trustee in
respect of a Receivable referred to in the
corresponding Note Issue Direction, with an
amount that represents accrued but unpaid
interest on the Receivable up to the date
specified for that purpose in the Series
Notice, and to credit that amount to the
relevant Approved Seller;
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(ii) (repaid principal) where so specified in the
relevant Series Notice or Sale Notice, after
the Note Issue Date the relevant Approved
Seller will as soon as possible (but by
close of business on the first Determination
Date) pay to the Trustee, as an adjustment
to the amount paid by the Trustee under
clause 13.8(e), an amount equal to the
amount of any principal received by the
Approved Seller on or after the date
specified for that purpose in the Sales
Notice in respect of any Receivables
referred to in the corresponding Note Issue
Direction;
(b) (other costs) subject to clause 8.10(a), the Trust
Manager may in its absolute discretion direct the
Trustee on or at any time after a Note Issue Date for a
Trust to debit or credit the corresponding Trust with
such other amounts that the Trust Manager believes are
appropriate so that the Approved Seller has the benefit
of any receipts, and bears the cost of any outgoings, in
respect of each Receivable referred to in the
corresponding Note Issue Direction (and any
corresponding Receivables, Receivable Security, Related
Securities and Support Facilities) up to (but not
including) the Note Issue Date and so that the relevant
Trust has the benefit of such receipts, and bears such
costs, from (and including) the Note Issue Date; and
(c) (Trustee to act in accordance with direction) the Trustee
or the Approved Seller (as the case may be) shall act in
accordance with, and may rely on, a direction of the
Trust Manager in accordance with this clause 8.10.
8.11 Substitution
If:
(a) an Obligor under a Purchased Receivable is, in accordance
with the relevant Approved Seller's ordinary course of
business, entitled to replace the related Receivable
Security, or a Security Interest which is a Related
Security, with another security securing the same
Receivable;
(b) the representations and warranties of the Approved Seller
in clause 8.6(a) and in the relevant Series Notice would
be true and correct in relation to the Receivable and the
new Security Interest at the time of substitution as if
it was specified as a Purchased Receivable in the Sale
Notice; and
(c) without limitation, in relation to Land, the new security
would be subject to a Mortgage Insurance Policy under
which the Trustee would be the insured;
then:
(i) the Approved Seller may discharge the related Receivable
Security, or the relevant Related Security, on the
giving of the new security;
(ii) the new security shall be taken to be a Purchased
Receivable Security or a Related Security in relation to
the relevant Trust, as the case may be, for the purposes
of each Transaction Document and it and the related
Receivable Rights shall be Assets of the relevant Trust;
and
(iii) the Approved Seller shall do anything else reasonably
necessary to assure to the Trustee its interest in that
new security.
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8.12 Indemnification
(i) Without limiting any other rights which the Trustee may
have under any Transaction Document or under applicable
law, each Approved Seller agrees to indemnify the Trustee
from and against any and all damages, losses, claims,
liabilities and related costs and expenses including
legal costs and expenses on a full indemnity basis the
Trustee may sustain or incur as a direct or indirect
consequence of:
(A) the breach of any representation or warranty
or undertaking made by that Approved Seller
under or in connection with any Transaction
Document, or any other information or report
delivered by that Approved Seller under any
Transaction Document, being false or
incorrect in any respect when made or deemed
made or delivered;
(B) the failure by that Approved Seller (whether
before or after the relevant Closing Date)
to comply with any applicable law, rule or
regulation with respect to any Receivable
Security, including without limitation the
nonconformity of any Receivable Security or
the Related Receivable with any such
applicable law, rule or regulation; and
(C) any dispute, claim, offset or defence of the
Obligor to the payment of any Purchased
Receivable Security which results from a
breach by the Approved Seller under any
Transaction Document.
To the extent that the matters referred to in paragraph
(i) are covered by clause 8.6(d), clause 8.6(d) shall
apply.
(ii) An Approved Seller shall not be obliged to pay any
indemnity for a breach of representation or warranty
under any Transaction Document, unless:
(A) the Trustee first establishes that there has
been a breach that has caused loss;
(B) the indemnity claimed represents no more
than the loss incurred as a result of the
breach; and
(C) the Trustee first gives the Approved Seller
a written notice specifying:
(1) the quantum of the claim; and
(2) the basis of the claim.
(iii) (Payment) Where an Approved Seller is liable to pay
damages under this clause, it shall make such payment
within 5 Business Days of receipt by the Approved Seller
of a notice that complies with paragraph (ii).
8.13 Power of Attorney
(a) The Trustee shall ensure that each power of attorney
given by an Approved Seller to the Trustee under or in
relation to this deed shall be exercised only strictly in
accordance with its terms.
(b) The Trustee shall:
(i) register each such power of attorney with
the land titles office of each relevant
jurisdiction; and
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(ii) keep each such power of attorney in a secure
place.
9. ACQUISITION FROM WAREHOUSE TRUST BY ANOTHER TRUST
9.1 Direction
(a) Where:
(i) a Note Issue Direction directs that the
Trustee issues Notes; or
(ii) a Warehouse Trust Direction directs that the
Trustee draws any amount under the relevant
Warehouse Facility Agreement,
to fund the acquisition of Receivables by a Trust from a
Warehouse Trust, and the Trustee implements that
direction, the Trustee shall use the proceeds of the
relevant issue of Notes or drawing under the Warehouse
Facility Agreement (as the case may be) for the purpose
of that acquisition.
(b) The Trustee has power, as the trustee of a Warehouse
Trust, to dispose of Receivables to another Trust in
accordance with Series Notices relating to that Warehouse
Trust and that other Trust, and subject to other relevant
Transaction Documents.
9.2 Implementation of acquisition
An acquisition of Receivables contemplated by clause 9.1 shall take
effect in accordance with clause 7.7.
9.3 Survival of rights and remedies
Where there exists any right or obligation of the Trustee in relation
to Receivables to be acquired from a Warehouse Trust, including any:
(a) Trust Back in relation to the Receivables;
(b) Approved Seller repurchase obligation under 8.6(d);
(c) Approved Seller representations or undertakings under
8.6(a); or
(d) limitation as to priority of payments on enforcement of
the Receivables,
the Trustee (in its capacity as Trustee of the Trust acquiring the
Receivables (the New Trust)), will acquire those Receivables with the
benefit of those rights and subject to those obligations.
Where any rights or obligations of the Trustee in relation to the
Receivables cannot be transferred to the Trustee in its capacity as
trustee of the New Trust, clauses 7.7(d), 7.7(e) and 7.7(g) will
apply.
9.4 Acknowledgement by Approved Seller
Each Approved Seller which disposes of Receivables to a Warehouse
Trust acknowledges and agrees that those Receivables acquired from it
by the Trustee as trustee of a Warehouse Trust may be disposed of by
the Trustee to another Trust.
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PART D - NOTES
10. NOTES
10.1 Acknowledgement of indebtedness
Subject to the terms of this deed and the relevant Series Notice,
each entry in the Register for a Trust in respect of a Note relating
to that Trust constitutes an independent and separate acknowledgement
to the relevant Noteholder by the Trustee of its indebtedness as
trustee of that Trust for the Invested Amount of that Note.
10.2 Legal nature of Notes
The Trustee may issue Notes of such legal nature as the Trust Manager
and the Trustee may agree. Unless otherwise agreed, the Notes will be
in the form of inscribed stock, and the Trustee's obligations in
relation to the Notes and under this deed in respect of those Notes
(including any obligation to pay interest or principal) will become
effective on inscription in the Register for that Trust under this
deed of the details for those Notes.
10.3 Terms of Notes
All Notes issued by the Trustee as trustee of a Trust shall be issued
with the benefit of, and subject to, this deed, the Series Notice
relating to those Notes and the Security Trust Deed (if any) relating
to that Trust. The Series Notice in relation to Notes shall be
binding on the Trust Manager, the Trustee and the corresponding
Noteholders.
10.4 Interest and Principal Entitlement of Noteholders
Subject to this deed, the corresponding Series Notice and the
Security Trust Deed (if any) relating to a Trust (and, in particular,
subject to any such provisions which provide for principal losses to
be charged off against any Notes), the Trustee as trustee of each
Trust shall in respect of the Notes issued by it in such capacity pay
or cause to be paid to the Noteholders of those Notes:
(a) (interest) their Coupon on each Coupon Payment Date; and
(b) (principal) their Principal Entitlement on each Principal
Repayment Date.
10.5 Minimum denomination of Notes
The minimum denomination of each Note shall be $10,000 (or, in the
case of Notes held by joint holders, $10,000 multiplied by the number
of holders of that Note) or such other amount specified in the
corresponding Series Notice.
10.6 Notes not invalid if issued in breach
No Note shall be invalid or unenforceable on the ground that it was
issued in breach of this deed or any other Transaction Document.
10.7 Location of Notes
The property in Notes shall for all purposes be regarded as situated
at the place where the relevant Register is located on which such
Notes are recorded.
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10.8 No discrimination between Noteholders
There shall not be any discrimination or preference between Notes
within the same Class, or the corresponding Noteholders, in relation
to a Trust by reason of the time of issue of Notes or for any other
reason, subject only to the Series Notice relating to the Notes and
the terms of the Security Trust Deed (if any) relating to the Trust.
11.1 SELLER NOTE
11.2 Seller Note
Where a Series Notice so provides, the Trustee may issue a debt
instrument (the Seller Note) to the relevant Approved Seller with
respect to any ongoing obligations of the Approved Seller with
respect to Purchased Receivables acquired from the Approved Seller by
the Trustee.
11.3 Form
The Seller Note:
(a) may be issued in any form and on any terms agreed by the
Trustee, the Approved Seller and the Trust Manager; and
(b) may relate to any current or future obligations of the
Approved Seller, actual or contingent, and whether or not
quantifiable at the date of issue of the Seller Note.
12.1 LIMITS ON RIGHTS OF NOTEHOLDERS AND BENEFICIARY
12.2 General Limits
No Noteholder or Beneficiary shall be entitled to:
(a) (particular interest) an interest in any particular part
of any Trust or Asset comprised in any Trust;
(b) (require transfer) subject (in the case of the
Beneficiary) to this deed, require the transfer to it of
any Asset comprised in any Trust;
(c) (interfere in management) interfere with or question the
exercise or non-exercise of the rights or powers of a
Servicer, the Trust Manager or the Trustee in their
dealings with any Trust or any Asset;
(d) (exercise rights in respect of Assets) exercise any
rights, powers or privileges in respect of any Asset in
any Trust;
(e) (act in Trustee's place) attend meetings or take part in
or consent to any action concerning any property or
corporation which the Trustee as trustee of a Trust holds
an interest;
(f) (terminate Trusts) seek to wind up or terminate any Trust
(except as provided in clause 17);
(g) (remove) seek to remove the relevant then Servicer, Trust
Manager or Trustee;
(h) (interfere) interfere in any way with any Trust;
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(i) (lodge caveats etc) lodge or enter a caveat or similar
instrument in relation to a Register or claim any estate
or interest in any Land over which a Mortgage or any
Related Securities are held or to which any other Asset
relates in respect of any Trust;
(j) (communicate with Mortgagors etc) except where the
Noteholder or Beneficiary is Westpac, or the Trustee has
otherwise consented, and subject to any provision of a
Transaction Document which allows any such
communication, negotiate or communicate in any way with
any Mortgagor, or Obligor or other security provider in
respect of any Mortgage, Loan, other Receivable,
Receivable Security or Related Security or with any
person providing a Support Facility to the Trustee or
any other person who is party to any Transaction
Document;
(k) (take proceedings) take any proceedings of any nature
whatsoever in any court or otherwise or to obtain any
remedy of any nature (including against the Trustee, the
Trust Manager or a Servicer or any former Trustee, Trust
Manager or Servicer or in respect of any Trust or any
Asset of any Trust) (unless, in the case of a Warehouse
Trust, the Noteholder or Beneficiary is Westpac and the
Trustee consents to Westpac taking the proceedings)
provided that it shall be entitled to compel the
Trustee, the Trust Manager and any Servicer to comply
with their respective duties and obligations under the
Transaction Documents and, if the Noteholders are
entitled to the benefit of any applicable Security Trust
Deed, the Noteholders may compel the Security Trustee to
comply with its duties and obligations under the
Security Trust Deed; and
(l) (recourse to personal assets of Trustee or Trust Manager)
any recourse whatsoever to the Trustee or the Trust
Manager in their personal capacity, except to the extent
of any fraud, negligence, wilful default, breach of trust
(in the case of the Trustee only) or breach of duty on
the part of the Trustee or the Trust Manager
respectively.
12.2 Interests of Beneficiary assignable
Subject to the relevant Series Notice a Beneficiary may assign, or
create or allow to exist a Security Interest over, its rights and
interests in respect of a Trust without the prior written consent of
any person.
12.3 Ranking of interest of Beneficiary
The rights, claims and interest of a Beneficiary in relation to any
Trust, the Assets of any Trust and in relation to any payment or
distribution out of any Trust (including, without limitation, on the
winding up of a Trust) shall at all times rank after, and be subject
to, the interests of Noteholders under the Notes issued in relation
to that Trust (including, without limitation, in relation to any
payment obligations on the Notes).
12.4 Further limit on interest of Noteholders
A Noteholder in relation to a Trust shall only be a creditor of the
Trustee in its capacity as trustee of that Trust to the extent of the
Notes held by that Noteholder (or, in the case of a Warehouse
Facility Provider, their rights under the relevant Warehouse Facility
Agreement) and shall not be entitled to any beneficial or, subject to
any applicable Security Trust Deed, other interest in any Trust.
12.5 No liability of Noteholders or Beneficiary
No Noteholder by reason of being a Noteholder, or Beneficiary by
reason of being a Beneficiary, shall in respect of a Trust:
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(a) (liability) have any liability to make any contribution
to the Assets of the Trust or any payment to the Trustee,
the Trust Manager or any other person in relation to the
Trust; and
(b) (indemnity) be under any obligation to indemnify the
Trustee, the Trust Manager or any Creditor of the Trustee
as trustee of the Trust in respect of any of the
liabilities (actual, contingent or otherwise and whether
due to any deficiency or not) of the Trustee or the Trust
Manager in relation to, arising from or in connection
with the Assets of the Trust or the Trust generally.
13. PROCEDURE FOR ISSUE OF NOTES
13.1 Note Issue Direction for a Trust
(a) (Delivery of direction) If the Trust Manager proposes
that the Trustee will issue Notes as trustee of a Trust,
it shall, at least 3 Business Days (or such other period
agreed by the Trustee or as specified in a relevant
Series Notice) prior to the proposed Note Issue Date,
deliver to the Trustee a Note Issue Direction directing
amongst other things that the Trustee (subject to this
deed and the relevant Series Notice):
(i) (transfer benefit of Mortgages) hold as
trustee of the Trust the benefit of the
Portfolio of Receivables specified by the
Trust Manager in the Note Issue Direction;
and
(ii) (issue Notes) issue as trustee of the Trust
the Notes specified by the Trust Manager in
the Note Issue Direction.
(b) (Conditions precedent to first direction) The right of
the Trust Manager to give a Note Issue Direction for any
Trust is subject to the Trustee receiving in form and
substance satisfactory to it:
(i) in relation to the first Note Issue
Direction for that Trust, a certificate in
relation to the relevant Servicer, the Trust
Manager and (if any) the relevant Approved
Seller (except where the Approved Seller is
a Trust) given by a director or secretary of
that company substantially in the form of
Schedule 6 with the attachments referred to
in that certificate;
(ii) in relation to the first Note Issue
Direction for that Trust, unless the Trustee
already holds a copy as trustee of another
Trust a duly executed and stamped
counterpart of this deed;
(iii) in relation to the first Note Issue
Direction for that Trust, a legal opinion on
this deed, or the Trustee being satisfied
that it will receive that legal opinion on
or before the first proposed Note Issue
Date; and
(iv) any other document or condition specified in
the relevant Series Notice.
13.2 Requirements for a Note Issue Direction
A Note Issue Direction given by the Trust Manager to the Trustee in
respect of a Trust under this deed shall (whether in that Note Issue
Direction, or in the accompanying Series Notice):
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(a) (contain the following information) specify the
following in respect of the Notes:
(i) (classes) whether any of the Notes will
constitute a Class separate from any other
Notes previously issued by the Trustee as
trustee of the Trust or from any other Notes
referred to in the Note Issue Direction;
(ii) (name) the name of the Notes or, if the
Notes are divided into more than one Class,
the name of each Class of Notes;
(iii) (amount) the total number of Notes and, if
the Notes are divided into more than one
Class, the number of Notes in each Class;
(iv) (principal amount) the total principal
amount of the Notes and, if the Notes are
divided into more than one Class, the
principal amount of each Class;
(v) (minimum subscription) the minimum
subscription amounts for Notes (if any);
(vi) (issue price) where the Notes are to be
issued at a discount or a premium to the
face value, the issue price of the Notes;
(vii) (Note Issue Date) the proposed Note Issue
Date;
(viii) (Security Trust Deed and Support Facilities)
whether a Security Trust Deed or any Support
Facilities need to be effected in relation
to the proposed Note Issue Date and, if so,
reasonable details of these;
(ix) (Receivables) all relevant details
(including where relevant the nature,
principal amount and rate of return) of
Receivables held or to be held under the
Trust to which the Trust to which the Note
Issue Direction relates;
(x) (Seller) where relevant, the identity and
details of the relevant Approved Seller or
Warehouse Trust from which the Receivables
are to be acquired;
(xi) (Lead Manager) if there is to be a Lead
Manager in relation to the issue of the
Notes, the identity and address of that Lead
Manager and any fees to which the Lead
Manager is entitled in relation to the
issue;
(xii) (Dealer Agreement if a Dealer Agreement is
to be effected in relation to the proposed
Note Issue Date, reasonable details of that
agreement (including the parties to that
agreement and the amount of their proposed
subscriptions);
(xiii) (such other required information) such other
information required by the Note Issue
Direction or the relevant Series Notice; and
(b) (duly completed) without limiting paragraph (a), be
otherwise duly completed; and
(c) (accompanied by a Series Notice) be accompanied by a duly
completed and executed Series Notice for the Notes, or if
the Notes are divided into more than one Class and the
Trust Manager elects to have a separate Series Notice for
each Class, a duly completed Series Notice for each
Class. However, if the terms of a Series Notice for the
Notes, or a particular Class of the Notes, are the same
as for a previous issue of Notes or a Class of Notes in
respect of the Trust, or if the Notes
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are contemplated by or issued under a previous Series
Notice, this requirement may be satisfied if the Note
Issue Direction specifies that this is the case and is
accompanied by the relevant previous Series Notice.
13.3 Series Notice
(a) (Mandatory Information) A Series Notice shall specify the
following in respect of the Notes to which it refers or
if it relates to more than one Class of Notes for each
Class to which it refers:
(i) (Coupon Payment Dates) each date (if any)
for the payment of interest under the Notes;
(ii) (Principal Repayment Dates) each date for
the repayment of part or all of the
outstanding principal under the Notes;
(iii) (rate of interest) the rate of interest (if
any) on the Notes (which may be fixed,
variable, calculated by way of discount on
the issue price or determined by a stated
method) and the method for calculating the
interest;
(iv0 (repayment of principal) where principal on
the Notes is to amortise, the amount (or the
method of calculating the amount) of
principal to be repaid on the Notes on each
Principal Repayment Date;
(v) (Class rights) if the corresponding Note
Issue Direction specifies that the Notes are
to constitute a Class separate from any
other Notes previously issued by the Trustee
as trustee of the relevant Trust or from any
other Notes referred to in the Note Issue
Direction, the rights or restrictions that
constitute the first mentioned Notes as a
separate Class and the relationship of those
rights and restrictions to any other then or
proposed Class of Notes;
(vi) (cashflow allocation methodology) the manner
in which cashflow from the Receivables (and
any relevant Support Facilities) will be
applied by the Trustee, and in which any
shortfalls in income will be allocated among
Notes and/or Classes of Notes;
(vii) (conversion rights) where the Notes may be
converted into a different Class of Notes,
details of that conversion (including when
and in what manner it can occur); and
(viii) (fees) any relevant fee (for example, fees
to the Servicer) for the relevant Trust.
(b) (Optional information) A Series Notice may specify the
following in respect of the Notes or Classes of Notes to
which it refers:
(i) (special rights) any preferred, deferred or
special rights or restrictions applying to
the Notes whether with regard to the payment
of interest, the repayment of principal,
voting, the division into classes or
otherwise, which may include, without
limitation, that the Notes are to be
initially issued on a partly paid basis or
shall have an additional entitlement to the
principal or capital of the corresponding
Trust beyond the repayment in full of their
Initial Invested Amount; and
(ii) (other information) any other terms or
restrictions applying to the Notes that may
be included in the Series Notice.
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(c) (Inconsistency) If a term of a Series Notice is
inconsistent with any provision of this deed, the Series
Notice shall prevail to the extent of the inconsistency,
with respect only to the Trust and Notes to which that
Series Notice relates.
(d) (Amendment) A Series Notice in relation to a Trust may
expressly amend any provision of this deed with respect
to that Trust and the relevant Notes. This deed and those
Notes shall be construed accordingly.
(e) (Execution) Once the Trustee, the Trust Manager, the
relevant Servicer, the provider of any relevant Support
Facility and any relevant Approved Seller have agreed to
the terms of a Series Notice they shall execute that
Series Notice in the Australian Capital Territory, on or
before the date on which the Trust Manager proposes to
issue the relevant Investment Direction.
13.4 Amendment
The Trust Manager may (and where either the Trustee or the relevant
Beneficiary have acknowledged the Note Issue Direction in accordance
with clause 13.6(b), the Trustee and the Beneficiary), prior to a
proposed Note Issue Date amend a previously issued Note Issue
Direction or Series Notice (including any Note Issue Direction or
Series Notice previously amended under this clause). For the purposes
of clause 13.13 only an amendment shall be treated as creating a
further issue of Notes. Such an amendment for a Rated Trust shall
only be made if prior notice of the amendment has been given to the
Designated Rating Agency.
13.5 Comply with Note Issue Direction
Subject to this clause 13, the Trustee may comply with a Note Issue
Direction.
13.6 Proviso on compliance with Note Issue Direction
(a) (Trustee shall not accept direction) The Trustee shall
not comply with a Note Issue Direction unless at least 3
Business Days (or such other period agreed by the
Trustee) prior to the proposed Note Issue Date the Trust
Manager has certified to the Trustee that the Note Issue
Direction and any corresponding Series Notice comply with
this deed.
(b) (Acknowledgement of direction) If the Trustee is
satisfied that the Note Issue Direction has been given
in accordance with this deed and has elected to accept
the Note Issue Direction then it shall immediately (and
in no event later than the close of business 2 Business
Days (or such other period agreed by the Trust Manager)
prior to the proposed Note Issue Date) sign the
acknowledgement of receipt on the Note Issue Direction
and return it to the Trust Manager. This acknowledgement
will not of itself constitute a declaration of trust and
a trust will only arise in accordance with clause
13.8(g).
13.7 Dealer Agreement
If a Series Notice so provides, the Trustee shall enter into a Dealer
Agreement in relation to the relevant Notes on such terms and
conditions as are reasonably required by the Trust Manager and the
Trustee (subject to this deed).
13.8 Issue of Notes and transfer of benefit of Mortgages
If the Trustee has:
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(a) (acknowledged the Note Issue Direction) acknowledged
receipt of a Note Issue Direction;
(b) (sufficient applications for Notes) received from the
Lead Manager (if any) or other intending Noteholders duly
executed Applications for Notes and the Trust Manager has
confirmed that the Subscription Amount for such Notes is
not less than the amount specified in the corresponding
Note Issue Direction;
(c) (received or granted Support Facilities etc) on or prior
to the proposed Note Issue Date:
(i) (Security Trust Deed) entered into a
Security Trust Deed as trustee of the
relevant Trust (unless not required for the
issue of the Notes by the Trust Manager in
the corresponding Note Issue Direction); and
(ii (Support Facilities) obtained, or entered
into arrangements to obtain with effect from
the corresponding Note Issue Date, as
trustee of the relevant Trust the benefit of
the Support Facilities referred to in the
corresponding Note Issue Direction,
and, to the extent required, received any legal opinions
on those documents reasonably requested by the Trustee;
and
(d) (rating) if the Notes are to be rated, the Trust Manager
has advised the Trustee that it has received a
provisional indication from the Rating Agency that the
Notes will have a rating equal to or higher than the
rating specified in the relevant Series Notice,
then, subject to the other requirements of this deed being satisfied
in relation to matters which must be done on or prior to the Note
Issue Date, the Trustee agrees with the Trust Manager (for the
benefit solely of the Trust Manager) that if, on the direction of the
Trust Manager on the Note Issue Date it issues Notes, as trustee of
the relevant Trust, to the intending Noteholders for the amount
referred to in the corresponding Note Issue Direction:
(e) (acquisition) where the relevant Receivables are to be
acquired from an Approved Seller:
(i) the Trustee will accept the relevant Sale
Notice (but only if the Trustee has issued
the relevant Notes) and without any
obligation to the Approved Seller to do so;
and
(ii) the Trustee agrees with the Trust Manager
(for the benefit solely of the Trust
Manager) to pay to the Approved Seller from
the proceeds of the issue of the Notes the
principal amounts of the Receivables
relating to the Portfolio of Receivables, or
such other consideration specified in
relation to the Note Issue Direction, as at
the date specified in the corresponding Note
Issue Direction; or
(f) (origination) where the Trustee is to originate the
relevant Receivables, originate those Receivables (and
any relevant Receivable Securities) in accordance with
the procedures agreed under clause 6.
13.9 Action following Note Issue
As soon as practicable after a Note Issue Date for a Trust:
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(a) (enter details in the Register) the Trustee shall enter
into the Register for that Trust in accordance with
clause 16 the information required under clause 16.1;
(b) (issue Note Acknowledgement) the Trustee shall issue a
Note Acknowledgement to each Noteholder in respect of its
holding of Notes; and
(c) (issue Marked Note Transfers) if requested by a
Noteholder in its Application for Notes, the Trustee
shall issue a Marked Note Transfer to the Noteholder.
13.10 No liability for insufficient moneys
If insufficient moneys are raised on a proposed Note Issue Date to
satisfy clause 13.8(b), neither the Trustee nor the Trust Manager
shall have any obligation or liability to any person (including,
without limitation, each other, any intending Noteholder or any
Beneficiary) to issue the Notes or, in the case of a proposed issue
in relation to a Trust, to hold the benefit of the Portfolio of
Receivables referred to in the corresponding Note Issue Direction for
the Trust, or otherwise.
13.11 Further assurance
Subject to the Transaction Documents, the Trustee shall following a
Note Issue Date for a Trust execute such documentation and do all
such other acts, matters or things as the Trust Manager reasonably
requires to transfer the benefit of the Portfolio of Receivables
referred to in the corresponding Note Issue Direction (and the
benefit of all corresponding Loans, Related Securities and Support
Facilities) to the Trust.
13.12 Further issues subject to Rating Agency approval
Where the Trustee as trustee of a Rated Trust has issued Notes, no
further Notes in respect of that Trust shall be created unless the
Trustee receives a certificate from each Designated Rating Agency in
respect of the Notes then on issue in respect of the Trust confirming
the rating of those Notes.
13.13 Issue of unrated Notes
Nothing in this deed shall be construed as requiring the Trustee or
the Trust Manager to obtain a rating for Notes to be issued by the
Trustee (except where those Notes are to be issued by a Rated Trust).
13.14 No limit on Notes
Subject to the provisions of this deed, there shall be no limit on
the amount or value of Notes which may be issued in respect of a
Trust.
13.15 Excluded issue, offer or invitation only
Notwithstanding anything contained in this deed, no issue or
allotment of Notes, offer of Notes for subscription or purchase or
invitation to subscribe for or buy Notes shall be made unless the
issue, allotment, offer or invitation is an excluded issue, excluded
offer or excluded invitation for the purposes of the Corporations
Law.
14. TRANSFERS OF NOTES
14.1 No restrictions on transfer of Notes
Subject to this deed and the corresponding Series Notice, there shall
be no restriction on the transfer of Notes.
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14.2 Minimum transfer
(a) (Corporations Law) A Noteholder shall not be entitled to
transfer any of its Notes unless the offer or invitation
to the transferee by the Noteholder in relation to such
Notes is an excluded offer or an excluded invitation for
the purposes of the Corporations Law.
(b) (Series Notice) Without limiting the generality of clause
14.1, or the operation of clause 14.2(a), a Noteholder
shall not be entitled to transfer any of its Notes unless
the amount payable by the transferee is greater than the
minimum amount (if any) provided in the Series Notice for
the Notes.
14.3 Form of transfer
Every transfer of Notes shall be effected by a Note Transfer.
14.4 Execution of Note Transfer
Every Note Transfer shall be duly completed and executed by the
transferor and transferee.
14.5 Stamping of Note Transfer
Every Note Transfer lodged with the Trustee shall be duly stamped
(if applicable).
14.6 Delivery of Note Transfer to Trustee
Every Note Transfer shall be delivered to the Trustee together with
the Note Acknowledgement to which it relates for registration.
14.7 Registration of Transferee as Noteholder
Subject to this clause 14 the Trustee shall on receipt of a Note
Transfer enter the transferee in the relevant Register as the holder
of the Notes which are the subject of the Note Transfer.
14.8 Trustee entitled to refuse to register Transfer
The Trustee may refuse to register any Note Transfer which would
result in:
(a) (breach) a contravention of or failure to observe:
(i) (this deed) the terms of this deed;
(ii) (Series Notice) the Series Notice for the
Notes;
(iii) (Security Trust Deed) the Security Trust
Deed (if any) relating
to the Notes; or
(iv) (the Law) a law of an Australian
Jurisdiction; or
(b) (requires registration) an obligation to procure
registration of any of the above with, or the approval of
any of the above by, any Government Agency.
14.9 Refusal to register absolute
The Trustee shall not be bound to give any reason for refusing to
register any Note Transfer and its decision shall be final,
conclusive and binding. If the Trustee refuses to register a Note
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Transfer it shall as soon as practicable (and in no event later than
7 days after the date the Note Transfer was lodged with it) send to
the transferor and the transferee notice of such refusal.
14.10 No fee for registration of a Note Transfer
No fee shall be charged for the registration of any Note Transfer.
14.11 Taking effect of Note Transfers
(a) (Not until registration) A Note Transfer shall not take
effect until registered by the Trustee and until the
transferee is entered in the relevant Register as the
holder of the Notes which are the subject of the Note
Transfer, the transferor shall remain the holder of those
Notes.
(b) (Transfer received when Register closed) When a Note
Transfer is received by the Trustee during any period
when the relevant Register is closed for any purpose, the
Trustee shall not register the Note Transfer until the
next Business Day on which that Register is reopened.
14.12 Rights and obligations of transferee
Subject to this deed, a transferee of Notes on being noted in the
relevant Register as the holder of the Notes shall have the following
rights and obligations:
(a) (those of the transferor) all the rights and the
obligations which the transferor previously had; and
(b) (those under this deed) all the rights and obligations of
a Noteholder as provided by this deed as if the
transferee was originally a party to this deed.
14.13 Payments to transferee
Subject to this deed (including clause 35.1), on the entry of a
transferee of Notes in the relevant Register the transferee shall
become entitled to receive any payments then due or which may become
due to the holder of the relevant Notes (including whether or not the
entitlement to payment wholly or partly arose or accrued prior to the
transfer and the Trustee shall be discharged for any such payment
made to the transferee).
14.14 Transmission of entitlements
(a) (Election) Any person becoming entitled to Notes as a
result of the death, mental incapacity or bankruptcy of a
Noteholder may, on producing such evidence as the Trustee
requires of their entitlement, elect to be either
registered as the Noteholder or to transfer the Notes in
the manner specified in this clause 14.
(b) (Method of election) If an entitled person elects to be
registered as the Noteholder, the person shall deliver
to the Trustee a notice in writing to this effect signed
by the person. If the person elects to have another
person registered he or she shall execute a Note
Transfer in relation to the Notes in favour of that
person. All the provisions of this deed relating to the
transfer of Notes and the registration of Note Transfers
shall be applicable to any such notice or Note Transfer
as if the death, mental incapacity or bankruptcy of the
Noteholder had not occurred and the notice or Note
Transfer was a Note Transfer executed by the Noteholder.
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(c) (Discharge) A person entitled to Notes under this clause
shall be entitled to receive and may give a good
discharge for all moneys payable in respect of such Notes
but, except as otherwise provided by this deed, shall not
be entitled to any of the rights or privileges of a
Noteholder unless and until the person is entered in the
relevant Register as the holder of such Notes.
14.15 Marked Note Transfer
(a) (Entitlement to marking) A Noteholder may from time to
time request the Trustee to provide the Noteholder with a
Marked Note Transfer.
(b) (Marking) The Noteholder shall deliver a Note Transfer to
the Trustee and the Trustee shall mark the Note Transfer
in such manner as agreed from time to time by the Trustee
and the Trust Manager and issue the same to the
Noteholder.
(c) (Trustee will not register transfer) Until the expiry of
90 days (or any substitute period as the Trustee and
Trust Manager agree from time to time and as advised to
Noteholders of the relevant Trust) from the date on which
the Note Transfer was marked, the Trustee shall not
register any transfer of Notes relating to the Marked
Note Transfer otherwise than on that Marked Note
Transfer.
(d) (No extension by closing of Register) The period
referred to in sub-paragraph (c) shall not be extended
by the closing of the relevant Register for any purpose.
(e) (Delivery) A Marked Note Transfer shall be issued to a
Noteholder by personal delivery at the time the
Noteholder attends the offices of the Trustee (or such
other place nominated by the Trustee) for the marking of
the Note Transfer by the Trustee.
14.16 Reliance on documents
The Trustee shall be entitled to accept and assume the authenticity
and genuineness of any Note Transfer or other document produced to it
to be duly executed. The Trustee shall not be bound to enquire into
the authenticity or genuineness of any Note Transfer or other
document, nor shall it incur any liability for registering any Note
Transfer which is subsequently discovered to be a forgery or
otherwise defective, unless the Trustee had actual notice of such
forgery or defect at the time of registration of such Note Transfer.
14.17 Specimen signatures
The Trustee may (but need not) require each Noteholder to submit
specimen signatures (and in the case of a corporation may require
those signatures to be authenticated by the secretary or director of
such Noteholder) of persons authorised to execute Note Transfers on
behalf of such Noteholder and shall be entitled to assume (until
notified to the contrary) that such authority has not been revoked.
14.18 Notes lodged with Austraclear
If Notes are lodged into the Austraclear System, the Trustee shall
enter Austraclear in the relevant Register as the holder of those
Notes. While those Notes remain in the Austraclear System:
(a) all payments and notices required of the Trustee and the
Trust Manager in relation to those Notes will be
directed to Austraclear; and
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(b) all dealings (including transfers) and payments in
relation to those Notes within the Austraclear System
will be governed by the Austraclear Regulations and need
not comply with this clause 14 to the extent of any
inconsistency.
15. NOTE ACKNOWLEDGEMENT
15.1 Issue of Note Acknowledgement
When a person has been entered in the relevant Register as the holder
of Notes, as soon as practicable (and in any event no later than 5
Business Days or such shorter period specified in the relevant Series
Notice or as otherwise agreed by the Trustee with the person or the
Trust Manager) thereafter, the Trustee shall issue a Note
Acknowledgement to that person in respect of those Notes. If the
person has been entered into the relevant Register under a Note
Transfer and the transferor continues to retain a holding of Notes,
the Trustee shall within the same period stated above issue to the
transferor a Note Acknowledgement in respect of that retained holding
of Notes. No certificates will be issued in respect of Notes.
15.2 Note Acknowledgement not certificate of title
A Note Acknowledgement shall not be a certificate of title as to
Notes and the relevant Register shall be the only conclusive evidence
of the ownership of Notes and the entitlements under them. A Note
Acknowledgement cannot be pledged or deposited as security nor can a
Note be transferred by delivery of only a Note Acknowledgement.
15.3 Execution of Note Acknowledgement
Each Note Acknowledgement shall be signed on behalf of the Trustee
manually, or in facsimile by mechanical or electronic means, by any
Authorised Signatory of the Trustee. If any Authorised Signatory of
the Trustee whose signature appears on a Note Acknowledgement dies or
otherwise ceases to be an Authorised Signatory before the Note
Acknowledgement has been issued, the Trustee may nevertheless issue
the Note Acknowledgement.
15.4 More than one Note Acknowledgement
If a Noteholder wishes more than one Note Acknowledgement it shall
return its Note Acknowledgement to the Trustee and at the same time
request in writing the issue of a specified number of separate Note
Acknowledgements. Subject to clause 10.5, the Trustee shall then
cancel the original Note Acknowledgement and issue in lieu separate
Note Acknowledgements. A fee prescribed by the Trustee (not exceeding
$10 for each Note Acknowledgement) shall be paid by the Noteholder to
the Trustee.
15.5 Worn out, defaced or lost Note Acknowledgement
If any Note Acknowledgement is worn out or defaced then on production
to the Trustee it may cancel the same and may issue a new Note
Acknowledgement. If any Note Acknowledgement is lost or destroyed
then on proof to the satisfaction of the Trustee, and on such
indemnity as the Trustee may consider adequate having been given, a
new Note Acknowledgement shall be given to the person entitled to
such lost or destroyed Note Acknowledgement. An entry as to the issue
of the new Note Acknowledgement and of the indemnity (if any) shall
be made in the relevant Register. A fee prescribed by the Trustee
(not exceeding $10) shall be paid by the person requesting the new
Note Acknowledgement to the Trustee.
15.6 Joint holdings
If a single parcel of Notes is held by more than one person, only the
person whose name stands first in the relevant Register in relation
to that parcel of Notes shall be entitled to:
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(a) be issued the relevant Note Acknowledgement and, if
applicable, a Marked Note Transfer;
(b) be given any notices; and
(c) be paid any moneys due in respect of such Notes.
15.7 Delivery of Note Acknowledgement
A Note Acknowledgement may be sent to the relevant Noteholder by mail
or by personal delivery to the Noteholder's address appearing in the
relevant Register and the Note Acknowledgement so sent shall be at
the risk of that Noteholder.
