<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 5, 1999
REGISTRATION NO. 333-64199
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
PRE-EFFECTIVE AMENDMENT NO. 2
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 25, 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>
KIMBERLEY GIRE DIANE CITRON, ESQ.
DIRECTOR MAYER, BROWN & PLATT
WESTPAC SECURITISATION MANAGEMENT 1675 BROADWAY
PTY LIMITED NEW YORK, NEW YORK 10019
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
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT 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....... $883,900,000 100% $883,900,000 $245,741.20*
</TABLE>
*$295.00 previously paid.
------------------------------
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 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.
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<PAGE>
CROSS REFERENCE SHEET
<TABLE>
<CAPTION>
NAME AND CAPTION IN FORM S-11 CAPTION IN PROSPECTUS
----------------------------------------------------- -----------------------------------------------------
<C> <S> <C>
1. Forepart of Registration Statement and Outside Front Front Cover of Registration Statement; Outside Front
Cover Page of Prospectus............................. Cover Page of Prospectus
2. Inside Front and Outside Back Cover Pages of Inside Front Cover Page of Prospectus; Outside Back
Prospectus........................................... Cover Page of Prospectus
3. Summary Information, Risk Factors and Ratio of Summary of Terms; Risk Factors
Earnings to Fixed Charges............................
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 The Trust Fund; The Trust Manager
Condition and Results of Operations..................
11. General Information as to Registrant................. Description of the Class A Notes; The Trust Manager
12. Policy with respect to Certain Activities............ Description of the Class A Notes
13. Investment Policies of Registrant.................... Description of the Class A Notes
14. Description of Real Estate........................... The Trust Fund; Westpac Residential Loan Program
15. Operating Data....................................... *
16. Tax Treatment of Registrant and Its Security United States Federal Income Tax Consequences;
Holders.............................................. 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 Class A Notes
19. Legal Proceedings.................................... *
20. Security Ownership of Certain Beneficial Owners and The Trust Manager
Management...........................................
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 Description of the Class A Notes; Westpac Residential
Investments.......................................... Loan Program
25. Policies with Respect to Certain Transactions........ Description of the Class A Notes
26. Limitations of Liability............................. Description of the Class A Notes
27. Financial Statements and Information................. *
28. Interests of Named Experts and Counsel............... *
29. Disclosure of Commission Position on Indemnification Part II of Registration Statement
for Securities Act Liabilities.......................
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 BY 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.
<PAGE>
SUBJECT TO COMPLETION, DATED MAY 5, 1999
PRELIMINARY PROSPECTUS
US$883,900,000
[LOGO]
(ACN 000 049 472)
IN ITS CAPACITY AS ISSUER TRUSTEE OF THE
SERIES 1999-1G WST TRUST
US$883,900,000 CLASS A MORTGAGE BACKED FLOATING RATE NOTES DUE MAY 19, 2030
Interest on the Class A Mortgage Backed Floating Rate Notes (the "Class A
Notes") offered hereby and issued by Westpac Securities Administration Limited
solely in its capacity as issuer trustee of the Series 1999-1G WST Trust (the
"Trust") (the "Issuer Trustee") will be payable quarterly on the 19th day of
each of February, May, August and November (or if such 19th day is not a
Business Day (as defined herein), the next succeeding Business Day), commencing
August 19, 1999 (each, a "Payment Date"). The principal of the Class A Notes
will be payable on the maturity date indicated above, subject to earlier
redemption in whole or in part as described herein. Only the Class A Notes are
offered hereby.
The Issuer Trustee will also issue Class B Mortgage Backed Floating Rate
Notes (the "Class B Notes") with an aggregate face value of A$33,750,000 at the
same time as it issues the Class A Notes. The Class A Notes will be senior in
priority of distribution of principal and interest to the Class B Notes. Under
certain limited circumstances, the Issuer Trustee may issue certain additional
securities, the RFSs, which in certain circumstances will convert to RFS Class A
Notes. The RFSs will be senior in priority of distributions of principal to the
Class A Notes and the RFS Class A Notes (except with respect to enforcement, in
which case such classes will be PARI PASSU) and senior in priority of
distributions of principal and interest to the Class B 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 and senior in priority of distributions of
principal and interest to the Class B Notes. The Class B Notes, RFSs and RFS
Class A Notes are not offered hereby. See "SUMMARY OF TERMS--Class B Notes" and
"--Redraws, RFSs and RFS Class A Notes."
(CONTINUED ON NEXT PAGE)
------------------------------
PROSPECTIVE INVESTORS IN THE NOTES SHOULD REVIEW THE INFORMATION SET FORTH
UNDER "RISK FACTORS" BEGINNING ON PAGE 34 HEREIN.
THE CLASS A 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 CLASS A 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>
Proceeds to Issuer
Price to Public Underwriting Fees Trustee(1)
<S> <C> <C> <C>
Class A Notes............................................ % (2) %
</TABLE>
(1) Expenses, estimated to be US$900,561.20, will be paid by Westpac Banking
Corporation.
(2) Westpac Banking Corporation will pay fees to the Underwriters equal to 0.15%
of the Initial Invested Amount of the Class A Notes.
(3) The total underwriting fees paid to the Underwriters are equal to $ .
Application has been made to the London Stock Exchange Limited (the "London
Stock Exchange") for the Class A Notes to be admitted to the Official List.
Copies of this Prospectus (which includes Appendices I and II), which comprise
Listing Particulars with regard to the Issuer Trustee and the Class A 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 and
Wales for registration in accordance with Section 149 of that Act.
The Class A 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 Class A Notes will be made in book-entry form through the
facilities of The Depository Trust Company ("DTC"), Cedelbank ("Cedelbank") and
Morgan Guaranty Trust Company of New York, Brussels office, as operator of the
Euroclear System ("Euroclear") on or about May 13, 1999 against payment
therefore in immediately available funds.
J.P. MORGAN & CO. MORGAN STANLEY DEAN WITTER
WESTPAC BANKING CORPORATION
J.P. Morgan Securities Inc., Morgan Stanley & Co. Incorporated and Westpac
Banking Corporation are acting as joint lead managers and joint bookrunners in
connection with the activities relating to this offering
DEUTSCHE BANK SECURITIES
WARBURG DILLON READ
MERRILL LYNCH & CO.
SALOMON SMITH BARNEY
NOMURA INTERNATIONAL PLC
The date of this Prospectus is May , 1999.
<PAGE>
(CONTINUED FROM THE COVER PAGE)
The Class A 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 Class A Notes and the Transaction Documents (other than
certain of the Swap Agreements) are governed by, and shall be construed in
accordance with, the laws of New South Wales, Australia.
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 will be formed on or about May 6,
1999 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 Class A Notes in its capacity as
trustee of the Trust.
The Class A 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 Class A Notes. The Class
A 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 CLASS A
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,"
"--Form of the Class B Notes," "--Interest Payable on the Class B Notes" and
"--Subordination of the Class B Notes; Priority of Payment of Principal to
RFSs." The Class B Notes, RFSs and the RFS Class A Notes are not being offered
hereby.
The Class A Notes may not, in connection with their initial distribution, be
offered or sold, directly or indirectly, in the Commonwealth of Australia, its
territories or possessions or to any resident of Australia.
The Class A 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).
The Issuer Trustee's liability to make payments in respect of the Class A
Notes is limited to its right of indemnity from the assets of the Trust which
are from time to time available for this purpose pursuant to the Master Trust
Deed, the Series Notice and the Security Trust Deed. All claims against the
Issuer Trustee
2
<PAGE>
in relation to the Class A Notes may only be satisfied out of the assets of the
Trust, and are limited in recourse to the assets of the Trust.
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 Class A 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.
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 Class A 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.
THE CLASS A NOTES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE COMMISSIONER
OF INSURANCE OF THE STATE OF NORTH CAROLINA, NOR HAS THE COMMISSIONER OF
INSURANCE RULED UPON THE ACCURACY OR THE ADEQUACY OF THIS PROSPECTUS.
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 Class A
Notes will be issued in the form of one or more Book-Entry Notes issued to and
lodged with Cede & Co. as nominee of DTC; (2) in connection with the issue, DTC
will confer rights in relation to the Class A Notes and Noteholders and will
record the existence of those rights; and (3) as a result of the issue of the
Class A 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, periodic
and annual unaudited reports containing information concerning the Trust and the
Class A 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 Class A Notes pursuant to the Note Trust Deed. See DESCRIPTION OF THE CLASS
A 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 Class A Notes in accordance
with the rules, regulations and procedures creating and affecting DTC. However,
such reports will not be sent directly to each beneficial owner while the Class
A Notes are in book-entry form. Upon the issuance of fully registered,
certificated Class A 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 June 2000.
3
<PAGE>
DISCLAIMERS WITH RESPECT TO SALES TO NON-U.S. INVESTORS
This section applies only to the offer to subscribe for, or purchase, the
Class A Notes in any country outside the United States of America. The Issuer
Trustee's responsibility for, and liability in respect of, this Prospectus is
limited accordingly.
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 Class A Notes.
No action has been or will be taken by the Issuer Trustee or the
Underwriters that would permit a public offer of the Class A Notes in any
country or jurisdiction (other than in the United States of America) where
action for that purpose is required. Accordingly, the Class A Notes may not be
offered or sold, directly or indirectly, and neither this Prospectus nor any
offering circular, prospectus, form of application, advertisement 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 restrictions on offers and sales of Class A
Notes, see "UNDERWRITING."
The Issuer Trustee accepts responsibility for the information contained in
this Prospectus (which includes the Appendices). 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 (which
includes the Appendices) is in accordance with the facts and does not omit
anything likely to affect the import of such information.
The Currency Swap Providers (as defined herein) accept responsibility for
the information contained in "CURRENCY SWAP PROVIDERS" and "DESCRIPTION OF THE
SWAP AGREEMENTS-- Description of Currency Swaps". To the best of the knowledge
and belief of the Currency Swap Providers (which have 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 Providers do not accept responsibility for any
other information contained in this Prospectus. Save for the above information,
the Currency Swap Providers have 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 Providers as to the accuracy or completeness of any of the information in
this Prospectus (other than the information described above) or any other
information supplied in connection with the Class A Notes or their distribution.
None of the Seller Trustee, the Servicer, Trust Manager, Westpac, the
Security Trustee, the Note Trustee, any Mortgage Insurer or the Underwriters
accepts any responsibility for any information contained in this Prospectus and
none of them has 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 Seller Trustee, the Servicer, the
Trust Manager, Westpac, the Security Trustee, the Note Trustee, any Mortgage
Insurer or the Underwriters as to the accuracy or completeness of any
information contained in this Prospectus or any other information supplied in
connection with the Class A Notes or their distribution. Each person receiving
this Prospectus acknowledges that such person has not relied on the Seller
Trustee, the Servicer, the Trust Manager, Westpac, the Security Trustee, the
Note Trustee, any Mortgage Insurer or the Underwriters nor on any person
affiliated with any of them in connection with its investigation of the accuracy
of such information or its investment decisions.
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus in connection with
the issue or sale of the Class A Notes and, if given or made, such information
or representation must not be relied upon as having been authorized by the
Issuer Trustee or any of the Underwriters. Neither the delivery of this
Prospectus nor any sale made in connection
4
<PAGE>
herewith shall, under any circumstances, create any implication that there has
been no material change in the affairs of the Issuer Trustee or any other party
named in the Prospectus since the date hereof or the date upon which this
document has been most recently amended or supplemented or that there has been
no material adverse change in the financial position of the Issuer Trustee or
any other party named in the Prospectus since the date hereof or the date upon
which this document has been most recently amended or supplemented or that any
other information supplied in connection with the Class A Notes is correct as of
any time subsequent to the date on which it is supplied or, if different, the
date indicated in the document containing the same. The Underwriters expressly
do not undertake to review the financial condition or affairs of the Issuer
Trustee or any other party named in the Prospectus during the life of the Class
A Notes.
Neither this Prospectus nor any other information supplied in connection
with the Class A Notes is intended to provide the basis of any credit or other
evaluation and should not be considered as a recommendation by the Issuer
Trustee, the Note Trustee, the Currency Swap Providers or any of the
Underwriters that any recipient of this Prospectus, or any other information
supplied in connection with the Class A Notes, should purchase any of the Class
A Notes. Each investor contemplating purchasing any of the Class A Notes should
make its own independent investigation of the financial condition and affairs,
and its own appraisal of the creditworthiness of the Issuer Trustee and each
investor should seek its own tax, accounting and legal advice as to the
consequences of investing in any of the Class A Notes and none of the Servicer,
Trust Manager, the Seller Trustee, Westpac, the Note Trustee, the Security
Trustee, any Mortgage Insurer or any of the Underwriters accept any
responsibility or make any representation as to the tax consequences of
investing in the Class A Notes.
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 Class A 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."
5
<PAGE>
AUSTRALIAN DISCLAIMERS
(a) The Class A Notes do not represent deposits or other liabilities of
Westpac or associates of Westpac.
(b) The holding of the Class A 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 Class A 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 Seller Trustee, the Issuer Trustee, the Servicer or
the Trust Manager guarantees the payment of interest or the repayment of
principal due on the Class A Notes.
(e) None of the obligations of the Trust Manager are guaranteed in any way
by Westpac or any associate of Westpac.
------------------------
6
<PAGE>
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 a Class A 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 expressly submits 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, 39th Floor,
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 Class A 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$0.6620=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 April 30, 1999. 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.