16. THE REGISTER
16.1 Details to be kept on Register
The Trustee shall keep or cause to be kept a register with respect to
each Trust, on which shall be entered the following information
relating to that Trust:
(a) (name) the name of the Trust;
(b) (creation) the date of the creation of the Trust;
(c) (Note Issue Dates) the Note Issue Dates for Notes issued
in relation to the Trust;
(d) (Initial Invested Amount) the total Initial Invested
Amount of Notes issued on each such Note Issue Date;
(e) (Invested Amount) the Invested Amount of each Note or
Class of Notes from time to time;
(f) (Stated Amount) the Stated Amount of each Note or Class
of Notes from time to time;
(g) (Series) details of relevant Classes of Notes;
(h) (details of Noteholders) the name and address of each
Noteholder;
(i) (number of Notes) the number of Notes held by each
Noteholder;
(j) (Note Acknowledgement) the serial number of each Note
Acknowledgement issued to each Noteholder;
(k) (date of entry) the date on which a person was entered
as the holder of Notes;
(l) (date of cessation) the date on which a person ceased to
be a Noteholder;
(m) (account) the account to which any payments due to a
Noteholder are to be made (if applicable);
(n) (payments) a record of each payment in respect of the
Notes in relation to the Trust; and
(o) (tax file number) a record that the Trustee has (or has
not) received the tax file number for each Noteholder;
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(p) (additional information) such other information as:
(i) is required by the relevant Series Notice;
(ii) the Trustee considers necessary or
desirable; or
(iii) the Trust Manager reasonably requires.
16.2 Asset register
The Trustee shall keep or cause to be kept an asset register with
respect to each Trust, in which shall be entered the Authorised
Investments and other Assets of the Trust (other than Purchased
Receivables and the related Receivable Rights) entered into the
relevant asset register on an individual basis.
16.3 Place of keeping Register, copies and access
Each Register shall be:
(a) (place kept) kept at the Trustee's principal office in
Sydney or at such place as the Trustee and the Trust
Manager may agree;
(b) (access to Trust Manager and Auditor) open to the Trust
Manager and the Auditor of the Trust to which it relates
to inspect during normal business hours;
(c) (inspection by Noteholders) open for inspection by a
Noteholder during normal business hours but only in
respect of information relating to that Noteholder; and
(d) (not for copying) not available to be copied by any
person (other than the Trust Manager) except in
compliance with such terms and conditions (if any) as the
Trust Manager and Trustee in their absolute discretion
nominate from time to time.
16.4 Details on Register conclusive
(a) (Reliance on Register) The Trustee shall be entitled to
rely on a Register as being a correct, complete and
conclusive record of the matters set out in it at any
time and whether or not the information shown in that
Register is inconsistent with any other document, matter
or thing.
(b) (no trusts etc) The Trustee shall not be obliged to enter
on a Register notice of any trust, Security Interest or
other interest whatsoever in respect of any Notes and the
Trustee shall be entitled to recognise a Noteholder as
the absolute owner of Notes and the Trustee shall not be
bound or affected by any trust affecting the ownership of
any Notes unless ordered by a court or required by
statute.
(c) (Register not to be signed) The Trustee shall ensure that
it does not sign or otherwise execute any entry in a
Register.
16.5 Closing of Register
The Trustee may close a Register for the periods specified in the
relevant Series Notice.
16.6 Alteration of details on Register
On the Trustee being notified of any change of name or address or
payment or other details of a Noteholder by the Noteholder, the
Trustee shall alter the relevant Register accordingly.
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16.7 Rectification of Register
If:
(a) an entry is omitted from a Register;
(b) an entry is made in a Register otherwise than in
accordance with this deed;
(c) an entry wrongly exists in a Register;
(d) there is an error or defect in any entry in a Register;
or
(e) default is made or unnecessary delay takes place in
entering in a Register that any person has ceased to be
the holder of Notes,
the Trustee may rectify the same.
16.8 Correctness of Register
Neither the Trust Manager nor the Trustee shall be liable for any
mistake in a Register or in any purported copy except to the extent
that the mistake is attributable to its fraud, negligence or wilful
default.
16.9 Trust Manager must provide information
The Trust Manager must provide the Trustee and any person appointed
in accordance with clause 21.4 with such information as the Trustee
may reasonably require to maintain each Register.
16.10 Third party registrar
The Trustee may cause a Register to be maintained by a third party on
its behalf and require that person to discharge the Trustee's
obligations under this deed in relation to that Register.
17. MEETINGS OF NOTEHOLDERS
17.1 Application of this clause
(a) The application of this clause 17 to a given Trust, and
to meetings of Noteholders of a given Trust or a Class
of Noteholders of a given Trust, is subject in its
entirety to the provisions of any Security Trust Deed
and any Series Notice in relation to that Trust and,
without limitation, a Security Trust Deed and a Series
Notice in relation to a Trust may override, suspend,
amend, modify, supplement or delete to any extent all or
any of the provisions of this clause 17 in relation to
that Trust and to meetings of Noteholders of that Trust
or any meeting of a Class of Noteholders of that Trust.
(b) In relation to a Warehouse Trust for which the only
Noteholder is the relevant Warehouse Facility Provider:
(i) the Warehouse Facility Provider can agree to
short notice under clause 17.3(b);
(ii) clauses 17.3(c), 17.4, 17.6, 17.7, 17.9 and
17.11 will not apply;
(iii) the Warehouse Facility Provider constitutes
a quorum for the purposes of clause 17.5;
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(iv) an Extraordinary Resolution under this deed
is constituted by a resolution of the
Warehouse Facility Provider.
17.2 Convening of meetings by Trustee and Trust Manager
(a) The Trustee or the Trust Manager may at any time convene
a meeting of the Noteholders of that Trust or Class of
Noteholders of a Trust.
(b) Noteholders of a Trust or a Class of Noteholders holding
in aggregate not less than 20% of the Invested Amounts of
all Notes issued by that Trust or in that Class, may at
any time convene a meeting of the Noteholders of that
Trust or Class, as the case may be.
17.3 Notice of meetings
(a) (Period of notice) Subject to clause 17.3(b) at least 7
days' notice (inclusive of the day on which the notice is
given and of the day on which the meeting is held) of a
meeting of all Noteholders or any Class of Noteholders of
a Trust shall be given to the relevant Noteholders of the
Trust.
(b) (Short notice) Notwithstanding clause 17.3(a), if it is
so agreed by a majority in number of the Noteholders of a
Trust or the Class (as the case may be) having the right
to attend and vote at the meeting, being a majority that
together hold at least 95% of the then outstanding Notes
in relation to the Trust or the Class, a resolution may
be proposed and passed at a meeting of which less than 7
days' notice has been given.
(c) (Failure to give notice) The accidental omission to give
notice to or the non-receipt of notice by any Noteholder
shall not invalidate the proceedings at any meeting.
(d) (Copies) A copy of a notice convening a meeting shall be
given by the Trustee or the Trust Manager convening the
meeting to the other, and also to the relevant
Beneficiary and the Designated Rating Agencies. Failure
to give such a notice in accordance with this clause
shall invalidate the meeting unless the party who has not
received the notice waives the invalidation.
(e) (Method of giving notice) Notice of a meeting shall be
given in the manner provided in this deed.
(f) (Contents of a notice) Notice of a meeting of
Noteholders shall specify:
(i) (time etc) the day, time and place of the
proposed meeting;
(ii) (agenda) the agenda of the business to be
transacted at the meeting;
(iii) (proposed resolution) the terms of any
proposed resolution;
(iv) (closing of Register) that the persons
appointed to maintain the relevant Register
for the purpose of determining those
entitled to attend may not register any Note
Transfer in the period of 2 Business Days
prior to the meeting;
(v) (appointment of proxies) that appointments
of proxies must be lodged no later than 24
hours prior to the time fixed for the
meeting; and
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(vi) (additional information) such additional
information as the person giving the notice
thinks fit.
17.4 Chairman
The Trustee may nominate a person to be chairman of a meeting which
has been convened by the Trustee or the Trust Manager. The chairman
need not be a Noteholder of the Trust and may be a representative of
the Trustee. If such a person is not present or is present but
unwilling to act, then the Noteholders present may choose a
Noteholder to be the chairman.
17.5 Quorum
At any meeting any two or more persons present in person being
Noteholders holding, or Representatives holding or representing, in
the aggregate not less than 75% of the Invested Amounts of all Notes
issued in relation to the Trust or constituting the Class (as the
case may be) and then outstanding shall form a quorum for the
transaction of business and no business (other than the choosing of a
chairman) shall be transacted at any meeting unless the requisite
quorum is present at the commencement of business.
17.6 Adjournment
(a) (Quorum not present) If within 15 minutes from the time
appointed for any meeting a quorum is not present, the
meeting shall stand adjourned (unless the Trustee agrees
that it be dissolved) for such period, not being less
than 7 days nor more than 42 days, as may be appointed
by the chairman. At such adjourned meeting two or more
persons present in person being Noteholders holding, or
being Representatives holding or representing, in the
aggregate not less than 50% of the Invested Amounts of
all Notes issued by the Trust or constituting the Class
(as the case may be) and then outstanding (whatever the
Notes so held or represented) shall form a quorum and
shall have the power to pass any resolution and to
decide on all matters which could properly have been
dealt with at the meetings from which the adjournment
took place had a quorum been present at such meeting.
(b) (Adjournment of meeting) The chairman may with the
consent of (and shall if directed by) any meeting adjourn
the same from time to time and from place to place but no
business shall be transacted at any adjourned meeting
except business which might lawfully have been transacted
at the meeting from which the adjournment took place.
(c) (Notice of adjourned meeting) At least 5 days' notice of
any meeting adjourned through want of a quorum shall be
given in the same manner as for the original meeting and
such notice shall state the quorum required at such
adjourned meeting. It shall not, however, otherwise be
necessary to give any notice of an adjourned meeting.
17.7 Voting procedure
(a) (Show of hands) Every resolution submitted to a meeting
shall be decided in the first instance by a show of hands
and, in case of equality of votes, the chairman shall
both on a show of hands and on a poll have a casting vote
in addition to the vote or votes (if any) to which he or
she may be entitled as a Noteholder or as a
Representative.
(b) (Declaration) At any meeting, unless a poll is (before or
on the declaration of the result of the show of hands)
demanded, a declaration by the chairman that a resolution
has been carried by a particular majority
or lost or not carried by any
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particular majority is conclusive evidence of the fact
without proof of the number or proportion of the votes
recorded in favour of or against such resolution.
(c) (Poll) If at any meeting a poll is demanded by the
chairman, the Trustee or the Trust Manager or by one or
more persons being Noteholders holding, or being
Representatives holding or representing, in aggregate
not less than 2% of the Notes issued by the Trust or
constituting the Class (as the case may be) and then
outstanding, it shall be taken in such manner and
(subject to this clause) either at once or after such an
adjournment as the chairman directs and the result of
such poll shall be deemed to be the resolution of the
meeting at which the poll was demanded as at the date of
the taking of the poll. The demand for a poll shall not
prevent the continuance of the meeting for the
transaction of any business other than the question on
which the poll has been demanded. The demand for a poll
may be withdrawn.
(d) (No adjournment) Any poll demanded at any meeting on the
election of a chairman or on any question of adjournment
shall be taken at the meeting without adjournment.
(e) (Votes) Subject to clause 17.7(a), at any meeting:
(i) on a show of hands, every person present
being a Noteholder holding, or being a
Representative holding or representing, then
outstanding Notes issued by the Trust shall
have one vote; and
(ii) on a poll, every person present shall have
one vote for each Note issued by the Trust
and then outstanding that he or she holds or
in respect of which he or she is a
Representative as stated in the relevant
Register at the date the notices are
dispatched to Noteholders for the meeting.
Any person entitled to more than one vote need not use
all his or her votes or cast all his or her votes to
which he or she is entitled in the same way.
17.8 Right to attend and speak
The Trustee, the Trust Manager and the relevant Beneficiary (through
their respective representatives) and their respective financial and
legal advisers shall be entitled to attend and speak at any meeting
of the Noteholders of a Trust or any Class (as the case may be). No
person shall otherwise be entitled to attend or vote at any meeting
of the Noteholders of a Trust or any Class (as the case may be)
unless he or she holds outstanding Notes in relation to the Trust or
is a Representative holding or representing such Notes.
17.9 Appointment of proxies
(a) (Requirements) Each instrument appointing a proxy shall
be in writing and, together (if so required by the
Trustee) with proof satisfactory to the Trustee of its
due execution, shall be deposited at the registered
office of the Trustee or at such other place as the
Trustee shall designate or approve not less than 24
hours before the time appointed for holding the meeting
or adjourned meeting at which the named proxy proposes
to vote and in default, the instrument or proxy shall be
treated as invalid unless the chairman of the meeting
decides otherwise before such meeting or adjourned
meeting proceeds to business. A notarially certified
copy proof (if applicable) of due execution shall if
required by the Trustee be produced by the proxy at the
meeting or adjourned meeting but the Trustee shall not
be obliged to investigate or be concerned with the
validity of, or the authority of, the proxy named in any
such instrument. Any person may act as a proxy whether
or not that person is a Noteholder.
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(b) (Proxy remains valid) Any vote given in accordance with
the terms of an instrument of proxy conforming with
clause 17.9(a) shall be valid notwithstanding the
previous death or insanity of the principal, revocation
or amendment of the proxy or of any of the Noteholder's
instructions under which it was executed, so long as no
intimation in writing of such death, insanity,
revocation or amendment is received by the Trustee at
its registered office or by the chairman of the meeting
in each case not less than 24 hours before the
commencement of the meeting or adjourned meeting at
which the proxy is used.
17.10 Corporate representatives
A person authorised under sections 249(3)-(6) of the Corporations Law
by a Noteholder being a body corporate to act for it at any meeting
shall, in accordance with his or her authority until his or her
authority is revoked by the body corporate concerned, be entitled to
exercise the same powers on behalf of that body corporate as that
body corporate could exercise if it were an individual Noteholder and
shall be entitled to produce evidence of his or her authority to act
at any time before the time appointed for the holding of or at the
meeting or adjourned meeting or for the taking of a poll at which he
proposes to vote.
17.11 Rights of Representatives
A Representative of a Noteholder shall have the right to demand or
join in demanding a poll and shall (except and to the extent to which
the Representative is specially directed to vote for or against any
proposal) have power generally to act at a meeting for the
Noteholder. The Trustee, the Trust Manager and any officer of the
Trustee and the Trust Manager may be appointed a Representative.
17.12 Powers of a meeting of Noteholders
(a) (Powers) A meeting of the Noteholders of a Trust shall,
without prejudice to any rights or powers conferred on
other persons by the Transaction Documents, only have
power exercisable by Extraordinary Resolution:
(i) to sanction any action that the Trustee, the
Trust Manager or the relevant Servicer
proposes to take to enforce the provisions
of any Transaction Document relating to the
Trust;
(ii) to sanction any proposal by the Trust
Manager, the Trustee or the relevant
Servicer for any modification, abrogation,
variation or compromise of, or arrangement
in respect of, the rights of the Noteholders
against the Trustee, the Trust Manager, the
relevant Approved Seller or the relevant
Servicer whether such rights arise under any
Transaction Document or otherwise;
(iii) to sanction the exchange or substitution of
Notes for or the conversion of Notes into,
other obligations or securities of the
Trustee or any other body corporate formed
or to be formed;
(iv) under clause 36.2, to consent to any
alteration, addition or modification of any
Transaction Document which shall be proposed
by the Trustee or the Trust Manager;
(v) to discharge or exonerate the Trustee, the
Trust Manager, the relevant Approved Seller
or the relevant Servicer from any liability
in respect of any act or omission for which
it may become responsible under any
Transaction Document relating to the Trust;
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(vi) to authorise the Trustee, the Trust Manager,
the relevant Servicer or any other person to
concur in and execute and do all such
documents, acts and things as may be
necessary to carry out and give effect to
any Extraordinary Resolution; and
(vii) to exercise any other power expressly
granted under a Series Notice.
(b) (No power) A meeting of the Noteholders of a Trust shall
not have power to, nor shall any resolution submitted to
the meeting propose or have the effect of:
(i) removing the relevant Servicer or the Trust
Manager from office;
(ii) interfering with the management of the
Trust;
(iii) winding up or terminating the Trust (except
as contemplated by clause 17.12(a)(vii));
(iv) altering the Authorised Investments of the
Trust;
(v) amending any Transaction Document (except as
contemplated by clause 17.12(a)); or
(vi) altering the Coupon Payment Dates, Principal
Payment Dates, Coupons, Principal
Entitlements or the other terms of the
Series Notice in relation to any Notes
(subject to clause 17.12(a)(iii)).
17.13 Extraordinary Resolution binding on Noteholders
An Extraordinary Resolution passed at a meeting of the Noteholders of
a Trust or of any Class duly convened and held in accordance with
this deed shall be binding on all the Noteholders of the Trust or of
the Class whether or not present at such meeting. Each of the
Noteholders of the Trust or of the Class (as the case may be), the
Trustee and the Trust Manager shall be bound to give effect to that
resolution accordingly.
17.14 Minutes and records
Minutes of all resolutions and proceedings at every meeting of the
Noteholders of a Trust or any Class (as the case may be) shall be
made and duly entered in the books to be from time to time provided
for that purpose by the Trustee and any such minutes purporting to be
signed by the chairman of the meeting at which such resolutions were
passed or proceedings transacted or by the chairman of the next
succeeding meeting of the Noteholders of the Trust or of the Class
(as the case may be) shall be conclusive evidence of those matters
and until the contrary is proved every such meeting in respect of the
proceedings of which minutes have been made and signed shall be
deemed to have been duly convened and held and all resolutions passed
or proceedings transacted at such meeting to have been duly passed
and transacted.
17.15 Written resolutions
Notwithstanding the preceding provisions of this clause 17, a
resolution of the Noteholders of a Trust or any Class (including an
Extraordinary Resolution) may be passed, without any meeting or
previous notice being required, by an instrument or instruments in
writing which has or have:
(a) in the case of a resolution (including an Extraordinary
Resolution) of the Noteholders of a Trust or any Class,
been signed by all Noteholders of the Trust or the Class
(as the case may be); and
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(b) any such instrument shall be effective on presentation to
the Trustee for entry in the records referred to in
clause 17.14.
17.16 Further procedures for meetings
Subject to all other provisions contained in this deed, the Trustee
may without the consent of the Noteholders of a Trust or any Class
prescribe such further regulations regarding the holding of meetings
of the Noteholders of a Trust or any Class of Noteholders and
attendance and voting at such meetings as the Trustee may with the
agreement of the Trust Manager determine including particularly (but
without prejudice to the generality of the above) such regulations
and requirements as the Trustee thinks reasonable:
(a) (entitlement to vote) so as to satisfy itself that
persons who purport to attend or vote at any meeting of
the Noteholders of a Trust or any Class of Noteholders
are entitled to do so in accordance with this deed; and
(b) (forms of Representative) as to the form of appointment
of a Representative,
but the Trustee may not decrease the percentage of Noteholders
required to pass an Extraordinary Resolution or an ordinary
resolution.
PART E - TRUST MANAGER
18. THE TRUST MANAGER
18.1 Appointment of Trust Manager
(a) The Trust Manager is appointed, and agrees to act, as the
manager of the Trusts on and subject to the terms of this
deed and any relevant Series Notice.
(b) Except as provided in clause 18.16 and clause 20.3:
(i) the Trust Manager will be an independent
contractor and not an agent of the Trustee;
(ii) the Trust Manager will not represent or hold
itself out to any person to be an agent of
the Trustee; or
(iii) the Trustee will not be responsible for the
acts, omissions or defaults of the Trust
Manager.
18.2 Complete powers of management
Subject to the Transaction Documents, the Trust Manager shall carry
out and perform the duties and obligations on its part contained in
this deed and shall have full and complete powers of management of
the Trusts, including without limitation:
(a) (Assets and liabilities) the administration and servicing
of the Assets (which are not serviced by a Servicer),
borrowings and other liabilities of the Trusts (including
concluding the commercial terms of the Hedge Agreements
to be entered into by the Trustee); and
(b) (day to day operation) the conduct of the day to day
operation of the Trusts.
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18.3 Note issuance
The Trust Manager has the power, where the Borrowing takes the form
of an issue of Notes, to:
(a) negotiate the terms and conditions of the issue of Notes
and any relevant Dealer Agreement;
(b) accept the terms and conditions of the issue of Notes and
any relevant Dealer Agreement with the Lead Manager,
managers or dealers for the issue of Notes and bind the
Trustee to an issue of Notes on those terms and
conditions; and
(c) direct the Trustee to enter that Dealer Agreement and
issue Notes on those terms and conditions.
However, the Trust Manager's power to act and bind the Trustee in
accordance with this clause is conditional on the Trustee being
satisfied, in its absolute discretion, with the terms and conditions
of the Dealer Agreement and the issue of Notes including the terms
and conditions dealing with the personal liability of the Trustee.
18.14 Trust Manager to act in interests of Beneficiary and Noteholders
The Trust Manager shall, in respect of each Trust, act in the
interests of the Beneficiary and the Noteholders in relation to that
Trust on, and subject to, the terms and conditions of this deed. In
the event of any conflict of interests, the interests of the
Noteholders will prevail.
18.15 Trust Manager to assist Trustee
The Trust Manager shall take such action as is consistent with its
powers under this deed to assist the Trustee to perform its
obligations under this deed.
18.16 Trust Manager's power to delegate
The Trust Manager may in carrying out and performing its duties and
obligations contained in this deed:
(a) (delegate to employees) delegate to Westpac, or any of
the Trust Manager's or Westpac's officers and employees
all acts, matters and things (whether or not requiring or
involving the Trust Manager's judgment or discretion);
(b) (appoint attorneys and agents) appoint any person to be
its attorney, agent, delegate or sub-contractor for such
purposes and with such powers, authorities and
discretions (not exceeding those vested in the Trust
Manager) as the Trust Manager thinks fit including,
without limitation:
(i) power for the attorney, agent, delegate or
sub-contractor to sub-delegate any such
powers, authorities or discretions;
(ii) power to authorise the issue in the name of
the Trust Manager of documents bearing
facsimile signatures of the Trust Manager or
of the attorney, agent, delegate or
sub-contractor (either with or without
proper manuscript signatures of its
officers); and
(iii) such provisions for the protection and
convenience of those dealing with any such
attorney, agent, delegate, sub-contractor or
sub-delegate as they may think fit; and
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(c) (remove agents and delegates) supersede or suspend any
such agent, delegate, sub-contractor or sub-delegate for
such cause or reason as the Trust Manager may in its sole
discretion think sufficient with or without assigning any
cause or reason and either absolutely or for such time as
it may think proper,
but despite any delegation or appointment under the above paragraphs
of this clause, the Trust Manager shall remain liable for the acts or
omissions of Westpac or of any such officer, employee, attorney,
delegate, agent, sub-delegate, sub-contractor or sub-agent and shall
be solely responsible for the fees and expenses of such officer,
employee, attorney, agent, delegate, sub-delegate, sub-contractor or
sub-agent.
18.7 Trust Manager's power to appoint advisers
The Trust Manager may appoint and engage any valuers, solicitors,
barristers, accountants, surveyors, property managers, real estate
agents, contractors, qualified advisers and such other persons as may
be necessary, usual or desirable for the purpose of enabling the
Trust Manager to properly exercise its powers and perform its
obligations under this deed and all proper fees, charges and moneys
payable to any such persons and all disbursements, expenses, duties
and outgoings properly chargeable to them shall constitute Expenses
of the Trust to which they relate.
18.8 Trust Manager's books available to Trustee
The Trust Manager will, in relation to each Trust:
(a) (keep proper records) keep proper books and records for
the Trust separate from any other books or records;
(b) (i) (produce books) during normal business
hours on reasonable notice make available to
the Trustee or the Auditor for inspection
all of the books and records of the Trust
maintained by the Trust Manager; and
(ii) (provide information) give to the Trustee or
the Auditor such written or oral information
as the Trustee or the Auditor reasonably
requires with respect to all matters in
possession of the Trust Manager relating to
the Trust,
subject, in each case, to the provisions of the Privacy
Act.
18.9 Trust Manager will account to Trustee for moneys received
(a) The Trust Manager will pay to the Trustee, within one
Business Day of receipt, all moneys coming into its hands
belonging to the Trusts or payable to the Trusts.
(b) The Trust Manager will keep any Assets which it may come
to hold from time to time separate from any other
property belonging to or entrusted to or held by the
Trust Manager.
18.10 Trust Manager to report Pool Data on Reuters
The Trust Manager may, if so specified in a Series Notice for a
Trust, prepare and arrange for the publication by Reuters (or another
customary electronic medium) of summary pool performance data for
that Trust in a format similar to that used by other mortgage-backed
securities or asset-backed securities (as the case may be) in the
Australian market.
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18.11 Trust Manager to prepare notices etc.
The Trust Manager shall prepare or cause to be prepared all notices
and statements which the Trustee is required to serve under any of
the provisions of this deed or any other Transaction Document and
shall produce such notices and statements (as the case may be) to the
Trustee at least one Business day (or any other period as the Trustee
and the Trust Manager agree) before the day on which the notice or
statement is required to be served.
18.12 Prior approval of circulars
(a) Where the Trust Manager has prepared any:
(i) Information Memorandum; or
(ii) circular, offer letter, notice, report or
the like to Noteholders, or prospective
Noteholders (a Publication), on behalf of
the Trustee,
the Trust Manager shall submit the Information Memorandum
or Publication to the Trustee for the Trustee's consent
(not to be unreasonably withheld) prior to the issue of
the document (unless otherwise waived by the Trustee).
(b) Where the Trustee or the Trust Manager has prepared any
Information Memorandum or Publication which names, or
purports to be issued by or on behalf of, a Servicer or
an Approved Seller, the Trustee or the Trust Manager (as
the case may be) shall submit the Information Memorandum
or Publication to the Servicer or Approved Seller (as the
case may be) for its consent (not to be unreasonably
withheld) prior to the issue of the document (unless the
Servicer or Approved Seller otherwise agrees).
18.13 Taxes
The Trust Manager directs the Trustee to make all payments (as and
when they fall due) out of a Trust to any duly empowered Government
Agency for Taxes levied on any Trust or on the Trustee in its
capacity as trustee of any Trust.
18.14 Acquisition or disposal of Assets
Subject to this deed, the Trust Manager shall ensure that all steps
which it thinks are desirable are taken in connection with the
investigation or negotiation for the acquisition or disposal of
Assets.
18.15 Monitor Support Facilities
The Trust Manager shall monitor all Support Facilities in respect of
a Trust and shall properly perform the functions which are necessary
for it to perform under those Support Facilities.
18.16 Make calculations, co-ordinate and provide reports
The Trust Manager shall:
(a) calculate all payments due on any relevant Payment Date;
(b) co-ordinate the issue of relevant Notes and the raising
of funds from those issues, or from any Support Facility;
and
(c) as and when required by any Series Notice or other
Transaction Document prepare and distribute for each
Trust the Trust Manager's Report,
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and where relevant (and when the Trust Manager is actually aware that
the directions need to be given, including any directions expressly
required of it under the Transaction Documents) provide all
directions to the Trustee as may be required for the Trustee to
comply with its obligations under the Transaction Documents.
18.17 Trust Manager cannot bind Trustee unless authorised
The Trust Manager acknowledges that in exercising its powers,
authorities and discretions vested in it and carrying out and
performing its duties and obligations in relation to any Trust or any
Asset, whether under any Transaction Document or any other deed,
agreement or other arrangement, neither it nor its delegate has any
power to bind the Trustee, otherwise than as expressly provided in
any Transaction Document or such other deed, agreement or other
arrangement.
18.18 Trust Manager must perform obligations under other Transaction
Documents
The Trust Manager shall properly perform the functions which are
necessary for it to perform under the other Transaction Documents to
which it is a party.
18.19 Trust Manager to provide personnel and systems
The Trust Manager shall at its own expense, procure sufficient
trained and experienced personnel, equipment and systems to enable it
to carry out its obligations under this deed and shall at all times
maintain complete and accurate records, books of account and an
adequate system of audit and internal controls so as to perform its
obligations under this deed.
18.20 Additional covenants by Trust Manager
The Trust Manager shall:
(a) (act honestly) act honestly and in good faith and comply
with all laws in the performance of its duties and in the
exercise of its discretions under this deed;
(b) (prudently) manage the Trust exercising the degree of
diligence and care reasonably expected of an
appropriately qualified manager, having regard to the
interests of the Beneficiaries, the Noteholders and the
other Creditors;
(c) (conduct its business properly) use reasonable endeavours
to carry on and conduct its business in so far as it
relates to this deed in a proper and efficient manner;
(d) (do all things necessary to perform obligations) do
everything and take all such actions which are necessary
(including, without limitation, obtaining all such
Authorisations as are appropriate) to ensure that it is
able to exercise all its powers and remedies and perform
all its obligations under this deed, the Transaction
Documents and all other deeds, agreements and other
arrangements entered into by the Trust Manager under this
deed;
(e) (notify defaults) promptly, on an officer of the Trust
Manager who has responsibility for the transactions
contemplated by the Transaction Documents for a Trust,
becoming actually aware, notify the Trustee and the
Designated Rating Agency of any Trust Manager's Default,
Servicer Transfer Event or any Adverse Effect relating to
that Trust and at the same time or as soon as possible
afterwards provide details of that default or effect;
(f) (not merge) not merge or consolidate into another entity
unless the surviving entity assumes the obligations of
the Trust Manager under the Transaction Documents;
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(g) (Threshold Rate) where so required under a Series Notice,
calculate Threshold Rates; and
(h) (Support Facilities) perform all obligations within its
power to ensure that all Support Facilities for each
Trust are maintained and available to the Trustee.
19. TRUST MANAGER'S FEE
In consideration of the Trust Manager performing its function and
duties under this deed, it shall be entitled to be paid from each
Trust a fee in the amount and at the times set out in the
corresponding Series Notice.
20. RETIREMENT, REMOVAL AND REPLACEMENT OF TRUST MANAGER
20.1 Retirement on Trust Manager's Default
The Trust Manager shall retire from the management of the Trusts if
and when directed to do so by the Trustee in writing (which direction
must be copied to each Servicer and, if any of the Trusts are Rated
Trusts, the Designated Rating Agency). A direction may only be given
on the occurrence of any or more of the following events (each a
Trust Manager's Default).
(a) (Collections and distributions) The Trust Manager fails
to make any payment required from it within the time
period specified in a Transaction Document, and that
failure is not remedied within 10 Business Days of
receipt from the Trustee of notice of that failure.
(b) (Insolvency Event) An Insolvency Event has occurred and
is continuing in relation to the Trust Manager.
(c) (Breach by the Trust Manager)
(i) The Trust Manager breaches any obligation or
duty imposed on the Trust Manager under this
deed, any other Transaction Document or any
other deed, agreement or arrangement entered
into by the Trust Manager under this deed in
relation to the Trust;
(ii) the Trustee reasonably believes that breach
has a Adverse Effect; and
(iii) the Trust Manager fails after 30 days'
notice from the Trustee (which notice
specifies the breach with reasonable
particularity and requires rectification) to
remedy that breach or paid compensation to
the Trustee for its loss from such breach,
except, in each case, where the Trust Manager has relied
on information provided, or other action taken, by a
Servicer or has not received information from the
Servicer which the Trust Manager requires to comply with
the obligation or duty.
(d) (Misrepresentation) A representation, warranty or
statement by or on behalf of the Trust Manager in a
Transaction Document or a document provided under or in
connection with a Transaction Document, is not true in a
material respect or is misleading when repeated and is
not remedied to the Trustee's reasonable satisfaction
within 90 days after notice from the Trustee where (as
determined by the Trustee) it has an Adverse Effect.
The costs of removal of a Trust Manager in default shall be borne by
the Trust Manager. The Trust Manager indemnifies the Trustee and the
Trust for those costs.
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20.2 Trustee may remove recalcitrant Trust Manager
In default of the Trust Manager retiring in accordance with clause
20.1 within 30 days of being directed by the Trustee in writing so to
do, the Trustee must by deed poll executed by the Trustee remove the
Trust Manager from the management of the Trusts except that:
(a) until a replacement Trust Manager is appointed under
clause 20.3, the Trust Manager must continue as Trust
Manager; and
(b) if a replacement Trust Manager is not appointed under
clause 20.3 within 120 days of the Trustee electing to
appoint a new Trust Manager, the Trustee will be the new
Trust Manager.
20.3 Trustee appoints replacement Trust Manager
On the retirement or removal of the Trust Manager, the Trustee shall
be entitled to appoint some other corporation to be the Trust Manager
of the Trusts provided that appointment will not materially prejudice
the interests of Noteholders. Until that appointment is complete the
Trustee may and, if required under clause 20.2(b) shall, subject to
this deed and to any approval required by law, act as Trust Manager
and will be entitled to the Trust Manager's Fee for the period it
acts as Trust Manager. A new Trust Manager shall not be appointed in
relation to a Rated Trust without prior notice being given by the
Trustee to the Designated Rating Agency.
20.4 Voluntary Retirement
The Trust Manager may, subject to clause 20.5, resign on giving to
the Trustee (with a copy to the Designated Rating Agency) not less
than 3 months' notice in writing (or such other period as the Trust
Manager and the Trustee may agree) of its intention to do so.
20.5 No resignation by Trust Manager unless successor appointed
The Trust Manager must not, subject to clause 20.6, resign under
clause 20.4 unless:
(a) either:
(i) it procures that, before the date on which
that termination becomes effective, another
person assumes all of the obligations of the
Trust Manager under this deed and the
relevant Series Notices as its successor,
and executes such documents as the Trustee
requires to become bound by this deed and
the relevant Series Notices, with effect
from that date, as if it had originally been
a party to this deed and the relevant Series
Notice as the Trust Manager; or
(ii the Trustee elects not to appoint a
successor Trust Manager, and to perform
itself the obligations and functions which
this deed and the relevant Series Notices
contemplate being performed by the Trust
Manager;
(b) the appointment of the successor Trust Manager, or (as
the case may be) the election of the Trustee, will not
materially prejudice the interests of Noteholders; and
(c) in the case of the appointment of a successor Trust
Manager pursuant to paragraph (a), the appointment is
approved by the Trustee.
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20.6 Trustee to act as Trust Manager if no successor appointed
If at the end of the period of notice specified in a notice given
under clause 20.4, no successor Trust Manager has been appointed, as
contemplated by clause 20.5(a)(i):
(a) the Trustee must itself perform the obligations and
functions which this deed contemplates being performed by
the Trust Manager, until a successor Trust Manager is
appointed in accordance with this deed; and
(b) the resignation of the Trust Manager will become
effective.
20.7 Release of outgoing Trust Manager
On retirement or removal and provided there has been payment to the
Trustee of all sums due to it by the outgoing Trust Manager under
this deed at that date, the outgoing Trust Manager shall be released
from all further obligations under this deed but no release under
this clause 20.7 shall extend to any existing or antecedent fraud,
negligence or wilful default on the part of the outgoing Trust
Manager or its officers, employees, agents or delegates.
20.8 New Trust Manager to execute deed
(a) A new Trust Manager shall execute a deed in such form as
the Trustee may require under which the new Trust Manager
undertakes to the Trustee, the Beneficiaries and the
Noteholders jointly and severally to be bound by all the
covenants on the part of the Trust Manager under the
Transaction Documents from the date of execution of the
new deed on the same terms contained in the Transaction
Documents.
(b) On and from the date of execution of the new deed, the
new Trust Manager shall and may afterwards exercise all
the powers, enjoy all the rights and shall be subject to
all the duties and obligations of the Trust Manager under
the Transaction Documents as fully as though the new
Trust Manager had been originally named as a party to the
Transaction Documents.
20.9 Settlement and discharge
The Trustee shall settle with the outgoing Trust Manager the amount
of any sums payable by the outgoing Trust Manager to the Trustee or
by the Trustee to the outgoing Trust Manager and shall give to or
accept from the outgoing Trust Manager a discharge in respect of
those sums which shall be conclusive and binding as between the
Trustee, the outgoing Trust Manager, the new Trust Manager, the
Beneficiaries and the Noteholders.
20.10 Delivery of books, documents, etc
(a) On the retirement or removal of the Trust Manager in
accordance with the provisions of this clause 20 the
outgoing Trust Manager shall immediately deliver to the
new Trust Manager appointed in respect of any Trust (or
the Trustee if it is acting as Trust Manager) the Data
Base and all other books, documents, records and
property relating to the Trusts and any other
information relating to a Trust or the outgoing Trust
Manager as the Trustee or new Trust Manager may
reasonably request. The reasonable costs and expenses of
this incurred by the new Trust Manager (but not the
outgoing Trust Manager) are to be paid out of the
relevant Trust.
(b) The outgoing Trust Manager shall be entitled to take, and
retain as its own property, copies of such books,
documents and records. Each of the Trustee and the new
Trust Manager shall produce the originals of such books,
documents and records in
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its possession on the giving of reasonable written
notice by the outgoing Trust Manager.
20.11 Notice to Noteholders of new Trust Manager
As soon as practicable after the appointment of a new Trust Manager
under this clause 20, the new Trust Manager shall notify the
Noteholders of its appointment.
20.12 Waiver of Trust Manager's Defaults
Subject to first giving notice to the Designated Rating Agency, the
Trustee may waive any Trust Manager's Default or any other by the
Trust Manager under a Transaction Document. On any such waiver, the
default shall cease to exist, and that Trust Manager's Default shall
be deemed to have been remedied for every purpose of this deed. No
such waiver shall extend to any subsequent or other default or impair
any right consequent on a Trust Manager's Default except to the
extent expressly waived.
PART F - TRUSTEE
21. TRUSTEE'S POWERS
21.1 General power
Subject to this deed, the Trustee shall have all the rights, powers
and discretions over and in respect of the Assets of the Trusts which
it could exercise if it were the absolute and beneficial owner of
such Assets.
21.2 Specific powers
Without in any way affecting the generality of the above or the other
provisions of this deed, but subject to the Trustee's obligations
under this deed, the Trustee shall have the following powers (which
shall be construed as separate and independent powers of the
Trustee):
(a) (enter into Receivable Securities) to enter into,
provide, purchase and acquire:
(i) Loans on the security of Mortgages and
Related Securities; and
(ii) other Receivables (where relevant, on the
security of Receivable Securities and
Related Securities);
(b) (deal in other Authorised Investments) to make, purchase,
acquire or dispose of any other Authorised Investment for
cash or on terms;
(c) (fees and Expenses) to pay all fees payable under this
deed and all Expenses which were properly incurred in
respect of a Trust;
(d) (advisers) to engage, and to incur reasonable expenses in
relation to, any valuers, solicitors, barristers,
accountants, surveyors, property advisers, real estate
agents, contractors, qualified advisers, and such other
persons as may be necessary, usual or desirable for the
purpose of enabling the Trustee to be fully and properly
advised and informed in order that it may properly
exercise its powers and perform its obligations under
this deed;
(e) (execute proxies, etc) to execute all such proxies and
other instruments as may be necessary or desirable to
enable the Trustee, or any officer, delegate or agent of
the Trustee to exercise any power, discretion or right of
the Trustee as the Trustee shall in its absolute
discretion see fit;
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(f) (dealings over mortgaged Land) to consent to any
mortgage, lease and/or sub-lease of or dealing with the
property (including Land) over which a Receivable
Security is held provided that, in the case of any such
mortgage, the Receivable Security held by the relevant
Trust is not prejudiced by or ranks or will rank in
priority to any dealing for which consent is sought;
(g) (discharge Receivables) subject to this deed and the
other relevant Transaction Documents, to grant any form
of discharge or release or partial discharge or release
of any Receivable, Receivable Security or Related
Security where to do so is in the opinion of the Trustee
not prejudicial to the relevant Trust (and, without
limitation, will not have the effect of removing a
Receivable from the coverage of any Support Facility
prior to the receipt of all moneys owing or which may
become owing under the Receivable) and to execute all
deeds or other documents as shall be necessary or
incidental to such a discharge or release and to deal
with certificates of title or other indicia of title as
the Trustee sees fit;
(h) (powers of Mortgagee) subject to this deed and the other
relevant Transaction Documents, to exercise any power of
sale arising on default under any Receivable, Receivable
Security or Related Securities or any other right or
remedy accruing in respect of any Trust in relation to
any Asset, Support Facility or other Transaction
Document and to exercise all customary powers,
authorities and discretions following on the exercise of
that power, right or remedy where the Trustee considers
it is in the interests of the relevant Trust;
(i) (proceedings) to institute, prosecute, defend, settle and
compromise legal or administrative proceedings of any
nature and generally to enforce and pursue its rights
under and in respect of Assets;
(j) (waivers) wherever it thinks it expedient or desirable in
the interests of any Trust, to give any waiver, time or
indulgence to any person on such terms as it may in its
discretion determine;
(k) (Austraclear) register Austraclear as the holder of
Notes, and to lodge Note Acknowledgements and Marked Note
Transfers with Austraclear, to facilitate transactions
through the Austraclear System;
(l) (Notes) subject to this deed and the other relevant
Transaction Documents, to borrow and raise moneys by the
issue of Notes as provided in this deed;
(m) (other borrowings) to borrow, raise moneys or procure
financial accommodation where the Trustee considers the
same to be in the interests of the relevant Trust on such
terms and conditions as the Trust Manager thinks fit and
that are acceptable to the Trustee (acting reasonably);
(n) (Transaction Documents) to enter into and perform its
obligations under any Transaction Document containing
such terms and conditions as the Trust Manager thinks fit
and that are acceptable to the Trustee (acting
reasonably);
(o) (insurance) insure any Asset for amounts, on conditions
and for types of insurance determined to be necessary by
the Trust Manager;
(p) (attend meetings) attend and vote at meetings in
accordance with the written directions of the Trust
Manager;
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(q) (indemnity) give an indemnity out of a Trust in any terms
whatsoever to such persons and against such expenses and
damages as the Trust Manager reasonably considers
necessary or desirable and that are acceptable to the
Trustee;
(r) (undertakings in Transaction Documents) without limiting
the above provisions of this clause 21.2, give any
representation, warranty, indemnity or other undertaking
required in respect of a Support Facility, or other
Transaction Documents, the sale or issue of Notes or
other trans- action in any way relating to a Trust as
the Trust Manager thinks fit and that are acceptable to
the Trustee (acting reasonably, subject to the
following) even if the subject matter of such
representation, warranty, indemnity or other undertaking
may refer to the Trustee in its personal capacity or
otherwise to the Trustee's personal affairs provided
that any such representation, warranty, indemnity or
undertaking referring to the Trustee in its personal
capacity or to its personal affairs must be acceptable
to the Trustee in its absolute discretion;
(s) (custody) appoint the Servicer in respect of a Trust to
undertake custodial duties in accordance with the
relevant Servicing Agreement;
(t) (transfer Assets) transfer any of the Assets of a Trust
to another Trust in accordance with the relevant
Transaction Documents;
(u) (payment direction) where a person owes an amount to the
Trustee as trustee of any Trust, direct that debtor to
make that payment to another person on behalf of the
Trustee; and
(v) (incidental powers) with the written agreement of the
Trust Manager (that agreement not to be unreasonably
withheld), to do all such things incidental to any of the
above powers or necessary or convenient to be done for or
in connection with any Trust or the Trustee's functions
under this deed.
21.3 Powers to be exercised with others
The Trustee's rights, powers and discretions under this deed shall be
exercised by such persons, or exercised in conjunction with, with the
approval of, or at the discretion of such persons, as contemplated by
this deed or any other Transaction Document.
21.4 Delegation to Related Bodies Corporate
In exercising its powers and performing its obligations and duties
under this deed, the Trustee may, with the approval of the Trust
Manager (not to be unreasonably withheld) and subject always to the
covenants on the part of the Trustee contained in this deed, from
time to time by instrument in writing appoint one or more
corporations each being:
(a) a corporation which is a Related Corporation of the
Trustee; and
(b) which is a trustee company or trustee corporation for the
purposes of any State or Territory legislation governing
the operation of trustee companies,
as its delegate (or, where two or more such corporations are
appointed as its delegate, jointly and severally) to undertake,
perform or discharge any or all of the duties, powers, discretions or
other functions of the Trustee under this deed or otherwise in
relation to a Trust.
The Trustee and/or the corporation (as the case may be) may by the
terms of any such appointment insert such provisions for the
protection and convenience of those dealing with any such
corporation as the Trustee and/or the corporation thinks fit but the
Trustee shall
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despite any such appointment remain liable for any act or omission
of any such corporation as if any such act or omission were an act
or omission of the Trustee.
The Trustee shall be responsible for payment of the fees and expenses
of any corporation appointed under this clause.
21.5 Trustee's power to appoint attorneys and agents
The Trustee may in carrying out and performing its duties and
obligations contained in this deed appoint any person to be its
attorney, agent or delegate for such purposes and with such powers,
authorities and discretions (not exceeding those vested in the
Trustee) as the Trustee thinks fit including, without limitation:
(a) power for the attorney or agent to delegate or
sub-delegate any such powers, authorities or
discretions;
(b) power to authorise the issue in the name of the Trustee
documents bearing facsimile signatures of the Trustee or
of the attorney or agent (either with or without proper
manuscript signatures of their officers); and
(c) such provisions for the protection and convenience of
those dealing with any such attorney, agent, delegate or
sub-delegate as they may think fit,
but excluding the obligation to receive or make payments. Any
appointment or delegation by the Trustee shall be made with due
care.
21.6 Generally unlimited discretion
Subject to the Trustee duly observing its duties, covenants and
obligations under this deed and any other Transaction Document, the
Trustee has absolute discretion as to the exercise or non-exercise of
the trusts, powers, authorities and discretions vested in it by this
deed.
22. TRUSTEE'S COVENANTS
22.1 General
The provisions contained in this clause 22 shall be for the benefit
of the Trust Manager, each Servicer, the Beneficiaries, the
Noteholders and other Creditors jointly and severally.
22.2 To act continuously as Trustee
The Trustee shall act continuously as trustee of each Trust until the
Trust is terminated as provided by this deed or the Trustee has
retired or been removed from office in the manner provided under this
deed.
22.3 To act honestly, diligently and prudently
The Trustee shall:
(a) (act honestly) act honestly and in good faith in the
performance of its duties and in the exercise of its
discretions under this deed;
(b) (prudently) subject to this deed, exercise such diligence
and prudence as a prudent person of business would
exercise in performing its express functions and in
exercising its discretions under this deed, having regard
to the interests of the Beneficiaries, the Noteholders
and other Creditors;
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(c) (conduct its business properly) use its best endeavours
to carry on and conduct its business in so far as it
relates to this deed in a proper and efficient manner;
(d) (records) keep, or ensure that the Trust Manager keeps,
accounting records which correctly record and explain all
amounts paid and received by the Trustee;
(e) (separate Trusts and Assets) keep the Trusts separate
from each other Trust which is constituted under this
deed and account for Assets and liabilities of the Trust
separately from those of other Trusts; and
(f) (do all things necessary to perform obligations) do
everything and take all such actions which are necessary
(including obtaining all appropriate Authorisations) to
ensure that it is able to exercise all its powers and
remedies and perform all its obligations under this deed,
the Transaction Documents and all other deeds, agreements
and other arrangements entered into by the Trustee under
this deed.
22.4 No dispositions of Assets except in accordance with Trust Deed
Except as provided in this deed, the Trustee shall not, nor shall it
permit any of its officers to, sell, mortgage, charge or otherwise
encumber or part with possession of any Asset.
22.5 Indemnity re acts of Trustee's delegates
The Trustee covenants that its officers, employees, agents,
attorneys, delegates and sub-delegates shall duly observe and perform
the covenants and obligations of this deed in the same manner as is
required of the Trustee, and agrees to indemnify the Trust Manager
for its own benefit or for the benefit of the Trusts (as the occasion
may require) against any loss or damage that the Trusts, the Trust
Manager, the Servicers, the Beneficiaries, the Noteholders or other
Creditors incur or sustain in connection with, or arising out of, any
breach or default by such officers, employees, agents, delegates and
persons in the observance or performance of any such covenant or
obligation, to the extent that the Trustee would have been liable if
that breach or default had been the Trustee's own act or omission.
22.6 Forward notices etc to Trust Manager
The Trustee shall without delay forward to the Trust Manager all
notices, reports, circulars and other documents received by it or on
its behalf as trustee of a Trust except to the extent they are
received from the Trust Manager.
22.7 Trustee will implement Trust Manager's directions
Subject to this deed and any other Transaction Document to which it
is a party, the Trustee will act on all directions given to it by the
Trust Manager in accordance with the terms of this deed.
22.8 Custodian
(a) Subject to any relevant Series Notice, the Servicer for a
Trust will act as custodian of the Relevant Documents for
that Trust and any other documents of title to or
evidencing any Assets of that Trust in accordance with
the relevant Servicing Agreement. In the absence of any
agreed procedures the Trustee shall hold those documents
on and in accordance with procedures which a reputable
and prudent person in its position would adopt.
(b) The Trustee may lodge any Relevant Document or any
documents of title to or evidencing any Asset in its
vault or, with the prior consent of the relevant Approved
Seller, the relevant Servicer and the Trust Manager, in
the vault of a subcustodian,
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on behalf of the Trustee or with Austraclear or another
recognised clearing system to the order of the Trustee
or subcustodian on behalf of the Trustee.
(c) Where the Trustee acts as custodian of any Relevant
Document or any documents of title to or evidencing any
Asset, it shall allow the Trust Manager, any relevant
Servicer and any relevant Approved Seller to have access
to them during normal business hours on reasonable
notice.
22.9 Bank accounts
The Trustee will open and operate the bank accounts in accordance
with clause 27.
22.10 Perform Transaction Documents
The Trustee shall properly perform the functions which are necessary
for it to perform under all Transaction Documents in respect of a
Trust.
23. TRUSTEE'S FEES AND EXPENSES
23.1 Trustee's Fee
In consideration of the Trustee performing its functions and duties
under this deed, the Trustee shall be entitled to deduct from each
Trust a fee in the amount and at the times set out in the
corresponding Series Notice.
23.2 Reimbursement of expenses
In addition to the Trustee's remuneration under clause 23.1, the
Trustee shall pay, or be reimbursed, from a Trust all Expenses that
relate to the Trust. These will be paid or reimbursed in accordance
with the corresponding Series Notice.
23.3 Segregation of Trust Expenses
The Trust Manager directs the Trustee to segregate, and apply, all
Expenses to the Trust to which they relate.
24. REMOVAL, RETIREMENT AND REPLACEMENT OF TRUSTEE
24.1 Retirement for Trustee's Default
The Trustee shall retire as trustee of the Trusts if and when
directed to do so by the Trust Manager in writing (which direction
must be copied to each Servicer and, if any of the Trusts are Rated
Trusts, the Designated Rating Agency). A direction may only be given
on the occurrence of one or more of the following events (each a
Trustee's Default):
(a) (Insolvency Event) an Insolvency Event has occurred and
is continuing in relation to the Trustee;
(b) (rating downgrade) any action is taken by or in relation
to the Trustee which causes the rating of any Notes to be
downgraded;
(c) (breach by the Trustee) the Trustee, or any employee,
delegate, agent or officer of the Trustee, breaches any
obligation or duty imposed on the Trustee under this
deed or any other Transaction Document in relation to a
Trust (including any gross negligence, wilful default or
failure to act honestly and in good faith and to
exercise diligence and prudence having regard to the
interests of the relevant Mortgagees (as defined in the
relevant Security Trust Deed)) where the Trust Manager
reasonably
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believes it may have an Adverse Effect and the Trustee
fails or neglects after 30 days' notice from the Trust
Manager to remedy that breach;
(d) (merger or consolidation) the Trustee merges or
consolidates with another entity without obtaining the
consent of the Trust Manager (which consent will not be
unreasonably withheld in the case of a bona fide
corporate reorganisation of the Trustee where no
Insolvency Event has occurred) and ensuring that the
resulting merged or consolidated entity assumes the
Trustee's obligations under the Transaction Documents; or
(e) (change in control) there is a change in effective
control of the Trustee from that subsisting as at the
date of this deed unless approved by the Trust Manager.
24.2 Trust Manager may remove recalcitrant Trustee
(a) In default of the Trustee retiring in accordance with
clause 24.1 within 30 days of being directed by the Trust
Manager in writing to do so the Trust Manager shall have
the right to and shall by deed poll executed by the Trust
Manager remove the Trustee from its office as trustee of
the Trusts.
(b) Where the Trustee is removed because of its default, it
shall (as trustee of the relevant Trust) bear the costs
of its removal. The Trustee indemnifies the Trust Manager
and the Trust for those costs.
24.3 Trust Manager appoints replacement
On the retirement or removal of the Trustee under clause 24.1 or 24.2
the Trust Manager, subject to giving prior notice to the Designated
Rating Agency in relation to a Rated Trust, shall be entitled to
appoint in writing some other statutory trustee to be the Trustee
under this deed provided that appointment will not in the reasonable
opinion of the Trust Manager materially prejudice the interests of
Noteholders. Until the appointment is completed the Trust Manager
shall act as Trustee and will be entitled to the Trustee's Fee for
the period it so acts as Trustee.
24.4 Voluntary Retirement
The Trustee may, subject to clause 24.5, resign on giving to the
Trust Manager (with a copy to the Designated Rating Agency) not less
than 3 months' notice in writing (or such other period as the Trust
Manager and the Trustee may agree) of its intention to do so.
24.5 No resignation by Trustee unless successor appointed
The Trustee must not, subject to clause 24(e), resign under clause
24.4 unless:
(a) either:
(i) it procures that, before the date on which
that termination becomes effective, another
person assumes all of the obligations of the
Trustee under this deed and the relevant
Series Notices as its successor, and
executes such documents as the Trust Manager
requires to become bound by this deed and
the relevant Series Notices, with effect
from that date, as if it had originally been
a party to this deed and the relevant Series
Notice as the Trustee; or
(ii) the Trust Manager elects to perform itself
the obligations and functions which this
deed and the relevant Series Notices
contemplate being performed by the Trustee;
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(b) the appointment of the successor Trustee, or (as the case
may be) the election of the Trust Manager, will not
materially prejudice the interests of Noteholders; and
(c) in the case of the appointment of a successor Trustee
pursuant to paragraph (a), the appointment is approved by
the Trust Manager.
24.6 Trust Manager to act as Trustee if no successor appointed
If at the end of the period of notice specified in a notice given
under clause 24.4, no successor Trustee has been appointed, as
contemplated by clause 24.5(a)(i):
(a) the Trust Manager must itself perform the obligations and
functions which this deed contemplates being performed by
the Trustee, until a successor Trustee is appointed in
accordance with this deed; and
(b) the resignation of the Trustee will become effective.
24.7 Trusts to be vested in new Trustee
The Trustee shall, on retirement or removal, vest the Trusts or cause
these to be vested, in the new Trustee.
24.8 Release of outgoing Trustee
On retirement or removal and provided there has been payment to the
Trust Manager or the new Trustee (as the case may be) of all sums due
to it by the outgoing Trustee at that date, the outgoing Trustee
shall be released from all further obligations under the Transaction
Documents. No release under this clause shall extend to any existing
or antecedent fraud, negligence or wilful default on the part of the
outgoing Trustee or its officers, employees, agents or delegates.
24.9 New Trustee to execute deed
On appointment of the new Trustee of the Trusts the new Trustee
shall:
(a) execute a deed in such form as the Trust Manager may
require under which it undertakes to the Trust Manager
(for the benefit of the Trust Manager, Westpac, the
Servicers, the Beneficiaries and the Noteholders jointly
and severally) to be bound by all the obligations of the
outgoing Trustee under the Transaction Documents from the
date of the deed;
(b) on and from the date of execution of the new deed,
exercise all the powers, enjoy all the rights and be
subject to all duties and obligations of the Trustee
under the Transaction Documents as if the new Trustee had
been originally named as a party to the Transaction
Documents; and
(c) indemnify the outgoing Trustee for the amount of all
Notes issued in the name of the outgoing Trustee and
maturing on or after the date of the retirement or
removal of the outgoing Trustee and for all other
liabilities and expenses incurred by the outgoing
Trustee for which it is entitled to be indemnified out
of the Trusts and which have not been recouped by it,
but the liability of the new Trustee under such
indemnity shall be limited to the same extent provided
for in clause 33.16 and any payment shall rank in the
same priority under clause 30 as the corresponding
liability for which the outgoing Trustee claims such
indemnification.
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24.10 Trust Manager and outgoing Trustee to settle amounts payable
(a) The Trust Manager shall be entitled to settle with the outgoing
Trustee the amount of any sums payable by the outgoing Trustee to
the Trust Manager or the new Trustee or by the Trust Manager to the
outgoing Trustee and to give or accept from the outgoing Trustee a
discharge and any such agreement or discharge shall (except in the
case of any existing or antecedent fraud, negligence or wilful
default on the part of the outgoing Trustee or its officers,
employees, agents and delegates) be conclusive and binding on all
persons (including the Trust Manager, the new Trustee, Westpac, the
Beneficiary and the Noteholders).
(b) Even though no new Trustee is appointed in its place, the Trust
Manager may make such arrangements as it thinks fit for the discharge
of the outgoing Trustee from any existing liability and any liability
which might arise under this deed and any discharge of the outgoing
Trustee in accordance with such arrangements shall (except as stated
above) be conclusive and binding on all persons claiming under the
Transaction Documents.
24.11 Outgoing Trustee to retain lien
Notwithstanding the retirement or removal of the outgoing Trustee and
the indemnity in favour of the Trustee by the new Trustee as
contemplated by clause 24.8(c), the outgoing Trustee will retain a
lien over a Trust to meet claims of any Creditors of the Trustee as
trustee of the Trust to the extent that the claims of those Creditors
are not properly and duly satisfied by the incoming Trustee.
24.12 Delivery of books, documents, etc
(a) On the retirement or removal of the Trustee in accordance with the
provisions of this clause 24 the outgoing Trustee shall immediately
deliver to the new Trustee appointed in respect of any Trust (or the
Trust Manager if it is acting as Trustee) the Data Base and all other
books, documents, records and property relating to the Trusts. Any
related costs and expenses incurred by the incoming Trustee (but not
the outgoing Trustee) are to be paid out of the relevant Trust.
(b) The outgoing Trustee shall be entitled to take, and retain as its own
property, copies of such books, documents and records. Each of the
Trust Manager and the new Trustee shall produce the originals of such
books, documents and records in its possession on the giving of
reasonable written notice by the outgoing Trustee.
24.13 Notice to Noteholders of New Trustee
As soon as practicable after the appointment of a new Trustee under
this clause 24, the new Trustee shall notify the Noteholders of its
appointment.
PART G - SERVICERS AND LEAD MANAGERS
25. APPOINTMENT OF SERVICER
Each Servicer shall be appointed, and shall act, as servicing agent
for the Trustee in respect of any Receivables, Receivable Securities
and Related Securities on and subject to the terms of the relevant
Servicing Agreement.
26. LEAD MANAGER
26.1 Appointment of Lead Manager
(a) The Trust Manager may appoint any one or more persons to
be Lead Manager in relation to any issue of Notes, with
remuneration determined by the Trust Manager.
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An issue of Notes may have more than one Lead Manager.
An issue of Notes under a Trust may have a different
Lead Manager, or different Lead Managers, from other
issues of Notes under that Trust.
(b) The Trust Manager may terminate the appointment of a Lead
Manager at any time.
26.2 Fees
The Trustee shall be entitled to pay from each Trust for which any
person is a Lead Manager fees (if any) to that person in the amount
and at the times set out in the corresponding Note Issue Direction.
PART H - ADMINISTRATION OF TRUSTS
27. BANK ACCOUNTS
27.1 Opening of bank accounts
(a) (Collection Account) The Trustee must open at least one
account with an Approved Bank into which Collections can
be paid.
(b) (Separate bank accounts for each Trust) The Trustee must
open and maintain a separate account with an Approved
Bank in respect of each Trust.
(c) (Additional bank accounts) The Trustee may open such
additional accounts with an Approved Bank in respect of a
Trust as it sees fit or as required by the Transaction
Documents. In relation to a Rated Trust, only the
accounts specified in the Transaction Documents for that
Trust may be opened.
(d) (Change bank accounts) If an account in respect of a
Trust is held with a bank which ceases to be an Approved
Bank then the Trustee shall as soon as practicable on
becoming aware of that fact (and in any event within 30
days):
(i) close that account: and
(ii transfer all funds standing to the credit of
that account to another existing account in
respect of that Trust with an Approved Bank
or, if none, the Trustee shall immediately
open an account with an Approved Bank.
27.2 Location of bank accounts
(a) (Central bank account) Unless otherwise directed in
writing by the Trust Manager, the central bank account of
each Trust shall for so long as Westpac is an Approved
Bank be opened and maintained at a branch in New South
Wales of Westpac.
(b) (Interstate branch bank accounts) The Trustee may, if
necessary or desirable for the operation of a Trust,
open bank accounts with a branch outside New South Wales
of an Approved Bank (which shall unless the Trust
Manager otherwise determines be Westpac for so long as
it is an Approved Bank) provided that if such accounts
are opened it shall enter into arrangements so that as
soon as practicable after the receipt of moneys to the
credit of such accounts, such moneys are to be
transferred to the credit of the central bank accounts
of the Trust in New South Wales (subject to a direction
to the contrary by the Trust Manager under clause
27.2(a)).
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27.3 Name of bank accounts
Each bank account for a Trust shall be opened by the Trustee in its
name as trustee of the Trust.
27.4 Purpose of bank accounts
No bank account shall be used for any purpose other than for the
relevant Trust in respect of which the account is maintained and
other than in accordance with this deed.
27.5 Authorised signatories
The only authorised signatories for any bank account are to be
officers or employees of the Trustee or a Related Corporation of the
Trustee.
27.6 Trust Manager not entitled to have access
Except as expressly provided in this deed the Trust Manager may not
deal with any bank account or the moneys in any bank account in any
way.
27.7 Bank statements and account information
(a) (Copies of bank statements) The Trustee shall promptly on
receipt of a statement in respect of each bank account
for a Trust provide a copy to the Trust Manager (and any
other person from time to time specified by the Trust
Manager).
(b) (Direct access) Subject to the Privacy Act, the Trustee
authorises the Trust Manager (and any other person from
time to time specified by the Trust Manager) to obtain
direct from an Approved Bank, statements and information
in relation to each bank account of a Trust.
27.8 Deposits
Subject to this deed, the Servicing Agreement and any relevant Series
Notice and except in respect of business transacted through the
Austraclear System, the Trustee shall pay (or cause the relevant
Servicer to pay) into a bank account of a Trust within one Business
Day of receipt the following moneys and proceeds:
(a) (subscription moneys) all subscription moneys raised in
respect of Notes issued by the Trustee as trustee of the
Trust;
(b) (proceeds) all proceeds of the Authorised Investments
and Support Facilities in respect of the Trust; and
(c) (other moneys) all other moneys received by the Trustee
in respect of the Trust.
27.9 Withdrawals
Subject to this deed, the Trustee shall withdraw funds from a bank
account of a Trust and apply the same when necessary for the
following outgoings:
(a) (Authorised Investments) purchasing Authorised
Investments and making payments required in connection
with Authorised Investments;
(b) (payments to Creditors etc) making payments to the
Creditors or the Beneficiary in relation to the Trust;
and
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(c) (other payments) making payments to Austraclear or any
other person of Expenses or other amounts entitled to be
paid to or retained for their respective benefit under
this deed or any other Transaction Document.
27.10 All transactions through central accounts
(a) (Receipts and outgoings) Unless otherwise directed by
the Trust Manager, all moneys and proceeds in relation
to a Trust referred to in clause 27.8 shall, subject to
Clause 27.10(b), be credited to the central bank account
of the Trust (whether credited direct to the central
account or transferred from an interstate bank account
of the Trust) and all outgoings of a Trust referred to
in clause 27.9 shall, subject to clause 27.10(b), be
paid from the central bank account of the Trust (either
by direct payment or by transfer to an interstate bank
account of the Trust).
(b) (Bank charges, etc) Any amounts referred to in paragraph
(i) of the definition of Expenses in clause 1.1 to the
extent they relate to an interstate bank account of a
Trust may be deducted or withdrawn direct from the
interstate bank account.
28. AUDITOR
28.1 Auditor must be registered
The Auditor of each Trust shall be a firm of chartered accountants
some of whose members are Registered Company Auditors.
28.2 Appointment of Auditor
The Auditor of each Trust shall be a person nominated by the Trust
Manager and shall be appointed by the Trustee within three months of
the creation of that Trust under this deed on such terms and
conditions as the Trustee and the Trust Manager agree.
The Auditor holds office subject to this clause.
28.3 Removal and retirement of Auditor
(a) (Removal by Trustee) Subject to paragraph (b) the Trustee
may, on giving one month's notice to the Auditor and the
Designated Rating Agency, remove the Auditor as Auditor
of a Trust on reasonable grounds (to be notified to the
Trust Manager before notice of removal is given to the
Auditors).
(b) (Removal at request of Trust Manager or Noteholders) The
Trustee may, on the recommendation of the Trust Manager
and shall, if so requested by an Extraordinary Resolution
of Noteholders of a Trust, remove the Auditor as Auditor
of a Trust.
(c) (Retirement) An Auditor may retire at any time on giving
six months' written notice (or such shorter period
approved by the Trust Manager and the Trustee) to the
Trustee of its intention to retire as Auditor of a Trust.
28.4 Appointment of replacement Auditor
The Trustee shall fill any vacancy in the office of Auditor by
appointing:
(a) where the Auditor was removed by Extraordinary Resolution
of Noteholders, and a person was nominated to be
appointed as Auditor in that resolution, that person; or
(b) in any other case, a person qualified to be appointed
Auditor under this clause.
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28.5 Auditor may have other offices
An Auditor may also be the auditor of the Trustee, the Trust Manager,
a Servicer, a Lead Manager or any of their Related Bodies Corporate
or of any other trust (whether of a similar nature to the Trusts or
otherwise) but a member of the firm appointed as an Auditor may not
be an officer or employee, or the partner of an officer or an
employee, of the Trustee, the Trust Manager, a Servicer, the Lead
Manager (if any) or any of their Related Bodies.
28.6 Access to working papers
Each Auditor shall be appointed on the basis that it will make its
working papers and reports available for inspection by the Trustee
and the Trust Manager.
28.7 Auditor's remuneration and costs
The Trustee may pay out of a Trust, or reimburse itself from a Trust,
the reasonable remuneration of the Auditor of the Trust as agreed
between the Trust Manager and the Auditor and notified to the Trustee
and any reasonable expenses of the Auditor of the Trust sustained in
the course of the performance of the duties of the Auditor.
28.8 Access to information
The Auditor of a Trust shall be entitled to require from the Trust
Manager and the Trustee, and they shall furnish to the Auditor, such
information, accounts and explanations as may be necessary for the
performance by the Auditor of its duties under this deed.
29. ACCOUNTS AND AUDIT
29.1 Keeping Accounts
The Trust Manager and the Trustee shall, having regard to their
separate functions, keep or cause to be kept accounting records which
provide a true and fair view of all sums of money received and
expended by or on behalf of each Trust, the matters in respect of
which such receipt and expenditure takes place, of all sales and
purchases of Authorised Investments and of the assets and liabilities
of each Trust. The Trust Manager and the Trustee shall furnish each
to the other from time to time any information necessary for this
purpose.
29.2 Location and inspection of books
The accounting records of each Trust shall be kept at the office of
the Trustee or the Trust Manager (as the case may be) or at such
other place as the Trustee and the Trust Manager may from time to
time agree and shall be open to the inspection of the Trust Manager,
the Trustee, the Auditor of the Trust and the relevant Beneficiary on
reasonable notice and during usual business hours.
29.3 Accounts to be kept in accordance with Approved Accounting Standards
The accounting records of each Trust shall be maintained in
accordance with the Approved Accounting Standards and in a manner
which will enable true and fair Accounts of the Trust to be prepared
and audited in accordance with this deed.
29.4 Preparation of annual Accounts
The Trust Manager shall cause the preparation of the Accounts for
each Financial Year of each Trust.
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29.5 Annual audited Accounts
The Trust Manager shall require the Auditor to audit the Accounts
prepared by the Trust Manager in respect of each Trust within 3
months of the end of each financial year of the Trust.
29.6 Inspection and copies of audited Accounts
A copy of the audited Accounts of a Trust and any Auditor's report
shall be available for inspection, but not copying, by the
Noteholders in relation to the Trust at the offices of the Trust
Manager.
29.7 Tax returns
The Trust Manager shall, or shall require the Auditor to:
(a) prepare and lodge all necessary income tax returns and
other statutory returns for each Trust; and
(b) confirm that all the income of each Trust has either been
distributed or offset by deductible losses or expenses or
that no Trust has any liability to pay income tax.
29.8 Audit
The Trust Manager must require the Auditor, as part of each annual
audit carried out by the Auditor in relation to each Trust, to
provide a written report to the Trustee, the Security Trustee and the
Designated Rating Agency as to:
(a) the nature and extent of the audit performed (as
specified by the Trust Manager);
(b) any breaches of the obligations of any of the parties to
the Transaction Documents for that Trust identified by
the Auditor within the parameters of the audit specified
under paragraph (a); and
(c) any errors in or omissions from any reports or
information provided by any party to a Transaction
Document for that Trust to another party under that
Transaction Document identified by the Auditor within the
parameters of the audit specified under paragraph (a),
that report to be in the form agreed by the Trustee and the Trust
Manager and previously notified to the Designated Rating Agency.
29.9 No Responsibility for Servicer
Provided that it complies with its obligations under clause 18, the
Trust Manager shall have no liability to any person under this clause
29 if it fails to keep records relating to the Assets of a Trust and
that failure is caused by the failure of the relevant Servicer to
keep any records and provide any reports which it is obliged to keep
and provide under the relevant Servicing Agreement.
30. PAYMENTS
30.1 CASHFLOW ALLOCATION METHODOLOGY
Collections in relation to a Trust and other amounts credited to the
Collection Account for a Trust will be allocated by the Trust Manager
on behalf of the Trustee, and paid by the Trustee as directed by the
Trust Manager, in accordance with the Series Notice for that Trust.
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30.2 Payments to Beneficiary
(a) (Distributable Income absolutely vested) The Beneficiary
of a Trust shall as at the end of each Financial Year of
that Trust have an absolute vested interest in the
Distributable Income of that Trust for that Financial
Year.
(b) (Distributable Income due as at close of Financial Year)
The Distributable Income of a Trust for a Financial Year
(to the extent not previously distributed) shall, subject
to clause 30.3, constitute a debt due as at the end of
the Financial Year by the Trustee as trustee of the Trust
to the Beneficiary entitled to the Distributable Income
under clause 30.2(a) and shall, subject to clause 30.3,
be payable under clause 30.2(c).
(c) (Payment of Distributable Income) Subject to clause 30.3,
the Trustee may make interim distribution of the
Distributable Income of a Trust to the relevant
Beneficiary in accordance with the terms of the Series
Notice for that Trust and shall as soon as practicable
after the end of a Financial Year transfer an amount
representing the Distributable Income of the Trust (to
the extent not previously distributed) from the central
bank account of the Trust to the bank accounts of the
Beneficiary of the Trust.
(d) (Residual capital) On the termination of a Trust, the
surplus capital of the Trust remaining after satisfaction
by the Trustee of all its obligations in respect of the
Trust shall be paid to the Beneficiary of the Trust.
30.3 Subordination of Beneficiary's Entitlements
(a) No moneys may be paid out of a Trust during a Financial
Year to a Beneficiary under clause 30.2, whilst there is
any amount due, but unpaid, which is in accordance with
clause 30.1 to be paid in priority to those amounts and
before the Trustee is satisfied, after consulting with
the Trust Manager, that sufficient allowance has been
made for those priority amounts in relation to the
Trust, accruing during the Financial Year. To the extent
that there is an amount payable under clause 30.1 which
is to be paid in priority to the amounts payable to the
Beneficiary, the Beneficiary directs the Trustee to meet
the amount payable under clause 30.1 as an application
of the Beneficiary's entitlement to the Distributable
Income of the Trust.
(b) Notwithstanding paragraph (a), once an amount is paid out
of a Trust to a Beneficiary during a Financial Year, that
amount may not be recovered from that Beneficiary for any
reason or by any person except to the extent that amount
was paid in error.
30.4 Insufficient moneys
If after the application of the provisions of clauses 30.1 and 30.2
there is insufficient money available to the Trustee in respect of a
Trust to pay the full amount due to Noteholders in the Trust, the
deficiency shall, subject to the Series Notice for the Notes or any
Class of the Notes issued in relation to the Trust, be borne by the
Noteholders in the manner set out in the relevant Series Notice.
30.5 Income or capital
The Trust Manager shall determine whether any amount is of an income
or capital nature in accordance with clause 30.6 and, subject only
to a contrary determination by the Auditor of
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the relevant Trust in accordance with clause 30.6, the determination
by the Trust Manager shall be final and binding.
30.6 Income of Trust
(a) The income of each Trust for each Financial Year will include:
(i) any amount (including without limitation a
profit made by the Trustee) which is
included in the assessable income of the
Trust for the purposes of the Taxation Act
(other than Part IIIA);
(ii any realised capital gains derived by the
Trustee to the extent to which the same are
reflected in the net capital gain (if any)
calculated under Part IIIA of the Taxation
Act which is included in the assessable
income of the Trust for the purposes of the
Taxation Act,
and otherwise will be determined in accordance with
Approved Accounting Standards. All periodic income of the
Trust will be deemed to accrue from day to day and will
be brought to account as arising on a daily basis where
that is required for tax purposes (using a daily accruals
method of accounting where that is the method required
for tax purposes).
(b) The expenses of each Trust for each Financial Year will
include losses or outgoings which are allowable
deductions in calculating the net income of the Trust
under Section 95(1) of the Taxation Act and otherwise
will be determined in accordance with Approved
Accounting Standards. All periodic expenses of the Trust
will be deemed to accrue from day to day and will be
brought to account on a daily basis where that is
required for tax purposes (using a daily accruals method
of accounting where that is the method required for tax
purposes).
(c) The Trust Manager will determine the Net Accounting
Income for each Trust for each Financial Year by applying
against the income of the Trust for that Financial Year:
(i) so much of the expenses specified in
paragraph (b) as are referable to that
Financial Year; and
(ii) any Net Accounting Loss carried forward from
a preceding Financial Year.
The balance of the income of the Trust for the Financial
Year remaining after those applications will constitute
the Net Accounting Income for that Financial Year except
where the amount is negative, in which case, it will be
the Net Accounting Loss for that Financial Year.
(d) The Net Accounting Income in respect of a Financial Year
for each Trust will constitute the distributable income
(Distributable Income) of the Trust for that Financial
Year.
31. INDEMNITY
The Trust Manager fully indemnifies the Trustee from and against any
expense, loss, damage, liability, fines, forfeiture, legal fees and
related costs which the Trustee may incur (whether directly or
indirectly) as a consequence of:
(a) any Trust Manager's Default; and
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(b) a failure by the Trust Manager to perform its duties or
comply with its obligations under any Transaction
Document.
PART I - REPRESENTATIONS, POWERS AND INDEMNITIES
32. REPRESENTATIONS AND WARRANTIES
32.1 General representations and warranties
Each party makes the following representations and warranties for the
benefit of the others:
(a) (status) it is a corporation duly incorporated and
existing under the laws of its place of incorporation and
the Commonwealth of Australia or, in the case of Westpac
(in whatever capacity), the Bank of New South Wales Act
1850;
(b) (power) it has the power to enter into and perform its
obligations under each Transaction Document to which it
is a party, to carry out the transactions contemplated by
this deed and to carry on its business as now conducted
or contemplated;
(c) (corporate authorisations) it has taken all necessary
action to authorise the entry into and performance of
each Transaction Document to which it is a party and to
carry out the transactions contemplated by such
Transaction Documents;
(d) (obligations binding) its obligations under each
Transaction Document to which it is a party are legal,
valid, binding and enforceable in accordance with their
respective terms;
(e) (transactions permitted) the execution and performance by
it of each Transaction Document to which it is a party
and each transaction contemplated under those documents
will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default
under, any provision of:
(i) its memorandum or articles of association
or, in the case of Westpac (in whatever
capacity), the Bank of New South Wales Act
1850; or
(ii) any other document or agreement which is
binding on it or its assets,
which is material in the context of performing its
duties under each Transaction Document to which it is a
party; and
(f) (Authorisations) it holds all Authorisations necessary to
carry on its business and to act as required by each
Transaction Document to which it is a party and by law to
comply with the requirements of any legislation and
subordinate legislation (including, without limitation
and to the extent relevant, any Consumer Credit
Legislation).
32.2 Trustee entitled to assume accuracy of representations and warranties
Each Noteholder acknowledges that the Trustee is not under any
obligation to:
(a) make any enquiries which a prudent purchaser of such
assets would be expected to make;
(b) conduct any investigation to determine if the
representations and warranties given by the Approved
Seller in relation to the Receivable, Receivable
Securities and Related Securities are incorrect; or
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(c) to test the truth of those representations and warranties,
and is entitled to conclusively accept and rely entirely on the
Receivables satisfying the Eligibility Criteria and on the accuracy
of the representations and warranties made by a Servicer or an
Approved Seller, unless the Trustee has actual notice of any event to
the contrary.
33. TRUSTEE'S AND TRUST MANAGER'S POWERS, LIABILITY AND INDEMNITY
GENERALLY
Without prejudice to any indemnity allowed by law or elsewhere in
this deed given to the Trustee or the Trust Manager, it is expressly
declared as follows.
33.1 Reliance on certificates
The Trustee and the Trust Manager shall not incur any liability in
respect of any action taken or thing suffered by it in reliance on
any notice, resolution, direction, consent, certificate, receipt,
affidavit, statement, valuation report or other document (including
without limitation, any of the above submitted or provided by the
Trust Manager (in the case of the Trustee only), by the Trustee (in
the case only of the Trust Manager) or by an Approved Seller or a
Servicer) which it has no reason to believe is not genuine, signed by
the proper parties and with appropriate authority.