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SUMMARY OF TERMS........................................................................................... 13
STRUCTURAL CHART........................................................................................... 28
CASH FLOW SUMMARY.......................................................................................... 29
Collections........................................................................................ 29
Gross Principal Collections........................................................................ 29
Principal Losses................................................................................... 30
Income Collections................................................................................. 31
Liquidity Support.................................................................................. 31
Currency Swaps..................................................................................... 31
CASH FLOW CHART............................................................................................ 32
NOTEHOLDER PRINCIPAL DISTRIBUTIONS......................................................................... 33
RISK FACTORS............................................................................................... 34
Limited Liability under the Class A Notes.......................................................... 34
Risk of Equitable Assignment of Housing Loans Rather than Legal Assignment......................... 34
Risk of Losses and Delays from Enforcement of the Housing Loans.................................... 35
Mortgage Insurance Policies Are Subject to Exclusions and Limitations.............................. 35
Risks Associated with High LVR Housing Loans....................................................... 35
Risks Associated with Westpac's Ability to Set Rates on Variable Rate Housing Loans at Its
Discretion......................................................................................... 36
Ability to Change Housing Loan Features and Options May Result in Changes to the Mortgage Pool and
Higher Rates of Principal Prepayment on the Class A Notes.......................................... 36
Risks of Currency Exchange Controls................................................................ 36
Risks Related to a Termination of the Swap Agreements.............................................. 37
Delinquency and Default Risk....................................................................... 38
Risk of Early Defaults............................................................................. 39
Principal Prepayment and Yield Considerations...................................................... 39
No Gross-Up; Tax Redemption........................................................................ 40
Reinvestment Risk.................................................................................. 40
Servicer Risk...................................................................................... 40
Priority of RFSs and RFS Class A Notes Owned by Australian Resident Investors...................... 40
Credit Enhancement Provides Only Limited Protection Against Losses................................. 41
Limitations on the Liquidity Support............................................................... 41
Exercise of Clean-up Offer May Result in Shortfalls to Noteholders................................. 41
Redemption of the Notes............................................................................ 41
Geographic Concentration May Affect Performance.................................................... 42
Consumer Credit Legislation........................................................................ 42
Risk of Commingling................................................................................ 43
Risks Associated with Year 2000 Compliance......................................................... 43
Limited Liquidity.................................................................................. 44
Ratings of the Notes; Factors Affecting Ability to Maintain Ratings................................ 44
Book-Entry Notes................................................................................... 44
Risks Associated with the Introduction of a Goods and Services Tax in Australia.................... 45
Other Considerations............................................................................... 46
FORMATION OF THE TRUST..................................................................................... 47
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Westpac Securitisation Trust Programme............................................................. 47
Series 1999-1G WST Trust........................................................................... 47
Trust Assets....................................................................................... 48
SECURITY FOR THE NOTES..................................................................................... 48
Charge............................................................................................. 48
Security Trustee................................................................................... 48
Nature of Security................................................................................. 49
Enforcement........................................................................................ 49
Priorities under the Security Trust Deed........................................................... 50
Security Trustee's Fees and Expenses............................................................... 52
Retirement and Removal............................................................................. 52
Additional Provisions of the Security Trust Deed................................................... 53
THE TRUST FUND............................................................................................. 54
General............................................................................................ 54
Transfer and Assignment of Housing Loans........................................................... 54
Representations and Warranties..................................................................... 55
Breach of Representations and Warranties........................................................... 56
Housing Loan Statistics............................................................................ 57
THE ISSUER TRUSTEE......................................................................................... 66
Incorporation...................................................................................... 66
Share Capital...................................................................................... 66
Business........................................................................................... 66
Experience......................................................................................... 66
Directors.......................................................................................... 67
Powers............................................................................................. 67
Duties............................................................................................. 67
Delegation......................................................................................... 68
Issuer Trustee Fees and Expenses................................................................... 69
Removal of the Issuer Trustee...................................................................... 69
Voluntary Retirement of the Issuer Trustee......................................................... 69
Limitation of Issuer Trustee's Liability........................................................... 69
Rights of Indemnity of Issuer Trustee.............................................................. 70
Limitation of Seller Trustee's Liability and Rights of Indemnity................................... 70
Rights of Indemnity of Seller Trustee.............................................................. 71
THE NOTE TRUSTEE........................................................................................... 71
ORIGINATOR OF THE HOUSING LOANS............................................................................ 71
THE SERVICER............................................................................................... 72
General............................................................................................ 72
Servicing of Housing Loans......................................................................... 72
Document Custody................................................................................... 72
Collection and Enforcement Procedures.............................................................. 72
Delinquencies and Mortgagee in Possession with respect to the Securitized Portfolios............... 73
THE TRUST MANAGER.......................................................................................... 78
General............................................................................................ 78
Incorporation...................................................................................... 78
Share Capital...................................................................................... 78
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Directors.......................................................................................... 78
Duties and Role of the Trust Manager............................................................... 78
Removal of the Trust Manager....................................................................... 79
Voluntary Retirement of the Trust Manager.......................................................... 80
Limitation of Trust Manager's Liability............................................................ 80
WESTPAC RESIDENTIAL LOAN PROGRAM........................................................................... 80
Origination of Housing Loans....................................................................... 80
Underwriting of Housing Loans...................................................................... 80
Servicing of Housing Loans......................................................................... 81
Housing Loan Products.............................................................................. 82
Housing Loan Features and Options.................................................................. 83
THE MORTGAGE INSURANCE POLICIES............................................................................ 85
Mortgage Insurance Policies--General............................................................... 85
The HLIC Mortgage Pool Insurance Policy............................................................ 86
Primary Mortgage Insurance Policies................................................................ 90
PREPAYMENT AND YIELD CONSIDERATIONS........................................................................ 91
General............................................................................................ 91
Prepayments........................................................................................ 91
Weighted Average Lives............................................................................. 92
DESCRIPTION OF THE CLASS A NOTES........................................................................... 94
General............................................................................................ 94
Collections and Payment............................................................................ 95
Collections........................................................................................ 95
Calculation of Total Available Funds............................................................... 96
Available Income................................................................................... 96
Principal Draws.................................................................................... 98
Liquidity Draws.................................................................................... 98
Remaining Liquidity Shortfall...................................................................... 98
Distribution of Total Available Funds.............................................................. 99
Excess Available Income............................................................................ 101
Gross Principal Collections........................................................................ 102
Principal Collections.............................................................................. 103
Distribution of Principal Collections.............................................................. 103
Payments of Principal on the Notes................................................................. 103
Application of Principal Charge Offs............................................................... 107
Payments into US$ Account.......................................................................... 108
Payments out of US$ Account........................................................................ 108
Prepayment Costs and Prepayment Benefits........................................................... 109
Description of the Redraw Facility, the Redraw Funding Securities and the RFS Class A Notes........ 109
Redraw Facility.................................................................................... 109
Issuance of Redraw Funding Securities ("RFS")...................................................... 113
RFS Class A Notes.................................................................................. 113
Form of the RFSs and the RFS Class A Notes......................................................... 113
Interest Payable on the RFSs and the RFS Class A Notes............................................. 114
Form of the Class B Notes.......................................................................... 114
Interest Payable on the Class B Notes.............................................................. 114
Subordination of the Class B Notes; Priority of Payment of Principal to RFSs....................... 114
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Substitution of Housing Loans...................................................................... 115
Prescription....................................................................................... 115
Clean-up Offer..................................................................................... 115
Redemption of the Notes............................................................................ 115
Withholding or Tax Deductions...................................................................... 116
Redemption of the Class A Notes for Taxation or Other Reasons...................................... 116
Termination of the Trust........................................................................... 117
Trust Accounts..................................................................................... 117
General............................................................................................ 118
Determination Date--Calculations and Reports to Noteholders........................................ 118
Book-Entry Registration............................................................................ 119
Definitive Notes................................................................................... 123
Modification of Master Trust Deed, Series Notice and the Note Trust Deed Without Noteholder
Consent............................................................................................ 123
Modification of Master Trust Deed, Series Notice and the Note Trust Deed With Noteholder Consent... 124
Meetings of Voting Mortgagees...................................................................... 124
Voting of Class A Noteholders; Modification; Consents; Waiver...................................... 124
Events of Default; Rights Upon Event of Default.................................................... 125
Enforcement of the Security Trust Deed............................................................. 126
Certain Covenants.................................................................................. 129
Annual Compliance Statement........................................................................ 130
The Note Trustee................................................................................... 130
Governing Law...................................................................................... 130
London Stock Exchange Listing...................................................................... 130
DESCRIPTION OF THE SERVICING AGREEMENT..................................................................... 130
General............................................................................................ 130
Servicing.......................................................................................... 130
Document Custody................................................................................... 134
Amendment.......................................................................................... 135
Termination of Servicing Agreement................................................................. 135
THE LIQUIDITY FACILITY..................................................................................... 135
General Description................................................................................ 136
Liquidity Draws.................................................................................... 136
Conditions Precedent to a Liquidity Draw........................................................... 136
Deposit into a Collateral Account.................................................................. 136
Interest on Liquidity Draws........................................................................ 137
Commitment Fee..................................................................................... 137
Repayment of Liquidity Drawings.................................................................... 137
Events of Default.................................................................................. 137
Consequences of Default............................................................................ 138
Termination........................................................................................ 138
DESCRIPTION OF THE SWAP AGREEMENTS......................................................................... 139
Description of Interest Rate Swap Agreements....................................................... 139
Description of Currency Swaps...................................................................... 141
Replacement of Currency Swaps...................................................................... 143
Downgrade of Currency Swap Providers............................................................... 143
Cross Support...................................................................................... 143
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CURRENCY SWAP PROVIDERS.................................................................................... 143
CERTAIN LEGAL ASPECTS OF THE HOUSING LOANS................................................................. 144
General............................................................................................ 144
Nature of Housing Loans as Security................................................................ 145
Enforcement of Housing Loans....................................................................... 147
Penalties and Prohibited Fees...................................................................... 147
Consumer Credit Legislation........................................................................ 148
Bankruptcy......................................................................................... 149
Environmental...................................................................................... 149
Insolvency Considerations.......................................................................... 149
Treatment of Interest Payments with respect to Australian Housing Loans............................ 150
USE OF PROCEEDS............................................................................................ 150
UNITED STATES FEDERAL INCOME TAX CONSEQUENCES.............................................................. 150
General............................................................................................ 150
Sales of Notes..................................................................................... 151
Market Discount.................................................................................... 151
Premium............................................................................................ 152
Backup Withholding................................................................................. 152
AUSTRALIAN TAX MATTERS..................................................................................... 153
Payments of Principal, Premiums and Interest....................................................... 153
Profit on Sale..................................................................................... 154
Other Taxes........................................................................................ 154
ERISA CONSIDERATIONS....................................................................................... 154
RATINGS OF THE NOTES....................................................................................... 155
LEGAL INVESTMENT CONSIDERATIONS............................................................................ 155
UNDERWRITING............................................................................................... 156
United Kingdom..................................................................................... 157
Australia.......................................................................................... 157
LISTING AND GENERAL INFORMATION............................................................................ 158
Listing............................................................................................ 158
Authorization...................................................................................... 158
Litigation......................................................................................... 158
Euroclear and Cedelbank............................................................................ 158
Documents Available for Collection and Inspection.................................................. 158
Temporary Australian Foreign Exchange Controls..................................................... 159
Consents to Opinions............................................................................... 159
LEGAL MATTERS.............................................................................................. 159
APPENDIX I--GLOSSARY OF AUSTRALIAN LEGAL TERMS............................................................. I-1
APPENDIX II--TERMS AND CONDITIONS OF THE CLASS A NOTES..................................................... II-1
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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 in the "Index of Defined Terms."
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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 1999-1G WST Trust
(the "Trust") (the "Issuer Trustee") will issue the Class
A 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 (a "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 direct 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), between the Issuer Trustee and the Trust
Manager dated on or about the Closing Date. See "FORMATION
OF THE TRUST."
Note Trustee.................... Citibank, N.A., London office, 11 Old Jewry, London, EC2R
8DU, England (the "Note Trustee"), in its capacity as note
trustee with respect to the Class A Notes under the Note
Trust Deed among the Issuer Trustee, the Trust Manager and
the Note Trustee dated on or about May 13, 1999 as amended
from time to time (the "Note Trust Deed"). See "THE NOTE
TRUSTEE."
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 on or about May 6, 1999 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
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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 and Note
Registrar..................... Citibank, N.A., 5 Carmelite Street, London, EC4Y 0PA,
England, will act as the principal paying agent
("Principal Paying Agent") and note registrar for the
Class A Notes (the "Note Registrar"). The Principal Paying
Agent and any other paying agents are referred to herein
as the "Paying Agents".
Roles of the Security Trustee
and Note Trustee.............. The structure of the Series 1999-1G WST Trust transaction
employs several different trustees. The Security Trustee
is the entity that holds a security interest over the
Trust Assets (as defined herein) 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 in accordance with the provisions of the
Security Trust Deed. The Note Trustee is the entity which
represents the interests of the Class A Noteholders. The
provisions of the Security Trust Deed require the Security
Trustee to consult with, and obtain the prior written
consent of, the Class B Noteholders and the Note Trustee
on behalf of the Class A Noteholders (together, the
"Noteholder Mortgagees") before taking certain actions.
Thus, not only does the Security Trustee owe fiduciary
duties to the Note Trustee (and the Class A Noteholders
and the other secured creditors), it has contractual
obligations to consult with and act at the Noteholder
Mortgagees' direction in accordance with the Security
Trust Deed. The Note Trustee owes fiduciary duties to the
Class A Noteholders and must act in accordance with those
duties when voting to direct 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 typical United States transaction.
Securities Offered.............. The Issuer Trustee, in its capacity as trustee of the
Series 1999-1G WST Trust, which was formed under the laws
of New South Wales, will issue the Class A Mortgage Backed
Floating Rate Notes due May 19, 2030 in the aggregate
principal amount of US$883,900,000 (the "Class A Notes").
The Class A Notes only are offered hereby.
Class B Notes................... The Class B Mortgage Backed Floating Rate Notes due May
19, 2030 in the aggregate principal amount of A$33,750,000
(the "Class B Notes") will be denominated in Australian
dollars and will be made available only in Australia to
Australian residents and are NOT offered hereby. The Class
B 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
Australian Securities and Investments Commission ("ASIC"),
the relevant companies authority in Australia.
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
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have been previously paid by the Borrower which are in
excess of scheduled repayments required under the
contractual amortization schedule for the relevant Housing
Loan. Such 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) prior to any payments
being made on the Class A 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
Agreement 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 Agreement will rank PARI PASSU in respect of
priority.
If any RFSs are not repaid on the fifth Collection
Determination Date following the date such RFSs were
issued, 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, the Class A Notes and the Class B 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 Class B Notes, 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 ASIC.
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 Class A Notes, RFSs and
RFS Class A Notes" herein and "DESCRIPTION OF THE CLASS A
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; Priority of
Principal Payments to RFSs" herein.
Cut-Off Date.................... March 31, 1999 (the "Cut-Off Date").
Closing Date.................... On or about May 13, 1999 (the "Closing Date").
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Maturity Date................... May 19, 2030 (the "Maturity Date").
Terms of the Class A Notes
General....................... Payments of interest and principal on the Class A Notes
will be made quarterly on the 19th day of each of
February, May, August and November (or if such 19th day is
not a Business Day, the next succeeding Business Day),
commencing on August 19, 1999 (each such date, a "Payment
Date").
As used in this Prospectus, "Business Day" means (a) in
relation to the Note Trust Deed, the Agency Agreement, any
Class A Note and any US$ payments under a Currency Swap,
any day, other than a Saturday, Sunday or public holiday,
on which banks are open for business in London and New
York City; and (b) in relation to any Notes, except Class
A Notes, A$ payments under a Currency Swap and 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.
Payments of interest and principal will be made to the
holders of the Class A Notes (the "Class A Noteholders")
of record as of the day which is two Business Days
preceding the Payment Date (so long as the Class A 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 Class A Note bears
interest on its Invested Amount. The "Invested Amount" of
the Class A Notes, Class B Notes, RFSs or RFS Class A
Notes (each, a "Class") is equal to the Initial Invested
Amount (as defined herein) of such Note less all payments
previously made in respect of principal in respect of such
Note. The "Initial Invested Amount" of a Note is its
principal amount on the date of its issuance. Each
"Interest Period" (other than the initial Interest Period
and the final Interest Period) with respect to the Class A
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 Class A 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 on the Class A Notes for the first
Interest Period will be determined on May 11, 1999. See
"DESCRIPTION OF THE CLASS A NOTES--Calculation of USD-
LIBOR-BBA" herein. The "Interest Rate" for the Class B
Notes for a particular Interest Period is equal to the
Bank Bill Rate on the first day of such Interest Period
plus %. The Interest Rate on the Class B Notes for the
first Interest Period will be determined on May 11, 1999.
On the second London banking day before the beginning of
each Interest Period (each an "Interest Determination
Date"), Citibank, N.A., London office (the "Agent Bank")
will determine the rate
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"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.
With respect to any Payment Date, interest on the Class A
Notes and Class B 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 with respect to the Class A Notes,
or, with respect to the Class B Notes, 365 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 Notes 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),
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interest or fees payable under the Liquidity Facility (as
defined herein), Trust Expenses (as defined herein) and
certain amounts payable to any Interest Rate Swap Provider
(as defined herein) are sufficient to pay Interest on the
Class A Notes, Interest will be payable in arrears on each
Payment Date to the Class A 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 Class A 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, the Class B Notes or any payment in
respect of the Redraw Facility (as defined herein) or
through a payment to the Currency Swap Providers (as
defined herein) with respect to the Class A 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 CLASS A 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 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, in its capacity as the provider of the Redraw
Facility (the "Redraw Facility Provider"), to repay any
Principal Outstanding (as defined herein) under the Redraw
Facility Agreement; (iii) to fund any Principal Draw (as
defined herein) 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 Noteholders, the Currency Swap
Providers to enable the Issuer Trustee to make payments to
the Class A Noteholders, and the Class B Noteholders in
the amounts and priorities set forth herein under
"DESCRIPTION OF THE CLASS A NOTES--Payments of Principal
on the Notes."
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Priority of Distribution with
respect to the Class A Notes,
RFSs and RFS Class A Notes,
Class B 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 the extent set forth
herein 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 CLASS A
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; Priority of
Principal Payments to RFSs."
Credit Enhancement with respect
to the Class A Notes.......... 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 on the
Class B Notes to payments on the Class A Notes.
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 Pty
Limited (ACN 071 466 334) of 259 George 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$45,000,000. HLIC is a
private insurance company which is a subsidiary of GE
Capital Australia (ACN 008 562 534).
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
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standard credit policy) will have been insured under a PMI
Policy issued by one of the following: Royal & Sun
Alliance Lenders Mortgage Insurance Limited (ACN 001 825
725) of Level 9, 465 Victoria Avenue, Chatswood NSW
("Royal & Sun"), MGICA Limited (ACN 000 511 071) 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 43.75% 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, Royal & Sun, 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 Class A 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 to the extent set forth herein.
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 Class A
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 Class A Noteholders and to afford
such holders protection against losses on the Housing
Loans. See "DESCRIPTION OF THE CLASS A NOTES--Collections
and Payment" herein.
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Security for the Class A Notes
General....................... The Class A 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 Class A 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." The Class A Notes are issued with the benefit
of, and subject to the terms of, the Transaction
Documents. The Issuer Trustee's liability in respect of
the Class A 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 Class
A Notes and, except in certain limited circumstances, the
Issuer Trustee will not be personally liable in respect of
the Class A Notes.
A. The Housing Loans............ The Housing Loans will consist of 12,886 Housing Loans
with an aggregate Balance Outstanding on the Cut-Off Date
of A$1,383,157,099. 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 or if the
Housing Loan is not secured by a first ranking mortgage
the Approved Seller will assign to the Issuer Trustee all
prior ranking registered mortgages in relation to that
Housing Loan. "Registered" means the mortgage has been
filed with the lands office in the relevant Australian
State or Territory, granting certain rights with respect
to the applicable Mortgaged Property. See "APPENDIX
I--GLOSSARY OF AUSTRALIAN LEGAL TERMS."
Each Housing Loan requires that the 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. If Scheduled Payments are not received with
respect to certain Housing Loans on the related due date a
default rate of interest may be charged on any overdue
amount and there will be a compounding of interest.
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.
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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, as of the Cut-Off
Date, range from approximately 5.00% per annum to 9.95%
per annum. The weighted average Mortgage Rate of the
Housing Loans on the Cut-Off Date is approximately 6.31%
per annum. The Cut-Off Date Balances Outstanding of the
Housing Loans ranged from approximately A$10,023 to
A$513,202. The average Cut-Off Date Balance Outstanding of
the Housing Loans is approximately A$107,338. The weighted
average original term to stated maturity of the Housing
Loans is approximately 310.00 months. The weighted average
remaining term to stated maturity of the Housing Loans is
approximately 300.89 months. As of the Cut-Off Date, the
weighted average number of months that had elapsed since
origination of the Housing Loans is approximately
9.11months.
Housing Loans representing approximately 17.76% 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 1.82% and 94.85%. 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. The Mortgaged
Property is generally valued at the time of origination.
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").
Initially, the Collections Account shall be maintained
with Westpac. Under certain conditions described herein,
such remittances may be made on a quarterly basis, two
Business 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 CLASS A
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
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"Principal Draw"). See "DESCRIPTION OF THE CLASS A
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 by an amount equal to the amount of any 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
temporarily funding certain income shortfalls in the
Trust, up to an aggregate amount being the lesser of: (1)
A$46,000,000, (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 1999- 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 CLASS A NOTES."
SECURITY TRUST DEED: Pursuant to the Security Trust Deed,
the Issuer Trustee will grant a first ranking floating
charge over the Trust
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Assets to the Security Trustee, in order to secure the
Issuer Trustee's obligations to the Class A Noteholders,
the Class B Noteholders, the Note Trustee, the Trust
Manager, the Swap Providers (as defined herein), the
Security Trustee, each Paying Agent, each provider of a
Support Facility (other than the provider of a Mortgage
Insurance Policy), to the Approved Sellers in respect of
any Accrued Interest Adjustment, to Westpac in respect of
Redraws, 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, 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 in property. A floating charge is a grant
of a proprietary interest which "floats" over a group of
assets which assets may change or be dealt with 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, provided such dealings and
transfers of title are in the ordinary course of the
chargor's business. 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 Class A Notes. See
"DESCRIPTION OF THE CLASS A NOTES."
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"
are constituted by three 1991 ISDA Master Agreements (each
an "ISDA Master Agreement"), the schedules supplementing
such agreements and written swap confirmations confirming
the Variable Rate Basis Swap, two Fixed Rate Basis Swaps
and the Currency Swaps. See "DESCRIPTION OF THE SWAP
AGREEMENTS."
AGENCY AGREEMENT: Pursuant to the Agency Agreement, the
Issuer Trustee will appoint paying agents and an agent
bank with respect to the Class A Notes. The terms and
conditions of these appointments are set forth in the
Agency Agreement.