Without limiting the generality of the above the Trustee may
conclusively rely on:
(a) (statements by the Trust Manager) a statement by the
Trust Manager that an investment of the Trust is an
Authorised Investment;
(b) (Note Issue Directions) a Note Issue Direction issued by
the Trust Manager; and
(c) (certificates) a certificate by the Trust Manager under
this deed.
In preparing any notice, certificate, advice or proposal the Trustee
and the Trust Manager shall be entitled to assume that each person
under any Authorised Investment, Support Facility, Receivable,
Receivable Security, Related Securities, other Transaction Document
or any other deed, agreement or arrangement incidental to any of the
above or to any Trust, will perform their obligations under those
documents in full by the due date and otherwise in accordance with
their terms.
33.2 Trustee and Trust Manager may assume signed documents to be genuine
(a) (Reliance on documents) Subject to sub-clause (b):
(i) (Trustee may assume authenticity) the
Trustee shall be entitled to assume the
authenticity and validity of any signature
on any application, request or other
instrument or document delivered to the
Trustee (other than a document executed or
purporting to be executed by or on behalf of
a Servicer, an Approved Seller or the Trust
Manager, as to which clause 33.3 shall
apply);
(ii) (Trustee not liable for loss on forgeries)
the Trustee shall not be in any way liable
to make good out of its own resources any
loss incurred by any person in the event of
any signature on any document being forged
or otherwise failing to bind the person
whose signature it purports to be or the
person on whose behalf it purports to be
executed;
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(iii) (Trust Manager may assume authenticity) the
Trust Manager shall be entitled to rely on
the authenticity and validity of any
signature on any application, request or
other instrument or document delivered to
the Trust Manager (other than a document
executed or purporting to be executed by or
on behalf of the Trustee, an Approved Seller
or a Servicer, as to which clause 33.4 shall
apply); and
(iv (Trust Manager not liable for loss on
forgeries) the Trust Manager shall not be in
any way liable to make good out of its own
resources any loss incurred by any person in
the event of any signature on any document
being forged or otherwise failing to bind
the person whose signature it purports to be
or the person on whose behalf it purports to
be executed.
(b) (Limitations on assumptions where actual knowledge) The
Trustee or the Trust Manager shall not be entitled to the
benefit of paragraph (a) in relation to an application,
request or other instrument or document if it was
actually aware that the signature was not genuine.
33.3 Trustee's reliance on Trust Manager, Approved Seller or Servicer
(a) (Trust Manager's Authorised Signatories are sufficient
evidence) Whenever any certificate, notice, proposal,
direction, instruction or other communication is to be
given by the Trust Manager, an Approved Seller or a
Servicer to the Trustee, the Trustee may accept as
sufficient evidence as to the form and content of a
document unless it has reason to believe that the
relevant document was not signed on behalf of the Trust
Manager, the Approved Seller or the Servicer (as the
case may be) or by any Authorised Signatory of the Trust
Manager, the Approved Seller or the Servicer (as the
case may be).
(b) (Trustee not liable for loss) The Trustee shall not be
responsible for any loss arising from any act, neglect,
mistake or discrepancy of the Trust Manager, an Approved
Seller or a Servicer or any officer, employee, agent or
delegate of the Trust Manager, the Approved Seller or
the Servicer in preparing any such document or in
compiling, verifying or calculating any matter or
information contained in any such document, if the
officers of the Trustee responsible for the
administration of the Trust are not actually aware, or
should not reasonably have been aware, that such
document is not genuine and correct, whether or not an
error in any such information, document, form or list is
reproduced by the Trustee in any step taken by it.
33.4 Trust Manager's reliance on Trustee, Approved Seller or Servicer
(a) (Trustee's Authorised Signatories are sufficient
evidence) Whenever any certificate, notice, proposal,
direction, instruction or other communication is to be
given by the Trustee, an Approved Seller or a Servicer
to the Trust Manager, the Trust Manager may (unless, in
the case of such communication from the Servicer, the
Trust Manager and the Servicer are the same entity)
accept as sufficient evidence as to the form and content
of a document unless it has reason to believe that the
relevant document was not signed on behalf of the
Trustee, the Approved Seller or the Servicer (as the
case may be) or by any Authorised Signatory of the
Trustee, the Approved Seller or the Servicer (as the
case may be).
(b) (Trust Manager not liable for loss) The Trust Manager
shall not be responsible for any loss arising from any
act, neglect, mistake or discrepancy of the Trustee, an
Approved Seller or a Servicer or any officer, employee,
agent or delegate of the Trustee, the Approved Seller or
the Servicer in preparing any such document or in
compiling, verifying or calculating any matter or
information contained in any such
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document, if the officers of the Trust Manager
responsible for the administration of the Trust are not
actually aware, or should not reasonably have been
aware, that such document is not genuine and correct,
whether or not an error in any such information,
document, form or list is reproduced by the Trust
Manager in any step taken by it.
33.5 Compliance with laws
The Trustee and the Trust Manager shall not incur any liability to
anyone in respect of any failure to perform or to do any act or thing
which by reason of any provision of any relevant present or future
law of any place or any ordinance, rule, regulation or by law or of
any decree, order or judgment of any competent court or other
tribunal, the Trustee and/or the Trust Manager shall be hindered,
prevented or forbidden from doing or performing.
33.6 Taxes
The Trustee and the Trust Manager shall not be liable to account to
any person for any payments made in good faith to any duly empowered
Government Agency of any Australian Jurisdiction or any other place
for Taxes or other charges on any of the Trusts or on any Notes or
with respect to any transaction under or arising from this deed or
any other Transaction Document notwithstanding that any such payment
ought or need not have been made.
33.7 Reliance on experts
The Trustee and the Trust Manager may act on the opinion or statement
or certificate or advice of or information obtained from the Trust
Manager (in the case of the Trustee only), the Trustee (in the case
of the Trust Manager only), a Servicer, barristers or solicitors
(whether instructed by the Trust Manager or the Trustee), bankers,
accountants, brokers, valuers and other persons believed by it in
good faith to be expert or properly informed in relation to the
matters on which they are consulted and the Trustee and the Trust
Manager shall not be liable for anything done or suffered by it in
good faith in reliance on such opinion, statement, certificate,
advice or information.
33.8 Oversights of others
Subject to this deed, the Trustee and the Trust Manager shall not be
responsible for any act, omission, misconduct, mistake, oversight,
error of judgment, forgetfulness or want of prudence on the part of
the Trust Manager (in the case of the Trustee only), the Trustee (in
the case of the Trust Manager only), a Servicer or agent appointed by
the Trustee or the Trust Manager or on whom the Trustee or the Trust
Manager is entitled to rely under this deed (other than a Related
Corporation), attorney, banker, receiver, barrister, solicitor, agent
or other person acting as agent or adviser to the Trustee or the
Trust Manager.
33.9 Powers, authorities and discretions
Except as otherwise provided in this deed and in the absence of
fraud, negligence or wilful default, the Trustee and the Trust
Manager shall not be in any way responsible for any loss (whether
consequential or otherwise), costs, damages or inconvenience that may
result from the exercise or non-exercise of any powers, authorities
and discretions vested in it.
33.10 Impossibility or impracticability
If for any reason whatsoever it becomes impossible or impracticable
to carry out any or all of the provisions of this deed or any other
Transaction Document the Trustee and the Trust Manager shall not be
under any liability and, except to the extent of their own fraud,
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negligence or wilful default, nor shall either of them incur any
liability by reason of any error of law or any matter or thing done
or suffered or omitted to be done in good faith by either of them or
their respective officers, employees, agents or delegates.
33.11 Duties and charges
The Trustee and the Trust Manager shall not be required to effect any
transaction or dealing with any Notes or with all or any part of the
Authorised Investments of a Trust on behalf or at the request of any
Noteholder or other person unless such Noteholder or other person (as
the case may be) shall first have paid in cash or otherwise provided
to its satisfaction for all duties, Taxes, governmental charges,
brokerage, transfer fees, registration fees and other charges
(collectively duties and charges) which have or may become payable in
respect of such transaction or dealing but the Trustee and the Trust
Manager shall be entitled if it so thinks fit to pay and discharge
all or any of such duties and charges on behalf of the Noteholder or
other person and to retain the amount so paid of any moneys or
property to which such Noteholder or other person may be or become
entitled under this deed.
33.12 Legal and other proceedings
(a) (Indemnity for legal costs) The Trustee and the Trust
Manager shall be indemnified out of a Trust for all legal
costs and disbursements and all other cost,
disbursements, outgoings and expenses incurred by the
Trustee and the Trust Manager in connection with:
(i) the enforcement or contemplated enforcement
of, or preservation of rights under; and
(ii) without limiting the generality of paragraph
(i) above, the initiation, defence, carriage
and settlement of any action, suit,
proceeding or dispute in respect of,
this deed or any other Transaction Document or otherwise
under or in respect of the Trust provided that the
enforcement, contemplated enforcement or preservation by
the Trustee of the rights referred to in paragraph (i) or
the court proceedings referred to in paragraph (ii)
(other than in each case the defence of any action, suit,
proceeding or dispute brought against the Trustee), and
the basis of incurring any those costs, disbursements,
outgoings and expenses by the Trustee:
(iii) has been approved in advance by the Trust
Manager or by an Extraordinary Resolution of
the Noteholders of the Trust; or
(iv) is regarded by the Trustee as necessary to
protect the interests of the Noteholders in
relation to the Trust following a breach by
the Trust Manager of its obligations under
this deed and the Trustee reasonably
believes that any delay in seeking an
approval under paragraph (iii) will be
prejudicial to the interests of the
Noteholders in relation to the Trust.
(b) (Defence of proceedings alleging negligence etc.) Each
of the Trustee and the Trust Manager shall be entitled
to claim in respect of the above indemnity from the
relevant Trust for its expenses and liabilities incurred
in defending any action, suit, proceeding or dispute in
which fraud, negligence or wilful default is alleged or
claimed against it, but on the same being proved,
accepted or admitted by it, it shall from its personal
assets immediately repay to such Trust the amount
previously paid by such Trust to it in respect of that
indemnity.
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33.13 No liability except for negligence etc.
In the absence of fraud, negligence or wilful default on its part or
on the part of any of its officers, employees, agents or delegates,
none of the Trustee and the Trust Manager shall be liable personally
in the event of failure to pay moneys on the due date for payment to
any Noteholder, any Beneficiary, the Trust Manager (in the case of
the Trustee), the Trustee (in the case of the Trust Manager) or any
other person or for any loss howsoever caused in respect of any of
the Trusts or to any Noteholder, any Beneficiary, the Trust Manager
(in the case of the Trustee), the Trustee (in the case of the Trust
Manager) or other person.
33.14 Further limitations on Trustee's liability
Subject to clause 33.3, the Trustee shall not be liable:
(a) (for loss on its discretions) for any losses, costs,
liabilities or expenses arising out of the exercise or
non-exercise of its discretion or for any other act or
omission on its part under this deed, any other
Transaction Document or any other document except where
the exercise or non-exercise of any discretion, or any
act or omission, by the Trustee, or any of its officers,
employees, agents or delegates, constitutes fraud,
negligence or wilful default;
(b) (for loss on Trust Manager's discretions) for any losses,
costs liabilities or expenses arising out of the exercise
or non-exercise of a discretion by the Trust Manager or
the act or omission of the Trust Manager except to the
extent that it is caused by the Trustee's, or any of its
officer's, employee's, agent's or delegate's, fraud,
negligence or wilful default;
(c) (for loss on directions) for any losses, costs, damages
or expenses caused by its acting on any instruction or
direction given to it by:
(i) the Trust Manager, a Servicer or an Approved
Seller under this deed, any other
Transaction Document or any other document;
(ii) by any person under a Support Facility,
Receivable or Receivable Security; or
(iii) an Obligor,
except to the extent that it is caused by the Trustee's,
or any of its officer's, employee's, agent's or
delegate's, fraud, negligence or wilful default;
(d) (for certain defaults) for any Trust Manager's Default,
Servicer Transfer Event or Title Perfection Event; or
(e) (for acts of Servicer) without limiting the Trustee's
obligations under the Transaction Documents, for any act,
omission or default of a Servicer in relation to its
custodial duties or its obligations under the relevant
Servicing Agreement.
Nothing in this clause 33.14 alone (but without limiting the
operation of any other clause of this deed) shall imply a duty on the
Trustee to supervise the Trust Manager in the performance of the
Trust Manager's functions and duties, and the exercise by the Trust
Manager of its discretions.
33.15 Further limitations on Trust Manager's liability
Subject to clause 33.4, the Trust Manager shall not be liable:
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(a) (for loss on its discretions) for any losses, costs,
liabilities or expenses arising out of the exercise or
non-exercise of its discretion or for any other act or
omission on its part under this deed, any other
Transaction Document or any other document except where
the exercise or non-exercise of any discretion, or any
act or omission, by the Trust Manager, or any of its
officers, employees, agents or delegates, constitutes
fraud, negligence or wilful default;
(b) (for loss on Trustee's discretions) for any losses,
costs, liabilities or expenses arising out of the
exercise or non-exercise of a discretion by the Trustee
or the act or omission of the Trustee except to the
extent that it is caused by the Trust Manager's, or any
of its officer's, employee's, agent's or delegate's,
fraud, negligence or wilful default;
(c) (for loss on Trustee's directions) for any losses, costs,
damages or expenses caused by its acting on any
instruction or direction given to it by:
(i) the Trustee, the Servicer or an Approved
Seller under this deed, any other
Transaction Document or any other document;
(ii) by any person under a Support Facility,
Receivable or Receivable Security; or
(iii) an Obligor,
except to the extent that it is caused by the Trust
Manager's, or any of its officer's, employee's, agent's
or delegate's, fraud, negligence or wilful default;
(d) (for certain defaults) for any Trustee's Default or
Title Perfection Event; or
(e) (for acts of Servicer) for any act, omission or default
of a Servicer in relation to its custodial duties or its
obligations under the relevant Servicing Agreement.
Nothing in this clause 33.15 alone (but without limiting the
operation of any other clause of this deed) shall imply a duty on the
Trust Manager to supervise the Trustee in the performance of the
Trustee's functions and duties, and the exercise by the Trustee of
its discretions.
33.16 Liability of Trustee limited to its right of indemnity
(a) This deed applies to the Trustee only in its capacity as
trustee of each Trust and in no other capacity. A
liability arising under or in connection with this deed
or a Trust can be enforced against the Trustee only to
the extent to which it can be satisfied out of property
of the relevant Trust out of which the Trustee is
actually indemnified for the liability. This limitation
of the Trustee's liability applies despite any other
provision of this deed and extends to all liabilities
and obligations of the Trustee in any way connected with
any representation, warranty, conduct, omission,
agreement or transaction related to this deed or a
Trust.
(b) The parties (including without limitation, the
Beneficiary) other than the Trustee may not sue the
Trustee personally or seek the appointment of a
liquidator, administrator, receiver or similar person to
the Trustee or prove in any liquidation, administration
or arrangement of or affecting the Trustee.
(c) The provisions of this clause 33.16 shall not apply to
any obligation or liability of the Trustee to the extent
that it is not satisfied because under this deed or the
relevant Series Notice or by operation of law there is a
reduction in the extent of the Trustee's indemnification
out of the assets of the Trust, as a result of the
Trustee's fraud, negligence or breach of trust.
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(d) It is acknowledged that the Trust Manager is responsible
under this deed for performing a variety of obligations
relating to each Trust. No act or omission of the
Trustee (including any related failure to satisfy its
obligations under this agreement) will be considered
fraud, negligence or breach of trust of the Trustee for
the purpose of paragraph (c) of this clause 33.16 to the
extent to which the act or omission was caused or
contributed to by any failure by the Trust Manager or
any other person who provides services in respect of the
Trust (other than a person who has been delegated or
appointed by the Trustee and for whom the Trustee is
responsible under this deed or the relevant Transaction
Documents) to fulfil its obligations relating to the
Trust or by any other act or omission of the Trust
Manager or any other person who provides services in
respect of the Trust (other than a person who has been
delegated or appointed by the Trustee and for whom the
Trustee is responsible under this deed or the relevant
Transaction Documents).
(e) No attorney, agent, receiver or receiver and manager
appointed in accordance with this deed has authority to
act on behalf of the Trustee in a way which exposes the
Trustee to any personal liability and no act or omission
of any such person will be considered fraud, negligence
or breach of trust of the Trustee for the purpose of
paragraph (c) of this clause 33.16, provided (in the
case of any person selected and appointed by the
Trustee) that the Trustee has exercised reasonable care
in the selection and supervision of such persons.
33.17 Trustee's right of indemnity - general
(a) (Indemnity from each Trust) Subject to this deed and
without prejudice to the right of indemnity given by law
to trustees, the Trustee will be indemnified out of each
Trust against all losses and liabilities properly
incurred by the Trustee in performing any of its duties
or exercising any of its powers under this deed in
relation to that Trust.
(b) (Preservation of right of indemnity) Subject to clause
33.17(c), and without limiting the generality of clause
33.17(a), the Trustee's right to be indemnified in
accordance with clause 33.17(a) and to effect full
recovery out of a Trust, will apply in relation to any
liabilities to Creditors of the Trust notwithstanding
any failure by the Trustee to exercise a degree of care,
diligence and prudence required of the Trustee having
regard to the powers, authorities and discretions
conferred on the Trustee under this deed or any other
act or omission which may not entitle the Trustee to be
so indemnified and/or effect such recovery (including,
without limitation, fraud, negligence or wilful
default).
(c) (Indemnity in certain circumstances held for Trust
creditors) Subject to clause 33.17(d), if the Trustee
fails to exercise the degree of care, diligence and
prudence required of a trustee having regard to the
powers, authorities and discretions conferred on the
Trustee by this deed or if any other act or omission
occurs which may not entitle the Trustee to be in-
demnified in accordance with clause 33.17(a) or to
effect full recovery out of a Trust (including, without
limitation, fraud, negligence or wilful default):
(i) the Trustee may not receive or hold or
otherwise have the benefit of the indemnity
given in clause 33.17(a) otherwise than on
behalf of and on trust for Creditors in
relation to that Trust; and
(ii) the Trustee may only be indemnified to the
extent necessary to allow it to discharge
its liability to Creditors in relation to
that Trust.
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(d) (Not to limit rights of others) Nothing in clauses
33.17(a) to (c) shall be taken to:
(i) impose any restriction on the right of any
Noteholder, a Beneficiary, the Trust Manager
or any other person to bring an action
against the Trustee for loss or damage
suffered by reason of the Trustee's failure
to exercise the degree of care, diligence
and prudence required of a trustee having
regard to the powers, authorities and
discretions conferred on the Trustee by this
deed (including, without limitation, fraud,
negligence or wilful default); or
(ii) confer on the Trustee a right to be
indemnified out of a Trust against any loss
the Trustee suffers in consequence of an
action brought against it by reason of the
Trustee's failure to exercise the degree of
care, diligence and prudence required of a
Trustee having regard to the powers,
authorities and discretions conferred on the
Trustee by this deed (including, without
limitation, fraud, negligence or wilful
default).
(e) (Not to limit Trustee's duty) Nothing in this clause
33.17 shall limit the Trustee's duties and obligations
under this deed or prevent or restrict any determination
as to whether there has been, or limit the Trustee's
personal liability under this deed for, a breach of trust
or fraud, negligence or wilful default on the part of the
Trustee or its officers, employees, agents or delegates.
33.19 Trustee's right of indemnity - Consumer Credit Legislation
(a) (Indemnity from each Trust) Without prejudice to the
right of indemnity given by law to trustees, and without
limiting any other provision of this deed, the Trustee
will be indemnified out of each Trust, free of any set
off or counterclaim, against all Civil Penalty Payments
which the Trustee is required to pay personally or in its
capacity as trustee of that Trust in performing any of
its duties or exercising any of its powers under this
deed in relation to that Trust.
(b) (Preservation of right and indemnity) Without limiting
the generality of paragraph (a), the Trustee's right to
be indemnified in accordance with clause 33.17(a), and
to effect full recovery out of a Trust pursuant to such
a right, will apply notwithstanding any alleged failure
by the Trustee to exercise a degree of care, diligence
and prudence required of the Trustee having regard to
the powers, authorities and discretions conferred on the
Trustee under this deed or any other act or omission
which may not entitle the Trustee to be so indemnified
and/or effect such recovery (including, without
limitation, fraud, negligence or wilful default) and
that is not related to the liability.
(c) (Overriding) This clause 33.18 overrides any other
provision of this deed.
(d) (Nominated credit provider) Unless otherwise specified in
the Series Notice, the Trustee nominates each Approved
Seller, in relation to each relevant Trust, as the credit
provider for the purposes of regulation 75 of the
Consumer Credit Legislation with respect to Receivables
acquired by the Trust from that Approved Seller. Each
Approved Seller agrees to be a credit provider for the
purposes of regulation 75 of the Consumer Credit
Legislation in relation to those Receivables.
(e) (Indemnity) Each Approved Seller that is a nominated
credit provider under Clause 33.18(d) indemnifies the
Trustee in relation to each relevant Trust, free of any
set off or counterclaim, against all Civil Penalty
Payments which the Trustee is required to pay personally
or in its capacity as trustee of that Trust in performing
any of its duties or exercising any of its powers under
this deed in relation to that Trust.
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(f) The Trustee shall call upon the indemnity under paragraph
(e) before it calls upon the indemnity in paragraph (a).
In this clause 33.18, Civil Penalty Payment means:
(i) the amount of any civil penalty which the
Trustee is ordered to pay under Part 6 of
the Consumer Credit Legislation;
(ii) any other money ordered to be paid by the
Trustee, or legal costs or other expenses
payable or incurred by the Trustee related
to such an order;
(iii) any amount which the Trustee agrees to pay
to an Obligor or other person in settlement
of an application for an order under Part 6
of the Consumer Credit Legislation; and
(iv) any legal costs or other costs and expenses
payable or incurred by the Trustee in
relation to that application.
33.19 Extent of liability of Trust Manager
The Trust Manager shall not be personally liable to indemnify the
Trustee or make any payments to any other person in relation to any
Trust except that there shall be no limit on the Trust Manager's
liability for any fraud, negligence or wilful default by it in its
capacity as the Trust Manager of the relevant Trust.
33.20 Right of indemnity
The Trust Manager shall be indemnified out of the relevant Trust in
respect of any liability, cost or expense properly incurred by it in
its capacity as Trust Manager of the relevant Trust or so incurred by
any of its delegates, sub-delegates or agents.
33.21 Conflicts
(a) (No conflict) Nothing in this deed shall prevent the
Trustee, any Lead Manager, the Trust Manager or any
Related Corporation or Associate of any of them or their
directors or other officers (each a Relevant Person)
from:
(i) subscribing for purchase, holding, dealing
in or disposing of any Notes;
(ii) entering into any financial, banking,
development, insurance, agency, broking or
other transaction with, or providing any
advice or services for any of the Trusts; or
(iii) being interested in any such contract or
transaction or otherwise at any time
contracting or acting in any capacity as
representative or agent.
(b) (Not liable to account) A Relevant Person shall not be in
any way liable to account to any Noteholder, any
Beneficiary or any other person for any profits or
benefits (including but without limitation, any profit,
bank charges, commission, exchange, brokerage and fees)
made or derived under or in connection with any
transaction or contract specified in paragraph (a) above;
(c) (Fiduciary relationship) A Relevant Person shall not by
reason of any fiduciary relationship be in any way
precluded from making any contracts or entering into any
transactions with any such person in the ordinary course
of the business or from undertaking any banking,
financial, development, agency or other services
including any contract or transaction in relation to the
placing of or dealing with any
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investment and the acceptance of any office or profit or
any contract of loan or deposits or other contract or
transaction which any person or company not being a
party to this deed could or might have lawfully entered
into if not a party to this deed. A Relevant Person
shall not be accountable to Noteholders, the
Beneficiaries or any other person for any profits
arising from any such contracts, transactions or
offices.
33.22 Trustee not obliged to investigate the Trust Manager etc
The Trustee shall be responsible only for so much of the Authorised
Investments, and the income and proceeds emanating from the
Authorised Investments as may be actually transferred or paid to it
and the Trustee is expressly excused from:
(a) taking any action or actions to investigate the
accounts, management, control or activities of the Trust
Manager or any other person; or
(b) inquiring into or in any manner questioning or bringing
any action, suit or proceeding or in any other manner
seeking to interfere with the management, control or
activities (including the exercise or non-exercise of
powers and discretions) of such persons or seeking to
remove from office such persons, taking any steps or
bringing any action, suit or proceedings or in any other
manner seeking to vary, amend delete from or add to this
deed or other instrument establishing the Trusts, or
wind up any of such persons or vest the Trusts.
33.23 Independent investigation of credit
(a) (Trustee and Trust Manager may assume independent
investigation) The Trustee and the Trust Manager shall be
entitled to assume that each Noteholder has,
independently and without reliance on the Trustee, the
Trust Manager or any other Noteholder, and based on
documents and information as each has deemed appropriate,
made its own investigations in relation to the Notes, the
Trustee, the Trust Manager and the provisions of this
deed and any other Transaction Document.
(b) (Acknowledgement of independent investigation) Each
Noteholder agrees that it will, independently and without
reliance on the Trustee, the Trust Manager, a Servicer or
any other Noteholder and based on documents and
information as it shall deem appropriate at the time,
continue to make its own analysis and decisions as to all
matters relating to this deed and any other Transaction
Document.
33.24 Information
Except for notices and other documents and information (if any)
expressed to be required to be furnished to any person by the Trustee
under this deed or any other Transaction Document, the Trustee shall
not have any duty or responsibility to provide any person (including,
without limitation, any Noteholder or Beneficiary but not including
the Trust Manager) with any credit or other information concerning
the affairs, financial condition or business of any of the Trusts.
33.25 Entering into Transaction Documents
Notwithstanding any other provision of this deed, the Trustee is not
obliged to enter into any Transaction Document for a Trust unless the
Trustee, with the agreement of the Trust Manager, has received
independent legal advice (if required by the Trustee) in relation to
the Transaction Document.
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33.26 Reliance by Trustee
The Trustee is entitled conclusively to rely on and is not required
to investigate the accuracy of:
(a) the contents of a Sale Notice given to it by an Approved
Seller;
(b) the contents of any Trust Manager's Report or Servicer's
Report;
(c) any calculations made by an Approved Seller, a Servicer
or the Trust Manager under any Transaction Document
including, without limitation, the calculation of amounts
to be paid to, or charged against, Noteholders, the
Beneficiary or the Seller on specified dates;
(d) the amount of, or allocation of, Collections;
(e) the contents of any certificate provided to the Trustee
under this deed and any certificate given by the Trust
Manager or the Servicer pursuant to a report or otherwise
pursuant to subsequent amendments to this deed or any
Series Notice,
unless actually aware to the contrary, and the Trustee is not liable
to any person in any manner whatsoever in respect of all such
matters.
33.27 Investigation by Trustee
The Trust Manager, each Servicer, each Approved Seller, each
Noteholder and the Beneficiary of each Trust acknowledges that:
(a) the Trustee has no duty, and is under no obligation, to
investigate whether a Trust Manager's Default, Servicer
Transfer Event or Title Perfection Event has occurred in
relation to that Trust other than where it has actual
notice;
(b) the Trustee is required to provide the notices referred
to in this deed in respect of a determination of Adverse
Effect only if it is actually aware of the facts giving
rise to the Adverse Effect; and
(c) in making any such determination, the Trustee will seek
and rely on advice given to it by its advisors in a
manner contemplated by this deed.
PART J - GENERAL PROVISIONS
34. NOTICES
34.1 Notices Generally
Subject to clause 34.2, every notice, certificate, request,
direction, demand or other communications required to or by a party
to this deed:
(a) must be in writing;
(b) must be signed by an Authorised Signatory of the sender;
(c) will be taken to be duly given or made:
(i) (in the case of delivery in person or by
post, facsimile transmission or cable) when
delivered received or left to the address of
that party shown
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in this deed (or at such other address as
may be notified in writing by that party to
the other party from time to time);
(ii) (in the case of telex) on receipt by the
sender of the answerback code of the
recipient at the end of transmission; or
(iii) (in the case of electronic mail) on receipt
by the sender of an acknowledgement of
transmission,
but if delivery or receipt is on a day on which business
is not generally carried on in the place to which the
communication is sent or is later than 4pm (local time),
it will be taken to have been duly given or made at the
commencement of business on the next day on which
business is generally carried on in that place;
34.2 Notices to Noteholders
A notice, request or other communication by the Trustee, the Trust
Manager or a Servicer to Noteholders shall be deemed to be duly given
or made by:
(a) an advertisement placed on a Business Day in The
Australian Financial Review (or other nationally
distributed newspaper); or
(b) mail, postage prepaid, to the address of the Noteholders
as shown on the Register. Any notice so mailed shall be
conclusively presumed to have been duly given whether or
not the Noteholder actually receives the notice.
34.3 Notices to Designated Rating Agencies
The Trust Manager shall provide a copy of each notice, request or
other communication by the Trustee, the Trust Manager or a Servicer
to Noteholders in a Trust to each Designated Rating Agency (if any)
for the Trust as from time to time agreed in writing with that
Designated Rating Agency, and where a Transaction Document specifies
that notice is to be given to each Designated Rating Agency, but the
person who is to give that notice is not specified. Where a
Transaction Document requires notice to be given to a Designated
Rating Agency, that requirement constitutes an "agreement in writing"
for the purposes of this clause 34.3.
35. PAYMENTS GENERALLY
35.1 Payments to Noteholders
Any payment made by or on behalf of the Trustee in respect of any
Note shall be made to the person whose name is, on the Record Date,
entered in the relevant Register as the registered owner of the
relevant Note (or in the case of joint registered owners, to the
person whose name first appears in the Register).
35.2 Payment Methods
Any moneys payable by the Trustee, the Trust Manager or a Servicer to
a Noteholder or to a Beneficiary under this deed shall be paid by the
Trustee in Sydney or if the Trustee elects may be paid by:
(a) (cheque) crossed not negotiable cheque in favour of the
Noteholder or the Beneficiary (as the case may be) and
despatched by post to the address of the Noteholder shown
in the relevant Register on the Record Date or to the
address of the Beneficiary for the purposes of clause 34;
(b) (electronic transfer) electronic transfer through
Austraclear;
<PAGE>
Page 108
(c) (direct payment) by direct transfer to a designated
account of the Noteholder or the Beneficiary held with a
bank or other financial institution in Australia; or
(d) (other agreed manner) any other manner specified by the
Noteholder and agreed to by the Trust Manager and the
Trustee.
35.3 Payment to be made on Business Day
If any payment is due under a Transaction Document on a day which is
not a Business Day, the due date will be the next Business Day.
35.4 Payment good discharge
There is a full satisfaction of the moneys payable and a good
discharge to the Trustee, the Trust Manager or a Servicer (as the
case may be) when the cheque is despatched by post in accordance with
clause 35.2(a) or, if not posted, delivered to the Noteholder or as
directed by the Noteholder. Neither the Trustee nor the Trust Manager
shall be responsible for any moneys which are not credited to the
bank account of a Noteholder or a Beneficiary if the Trustee's bank
has been instructed to effect the direct transfer referred to in
clause 35.2(c).
35.5 Trust Manager to arrange payments
The Trustee will:
(a) prepare or cause to be prepared all cheques which are to
be issued to Noteholders and to Beneficiaries and stamp
the same as required by law; or
(b) otherwise arrange payments under clause 35.20.
The Trustee will sign (by autographical, mechanical or other means)
cheques for despatch on the day on which they ought to be despatched.
35.6 Valid receipts
The receipt of the Trustee for any moneys shall exonerate the person
paying the same from all liability to make any further enquiry. Every
such receipt shall as to the moneys paid or expressed to be received
in such receipt, effectually discharge the person paying such moneys
from such liability or enquiry and from being concerned to see to the
application or being answerable or accountable or any loss or
misapplication of such moneys.
35.7 Taxation
(a) (Net payments) All payments in respect of the Notes
shall be made free and clear of, and without deduction
for, or by reference to, any present or future Taxes of
any Australian Jurisdiction unless required by law. The
Trustee or any person making payments on behalf of the
Trustee will be obliged to deduct interest withholding
tax imposed by the Commonwealth of Australia from
payments of interest in respect of the Notes to
non-residents of the Commonwealth of Australia not
carrying on business in the Commonwealth of Australia at
or through a permanent establishment and to residents of
the Commonwealth of Australia carrying on business at or
through a permanent establishment outside the
Commonwealth of Australia unless a certificate pursuant
to Section 221YM of the Taxation Act is produced to the
Trustee not later than close of business on the tenth
Business Day immediately preceding the relevant payment
date.
<PAGE>
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(b) (Tax file numbers) The Trustee or any person making
payments on behalf of the Trustee will be required to
deduct tax-at-source on interest payments to each
Noteholder at the highest personal marginal tax rate
unless the Trustee receives from such Noteholder the Tax
File Number of that Noteholder or evidence of any
exemption the Noteholder may have from the need to
advise the Trustee of a Tax File Number. The Tax File
Number or appropriate evidence (as the case may be) must
be received by the Trustee not less than ten Business
Days prior to the relevant payment date.
36. AMENDMENT
36.1 Amendment without consent
The Trustee, the Trust Manager and a Servicer (in relation to a
Trust) may by way of supplemental deed alter, add to or modify this
deed (including this clause 36) or (subject to clause 5.3(c)) a
Series Notice in respect of any one or more Trusts so long as such
alteration, addition or modification either complies with clause 36.2
or is:
(a) (correct manifest error) to correct a manifest error or
ambiguity or is of a formal, technical or administrative
nature only;
(b) (comply with law) necessary to comply with the provisions
of any statute or regulation or with the requirements of
any Government Agency;
(c) (change in law) appropriate or expedient as a
consequence of an amendment to any statute or regulation
or altered requirements of any Government Agency
(including, without limitation, an alteration, addition
or modification which is appropriate or expedient as a
consequence of the enactment of a statute or regulation
or an amendment to any statute or regulation or ruling
by the Commissioner or Deputy Commissioner of Taxation
or any governmental announcement or statement, in any
case which has or may have the effect of altering the
manner or basis of taxation of trusts generally or of
trusts similar to any of the Trusts);
(d) (not yet constituted Trust) to apply only in respect of a
Trust not yet constituted under this deed; or
(e) (otherwise desirable) in the opinion of the Trustee
desirable to enable the provisions of this deed to be
more conveniently, advantageously, profitably or
economically administered or is otherwise desirable for
any reason (including to give effect, in the Trust
Manager's reasonable opinion, to an allocation of
Expenses contemplated by clause 4.10(c)).
36.2 Amendment with consent
Where in the reasonable opinion of the Trustee a proposed alteration,
addition or modification to this deed (except an alteration, addition
or modification referred to in clause 36.1) is prejudicial or likely
to be prejudicial to the interests of the Noteholders or a Class of
Noteholders or the Beneficiaries in a particular then constituted
Trust such alteration, addition or modification may only be effected
by the Trustee with the prior consent of the Noteholders or a Class
of Noteholders (as the case may be) in the particular Trust under an
Extraordinary Resolution of the Noteholders or a Class of Noteholders
(as the case may be) in the Trust or with the prior written consent
of the Beneficiaries (as the case may be).
36.3 Copy of amendments to Noteholders
The Trustee shall on request by a Noteholder, provide the Noteholder
with a copy of the supplemental deed effecting any alteration,
addition or modification to this deed.
<PAGE>
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36.4 Copy of amendments in advance to Designated Rating Agencies
The Trust Manager shall provide a copy of a proposed alteration,
addition or modification to any Transaction Document in relation to a
Rated Trust, where the Transaction Document requires notice be given
to the Designated Rating Agency to each Designated Rating Agency (if
any) for the Rated Trust at least 5 Business Days (or such other
period as may from time to time be agreed by the Trust Manager with
the Designated Rating Agency) prior to any alteration, addition or
modification taking effect.
37. CONFIDENTIALITY
(a) Each party agrees that:
(i) (A) subject to paragraph (B) and
clause 37(b), it will not
disclose without the prior
consent of the other (other than
to the directors, employees,
auditors, legal advisors, other
professional advisors which it
is entitled to consult under the
Transaction Documents,
affiliates or Related
Corporations (collectively,
representatives) of such party,
each of whom shall be informed
by such party of the
confidential nature of the
Information and of the terms of
this clause 37:
(1) any information
regarding, or copies
of, any Transaction
Document or any
transaction
contemplated by any
Transaction
Document; or
(2) any information
regarding an
Approved Seller
which information is
furnished by the
Approved Seller to
such party and which
is designated by the
Approved Seller to
such party in
writing as
confidential or not
otherwise available
to the general
public,
(the information referred to in
paragraphs (1) and (2) is
collectively referred to as the
Information); and
(B) such party may disclose any such
Information:
(1) to any other party
to this deed for the
purposes
contemplated by this
deed;
(2) as may be required
by any Governmental
Agency;
(3) in order to comply
with any law, order,
regulation,
regulatory request
or ruling applicable
to such party
(including, without
limitation, any
request or
requirement of the
Australian Stock
Exchange);
(4) subject to clause
37.8(e), in the
event such party is
legally compelled
(by interrogatories,
requests for
information or
copies, subpoena,
civil investigative
demand or similar
process) to disclose
any such
Information;
(5) in the case of the
Trustee, to a
successor or bona
fide potential
successor as trustee
of the Trust;
<PAGE>
Page 111
(6) to the Designated
Rating Agency;
(7) to the provider, or
potential provider,
of a Support
Facility;
(8) as required or
contemplated by the
Transaction
Documents;
(9) in any legal
proceedings arising
out of or in
connection with any
Transaction
Document, as such
party reasonably
considers necessary
to protect its
interests; or
(10) with the prior
written consent of
the other party;
(ii) it will use the Information solely for the
purposes of evaluating, and administering
the transactions contemplated by Transaction
Documents, making any necessary business
judgments with respect thereto and
exercising its rights and performing its
obligations under the Transaction Documents
and in any event shall comply with the
Privacy Act and all applicable privacy laws;
(iii) it will, on demand, return (and cause each
of its representatives to return) to the
Approved Seller all documents or other
written material received from the Approved
Seller in connection with paragraph
(a)(i)(A)(II) above and all copies thereof
made by such party which contain the
Information except to the extent that such
Information forms part of the business
records of that party, or is delivered to
that party pursuant to an obligation to do
so under any Transaction Document.
(b) This clause 37 shall be inoperative as to such portions
of the Information which are or become generally
available to the public or such party on a
non-confidential basis or were known to such party on a
non-confidential basis prior to its disclosure by the
Approved Seller.