LIQUIDITY FACILITY AGREEMENT: Under the Liquidity Facility
Agreement, the Liquidity Facility Provider agrees to make
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advances to the Issuer Trustee for the purpose of
providing liquidity to cover certain income shortfalls in
the Trust. See "THE LIQUIDITY FACILITY."
REDRAW FACILITY AGREEMENT: 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 herein, to fund the amount of any
Redraws not funded by Gross Principal Collections. See
"DESCRIPTION OF THE CLASS A NOTES--Redraw Facility."
The Master Trust Deed, the Series Notice, the Servicing
Agreement, the Security Trust Deed, the Note Trust Deed,
the Swap Agreements, the Agency Agreement, the Liquidity
Facility Agreement and the Redraw Facility Agreement are
collectively referred to herein as the "Transaction
Documents."
Clearance and Settlement........ Persons acquiring beneficial ownership interests in the
Class A Notes will hold their Class A Notes through any of
DTC (in the United States) or Cedelbank or Euroclear (in
Europe). Transfers within DTC, Cedelbank 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
Cedelbank or Euroclear, on the other, will be effected in
DTC through the Relevant Depositaries (as defined herein)
of Cedelbank or Euroclear. See "DESCRIPTION OF THE CLASS A
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 any non-performing Housing Loans is the fair
market
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value of such Housing Loan agreed on by the Trust Manager
(based on appropriate expert advice) and the Approved
Seller.
Redemption for Taxation or Other
Reasons....................... If the Trust Manager satisfies the Issuer Trustee and the
Note Trustee immediately prior to giving the notice
referred to below that either (i) on the next Payment Date
the Issuer Trustee would be required to deduct or withhold
from any payment of principal or interest (or
corresponding payment under a Currency Swap) in respect of
any Class A Notes any amount for or on account of any
present or future taxes, duties, assessments or
governmental charges of whatever nature imposed, levied,
collected, withheld or assessed by the Commonwealth of
Australia or any of its political subdivisions or any of
its authorities (a "Withholding Tax Event") or (ii) the
total amount payable in respect of interest in relation to
any of the Housing Loans for a Collection Period ceases to
be receivable (whether or not actually received) by the
Issuer Trustee during such Collection Period by reason of
any present or future taxes, duties, assessments or
governmental charges of whatever nature imposed, levied,
collected, withheld or assessed by the Commonwealth of
Australia or any of its political subdivisions or any of
its authorities, the Issuer Trustee must, when so directed
by the Trust Manager (at any time at the Trust Manager's
option) (provided that the Issuer Trustee will be in a
position on such Payment Date to discharge (and will so
certify to the Issuer Trustee and the Note Trustee) all
its liabilities in respect of the Class A Notes and any
amounts required under the Security Trust Deed to be paid
in priority to or PARI PASSU with the Class A Notes) upon
having given not more than 60 nor less than 30 days notice
to the Noteholders of the Class A Notes, redeem all, but
not some, of the Class A Notes at their Invested Amount
(or at the option of the holders of 75% of the aggregate
Invested Amount of the Class A Notes, at their Stated
Amount), together with accrued interest to the date of
redemption on any subsequent Payment Date, provided that
the holders of 75% of the aggregate Invested Amount of the
Class A Notes may elect, and shall notify the Issuer
Trustee and the Trust Manager, that they do not require
the Issuer Trustee to redeem the Class A Notes in the
circumstances described above. See "RISK FACTORS--No
Gross-Up; Tax Redemption."
Legal Investment
Considerations................ The Class A 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 Class A 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 Class A Notes as
legal investments for such purchasers. See "LEGAL
INVESTMENT CONSIDERATIONS" herein.
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Tax Status...................... In the opinion of Mayer, Brown & Platt, special tax
counsel for the Trust, the Class A Notes will be
characterized as debt for U.S. federal income tax
purposes. Each Class A Noteholder, by acceptance of a
Class A Note, will agree to treat the Class A Notes as
indebtedness. See "UNITED STATES FEDERAL INCOME TAX
CONSEQUENCES" herein.
Payments of principal and Interest in respect of the Class
A Notes will be made subject to withholding tax (if any)
applicable to the Class A Notes without the Issuer Trustee
being obliged to pay any additional amounts to the Class A
Noteholders in respect of such withholding tax. See "RISK
FACTORS--No Gross-Up; Tax Redemption."
ERISA Considerations............ Subject to the considerations discussed under "ERISA
CONSIDERATIONS," the Class A Notes are eligible for
purchase by employee benefit plans.
Ratings of the Class A 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").
Moody's, Fitch and Standard & Poor's are referred to
herein as the "Rating Agencies." The security ratings of
the Class A 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
certain of the Swap Agreements) are governed by, and shall
be construed in accordance with, the laws of New South
Wales, Australia. 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 Class A Notes.
Risk Factors.................... In considering an investment in the Class A Notes,
investors should recognize that there are risks associated
with such an investment. See "Risk Factors" herein.
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STRUCTURAL CHART
[LOGO]
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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 CLASS A 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 (sequentially or serially, as described below).
6. Sixth, to pay principal outstanding under the Class B Notes under the
sequential or serial methods referred to below.
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Initially all Principal Collections distributed to Noteholders 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 "Serial Method 2 Distribution Test" set forth in
"DESCRIPTION OF THE CLASS A NOTES--Payments of Principal on the Notes."
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 interest 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
Principal Outstanding under the Redraw Facility.
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 in subsequent Collection Periods 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.
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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 Swaps 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;
(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. Once distributed to Westpac, such amounts will no longer be available to
the Issuer Trustee to meet the obligations of the Trust, including the Class A
Notes.
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$46,000,000) to provide liquidity to allow Total Payments to be made.
CURRENCY SWAPS
All payments required to be made to Class A Noteholders will be made in
Australian dollars to the Currency Swap Providers, who will swap the amounts
into US dollars.
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CASH FLOW CHART
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NOTEHOLDER PRINCIPAL DISTRIBUTIONS
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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 Class A Notes.
LIMITED LIABILITY UNDER THE CLASS A NOTES
The Class A 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 Class A 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 Class A Notes and, except in certain
limited circumstances, the Issuer Trustee will not be personally liable in
respect of the Class A Notes. See "THE ISSUER TRUSTEE--Limitation of Issuer
Trustee's Liability."
In addition, the Class A 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 Class A 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 Class A 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. 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 Class A
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 Class A Notes.
RISK OF EQUITABLE ASSIGNMENT OF HOUSING LOANS RATHER THAN LEGAL ASSIGNMENT
Although the Housing Loans and the related Mortgages could have been legally
assigned by the Seller Trustee to the Issuer Trustee, they will initially only
be equitably assigned until a Title Perfection Event (as defined below) occurs.
A "Title Perfection Event" in relation to the Housing Loans is the occurrence of
any of the following: (i) Westpac ceases to have a long term credit rating of at
least "BBB" from Standard & Poor's, "BBB" from Fitch and, so long as the Class A
Notes are outstanding, "Baa2" from Moody's; (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. If a Title Perfection Event occurs, the
Issuer Trustee, with the assistance of the Servicer, is required take such steps
as are necessary to perfect the Issuer Trustee's legal title in the Housing
Loans.
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;
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(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 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 a Housing Loan and result in shortfalls in distributions to Class A
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, Class A 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 36.11% of the Housing Loans by aggregate principal balance of
the related Housing Loans as of the Cut-Off 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, Class A Noteholders may
experience losses including Principal Charge Offs (as defined herein) with
respect to the Class A Notes. For a description of such coverage, see "THE
MORTGAGE INSURANCE POLICIES."
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RISKS ASSOCIATED WITH WESTPAC'S ABILITY TO SET RATES ON VARIABLE RATE HOUSING
LOANS AT ITS DISCRETION
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 Payments and accordingly, may become delinquent or may 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 Class A Notes to experience higher rates of principal
prepayment on the Class A Notes than initially anticipated.
ABILITY TO CHANGE HOUSING LOAN FEATURES AND OPTIONS MAY RESULT IN CHANGES TO THE
MORTGAGE POOL AND HIGHER RATES OF PRINCIPAL PREPAYMENT ON THE CLASS A 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 or options 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 from 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 to investment property
status or vice versa (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 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 Class A
Notes to experience higher rates of principal prepayment on the Class A Notes
than initially 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 Class A Notes than initially anticipated. 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 Swaps, is required to pay certain
collections to the Currency Swap Providers as required under the Series Notice.
It is possible that in the future the Australian Government may impose exchange
controls that affect the availability of Australian dollar payments for making
payments under the Currency Swaps. The Class A 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 of the amounts in Australian dollars which it is
required by the Transaction Documents to pay to the Currency Swap Providers
under the Currency Swaps, the Currency Swap Providers are only required to pay
the U.S. dollar equivalent of the
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amounts they actually receive. In such event, it is unlikely that the Trust
would have sufficient U.S. dollars to make the payments due on the Class A
Notes.
RISKS RELATED TO A TERMINATION OF THE SWAP AGREEMENTS
By entering into the Swap Agreements, the Issuer Trustee intends to transfer
to the Interest Rate Swap Provider and Currency Swap Providers, as applicable,
the risks set forth below that the Trust would otherwise have with respect to
payments on the Class A Notes and the Housing Loans.
(a) Currency Exchange Risk. Interest and principal on the Class A Notes is
payable in U.S. dollars and the Trust's primary source for funding its payments
on the Class A Notes is its collections on the Housing Loans, which will be in
Australian dollars. If the Currency Swap Providers were to fail to perform under
the Currency Swaps or were to be discharged from such performance because of a
default thereunder by the Trust, the Issuer Trustee 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 1.52672
Australian dollars for each U.S. dollar) and might therefore not have sufficient
U.S. dollars to make timely payments on the Class A 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
Class A Notes) and the variable administered rates set by Westpac will be hedged
by means of the Variable Rate Basis Swap. Pursuant to the Variable Rate Basis
Swap, each quarter the Interest Rate Swap Provider will pay the Issuer Trustee
the three month Bank Bill Rate plus a fixed margin and receive from the Issuer
Trustee the weighted average variable housing rate. The margin is fixed for the
life of the swap and will be set with regard for the ongoing expenses of the
Trust.
If Westpac is downgraded below "A-1+" by Standard & Poor's, "A2" by Moody's
or "F-1+" by Fitch, 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 across Westpac's whole portfolio of loans of the same product type may be
set at above market interest rates on the variable rate housing loans to meet
Trust Expenses which could result in the affected Borrowers refinancing their
loans with another bank, which in turn could cause Class A Noteholders to
experience higher rates of principal repayment on the Class A Notes than
initially anticipated. If the Variable Rate Basis Swap is terminated, the Trust
may be subject to reinvestment risk to the extent that any payments and
prepayments invested in Authorized Investments do not earn a sufficient rate of
interest to cover the interest owing on the Notes.
(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 Class A 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 on the Closing Date to hedge
that portion of the pool earning a Fixed Rate of interest as of the 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
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or about 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 or from an existing fixed
rate of interest to a new 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 "A-1+" by Standard & Poor's, "A2" by Moody's
or "F-1+" by Fitch, 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, who shall make such decision at the direction of the Trust
Manager. If the Fixed Rate Swap remains in place, the Rating Agencies may
consider downgrading the Class A Notes and an investor may then be holding Class
A Notes which have been downgraded. If the Fixed Rate 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 Class A Notes). If the
relevant Fixed Rate Basis Swap is terminated, the Trust will be subject to the
risk that the floating rate obligations of the Trust may change in such a way
that the discretionary fixed rate set by Westpac on those Housing Loans being
charged a fixed rate of interest will be insufficient to make payments on such
floating rate obligations.
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 Class A Noteholders.
The Issuer Trustee's obligation to pay principal in respect of the Class A
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
Class A 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 CLASS A 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 Class A Notes, notwithstanding any amounts
that may be claimed under a Mortgage Insurance Policy or otherwise allocated
from Principal Collections or drawn under the Liquidity Facility.
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RISK OF EARLY DEFAULTS
Although little data is available and no empirical verification has been
made by the Trust Manager, 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.
PRINCIPAL PREPAYMENT AND YIELD CONSIDERATIONS
The yield to maturity experienced by a Class 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 Class A Noteholders earlier than would otherwise have been
the case. For example, early payments of principal may occur in the following
situations:
(1) refinancing by Borrowers with other financiers;
(2) receipt by the Issuer Trustee of enforcement proceeds due to a Borrower
having defaulted on its Housing Loan;
(3) receipt by the Issuer Trustee of insurance proceeds in relation to a
claim under a Mortgage Insurance Policy in respect of a Housing Loan;
(4) 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");
(5) 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;
(6) repurchase of the Housing Loans as a result of a Clean-Up Offer or a
redemption for taxation or other reasons (see "DESCRIPTION OF THE CLASS A
NOTES--Clean-Up Offer" and "--Redemption of the Class A Notes for Taxation or
Other Reasons");
(7) receipt of proceeds of enforcement of the Security Trust Deed prior to
the Maturity Date of the Notes (see "DESCRIPTION OF THE CLASS A
NOTES--Redemption of the Notes"); or
(8) receipt of proceeds of the sale of Housing Loans if the Trust is
terminated while Class A 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 CLASS A NOTES--the Redraw Facility, the Redraw Funding
Securities and the RFS Class A 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 principal payment experience may be affected by a wide
variety of factors, including general economic conditions, interest rates, the
availability of alternative financing and homeowner mobility. Furthermore,
unlike the United States, 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. This is one contributing
factor to borrowers prepaying housing loans relating to owner-occupied
properties in Australia in a manner that differs from the United States. See
"CERTAIN LEGAL ASPECTS OF THE HOUSING LOANS-- Treatment of Interest Payments
with respect to Australian Housing Loans".
See "PREPAYMENT AND YIELD CONSIDERATIONS."
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NO GROSS-UP; TAX REDEMPTION
In the event that any withholding tax is imposed on payments of interest on
any of the Class A Notes, the holders of the Class A Notes will not be entitled
to receive grossed-up amounts to compensate for such withholding tax.
Consequently, there can be no assurance that the remaining payments on the
Housing Loans would be sufficient to make timely payments of Interest on and
payment of principal at the maturity date of the Class A Notes. In addition,
upon the occurrence of a Withholding Tax Event, the Issuer Trustee (at the
direction of the Trust Manager) may on any Payment Date simultaneously redeem in
whole but not in part, at the redemption prices specified herein, the Class A
Notes in accordance with the procedures described under "DESCRIPTION OF THE
CLASS A NOTES--Redemption of the Class A Notes for Taxation or Other Reasons"
herein. Holders of 75% of the Invested Amount of the Class A Notes may also
elect not to redeem the Class A Notes in the event of a Withholding Tax Event.
REINVESTMENT RISK
The Interest Rate Swap Agreements transfer the reinvestment risk detailed
below to the applicable Swap Provider. In the event that the Variable Rate Basis
Swap is terminated, the reinvestment risk will transfer back to the Issuer
Trustee. 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 Class A Notes at the then
current Interest Rate 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 Class A Notes may affect
the ability of the Issuer Trustee to pay interest in full on the Class A 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 CLASS A
NOTES--Available Income" and "--Principal Draws."
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 Issuer Trustee 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 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 being made on the Class A Notes.
Additionally, if RFSs are not repaid on the fifth Collection Determination Date
following
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the date such RFSs were issued, such RFSs 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. 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 from the
liquidation of the assets included in the Trust following the enforcement of the
Security Trust Deed 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 CLASS A 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 on the Class B Notes to payments
to the Class A Notes. Although the credit enhancement is intended to reduce the
risk of delinquent payments or losses to the Class A 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 Class A Notes. As a result, the available credit enhancement may be
insufficient to reduce the risk of delinquent payments and losses to the Class A
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 Class A Notes, Class A Noteholders may suffer losses. In addition, the
Liquidity Facility does not provide any credit enhancement with respect to the
Class A Notes. See "DESCRIPTION OF THE CLASS A 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 Manager, 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 Class A 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 Class A Noteholders and Class A Noteholders may
suffer losses. See "DESCRIPTION OF THE NOTES--Clean-up Offer."
REDEMPTION OF THE NOTES
If an Event of Default occurs under the Security Trust Deed while the Class
A Notes are outstanding, the Security Trustee may (subject to the prior written
consent of the Noteholder Mortgagees in accordance with the provisions of the
Security Trust Deed), and will (if so directed by the Noteholder Mortgagees
where they are the only Voting Mortgagees 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
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Loans for their then current 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, including the Class A 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 holders of 75% of the votes of all 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 CLASS A NOTES-- Termination of the Trust."
GEOGRAPHIC CONCENTRATION MAY AFFECT PERFORMANCE
Approximately 46.59%, 16.02%, 15.71% and 15.27% (by Cut-Off Date Principal
Balance) of the Housing Loans are secured by Mortgaged Properties in the regions
of New South Wales, Victoria, Queensland and Western Australia, 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, the Housing Loans in that region 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 has the right
to apply to a court to, among other things:
(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 if the
interest rate is changed in a way which is unconscionable;
(3) have certain provisions of the Housing Loan or relevant Mortgage which
are in breach of the legislation declared unenforceable;
(4) obtain an order for a civil penalty against Westpac or, after a Title
Perfection Event, the Issuer Trustee, in relation to a breach of certain key
requirements of the Consumer Credit Legislation, the amount of which may be set
off against any amount payable by the Borrower under the Housing Loan; or
(5) obtain restitution or compensation from either Westpac or, after a Title
Perfection Event, the Issuer Trustee, in relation to breaches of the Consumer
Credit Legislation in relation to the Housing Loan or the 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 Class A 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
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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.
Breaches of the Consumer Credit Legislation may also lead to 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 Class A 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 representations 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 a 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 CLASS A NOTES--Collections," provided that
Westpac has a short term rating of at least "A-1+" from Standard & Poor's, "P-1"
from Moody's and "F-1+" 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 Collections 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.
RISKS ASSOCIATED WITH YEAR 2000 COMPLIANCE
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, inaccurate statement reporting and delays in the receipt of
payments from Borrowers. The Mortgage Pool Insurance Policy does not cover any
loss resulting from the failure of Westpac's computer systems or other items to
be Year 2000 compliant.
In recognition of the seriousness of the problem, work within the Westpac
Group began in 1996 when a Year 2000 project was initiated. The estimated cost
of remediation of Westpac Group's applications is
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not expected to exceed A$85 million (which estimate includes a substantial
contingency allowance). To the maximum extent possible, the Year 2000 project
continues to utilize existing Westpac Group resources.