(c) In the event that any party or anyone to whom such party
or its representatives transmits the Information is
requested or becomes legally compelled (by
interrogatories, requests for information or documents,
subpoena, civil investigative demand or similar process)
to disclose any of the Information, such party will:
(i) provide the Approved Seller with prompt
written notice so that the Approved Seller
may seek a protective order or other
appropriate remedy and/or waive compliance
with the provisions of this clause 37;
(ii) take such action as required by any
protective order or other appropriate remedy.
(d) This clause 37 shall survive termination of this deed and
the Transaction Documents.
(e) Each party shall ensure that its officers, employees and
agents comply with this Clause 37 and any other
confidentiality agreement between any Approved Seller and
the Trustee relating to the transactions contemplated by
this deed.
<PAGE>
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38. MISCELLANEOUS
38.1 Data Base to be retained as confidential
Each party shall retain as confidential to itself the Data Base in so
far as the same is held by it and shall not disclose the Data Base to
any other person (including any of its Related Bodies Corporate)
except:
(a) (Transaction Documents) as permitted or required by any
Transaction Document or necessary for any party to a
Transaction Document to perform its respective duties and
obligations;
(b) (enforcement) as required for the enforcement or
attempted enforcement of any Transaction Document, Loan,
Mortgage or Related Securities;
(c) (professional advisers) to any professional adviser,
delegate, agent or sub-agent of that party under a power
contained in a Transaction Document;
(d) (officers) to the officers, employees and directors of
that party made in the performance by that party
respectively of its duties and obligations under the
Transaction Documents or at law;
(e) (Auditors) to the Auditor of any Trust or as required by
the Auditor of any Trust; or
(f) (law) as required by law or by any Government Agency or
by the listing rules of the Australian Stock Exchange
Limited,
subject to all cases to the Privacy Act.
38.2 Certificates by Trust Manager
Any statement or certificate by the Trust Manager in relation to any
act, matter, thing or state of affairs in relation to any of the
Trusts, this deed or any other Transaction Document shall, in the
absence of manifest error be final, be binding and conclusive on the
Trustee, the Beneficiaries, the Noteholders and all other persons.
38.3 Waivers, remedies cumulative
Save as provided in this deed, no failure to exercise and no delay in
exercising on the part of any party of any right, power or privilege
under this deed shall operate as a waiver. Nor shall any single or
partial exercise of any right, power or privilege preclude any other
or further exercise of that or any other right, power or privilege.
38.4 Retention of documents
(a) All Applications for Notes, cancelled Note
Acknowledgements, Note Transfers and instruments of
transmission shall be retained by the Trust Manager for a
period of seven years. On the expiration of seven years
from the date of any such document the document may be
destroyed.
(b) All files in respect of each Loan, Mortgage or Related
Securities and related computer tape held by a Servicer
shall be retained by the Servicer for a period of seven
years after the related Loan has been paid in full or is
otherwise liquidated or for such longer period required
by law.
<PAGE>
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38.5 Governing law
This deed shall be governed by and construed in accordance with the
laws of the Australian Capital Territory. Each of the parties and the
Noteholders submits to the non-exclusive jurisdiction of courts
exercising jurisdiction there.
38.6 Severability of provisions
Any provision of any Transaction Document which is prohibited or
unenforceable in any jurisdiction is, as to that jurisdiction,
ineffective to the extent of that prohibition or unenforceability.
This does not invalidate the remaining provisions of that Transaction
Document nor affect the validity or enforceability of that provision
in any other jurisdiction.
38.7 Counterparts
This deed may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
38.8 Inspection of this deed
The Noteholders may inspect a copy of this deed, each relevant Series
Notice, Servicing Agreement and Security Trust Deed at the office of
the Trust Manager during normal business hours, but shall not be
entitled to a copy of any of them.
EXECUTED as a deed in Canberra.
TRUSTEE
SIGNED SEALED and DELIVERED )
on behalf of WESTPAC SECURITIES )
ADMINISTRATION LIMITED by its )
attorney in the presence of: ) /s/ J T STANWIX
-------------------------
Signature
/s/ JAMES GRANT J T STANWIX
- ------------------------- -------------------------
Witness Print name
JAMES GRANT
- -------------------------
Print name
<PAGE>
Page 114
TRUST MANAGER
SIGNED SEALED and DELIVERED )
on behalf of THE MORTGAGE COMPANY )
PTY LIMITED by its attorney )
in the presence of: ) /s/ LEITH LYON WINTOUR
-------------------------
Signature
/s/ JAMES GRANT LEITH LYON WINTOUR
- ------------------------- ------------------------
Witness Print name
JAMES GRANT
- -------------------------
Print name
<PAGE>
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SCHEDULE 1
APPLICATION FOR NOTES
SERIES [*] WST TRUST
To: Westpac Securities Administration Limited as trustee of the Series
[*] WST Trust (the Trustee)
From: ................................................(ACN [*])
(Name)
of......................................(the Applicant).
(Address)
Application
The Applicant applies for the following Notes (the Notes) to be issued by the
Trustee as trustee of the Series [*] WST Trust (the Trust) under the Master
Trust Deed dated [ ] 1997 (as amended from time to time) establishing the WST
Trusts (the Master Trust Deed):
1. The Notes applied for are:
2. The amount of Notes applied for is:
Applicant bound
The Applicant agrees that the Notes will be issued subject to, and agrees to be
bound by, the provisions of the Master Trust Deed, the Series Notice in relation
to the Notes [and the Security Trust Deed dated [*] in relation to the Trust].
Acknowledgement by Applicant
The Applicant acknowledges that the liability of the Trustee to make payments in
respect of the Notes is limited to its right of indemnity from the assets of the
Trust from time to time available to make such payments under the Master Trust
Deed.
The Applicant further acknowledges that:
(a) it has independently and without reliance on the Westpac Banking
Corporation (Westpac), the Trustee, the Trust Manager or any other
person (including without reliance on any materials prepared or
distributed by any of the above) made its own assessment and
investigations regarding its investment in the Notes; and
(b) it understands that the Notes do not represent deposits or other
liabilities of Westpac or Associates of Westpac;
(c) the Applicant's holding of the Notes is subject to investment risk,
including possible delays in repayment and loss of income and
principal invested; and
(d) neither Westpac nor any Associate of Westpac in any way stands behind
the capital value and/or performance of the Notes or the Assets of
the Trust except to the limited extent provided in the Transaction
Documents for the Trust.
<PAGE>
Page 116
General
Payments due under the Notes may be made:
. by cheque posted to the above address
. to the credit of the following account:
Name of Bank:
Address of Bank:
Account Details:
Account No.:
Name of Account:
A Marked Note Transfer of the abovementioned Notes is required: Yes/No.
Applicant's Tax File Number:
Interpretation
Each expression used in this Application for Notes that is not defined has the
same meaning as in the Master Trust Deed.
Dated:
SIGNED: ...............................................
* This Application for Notes together with a cheque for the amount of
the Notes applied for should be sent to the Trustee at the address
above.
* Where the Applicant is a trustee, this Application for Notes must be
completed in the name of the trustee and signed by the trustee
without reference to the trust.
* Where this Application for Notes is executed by a corporation, it
must be executed either under common seal or under a power of
attorney.
* If this Application for Notes is signed under a power of attorney,
the attorney certifies that it has not received notice of revocation
of that power of attorney. A certified copy of the power of attorney
must be lodged with this Application for Notes.
<PAGE>
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CONFORMED COPY
SCHEDULE 2
NOTE ACKNOWLEDGEMENT
WST TRUST NO. [ ]
Name:
[Class]:
Initial Invested Amount:
Interest Rate:
Coupon Payment Dates:
[Principal Payment Dates]:
Maturity Date:
This confirms that:
Noteholder:
ACN (if applicable):
Address:
appears in the Register as the holder of the abovementioned Notes (the Notes).
The Notes are issued by Westpac Securities Administration Limited (ACN 000 049
472) (the Trustee) in its capacity as trustee of the abovementioned Trust (the
Trust) under a Master Trust Deed dated [ ] 1997 (as amended from time to time)
establishing the WST Trusts (the Master Trust Deed).
The Notes are issued subject to the provisions of the Master Trust Deed, the
Series Notice in relation to the Notes [and the Security Trust Deed dated [*] in
relation to the Trust]. A copy of the Trust Deed, the Series Notice [and the
Security Trust Deed] are available for inspection by Noteholders at the offices
of The Mortgage Company Pty Limited, ACN 070 968 302 (the Trust Manager) at 228
Pitt Street, Sydney, New South Wales.
The Trustee's liability to make payments in respect of the Notes is limited to
its right of indemnity from the Assets of the Trust from time to time available
to make such payments under the Master Trust Deed and Series Notice. All claims
against the Trustee in relation to the Notes may only be satisfied out of the
assets of the Trust except in the case of (and to the extent of) any fraud,
negligence or wilful default on the part of the Trustee or its officers,
employees, agents or delegates.
The Noteholder is required to accept any distribution of moneys under the
Security Trust Deed in full and final satisfaction of all moneys owing to it,
and any debt represented by any shortfall that exists after any such final
distribution is extinguished.
<PAGE>
Page 118
The Trustee shall not be liable to satisfy any obligations or liabilities from
its personal assets except (and to the extent) of any fraud, negligence or
wilful default on the part of the Trustee or its officers, employees, agents or
delegates. Neither the Trustee nor the Trust Manager guarantees the payment of
interest or the repayment of principal due on the Notes.
This Note Acknowledgement is not a certificate of title and the Register is the
only conclusive evidence of the abovementioned Noteholder's entitlement to
Notes.
Transfers of Notes must be under a Note Transfer in the form contained in
Schedule 4 to the Master Trust Deed (copies of which are available from the
Trustee at its abovementioned address). Executed Note Transfers must be
submitted to the Trustee.
Each expression used in this Note Acknowledgement that is not defined has the
same meaning as in the Master Trust Deed.
This Note Acknowledgement and the Notes to which it relates will be governed by
the laws of the Australian Capital Territory.
Dated:
Executed in [the Australian Capital Territory/New South Wales] for and on behalf
of Westpac Securities Administration Limited
- ---------------------------------------------------
Authorised Signatory
<PAGE>
Page 119
SCHEDULE 3
NOTE ISSUE DIRECTION
To: Westpac Securities Administration Limited (ACN 000 049 472) as
trustee of the Series [*] WST Trust (the Trustee)
From: The Mortgage Company Pty Limited (ACN 070 968 302) (the Trust
Manager)
1. Proposal to Issue Notes
Under clause 13.1(a) of the Master Trust Deed dated [*] 1997 (as amended from
time to time) establishing the WST Trusts (the Trust Deed) the Trust Manager
proposes and directs in this Note Issue Direction (the Note Issue Direction)
that the Trustee on [*] (the Note Issue Date) will:
(a) hold as trustee of the Series [*] WST Trust (the Trust) on the terms
of the Trust Deed the benefit of the Portfolio of Receivables
specified in [the attached Sale Notice/Annexure "A"] (the Portfolio
of Receivables);
(b) issue as trustee of the Trust the Notes specified below (the
proposed Notes):
(i) the name(s), total principal amount, total number and
Subscription Amount of the proposed Notes are as follows:
Name(s):
Total principal amount:
Total number:
Subscription Amount:
(ii) the proposed Notes [will/will not] constitute a Class
separate from any other Notes previously issued by the
Trustee as trustee of the Trust or from any other
proposed Notes referred to in this Note Issue Direction.
[The details of each Class are as follows:
[specify information in (i) above for each Class]]
[(c) pay to [[*] (the Approved Seller)/[ ] (the Warehouse Trust)] the
principal amount of the Loans relating to the Portfolio of
Receivables at [date] (the Cut-Off Date) being $[*]; and]
[(d) the Lead Manager for the issue is [ ]].
2. Security Trust Deed and Support Facilities
For the purposes of clause 13.2(a)(vi) of the Trust Deed:
(a) a Security Trust Deed for the Trust [must/need not] be put in place
prior to the Note Issue Date.
(b) the following Support Facilities must be effected prior to the Note
Issue Date:
[insert details]
<PAGE>
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3. Series Notice
The terms of the Series Notice for the proposed Notes [each Class of the
proposed Notes] are contained [in the attached duly completed Series Notice/in
the Series Notice attached to the Note Issue Direction dated [*]].
4. Trust Manager's Certifications
For the purposes of clause 13.6(a) of the Trust Deed, but subject to the Trust
Deed, the Trust Manager certifies to the Trustee that this Note Issue Direction,
and each accompanying Series Notice, complies with the Trust Deed.
Interpretation
Each expression used in this Note Issue Direction that is not defined has the
same meaning as in the Trust Deed.
Dated:
For and on behalf of The Mortgage Company Pty Limited
- -----------------------------------------------
Authorised signatory
RECEIPT
We acknowledge receipt of the above Note Issue Direction.
This acknowledgement shall not constitute a declaration by the Trustee that any
property (including any Receivable Security) shall be held on trust for any
person.
For and on behalf of Westpac Securities Administration Limited
- -----------------------------------------------
Authorised signatory
<PAGE>
Page 121
CONFORMED COPY
Annexure "A"
Receivables
[Attach Sale Notice or specify Receivables]
<PAGE>
Page 122
SCHEDULE 4
NOTE TRANSFER AND ACCEPTANCE
SERIES [*] WST TRUST
To: Westpac Securities Administration Limited Date Lodged [*]
(ACN 000 049 472) as trustee of the Registry Use Only
Series [*] WST Trust (the Trustee)
TRANSFEROR
(Full name, ACN (if applicable) and address):
(please print)
APPLIES TO ASSIGN
AND TRANSFER TO
TRANSFEREE
(Full name, ACN (if applicable) and address):
(please print)
and its/their executors, administrators or assigns
The following Notes in the Series [*] WST Trust Number of Notes:
Name:
[Class]:
Initial Invested Amount:
Coupon Payment Dates:
[Principal Payment Dates]:
Maturity Date:
Settlement Amount: $[*]
and all my/our/its property and interests in rights to those Notes and to the
interest accrued on them.
TRANSFEROR
---------------------------------------------------------------------
(Signature: see Notes)
WITNESS Date:
--------------------------------------
TRANSFEREE
---------------------------------------------------------------------
(Signature: see Notes)
WITNESS Date:
--------------------------------------
PAYMENTS (Tick where appropriate)
* In accordance with existing instructions (existing holders only)
* By cheque posted to the above address
* By credit to the following account in Australia in the name of the
Transferee only
Tax File Number (if applicable):
<PAGE>
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Authorised signature of Transferee
------------------------
Date:
NOTES:
1. The Transferor and the Transferee acknowledge that the transfer of
the Notes specified in this Transfer and Acceptance (the Notes) shall
only take effect on the entry of the Transferee's name in the
Register as the registered owner of the Notes.
2. The Transferee agrees to accept the Notes subject to the provisions
of the Master Trust Deed dated [*] 1997 (as amended from time to
time) establishing the WST Trusts (the Trust Deed), the Series Notice
in relation to the Notes [and the related Security Trust Deed dated
[*]].
3. The Transferee acknowledges that it has independently and without
reliance on Westpac Banking Corporation (ARBN 007 457 141), the
Trustee, The Mortgage Company Pty Limited, ACN 070 968 302 (the Trust
Manager) or any other person (including without reliance on any
materials prepared or distributed by any of the above) made its own
assessment and investigations regarding its investment in the Notes.
4. The Trustee's liability to make payments in respect of the Notes is
limited to its right of indemnity from the assets of the
abovementioned Trust from time to time available to make such
payments under the Trust Deed.
5. Where the Transferor and/or the Transferee is a trustee, this Note
Transfer must be completed in the name of the trustee and signed by
the trustee without reference to the trust.
6. Where this Note Transfer is executed by a corporation, it must be
executed either under common seal or under a power of attorney.
7. If this Transfer and Acceptance is signed under a power of attorney,
the attorney certifies that it has not received notice of revocation
of that power of attorney. A certified copy of the power of attorney
must be lodged with this Note Transfer.
8. This Note Transfer must be lodged with the Trustee for registration.
9. The Trustee may, in the manner and for the periods specified in the
Trust Deed and any relevant Series Notice, close the Register. The
total period that the Register may be closed will not exceed 30 days
(or such other period agreed to by the Trust Manager) in aggregate in
any calendar year. No Note Transfer received after 4.00 pm Sydney
time on the day of closure of the Register or whilst the Register is
closed will be registered until the Register is re-opened.
10. If the Transferee is a non-resident for Australian taxation purposes,
withholding tax will be deducted from all interest payments unless an
exemption is provided to the Trustee [or withholding tax is no longer
payable as a result of any change in the relevant Australian laws.]
11. [Insert any restrictions on the transfer of Notes.]
[Marking where clause 14.15 applies]
<PAGE>
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12. The Trustee certifies that the Transferor is inscribed in the
Register as the holder of the Notes specified in this Note Transfer
and that it will not register any transfer of such Notes other than
under this Note Transfer before [insert date].
Dated:
For and on behalf of [*] Limited
- -------------------------------------------------
Authorised Signatory
<PAGE>
Page 125
CONFORMED COPY
SCHEDULE 5
NOTICE OF CREATION OF TRUST
To: Westpac Securities Administration Limited (ACN 000 049 472) (the
Trustee)
From: The Mortgage Company Pty Limited (ACN 070 968 302) (the Trust
Manager)
Under clause 3.2(a)(i) of the Master Trust Deed dated [*] 1997 between the
Trustee as trustee and the Trust Manager as trust manager establishing the WST
Trusts (as amended from time to time) (the Master Trust Deed) the Trust Manager
gives notice of the creation of a Trust under the Master Trust Deed to be known
as the Series [*] WST Trust [or such other name as the Trust Manager and the
Trustee have agreed under clause 3.3(b) of the Master Trust Deed].
The Series [*] WST Trust will be a Trust for the purposes of the Master Trust
Deed.
This Notice of Creation of Trust is accompanied by $10.00 from [*] in accordance
with clause 3.2(a)(ii) of the Master Trust Deed. [The Trustee must issue a
residual capital unit to [*]]
The Beneficiary of the Trust is [name], of [address] [give details of units and
other Beneficiaries, if any]
Terms defined in the Master Trust Deed have the same meaning when used in this
Notice.
Dated:
For and on behalf of The Mortgage Company Pty Limited.
- ----------------------------------------------------
Authorised Signatory
For and on behalf of Westpac Securities Administration Limited
- ----------------------------------------------------
Authorised Signatory
<PAGE>
Page 126
^[docname]:^[dated]
<PAGE>
SCHEDULE 6
VERIFICATION CERTIFICATE
To: Westpac Securities Administration Limited (ACN 000 049 472) as trustee
of the Series [*] WST Trust (the Trustee).
WST TRUSTS
I [*] am a [director/secretary/Authorised Signatory] of [*] Limited of [*] (the
Company).
I refer to the Master Trust Deed (the Master Trust Deed) to be entered into
between the Trustee as trustee and The Mortgage Company Pty Limited as Trust
Manager and Servicer.
Definitions in the Master Trust Deed apply in this Certificate.
I CERTIFY as follows.
1. Attached to this Certificate are complete and up to date copies of:
(a) the memorandum and articles of association of the Company
(marked A); and
(b) a duly stamped and registered power of attorney granted
by the Company for the execution of each Transaction
Document to which it is expressed to be a party (marked
B). That power of attorney has not been revoked or
suspended by the Company and remains in full force and
effect.
2. The following are signatures of the Authorised Officers of the
Company and the persons who have been authorised to sign each
Transaction Document to which it is expressed to be a party and to
give notices and communications under or in connection with the
Transaction Documents.
Authorised Officers
<TABLE>
<CAPTION>
Name Position Signature
<S> <C> <C>
* *
--------------------
* *
--------------------
* *
--------------------
</TABLE>
<PAGE>
Page 127
Signatories
<TABLE>
<CAPTION>
Name Position Signature
<S> <C> <C>
* *
--------------------
* *
--------------------
* *
--------------------
</TABLE>
Signed:
-----------------------------------------
[Director/Secretary/Authorised Signatory]
-----------------------------------------
Print name
DATED
<PAGE>
Page 128
CONFORMED COPY
SCHEDULE 7
WAREHOUSE TRUST DIRECTION
To: Westpac Securities Administration Limited (ACN 000 049 472) as
trustee of the WST Warehouse Trust #[] (the Trustee)
From: The Mortgage Company Pty Limited (ACN 070 968 302) (the Trust
Manager)
1. Direction to acquire Receivables
Under clause [*] of the Master Trust Deed dated [*] 1997 (as amended from time
to time) establishing the WST Trusts (the Master Trust Deed) the Trust Manager
proposes and directs in this Direction (the Direction) that the Trustee on [*]
(the Note Issue Date) will:
(a) hold as trustee of the WST Warehouse Trust #[] (the Trust) on
the terms of the Master Trust Deed the benefit of the Portfolio
of Receivables specified in Annexure "A" (the Portfolio of
Receivables);
[(b) pay to [[*] (the Approved Seller)/[ ] (the Seller Trust)] the
principal amount of the Loans relating to the Portfolio of
Receivables at [date] (the Cut-Off Date) being $[*]; and]
(c) enter into the Warehouse Facility Agreement in the attached form
with [*] to have financial accommodation of up to $[*] or any
greater amount as agreed by the Trustee and the Trust Manager
from time to time.
2. Series Notice
The Series Notice for the Trust is set out in Annexure "B".
[3. Standing direction
This is a standing Warehouse Trust Direction for the purposes of clause 7.5, in
the manner set out in the attached Series Notice.]
4. Trust Manager's Certifications
Subject to the Master Trust Deed, the Trust Manager certifies to the Trustee
that this Direction, complies with the Master Trust Deed.
Interpretation
Each expression used in this Direction that is not defined has the same meaning
as in the Trust Deed.
Dated:
For and on behalf of The Mortgage Company Pty Limited
- -----------------------------------------------------
Authorised signatory
<PAGE>
Page 129
RECEIPT
We acknowledge receipt of the above Warehouse Trust Direction.
This acknowledgement shall not constitute a declaration by the Trustee that any
property (including any Receivable Security) shall be held on trust for any
person.
For and on behalf of WESTPAC SECURITIES ADMINISTRATION LIMITED
- -----------------------------------------------------
Authorised signatory
<PAGE>
Page 130
Annexure "A"
Receivables
[Attach Sale Notice or specify Receivables]
<PAGE>
Page 131
Annexure "B"
SERIES NOTICE
SEE ANNEXURE E OF MASTER TRUST DEED FOR DETAILS TO BE INCLUDED
WST WAREHOUSE #[] TRUST
WAREHOUSE TRUST SERIES NOTICE
1. INTRODUCTION
This Series Notice is issued on [*] 1997 by The Mortgage Company Pty
Limited (ACN 070 968 302) of Level 6, 228 Pitt Street, Sydney, New
South Wales as manager (Trust Manager) pursuant and subject to the
Master Trust Deed dated [*] 1997 (the Master Trust Deed) between
(among others) the Trust Manager and Westpac Securities
Administration Limited (ACN 000 049 472) of Level 9, 66 Pitt Street,
Sydney, New South Wales as trustee of the WST Warehouse #[] Trust
created under the Notice of Creation of Trust (the Trustee).
Each party to this Series Notice agrees to be bound by the
Transaction Documents as amended by this Series Notice in the
capacity set out with respect to them in this Series Notice or the
Master Trust Deed.
[The Mortgage Company Pty Limited] (the Servicer) agrees to service
the Purchased Receivables and Purchased Receivable Securities in
accordance with the Servicing Agreement.
2. SERIES NOTICE AND TRUST BACK
(a) Under clauses 5.2 and 7 of the Master Trust Deed, the
Trust Manager directs the Trustee to:
(i) enter into the Warehouse Facility Agreement;
(ii) accept any Sale Offer; and
(iii) Borrow under the Warehouse Facility
Agreement from time to time in accordance
with clause 4 and the Warehouse Facility
Agreement.
(b) A Trust Back, entitled Warehouse Trust Back #[], is
created in relation to any Other Secured Liabilities
secured by the Purchased Receivable Securities.
(c) The parties agree that:
(i) the Trust will be a Trust for the purposes
of the Master Trust Deed; and
(ii) the Trust will not be a Rated Trust under
the Master Trust Deed.
3. DEFINITIONS AND INTERPRETATION
3.1 Definitions
Unless otherwise defined in this Series Notice, words and phrases
defined in the Master Trust Deed have the same meaning where used in
this Series Notice.
<PAGE>
Page 132
In this Series Notice, and for the purposes of the definitions in the
Master Trust Deed, the following terms have the following meanings
unless the contrary intention appears. These definitions apply only
in relation to the WST Warehouse #[] Trust, and do not apply to any
other Trust (as defined in the Master Trust Deed).
[*]
3.2 Interpretation
Clause 1.2 of the Master Trust Deed is incorporated into this Series
Notice as if set out in full, except that any reference to deed is
replaced by a reference to Series Notice.
3.3 Limitation of liability
(a) General
Clause 33 of the Master Trust Deed applies to the
obligations and liabilities of the Trustee and the Trust
Manager under this Series Notice.
(b) Liability of Trustee limited to its right of indemnity
(i) This Series Notice applies to the Trustee
only in its capacity as trustee of the
Warehouse Trust and in no other capacity. A
liability arising under or in connection
with this Series Notice or the Warehouse
Trust can be enforced against the Trustee
only to the extent to which it can be
satisfied out of property of the Warehouse
Trust out of which the Trustee is actually
indemnified for the liability. This
limitation of the Trustee's liability
applies despite any other provision of this
Series Notice and extends to all
liabilities and obligations of the Trustee
in any way connected with any
representation, warranty, conduct,
omission, agreement or transaction related
to this Series Notice or the Warehouse
Trust.
(ii) The parties other than the Trustee may not
sue the Trustee personally or seek the
appointment of a liquidator, administrator,
receiver or similar person to the Trustee or
prove in any liquidation, administration or
arrangement of or affecting the Trustee.
(iii) The provisions of this clause 3.3 shall not
apply to any obligation or liability of the
Trustee to the extent that it is not
satisfied because under the Master Trust
Deed or the Series Notice or by operation of
law there is a reduction in the extent of
the Trustee's indemnification out of the
assets of the Warehouse Trust, as a result
of the Trustee's fraud, negligence or breach
of trust.
(c) It is acknowledged that the Trust Manager is responsible
under this agreement for performing a variety of
obligations relating to the Trust. No act or omission of
the Trustee (including any related failure to satisfy its
obligations under this agreement) will be considered
fraud, negligence or breach of trust of the Trustee for
the purpose of sub-paragraph (iii) to the extent to which
the act or omission was caused or contributed to by any
failure by the Trust Manager or any other person (other
than a person who has been properly appointed by the
Trustee and for whom the Trustee is responsible under
this deed or the relevant Transaction Documents) to
fulfil its obligations relating to the Trust or by any
other act or omission of the Trust Manager or any other
person (other than a person who has been properly
appointed by the Trustee and for whom the Trustee is
responsible under this deed or the relevant Transaction
Documents).
<PAGE>
Page 133
(d) No attorney, agent, receiver or receiver and manager
appointed in accordance with this agreement has authority
to act on behalf of the Trustee in a way which exposes
the Trustee to any personal liability and no act or
omission of any such person will be considered fraud,
negligence or breach of trust of the Trustee for the
purpose of sub-paragraph (iii), if the Trustee has
exercised reasonable care in the selection and
supervision of such persons.
4. ACQUISITION OF RECEIVABLES
[*]
5. DISPOSAL OF RECEIVABLES
[*]
6. CASHFLOW ALLOCATION METHODOLOGY
[*]
7. MASTER TRUST DEED AND SERVICING AGREEMENT
7.1 Completion of details in relation to Master Trust Deed
(a) (Trust Manager fee)
[*]
(b) (Trustee fee)
[*]
(c) (Servicing fee)
[*]
7.2 Amendments to Master Trust Deed
[*]
7.3 Amendments to Servicing Agreement
[*]
8. BENEFICIARY
[*]
9. TITLE PERFECTION EVENTS
[*]
EXECUTED as a deed in Canberra.
Each attorney executing this Series Notice states that he or she has no notice
of revocation or suspension of his or her power of attorney.
<PAGE>
Page 134
TRUSTEE
SIGNED SEALED and DELIVERED )
by WESTPAC SECURITIES )
ADMINISTRATION LIMITED in the )
presence of: ) --------------------------------
Signature
- -------------------------------------- --------------------------------
Witness Print name
- --------------------------------------
Print name
TRUST MANAGER/SERVICER
SIGNED SEALED and DELIVERED )
by THE MORTGAGE COMPANY )
PTY LIMITED in the presence of: ) --------------------------------
Signature
- -------------------------------------- --------------------------------
Witness Print name
- --------------------------------------
Print name
<PAGE>
Page 135
ANNEXURE A
SALE NOTICE
TO: Westpac Securities Administration Limited (ACN 000 049 472) as
trustee of the Series [*] WST Trust (the Trustee)
Attention: [*]
FROM: [*]
(the Approved Seller)
Dear Sirs
MASTER TRUST DEED
We refer to the Master Trust Deed (the Master Trust Deed) dated [*] between
Westpac Securities Administration Limited and The Mortgage Company Pty Limited
and the Series Notice issued under the Master Trust Deed in relation to the [*]
Trust (the Series Notice).
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
Terms defined in the Master Trust Deed and the Series Notice shall
have the same meaning in this Sale Notice unless the context
otherwise requires except that:
Cut-Off Date means [ ].
Expiry Time means 4:00pm on [*].
[Offered Receivable Interest means that part of the Offered
Receivable Rights which consists of the Approved Seller's right,
title, benefit, interest (present and future) in, to, under or
derived from any Receivable Security and the Related Receivables.]
[For Land only].
Offered Receivable Rights means the Approved Seller's right, title
and interest in and to the Receivables and Receivable Securities
described in the attached computer disk and printout, and the related
Receivable Rights, except to the extent of the exclusion in
paragraphs (c) and (d) of the definition of Receivable Rights.
Purchase Price means [ ].
A reference to any clause is a reference to that clause in this Sale
Notice.
1.2 Interpretation
The provisions of the Master Trust Deed will apply to any contract
formed if the offer contained in this Sale Notice is accepted.
<PAGE>
Page 136
2. OFFER
Subject to the terms and conditions of this Sale Notice, the Approved
Seller, as legal and beneficial owner, offers to sell and assign the
Offered Receivable Rights (free from any Security Interest) to the
Trustee for the Purchase Price.
3. ACCEPTANCE
(a) The offer in clause 2 is irrevocable during the period up
to and including the Expiry Time.
(b) The Trustee may accept the offer contained in this Sale
Notice at any time prior to the Expiry Time by, and only
by, the payment by the Trustee to the Approved Seller (or
as it directs) of $[*] in same day funds [by bank cheque]
[to the following bank account: [*], Account Number [*].]
(c) Notwithstanding:
(i) satisfaction of all relevant conditions
precedent; or
(ii) any negotiations undertaken between the
Approved Seller and the Trustee prior to the
Trustee accepting the offer contained in
this Sale Notice,
the Trustee is not obliged to accept the offer contained
in this Sale Notice and no contract for the sale or
purchase of any Offered Receivable Rights will arise
unless and until the Trustee accepts the offer contained
in the Sale Notice in accordance with this clause.
(d) The offer contained in this Sale Notice may only be
accepted in relation to all the Offered Receivable
Rights.
(e) On the acceptance of the offer contained in this Sale
Notice, the Trustee shall:
(i) subject to the Master Trust Deed and any
relevant Series Notice, hold the beneficial
interest in the Offered Receivable Rights on
and from the Closing Date, free of any
set-off or counterclaim; and
(ii) not assume any obligation under the Offered
Receivable Rights.
4. CONSIDERATION
[(a) If the Trustee accepts the offer in this Sale Notice, the
Purchase Price shall be divided between the property
purchased as follows:
(i) the lesser of $100 or 5% of the Purchase
Price to that part of the Offered Receivable
Rights which is not part of the Offered
Receivable Interest; and
(ii) the balance to the Offered Receivable
Interest.] [Only for Mortgages]
[(b) On the payment of the Purchase Price, the Trustee shall
ensure that any Accrued Interest Adjustment (as defined
in the Series Notice) is made in accordance with the
Master Trust Deed and any relevant Series Notice.]
[(c) After the Closing Date, the Approved Seller will on the
next Payment Date pay to the Trustee, as an adjustment to
the Purchase Price, an amount equal to any Principal
Collections received by the Approved Seller in relation
to the
<PAGE>
Page 137
Purchased Receivables from the close of business on the
Cut-Off Date to but excluding the Closing Date. Such
payment will be discharged by the Trust Manager or the
Servicer depositing such amount in the relevant
Collection Account.]
5. ACKNOWLEDGEMENT
The Approved Seller acknowledges, agrees and confirms to the Trustee
that:
(a) (Master Trust Deed binding on it) the Master Trust Deed
is a valid and binding obligation of the Approved Seller
enforceable in accordance with its terms;
(b) (repeat representations) the Approved Seller repeats the
representations and warranties made by it in clause 8.6
of the Master Trust Deed in so far as they apply to the
Offered Receivable Rights;
(c) (description of Receivables)
(i) a description of the Receivables and
Receivable Securities is in the attached
computer disk and hard copy; and
(ii) each Receivable Security included or
referred to in the Offered Receivable Rights
constitutes an Eligible Receivable Security;
(d) (no default) no Title Perfection Event is subsisting as
at the date of this Sale Notice nor, if the offer is
accepted, will there be any Title Perfection Event
subsisting at the date the offer is accepted or the date
the purchase price is paid nor will any Title Perfection
Event result from the offer evidenced by this Sale Notice
or the transfer of the Offered Receivable Rights;
(e) (Authorisations) all necessary Authorisations for the
offer evidenced by this Sale Notice and the transfer of
the Offered Receivable Rights have been taken, or as the
case may be, obtained.
[6. MEMORANDUM OF SALE OF OFFERED RECEIVABLE INTEREST
Accompanying this Sale Notice is a Memorandum of the Agreement (in
the form of annexure C to the Master Trust Deed) in relation to
Receivable Securities relating to Mortgaged Property in Queensland,
Western Australia and Tasmania, which the Approved Seller undertakes
it will, if the Trustee accepts the offer of sale in this Sale
Notice, execute and within 30 days lodge for stamping and then return
to the Trustee duly stamped.]
7. GOVERNING LAW
This Sale Notice is governed by the laws of New South Wales.
- -----------------------------------------
Authorised Signatory of
[*]
<PAGE>
Page 138
CONFORMED COPY
ANNEXURE B
SELLER ACCESSION CERTIFICATE
DEED dated ________________________ between:
1. [NAME OF APPROVED SELLER] (A.C.N. [*]) (the Approved Seller);
2. WESTPAC SECURITIES ADMINISTRATION LIMITED (ACN 000 049 472) of Level
9, 66 Pitt Street, Sydney, New South Wales, 2000 as trustee of the
Series [*] WST Trust (the Trustee); and
3. THE MORTGAGE COMPANY PTY LIMITED (ACN 070 968 302) of Level 6, 228
Pitt Street, Sydney, New South Wales (the Trust Manager).
RECITALS
Under a Master Trust Deed (the Master Trust Deed) dated [*] 1997 between the
Trustee and The Mortgage Company Pty Limited, Trusts may be established to
purchase Receivables from the Approved Seller.
IT IS AGREED AS FOLLOWS
1. In this deed terms defined in the Master Trust Deed have the same meaning.
2. The Approved Seller shall as and from the date of this deed be an
Approved Seller for the purposes of the Master Trust Deed as if named
as a party to the Master Trust Deed in the capacity of an Approved
Seller. The Approved Seller agrees to comply with the Master Trust
Deed. All the terms and conditions of it shall bind the Approved
Seller accordingly, and it shall be entitled to all rights of an
Approved Seller under the Master Trust Deed.
3. The Approved Seller agrees to be a credit provider for the purposes
of regulation 75 of the Consumer Credit Code in relation to
Receivables disposed of by the Approved Seller.
4. This deed is governed by the laws of New South Wales.
5. Each attorney executing this deed states that he has no notice of the
revocation of his power of attorney.
SIGNED SEALED and DELIVERED )
on behalf of )
[*] LIMITED )
by its attorney )
in the presence of: ) --------------------------------
Signature
- -------------------------------------- --------------------------------
Witness Print name
- --------------------------------------
Print name
<PAGE>
Page 139
TRUSTEE
SIGNED SEALED and DELIVERED )
on behalf of )
WESTPAC SECURITIES )
ADMINISTRATION LIMITED )
by its attorney )
in the presence of: )
--------------------------------
Signature
- -------------------------------------- --------------------------------
Witness Print name
- --------------------------------------
Print name
TRUST MANAGER
SIGNED SEALED and DELIVERED )
on behalf of )
THE MORTGAGE COMPANY PTY )
LIMITED by its attorney )
in the presence of: )
--------------------------------
Signature
- -------------------------------------- --------------------------------
Witness Print name
- --------------------------------------
Print name
<PAGE>
Page 140
ANNEXURE C
MEMORANDUM OF AGREEMENT
AGREEMENT dated between:
1. [*] (ARBN [*]) incorporated in [*] (the Approved Seller), and
2. WESTPAC SECURITIES ADMINISTRATION LIMITED (ACN 000 049 472)
incorporated in New South Wales of Level 9, 66 Pitt Street, Sydney,
New South Wales, 2000 as trustee of the Series [*] WST Trust (the
Purchaser).
IT IS AGREED as follows.
The Approved Seller and the Trustee agree that the Approved Seller has sold to
the Trustee an equitable interest in the Approved Seller's right, title, benefit
and interest (present and future) in, to, under or derived from any Receivable
Security listed in the First Schedule and certain collections under those
Receivable Securities for the consideration specified in the Second Schedule.
FIRST SCHEDULE
(Receivable Securities)
(list all mortgages)
SECOND SCHEDULE
(Consideration)
The consideration payable by the Trustee for the sale of the Receivable
Securities was $*** and any further amounts as agreed between the parties.
- ---------------------------------------------------
Authorised signatory of the Approved Seller
- ---------------------------------------------------
Authorised signatory of the Trustee
<PAGE>
Page 141
ANNEXURE D
SERIES NOTICE
SEE ANNEXURE E OF THE TRUST DEED
FOR DETAILS TO BE INCLUDED
SERIES [] WST TRUST
SERIES NOTICE
1. INTRODUCTION
This Series Notice is issued on [*] 1997 by The Mortgage Company Pty
Limited (ACN 070 968 302) of Level 6, 228 Pitt Street, Sydney, New
South Wales as manager (Trust Manager) under the Master Trust Deed
(as defined below). It is issued pursuant and subject to the Master
Trust Deed dated [*] 1997 (the Master Trust Deed) between (among
others) the Trust Manager and Westpac Securities Administration
Limited (ACN 000 049 472) of Level 9, 66 Pitt Street, Sydney, New
South Wales as trustee of the Series [] WST Trust (the Trustee).