As of March 31, 1999, all of Westpac's core critical systems and
applications had been Year 2000 remediated, with any internal and external
testing on track for substantial completion by June 30, 1999. Any other
applications, deemed critical at business unit level, which have not yet been
remediated and Year 2000 tested, are scheduled for completion by June 1999.
However, completion of a number of these applications is dependent upon third
party vendors, in which case contingency plans will be put into effect if
required. During 1999, the focus of Westpac's Year 2000 project will
increasingly concentrate on the complexities of internal, global and
industry-wide testing together with transition management, including contingency
planning.
LIMITED LIQUIDITY
There will be no market for the Class A 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 Class A Noteholders with liquidity of
investment or that it will remain for the term of any Class A Notes. The
Underwriters presently expect to make a secondary market in the Class A 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 "AAA" by Fitch and 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 Class A Notes,
inasmuch as such rating does not comment as to market price or suitability for a
particular investor. The rating of the Class A Notes addresses the likelihood of
the payment of principal and interest on the Class A 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 Providers, the Mortgage Insurance Providers or a reduction in the foreign
currency rating of Australia) in the future so warrant. The ratings of the Class
A 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 Policies, the availability of the Liquidity
Facility, the creditworthiness of the Interest Rate Swap Provider, the Currency
Swap Providers and the Mortgage Insurers and the foreign currency rating of
Australia. In the context of an asset securitization, the foreign 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 Class A Notes in book-entry form may reduce the liquidity of
such Notes in the secondary trading market since investors may be unwilling to
purchase Class A Notes for which they cannot obtain physical certificates. Since
transactions in the Class A Notes can be effected only through DTC, Cedelbank,
Euroclear, participating organizations, indirect participants and certain banks,
the ability of a Note Owner (as defined herein) to pledge a Class A Note to
persons or entities that do not participate in the DTC, Cedelbank or Euroclear
systems or otherwise to take actions in respect of such Class A Notes, may be
limited due to lack of a physical certificate representing the Class A Notes.
Note Owners may experience some delay in their receipt of distributions of
interest and principal on the Class A Notes since such distributions will be
forwarded by the Principal Paying Agent to DTC and DTC will credit such
distributions to the accounts of its Participants (as defined herein) which will
thereafter credit them to the
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accounts of Noteholders either directly or indirectly through indirect
participants. See "DESCRIPTION OF THE CLASS A NOTES--Book-Entry Registration"
herein.
RISKS ASSOCIATED WITH THE INTRODUCTION OF A GOODS AND SERVICES TAX IN AUSTRALIA
On December 2, 1998 the Australian Federal Government introduced a series of
bills to introduce a Goods and Services Tax (a "GST"), which were subsequently
amended on April 21, 1999 (the "GST Legislation"). The main bill is titled "A
New Taxation System (Goods and Services Tax) 1998." As the GST Legislation is
still in draft form (and is likely to change substantially prior to enactment)
it is not possible to identify risks specific to participants in this offering.
However, among other things, and based on the current draft of the GST
Legislation, some of the relevant issues are:
(1) GST will apply at the rate of 1/11th of the GST inclusive value of
supplies of goods, services and other things connected with Australia from July
1, 2000, except to the extent that the supply is: (a) "GST-free" (ie. the
supplier is not liable to tax on the supply and can obtain full input tax
credits for GST paid on things acquired to make the supply); or (b) "input
taxed", which includes "financial supplies" (the supplier does not pay GST on
the supply, but is not entitled to input tax credits for GST paid on things
acquired to make the supply). Special transitional rules will apply to contracts
which span July 1, 2000.
(2) GST will impact the cost of repairing or replacing damaged or destroyed
buildings on Mortgaged Properties offered as security for Housing Loans after
July 1, 2000. However, it is a condition of Westpac's standard mortgage
documentation that the mortgagor must maintain full replacement value property
insurance at all times. In addition, Westpac currently maintains a blanket
insurance policy with Cigna Insurance Asia Pacific Pty Limited which covers loss
from a mortgage default which follows from physical loss, destruction or damage
to a Mortgaged Property which is not otherwise covered by adequate property
insurance. See "WESTPAC RESIDENTIAL LOAN PROGRAM--Underwriting of Housing
Loans".
(3) Services provided to the Issuer Trustee in the Series 1999-1G WST Trust
will be a mixture of taxable and input taxed supplies for GST purposes. If a
supply is taxable, the supplier has the primary obligation to account for GST in
respect of that supply and must rely on a contractual provision to recoup that
GST from the Issuer Trustee. It is not possible at this stage to identify which
services supplied to the Trust will be taxable supplies. However, under the
Series Notice, certain fees paid by the Issuer Trustee (namely the Trust Manager
Fee, the Issuer Trustee Fee and the Servicing Fee) will only be able to be
increased by reference to the supplier's GST liability (if any) if:
(a) the Issuer Trustee, the Trust Manager and the recipient of the relevant
fee agree (which agreement shall not be unreasonably withheld); and
(b) the increase will not result in the downgrading or withdrawal of the
rating of any Notes.
If other fees payable by the Issuer Trustee are treated as the consideration for
a taxable supply under the GST Legislation or otherwise may be increased by
reference to the relevant supplier's GST liability, the Issuer Trustee may not
be entitled to an input tax credit for that increase and the Trust Expenses will
increase, resulting in a net reduction in Excess Available Income.
(4) The GST Legislation may, in certain circumstances, deem creditors to
make a taxable supply if the creditor enforces security by selling the charged
assets of a debtor and applying the proceeds of sale to satisfy the debt owed.
The creditor will have to account for GST out of the sale proceeds, with the
result that the remaining sale proceeds may be insufficient to cover the unpaid
balance of the related loan.
However, the creditor is only deemed to make a taxable supply on a sale of
the charged assets under these provisions if, had the related debtor made the
supply, the supply would have been a taxable supply (e.g. if the debtor in
question is a registered business for GST purposes, such as a company,
partnership, trading trust or sole trader). The general position is that a sale
of residential property is an input taxed supply for GST purposes. Thus the
enforced sale of property offered as security under Housing Loans in
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the Mortgage Pool will generally not be treated as a taxable supply under these
provisions. However, in limited circumstances the Issuer Trustee may have to
account for GST out of the proceeds of sale recovered under an enforced Housing
Loan and mortgage, noteably, where the debtor is a registered person (or is
required to be registered) for GST purposes and uses the Mortgaged Property as
an asset of its enterprise and (i) the premises are no longer being used as a
residence, or (ii) the premises are used as commercial residential premises such
as a hostel or boarding house, or (iii) the debtor is the first vendor of the
premises (e.g. the vendor built the premises), or (iv) the premises being sold
have not been used predominantly for residential accommodation.
Any reduction in the net amount recovered by the Issuer Trustee under an
enforced Housing Loan and mortgage due to GST will reduce Excess Available
Income (to the extent not covered by a Mortgage Insurance Policy). If 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 insurer under a Mortgage Insurance Policy
fails to perform its obligations and the subordination of Excess Available
Income is not sufficient. The extent to which the Issuer Trustee is able to
recover an amount on account of the GST, if any, payable on the proceeds of sale
in the circumstances described above, will depend on the terms of the related
Mortgage Insurance Policy. See "RISK FACTORS-- Mortgage Insurance Policies Are
Subject to Exclusions and Limitations" for further details.
(5) Where an insured party (for example, the Issuer Trustee under the
Mortgage Pool Insurance Policy) is a registered person for GST purposes, the
insured may have to account for GST in respect of any claim payment. However,
under the current draft of the GST Legislation, where the claim payment is made
in respect of an insurance policy on which the insured was not entitled to an
input tax credit on the premium payable, the insured does not have to account
for GST in respect of the claim payment.
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.
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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 Series
1999-1G WST Trust. 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 1999-1G 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 the Trust, the Trust Manager and the
Issuer Trustee have executed a notice of creation of trust dated on or about May
6, 1999 (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 Class A
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. The Master Trust Deed and a form
of the Series Notice have been filed as exhibits to the Registration Statement
of which this Prospectus is a part. The summaries herein do not purport to be
complete and are subject to the provisions of such documents.
The issuance of the Class A 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 CLASS A NOTES--The Redraw Facility,
the Redraw Funding Securities and the RFS Class A Notes."
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TRUST ASSETS
The Trust Assets will include:
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
Pursuant to the Security Trust Deed, dated on or about May 6, 1999 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 Class A Noteholders, the Class B Noteholders, the
Note Trustee, the Trust Manager, the Interest Rate Swap Provider, the Currency
Swap Providers, the Security Trustee, each Paying Agent, the Agent Bank, the
Note Registrar, each other provider of a Support Facility (other than any
provider of a Mortgage Insurance Policy), the Approved Sellers in respect of any
Accrued Interest Adjustment (as defined herein), to Westpac in respect of
Redraws, 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 Trust Assets in trust for each Mortgagee in
accordance with the terms and conditions of the Security Trust Deed.
Subject to the provisions 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), the RFS Class A Notes (if any), the Class A
Noteholders (which shall be determined by the Note Trustee acting on their
behalf) and the Class B Noteholders. 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, 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, 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 any particular reference to the Security Trustee.
The Security Trustee expressly disclaims and takes no responsibility for any
other part of this Prospectus. 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.
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The Security Trustee does not guarantee the success of the Class A Notes nor
the payment of principal or Interest on the Class A Notes.
NATURE OF SECURITY
If a company grants a fixed security over any of its assets, those assets
may not be dealt with by such 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, provided such
dealings and transfers of title are in the ordinary course of a chargor's
business. 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 mortgage 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). See "DESCRIPTION OF THE CLASS A
NOTES--Events of Default; Rights Upon Event of Default." The Security Trustee
may waive (such waiver, being subject to the prior written consent of the
Noteholder Mortgagees 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 the Secured Moneys (as defined herein) (including amounts
outstanding under the Notes, plus accrued and unpaid interest) immediately
due and payable;
(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.
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"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.
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 Voting Mortgagee or as a Representative
(as defined herein). 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 Class A
Noteholder who has directed the Note Trustee to vote on its behalf under the
Note Trust Deed. On a poll, every person who is present shall have one vote for
US $10,000 or its equivalent (but not part thereof) of the Secured Moneys that
he holds or in which he is a Representative. A "Representative" is in the case
of any Noteholder, a person or body corporate appointed as a proxy for that
Noteholder.
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 been signed by all of
the Voting Mortgagees.
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 and 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 Noteholder Mortgagees are the only Voting
Mortgagees, they 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 Noteholder
Mortgagees are the only Voting Mortgagees, unless the Noteholder Mortgagees
otherwise consent.
The Noteholder Mortgagees will be the only Voting Mortgagees for so long as
the amounts outstanding under the Class A Notes and the Class B Notes are 75% or
more of all Secured Moneys. Any reference to the Noteholder Mortgagees where
they are the only Voting Mortgagees or where their consent is required under the
Security Trust Deed in relation to a discretion or act of the Security Trustee
means Noteholder Mortgagees representing more than 50% of the aggregate combined
Invested Amount of the Class A Notes and the Class B Notes.
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
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similar employee benefits and certain auditor's fees. Subject to the foregoing,
the proceeds from enforcement of the Security Trust Deed will be distributed as
follows:
(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 PARI PASSU and rateably:
(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 PARI PASSU and rateably any unpaid Accrued Interest
Adjustment due to an Approved Seller;
(4) fourth, to pay PARI PASSU and rateably:
(i) all Secured Moneys (as defined herein) owing to the providers of
each Support Facility (other than the Currency Swap Providers);
(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 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 Providers under a
confirmation relating to the 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);
(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; and
(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
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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
equitable 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.
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 and each of its officers, employees and
advisers from and against all claims, actions, proceedings, demands,
liabilities, losses, damages, costs and expenses arising out of or in connection
with: (i) the Transaction Documents, the Notice of Creation of Trust, each Note
and the Mortgage Insurance Policies; or (ii) the Security Trustee's engagement
as Security Trustee, which it or any of its officers, employees or advisers may
suffer as a result of the Issuer Trustee failing to perform any of its
obligations, or any claim that the Security Trustee or any of its officers,
employees or advisers has any liability under the Securities Act or the Exchange
Act in relation to the issue of securities in connection with the Trust. The
Issuer Trustee is not responsible under the Security Trust Deed for any
liabilities, losses, damages, costs or expenses resulting from fraud, willful
default or negligence on the part of the Security Trustee or any of its
officers, employees and advisers.
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. The Security Trustee
may resign in favor of a successor Security Trustee only if the Rating Agencies
confirm that such resignation will not cause a withdrawal, downgrade or
qualification of the ratings of the Notes.
Subject to the appointment of a successor Security Trustee and prior notice
being given to each of 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 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.
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ADDITIONAL PROVISIONS OF THE SECURITY TRUST DEED
The Security Trust Deed may be amended by the Issuer Trustee and the
Security Trustee with the written approval of the Trust Manager and the
Noteholder Mortgagees 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, any other Transaction Document,
any Note, the Notice of Creation of Trust or any Mortgage Insurance Policy.
(2) The Security Trustee is not required to exercise its powers under
the Security Trust Deed without being directed to do so by the Noteholder
Mortgagees 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 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. 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 Issuer Trustee stating that an Event of Default has
occurred and describing such Event of Default.
(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 Class A 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 on behalf of the Class A Noteholders and 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 without
inquiry 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 independent 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,
any Note, the Notice of Creation of Trust or any Mortgage Insurance Policy.
(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, any Note, the Notice of Creation of Trust or
any Mortgage Insurance Policy or otherwise without having to account to the
Mortgagees.
(12) The Security Trustee has no liability under or in connection with
the Security Trust Deed, any other Transaction Document, any Note, the
Notice of Creation of Trust or any Mortgage Insurance Policy (whether to any
Mortgagee, the Issuer Trustee, the Trust Manager or any person)
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other than to the extent to which the liability is able to be satisfied in
accordance with the Security Trust Deed out of the property held by it on
trust under the Security Trust Deed and it is actually indemnified for the
liability. This limitation of liability does not apply to a liability of the
Security Trustee to the extent that it is not satisfied because there is a
reduction in the extent of the Security Trustee's indemnification as a
result of its fraud, negligence or willful default.
THE TRUST FUND
GENERAL
The Housing Loans are expected to include 12,886 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" 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 variable 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 Trustee or 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. Generally each Housing
Loan is secured by a registered first ranking mortgage over the related
Mortgaged Property or, if the Housing Loan is not secured by a first ranking
mortgage, the Approved Seller will equitably assign to the Issuer Trustee all
prior ranking Registered Mortgages in relation to that Housing Loan. 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, 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, if any, 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 equitably 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
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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
equitably 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 equitably 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 equitably assigned by it (e.g., as to title) to the Issuer
Trustee.
The Issuer Trustee has not investigated or made any inquiries regarding the
accuracy of these 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
the event that any representation or warranty is incorrect are described in
"--Breach of Representations and Warranties" below.
WESTPAC REPRESENTATIONS
Westpac will make representations and warranties with respect to each
Housing Loan as of the date the Housing Loan is offered to the Issuer Trustee
(except as specified below) and the Closing Date, and in relation to paragraph
(3) below, as of the Cut-Off Date, including that:
(1) it is subject to a Mortgage Insurance Policy (in the case of the
Mortgage Pool Insurance Policy, at the Closing Date);
(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 Issuer Trustee);
(3) in relation to the Housing Loans to be sold by Westpac to the Issuer
Trustee, each Housing Loan satisfies the following eligibility criteria
("Eligibility Criteria"):
(i) it was approved and originated in the ordinary course of its
business;
(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 equitably assign such mortgages
to the Issuer Trustee;
(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 Fixed Options Home Loan, a Special
Offer Fixed Option Home Loan, a
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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; 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) as of the Closing Date, 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.
(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.
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
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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 12,886 Housing Loans secured by Mortgages
on Mortgaged Properties located in the six states and two territories in
Australia, New South Wales ("NSW"), Victoria ("Vic"), Queensland ("QLD"), South
Australia ("SA"), Western Australia ("WA"), Tasmania ("TAS"), Northern Territory
("NT") and the Australian Capital Territory ("ACT"). The aggregate Cut-Off Date
Balances Outstanding of the Housing Loans (the "Cut-Off Date Pool Balance")
totalled approximately A$1,383,157,099. The Housing Loans bear interest at
variable and fixed rates. As of the Cut-Off Date, 70.97% of the Housing Loans by
Cut-Off Date Loan Balance are variable rate loans (the "Variable Rate Housing
Loans") and 29.03% 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 6.57%
per annum. The weighted average Mortgage Rate for the Variable Rate Housing
Loans as of the Cut-Off Date was approximately 6.20% per annum. The lowest
Cut-Off Date Balance Outstanding of any Housing Loan was approximately A$10,023
and the highest was approximately A$513,202. The average Cut-Off Date Balance
Outstanding of the Housing Loans was approximately A$107,338. The weighted
average original term to stated maturity of the Housing Loans was approximately
310.00 months. The weighted average remaining term to stated maturity of the
Housing Loans was approximately 300.89 months. As of the Cut-Off Date, the
weighted average number of months that have elapsed since origination of the
Housing Loans was approximately 9.11 months. The lowest and highest LVR of the
Housing Loans at Cut-Off Date were approximately 1.82% and 94.85%, respectively.
The weighted average LVR of the Housing Loans was approximately 69.59%
Housing Loans representing approximately 17.76% of the Cut-Off Date Pool
Balance are secured by Mortgaged Properties which are investment properties
(based solely upon statements made by the related Borrowers at the time of
origination of the related Housing Loans).
As of the Cut-Off Date, no Housing Loans were more than 30 days Delinquent.
Set forth below is a description of certain additional characteristics with
respect to the Housing Loans held by the Trust and are not indicative of
Westpac's entire portfolio of housing loans. All percentages are approximate and
may not total 100% due to rounding.
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(ALL AMOUNTS EXPRESSED IN AUSTRALIAN DOLLARS)
(ALL %'S ARE APPROXIMATE AND MAY NOT TOTAL 100% DUE TO ROUNDING)
BALANCE OUTSTANDING DISTRIBUTION
<TABLE>
<CAPTION>
TOTAL CURRENT WEIGHTED WEIGHTED
NUMBER SECURITY BALANCE AVERAGE AVERAGE % BY % BY
BALANCE OF LOANS VALUE A$* OUTSTANDING A$ BALANCE A$ LVR (%) NUMBER BALANCE
- ------------------------------------------- -------- -------------- -------------- ---------- -------- ------ -------
<S> <C> <C> <C> <C> <C> <C> <C>
A$10,000-A$20,000.......................... 446 $ 73,820,150 $ 7,101,233 $ 15,922 33.54% 3.46% 0.51%
A$20,001-A$30,000.......................... 617 $ 101,584,950 $ 15,852,194 $ 25,692 43.89% 4.79% 1.15%
A$30,001-A$40,000.......................... 669 $ 106,667,800 $ 23,830,776 $ 35,621 47.47% 5.19% 1.72%
A$40,001-A$50,000.......................... 793 $ 125,504,700 $ 36,440,139 $ 45,952 53.71% 6.15% 2.63%
A$50,001-A$100,000......................... 4,520 $ 740,900,014 $ 347,235,741 $ 76,822 66.30% 35.08% 25.10%
A$100,001-A$150,000........................ 3,300 $ 675,341,117 $ 407,302,765 $123,425 73.61% 25.61% 29.45%
A$150,001-A$200,000........................ 1,390 $ 400,299,567 $ 240,326,678 $172,897 71.79% 10.79% 17.38%
A$200,001-A$250,000........................ 580 $ 206,605,264 $ 129,811,982 $223,814 72.37% 4.50% 9.39%
A$250,001-A$300,000........................ 356 $ 152,034,150 $ 97,647,499 $274,291 71.88% 2.76% 7.06%
A$300,001-A$350,000........................ 117 $ 55,707,250 $ 37,620,213 $321,540 73.57% 0.91% 2.72%
A$350,001-A$400,000........................ 55 $ 35,194,600 $ 20,655,640 $375,557 68.54% 0.43% 1.49%
A$400,001-A$450,000........................ 26 $ 16,596,000 $ 11,105,782 $427,145 70.49% 0.20% 0.80%
A$450,001-A$500,000........................ 15 $ 10,636,800 $ 7,203,200 $480,213 73.46% 0.12% 0.52%
Above A$500,000............................ 2 $ 1,460,000 $ 1,023,257 $511,629 70.11% 0.02% 0.07%
-------- -------------- -------------- ---------- -------- ------ -------
Total.................................... 12,886 $2,702,352,362 $1,383,157,099 $107,338 69.59% 100.00% 100.00%
-------- -------------- -------------- ---------- -------- ------ -------
-------- -------------- -------------- ---------- -------- ------ -------
</TABLE>
- ------------------------
* Total Security Value is the mortgage property value determined by either
contract of sale, valuation by a registered panel valuer or in remote areas,
a branch manager's assessment as reported on the system as of the Cut-Off
Date. See "WESTPAC RESIDENTIAL LOAN PROGRAM--Underwriting of Housing Loans."
MORTGAGE RATES OF THE FIXED RATE HOUSING LOANS AS OF THE CUT-OFF DATE*
<TABLE>
<CAPTION>
WEIGHTED
NUMBER CURRENT BALANCE MINIMUM MAXIMUM AVERAGE % BY % BY
CURRENT RATES OF LOANS OUTSTANDING A$ RATE (%) RATE (%) RATE (%) NUMBER BALANCE
- -------------------------------------- ----------- --------------- ----------- ----------- ----------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
4.501% less than=5%................... 1 $ 176,317 5.00% 5.00% 5.00% 0.03% 0.04%
5.001% less than=5.5%................. 163 $ 21,269,362 5.10% 5.49% 5.44% 4.58% 5.30%
5.501% less than=6%................... 418 $ 48,298,296 5.95% 6.00% 5.99% 11.75% 12.03%
6.001% less than=6.5%................. 947 $ 107,229,293 6.10% 6.50% 6.28% 26.62% 26.71%
6.501% less than=7%................... 1,671 $ 184,720,375 6.55% 7.00% 6.85% 46.96% 46.00%
7.001% less than=7.5%................. 295 $ 32,723,416 7.08% 7.50% 7.24% 8.29% 8.15%
7.501% less than=8%................... 37 $ 4,108,991 7.55% 8.00% 7.72% 1.04% 1.02%
8.001% less than=8.5%................. 9 $ 1,308,182 8.20% 8.50% 8.25% 0.25% 0.33%
8.501% less than=9%................... 14 $ 1,382,953 8.60% 8.95% 8.72% 0.39% 0.34%
9.001% less than=9.5%................. 1 $ 36,890 9.40% 9.40% 9.40% 0.03% 0.01%
9.501% less than=10%.................. 2 $ 269,311 9.75% 9.95% 9.82% 0.06% 0.07%
----- --------------- ----------- ----------- ----------- ---------- ----------
Total............................... 3,558 $ 401,523,386 5.00% 9.95% 6.57% 100.00% 100.00%
----- --------------- ----------- ----------- ----------- ---------- ----------
----- --------------- ----------- ----------- ----------- ---------- ----------
</TABLE>
- ------------------------
* Each Fixed Rate Housing Loan can convert, in whole or in part, to a Variable
Rate Housing Loan subject to certain related fees.
58
<PAGE>
MORTGAGE RATES OF THE VARIABLE RATE HOUSING LOANS AS OF THE CUT-OFF DATE
<TABLE>
<CAPTION>
WEIGHTED
NUMBER CURRENT BALANCE MINIMUM MAXIMUM AVERAGE % BY % BY
CURRENT RATES OF LOANS OUTSTANDING A$ RATE (%) RATE (%) RATE (%) NUMBER BALANCE
- -------------------------------------- ----------- --------------- ----------- ----------- ----------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
5.001% less than=5.5%................. 1 $ 235,804 5.49% 5.49% 5.49% 0.01% 0.02%
5.501% less than= 6%.................. 3,835 $ 521,026,590 5.74% 6.00% 5.94% 41.11% 53.08%
6.001% less than= 6.5%................ 5,091 $ 426,828,379 6.09% 6.49% 6.48% 54.58% 43.48%
6.501% less than= 7%.................. 401 $ 33,542,940 6.59% 6.65% 6.59% 4.30% 3.42%
----- --------------- ----------- ----------- ----------- ---------- ----------
Total............................... 9,328 $ 981,633,714 5.49% 6.65% 6.20% 100.00% 100.00%
----- --------------- ----------- ----------- ----------- ---------- ----------
----- --------------- ----------- ----------- ----------- ---------- ----------
</TABLE>
GEOGRAPHIC DISTRIBUTION BY REGION*
<TABLE>
<CAPTION>
TOTAL CURRENT WEIGHTED
NUMBER SECURITY BALANCE AVERAGE AVERAGE % BY % BY
REGION OF LOANS VALUE A$ OUTSTANDING A$ BALANCE A$ LVR (%) NUMBER BALANCE
- ----------------------------- ----------- ---------------- ---------------- ----------- --------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
ACT-Metro.................... 175 $ 30,860,367 $ 16,696,623 $ 95,409 68.38% 1.36% 1.21%
NSW-Metro.................... 3,691 $ 1,139,038,326 $ 532,048,453 $ 144,148 66.57% 28.64% 38.47%
NSW-Other.................... 1,260 $ 204,067,800 $ 112,259,370 $ 89,095 72.02% 9.78% 8.12%
NT-Metro..................... 138 $ 27,932,701 $ 16,479,634 $ 119,418 74.13% 1.07% 1.19%
NT-Other..................... 57 $ 10,485,000 $ 6,079,094 $ 106,651 75.76% 0.44% 0.44%
QLD-Metro.................... 977 $ 173,547,421 $ 95,188,510 $ 97,429 71.49% 7.58% 6.88%
QLD-Other.................... 1,302 $ 217,084,103 $ 122,122,951 $ 93,796 71.38% 10.10% 8.83%
SA-Metro..................... 349 $ 52,755,200 $ 27,089,916 $ 77,622 72.83% 2.71% 1.96%
SA-Other..................... 99 $ 10,602,750 $ 6,728,902 $ 67,969 77.37% 0.77% 0.49%
TAS-Metro.................... 103 $ 13,841,180 $ 7,502,435 $ 72,839 70.84% 0.80% 0.54%
TAS-Other.................... 118 $ 12,470,950 $ 8,137,207 $ 68,959 77.30% 0.92% 0.59%
Vic-Metro.................... 1,813 $ 356,839,823 $ 190,792,427 $ 105,236 71.36% 14.07% 13.79%
Vic-Other.................... 452 $ 50,475,450 $ 30,777,957 $ 68,093 75.17% 3.51% 2.23%
WA-Metro..................... 1,876 $ 334,749,441 $ 172,603,076 $ 92,006 70.09% 14.56% 12.48%
WA-Other..................... 476 $ 67,601,850 $ 38,650,543 $ 81,199 70.69% 3.69% 2.79%
----------- ---------------- ---------------- ----------- --------- ---------- ----------
Total........................ 12,886 $ 2,702,352,362 $ 1,383,157,099 $ 107,338 69.59% 100.00% 100.00%
----------- ---------------- ---------------- ----------- --------- ---------- ----------
----------- ---------------- ---------------- ----------- --------- ---------- ----------
</TABLE>
- ------------------------
* Geographic distributions are split by State or Territory and by metropolitan
(Metro) or country (Other). The distributions are based on the postal 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.
59
<PAGE>
LVR RATIO DISTRIBUTION
<TABLE>
<CAPTION>
TOTAL CURRENT WEIGHTED
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%.............. 47 $ 29,462,500 $ 1,100,190 $ 23,408 3.97% 0.36% 0.08%
5% less than = 10%............. 173 $ 57,081,300 $ 4,390,209 $ 25,377 7.96% 1.34% 0.32%
10% less than = 15%............ 225 $ 64,507,000 $ 7,927,347 $ 35,233 12.75% 1.75% 0.57%
15% less than = 20%............ 285 $ 81,336,750 $ 13,396,642 $ 47,006 17.78% 2.21% 0.97%
20% less than = 25%............ 340 $ 99,151,678 $ 20,419,040 $ 60,056 22.66% 2.64% 1.48%
25% less than = 30%............ 380 $ 103,324,995 $ 25,782,256 $ 67,848 27.71% 2.95% 1.86%
30% less than = 35%............ 428 $ 116,320,900 $ 35,039,008 $ 81,867 32.51% 3.32% 2.53%
35% less than = 40%............ 500 $ 135,063,760 $ 45,792,007 $ 91,584 37.66% 3.88% 3.31%
40% less than = 45%............ 530 $ 135,140,350 $ 52,788,622 $ 99,601 42.62% 4.11% 3.82%
45% less than = 50%............ 587 $ 143,021,880 $ 59,520,456 $ 101,398 47.53% 4.56% 4.30%
50% less than = 55%............ 614 $ 146,396,895 $ 67,063,179 $ 109,223 52.52% 4.76% 4.85%
55% less than = 60%............ 653 $ 155,183,515 $ 75,245,715 $ 115,231 57.54% 5.07% 5.44%
60% less than = 65%............ 708 $ 164,592,417 $ 84,643,376 $ 119,553 62.50% 5.49% 6.12%
65% less than = 70%............ 675 $ 144,328,250 $ 82,832,477 $ 122,715 67.61% 5.24% 5.99%
70% less than = 75%............ 786 $ 158,287,425 $ 94,096,034 $ 119,715 72.64% 6.10% 6.80%
75% less than = 80%............ 1,676 $ 322,978,697 $ 213,756,959 $ 127,540 78.14% 13.01% 15.45%
80% less than = 85%............ 758 $ 118,813,264 $ 82,694,634 $ 109,096 82.99% 5.88% 5.98%
85% less than = 90%............ 1,858 $ 285,005,697 $ 213,217,405 $ 114,756 87.91% 14.42% 15.42%
90% less than = 95%............ 1,663 $ 242,355,089 $ 203,451,542 $ 122,340 92.77% 12.91% 14.71%
----------- --------------- --------------- ----------- ----- ----------- -----------
Total:..................... 12,886 $ 2,702,352,362 $ 1,383,157,099 $ 107,338 69.59% 100.00% 100.00%
----------- --------------- --------------- ----------- ----- ----------- -----------
----------- --------------- --------------- ----------- ----- ----------- -----------
</TABLE>
MORTGAGE INSURER DISTRIBUTION
<TABLE>
<CAPTION>
TOTAL CURRENT WEIGHTED
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........................... 7,455 $ 1,846,969,099 $ 778,009,999 $ 104,361 58.14% 57.85% 56.25%
HLIC........................... 1,837 $ 306,625,335 $ 215,041,378 $ 117,061 80.18% 14.26% 15.55%
MGICA.......................... 31 $ 4,927,000 $ 2,911,088 $ 93,906 79.79% 0.24% 0.21%
Royal & SUN/WLMI............... 3,563 $ 543,830,928 $ 387,194,635 $ 108,671 86.65% 27.65% 27.99%
----------- --------------- --------------- ----------- ----- ----------- -----------
Total...................... 12,886 $ 2,702,352,362 $ 1,383,157,099 $ 107,338 69.59% 100.00% 100.00%
----------- --------------- --------------- ----------- ----- ----------- -----------
----------- --------------- --------------- ----------- ----- ----------- -----------
</TABLE>
60
<PAGE>
PRODUCT DISTRIBUTION
<TABLE>
<CAPTION>
TOTAL CURRENT WEIGHTED
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>
First Option................ 2,368 $ 506,488,234 $ 293,724,877 $ 124,039 70.65% 18.38% 21.24%
Fixed Options............... 2,097 $ 479,036,840 $ 220,746,922 $ 105,268 69.30% 16.27% 15.96%
IPL--First Option........... 500 $ 115,290,600 $ 63,558,296 $ 127,117 63.13% 3.88% 4.60%
IPL--Fixed Rate............. 885 $ 216,762,800 $ 112,224,064 $ 126,807 64.38% 6.87% 8.11%
IPL--Special Fixed Rate..... 127 $ 30,155,400 $ 16,304,067 $ 128,378 63.70% 0.99% 1.18%
IPL--Variable Rate.......... 532 $ 111,245,750 $ 53,560,387 $ 100,677 65.70% 4.13% 3.87%
Premium Option.............. 5,928 $ 1,165,668,267 $ 570,790,153 $ 96,287 70.74% 46.00% 41.27%
Special Options Fixed Rate.. 449 $ 77,704,471 $ 52,248,332 $ 116,366 77.26% 3.48% 3.78%
----------- --------------- --------------- ----------- ----- ----------- -----------
Total................... 12,886 $ 2,702,352,362 $ 1,383,157,099 $ 107,338 69.59% 100.00% 100.00%
----------- --------------- --------------- ----------- ----- ----------- -----------
----------- --------------- --------------- ----------- ----- ----------- -----------
</TABLE>
SETTLEMENT PERIOD DISTRIBUTION
<TABLE>
<CAPTION>
TOTAL CURRENT WEIGHTED
NUMBER SECURITY BALANCE AVERAGE AVERAGE % BY % BY
SETTLEMENT PERIOD OF LOANS VALUE A$ OUTSTANDING A$ BALANCE A$ LVR (%) NUMBER BALANCE
- ------------------------------- ----------- --------------- --------------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Prior 01/11/1996............... 263 $ 47,652,450 $ 21,766,876 $ 82,764 60.24% 2.04% 1.57%
After 01/11/1996............... 12,623 $ 2,654,699,912 $ 1,361,390,223 $ 107,850 69.74% 97.96% 98.43%
----------- --------------- --------------- ----------- ----- ----------- -----------
Total...................... 12,886 $ 2,702,352,362 $ 1,383,157,099 $ 107,338 69.59% 100.00% 100.00%
----------- --------------- --------------- ----------- ----- ----------- -----------
----------- --------------- --------------- ----------- ----- ----------- -----------
</TABLE>
61
<PAGE>
FIXED RATE HOUSING LOAN REPRICING DISTRIBUTION
<TABLE>
<CAPTION>
MONTH/YEAR
CONVERSION FROM
FIXED RATE HOUSING LOAN
TO TOTAL CURRENT WEIGHTED
VARIABLE RATE HOUSING NUMBER SECURITY BALANCE AVERAGE AVERAGE % BY % BY
LOAN OF LOANS VALUE A$ OUTSTANDING A$ BALANCE A$ LVR (%) NUMBER BALANCE
- ------------------------- ----------- ----------- -------------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Apr-1999................. 131 $23,467,100 $ 14,194,537 $ 108,355 76.33% 3.68% 3.54%
May-1999................. 161 $28,660,521 $ 16,465,956 $ 102,273 74.01% 4.53% 4.10%
Jun-1999................. 136 $26,384,947 $ 15,418,118 $ 113,369 73.98% 3.82% 3.84%
Jul-1999................. 148 $28,801,350 $ 16,903,306 $ 114,212 73.83% 4.16% 4.21%
Aug-1999................. 70 $12,437,000 $ 7,742,641 $ 110,609 76.03% 1.97% 1.93%
Sep-1999................. 66 $11,474,000 $ 7,889,702 $ 119,541 77.20% 1.85% 1.96%
Oct-1999................. 83 $15,327,600 $ 9,805,832 $ 118,143 75.45% 2.33% 2.44%
Nov-1999................. 121 $23,211,800 $ 13,866,727 $ 114,601 74.26% 3.40% 3.45%
Dec-1999................. 107 $21,507,250 $ 13,049,180 $ 121,955 73.31% 3.01% 3.25%
Jan-2000................. 54 $10,952,364 $ 7,030,064 $ 130,186 74.81% 1.52% 1.75%
Feb-2000................. 59 $11,901,400 $ 6,271,570 $ 106,298 68.78% 1.66% 1.56%
Mar-2000................. 149 $32,629,850 $ 16,380,329 $ 109,935 67.56% 4.19% 4.08%
Apr-2000................. 126 $28,194,415 $ 14,098,650 $ 111,894 65.73% 3.54% 3.51%
May-2000................. 65 $14,013,050 $ 7,798,719 $ 119,980 69.00% 1.83% 1.94%
Jun-2000................. 58 $15,164,000 $ 7,372,909 $ 127,119 69.08% 1.63% 1.84%