Each party to this Series Notice agrees to be bound by the
Transaction Documents as amended by this Series Notice in the
capacity set out with respect to them in this Series Notice or the
Master Trust Deed.
[The Mortgage Company Pty Limited] (the Servicer) agrees to service
the Purchased Receivables and Purchased Receivable Securities in
accordance with the Servicing Agreement.
2. DIRECTION AND TRUST BACK
(a) A Trust Back, entitled Westpac [] Trust Back, is created
in relation to Other Secured Liabilities secured by the
Purchased Receivable Securities.
(b) The parties agree that the Trust will be a Trust for the
purposes of the Transaction Documents.
3. DEFINITIONS AND INTERPRETATION
3.1 Definitions
Unless otherwise defined in this Series Notice, words and phrases
defined in the Master Trust Deed have the same meaning where used in
this Series Notice.
In this Series Notice, and for the purposes of the definitions in the
Master Trust Deed, the following terms have the following meanings
unless the contrary intention appears. These definitions apply only
in relation to the Series [] WST Trust, and do not apply to any other
Trust (as defined in the Master Trust Deed).
[*]
3.2 Interpretation
Clause 1.2 of the Master Trust Deed is incorporated into this Series
Notice as if set out in full, except that any reference to deed is
replaced by a reference to Series Notice.
<PAGE>
Page 142
3.3 Limitation of liability
(a) General
Clause 33 of the Master Trust Deed applies to the
obligations and liabilities of the Trustee and the Trust
Manager under this Series Notice.
(b) Liability of Trustee limited to its right of indemnity
(i) This Series Notice applies to the Trustee
only in its capacity as trustee of the Trust
and in no other capacity. A liability
arising under or in connection with this
Series Notice or the Trust can be enforced
against the Trustee only to the extent to
which it can be satisfied out of property of
the Trust out of which the Trustee is
actually indemnified for the liability. This
limitation of the Trustee's liability
applies despite any other provision of this
Series Notice and extends to all liabilities
and obligations of the Trustee in any way
connected with any representation, warranty,
conduct, omission, agreement or transaction
related to this Series Notice or the Trust.
(ii) The parties other than the Trustee may not
sue the Trustee personally or seek the
appointment of a liquidator, administrator,
receiver or similar person to the Trustee or
prove in any liquidation, administration or
arrangement of or affecting the Trustee.
(iii) The provisions of this clause 3.3 shall not
apply to any obligation or liability of the
Trustee to the extent that it is not
satisfied because under the Master Trust
Deed or the Series Notice or by operation of
law there is a reduction in the extent of
the Trustee's indemnification out of the
assets of the Trust, as a result of the
Trustee's fraud, negligence or breach of
trust.
(iv) It is acknowledged that the Trust Manager is
responsible under this agreement for
performing a variety of obligations relating
to the Trust. No act or omission of the
Trustee (including any related failure to
satisfy its obligations under this
agreement) will be considered fraud,
negligence or breach of trust of the Trustee
for the purpose of sub-paragraph (iii) to
the extent to which the act or omission was
caused or contributed to by any failure by
the Trust Manager or any other person (other
than a person who has been properly
appointed by the Trustee and for whom the
Trustee is responsible under this deed or
the relevant Transaction Documents) to
fulfil its obligations relating to the Trust
or by any other act or omission of the Trust
Manager or any other person (other than a
person who has been properly appointed by
the Trustee and for whom the Trustee is
responsible under this deed or the relevant
Transaction Documents).
(v) No attorney, agent, receiver or receiver and
manager appointed in accordance with this
agreement has authority to act on behalf of
the Trustee in a way which exposes the
Trustee to any personal liability and no act
or omission of any such person will be
considered fraud, negligence or breach of
trust of the Trustee for the purpose of
sub-paragraph (iii), if the Trustee has
exercised reasonable care in the selection
and supervision of such persons.
<PAGE>
Page 143
4. NOTES
[*]
5. CASHFLOW ALLOCATION METHODOLOGY
[*]
6. MASTER TRUST DEED
6.1 Completion of details in relation to Master Trust Deed
(a) (Trust Manager fee)
[*]
(b) (Trustee fee)
[*]
(c) (Servicing fee)
[*]
6.2 Amendments to Master Trust Deed
The Master Trust Deed is amended for the purpose of the Series [] WST
Trust as follows:
[*]
7. TRANSFERS TO WAREHOUSE TRUST
[The Trustee may, from time to time, direct the Trustee to transfer a
Purchased Receivable to a Warehouse Trust. That transfer:
(a) must be in accordance with clause 7 of the Master Trust
Deed; and
(b) must be for a consideration equal to the Unpaid Balance
of that Receivable.
The Trustee must comply with that direction.]
8. APPLICATION OF THRESHOLD RATE
[*]
9. BENEFICIARY
[*]
10. TITLE PERFECTION EVENTS
[*]
<PAGE>
Page 144
EXECUTED as a deed in Canberra.
Each attorney executing this deed states that he or she has no notice of
revocation or suspension of his or her power of attorney.
TRUSTEE
SIGNED SEALED and DELIVERED )
by WESTPAC SECURITIES )
ADMINISTRATION LIMITED in the )
presence of: )
--------------------------------
Signature
- -------------------------------------- --------------------------------
Witness Print name
- --------------------------------------
Print name
TRUST MANAGER/SERVICER
SIGNED SEALED and DELIVERED )
by THE MORTGAGE COMPANY )
PTY LIMITED in the presence of: )
--------------------------------
Signature
- -------------------------------------- --------------------------------
Witness Print name
- --------------------------------------
Print name
APPROVED SELLER
SIGNED SEALED and DELIVERED )
by WESTPAC BANKING CORPORATION )
in the presence of: )
--------------------------------
Signature
- -------------------------------------- --------------------------------
Witness Print name
- --------------------------------------
Print name
<PAGE>
Page 145
SCHEDULE
An Eligible Receivable means a Loan which, as at the Cut-Off Date for that Loan:
[*]
<PAGE>
Page 146
[Form to follow once finalised]
<PAGE>
ANNEXURE E
SERIES NOTICE CHECKLIST
<TABLE>
<CAPTION>
<S> <C>
Clause 1.1 definitions:
Approved Bank
Authorised Investments
Carryover Charge Off
Closing Date
Collection Account
Collections
Coupon
Coupon Payment Date
Cut-Off Date
Dealer Agreement
Eligibility Criteria
Enforcement Expenses
Expense
Hedge Agreement
Information Memorandum
Initial Invested Amount
Invested Amount
Liquidity Facility Agreement
Maturity Date
Mortgage Insurer
Principal Entitlement
Principal Repayment Date
Record Date
Redraw Facility Agreement
Related Security
</TABLE>
<PAGE>
Page 3
<TABLE>
<CAPTION>
<S> <C>
Relevant Document
Servicer's Report - information and format
Stated Amount
Support Facility
Threshold Rate
Title Perfection Event
Transaction Document
Trust Manager's Report - information and format
Unpaid Balance
Warehouse Facility Agreement
Clause 3.1(b) - Beneficiary's unit(s)
Clause 3.5(e) - restrictions relating to Seller Note on sale proceeds
Clause 3.5(h) - cashflow allocation methodology
Clause 4.2 - investment recommendation
Clause 4.10(a) - segregation of Assets contrary to Trust Deed
Clause 5.1 - Borrowing contrary to Trust Deed
Clause 5.3 - direction as to Support Facility
Clause 6 - origination procedure
Clause 7.1 - details of acquisition by Warehouse Trust
Clause 7.2(a) - information required in a Warehouse Trust Direction
Clause 7.7 - transfers between Trusts
Clause 8.5(a)(iii) - other conditions precedent to sale
Clause 8.6(vii) - Approved Seller representations
Clause 8.7(a) - Approved Seller undertakings
Clause 8.9(a) - Title Perfection Events contrary to Trust Deed
Clause 8.9(d) - Clean Up Offer
Clause 8.10(a)(i) - accrued interest to Approved Seller, together with
relevant date
</TABLE>
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Page 4
<TABLE>
<CAPTION>
<S> <C>
Clause 8.10(a)(ii) - principal received by Approved Seller, together with
relevant date
Clause 9.1 - details of acquisition from Warehouse Trust
Clause 10.1 - entry in Register contrary to Trust Deed.
Clause 10.4 - paying interest or principal contrary to Trust Deed
Clause 10.5 - denomination if different from $100,000 minimum and
$100,000 increments
Clause 10.8 - any discrimination between Noteholders
Clause 11.1 - Seller Note
Clause 12.2 - if Beneficiary interest is not assignable
---
Clause 13.1(a) - period for Note Issuance Direction if not 3 Business
Days
Clause 13.1(b) - other conditions precedent to issue of Notes
Clause 13.2(a)(viii) - additional information in Note Issuance Direction
Clause 13.3 - information to be included: Clause 13.3(a) is
mandatory; clause 13.3(b) is optional
Clause 13.7 - Dealer Agreement
Clause 13.8(d) - rating specified
Clause 14.1 - restrictions on Note transfer
Clause 14.2(b) - minimum transfer amount
Clause 15.1 - timing of Note Acknowledgement
Clause 16.1(p) - additional information required in the Register
Clause 16.5 - periods for closing of Register
Clause 17.1 - override meeting provisions in Trust Deed
Clause 17.12(a) - other powers of Extraordinary Resolution
Clause 18.1(a) - additional provisions relating to Trust Manager
Clause 18.10 - publication by Reuters
Clause 18.16(b) and (c) - when drawings to be made under Support Facilities
Clause 18.20 (g) - calculate Threshold Rate
Clause 19 - Trust Manager's fee
Clause 22.8(a) - if Servicer is not Custodian
---
Clause 23.1 - Trustee's fee
</TABLE>
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<TABLE>
<CAPTION>
<S> <C>
Clause 23.2 - reimbursement of Trustee's expenses
Clause 27.8 - deposits if contrary to Trust Deed
Clause 30.1 - applying income and capital of Trust
Clause 30.2(c) - distribution of Distributable Income
Clause 30.4 - manner in which shortfalls are to be borne by
Noteholders
Clause 33.18 - non-approved Seller nominated credit provider
</TABLE>
<PAGE>
Exhibit 4.4
WESTPAC SECURITIES ADMINISTRATION LIMITED
(Chargor)
PERPETUAL TRUSTEE COMPANY LIMITED
(Security Trustee)
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
(Note Trustee)
and
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED
(Trust Manager)
----------------------------
SERIES 1998-1G WST TRUST
SECURITY TRUST DEED
----------------------------
(C) Allen Allen & Hemsley
Sydney
Ref: AEJ [ ]
<PAGE>
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T A B L E O F C O N T E N T S
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1. DEFINITIONS AND INTERPRETATION ...................................... 1
1.1 Definitions ................................................ 1
1.2 Master Trust Deed definitions and Trust Document
amendments ................................................ 5
1.3 Interpretation ............................................. 5
1.4 Determination, statement and certificate sufficient evidence
5
1.5 Document or agreement ...................................... 5
1.6 Rights and obligations of Mortgagees ....................... 6
1.7 Transaction Document ....................................... 6
1.8 Trustee as trustee ......................................... 6
2. APPOINTMENT OF SECURITY TRUSTEE ..................................... 6
2.1 The Security Trustee ....................................... 6
2.2 Resolution of Conflicts .................................... 7
2.3 Duration of Trust .......................................... 7
2.4 Covenant ................................................... 7
3. CHARGE .............................................................. 7
3.1 Charge ..................................................... 7
3.2 Security ................................................... 7
3.3 Prospective liability ...................................... 8
4. NATURE OF CHARGE .................................................... 8
4.1 Priority ................................................... 8
4.2 Nature of Charge ........................................... 8
4.3 Dealing with Mortgaged Property ............................ 8
4.4 Crystallisation ............................................ 8
4.5 De-crystallisation ......................................... 9
5. COVENANTS AND WARRANTIES ............................................ 9
5.1 Covenant ................................................... 9
5.2 Negative covenants .........................................10
5.3 Warranty ...................................................10
5.4 Trust Manager's undertakings ...............................11
6. FURTHER ASSURANCES ..................................................11
6.1 Further assurances .........................................11
7. NOTE TRUSTEE ........................................................12
7.1 Capacity ...................................................12
7.2 Exercise of rights .........................................12
7.3 Instructions or directions .................................12
7.4 Payments ...................................................12
7.5 Notices ....................................................12
7.6 Bearer Noteholder as Couponholder ..........................12
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Page (ii)
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8. EVENTS OF DEFAULT ...................................................12
8.1 Events of Default ..........................................12
8.2 Rights of the Security Trustee upon Event of Default .......13
8.3 Notify Events of Default ...................................14
9. ENFORCEMENT .........................................................14
9.1 Power to enforce ...........................................14
9.2 No obligation to enforce ...................................14
9.3 Obligation to convene meeting ..............................14
9.4 Security Trustee to act in accordance with directions ......15
9.5 Security Trustee must receive indemnity ....................15
9.6 Limitation on rights of Mortgagees .........................15
9.7 Immaterial waivers .........................................16
9.8 Acts pursuant to resolutions ...............................16
9.9 Overriding provision .......................................16
10. APPOINTMENT OF RECEIVER .............................................16
10.1 Appointment ................................................16
10.2 Agent of Chargor ...........................................17
10.3 Receiver's powers ..........................................17
10.4 Receiver appointed after commencement of winding up ........19
10.5 Powers exercisable by the Security Trustee .................20
10.6 Withdrawal .................................................20
11. REMUNERATION OF SECURITY TRUSTEE ....................................20
11.1 Costs ......................................................20
11.2 Fee ........................................................20
11.3 Cessation of Fee ...........................................20
12. POWER OF ATTORNEY ...................................................20
13. COMPLETION OF BLANK SECURITIES ......................................21
14. PERFORMANCE OF CHARGOR'S OBLIGATIONS ................................21
15. STATUTORY POWERS ....................................................21
15.1 Powers in augmentation .....................................21
15.2 Notice not required ........................................21
16. APPLICATION OF MONEYS RECEIVED ......................................22
16.1 Priorities .................................................22
16.2 Moneys actually received ...................................23
16.3 Amounts contingently due ...................................23
16.4 Notice of subsequent Security Interests ....................23
16.5 Satisfaction of debts ......................................24
16.6 Payments into US$ Account ..................................24
16.7 Payments out of US$ Account ................................24
16.8 Excluded amounts ...........................................24
17. OTHER SECURITY INTERESTS OVER MORTGAGED PROPERTY ....................25
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Page (iii)
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18. PROTECTION OF MORTGAGEES, RECEIVER AND ATTORNEY .....................25
19. PROTECTION OF THIRD PARTIES .........................................25
19.1 No enquiry .................................................25
19.2 Receipt ....................................................26
20. EXPENSES, INDEMNITY .................................................26
20.1 Expenses ...................................................26
20.2 Indemnity ..................................................26
21. CURRENCY INDEMNITY ..................................................27
22. STAMP DUTIES ........................................................27
23. INTEREST ON OVERDUE AMOUNTS .........................................27
23.1 Accrual ....................................................27
23.2 Payment ....................................................27
23.3 Rate .......................................................28
24. CERTIFICATE AS TO AMOUNT OF SECURED MONEYS, ETC. ....................28
25. SURVIVAL OF REPRESENTATIONS .........................................28
26. INDEMNITY AND REIMBURSEMENT OBLIGATIONS .............................28
27. CONTINUING SECURITY .................................................28
28. OTHER SECURITIES ....................................................28
29. DISCHARGE OF THE CHARGE .............................................29
29.1 Release ....................................................29
29.2 Contingent liabilities .....................................29
29.3 Charge reinstated ..........................................29
30. AMENDMENT ...........................................................29
30.1 Approval of Trust Manager ..................................29
30.2 Extraordinary Resolution of Voting Mortgagees ..............30
30.3 Distribution of amendments .................................30
31. CHARGOR'S LIABILITY .................................................30
31.1 Capacity of Chargor under this deed ........................30
31.2 Limitation on Chargor's liability ..........................30
31.3 Rights against Mortgaged Property preserved ................30
31.4 Waiver of personal liability ...............................31
31.5 Unrestricted remedies ......................................31
31.6 Restricted remedies ........................................31
32. WAIVERS, REMEDIES CUMULATIVE ........................................31
33. CONSENTS AND OPINION ................................................32
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Page (iv)
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34. SEVERABILITY OF PROVISIONS ..........................................32
35. MORATORIUM LEGISLATION ..............................................32
36. ASSIGNMENTS .........................................................32
37. NOTICES .............................................................33
38. RELATIONSHIP OF MORTGAGEES TO SECURITY TRUSTEE ......................33
38.1 Instructions; extent of discretion .........................33
38.2 No obligation to investigate authority .....................33
38.3 Delegation .................................................34
38.4 Reliance on documents and experts ..........................34
38.5 Notice of transfer .........................................34
38.6 Notice of default ..........................................34
38.7 Security Trustee as Mortgagee ..............................34
38.8 Indemnity to Security Trustee ..............................35
38.9 Independent investigation ..................................35
38.10 No monitoring ..............................................35
38.11 Information ................................................35
38.12 Conflicts ..................................................35
38.13 No Liability ...............................................36
39. RETIREMENT AND REMOVAL OF SECURITY TRUSTEE ..........................36
39.1 Retirement .................................................36
39.2 Removal ....................................................36
39.3 Replacement ................................................37
40. MEETINGS OF MORTGAGEES ..............................................37
40.1 Limitation on Security Trustee's powers ....................37
40.2 Convening of meetings ......................................38
40.3 Notice of meetings .........................................38
40.4 Chairman ...................................................39
40.5 Quorum .....................................................39
40.6 Adjournment ................................................39
40.7 Voting procedure ...........................................40
40.8 Right to attend and speak ..................................40
40.9 Appointment of Proxies .....................................41
40.10 Corporate Representatives ..................................41
40.11 Rights of Representatives ..................................41
40.12 Extraordinary Resolutions ..................................41
40.13 Extraordinary Resolution binding on Mortgagees .............43
40.14 Minutes and records ........................................43
40.15 Written resolutions ........................................43
40.16 Further procedures for meetings ............................43
40.17 Note Trustee rights ........................................44
41. AUTHORISED SIGNATORIES ..............................................44
42. GOVERNING LAW AND JURISDICTION ......................................45
43. COUNTERPARTS ........................................................45
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Page (v)
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44. SET-OFF .............................................................45
45. ACKNOWLEDGEMENT BY CHARGOR ..........................................45
46. INFORMATION MEMORANDUM ..............................................45
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<PAGE>
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SERIES 1998-1G WST TRUST
SECURITY TRUST DEED
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DEED dated 1998 between:
1. WESTPAC SECURITIES ADMINISTRATION LIMITED (ACN 000 049 472) of Level
10, 130 Pitt Street, Sydney, New South Wales, in its capacity as
trustee of the Series 1998-1G WST Trust (the Chargor);
2. PERPETUAL TRUSTEE COMPANY LIMITED (ACN 000 001 007) of Level 7, 39
Hunter Street, Sydney, New South Wales (the Security Trustee, which
expression includes its successor for the time being as security
trustee under this deed);
3. WESTPAC SECURITISATION MANAGEMENT PTY LIMITED (ACN 081 709 211) of
Level 6, 60 Martin Place, Sydney, New South Wales (the Trust
Manager); and
4. MORGAN GUARANTY TRUST COMPANY OF NEW YORK acting through its office
at 60 Victoria Embankment, London EC4Y OJP, England (Note Trustee,
which expression shall, wherever the context requires, include any
other person or company for the time being a note trustee under the
Note Trust Deed).
RECITALS
A. The Chargor is the trustee, and the Trust Manager is the manager,
of the Trust.
B. Under the terms of the Master Trust Deed, the Chargor is authorised
to enter into this deed to charge the Trust Assets to secure the due
and punctual performance of the obligations of the Chargor under the
Trust Documents and the payment in full of the Secured Moneys to the
Mortgagees.
C. The Security Trustee enters into this deed for itself and as trustee
for each other Mortgagee.
D. The Note Trustee enters into this deed for itself and as trustee for
each Bearer Noteholder and Couponholder.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
The following definitions apply unless the context requires
otherwise.
Attorney means any attorney appointed under this deed or any
Collateral Security.
Bearer Noteholder means a Class A Noteholder or a Class B Noteholder.
Note Trustee means Morgan Guaranty Trust Company of New York, London
Branch, in its own capacity and as agent for the Bearer Noteholders
from time to time.
Charge means the charge created by this deed.
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Page 2
Chargor's Indemnity means:
(a) the Chargor's right of indemnity from the Trust Assets in
respect of liabilities incurred by the Chargor acting in
its capacity as Trustee of the Trust; and
(b) all equitable liens and other Security Interests which
the Chargor has over the Trust Assets.
Charge Release Date means, subject to clause 29.3, the date the
Security Trustee discharges the Charge and this deed under clause
29.1.
Collateral Security means any Security Interest, Guarantee or other
document or agreement at any time created or entered into in favour
of the Security Trustee as security for any Secured Moneys.
Event of Default means any of the events specified in clause 8.
Extraordinary Resolution in relation to the Voting Mortgagees means:
(a) a resolution passed at a meeting of the Voting Mortgagees
duly convened and held in accordance with the provisions
contained in this deed by a majority consisting of not
less than three quarters of the votes capable of being
cast at that meeting by Voting Mortgagees present in
person or by proxy; or
(b) a resolution in writing pursuant to clause 40.15 signed
by all the Voting Mortgagees or all of the class of
Voting Mortgagees (as the case may be).
Guarantee means any guarantee, indemnity, letter of credit, legally
binding letter of comfort or suretyship, or any other obligation or
irrevocable offer (whatever called and of whatever nature):
(a) to pay or to purchase;
(b) to provide funds (whether by the advance of money, the
purchase of or subscription for shares or other
securities, the purchase of assets, rights or services,
or otherwise) for the payment or discharge of;
(c) to indemnify against the consequences of default in the
payment of; or
(d) to be responsible otherwise for,
an obligation or indebtedness of another person, a dividend,
distribution, capital or premium on shares, stock or other interests,
or the insolvency or financial condition of another person.
Liquidation includes receivership, compromise, arrangement,
amalgamation, administration, reconstruction, winding up,
dissolution, assignment for the benefit of creditors, bankruptcy or
death.
Master Trust Deed means the Master Trust Deed for the WST Trusts
dated 14 February 1997 between the Chargor as Trustee and the Trust
Manager.
Mortgaged Property means the property mortgaged or charged by this
deed or any Collateral Security.
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Page 2
Mortgagee means:
(a) the Security Trustee in relation to its rights (held in
its own right or for the benefit of other Mortgagees)
under this deed;
(b) any Bearer Noteholder, in relation to its rights under
the Notes held by it;
(c) any Registered Noteholder, in relation to its rights
under the Notes held by it;
(d) any Approved Seller in relation to any relevant Accrued
Interest Adjustment;
(e) Westpac in relation to any Redraws;
(f) the Trust Manager in relation to its rights as Trust
Manager under the Trust Documents for the Trust;
(g) any Support Facility Provider in relation to its rights
under each Support Facility for the Trust (other than a
Mortgage Insurance Policy) to which it is a party;
(h) the Note Trustee in relation to its rights (held on its
own right or for the benefit of any Bearer Noteholders or
Couponholders) under the Transaction Documents; or
(i) each Paying Agent in relation to its rights under the
Transaction Documents.
Notice of Creation of Trust means the Notice of Creation of Trust
dated [*] 1998 issued under the Master Trust Deed in relation to the
Trust.
Power means a power, right, authority, discretion or remedy which is
conferred on the Security Trustee, a Mortgagee or a Receiver or
Attorney:
(a) by this deed or any Collateral Security; or
(b) by law in relation to this deed or any Collateral
Security.
Receiver means a receiver or receiver and manager appointed under
this deed or any Collateral Security.
Relevant Trust means a trust other than the Trust, constituted under
the Master Trust Deed, of which the Chargor is a trustee.
Representative means:
(a) in the case of a Bearer Noteholder, the Note Trustee (as
its representative);
(b) in the case of any other Mortgagee, a person who is
appointed as a proxy for that Mortgagee pursuant to
clause 40.9; and
(c) without limiting the generality of paragraph (a), in the
case of a Voting Mortgagee which is a body corporate, a
person who is appointed pursuant to clause 40.10 by the
Mortgagee.
Secured Moneys means all money which the Chargor (whether alone or
with another person) is or at any time may become actually or
contingently liable to pay to or for the account of any Mortgagee
(whether alone or with another person) for any reason whatever under
or in connection with a Trust Document.
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Page 4
It includes money by way of principal, interest, fees, costs,
indemnities, Guarantee, charges, duties or expenses, or payment of
liquidated or unliquidated damages under or in connection with a
Trust Document, or as a result of any breach of or default under or
in connection with, a Trust Document.
Where the Chargor would have been liable but for its Liquidation, it
will be taken still to be liable.
Series Notice means the Series Notice dated on or after the date of
this deed relating to the Trust.
Settlor means Leith Wintour.
Trust means the trust known as the Series 1998-1G WST Trust
established under the Notice of Creation of Trust, the Master Trust
Deed and the Series Notice.
Trust Assets means the Assets of the Trust from time to time as
defined in the Master Trust Deed, and includes the rights of the
Trustee under the Trust Documents in respect of the Trust and under
the Collection Account and the US$ Account.
Trust Document means each of:
(a) this deed;
(b) the Master Trust Deed;
(c) the Series Notice;
(d) the Notice of Creation of Trust;
(e) the Servicing Agreement in respect of the Trust;
(f) each Note;
(g) each Support Facility for the Trust;
(h) the Agency Agreement; or
(i) the Note Trust Deed.
Vesting Date means the day preceding the earliest of:
(a) the 80th anniversary of the date of this deed;
(b) the 21st anniversary of the date of the death of the last
survivor of the lineal descendants of King George V
living on the date of this deed; and
(c) the day after the Charge Release Date.
Voting Mortgagee means:
(a) for so long as the Secured Moneys of the Bearer
Noteholders are 75% or more of total Secured Moneys, the
Note Trustee alone; and
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Page 5
(b) at any other time (subject to clause 40.17):
(i) the Note Trustee, acting on behalf of the Bearer
Noteholders under the Note Trust Deed and clause 7;
and
(ii) each other Mortgagee (other than a Bearer
Noteholder).
1.2 Master Trust Deed definitions and Trust Document amendments
(a) Words and expressions which are defined in the Master
Trust Deed (as amended by the Series Notice) and the
Series Notice (including in each case by reference to
another agreement) have the same meanings when used in
this deed unless the context otherwise requires or unless
otherwise defined in this deed.
(b) No change to the Master Trust Deed or any other document
(including the order of payment set out in the Series
Notice) after the date of this deed will change the
meaning of terms used in this deed or adversely affect
the rights of the Security Trustee under this deed unless
the Security Trustee (subject to clause 40.17(d), with
the prior written consent of the Note Trustee) has agreed
in writing to the changes.
1.3 Interpretation
Clause 1.2 of the Master Trust Deed applies to this deed as if set
out in full and:
(a) a reference to an asset includes any real or personal,
present or future, tangible or intangible property or
asset and any right, interest, revenue or benefit in,
under or derived from the property or asset;
(b) an Event of Default subsists until it has been waived in
writing by the Security Trustee;
(c) a reference to an amount for which a person is
contingently liable includes an amount which that person
may become actually or contingently liable to pay if a
contingency occurs, whether or not that liability will
actually arise; and
(d) wilful default means, in respect of the Security Trustee,
any wilful failure to comply with or wilful breach of any
of its obligations under this deed, other than a wilful
failure or wilful breach which:
(i) is in accordance with a lawful court order or
direction or otherwise required by law; or
(ii) is in accordance with an instruction or direction
from the Note Trustee or the Voting Mortgagees.
1.4 Determination, statement and certificate sufficient evidence
Except where otherwise provided in this deed any determination,
statement or certificate by the Security Trustee or an Authorised
Signatory of the Security Trustee provided for in this deed is
sufficient evidence of each thing determined, stated or certified
until proven wrong.
1.5 Document or agreement
A reference to:
(a) an agreement includes a Security Interest, Guarantee,
undertaking, deed, agreement or legally enforceable
arrangement whether or not in writing; and
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Page 6
(b) a document includes an agreement (as so defined) in
writing or a certificate, notice, instrument or document.
A reference to a specific agreement or document includes it as
amended, novated, supplemented or replaced from time to time, except
to the extent prohibited by this deed.
1.6 Rights and obligations of Mortgagees
(a) Each Mortgagee is entitled to the benefit of the
obligations (including warranties) of each of the
Security Trustee, the Chargor and any other person under
this deed and any Collateral Security.
(b) No Mortgagee is entitled to enforce this deed or any
Collateral Security other than through the Security
Trustee.
(c) Each Mortgagee is bound by this deed and each Collateral
Security.
(d) No Mortgagee is responsible for the obligations of the
Security Trustee or any other Mortgagee.
(e) The provisions of this deed are binding on the Security
Trustee, the Chargor and the Mortgagees and all persons
claiming through them, respectively.
1.7 Transaction Document
This deed is a Transaction Document for the purposes of the Master
Trust Deed.
1.8 Trustee as trustee
In this deed, except where provided to the contrary:
(a) a reference to the Chargor is a reference to the Chargor
in its capacity as trustee of the Trust only, and in no
other capacity; and
(b) a reference to the assets, business, property or
undertaking of the Chargor is a reference to the assets,
business, property or undertaking of the Chargor only in
the capacity described in paragraph (a) above.
2. APPOINTMENT OF SECURITY TRUSTEE
2.1 The Security Trustee
The Security Trustee:
(a) is appointed to act as trustee on behalf of the Mortgagees
on the terms and conditions of this deed; and
(b) acknowledges and declares that it:
(i) holds the sum of $10.00 received on the date of
this deed from the Settlor; and
(ii) will hold the benefit of the Charge, the
Mortgaged Property and the benefit of each of the
Trust Documents to which it is a party,
6
<PAGE>
in each case, on trust for each Mortgagee, in accordance with the
terms and conditions of this deed.
2.2 Resolution of Conflicts
(a) Subject to the provisions of this deed, if there is at any
time a conflict between a duty owed by the Security
Trustee to any Mortgagees or class of Mortgagees, and a
duty owed by it to another Mortgagee or class of
Mortgagee, the Security Trustee must give priority to the
interests of the Noteholders (which in the case of the
Bearer Noteholders shall be determined by the Note Trustee
acting on their behalf (as provided in clause 40.17)).
(b) Subject to the provisions of this deed (other than
paragraph (a)), the Security Trustee must give priority to
the interests only of the Class A Noteholders and the
holders of Registered Notes if, in the Security Trustee's
opinion, there is a conflict between the interests of the
Class A Noteholders and the holders of the Registered
Notes and the interests of the Class B Noteholders or the
other persons entitled to the benefit of the Charge.
(c) Provided that the Security Trustee acts in good faith, it
shall not incur any liability to any Mortgagee for giving
effect to paragraph (a) or (b).
2.3 Duration of Trust
The Trust established under this deed commences on the date of this
deed and ends on the Vesting Date unless determined earlier.
2.4 Covenant
The Security Trustee covenants for the benefit of Westpac that it
will comply with clause 8.4(l)(i) of the Master Trust Deed in
relation to any Receivable Security which the Trustee or Westpac has
notified to the Security Trustee is affected by a Trust Back.
3. CHARGE
3.1 Charge
(a) Subject to paragraph (b), the Chargor charges to the
Security Trustee, for the Security Trustee and as trustee
for the Mortgagees all of the present and future Trust
Assets and undertaking of the Trust.
(b) The Charge does not charge any Trust Assets as at the
date of this deed which on the date of this deed are, or
are taken under the applicable stamp duties legislation
of the relevant jurisdiction to be, situated in any State
or Territory of Australia other than the Australian
Capital Territory or the Northern Territory.
3.2 Security
(a) The security created by this deed secures the due and
punctual payment of the Secured Moneys.
(b) This deed is given in consideration of the Security
Trustee and the Mortgagees entering the Trust Documents
and for other valuable consideration received.
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Page 8
3.3 Prospective liability
For the purpose of the Corporations Law the maximum prospective
liability (as defined in the Corporations Law) secured by this deed
at any time is A$1,000,000,000 or its equivalent.
4. NATURE OF CHARGE
4.1 Priority
The Charge is a first charge and takes priority over all Security
Interests that have been granted over the Mortgaged Property.
4.2 Nature of Charge
The Charge operates, subject to clause 4.4, as a floating charge
only, over all the Mortgaged Property.
4.3 Dealing with Mortgaged Property
(a) Except with the prior written consent of the Security
Trustee and (subject to clause 40.17(d)) the Note
Trustee, or as expressly permitted in any Trust Document,
the Chargor shall not, and the Trust Manager shall not
direct the Chargor to:
(i) create or allow to exist any Security Interest
over any Mortgaged Property; or
(b) in any other way:
(A) dispose of;
(B) create or allow any interest in; or
(C) part with possession of,
any Mortgaged Property, except, subject to
the Trust Documents, any disposal of or
dealing with any asset for the time being
subject to the floating charge in the
ordinary course of its ordinary business.
(b) Where by law a Mortgagee may not restrict the creation of
any Security Interest over an asset ranking after the
Charge, paragraph (a) will not restrict that creation.
However, 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 Security Trustee.
4.4 Crystallisation
The floating charge referred to in clause 4.2 will automatically and
immediately crystallise and operate as a fixed charge:
(a) in respect of any asset:
(i) upon notice to the Chargor from the Security
Trustee (which it may only give following an Event
of Default);
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(ii) if without the prior written consent of the
Security Trustee (and, subject to clause
40.17(d), the Note Trustee), the Chargor:
(A) creates or allows any Security Interest
over;
(B) sells, leases or otherwise disposes of;
(C) creates or allows any interest in; or
(D) parts with possession of,
that asset in breach of a Trust Document, or
agrees or attempts to do so or takes any step
towards doing so;
(iii) on the Commissioner of Taxation or his delegate or
successor signing a notice under:
(A) s218 or s255 of the Income Tax Assessment
Act 1936;
(B) s74 of the Sales Tax Assessment Act 1992;
or
(C) any similar legislation,
which will affect that asset; or
(iv) on a Government Agency taking any step which may
result in an amount of Tax or an amount owing to a
Government Agency ranking ahead of the floating
charge with respect to that asset; or
(b) in respect of all the Mortgaged Property:
(i) if an Insolvency Event occurs with respect to the
Chargor; or
(ii) on the security constituted by this deed being
enforced in any way.
Except where expressly stated, no notice or action by any Mortgagee
is necessary for the charge to crystallise.
4.5 De-crystallisation
The Security Trustee may at any time release any asset which has
become subject to a fixed charge under clause 4.4 from the fixed
charge by notice to the Chargor. That asset will then again be
subject to the floating charge and to the further operation of that
clause. The Security Trustee must notify the Designated Rating Agency
for each Class of Notes of any such release.
5. COVENANTS AND WARRANTIES
5.1 Covenant
(a) The Chargor acknowledges its indebtedness to each
Mortgagee in respect of the relevant Secured Moneys. The
Chargor shall duly and punctually pay the Secured Moneys.
After an Event of Default (whether or not it subsists) it
will pay the Secured Moneys when demand is made under
Clause 8.2.
(b) The Chargor shall use its best endeavours to ensure that
no Event of Default occurs.
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(c) The Chargor will ensure that it complies with its
material obligations under the Trust Documents.
(d) The Chargor will give to the Security Trustee or the Note
Trustee a copy of the Register and any information
relating to the Trust that the Security Trustee or the
Note Trustee (as the case may be) reasonably requests in
connection with the exercise and performance of its
powers and obligations under this deed, including without
limitation:
(i) the identity, and notice details of, each
Mortgagee and Beneficiary; and
(ii) the Secured Moneys owing to each Mortgagee.
(e) The Chargor shall cause this deed to be lodged for
registration with the Australian Securities Commission
before it issues a Note.
5.2 Negative covenants
The Chargor shall not do, nor shall the Trust Manager direct the
Chargor to do, any of the following without the prior written consent
of the Security Trustee (and, subject to clause 40.17(d), the Note
Trustee) and without prior written confirmation from the Designated
Rating Agency of the rating for each class of Notes in relation to
the Trust and the Notes except as permitted by this deed or the
Master Trust Deed:
(a) (no Financial Indebtedness): create, incur, assume,
permit or suffer to exist any Financial Indebtedness
except for:
(i) the Notes;
(ii) Financial Indebtedness arising under the Trust
Documents in relation to the Trust (including
under a Support Facility); or
(iii) Financial Indebtedness which is fully subordinated
to the Secured Moneys or is non-recourse other
than with respect to proceeds in excess of those
needed to pay the Secured Moneys, and which does
not constitute a claim against the Chargor in the
event that those excess proceeds are insufficient
to pay that subordinated Financial Indebtedness;
or
(iv) Financial Indebtedness when the Chargor has
received written confirmation from the Designated
Rating Agency for each Class of Notes that it will
not result in any reduction of the rating assigned
to the Notes by the Designated Rating Agencies;
(b) (no release under Trust Documents): give any release or
discharge (whether full, partial or conditional) to any
person in respect of their obligations under any of the
Trust Documents relating to the Trust, except as
contemplated by the Trust Documents;
(c) (other activities) not engage in any business or
activity other than as contemplated in the Trust
Documents;
(d) (bank accounts) not open any bank account not specified
in the Trust Documents; and
(e) (Security Interest) not create any other Security
Interest over the Mortgaged Property.
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5.3 Warranty
The Chargor makes the following representations and warranties.
(a) (Trust Documents representations and warranties) All
representations and warranties of the Chargor in the
Trust Documents are true or, if not yet made, will be
true when made.
(b) (Good title) The Chargor is the sole equitable owner of
the Mortgaged Property and has the power under the Master
Trust Deed to enter into this deed and to charge in the
manner provided in this deed the Mortgaged Property.
Subject only to the Master Trust Deed and this deed, the
Mortgaged Property is free of all other Security
Interests.
(c) (Trust validly created) The Trust has been validly
created and is in existence at the date of this deed.
(d) (Sole Trustee) The Chargor has been validly appointed as
trustee of the Trust and is presently the sole trustee of
the Trust.
(e) (Master Trust Deed) The Trust is constituted pursuant to
the Master Trust Deed.
(f) (Right of indemnity) Except as expressly provided in the
Master Trust Deed or the Series Notice or statute it has
not limited in any way, and it has no liability which may
be set off against, the Chargor's Indemnity.
(g) (No proceedings to remove) No notice has been given to
the Chargor and, to the Chargor's knowledge, no
resolution has been passed or direction has been given,
removing the Chargor as trustee of the Trust.