Jul-2000................. 88 $20,539,000 $ 10,080,115 $ 114,547 64.95% 2.47% 2.51%
Aug-2000................. 48 $11,215,250 $ 5,291,160 $ 110,232 65.76% 1.35% 1.32%
Sep-2000................. 28 $ 6,804,300 $ 3,174,807 $ 113,386 66.13% 0.79% 0.79%
Oct-2000................. 27 $ 5,221,500 $ 2,720,368 $ 100,754 69.14% 0.76% 0.68%
Nov-2000................. 46 $10,926,500 $ 5,394,293 $ 117,267 68.46% 1.29% 1.34%
Dec-2000................. 33 $ 9,459,000 $ 4,355,804 $ 131,994 68.64% 0.93% 1.08%
Jan-2001................. 26 $ 5,743,500 $ 2,801,160 $ 107,737 66.33% 0.73% 0.70%
Feb-2001................. 16 $ 3,712,500 $ 1,923,330 $ 120,208 62.50% 0.45% 0.48%
Mar-2001................. 43 $12,712,000 $ 5,419,981 $ 126,046 64.68% 1.21% 1.35%
Apr-2001................. 43 $10,646,500 $ 5,072,992 $ 117,977 63.00% 1.21% 1.26%
May-2001................. 53 $11,870,150 $ 5,466,996 $ 103,151 62.83% 1.49% 1.36%
Jun-2001................. 76 $17,761,375 $ 8,699,235 $ 114,464 66.29% 2.14% 2.17%
Jul-2001................. 164 $42,897,449 $ 18,315,780 $ 111,682 64.68% 4.61% 4.56%
Aug-2001................. 94 $20,532,500 $ 9,299,062 $ 98,926 69.12% 2.64% 2.32%
Sep-2001................. 55 $12,468,000 $ 5,476,514 $ 99,573 65.86% 1.55% 1.36%
Oct-2001................. 56 $13,314,250 $ 6,828,262 $ 121,933 70.74% 1.57% 1.70%
Nov-2001................. 36 $ 8,819,100 $ 3,411,771 $ 94,771 67.65% 1.01% 0.85%
Dec-2001................. 34 $ 8,500,200 $ 3,712,014 $ 109,177 64.68% 0.96% 0.92%
Jan-2002................. 19 $ 5,151,450 $ 2,466,216 $ 129,801 71.67% 0.53% 0.61%
Feb-2002................. 5 $ 1,133,000 $ 549,664 $ 109,933 79.93% 0.14% 0.14%
Mar-2002................. 7 $ 1,317,700 $ 788,326 $ 112,618 83.07% 0.20% 0.20%
Apr-2002................. 7 $ 1,074,000 $ 496,405 $ 70,915 57.59% 0.20% 0.12%
May-2002................. 7 $ 1,331,000 $ 706,344 $ 100,906 68.90% 0.20% 0.18%
Jun-2002................. 11 $ 2,586,000 $ 924,662 $ 84,060 59.28% 0.31% 0.23%
Jul-2002................. 51 $13,902,000 $ 5,329,691 $ 104,504 59.93% 1.43% 1.33%
Aug-2002................. 15 $ 3,704,500 $ 1,512,232 $ 100,815 65.05% 0.42% 0.38%
Sep-2002................. 12 $ 3,081,000 $ 1,761,509 $ 146,792 67.57% 0.34% 0.44%
Oct-2002................. 14 $ 3,477,750 $ 1,774,799 $ 126,771 62.93% 0.39% 0.44%
Nov-2002................. 18 $ 4,222,400 $ 2,165,788 $ 120,322 67.84% 0.51% 0.54%
Dec-2002................. 7 $ 1,794,500 $ 791,565 $ 113,081 66.28% 0.20% 0.20%
Jan-2003................. 5 $ 854,500 $ 571,559 $ 114,312 78.21% 0.14% 0.14%
Feb-2003................. 17 $ 2,693,250 $ 1,656,228 $ 97,425 73.25% 0.48% 0.41%
Mar-2003................. 55 $13,121,900 $ 5,926,085 $ 107,747 65.78% 1.55% 1.48%
Apr-2003................. 57 $15,394,950 $ 6,521,494 $ 114,412 62.63% 1.60% 1.62%
May-2003................. 57 $15,640,000 $ 6,256,207 $ 109,758 62.35% 1.60% 1.56%
Jun-2003................. 42 $10,883,350 $ 4,842,113 $ 115,288 64.68% 1.18% 1.21%
Jul-2003................. 185 $46,875,740 $ 20,998,439 $ 113,505 64.38% 5.20% 5.23%
Aug-2003................. 138 $34,596,050 $ 15,867,947 $ 114,985 65.05% 3.88% 3.95%
Sep-2003................. 107 $28,445,000 $ 12,112,433 $ 113,200 63.36% 3.01% 3.02%
Oct-2003................. 92 $24,364,000 $ 11,349,529 $ 123,364 68.62% 2.59% 2.83%
Nov-2003................. 78 $18,171,750 $ 8,351,643 $ 107,072 66.55% 2.19% 2.08%
Dec-2003................. 25 $ 5,982,500 $ 2,706,804 $ 108,272 67.09% 0.70% 0.67%
Jan-2004................. 20 $ 5,517,000 $ 2,639,825 $ 131,991 68.54% 0.56% 0.66%
Feb-2004................. 4 $ 721,000 $ 401,300 $ 100,325 63.98% 0.11% 0.10%
Mar-2004................. 3 $ 353,500 $ 322,696 $ 107,565 91.32% 0.08% 0.08%
----- ----------- -------------- ----------- ----- ----------- -----------
Total.................. 3,558 $803,659,511 $401,523,386 $ 112,851 68.73% 100.00% 100.00%
----- ----------- -------------- ----------- ----- ----------- -----------
----- ----------- -------------- ----------- ----- ----------- -----------
</TABLE>
62
<PAGE>
MORTGAGES BY YEAR OF MATURITY
<TABLE>
<CAPTION>
TOTAL CURRENT WEIGHTED
NUMBER SECURITY BALANCE AVERAGE AVERAGE % BY % BY
YEAR OF MATURITY OF LOANS VALUE A$ OUTSTANDING A$ BALANCE A$ LVR (%) NUMBER BALANCE
- ------------------------- ----------- ------------- -------------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
2000..................... 6 $ 1,146,000 $ 131,192 $ 21,865 21.60% 0.05% 0.01%
2001..................... 16 $ 3,040,000 $ 376,590 $ 23,537 26.40% 0.12% 0.03%
2002..................... 29 $ 4,848,500 $ 782,620 $ 26,987 25.63% 0.23% 0.06%
2003..................... 82 $ 14,114,500 $ 2,412,145 $ 29,416 29.67% 0.64% 0.17%
2004..................... 33 $ 4,849,500 $ 1,278,147 $ 38,732 39.78% 0.26% 0.09%
2005..................... 48 $ 8,679,000 $ 1,711,266 $ 35,651 32.79% 0.37% 0.12%
2006..................... 42 $ 7,489,500 $ 2,378,480 $ 56,630 44.55% 0.33% 0.17%
2007..................... 40 $ 10,583,500 $ 2,620,005 $ 65,500 44.98% 0.31% 0.19%
2008..................... 277 $ 49,298,150 $ 14,111,825 $ 50,945 45.64% 2.15% 1.02%
2009..................... 52 $ 9,386,000 $ 2,923,720 $ 56,225 42.78% 0.40% 0.21%
2010..................... 48 $ 8,291,350 $ 3,342,171 $ 69,629 59.09% 0.37% 0.24%
2011..................... 47 $ 8,774,000 $ 3,984,791 $ 84,783 55.88% 0.36% 0.29%
2012..................... 60 $ 18,026,000 $ 5,389,213 $ 89,820 49.66% 0.47% 0.39%
2013..................... 365 $ 67,066,086 $ 25,294,319 $ 69,300 55.04% 2.83% 1.83%
2014..................... 53 $ 9,970,500 $ 4,415,598 $ 83,313 57.74% 0.41% 0.32%
2015..................... 49 $ 10,271,900 $ 5,186,707 $ 105,851 60.70% 0.38% 0.37%
2016..................... 47 $ 9,597,250 $ 4,825,053 $ 102,661 60.30% 0.36% 0.35%
2017..................... 87 $ 21,078,500 $ 8,551,738 $ 98,296 61.45% 0.68% 0.62%
2018..................... 469 $ 90,324,000 $ 40,330,685 $ 85,993 62.12% 3.64% 2.92%
2019..................... 90 $ 16,709,800 $ 8,638,029 $ 95,978 66.92% 0.70% 0.62%
2020..................... 100 $ 19,861,500 $ 10,285,195 $ 102,852 68.11% 0.78% 0.74%
2021..................... 193 $ 38,432,650 $ 17,667,466 $ 91,541 64.14% 1.50% 1.28%
2022..................... 772 $ 171,043,300 $ 88,539,502 $ 114,688 67.98% 5.99% 6.40%
2023..................... 5,324 $1,154,385,823 $617,522,684 $ 115,988 69.97% 41.32% 44.65%
2024..................... 243 $ 50,398,400 $ 26,036,788 $ 107,147 69.35% 1.89% 1.88%
2025..................... 48 $ 8,458,900 $ 5,240,144 $ 109,170 72.36% 0.37% 0.38%
2026..................... 100 $ 18,385,875 $ 10,154,455 $ 101,545 71.59% 0.78% 0.73%
2027..................... 204 $ 41,024,900 $ 20,215,150 $ 99,094 74.84% 1.58% 1.46%
2028..................... 3,591 $ 745,771,178 $405,062,470 $ 112,799 74.04% 27.87% 29.29%
2029..................... 371 $ 81,045,800 $ 43,748,952 $ 117,922 69.35% 2.88% 3.16%
----------- ------------- -------------- ----------- ----- ----------- -----------
Total:................. 12,886 $2,702,352,362 1$,383,157,099 $ 107,338 69.59% 100.00% 100.00%
----------- ------------- -------------- ----------- ----- ----------- -----------
----------- ------------- -------------- ----------- ----- ----------- -----------
</TABLE>
63
<PAGE>
YEAR OF ORIGINATION (QUARTERLY)
<TABLE>
<CAPTION>
TOTAL CURRENT WEIGHTED
NUMBER SECURITY BALANCE AVERAGE AVERAGE % BY % BY
YEAR OF ORIGINATION OF LOANS VALUE A$ OUTSTANDING A$ BALANCE A$ LVR (%) NUMBER BALANCE
- ------------------------------ ----------- ---------------- ---------------- ----------- ----------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
1996 Q2....................... 76 $ 12,863,000 $ 6,134,810 $ 80,721 61.80% 0.59% 0.44%
1996 Q3....................... 143 $ 27,424,950 $ 12,057,864 $ 84,321 57.72% 1.11% 0.87%
1996 Q4....................... 163 $ 31,347,241 $ 15,692,758 $ 96,275 63.45% 1.26% 1.13%
1997 Q1....................... 163 $ 32,545,150 $ 15,278,626 $ 93,734 61.12% 1.26% 1.10%
1997 Q2....................... 222 $ 46,141,450 $ 22,546,406 $ 101,560 63.85% 1.72% 1.63%
1997 Q3....................... 393 $ 80,696,383 $ 44,125,278 $ 112,278 69.63% 3.05% 3.19%
1997 Q4....................... 539 $ 110,614,282 $ 62,083,445 $ 115,183 71.70% 4.18% 4.49%
1998 Q1....................... 1,264 $ 253,755,937 $ 137,553,821 $ 108,824 72.03% 9.81% 9.94%
1998 Q2....................... 2,984 $ 613,768,571 $ 330,609,370 $ 110,794 71.47% 23.16% 23.90%
1998 Q3....................... 3,157 $ 689,269,011 $ 334,745,319 $ 106,033 69.30% 24.50% 24.20%
1998 Q4....................... 3,140 $ 668,654,837 $ 333,952,381 $ 106,354 68.53% 24.37% 24.14%
1999 Q1....................... 642 $ 135,271,550 $ 68,377,021 $ 106,506 68.35% 4.98% 4.94%
----------- ---------------- ---------------- ----------- ----- ----------- ---------
Total:........................ 12,886 $ 2,702,352,362 $ 1,383,157,099 $ 107,338 69.59% 100.00% 100.00%
----------- ---------------- ---------------- ----------- ----- ----------- ---------
----------- ---------------- ---------------- ----------- ----- ----------- ---------
</TABLE>
YEAR OF FIXED RATE MATURITY
<TABLE>
<CAPTION>
TOTAL CURRENT WEIGHTED WEIGHTED
NUMBER SECURITY BALANCE AVERAGE AVERAGE % BY % BY
YEAR OF MATURITY OF LOANS VALUE A$ OUTSTANDING A$ BALANCE A$ LVR (%) NUMBER BALANCE
- ---------------------------------- ----------- -------------- -------------- ----------- ----------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
1999.............................. 1,023 $ 191,271,568 $115,335,998 $ 112,743 74.69% 28.75% 28.72%
2000.............................. 781 $ 177,020,629 $ 89,968,789 $ 115,197 67.88% 21.95% 22.41%
2001.............................. 696 $ 168,977,524 $ 76,427,096 $ 109,809 65.92% 19.56% 19.03%
2002.............................. 173 $ 42,775,300 $ 19,267,201 $ 111,371 65.71% 4.86% 4.80%
2003.............................. 858 $ 217,022,990 $ 97,160,482 $ 113,241 65.20% 24.11% 24.20%
2004.............................. 27 $ 6,591,500 $ 3,363,820 $ 124,586 70.18% 0.76% 0.84%
----- -------------- -------------- ----------- ----- ----------- ---------
Total:............................ 3,558 $ 803,659,511 $401,523,386 $ 112,851 68.73% 100.00% 100.00%
----- -------------- -------------- ----------- ----- ----------- ---------
----- -------------- -------------- ----------- ----- ----------- ---------
</TABLE>
OCCUPANCY OF MORTGAGE PROPERTY DISTRIBUTION
<TABLE>
<CAPTION>
TOTAL CURRENT WEIGHTED WEIGHTED
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>
Investment.................... 2,044 $ 473,454,550 $ 245,646,815 $ 120,179 64.30% 15.86% 17.76%
Owner Occupied................ 10,842 $ 2,228,897,812 $ 1,137,510,285 $ 104,917 70.74% 84.14% 82.24%
----------- ---------------- ---------------- ----------- ----- ----------- ---------
Total......................... 12,886 $ 2,702,352,362 $ 1,383,157,099 $ 107,338 69.59% 100.00% 100.00%
----------- ---------------- ---------------- ----------- ----- ----------- ---------
----------- ---------------- ---------------- ----------- ----- ----------- ---------
</TABLE>
64
<PAGE>
PAYMENT TYPE DISTRIBUTION
<TABLE>
<CAPTION>
TOTAL CURRENT WEIGHTED WEIGHTED
NUMBER SECURITY BALANCE AVERAGE AVERAGE % BY % BY
PAYMENT TYPE OF LOANS VALUE A$ OUTSTANDING A$ BALANCE A$ LVR (%) NUMBER BALANCE
- ------------------------------ ----------- ---------------- ---------------- ----------- ----------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Interest Only................. 403 $ 122,107,350 $ 59,647,005 $ 148,007 62.66% 3.13% 4.31%
Principal & Interest.......... 12,483 $ 2,580,245,012 $ 1,323,510,095 $ 106,025 69.91% 96.87% 95.69%
----------- ---------------- ---------------- ----------- ----- ----------- ---------
Total......................... 12,886 $ 2,702,352,362 $ 1,383,157,099 $ 107,338 69.59% 100.00% 100.00%
----------- ---------------- ---------------- ----------- ----- ----------- ---------
----------- ---------------- ---------------- ----------- ----- ----------- ---------
</TABLE>
HOUSING LOANS PROPERTY TYPES
<TABLE>
<CAPTION>
TOTAL CURRENT WEIGHTED WEIGHTED
NUMBER SECURITY BALANCE AVERAGE AVERAGE % BY % BY
PROPERTY TYPE OF LOANS VALUE A$ OUTSTANDING A$ BALANCE A$ LVR (%) NUMBER BALANCE
- ------------------------------ ----------- ---------------- ---------------- ----------- ----------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
detached house................ 10,978 $ 2,297,356,450 $ 1,160,950,796 $ 105,752 69.26% 85.19% 83.93%
semi-detached house........... 198 $ 46,703,500 $ 23,681,647 $ 119,604 70.92% 1.54% 1.71%
townhouse..................... 178 $ 39,888,550 $ 21,643,913 $ 121,595 68.97% 1.38% 1.56%
unit.......................... 1,532 $ 318,403,862 $ 176,880,743 $ 115,457 71.72% 11.89% 12.79%
----------- ---------------- ---------------- ----------- ----- ----------- ---------
Total......................... 12,886 $ 2,702,352,362 $ 1,383,157,099 $ 107,338 69.59% 100.00% 100.00%
----------- ---------------- ---------------- ----------- ----- ----------- ---------
----------- ---------------- ---------------- ----------- ----- ----------- ---------
</TABLE>
65
<PAGE>
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.
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 5, 50 Pitt Street,
Sydney.
The Issuer Trustee will issue Notes in its capacity as trustee of the Trust.
SHARE CAPITAL
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$8.5 billion in this capacity and has been servicing Westpac and Westpac's
clients since 1944.
The Issuer Trustee is an Authorized Trustee Corporation under 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$3.8 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$108.7 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, 1998
showed Total Shareholder's Equity as A$17.4 million.
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<PAGE>
DIRECTORS
The directors of the Issuer Trustee are as follows:
<TABLE>
<CAPTION>
NAME OFFICE ADDRESS PRINCIPAL ACTIVITIES
- ------------------------------------ ------------------------------------ ------------------------------------
<S> <C> <C>
Martyn John Berry Level 36, Westpac Plaza Investment Fund Executive
50 Margaret Street
Sydney NSW 2000, Australia
David Matthew Fite Level 36, Westpac Plaza Bank Executive
50 Margaret Street
Sydney NSW 2000, Australia
John Charles Lawson Level 36, Westpac Plaza Banker
50 Margaret Street
Sydney NSW 2000, Australia
Robert McDonald Level 36, Westpac Plaza Finance Executive
50 Margaret Street
Sydney NSW 2000, Australia
Michael Anthony Migro Level 36, Westpac Plaza Manager
50 Margaret Street
Sydney NSW 2000, Australia
Shaun Albert Mays Level 36, Westpac Plaza Manager
50 Margaret Street
Sydney NSW 2000, Australia
</TABLE>
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 (other than the Housing Loans) 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.