5.4 Trust Manager's undertakings
The Trust Manager undertakes to the Security Trustee to promptly give
to the Security Trustee and the Note Trustee:
(a) a copy of each custody audit relating to the Trust given
under the Servicing Agreement;
(b) a copy of each Trust Manager's Report given in relation
to the Trust;
(c) each audit report issued by the Auditor in relation to
the Trust; and
(d) upon request from the Security Trustee or the Note
Trustee (as the case may be), a copy of each Trust
Document and details and information relating to:
(i) the identity, and notice details of, each Support
Facility Provider; and
(ii) the Secured Moneys owing to each Support Facility
Provider.
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6. FURTHER ASSURANCES
6.1 Further assurances
Whenever the Security Trustee reasonably requests the Chargor to do
anything in order:
(a) more satisfactorily to mortgage, assure or secure the
Mortgaged Property to the Mortgagees or the Security
Trustee's nominee in a manner not inconsistent with this
deed or any Trust Document; or
(b) to aid in the execution or exercise of any Power,
the Chargor shall do it immediately, subject to any liability it
incurs being covered by the Chargor's Indemnity. It may include
registering this deed, executing or registering any other document or
agreement, delivering Trust Documents or evidence of title and
executing and delivering blank transfers.
7. NOTE TRUSTEE
7.1 Capacity
The Note Trustee is a party to this deed in its capacity as trustee
for the Bearer Noteholders from time to time under the Note Trust
Deed.
7.2 Exercise of rights
(a) The rights, remedies and discretions of the Bearer
Noteholders under this deed including all rights to vote
or give instructions or consent to the Security Trustee
and to enforce any undertakings or warranties under this
deed, may only be exercised by the Note Trustee on behalf
of the Bearer Noteholders in accordance with the Note
Trust Deed.
(b) The Bearer Noteholders may only exercise enforcement
rights in respect of the Mortgaged Property through the
Note Trustee and only in accordance with this deed.
7.3 Instructions or directions
The Security Trustee may rely on any instructions or directions given
to it by the Note Trustee as being given on behalf of all Bearer
Noteholders from time to time and need not inquire whether the Note
Trustee or the Bearer Noteholders from time to time have complied
with any requirements under the Note Trust Deed or as to the
reasonableness or otherwise of the Note Trustee.
7.4 Payments
Any payment to be made to a Bearer Noteholder under this deed may be
made to the Note Trustee or a Paying Agent on behalf of that Bearer
Noteholder.
7.5 Notices
Any notice to be given to a Bearer Noteholder under this deed may be
given to the Note Trustee on behalf of that Bearer Noteholder.
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7.6 Bearer Noteholder as Couponholder
In this deed, except as expressly stated, a reference to a Bearer
Noteholder includes a reference to Couponholder and the holder of any
Talons.
8. EVENTS OF DEFAULT
8.1 Events of Default
Each of the following is an Event of Default (whether or not it is
within the control of the Chargor).
(a) (Failure to pay) The Chargor fails to pay:
(i) any Coupon within 10 Business Days of the Payment
Date on which the Coupon was due to be paid,
together with all interest accrued and payable on
that Coupon; and
(ii) any other Secured Moneys, within 10 Business Days
of the due date for payment (or within any
applicable grace period agreed with the Mortgagee,
or where the Mortgagee is a Bearer Noteholder the
Note Trustee, to whom the Secured Moneys relate).
(b) (Breach of obligation) The Chargor fails to perform or
observe any other provisions (other than an obligation
referred to in paragraph (a)) of this deed or a Trust
Document where such failure will have an Adverse Effect
and that default (if in the opinion of the Security
Trustee capable of remedy (that opinion, subject to
clause 40.17(d), having been approved in writing by the
Note Trustee)) is not remedied within 30 days after
written notice (or such longer period as may be specified
in the notice, that longer period, subject to clause
40.17(d), having been approved by the Note Trustee) from
the Security Trustee requiring the failure to be
remedied.
(c) (Insolvency) An Insolvency Event occurs in relation to
the Chargor.
(d) (Priority of Charge) The Charge is not or ceases to be a
first ranking charge over the Trust Assets, or any other
obligation of the Chargor (other than as mandatorily
preferred by law) ranks ahead of or pari passu with any
of the Secured Moneys.
(e) (Enforcement of security) Any Security Interest over the
Trust Assets is enforced.
(f) (Vitiation of Trust Documents)
(i) All or any part of any Trust Document (other than
the Basis Swap and Redraw Facility) is terminated
or is or becomes void, illegal, invalid,
unenforceable or of limited force and effect; or
(ii) a party becomes entitled to terminate, rescind or
avoid all or part of any Trust Document (other
than the Basis Swap and Redraw Facility).
(g) (Trust) Without the prior consent of the Security Trustee
(that consent, subject to clause 40.17(d), having been
approved by the Note Trustee):
(i) the Trust is wound up, or the Chargor is required
to wind up the Trust under the Master Trust Deed
or applicable law, or the winding up of the Trust
commences;
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(ii) the Trust is held or is conceded by the Chargor
not to have been constituted or to have been
imperfectly constituted;
(iii) unless another trustee is appointed to the Trust
under the Trust Documents, the Chargor ceases to
be authorised under the Trust to hold the property
of the Trust in its name and to perform its
obligations under the Trust Documents.
8.2 Rights of the Security Trustee upon Event of Default
At any time after an Event of Default occurs, the Security Trustee
may (subject to clause 40.17(d), with the prior written consent of
the Note Trustee), and shall (subject to clauses 9.2, 9.3, 9.4 and
9.5) if so directed by an Extraordinary Resolution of the Voting
Mortgagees:
(a) declare the Charge immediately enforceable;
(b) declare the Secured Moneys immediately due and payable;
(c) give a notice crystallising the charge in relation to any
or all of the Mortgaged Property under clause 4.4; and/or
(d) appoint a Receiver over the Trust Assets, or exercise the
powers that a Receiver would otherwise have if appointed
under this deed
The Security Trustee may exercise its rights under this clause
notwithstanding any delay or previous waiver.
8.3 Notify Events of Default
Each of the Chargor and the Trust Manager must promptly notify the
Note Trustee, the Security Trustee, and each of the Designated Rating
Agencies if, to the knowledge of its officers who are responsible
for the administration of the Trust, it becomes aware of the
occurrence of an Event of Default, Trustee's Default, Servicer
Transfer Event, Title Perfection Event or Trust Manager's Default
including full details of that Event of Default, Trustee's Default,
Servicer Transfer Event, Title Perfection Event or Trust Manager's
Default (as the case may be).
9 . ENFORCEMENT
9.1 Power to enforce
At any time after the Charge becomes enforceable, the Security
Trustee may, at its discretion and without further notice (subject to
the terms of this deed) take such proceedings as it may think fit to
enforce any of the provisions of this deed but it may not take any
action referred to in clauses 8.2(a) to (d) (inclusive) unless
directed to do so by an Extraordinary Resolution of Voting Mortgagees
or a written resolution signed by all Voting Mortgagees.
9.2 No obligation to enforce
Subject to clause 9.3, pending the receipt of directions from the
Voting Mortgagees as contemplated by clauses 9.3 and 9.4, the
Security Trustee shall not be bound to take any action or give any
consent or waiver or make any determination under this deed
(including, without limiting the generality of the above, to appoint
any Receiver, to declare the Charge enforceable or the Secured Moneys
immediately due and payable pursuant to clause 8.2 or to take any
other proceedings referred to in clause 9.1). Nothing in this clause
shall affect the operation of clause 4.4 or the Charge becoming
enforceable prior to the Security Trustee receiving directions from
the Mortgagees.
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9.3 Obligation to convene meeting
Following the Security Trustee becoming actually aware of the occurrence
of an Event of Default in accordance with Clause 38.6, it shall, subject
to clause 9.7, promptly convene a meeting of the Voting Mortgagees in
accordance with this deed, at which it shall seek directions from the
Voting Mortgagees by way of an Extraordinary Resolution of the Voting
Mortgagees (or a written resolution signed by all Voting Mortgagees)
regarding the action it should take as a result of that Event of Default
including whether to do any of the things referred to in clauses 8.2(a)
to (d) inclusive.
9.4 Security Trustee to act in accordance with directions
(a) Subject to sub-clause (b), the Security Trustee shall take all
action necessary to give effect to any Extraordinary Resolution
of the Voting Mortgagees and shall comply with all directions
contained in or given pursuant to any Extraordinary Resolution
of the Voting Mortgagees.
(b) The obligation of the Security Trustee pursuant to sub-clause
(a) is subject to:
(i) this deed; and
(ii) the Security Trustee being adequately indemnified from
the Trust Assets or the Security Trustee receiving
from the Voting Mortgagees an indemnity in a form
reasonably satisfactory to the Security Trustee (which
may be by way of an Extraordinary Resolution of the
Voting Mortgagees) against all actions, proceedings,
claims and demands to which it may render itself
liable, and all costs, charges, damages and expenses
which it may incur, in giving effect to an
Extraordinary Resolution of the Voting Mortgagees.
The Security Trustee shall first claim on its indemnity from the
Trust Assets before it claims on any indemnity from the
Mortgagees, including any indemnity provided under clause 9.5.
9.5 Security Trustee must receive indemnity
If:
(a) the Security Trustee convenes a meeting of the Voting
Mortgagees, or is required by an Extraordinary Resolution to
take any action under this deed, and advises the Voting
Mortgagees that the Security Trustee will not act in relation to
the enforcement of this deed unless it is personally indemnified
by the Voting Mortgagees to its reasonable satisfaction against
all actions, proceedings, claims and demands to which it may
render itself liable, and all costs, charges, damages and
expenses which it may incur, in relation to the enforcement of
this deed and put in funds to the extent to which it may become
liable (including costs and expenses); and
(b) the Voting Mortgagees refuse to grant the requested indemnity,
and put it in funds,
then the Security Trustee will not be obliged to act in relation to that
enforcement. In those circumstances, the Voting Mortgagees may exercise
such Powers as they determine by Extraordinary Resolution.
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9.6 Limitation on rights of Mortgagees
Subject to this deed, the powers, rights and remedies conferred on the
Security Trustee by this deed are exercisable by the Security Trustee
only, and no Mortgagee is entitled without the written consent of the
Security Trustee to exercise the same or any of them. Without limiting
the generality of the foregoing, no Mortgagee is entitled to enforce the
Charge or the provisions of this deed or to appoint or cause to be
appointed a Receiver to any of the Mortgaged Property or otherwise to
exercise any power conferred by the terms of any applicable law on
charges except as provided in this deed.
9.7 Immaterial waivers
(a) The Security Trustee may (subject to clause 40.17(d), with the
prior written consent of the Note Trustee) agree, on any terms
and conditions as it may deem expedient, having first given
notice to any Designated Rating Agency for each Class of Notes,
but without the consent of the other Mortgagees and without
prejudice to its rights in respect of any subsequent breach, to
any waiver or authorisation of any breach or proposed breach of
any of the terms and conditions of the Trust Documents or any of
the provisions of this deed which is not, in the opinion of the
Security Trustee, materially prejudicial to the interests of the
Mortgagees and may determine (subject to clause 40.17(d), with
the prior written consent of the Note Trustee) that any event
that would otherwise be an Event of Default shall not be treated
as an Event of Default for the purpose of this deed.
(b) No waiver, authorisation or determination shall be made in
contravention of any directions contained in an Extraordinary
Resolution of Voting Mortgagees.
(c) No waiver, authorisation or determination may, once given, be
overridden or withdrawn by an Extraordinary Resolution of Voting
Mortgagees but the Security Trustee may (subject to clause
40.17(d), with the prior written consent of the Note Trustee)
give a waiver, authorisation or determination on terms that
allow it to be overridden or withdrawn.
(d) Any waiver, authorisation or determination shall, if the
Security Trustee so requires, be notified to the Voting
Mortgagees by the Trust Manager as soon as practicable
thereafter in accordance with this deed.
9.8 Acts pursuant to resolutions
The Security Trustee shall not be responsible for having acted in good
faith upon any resolution purporting to have been passed at any meeting
of the Voting Mortgagees in respect of which minutes have been made and
signed, even though it may subsequently be found that there was some
defect in the constitution of that meeting or the passing of that
resolution or that for any reasons that resolution was not valid or
binding upon the Voting Mortgagees.
9.9 Overriding provision
Notwithstanding any other provision of this deed:
(a) the Security Trustee is not obliged to do or omit to do
anything including entering into any transaction or incurring
any liability unless the Security Trustee's liability is limited
in a manner satisfactory to the Security Trustee in its absolute
discretion; and
(b) the Security Trustee will not be under any obligation to
advance or use its own funds for the payment of any costs,
expenses or liabilities, except in respect of its own fraud,
negligence or breach of trust.
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10. APPOINTMENT OF RECEIVER
10.1 Appointment
To the extent permitted by law and subject to clause 9, at any time
after the Charge becomes enforceable under this deed the Security
Trustee or any Authorised Signatory of the Security Trustee may:
(a) appoint any person or any 2 or more persons jointly or
severally or both to be a receiver or receiver and manager of
all or any of the Mortgaged Property;
(b) remove any Receiver;
(c) appoint another Receiver in addition to or in place of a
Receiver; or
(d) fix or vary the remuneration of a Receiver.
10.2 Agent of Chargor
(a) Subject to clauses 10.2(b) and 10.4, every Receiver is the
agent of the Chargor. The Chargor alone is responsible for his
acts and defaults.
(b) Any Receiver will be the agent of the Chargor in its capacity
as trustee of the Trust only; and
(i) notwithstanding anything else in this deed or at law,
the Chargor in its personal capacity is not
responsible for any negligent act or negligent
omission of the Receiver.
10.3 Receiver's powers
In addition to any powers granted by law, and except to the extent
specifically excluded by the terms of his appointment, every Receiver
has power to do anything in respect of the Mortgaged Property that the
Chargor could do (including, without limitation, having regard to its
powers under the Master Trust Deed). His powers include the following.
(a) (Take possession and manage) He may take possession of, get in
and manage the Mortgaged Property.
(b) (Lease) He may lease any of the Mortgaged Property for any term
(whether or not the Receiver has taken possession).
(c) (Carry on business) He may carry on or concur in carrying on any
business.
(d) (Acquire any asset) He may acquire in any manner any asset
(including to take it on lease). After that acquisition it will
be included in the Mortgaged Property.
(e) (Maintain and improve the Mortgaged Property) He may do
anything to maintain, protect or improve any of the Mortgaged
Property or to obtain income or returns from any of the
Mortgaged Property (including by development, sub-division,
construction, alteration, or repair, of any property or by
pulling down, dismantling or scrapping, any property).
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(f) (Raise money) He may:
(i) borrow or raise any money from any Mortgagee or any
other person approved by the Security Trustee;
(ii) give Guarantees; and
(iii) grant any Security Interest over any of the
Mortgaged Property to secure that money or Guarantee.
That Security Interest may rank in priority to or
equally with or after, the security created by this
deed.It may be given in the name of the Chargor or
otherwise.
(g) (Lend) He may lend money or provide financial accommodation.
(h) (Sell)
(i) He may sell any of the Mortgaged Property (whether or
not the Receiver has taken possession).
(ii) Without limitation, any sale may be made:
(A) by public auction, private treaty or tender;
(B) for cash or on credit;
(C) in one lot or in parcels;
(D) either with or without special conditions or
stipulations as to title or time or mode of
payment of purchase money or otherwise;
(E) with power to allow the whole or any part of
the purchase money to be deferred (whether
with or without any security); and
(F) whether or not in conjunction with the sale of
any property by any person.
(i) (Options) He may grant or take put or call options.
(j) (Sever fixtures) He may sever fixtures.
(k) (Employ) He may employ or discharge any person as employee,
contractor, agent, professional adviser, consultant or
auctioneer for any purpose.
(l) (Compromise) He may make or accept any arrangement or
compromise.
(m) (Give receipts) He may give receipts for money and other
assets.
(n) (Perform and enforce agreements) He may:
(i) perform or enforce;
(ii) exercise or refrain from exercising the Chargor's
rights and powers under; or
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(iii) obtain the benefit in other ways of,
any documents or agreements or rights which form part of the
Mortgaged Property and any documents or agreements entered into
in exercise of any Power.
(o) (Vary and terminate agreements) He may vary, rescind or
terminate any document or agreement (including surrender or
accept the surrender of leases).
(p) (Authorisations) He may apply for, take up, transfer or
surrender any Authorisation or any variation of any
Authorisation.
(q) (Take insolvency proceedings) He may make debtors bankrupt,
wind up companies and do any thing in relation to any actual
or contemplated Liquidation (including attend and vote at
meetings of creditors and appoint proxies).
(r) (Take proceedings) He may commence, defend, conduct, settle,
discontinue or compromise proceedings in the name of the
Chargor or otherwise.
(s) (Execute Documents) He may enter into and execute documents or
agreements on behalf of himself or the Chargor.
(t) (Operate bank accounts) He may operate any bank account
comprising part of the Mortgaged Property and open and operate
any further bank account.
(u) (Surrender Mortgaged Property) He may surrender, release or
transfer any of the Mortgaged Property.
(v) (Exchange Mortgaged Property) He may exchange with any person
any of the Mortgaged Property for other property.
(w) (Promote companies) He may promote the formation of companies
with a view to purchasing any of the Mortgaged Property or
assuming the obligations of the Chargor or otherwise.
(x) (Delegate) He may delegate to any person approved by the
Security Trustee any of his Powers (including delegation).
(y) (Have access) He may have access to and make use of the
premises, plant, equipment, and records and accounting and
other services of the Chargor and the services of its
staff.
(z) (Vote) He may exercise any voting or other rights or powers
in respect of any of the Mortgaged Property and do anything
in relation to shares or marketable securities.
(aa) (Other outgoings) He may pay any outgoing or
indebtedness of the Chargor or any other person.
(ab) (Security Interests) He may redeem any Security Interest or
acquire it and any debt secured by it.
(ac) (Insure) He may take out insurance.
(ad) (Insurance claims) He may make, enforce, compromise and settle
all claims in respect of insurance.
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(ae) (Incidental power) He may do anything incidental to the
exercise of any other Power.
All of the above paragraphs are to be construed independently. None
limits the generality of any other.
10.4 Receiver appointed after commencement of winding up
The power to appoint a Receiver may be exercised even though:
(a) an order may have been made or a resolution may have been
passed to wind up the Chargor; and
(b) a receiver appointed in those circumstances may not, or may
not in some respects specified by the Receiver, act as the
agent of the Chargor.
10.5 Powers exercisable by the Security Trustee
Whether or not a Receiver has been appointed, the Security Trustee may
exercise any Power of a Receiver at any time after the Charge becomes
enforceable under this deed in addition to any Power of the Mortgagees
and without giving notice. It may exercise those Powers and its Powers
without taking possession or being liable as mortgagee in possession.
Without limitation, it may exercise those Powers and its Powers directly
or through one or more agents. In the latter event, anything done or
incurred by such an agent will be taken to be done or incurred by the
Security Trustee provided that the Security Trustee will have no
liability in respect of the negligence or default of any agent appointed
by the Security Trustee with reasonable care for the purpose of
performing functions of a type which are not reasonably capable of
supervision by the Security Trustee.
10.6 Withdrawal
The Security Trustee may at any time give up possession of any Mortgaged
Property and may at any time withdraw any receivership.
11. REMUNERATION OF SECURITY TRUSTEE
11.1 Costs
In accordance with the Series Notice, the Chargor as trustee of the
Trust shall reimburse the Security Trustee for all costs and expenses of
the Security Trustee properly incurred in acting as Security Trustee.
11.2 Fee
(a) The Security Trustee shall be entitled to a quarterly fee from
the proceeds of the Mortgaged Property at the rate agreed from
time to time by the Chargor, the Security Trustee and the Trust
Manager. This fee shall accrue from day to day.
(b) The Security Trustee's fee under sub-clause (a) shall be
payable quarterly in arrear for the relevant period on the same
dates as the Chargor's fee under the Master Trust Deed for the
Trust or as agreed from time to time by the Chargor, the
Security Trustee and the Trust Manager.
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11.3 Cessation of Fee
The Security Trustee shall not be entitled to remuneration under clauses
11.1 or 11.2 in respect of any period after the Charge Release Date or
after it has resigned or been removed as Security Trustee.
12. POWER OF ATTORNEY
(a) For valuable consideration and by way of security the Chargor
irrevocably appoints each Authorised Signatory of the Security
Trustee severally its attorney to do anything, following the
occurrence of an Event of Default, which:
(i) the Chargor is obliged to do under or in relation to
any Trust Document; or
(ii) any Mortgagee or any Receiver is authorised or
empowered to do under any Trust Document or any law
but only at the times that Mortgagee or a Receiver
(if a Receiver had been appointed) would have been
able to do it.
(b) Without limitation, the Attorney may, following the occurrence
of an Event of Default, at any time:
(i) do anything which in the opinion of the Security
Trustee or Attorney is necessary or expedient to
secure, preserve, perfect, or give effect to the
security contained in this deed (including anything
under clauses 13 or 14). For this purpose, without
limitation, he may execute any legal mortgage,
transfer, assignment and other assurance of any of
the Mortgaged Property in favour of any Mortgagee, any
purchaser or any nominee; and
(ii) delegate his powers (including delegation).
(c) No Attorney appointed under this deed may act inconsistently
with this deed or any other Trust Document.
13. COMPLETION OF BLANK SECURITIES
The Security Trustee, any Authorised Signatory of the Security Trustee,
any Receiver or any Attorney may complete any document which at any time
is executed by or on behalf of the Chargor and deposited with the
Security Trustee. It may complete it in favour of any Mortgagee, any
purchaser or any nominee. It may not do so inconsistently with this deed
or any other Trust Document.
14. PERFORMANCE OF CHARGOR'S OBLIGATIONS
If at any time the Chargor fails duly to perform any obligation in any
Trust Document the Security Trustee or any person it authorises may
(subject to clause 40.17(d), and provided there is sufficient time to do
so, with the prior written consent of the Note Trustee) do anything
which in its opinion is necessary or expedient to make good or to
attempt to make good that failure to its satisfaction.
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15. STATUTORY POWERS
15.1 Powers in augmentation
The powers conferred on a mortgagee by law:
(a) are in addition to the Powers conferred by this deed;
(b) (to the extent permitted by law) may be exercised by the
Security Trustee immediately after the Charge becomes
enforceable under this deed and at any time subsequently; and
(c) are excluded or varied only so far as they are inconsistent
with the express terms of this deed or any Collateral Security.
15.2 Notice not required
To the extent permitted by law:
(a) the Chargor dispenses with any notice or lapse of time required
by any law before enforcing this deed or any Collateral
Security or exercising any Power; and
(b) subject to this deed, no Mortgagee is required to give notice
to any person before enforcement or exercise; and
(c) any law requiring the giving of notice or the compliance with
a procedure or the lapse of time before enforcement or exercise
is excluded.
16. APPLICATION OF MONEYS RECEIVED
16.1 Priorities
The proceeds from the enforcement of the Charge are to be applied
(notwithstanding any order of payment in the Series Notice) in the
following order of priority, subject to any other priority which may be
required by statute or law:
(a) first, to pay all costs, charges, expenses and disbursements
properly incurred in the exercise of any Power by the Security
Trustee, the Note Trustee, a Receiver or an Attorney or other
amounts (other than those referred to in paragraph (d)) payable
to the Security Trustee or the Note Trustee under this deed;
(b) second, to pay (pari passu and rateably):
(i) any fees and other expenses due to the Security
Trustee,the Note Trustee or the Principal Paying
Agent;
(ii) any fees, and unpaid Expenses, due to the Chargor;
and
(iii) the Receiver's remuneration;
(c) third, to pay (pari passu and ratably), any unpaid Accrued
Interest Adjustment due to an Approved Seller;
(d) fourth, to pay (pari passu and rateably):
(i) all Secured Moneys owing to the Support Facility
Providers (other than the Currency Swap Provider);
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(ii) all Secured Moneys owing to the holders of RFSs;
(iii) all Secured Moneys owing to the holders of RFS
Class A Notes;
(iv) all the Secured Moneys owing to the Class A
Noteholders (as at the date of payment);
(v) all Secured Moneys owed by the Chargor as trustee
of the Trust to a Relevant Trust;
(vi) all Secured Moneys owing in relation to any Redraws
made by Westpac for which it has not been reimbursed
under the Trust Documents; and
(vii) all Secured Moneys owing to the Currency Swap
Provider under a Confirmation relating to Class A
Notes(but without double counting with payments
under sub- paragraph (iv));
(e) fifth, all Secured Moneys owing to the Class B Noteholders (as
at the date of payment) and to the Currency Swap Provider under
a Confirmation relating to the Class B Notes, but without double
counting;
(f) sixth, to pay (pari passu and rateably) any amounts not
covered above owing to any Mortgagee under any Trust Document;
(g) seventh, to pay the holder of any subsequent Security Interest
over Trust Assets of which the Security Trustee has notice of
the amount properly secured by the Security Interest;
(h) eighth, to pay any surplus to the Chargor to be distributed in
accordance with the Master Trust Deed.
The surplus will not carry interest. If the Security Trustee
pays the surplus to the credit of an account in the name of the
Chargor with any bank carrying on business in Australia, the
Security Trustee, Receiver, Mortgagee or Attorney (as the case
may be) will be under no further liability in respect of it.
16.2 Moneys actually received
In applying any moneys towards satisfaction of the Secured Moneys, the
Chargor will be credited only with the money available for that purpose
which is actually received by the relevant Mortgagee or, where the
Mortgagee is a Bearer Noteholder, the Note Trustee. The credit will date
from the time of receipt.
16.3 Amounts contingently due
If any of the Secured Moneys is contingently owing to any Mortgagee at
the time of a distribution of an amount under clause 16.1, the Security
Trustee may retain any of that amount. If it does, it shall place the
amount retained on short term interest bearing deposit until the
relevant Secured Moneys become actually due or cease to be contingently
owing, or it becomes reasonably apparent that the relevant contingency
will not occur and the Security Trustee shall then:
(a) pay to that Mortgagee, or (where the Mortgagee is a Bearer
Noteholder) to the Note Trustee, the amount which becomes
actually due to it; and
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(b) apply the balance of the amount retained (together with interest
earned on the deposit) in accordance with clause 16.1.
16.4 Notice of subsequent Security Interests
(a) If any Mortgagee receives actual or constructive notice of a
subsequent Security Interest affecting any of the Mortgaged
Property it may open a separate account in the name of the
Chargor in the books of that Mortgagee.
(b) If that Mortgagee does not open a new account it will be
treated as if it had done so at the time it received actual or
constructive notice of the Security Interest.
(c) From the time the new account is opened or is taken to be
opened:
(i) all advances and accommodation made available by that
Mortgagee to the Chargor;
(ii) all payments and repayments made by the Chargor to
that Mortgagee; and
(iii) moneys to be applied towards the Secured Moneys under
clause 16.1,
will be or will be taken to be debited or credited, as
appropriate, to the new account. Payments, repayments and other
moneys will only be applied in reduction of other Secured Moneys
owing to that Mortgagee to the extent that there is no debit
balance in that account.
16.5 Satisfaction of debts
Without limiting clause 31, each Mortgagee shall accept the distribution
of moneys under this clause in full and final satisfaction of all
Secured Moneys owing to it, and any debt represented by any shortfall
that exists after any final distribution under this clause is
extinguished.
16.6 Payments into US$ Account
(a) The Chargor shall direct the Currency Swap Provider to pay
all amounts denominated in US$ payable to the Chargor by the
Currency Swap Provider under the Currency Swap into the US$
Account.
(b) If the Chargor receives any amount denominated in US$ from
the Currency Swap Provider under the Currency Swap it will
promptly pay that amount to the credit of the US$ Account.
16.7 Payments out of US$ Account
(a) The Chargor shall, or shall require that the Paying Agents on
its behalf, pay all amounts credited to the US$ Account as
follows and in accordance with the Note Trust Deed and the
Agency Agreement.
(b) All amounts credited to the US$ Account by the Currency Swap
Provider in relation to a payment by the Trustee:
(i) under clause 16.1(f)(iv), will be applied pari passu
to pay all Secured Moneys owing to Class A
Noteholders;
(ii) under clause 16.1(g), will be applied pari passu
to pay all Secured Moneys owing to Class B
Noteholders.
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16.8 Excluded amounts
For the avoidance of doubt, the following amounts shall not be treated
as assets of the Trust available for distribution under clause 16.1.
(a) Any amounts required by law to be paid to the holder of any
prior ranking Security Interest over Trust Assets of which the
Security Trustee has notice which amounts are the amount
properly secured by the Security Interest.
(b) Any of:
(i) the proceeds of, or amounts credited to, the
Collateral Account as defined in the Liquidity
Facility Agreement, which are payable to the
Liquidity Facility Provider;
(ii) the proceeds of cash collateral lodged by a Swap
Provider under a Swap Agreement, which are payable
to the Swap Provider;
(iii) the proceeds of any other cash collateral lodged by a
Support Facility Provider under a Support Facility,
which are payable to the Support Facility Provider;
This paragraph (b) shall not apply to the extent that the
relevant moneys are applied in accordance with the relevant
document to satisfy any obligation owed to the Chargor by the
Liquidity Facility Provider, Redraw Facility Provider, Swap
Provider or Support Facility Provider (as the case may be).
17. OTHER SECURITY INTERESTS OVER MORTGAGED PROPERTY
(a) Any Mortgagee and any Receiver or Attorney may rely on the
certificate of a holder of another Security Interest affecting
or purporting to affect the Mortgaged Property as to the amount
and property secured by the Security Interest.
(b) The Security Trustee or any Receiver may at any time pay or
agree to pay the amount certified by the holder of a Security
Interest or purported Security Interest to be necessary to
discharge it or some indebtedness secured by it, or to acquire
it. From the date of payment that amount will be part of the
Secured Moneys and the Chargor shall indemnify the Security
Trustee (and if other Mortgagees indemnify the Security Trustee,
those other Mortgagees) and the Receiver against that amount.
This applies whether or not that Security Interest or purported
Security Interest was valid or prior, equal or subsequent
ranking, or the property or moneys stated in the certificate
were secured by it.
18. PROTECTION OF MORTGAGEES, RECEIVER AND ATTORNEY
To the extent permitted by law, neither any Mortgagee nor any Receiver
or Attorney will be liable:
(a) in respect of any conduct, delay, negligence or breach of duty
in the exercise or non-exercise of any Power; nor
(b) for any loss (including consequential loss) which results,
except where it arises from fraud or wilful misconduct on the part of
any Mortgagee, Receiver or Attorney.
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19. PROTECTION OF THIRD PARTIES
19.1 No enquiry
No party to any Dealing (as defined below) and no person asked to
register a Dealing:
(a) is bound to enquire:
(i) whether an Event of Default has occurred or whether
this deed has become enforceable;
(ii) whether a person who is, or purports or is
purported to be, a Receiver or Attorney is duly
appointed;
(iii) as to the amount of Secured Moneys or whether Secured
Moneys are due and payable; or
(iv) in any other way as to the propriety or regularity of
the Dealing; or
(b) is affected by express notice that the Dealing is
unnecessary or improper.
For the protection of any party to a Dealing or a person registering a
Dealing, the Dealing will be taken to be authorised by this deed and
will be valid accordingly, even if there is any irregularity or
impropriety in the Dealing,
In this clause a Dealing is:
(a) any payment or any delivery or handing over of an asset to; or
(b) any acquisition, incurring of Financial Indebtedness, receipt,
sale, lease, disposal or other dealing, by,
any Mortgagee or any Receiver or Attorney, or any person who purports or
is purported to be a Receiver or Attorney.
19.2 Receipt
The receipt of any Authorised Signatory of any Mortgagee or any Receiver
or Attorney (or person who purports, or is purported, to be a Receiver
or Attorney) for any moneys or assets payable to, or receivable or
received by, it exonerates the person paying those moneys or handing
over that asset from being concerned as to their application, or from
being liable or accountable for their loss or misapplication.
20. EXPENSES, INDEMNITY
20.1 Expenses
In accordance with the Series Notice, the Chargor, as trustee of the
Trust, shall reimburse each Mortgagee or (where the Mortgagee is a
Bearer Noteholder) the Note Trustee, Receiver and Attorney for its
expenses in relation to:
(a) any consent, agreement, approval, waiver or amendment under
or in relation to the Trust Documents; and
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(b) any actual or contemplated enforcement of the Trust Documents
or the actual or contemplated exercise, preservation or
consideration of any Powers under the Trust Documents or in
relation to the Mortgaged Property; and
(i) any enquiry by a Government Agency concerning the
Chargor or the Mortgaged Property or a transaction or
activity thesubject of the Trust Documents, or in
connection with which, financial accommodation or
funds raised under a Trust Document are used or
provided.
This includes legal costs and expenses (including in-house lawyers
charged at their usual rates) on a full indemnity basis, expenses
incurred in any review or environmental audit, in reimbursing or
indemnifying any Receiver or Attorney or in retaining consultants to
evaluate matters of material concern to that Mortgagee and
administrative costs including time of its executives (whose time and
costs are to be charged at reasonable rates). This does not limit the
generality of clause 20.2.
20.2 Indemnity
On demand the Chargor shall indemnify each Mortgagee and each Receiver
and Attorney against any loss, cost, charge, liability or expense that
Mortgagee (or any officer or employee of that Mortgagee) or any Receiver
or Attorney may sustain or incur as a direct or indirect consequence of:
(a) the occurrence of any Event of Default; or
(b) any exercise or attempted exercise of any Power or any
failure to exercise any Power.
21. CURRENCY INDEMNITY
The Chargor shall indemnify each Mortgagee against any deficiency which
arises whenever, for any reason (including as a result of a judgment,
order or Liquidation):
(a) that Mortgagee receives or recovers an amount in one
currency (the Payment Currency) in respect of an amount
denominated under a Trust Document in another currency (the
Due Currency); and
(b) the amount actually received or recovered by that Mortgagee
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.
22. STAMP DUTIES
(a) The Chargor shall pay (and reimburse each Mortgagee all stamp,
transaction, registration and similar Taxes (including fines and
penalties) in relation to the execution, delivery, performance
or enforcement of any Trust Document or any payment or receipt
or any other transaction contemplated by any Trust Document.
(b) Those Taxes include financial institutions duty, debits tax or
other Taxes payable by return and Taxes passed on to any
Mortgagee (other than the Note Trustee and the Bearer
Noteholders) by bank or financial institution.
(c) The Chargor shall indemnify each Mortgagee against any
liability resulting from delay or omission to pay those Taxes
except to the extent the liability results from failure by the
Mortgagee to pay any Tax after having been put in funds to do
so by the Chargor.
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23. INTEREST ON OVERDUE AMOUNTS
23.1 Accrual
Interest accrues on each unpaid amount which is due and payable by the
Chargor under or in respect of this deed or any Trust Document
(including interest payable under this clause):
(a) on a daily basis up to the date of actual payment from (and
including) the due date or, in the case of an amount
payable by way of reimbursement or indemnity, the date of
disbursement or loss, if earlier;
(b) both before and after judgment (as a separate and independent
obligation); and
(c) at the rate provided in clause 23.3,
except where the Trust Document provides otherwise.
23.2 Payment
The Chargor shall pay interest accrued under this clause on demand by
the Security Trustee and on each Payment Date. That interest is payable
in the currency of the unpaid amount on which it accrues.
23.3 Rate
The rate applicable under this clause is the sum of 2% per annum plus
the higher of the following, each as determined by the Security Trustee:
(a) the rate (if any) applicable to the amount immediately before
the due date; and
(b) the sum of 2% and the Three Month Bank Bill Rate.
24. CERTIFICATE AS TO AMOUNT OF SECURED MONEYS, ETC.
A certificate signed by an Authorised Signatory of the Security Trustee
will be sufficient evidence against the Chargor, in the absence of proof
to the contrary:
(a) as to the amount of Secured Moneys stated in the certificate;
(b) that a person specified in that certificate is a Mortgagee;
(c) that a document specified in that certificate is a Trust
Document; and
(d) that the Security Trustee is of the opinion stated in the
certificate.
25. SURVIVAL OF REPRESENTATIONS
All representations and warranties in a Trust Document survive the
execution and delivery of the Trust Documents and the provision of
advances and accommodation.
26. INDEMNITY AND REIMBURSEMENT OBLIGATIONS
Each indemnity reimbursement, and similar obligation in a Trust
Document:
(a) is a continuing obligation;
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(b) is a separate and independent obligation;
(c) is payable on demand;
(d) survives termination or discharge of the Trust Document; and
(e) is subject to the order of payment contained in the Series
Notice and clause 16 of this deed and the restriction on
remedies contained in clause 31.
27. CONTINUING SECURITY
Each of this deed and each Collateral Security is a continuing security
despite any settlement of account, intervening payment or anything else
until a final discharge of this deed and each Collateral Security has
been given to the Chargor.
28. OTHER SECURITIES
No Power and nothing in this deed or any Collateral Security merges in,
or in any other way prejudicially affects or is prejudicially affected
by:
(a) any other Security Interest; or
(b) any judgment, right or remedy against any person,
which any Mortgagee or any person claiming through any Mortgagee may
have at any time.
29. DISCHARGE OF THE CHARGE
29.1 Release
Upon the Trust Manager providing a certificate to the Security Trustee
(upon which certificate the Security Trustee may rely conclusively)
(with a copy of that certificate to the Note Trustee) stating that:
(a) all Secured Moneys (actually or contingently owing) have been
paid in full; and
(b) all the obligations of the Chargor under the Trust Documents
have been performed, observed and fulfilled,
then the Security Trustee shall at the request of the Trust Manager or
the Chargor, and at the cost of the Chargor, release the Mortgaged
Property from the Charge and this deed.
29.2 Contingent liabilities
The Security Trustee shall be under no obligation to grant a release of
the Charge or this deed in respect of the Trust unless at the time such
release is sought:
(a) none of the Secured Moneys in respect of the Trust are
contingently or prospectively owing except where there is no
reasonable likelihood of the contingent or prospective event
occurring; and
(b) the Security Trustee has no contingent or prospective
liabilities in respect of the Trust or otherwise in connection
with this deed whether or not there is any reasonable likelihood
of such liabilities, becoming actual liabilities, including
without limitation, in respect of any bills, notes drafts,
cheques, guarantees, letters of credit or other notes or
documents issued, drawn, endorsed or accepted by the Security
Trustee for the account or at the request of the Chargor for the
Trust.
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29.3 Charge reinstated
If any claim is made by any person that any moneys applied in payment or
satisfaction of the Secured Moneys must be repaid or refunded under any
law (including, without limit, any law relating to preferences,
bankruptcy, insolvency or the winding up of bodies corporate) and the
Charge has already been discharged, the Chargor shall, at the Chargor's
expense, promptly do, execute and deliver, and cause any relevant person
to do, execute and deliver, all such acts and notes as the Security
Trustee may require to reinstate this Charge unless the Security Trustee
(subject to clause 40.17(d), with the prior written consent of the Note
Trustee) agrees otherwise in writing.
30. AMENDMENT
30.1 Approval of Trust Manager
The Security Trustee and the Chargor may, following the giving of notice
to each Designated Rating Agency, and with the written approval of the
Trust Manager and (subject to clause 40.17(d)) the Note Trustee, by way
of supplemental deed alter, add to or modify this deed (including this
clause 30) so long as such alteration, addition or modification is:
(a) to correct a manifest error or ambiguity or is of a formal,
technical or administrative nature only;
(b) in the opinion of the Security Trustee necessary to comply with
the provisions of any law or regulation or with the requirements
of any Government Authority;
(c) in the opinion of the Security Trustee appropriate or expedient
as a consequence of an amendment to any law or regulation or
altered requirements of any Government Agency (including,
without limitation, an alteration, addition or modification
which is in the opinion of the Security Trustee appropriate or
expedient as a consequence of the enactment of a law or
regulation or an amendment to any law or regulation or ruling by
the Commissioner or Deputy Commissioner of Taxation or any
governmental announcement or statement, in any case which has or
may have the effect of altering the manner or basis of taxation
of trusts generally or of trusts similar to the Trust); or
(d) in the opinion of the Security Trustee neither prejudicial nor
likely to be prejudicial to the interest of the Mortgagees as a
whole or any class of Mortgagee.
30.2 Extraordinary Resolution of Voting Mortgagees
Where in the opinion of the Security Trustee a proposed alteration,
addition or modification to this deed, other than an alteration,
addition or modification referred to in clause 30.1, is prejudicial or
likely to be prejudicial to the interest of Mortgagees as a whole or any
class of Mortgagees, the Security Trustee and the Chargor may make such
alteration, addition or modification if sanctioned by an Extraordinary
Resolution of the Voting Mortgagees or that class of Voting Mortgagees.
30.3 Distribution of amendments
The Trust Manager shall distribute to all Voting Mortgagees, a copy of
any amendments made pursuant to clause 30.1 or 30.2 as soon as
reasonably practicable after the amendment has been made.
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31. CHARGOR'S LIABILITY
31.1 Capacity of Chargor under this deed
The Chargor enters into this deed as trustee of the Trust and in no
other capacity. The Trust Manager and Security Trustee acknowledge that
the obligations of the Chargor under the Trust Documents together with
all other obligations and liabilities arising on the part of the Chargor
under this deed (collectively called the Liabilities) are incurred by
the Chargor solely in its capacity as trustee of the Trust.
31.2 Limitation on Chargor's liability
Except in the case of fraud, negligence or wilful default on the part of
the Chargor in its capacity as Chargor, the Trust Manager and Security
Trustee may enforce their rights against the Chargor, in any way arising
in respect of the Secured Moneys or this deed, only to the extent that
those rights can be satisfied or paid out of the Mortgaged Property.
31.3 Rights against Mortgaged Property preserved
The Mortgaged Property shall secure to the Security Trustee, and the
Security Trustee shall have recourse to the Mortgaged Property for, all
of the liabilities of the Chargor to the Mortgagees under the Trust
Documents notwithstanding that at general law, under statute or under
the Master Trust Deed the Chargor has not properly incurred such
liability as Chargor or does not have a right of indemnity in relation
to that liability from the Mortgaged Property or has failed to execute
that degree of care, diligence and prudence required of a trustee
(including, without limiting the generality of the foregoing any fraud,
negligence or breach of trust).
31.4 Waiver of personal liability
Except in the case of fraud, negligence or wilful default on the part of
the Chargor in its capacity as Chargor, each of the Trust Manager and
the Security Trustee severally waives its rights and releases the
Chargor from any personal liability whatsoever, for any loss or damage
whatsoever in any way arising in respect of:
(a) the liabilities of the Trust; or
(b) this deed,
which cannot be paid or satisfied out of the Mortgaged Property.
31.5 Unrestricted remedies
Nothing in clause 31.2 limits a Voting Mortgagee in:
(a) obtaining an injunction or other order to restrain any breach
of this deed by any party; or
(b) obtaining declaratory relief.
31.6 Restricted remedies
Except as provided in clause 31.2 and 31.5, a Mortgagee shall not:
(a) (statutory demand) issue any demand under s459E(1) of the
Corporations Law (or any analogous provision under any other
law) against the Chargor;
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(b) (winding up) apply for the winding up or dissolution of the
Chargor;
(c) (execution) levy or enforce any distress or other execution to,
on, or against any assets of the Chargor (other than the Trust
Assets);
(d) (court appointed receiver) apply for the appointment by a
court of a receiver to any of the assets of the Chargor (other
than the Trust Assets);
(e) (set-off or counterclaim) exercise or seek to exercise any
set-off or counterclaim against the Chargor (other than in
respect of the Trust Assets); or
(f) (administrator) appoint, or agree to the appointment, of any
administrator to the Chargor,
or take proceedings for any of the above and the Mortgagee waives its
rights to make those applications and take those proceedings.
32. WAIVERS, REMEDIES CUMULATIVE
(a) No failure to exercise and no delay in exercising any Power
operates as a waiver. No single or partial exercise of any Power
precludes any other or further exercise of that Power or any
other Power.
(b) The Powers in this deed and each Collateral Security are in
addition to, and do not exclude or limit, any right, power
or remedy provided by law.
33. CONSENTS AND OPINION
Except where expressly stated any Mortgagee may give or withhold, or
give conditionally, approvals and consents, may be satisfied or
unsatisfied, may form opinions, and may exercise its Powers, at its
absolute discretion.
34. SEVERABILITY OF PROVISIONS
(a) Any provision of this deed or any Collateral Security which is
prohibited or unenforceable in any jurisdiction is ineffective
as to that jurisdiction to the extent of the prohibition or
unenforceability. That does not invalidate the remaining
provisions of this deed or any Collateral Security nor affect
the validity or enforceability of that provision in any other
jurisdiction.
(b) Without limiting the generality of paragraph (a):
(i) the definition of Secured Moneys does not include any
liability so long as and to the extent that the
inclusion of that liability would avoid, invalidate
or render ineffective clause 3 or 4 or the security
constituted by this deed; and
(ii) the definition of the Mortgaged Property does not
include any asset so long as and to the extent that
the inclusion of that asset would invalidate, avoid
or render ineffective clause 3 or 4 or the security
constituted by this deed.
The Chargor shall use its reasonable endeavours to satisfy any
condition or obtain any Authorisation which may be necessary
to include that liability or asset validly under the Charge or
this deed.
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35. MORATORIUM LEGISLATION
To the full extent permitted by law all legislation which at any time
directly or indirectly:
(a) lessens, varies or affects in favour of the Chargor any
obligation under this deed or any Collateral Security; or
(b) delays, prevents or prejudicially affects the exercise by any
Mortgagee, any Receiver or Attorney, of any Power,
is excluded from this deed and any Collateral Security.
36. ASSIGNMENTS
(a) Subject to the other Trust Documents, a Mortgagee may assign
its rights under this deed and each Collateral Security. If this
deed or any Mortgagee's interest in it is assigned, the Secured
Moneys will include all actual and contingent liability of the
Chargor to the assignee, whether or not it was incurred before
the assignment or in contemplation of it.
(b) The Chargor may only assign or transfer any of its rights or
obligations under this deed or any Collateral Security with the
prior written consent of the Security Trustee (and, subject to
clause 40.17(d), the Note Trustee) and if prior notice has been
given to each Designated Rating Agency and the rating assigned
to each Class of Notes is not thereby affected.
37. NOTICES
(a) All notices, requests, demands, consents, approvals,
agreements or other communications to or by a party to this
deed:
(i) must be in writing;
(ii) must be signed by an Authorised Signatory of the
sender; and
(iii) will be taken to be duly given or made:
(A) (in the case of delivery in person or by
facsimile transmission) when delivered,
received or left at the address of the
recipient shown in this deed, to any other
address it may have notified the sender, or as
provided in clause 37(b) but if delivery or
receipt is on a day on which business
is not generally carried on in the place to
which the communication is sent or is later
than 4 pm (local time), it will be taken to
have been duly given or made at the
commencement of business on the next day on
which business is generally carried on in
that place; or
(B) (in the case of delivery by post) 3 days
after it is posted to such an address.
(b) The Security Trustee may give notice to a Mortgagee at the
addresses notified to the Security Trustee by the Chargor or the
Trust Manager as that Mortgagee's address for notice or, where
the Mortgagee is a Noteholder, at the address of the Note
Trustee.
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38. RELATIONSHIP OF MORTGAGEES TO SECURITY TRUSTEE
38.1 Instructions; extent of discretion
(a) The Security Trustee will have no duties or responsibilities
except those expressly set out in this deed or any Collateral
Security.
(b) Subject to this deed, in the exercise of all its Powers the
Security Trustee shall act in accordance with any
Extraordinary Resolution of the Voting Mortgagees.
(c) In the absence of an Extraordinary Resolution of the Voting
Mortgagees, the Security Trustee need not act but may act
(with prior written notice to the Note Trustee) in the best
interests of the Mortgagees.
(d) Any action taken by the Security Trustee under this deed or
any Collateral Security binds all the Mortgagees.
38.2 No obligation to investigate authority
(a) The Chargor need not enquire whether any Extraordinary
Resolution has been passed or as to the terms of any
Extraordinary Resolution.
(b) As between the Chargor on the one hand and the Security Trustee
and the Mortgagees on the other, all action taken by the
Security Trustee under this deed or any Collateral Security will
be taken to be authorised.
38.3 Delegation
The Security Trustee may employ agents and attorneys, and shall exercise
reasonable care in selecting them. The Security Trustee may at the
expense of the Chargor obtain such advice and information from lawyers,
accountants, bankers and other consultants and experts as it considers
desirable to allow it to be properly advised and informed in relation to
its powers and obligations. Before obtaining such advice or information
(unless the advice or information relates to Trust Manager) before the
occurrence of an Event of Default, the Security Trustee shall first
inform the Trust Manager of the need for the advice or information and
obtain the approval of the Trust Manager, which approval shall not be
unreasonably withheld or delayed.
38.4 Reliance on documents and experts
The Security Trustee may rely on:
(a) any document (including any facsimile transmission, telegram or
telex) it believes to be genuine and correct including any
document given by the Chargor under clause 5.1(d) or by the
Trust Manager under clause 5.4; and
(b) advice and statements of lawyers, accountants, bankers and
other consultants and experts, whether or not retained by it.
38.5 Notice of transfer
The Security Trustee may treat each Mortgagee as the holder of the
Mortgagee's rights under the Trust Documents until the Security Trustee
has received a substitution certificate or an instrument of transfer in
a form approved by the Security Trustee.
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38.6 Notice of default
(a) The Security Trustee will be taken not to have knowledge of the
occurrence of an Event of Default unless the Security Trustee
has received notice from a Voting Mortgagee or the Chargor
stating that an Event of Default has occurred and describing it.
(b) If the Security Trustee receives notice of, or becomes aware
of, the occurrence of events or circumstances constituting an
Event of Default and that those events or circumstances do
constitute an Event of Default, the Security Trustee shall
notify the Voting Mortgagees, subject to clause 38.11(b). For
the purposes of this clause and the other provisions of this
deed, the Security Trustee will only be considered to have
notice of or to be aware of any thing if the Security Trustee
has notice or awareness of that thing by virtue of the actual
notice or awareness of the officers of the Security Trustee who
have day to day responsibility for the administration of the
security trust established by this deed.
38.7 Security Trustee as Mortgagee
(a) The Security Trustee in its capacity as a Mortgagee has the
same rights and powers under the Trust Documents as any other
Mortgagee. It may exercise them as if it were not acting as the
Security Trustee.
(b) The Security Trustee and its Associates may engage in any kind
of business with the Chargor, Trust Manager and any Mortgagee or
other person as if it were not the Security Trustee. It may
receive consideration for services in connection with any Trust
Document and otherwise without having to account to the
Mortgagees.
38.8 Indemnity to Security Trustee
(a) Subject to the order of payment contained in the Series Notice
and clause 16 of this deed, the Chargor shall indemnify the
Security Trustee (to the extent not reimbursed by the Chargor)
against any loss, cost, liability, expense or damage the
Security Trustee may sustain or incur directly or indirectly
under or in relation to the Trust Documents. This does not limit
the Chargor's liability under any other provision.
(b) The Chargor is not liable under this sub-clause for any of the
above to the extent that they arise from the Security Trustee's
fraud, negligence or wilful default.
38.9 Independent investigation
Each Mortgagee confirms that it has made and will continue to make,
independently and without reliance on the Security Trustee or any other
Mortgagee (including the Trust Manager) and based on the Trust
Documents, agreements and information which it regards appropriate:
(a) its own investigations into the affairs of the Chargor; and
(b) its own analyses and decisions whether to take or not take
action under any Trust Document.
38.10 No monitoring
The Security Trustee is not required to keep itself informed as to the
compliance by the Chargor or the Trust Manager with any Trust Document
or any other document or agreement or to inspect any property or book of
the Chargor or the Trust Manager.
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38.11 Information
(a) The Chargor authorises:
(i) the Security Trustee to provide any Voting Mortgagee;
and
(ii) the Note Trustee to provide any Bearer Noteholder or
Couponholder,
with any information concerning the affairs, financial
condition or business of the Chargor which may come into the
possession of the Security Trustee or the Note Trustee (as the
case may be). The Security Trustee need not do so.
(b) The Security Trustee is not obliged to disclose any
information relating to the Chargor if in the opinion of the
Security Trustee (on the basis of the advice of its legal
advisers) disclosure would or might breach a law or a duty of
secrecy or confidence.
38.12 Conflicts
(a) Subject to clause 2.2, in the event of any dispute, ambiguity
or doubt as to the construction or enforceability of this deed
or of any other document or the Security Trustee's powers or
obligations under or in connection with this deed or the
determination or calculation or any amount or thing for the
purpose of this deed or the construction or validity of any
direction from the Mortgagees, the Security Trustee may:
(i) obtain and rely on advice from any person referred
to in clause 38.3; and/or
(ii) apply to a court or similar body for any direction or
order the Security Trustee considers appropriate,
and provided the Security Trustee is using reasonable
endeavours to resolve such ambiguity, dispute or doubt, the
Security Trustee, in its absolute discretion, may refuse to act
or refrain from acting in relation to matters affected by such
dispute, ambiguity or doubt.
(b) The Security Trustee has no responsibility for the form or
contents of this deed or any other Trust Document and will have
no liability arising as a result of or in connection with any
inadequacy, invalidity or unenforceability of any provision of
this deed or the other Trust Documents.
38.13 No Liability
Without limitation the Security Trustee shall not be liable for:
(a) any decline in the value or loss realised upon any sale or
other dispositions made under this deed of any Mortgaged
Property or any other property charged to the Security Trustee
by any other person in respect of or relating to the obligations
of any person in respect of the Chargor or the Secured Moneys or
relating in any way to the Mortgaged Property;
(b) any decline in value directly or indirectly arising from the
Security Trustee acting or failing to act as a consequence of an
opinion reached by it; and
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(c) any loss, expense or liability which may be suffered as a
result of any assets secured by the Security Trust Deed,
Mortgaged Property or any deeds or documents of title thereto
being uninsured or inadequately insured or being held by or to
the order of the Servicer or any of its affiliates or by
clearing organisations or their operator or by any person on
behalf of the Note Trustee.
39. RETIREMENT AND REMOVAL OF SECURITY TRUSTEE
39.1 Retirement
Subject to any Trust Document to which the Security Trustee is a party,
and subject also to the appointment of a successor Security Trustee as
provided in this clause, the Security Trustee may retire at any time
upon giving not less than three months' notice (or such shorter period
as the parties may agree) in writing to the Chargor, the Trust Manager,
the Note Trustee and each Designated Rating Agency without assigning any
reason and without being responsible for any costs occasioned by such
retirement.
39.2 Removal
Subject to any Trust Document to which the Security Trustee is a party,
the appointment of a successor Security Trustee as provided in this
clause, and prior notice being given to each Designated Rating Agency,
the Security Trustee may be removed:
(a) by the Trust Manager if any of the following occurs in relation
to the Security Trustee:
(i) an Insolvency Event occurring in relation to the
Security Trustee in its personal capacity;
(ii) the cessation by the Security Trustee of its
business;
(iii) failure of the Security Trustee to remedy within
fourteen days after written notice by the Trust
Manager any material breach of duty on the part of
the Security Trustee; or
(iv) if without the prior written consent of the Trust
Manager there occurs:
(A) a change in fifty one per cent (or such other
percentage the Trust Manager may in its
absolute discretion determine shall
constitute a change in the effective
control of the Security Trustee) of the
shareholding of the Security Trustee existing
at the date of this deed (whether
occurring at one time or through a series of
succession of transfers or issues of shares):
(B) a change in the effective management of the
Security Trustee as existing at the date of
this deed such that the Security Trustee is
no longer able to fulfil its duties and
obligations in relation to the Mortgaged
Property; or
(C) the establishment by any means of any trust
under which any third party becomes a
beneficial owner of any of the Security
Trustee's rights under this deed; or
(b) at any time by an Extraordinary Resolution of the Voting
Mortgagees.
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39.3 Replacement
(a) Upon notice of resignation or removal the Trust Manager shall
have the right to appoint a successor Security Trustee who has
been previously approved by an Extraordinary Resolution of the
Voting Mortgagees and who accepts the appointment.
(b) If no successor Security Trustee is appointed within 30 days
after notice, the retiring Security Trustee may on behalf of the
Mortgagees appoint a successor Security Trustee (other than
Westpac or a Related Corporation of Westpac) who accepts the
appointment.
(c) On its appointment the successor Security Trustee will have all
the rights, powers and obligations of the retiring Security
Trustee. The retiring Security Trustee will be discharged from
its rights, powers and obligations.
(d) The retiring Security Trustee shall execute and deliver all
Documents or agreements which are necessary or desirable in its
opinion to transfer to the successor Security Trustee this deed
and each Collateral Security or to effect the appointment of the
successor Security Trustee.
(e) After any retiring Security Trustee's resignation or removal,
this deed will continue in effect in respect of anything done or
omitted to be done by it while it was acting as Security
Trustee.
40. MEETINGS OF MORTGAGEES
40.1 Limitation on Security Trustee's powers
Except as provided for in this deed, the Security Trustee shall not
assent or give effect to any matter which a meeting of Voting Mortgagees
is empowered by Extraordinary Resolution to do, unless the Security
Trustee has previously been authorised to do so by an Extraordinary
Resolution of Voting Mortgagees.
40.2 Convening of meetings
(a) (Generally)
(i) Subject to clause 40.17, the Security Trustee or the
Trust Manager at any time may convene a meeting of
the Voting Mortgagees.
(ii) Subject to clause 40.17, and subject to the Security
Trustee being indemnified to its reasonable
satisfaction against all costs and expenses
occasioned as a result, the Security Trustee shall
convene a meeting of the Voting Mortgagees if
requested to do so:
(A) by the Chargor; and
(B) by Voting Mortgagees being holders of not
less than 20% of the then Secured Moneys.
(b) (Time and place)
(i) Every meeting of Voting Mortgagees shall be held at
such time and place as the Security Trustee approves,
provided (subject to sub-paragraph (ii) and clause
40.3(b)) that any such meeting shall not be held
until the Bearer
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Noteholders have held a meeting in accordance with
the Note Trust Deed and determined how to direct the
Note Trustee to vote in the meeting of Voting
Mortgagees.
(ii) Upon receiving notice of a meeting of the Voting
Mortgagees, the Note Trustee shall as soon as
practicable call a meeting of the Bearer
Noteholders in accordance with the terms of the
Note Trust Deed.
(iii) The proviso in sub-paragraph (i) shall not apply if:
(A) the meeting of Bearer Noteholders called in
accordance with sub-paragraph (ii) is
adjourned more than once; and
(B) the Bearer Noteholders' determination
under sub-paragraph (i) is not made at the
meeting or adjourned meeting (as the case
may be).
(c) (Class of Mortgagees) The provisions of this clause 40
regarding a meeting of the Voting Mortgagees shall apply,
mutatis mutandis, to a meeting of any class of Voting
Mortgagees, other than meetings of the Bearer Noteholders, in
respect of which the provisions of schedule 4 of the Note Trust
Deed relating to meetings of Bearer Noteholders shall apply.
40.3 Notice of meetings
(a) (Period of Notice) Subject to clause 40.3(b), at least 21
days' notice (inclusive of the day on which the notice is given
and of the day on which the meeting is held) shall be given to
the Voting Mortgagees, the Beneficiary and all the Designated
Rating Agencies.
(b) (Short notice) Notwithstanding that a meeting is convened upon
shorter notice than as specified in clause 40.3(a), or a meeting
or details of that meeting are not notified, advised or approved
in accordance with this clause 40, it shall be deemed to be duly
convened if it is so agreed by the Voting Mortgagees
representing a quorum (which quorum must include the Note
Trustee).
(c) (Copies) A copy of the notice shall in all cases be given by the
party to this deed convening the meeting to the other parties to
this deed.
(d) (Method of giving notice) Notice of a meeting shall be given in
the manner provided in this deed.
(e) (Contents of a notice) Notice of a meeting of Voting
Mortgagees shall specify, unless in any particular case the
Security Trustee otherwise agrees:
(i) the day, time and place of the proposed meeting; and
(ii) the nature of the resolutions to be proposed.
(f) (Failure to give notice) The accidental omission to give
notice to or the non-receipt of notice by any person entitled to
receive it shall not invalidate the proceedings at any meeting.
40.4 Chairman
A person (who need not be a Voting Mortgagee and who may be a
Representative of the Security Trustee) nominated in writing by the
Security Trustee shall be entitled to take the
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chair at every such meeting but if no such nomination is made or if at
any meeting the person nominated is not present within 15 minutes after
the time appointed for the holding of that meeting the Voting Mortgagees
present shall choose one of their number to be chairman.
40.5 Quorum
At any such meeting any two or more persons present in person holding,
or being Representatives holding or representing, in the aggregate not
less than 50% of the then Secured Moneys shall form a quorum for the
transaction of business and no business (other than the choosing of a
chairman) shall be transacted at any meeting unless the requisite quorum
is present at the commencement of business.
40.6 Adjournment
(a) (Quorum not present) If within 15 minutes from the time
appointed for any such meeting a quorum is not present the
meeting shall, if convened on the requisition of the Voting
Mortgagees be dissolved. If any other case it shall stand
adjourned (unless the Security Trustee agrees that it be
dissolved) for such period, not being less than 7 days nor more
than 42 days, as may be appointed by the chairman. At the
adjourned meeting two or more persons present in person holding,
or being Representatives holding or representing 25% of the then
Secured Moneys shall (except for the purpose of passing an
Extraordinary Resolution) form a quorum and shall have the power
to pass any resolution and to decide upon all matters which
could properly have been dealt with at the meeting from which
the adjournment took place had a quorum been present at that
meeting. The quorum at any such adjourned meeting for passing a
Extraordinary Resolution shall be 50% of the then Secured
Moneys.
(b) (Adjournment of meeting) The chairman may with the consent of
(and shall if directed by) any meeting adjourn the same from
time to time and from place to place but no business shall be
transacted at any adjourned meeting except business which might
lawfully have been transacted at the meeting from which the
adjournment took place.
(c) (Notice of adjourned meeting) At least 5 days' notice of any
meeting adjourned through want of a quorum shall be given in the
same manner as of an original meeting and such notice shall
state the quorum required at such adjourned meeting. It shall
not, however, otherwise be necessary to give any notice of an
adjourned meeting.
40.7 Voting procedure
(a) (Show of hands) Every question submitted to a meeting shall be
decided in the first instance by a show of hands and in case of
equality of votes the chairman shall both on a show of hands and
on a poll have a casting vote in addition to the vote or votes
(if any) to which he may be entitled as a Voting Mortgagee or as
a Representative.
(b) (Declaration) At any meeting, unless a poll is (before or on
the declaration of the result of the show of hands) demanded by
the chairman, the Chargor, the Trust Manager, the Note Trustee
or the Security Trustee or by one or more persons holding, or
being Representative holding or representing, in aggregate not
less than 2% of the then Secured Moneys, a declaration by the
chairman that a resolution has been carried by a particular
majority or lost or not carried by any particular majority shall
be conclusive evidence of the fact without proof of the number
or proportion of the votes recorded in favour of or against that
resolution.
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(c) (Poll) If at any meeting a poll is so demanded, it shall be
taken in such manner and (subject as provided below) either at
once or after such an adjournment as the chairman directs and
the result of such poll shall be deemed to be the resolution of
the meeting at which the poll was demanded as at the date of the
taking of the poll. The demand for a poll shall not prevent the
continuance of the meeting for the transaction of any business
other than the question on which the poll has been demanded.
(d) (No adjournment) Any poll demanded at any meeting on the
election of a chairman or on any question of adjournment
shall be taken at the meeting without adjournment.
(e) (Votes) Subject to clause 40.7(a), at any meeting:
(i) on a show of hands, every person holding, or being
a Representative holding or representing other
persons who hold, Secured Moneys shall have one vote
except that the Note Trustee shall represent each
Bearer Noteholder who has directed the Note Trustee
to vote on its behalf under the Note Trust Deed; and
(ii) on a poll, every person who is present shall have one
vote for each $10,000 (but not part thereof) of the
Secured Moneys that he holds or in respect of which
he is a Representative. Any person entitled to more
than one vote need not use or cast all of the votes
to which he is entitled in the same way.
(f) (Evidence) In order for the Note Trustee to vote on behalf of a
Bearer Noteholder under paragraph (e), it must provide evidence
satisfactory to the Security Trustee that it is authorised so to
vote.
40.8 Right to attend and speak
The Chargor, the Trust Manager, the Security Trustee and the Beneficiary
(through their respective Representatives) and their respective
financial and legal advisers shall be entitled to attend and speak at
any meeting of Voting Mortgagees (and, to the extent that they are also
a Mortgagee, to vote at that meeting). No person shall otherwise be
entitled to attend or vote at any meeting of the Voting Mortgagees or to
join with others in requesting the convening of such a meeting unless he
is a Voting Mortgagee or a Representative.
40.9 Appointment of Proxies
(a) (Requirements) Each appointment of a proxy shall be in writing
and shall be deposited at the registered office of the Security
Trustee or in such other place as the Security Trustee shall
designate or approve, together with proof satisfactory to the
Security Trustee of its due execution (if so required by the
Security Trustee), not less than 24 hours before the time
appointed for holding the meeting or adjourned meeting at which
the named proxy proposes to vote, and in default, the
appointment of proxy shall not be treated as valid unless the
chairman of the meeting decides otherwise before that meeting or
adjourned meeting proceeds to business. A notarially certified
copy proof of due execution as specified above (if applicable)
shall, if required by the Security Trustee, be produced by the
proxy at the meeting or adjourned meeting, but the Security
Trustee shall not thereby be obliged to investigate or be
concerned with the validity or the authority of the proxy named
in any such appointment. The proxy named in any appointment of
proxy need not be a Voting Mortgagee.
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(b) (Proxy remains valid) Any vote given in accordance with the
terms of an appointment of proxy set out in clause 40.9(a) shall
be valid notwithstanding the previous revocation or amendment of
the appointment of proxy or of any of the Voting Mortgagee's
instructions pursuant to which it was executed, provided that no
intimation in writing of such revocation or amendment has been
received by the Security Trustee at its registered office, or by
the chairman of the meeting, in each case within the 24 hours
before the commencement of the meeting or adjourned meeting at
which the appointment of proxy is used.
40.10 Corporate Representatives
A person authorised pursuant to sections 249(3)-(6) of the Corporations
Law by a Voting Mortgagee being a body corporate to act for that Voting
Mortgagee at any meeting shall, in accordance with his authority until
his authority is revoked by the body corporate concerned, be entitled to
exercise the same powers on behalf of that body corporate as that body
corporate could exercise if it were an individual Voting Mortgagee and
shall be entitled to produce evidence of his authority (together with,
if required by the Security Trustee, evidence satisfactory to the
Security Trustee of the due execution of the authority) to act at any
time before the time appointed for the holding of or at the meeting or
adjourned meeting or for the taking of a poll at which he proposes to
vote.
40.11 Rights of Representatives
A Representative shall have the right to demand or join in demanding a
poll and shall (except and to the extent to which the Representative is
specifically directed to vote for or against any proposal) have power
generally to act at a meeting for the Voting Mortgagee concerned. The
Security Trustee and any officer of the Security Trustee may be
appointed a Representative.
40.12 Extraordinary Resolutions
(a) (Powers) A meeting of Voting Mortgagees shall, without
prejudice to any rights or powers conferred on other persons by this
deed, have power exercisable by Extraordinary Resolution:
(i) to direct the Security Trustee in the action that
should be taken by it following the occurrence
of an Event of Default or the Charge or this deed
becoming enforceable;
(ii) to sanction any action that the Security Trustee or
a Receiver proposes to take to enforce the
provisions of this deed;
(iii) to sanction any proposal by the Trust Manager, the
Chargor or the Security Trustee for any modification,
abrogation, variation or compromise of, or arrangement
in respect of, the rights of the Mortgagees against
the Chargor or the Trust Manager whether such rights
shall arise under this deed, the Trust Documents
or otherwise;
(iv) to sanction the exchange or substitution of
the Secured Moneys for, or the conversion of
the Secured Moneys into, bonds or other
obligations or securities of the Chargor or
any body corporate formed or to be formed;
(v) to assent to any modification of the provisions
contained in this deed which may be proposed by the
Chargor, the Trust Manager or the Security Trustee;
(vi) to give any authority, direction, guidance or
sanction sought by the Security Trustee from the
Voting Mortgagees;
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(vii) to appoint any persons (whether Voting Mortgagees or
not) as a committee or committees to represent the
interests of the Voting Mortgagees and to confer on
such committee or committees any powers or
discretions which the Voting Mortgagees could
themselves exercise by Extraordinary Resolution;
(viii) to approve a person proposed to be appointed as a new
Security Trustee for the time being;
(ix) to discharge or exonerate the Security Trustee from
any liability in respect of any act or omission for
whichit may become responsible under this deed;
(x) to do any other thing which under this deed is
required to be given by an Extraordinary Resolution
of the Mortgagees;
(xi) to authorise the Security Trustee or any other person
to concur in and execute and do all such documents,
acts and things as may be necessary to carry out and
give effect to any Extraordinary Resolution; or
(xii) to determine whether the Security Trustee should or
should not perform an Act (as defined in clause
40.17), and any such Extraordinary Resolution will
(where relevant and in accordance with clause 40.17)
override any determination by the Note Trustee.
(b) (No power) A meeting of Voting Mortgagees shall not have power
in relation to any Mortgagee to:
(i) release any obligation to pay any of the Secured
Moneys to that Mortgagee;
(ii) alter any date upon which any of the Secured Moneys
is payable; or
(iii) alter the amount of any payment of any part of the
Secured Moneys.
40.13 Extraordinary Resolution binding on Mortgagees
Subject to clause 40.12(b), an Extraordinary Resolution passed at a
meeting of the Voting Mortgagees duly convened and held in accordance
with this clause 40 shall be binding upon all Mortgagees whether or not
present at such meeting and each of the Mortgagees and the Chargor, the
Trust Manager and the Security Trustee shall be bound to give effect to
it accordingly.
40.14 Minutes and records
Minutes of all resolutions and proceedings at every meeting of the
Voting Mortgagees under this clause 40 shall be made and duly entered in
the books to be from time to time provided for that purpose by the
Security Trustee and any such minutes purporting to be signed by the
chairman of the meeting at which those resolutions were passed or
proceedings transacted or by the chairman of the next succeeding meeting
of the Voting Mortgagees shall be conclusive evidence of the matters
contained in those minutes and until the contrary is proved, provided
every meeting in respect of the proceedings of which minutes have been
made and signed as provided in this clause 40.14 shall be deemed to have
been duly convened and held and all resolutions passed or proceedings
transacted in that meeting to have been duly passed and transacted.
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40.15 Written resolutions
Notwithstanding the preceding provisions of this clause 40, a resolution
of all the Voting Mortgagees (including an Extraordinary Resolution) may
be passed, without any meeting or previous notice being required, by an
instrument or notes in writing which have:
(a) in the case of a resolution (including an Extraordinary
Resolution) of all the Voting Mortgagees, been signed by all the
Voting Mortgagees; and
(b) any such instrument shall be effective upon presentation to
the Security Trustee for entry in the records referred to in
clause 40.14
40.16 Further procedures for meetings
Subject to all other provisions contained in this deed, the Security
Trustee may without the consent of the Mortgagees prescribe such further
regulations regarding the holding of meetings of the Voting Mortgagees
and attendance and voting at those meetings as the Security Trustee may
in its sole discretion determine including particularly (but without
prejudice to the generality of the above) such regulations and
requirements as the Security Trustee thinks reasonable:
(a) (persons are Voting Mortgagees) so as to satisfy itself that
persons are in fact Voting Mortgagees who purport to requisition
a meeting or who purport to make any requisition to the Security
Trustee in accordance with this deed;
(b) (entitlement to vote) so as to satisfy itself that persons who
purport to attend or vote at any meeting of Voting Mortgagees
are entitled to do so in accordance with this clause 40 and this
deed; and
(c) (forms of Representative) as to the form of appointment of
a Representative.
40.17 Note Trustee rights
(a) Despite any other provision of this deed, for so long as the
Note Trustee is the only Voting Mortgagee it may direct the
Security Trustee to do any act or thing which the Security
Trustee is required to do, or may only do, at the direction of
an Extraordinary Resolution of Voting Mortgagees.
(b) Neither the Security Trustee nor the Trust Manager may call a
meeting of Voting Mortgagees while the Note Trustee is the only
Voting Mortgagee, unless the Note Trustee otherwise consents.
(c) Despite any other provision of this deed, at any time while
an Event of Default subsists:
(i) if the Note Trustee is not the only Voting
Mortgagee; and
(ii) if the Note Trustee directs the Security Trustee to
enforce the Charge (whether directed to do so by
Class A Noteholders or as it determines on behalf of
the Class A Noteholders),
the Security Trustee shall enforce the Charge under clause 8.2
as if directed to do so by an Extraordinary Resolution of Voting
Mortgagees and paragraph (a) shall apply as if the Note Trustee
was the only Voting Mortgagee.
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(d) Except if the Note Trustee is the only Voting Mortgagee, where
the consent of the Note Trustee is required under
clause 1.2(b), 4.3, 4.4(a)(ii), 5.2, 8.1(b), 8.1(g), 8.2,
9.7(a), 9.7(c), 14, 29.3, 36 or 38.1(c) in relation to a
discretion or act of the Security Trustee (an Act):
(i) the Note Trustee must:
(A) not unreasonably withhold that consent,
giving due consideration to the interest of
Bearer Noteholders; and
(B) respond promptly (and in any event within 5
Business Days) to the Security Trustee
indicating whether the consent is granted or
not (and if it does not reply within 5
Business Days its consent shll be taken to
have been given); and
(ii) subject to paragraph (c), if an Extraordinary
Resolution of Voting Mortgagees determines that
the Act should or should not occur, the Extraordinary
Resolution will override any determination by the
Note Trustee in relation to any such clause.
(e) The Security Trustee shall not be liable to any Mortgagee for
acting, or not acting, on the directions of the Note Trustee,
even if the Security Trustee is actually aware that the Note
Trustee has unreasonably withheld its consent in breach of
sub-paragraph (d)(i)(A).
41. AUTHORISED SIGNATORIES
The Chargor irrevocably authorises each Mortgagee to rely on a
certificate by a person purporting to be its director or secretary as to
the identity and signatures of its Authorised Signatories. The Chargor
warrants that those persons have been authorised to give notices and
communications under or in connection with the Trust Documents.
42. GOVERNING LAW AND JURISDICTION
This deed is governed by the laws of the Australian Capital Territory.
The Chargor submits to the non-exclusive jurisdiction of courts
exercising jurisdiction there.
43. COUNTERPARTS
This deed may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
44. SET-OFF
No Mortgagee may apply any credit balance in any currency (whether or
not matured) in any account comprised in the Mortgaged Property towards
satisfaction of any sum then due and payable to that Mortgagee under or
in relation to any Trust Document.
45. ACKNOWLEDGEMENT BY CHARGOR
The Chargor confirms that:
(a) it has not entered into any Trust Document in reliance on, or
as a result of, any conduct of any kind of or on behalf of any
Mortgagee or any Related Corporation of any Mortgagee
(including any advice, warranty, representation or undertaking);
and
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(b) no Mortgagee nor any Related Corporation of any Mortgagee is
obliged to do anything (including disclose anything or give
advice),
except as expressly set out in the Trust Documents or
in writing duly signed by or on behalf of the Mortgagee or
Related Corporation.
46. INFORMATION MEMORANDUM
The Security Trustee has no responsibility for any statement or
information in or omission from any information memorandum,
advertisement, circular or other document issued by or on behalf of the
Chargor or Trust Manager, including in connection with the issue of
Notes. Neither the Chargor nor the Trust Manager may publish or permit
to be published any such document in connection with the offer of Notes
or an invitation for subscriptions for Notes containing any statement
which makes reference to the Security Trustee without the prior written
consent of the Security Trustee, which consent must not be unreasonably
withheld. In considering whether to give its consent, the Security
Trustee is not required to take into account the interests of the other
Mortgagees.
EXECUTED as a deed in the Australian Capital Territory.
Each attorney executing this deed states that he has no notice of revocation or
suspension of his power of attorney.
CHARGOR
SIGNED SEALED and DELIVERED )
on behalf of WESTPAC SECURITIES )
ADMINISTRATION LIMITED by its
attorney in the presence of: )
-----------------------------------
) Signature
- ------------------------------------- -----------------------------------
Witness Print name
- -------------------------------------
Print name
SECURITY TRUSTEE
SIGNED SEALED and DELIVERED )
on behalf of PERPETUAL TRUSTEE )
COMPANY LIMITED by its attorney )
the presence of: )
-----------------------------------
) Signature
- ------------------------------------- -----------------------------------
Witness Print name
- -------------------------------------
Print name
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TRUST MANAGER
SIGNED SEALED and DELIVERED )
on behalf of )
WESTPAC SECURITISATION MANAGEMENT )
PTY LIMITED by its attorney )
the presence of: )
-----------------------------------
) Signature
- ------------------------------------- -----------------------------------
Witness Print name
- -------------------------------------
Print name
NOTE TRUSTEE
SIGNED SEALED and DELIVERED )
for and on behalf of )
MORGAN GUARANTY TRUST COMPANY )
OF NEW YORK as a deed by its )
attorney in the presence of: )
-----------------------------------
) Signature
- ------------------------------------- -----------------------------------
Witness Print name
- -------------------------------------
Print name