67
<PAGE>
Each Noteholder acknowledges that:
(1) In the absence of fraud, negligence or breach of trust on its part
or on the part of any of its officers, employees, agents or delegates, 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
Class A 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.
(5) In making any such determination, the Issuer Trustee will seek and
rely on advice given to it by its advisors 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, the Beneficiary or the Approved Seller on
specified dates;
(iv) the amount of, or allocation of, Collections; or
(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.
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.
68
<PAGE>
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 in writing 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 or any event occurs 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 such removal. The Issuer Trustee will indemnify the Trust Manager
and the Trust for such 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.
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, or on
the part of any of its officers, employees, agents or delegates, the Issuer
Trustee shall not be liable personally in the event of failure to
69
<PAGE>
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 Class A 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 to the extent that 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. The Approved Sellers have also indemnified the Issuer Trustee in
relation to such payments and the Issuer Trustee is required to first call on
the indemnity from the Approved Sellers.
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 except to the extent that it is caused by the Issuer Trustee's
or its officer's, employee's, agent's or delegate's fraud, negligence or breach
of trust. 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.
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.
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 to the extent that there is a
reduction in the Seller
70
<PAGE>
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.
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 Seller Trustee has not been involved in the preparation of, and does not
accept responsibility for, this Prospectus.
THE NOTE TRUSTEE
Citibank, N.A., London office (the "Note Trustee"), in its capacity as note
trustee under the Note Trust Deed among the Issuer Trustee, the Trust Manager
and the Note Trustee dated on or about May 13, 1999, as amended from time to
time (the "Note Trust Deed").
ORIGINATOR OF THE HOUSING LOANS
Westpac Banking Corporation ("Westpac"), Level 4, 60 Martin Place, Sydney,
NSW 2000, Australia, was the first bank to be established in Australia. Westpac
was founded in 1817 and was incorporated in 1850 as Bank of New South Wales by
an Act of the New South Wales Parliament. In 1982, the Bank acquired The
Commercial Bank of Australia Limited, and the Bank changed its name to Westpac
Banking Corporation.
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 (including investment management, superannuation,
life and general insurance products and services) and finance company
operations.
The Australian banking activities of Westpac come under the regulatory
supervision of the Australian
Prudential Regulation Authority ("APRA"), an agency formed by the Australian
government on July 1, 1998. Prior to this date the Reserve Bank of Australia was
responsible for the prudential regulation of banks in Australia. The Reserve
Bank of Australia retains responsibility for monetary policy and the maintenance
of overall financial system stability.
At September 30, 1998, the Westpac Group's shareholder equity totaled A$8.6
billion and total assets equaled A$137.3 billion. The audited consolidated
financial balance sheets of the Westpac Group as of September 30, 1997 and 1998,
respectively, and the consolidated statements of income, changes in
shareholders' equity and changes in financial position for each of the one-year
periods ended September 30th for the years 1996, 1997 and 1998, together with
accompanying notes are included on pages 85 through 135 of the 1998 Annual
Report to shareholders. The 1998 Annual Report is Exhibit 3 to the Bank's Annual
Report on Form 20-F, for the year ending September 30, 1998, which was filed
with the Commission. Westpac 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 20-F referred to above. Written requests should be directed to Westpac
Banking Corporation, 575 Fifth Avenue, 39th Floor, New York, New York 10017,
Attention: Vice President, Legal Services.
71
<PAGE>
THE SERVICER
GENERAL
In 1996, Westpac established a wholly owned subsidiary, The Mortgage Company
Pty Limited ("TMC") of Level 25, 60 Martin Place, Sydney 2000, Australia, to
provide mortgage servicing capability to both Westpac and to third parties. TMC
operates from a servicing center in Adelaide, known as the Mortgage Centre
("MPC"). The MPC employs over 1,700 staff, and processes approximately 500 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: (i)
in accordance with the Servicing Agreement; (ii) in accordance with Westpac's
policies, which are under regular review and may change from time to time in
accordance with business 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 installment 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
installment 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 of the Borrower, equity in the
Mortgaged 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 the Housing Loan's progress
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 collection system of the MPC. Generally,
once a housing loan is 15 days delinquent, a
72
<PAGE>
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 will be
contacted by telephone or, if not contacted, a second letter will be sent by day
30. Between day 30 and day 45 generally the Borrower will again be 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 Mortgage Servicing 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. "Mortgagee 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 1997-1 WST Trust, Series 1997-2 WST
Trust, the Series 1997-3 WST Trust, the Series 1997-4E WST Trust and the Series
1998-1G WST Trust. The indicated periods of delinquency are based on the number
of days past due on a contractual basis. Similar information with respect to the
Series 1999-1G WST Trust will be contained in the reports presented through
Reuters for access by investors. Such reports will be compiled using the same
methodology as that used to compile the information contained in the table
below.
73
<PAGE>
DELINQUENCIES AND MIP
SERIES 1997-1 WST TRUST
<TABLE>
<CAPTION>
AS OF
MARCH 31, 1999
---------------------------------------------------
PERCENT
BY PERCENT BY
BY NO. DOLLAR BY NO. DOLLAR
OF LOANS AMOUNT OF LOANS AMOUNT
------------- ---------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Series 1997-1 Portfolio
Period of Delinquency:
30-59 Days................ 37 3,193,291 0.91% 0.98%
60-89 Days................ 10 1,175,483 0.25% 0.36%
90 Days or more........... 13 1,571,983 0.32% 0.48%
Total Delinquent Loans...... 60 5,940,757 1.48% 1.82%
Housing Loans in MIP(1)..... 0 0 0.00% 0.00%
<CAPTION>
<S> <C>
Series 1997-1 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 1997-2 WST TRUST
<TABLE>
<CAPTION>
AS OF AS OF
JUNE 14, 1998 SEPTEMBER 14, 1998
--------------------------------------------------- --------------------------------------
PERCENT
BY PERCENT BY BY PERCENT
BY NO. DOLLAR BY NO. DOLLAR BY NO. DOLLAR BY NO.
OF LOANS AMOUNT OF LOANS AMOUNT OF LOANS AMOUNT OF LOANS
------------- ---------- ----------- ----------- ------------- ---------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Series 1997-2 Portfolio
Period of Delinquency:
30-59 Days................ 48 4,640,750 0.90% 1.05% 44 3,664,321 0.88%
60-89 Days................ 14 1,523,661 0.26% 0.34% 14 1,594,007 0.28%
90 Days or more........... 16 1,773,819 0.30% 0.40% 8 332,668 0.16%
Total Delinquent Loans...... 78 7,938,230 1.46% 1.79% 66 5,590,996 1.32%
Housing Loans in MIP(1)..... 0 0 0.00% 0.00% 0 0 0.00%
<CAPTION>
PERCENT
BY
DOLLAR
AMOUNT
-----------
<S> <C>
Series 1997-2 Portfolio
Period of Delinquency:
30-59 Days................ 0.91%
60-89 Days................ 0.40%
90 Days or more........... 0.08%
Total Delinquent Loans...... 1.39%
Housing Loans in MIP(1)..... 0.00%
</TABLE>
<TABLE>
<CAPTION>
AS OF AS OF
DECEMBER 14, 1998 MARCH 14, 1999
--------------------------------------------------- --------------------------------------
PERCENT
BY PERCENT BY BY PERCENT
BY NO. DOLLAR BY NO. DOLLAR BY NO. DOLLAR BY NO.
OF LOANS AMOUNT OF LOANS AMOUNT OF LOANS AMOUNT OF LOANS
------------- ---------- ----------- ----------- ------------- ---------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Series 1997-2 Portfolio
Period of Delinquency:
30-59 Days................ 37 3,756,498 0.80% 1.02% 47 4,888,909 1.08%
60-89 Days................ 7 1,030,886 0.15% 0.28% 16 1,746,619 0.37%
90 Days or more........... 9 618,472 0.20% 0.17% 14 1,389,351 0.32%
Total Delinquent Loans...... 53 5,405,856 1.15% 1.47% 77 8,024,879 1.77%
Housing Loans in MIP(1)..... 0 0 0.00% 0.00% 0 0 0.00%
<CAPTION>
PERCENT
BY
DOLLAR
AMOUNT
-----------
<S> <C>
Series 1997-2 Portfolio
Period of Delinquency:
30-59 Days................ 1.44%
60-89 Days................ 0.52%
90 Days or more........... 0.41%
Total Delinquent Loans...... 2.37%
Housing Loans in MIP(1)..... 0.00%
</TABLE>
- ------------------------
(1) Housing Loans in MIP are also included under the heading "Total Delinquent
Loans."
74
<PAGE>
DELINQUENCIES AND MIP
SERIES 1997-3 WST TRUST
<TABLE>
<CAPTION>
AS OF AS OF
JUNE 14, 1998 SEPTEMBER 14, 1998
--------------------------------------------------- --------------------------------------
PERCENT
BY PERCENT BY BY PERCENT
BY NO. DOLLAR BY NO. DOLLAR BY NO. DOLLAR BY NO.
OF LOANS AMOUNT OF LOANS AMOUNT OF LOANS AMOUNT OF LOANS
------------- ---------- ----------- ----------- ------------- ---------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Series 1997-3 Portfolio
Period of Delinquency:
30-59 Days................ 55 5,393,494 0.89% 0.98% 42 4,535,157 0.72%
60-89 Days................ 14 1,533,029 0.23% 0.28% 8 1,070,262 0.14%
90 Days or more........... 11 1,291,713 0.18% 0.23% 11 907,077 0.19%
Total Delinquent Loans...... 80 8,218,236 1.29% 1.49% 61 6,512,496 1.04%
Housing Loans in MIP(1)..... 0 0 0.00% 0.00% 0 0 0.00%
<CAPTION>
PERCENT
BY
DOLLAR
AMOUNT
-----------
<S> <C>
Series 1997-3 Portfolio
Period of Delinquency:
30-59 Days................ 0.90%
60-89 Days................ 0.21%
90 Days or more........... 0.18%
Total Delinquent Loans...... 1.29%
Housing Loans in MIP(1)..... 0.00%
</TABLE>
<TABLE>
<CAPTION>
AS OF AS OF
DECEMBER 14, 1998 MARCH 14, 1999
--------------------------------------------------- --------------------------------------
PERCENT
BY PERCENT BY BY PERCENT
BY NO. DOLLAR BY NO. DOLLAR BY NO. DOLLAR BY NO.
OF LOANS AMOUNT OF LOANS AMOUNT OF LOANS AMOUNT OF LOANS
------------- ---------- ----------- ----------- ------------- ---------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Series 1997-3 Portfolio
Period of Delinquency:
30-59 Days................ 41 4,442,983 0.75% 0.96% 44 4,447,118 0.86%
60-89 Days................ 8 633,682 0.15% 0.14% 21 2,036,713 0.41%
90 Days or more........... 15 1,410,744 0.28% 0.30% 18 1,621,495 0.35%
Total Delinquent Loans...... 64 6,487,409 1.18% 1.40% 83 8,105,326 1.62%
Housing Loans in MIP(1)..... 0 0 0.00% 0.00% 0 0 0.00%
<CAPTION>
PERCENT
BY
DOLLAR
AMOUNT
-----------
<S> <C>
Series 1997-3 Portfolio
Period of Delinquency:
30-59 Days................ 1.03%
60-89 Days................ 0.47%
90 Days or more........... 0.38%
Total Delinquent Loans...... 1.88%
Housing Loans in MIP(1)..... 0.00%
</TABLE>
- ------------------------
(1) Housing Loans in MIP are also included under the heading "Total Delinquent
Loans."
75
<PAGE>
DELINQUENCIES AND MIP
SERIES 1997-4E WST TRUST
<TABLE>
<CAPTION>
AS OF AS OF
JUNE 9, 1998 SEPTEMBER 9, 1998
--------------------------------------------------- --------------------------------------
PERCENT
BY PERCENT BY BY PERCENT
BY NO. DOLLAR BY NO. DOLLAR BY NO. DOLLAR BY NO.
OF LOANS AMOUNT OF LOANS AMOUNT OF LOANS AMOUNT OF LOANS
------------- ---------- ----------- ----------- ------------- ---------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Series 1997-4E Portfolio
Period of Delinquency:
30-59 Days................ 29 3,014,489 0.48% 0.49% 36 4,185,922 0.63%
60-89 Days................ 10 939,207 0.16% 0.15% 2 136,504 0.03%
90 Days or more........... 6 513,358 0.10% 0.08% 8 852,519 0.14%
Total Delinquent Loans...... 45 4,467,054 0.74% 0.72% 46 5,174,945 0.80%
Housing Loans in MIP(1)..... 0 0 0.00% 0.00% 0 0 0.00%
<CAPTION>
PERCENT
BY
DOLLAR
AMOUNT
-----------
<S> <C>
Series 1997-4E Portfolio
Period of Delinquency:
30-59 Days................ 0.74%
60-89 Days................ 0.02%
90 Days or more........... 0.15%
Total Delinquent Loans...... 0.91%
Housing Loans in MIP(1)..... 0.00%
</TABLE>
<TABLE>
<CAPTION>
AS OF AS OF
DECEMBER 9, 1998 MARCH 9, 1999
--------------------------------------------------- --------------------------------------
PERCENT
BY PERCENT BY BY PERCENT
BY NO. DOLLAR BY NO. DOLLAR BY NO. DOLLAR BY NO.
OF LOANS AMOUNT OF LOANS AMOUNT OF LOANS AMOUNT OF LOANS
------------- ---------- ----------- ----------- ------------- ---------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Series 1997-4E Portfolio
Period of Delinquency:
30-59 Days................ 28 2,601,869 0.52% 0.49% 35 3,452,068 0.68%
60-89 Days................ 6 571,323 0.11% 0.11% 13 1,121,084 0.25%
90 Days or more........... 10 1,817,825 0.18% 0.34% 7 922,192 0.14%
Total Delinquent Loans...... 44 4,991,017 0.81% 0.94% 55 5,495,344 1.07%
Housing Loans in MIP(1)..... 0 0 0.00% 0.00% 0 0 0.00%
<CAPTION>
PERCENT
BY
DOLLAR
AMOUNT
-----------
<S> <C>
Series 1997-4E Portfolio
Period of Delinquency:
30-59 Days................ 0.70%
60-89 Days................ 0.23%
90 Days or more........... 0.19%
Total Delinquent Loans...... 1.12%
Housing Loans in MIP(1)..... 0.00%
</TABLE>
- ------------------------
(1) Housing Loans in MIP are also included under the heading "Total Delinquent
Loans."
76
<PAGE>
DELINQUENCIES AND MIP
SERIES 1998-1G WST TRUST
<TABLE>
<CAPTION>
AS OF AS OF
JULY 9, 1998 OCTOBER 9, 1998
--------------------------------------------------- ----------------------------------------
PERCENT
BY PERCENT BY BY PERCENT
BY NO. DOLLAR BY NO. DOLLAR BY NO. DOLLAR BY NO.
OF LOANS AMOUNT OF LOANS AMOUNT OF LOANS AMOUNT OF LOANS
------------- ---------- ----------- ----------- ------------- ------------ -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Series 1998-1G Portfolio
Period of Delinquency:
30-59 Days................ 68 7,429,754 0.33% 0.34% 69 7,842,351 0.35%
60-89 Days................ 9 1,139,773 0.04% 0.05% 17 2,446,465 0.09%
90 Days or more........... 1 29,901 0.00% 0.00% 10 1,188,550 0.05%
Total Delinquent Loans...... 78 8,599,428 0.37% 0.39% 96 11,477,366 0.49%
Housing Loans in MIP(1)..... 0 0 0.00% 0.00% 0 0 0.00%
<CAPTION>
PERCENT
BY
DOLLAR
AMOUNT
-----------
<S> <C>
Series 1998-1G Portfolio
Period of Delinquency:
30-59 Days................ 0.39%
60-89 Days................ 0.12%
90 Days or more........... 0.06%
Total Delinquent Loans...... 0.57%
Housing Loans in MIP(1)..... 0.00%
</TABLE>
<TABLE>
<CAPTION>
AS OF AS OF
JANUARY 9, 1998 APRIL 9, 1999
--------------------------------------------------- --------------------------------------
PERCENT
BY PERCENT BY BY PERCENT
BY NO. DOLLAR BY NO. DOLLAR BY NO. DOLLAR BY NO.
OF LOANS AMOUNT OF LOANS AMOUNT OF LOANS AMOUNT OF LOANS
----------- ------------ ----------- ----------- ----------- ------------ -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Series 1998-1G Portfolio
Period of Delinquency:
30-59 Days............... 97 9,956,559 0.51% 0.52% 130 13,867,902 0.71%
60-89 Days............... 21 2,407,709 0.11% 0.13% 32 3,625,382 0.18%
90 Days or more.......... 14 1,281,139 0.07% 0.07% 23 2,682,144 0.13%
Total Delinquent Loans..... 132 13,645,407 0.69% 0.72% 185 20,175,428 1.02%
Housing Loans in MIP(1).... 0 0 0.00% 0.00% 0 0 0.00%
<CAPTION>
PERCENT
BY
DOLLAR
AMOUNT
-----------
<S> <C>
Series 1998-1G Portfolio
Period of Delinquency:
30-59 Days............... 0.78%
60-89 Days............... 0.20%
90 Days or more.......... 0.15%
Total Delinquent Loans..... 1.13%
Housing Loans in MIP(1).... 0.00%
</TABLE>
- ------------------------
(1) Housing Loans in MIP are also included under the heading "Total Delinquent
Loans."
As of the date hereof, the Securitized Portfolios set forth above have not
realized any gains or losses (except for losses covered by a Primary Mortgage
Insurance Policy or covered by the repurchase of the related housing loan by the
relevant Approved Seller because of a breach of a representation or warranty).
Accordingly, no gain/loss tables are presented herein.
It is unlikely that the delinquency experience of the Housing Loans
comprising the Series 1999-1G 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 1999-1G
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 1999-1G WST Trust.
77
<PAGE>
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 25, 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 one fully paid share of A$1.00.
Such share is held by Westpac Equity Holdings Pty Ltd.
DIRECTORS
The directors of the Trust Manager are as follows:
<TABLE>
<CAPTION>
NAME BUSINESS ADDRESS PRINCIPAL ACTIVITIES
- ------------------------------------ ------------------------------------ ------------------------------------
<S> <C> <C>
R. Patrick Handley Level 4, 60 Martin Place Bank Executive
Sydney, NSW 2000
Australia
Chris Skilton Level 4, 60 Martin Place Sydney, NSW Bank Executive
2000
Australia
Lewis E. Love, Jr. 575 Fifth Avenue Legal Counsel
39th Floor
New York, New York 10017-2422
Marten Touw Level 4, 60 Martin Place Group Treasurer
Sydney, NSW 2000
Australia
Kimberley Gire Level 4, 60 Martin Place Head of Group Securitization
Sydney, NSW 2000
Australia
</TABLE>
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 without limitation 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.
78
<PAGE>
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 in writing 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 such 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 information
provided by, or action taken by, the Servicer, or if the Trust Manager has
not received information from the Servicer which the Trust Manager requires
to comply with the obligation or duty); 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.
79
<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 default 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 following are the primary sources for the origination of housing loans
for Westpac: the Westpac branch network, mobile finance managers, accredited
brokers, national telemarketing centers and through the internet. 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 application.
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 decisioning system. The decisioning system
is based on proprietary information, such as Westpac's own historical credit
underwriting experience and credit underwriting rules.
80
<PAGE>
The process also includes a reference from the Credit Reference Association of
Australia. Housing loans passing through the credit decisioning system will
either be approved, declined or referred to a credit specialist. Westpac's
criteria do not seek to segment borrowers who pass the credit decisioning system
into groups of differing credit quality. All borrowers must meet Westpac's
standard underwriting criteria and therefore are not charged different rates of
interest based on their credit quality. 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$750,000 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, by an accredited sales
manager if the application is within their credit approval limits 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 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 generally involves checking
annual accounts and/or other financial information.
Applicants are generally 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.
A valuation of the security property is required where lender's mortgage
insurance is required, or where the Housing Loan Principal is greater than
A$250,000 (although the Housing Loan Principal may be lower if the relevant
Mortgaged Property is in a particular geographic area). Substantiation of the
property value can be obtained by contract of sale, valuation by a registered
panel valuer (who is a member of the Australian Property Institute) or valuation
undertaken by a Westpac manager in accordance with bank policy. 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.
All broker originated loans are required to comply with Westpac's credit
policy. Where a valuation is not specifically required, the contract must be
reviewed by a credit manager.
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. Westpac
currently maintains a blanket insurance policy with Cigna Insurance Asia Pacific
Pty Limited which covers Westpac's loss from a mortgage default which follows
from physical loss, destruction or damage to a Mortgaged Property which is not
otherwise covered by adequate property insurance.
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."
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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 Options Home Loan,
Variable Rate Investment Property Loan, Fixed Rate Investment Property Loan,
First Option Investment Property Loan, Investment Loan with 1 Year Guaranteed
Rate 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 and
options 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 options
(as described below) can be activated on request by the borrower for a fee. The
current maximum term for this product is 30 years.
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 options 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 and then convert to a Premium
Option Home Loan. Apart from the introductory fixed rate period, the loan has
the same options as the Premium Option Home Loan. Certain product options are
not available during the fixed rate period. Some additional conditions apply to
these loans, such as a special offer administration charge.
SPECIAL OFFER FIXED OPTIONS 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 options 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.
FIXED OPTIONS 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 options (E.G., redraw) are not available during the fixed rate
period.
INVESTMENT PROPERTY LOANS
FIRST OPTION INVESTMENT PROPERTY LOANS: These loans are low variable rate
loans which assist with the purchase or refinancing of residential property for
investment purposes such as rental income or capital gain.
Additional loan options (described below) can be activated on request by the
borrower for a fee. The maximum term for this product is 30 years.
VARIABLE RATE INVESTMENT PROPERTY LOANS: These loans are variable rate
loans which assist with purchase or refinancing of residential property for
investment purposes such as rental income or capital
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gain. Additional loan options (described below) can be activated on request by
the borrower generally at no fee or a reduced fee. The maximum term for this
product is 30 years.
INVESTMENT LOANS WITH 1 YEAR GUARANTEED RATE: These loans have an
introductory discounted fixed rate for 12 months then convert to a Variable Rate
Investment Property Loan. Certain product options are not available during the
fixed rate period. Some additional conditions apply to this loan, such as a
special offer administration charge.
FIXED RATE INVESTMENT PROPERTY LOANS: These loans are fixed rate loans
which assist with purchase or refinancing of residential property for investment
purposes such as rental income or capital gain. The maximum term is 30 years.
The loans may provide for interest only payments for a maximum of 5 years and
then must convert to the required payment of principal and interest. These loans
may also provide for interest only in advance for 13 months. 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.
HOUSING LOAN FEATURES AND OPTIONS
GENERAL
Housing Loans originated by Westpac may have some or all of the features or
options described below. In addition, during the term of any Housing Loan,
Westpac may change any of the features or options of such Housing Loan from time
to time at the request of the related Borrower. For the risks associated with
the change in features or options, see "RISK FACTORS--Ability to Change Housing
Loan Features May Result in Changes to the Mortgage Pool and Higher Principal
Prepayment on the Class A Notes."
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 if 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 CLASS A NOTES--Description of the Redraw Facility,
Redraw Funding Securities and RFS Class A Notes."
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REPAYMENT HOLIDAY
The loan agreement relating to 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.
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 for which Westpac provides 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 capitalize 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 or part
into their Housing Loan account. If this amount exceeds the amortized scheduled
balance at that time, surplus funds are created therein that may be redrawn.
This feature will allow the customer in the aggregate up to fifteen automatic
disbursements in each payment cycle against these surplus funds to other
accounts. These disbursements will be treated as Redraws.
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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 one to five 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 options
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.
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 OR OPTIONS
Westpac may, in relation to a Housing Loan in the Mortgage Pool, from time
to time seek to offer additional features or options 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 Class A 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 Pty Limited (ACN 071 466 334) of
259 George 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$45,000,000.
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 Royal & Sun Alliance Lenders Mortgage
Insurance Limited (ACN 001 825 725) of Level 9, 465 Victoria
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Avenue, Chatswood NSW ("Royal & Sun"), MGICA Limited (ACN 000 511 071) 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, Royal
& Sun, WLMI or an MGICA Insurance Policy) (see "--Primary Mortgage Insurance
Policies" below).
PERIOD OF COVER
The Issuer Trustee has the benefit of the Mortgage Pool Insurance Policy in
respect of each relevant 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 equitably 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.
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, equal to 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;
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(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 Housing Loan:
(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 an approved 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 HLIC has agreed or determined to pay a claim under the
Mortgage Pool Insurance Policy, the date specified in that agreement or
determination.
If the Consumer Credit Legislation applies to a Mortgage, the liability of
HLIC 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$45,000,000.
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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 Mortgage Pool 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 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 Pool Insurance Policy.
Circumstances in which claims under the Mortgage Pool 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;
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(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;
(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 Pool 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; (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 or
(vi) the failure of the insured's computer systems or other items to be Year
2000 compliant. See "CERTAIN LEGAL ASPECTS OF THE HOUSING LOANS--Consumer Credit
Legislation" and "RISK FACTORS--Risks Associated with Year 2000 Compliance."
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 (at the Issuer Trustee's expense) of rights against the
Borrower or any mortgagor or require the Issuer Trustee to take action, or
empower HLIC to take action, in relation to the relevant Housing Loan or related
Mortgage.
VARIATIONS
HLIC may not vary the Mortgage Pool 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 Pool Insurance Policy, HLIC is not in breach of the law.
HLIC
HLIC was established in 1965 by the Commonwealth Government of Australia 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"). 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. It has significant LMI business
around the world, operating in the United States, United Kingdom, Canada and now
Australia and has over US$152 billion of loans insured globally. HLIC has been
given a "AAA" claims paying rating in its own right by Standard & Poor's, a
"Aa1" rating by Moody's and a "AAA" rating by Fitch.
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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
Royal & Sun, MGICA, WLMI or HLIC (a "PMI Policy"). Westpac is required to
equitably assign its interest in each PMI Policy to the Issuer Trustee on the
Closing Date. The consent of Royal & Sun, MGICA, WLMI and HLIC is required for
the assignment of the relevant Mortgages and the PMI Policies, and for the
Servicer to service the insured Housing Loans. Westpac must ensure that these
consents are obtained on or prior to the Closing Date.
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 PMI Policy;
(4) that any premium is not paid when due or 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 ROYAL & SUN, MGICA AND WLMI:
The Royal & Sun Alliance Group entered into the lenders mortgage insurance
market in Australia in 1989. Royal & Sun's Mortgage Insurance Division operates
as one of the major divisions of the Royal & Sun Alliance Group. Royal & Sun is
a subsidiary of Royal & Sun Alliance Insurance Australia Limited, which is one
of the five largest insurers in Australia with premium revenue of some A$1.246
billion, assets
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in excess of A$2.66 billion and a net asset position at December 31, 1998 of
over A$386 million. Royal &Sun Alliance Lenders Mortgage Insurance Limited is
rated "AA-" by Standard & Poor's for its claim paying ability and "A2" by
Moody's for its claim paying ability, and is owned by the Royal & Sun Alliance
group. Royal & Sun is currently on negative outlook by Standard & Poor's. Under
a deed of indemnity, Royal & Sun is explicitly indemnified for past, present and
future obligations arising from insurance contracts net of reinsurance by the
Australian holding company for the group, Royal & Sun Alliance Insurance
Australia Holdings Limited. The business address of Royal & Sun 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, AMP Limited ("AMP"), Australia's largest insurance
company. MGICA is rated "AA-" by Standard & Poor's for its claim paying ability
and "A1" by Moody's for its claims paying ability. MGICA is strongly capitalized
after receiving an injection of A$30 million of capital from its parent, AMP, in
1998. 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 & Sun Alliance Lenders Mortgage
Insurance Limited, both dated August 27, 1996, Royal & Sun 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, Royal & Sun will unconditionally and
irrevocably guarantee the obligations of WLMI arising under policies issued by
WLMI prior to the termination of the deed, 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 Class A
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 Class A Notes, the aggregate amount of
distributions on the Class A Notes and the yield to maturity of the Class A
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 Class A 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
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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 Class A Note may vary from the anticipated yield will depend upon the degree
to which a Class 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, the availability of alternative financing and homeowner mobility.
WEIGHTED AVERAGE LIVES
Generally, greater than anticipated prepayments of principal will increase
the yield on Class A Notes purchased at a price less than par and will decrease
the yield on Class A 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 Class A Notes will not
be entirely offset by a subsequent like reduction (or increase) in the rate of
principal payments. The weighted average life of the Class A 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 Class A 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").
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. 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 Class A Notes to
predict the amount or the timing of receipt of prepayments on the Housing Loans.
Since the following tables were 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 Class A 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
Class A 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 Closing
Date for the Class A Notes is May 13, 1999, (ii) payments on the Class A Notes
are made on the 19th day of each Quarter regardless of the day on which the
Payment Date actually occurs, commencing in August 1999 and are made in
accordance with the priorities described herein, (iii) 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 April 1999 (with no defaults), (iv)
all prepayments are prepayments in full received on the last day of each month
and include 30 days' interest thereon, (v) Principal Collections are distributed
according to the rules of distribution set forth in "DESCRIPTION OF THE CLASS A
NOTES--Payments of Principal on the Notes"; (vi) no optional termination is
exercised (except with respect to the line titled "Weighted Average Life--To
Call (Years)"); (vii) the Initial Subordinated Percentage is 2.44% and (viii) to
the extent that the sum of the A$ Equivalent of the total Initial Invested
Amount of the Class A Notes and the total Initial Invested Amount of the Class B
Notes issued by the Issuer Trustee exceeds the Housing Loan Principal as of the
Cut-off Date, the amount of this difference will be treated as Gross Principal
Collections and will be passed through to Noteholders on the first Payment Date.
The preceding clauses are the assumptions used
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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 pay at any assumed CPR to
maturity or that all Housing Loans will prepay at the same rate. The assumed CPR
for this transaction is 21%. In addition, the diverse remaining terms to
maturity of the Housing Loans (which include recently originated Housing Loans)
could produce slower or faster distributions of principal than as indicated in
the tables at the assumed CPRs 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:
---------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
DATE 0% 10% 15% 20% 21% 25% 35%
- -------------------------------------------------- --------- --------- --------- --------- --------- --------- ---------
Initial Percent................................... 100 100 100 100 100 100 100
May 19, 2000...................................... 98 86 81 75 74 69 58
May 19, 2001...................................... 96 76 67 58 57 50 37
May 19, 2002...................................... 94 67 55 45 43 37 23
May 19, 2003...................................... 92 58 46 35 34 27 15
May 19, 2004...................................... 90 51 38 28 26 20 9
May 19, 2005...................................... 87 45 31 22 20 14 6
May 19, 2006...................................... 85 39 26 17 15 10 3
May 19, 2007...................................... 82 34 21 13 12 8 2
May 19, 2008...................................... 79 30 17 10 9 5 1
May 19, 2009...................................... 76 26 14 8 7 4 0
May 19, 2010...................................... 73 22 12 6 5 3 0
May 19, 2011...................................... 69 19 9 4 4 2 0
May 19, 2012...................................... 66 16 8 3 3 1 0
May 19, 2013...................................... 62 14 6 2 2 1 0
May 19, 2014...................................... 57 12 5 2 1 0 0
May 19, 2015...................................... 53 10 4 1 1 0 0
May 19, 2016...................................... 48 8 3 1 0 0 0
May 19, 2017...................................... 43 6 2 0 0 0 0
May 19, 2018...................................... 38 5 1 0 0 0 0
May 19, 2019...................................... 33 4 1 0 0 0 0
May 19, 2020...................................... 27 3 0 0 0 0 0
May 19, 2021...................................... 21 2 0 0 0 0 0
May 19, 2022...................................... 14 1 0 0 0 0 0
May 19, 2023...................................... 7 0 0 0 0 0 0
May 19, 2024...................................... 0 0 0 0 0 0 0
May 19, 2025...................................... 0 0 0 0 0 0 0
Weighted Average Life(2)--
To Maturity (Years)............................. 15.540 6.930 5.079 3.904 3.716 3.104 2,116
To Call (Years)................................. 15.480 6.597 4.735 3.603 3.421 2.866 1.943
<CAPTION>
<S> <C>
DATE 45%
- -------------------------------------------------- ---------
Initial Percent................................... 100
May 19, 2000...................................... 48
May 19, 2001...................................... 25
May 19, 2002...................................... 13
May 19, 2003...................................... 7
May 19, 2004...................................... 3
May 19, 2005...................................... 1
May 19, 2006...................................... 0
May 19, 2007...................................... 0
May 19, 2008...................................... 0
May 19, 2009...................................... 0
May 19, 2010...................................... 0
May 19, 2011...................................... 0
May 19, 2012...................................... 0
May 19, 2013...................................... 0
May 19, 2014...................................... 0
May 19, 2015...................................... 0
May 19, 2016...................................... 0
May 19, 2017...................................... 0
May 19, 2018...................................... 0
May 19, 2019...................................... 0
May 19, 2020...................................... 0
May 19, 2021...................................... 0
May 19, 2022...................................... 0
May 19, 2023...................................... 0
May 19, 2024...................................... 0
May 19, 2025...................................... 0
Weighted Average Life(2)--
To Maturity (Years)............................. 1.542
To Call (Years)................................. 1.429
</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 three decimal places.
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DESCRIPTION OF THE CLASS A NOTES
GENERAL
The Class A Notes will be issued pursuant to the terms of the Transaction
Documents. The following section contains summaries of the material terms of the
Transaction Documents. The summaries do not purport to be complete and are
subject 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, consisting of one class of senior
notes, designated as the Class A Mortgage Backed Floating Rate Notes due May 19,
2030 in the original principal amount of US$883,900,000 (the "Class A Notes")
and one class of subordinated notes, designated as the Class B Mortgage Backed
Floating Rate Notes, due May 19, 2030 in the original principal amount of
A$33,750,000 (the "Class B Notes"). In addition to the Class A Notes and the
Class B Notes, the Issuer Trustee may from time to time issue RFSs, which may
convert to RFS Class A Notes in certain circumstances. The Class A Notes, Class
B Notes, RFSs and the RFS Class A Notes are referred to herein as the "Notes."
See "--Form of the Class B Notes," "--Interest Payable on the Class B Notes" and
"--Subordination of Class B Notes, Priority of Payment of Principal to RFSs,"
and "--Description of the Redraw Facility, the Redraw Funding Securities and the
RFS Class A Notes" herein.
Payments on the Class A Notes will be made by the Principal Paying Agent on
each Payment Date to persons in whose names the Class A Notes are registered as
of the related Record Date (the "Holders" or "Class A Noteholders"). The Payment
Date for the Notes will be the 19th day of each Quarter. A "Quarter" is each
three-month period in a year which period begins on February 1, May 1, August 1
and November 1. If any Payment Date would otherwise fall on a day which is not a
Business Day, it shall be postponed to the next day which is a Business Day. The
first Payment Date will be August 19, 1999 in respect of the period from (and
including) the Closing Date to (but excluding) that date. The Record Date for
any Payment Date will be the second Business Day immediately preceding the
Payment Date (so long as the Class A Notes are held in book-entry form), or the
last day of the prior calendar month (if Definitive Notes have been issued).
A "Business Day" means (1) in relation to the Note Trust Deed, the Agency
Agreement, any Class A Note and any US$ payments under a Currency Swap, any day,
other than a Saturday, Sunday or public holiday, on which banks are open for
business in London and New York City; and (2) in relation to any Notes, except
Class A Notes, A$ payments under a Currency Swap and 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) August 9, 1999. The last
Collection Period is the period from the last day of the previous Collection
Period to the Termination Date of the Trust.
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 August 19, 1999). Each succeeding Interest Period, commences on (and
includes) 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, the "Interest Determination Date" is the second
London banking day prior to the commencement of that Interest Period. The first
Interest Determination Date, which relates to the Interest Period beginning May
13, 1999, is May 11, 1999. The "Collection Determination Date" is four
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Business Days prior to each Payment Date. The first Collection Determination
Date will be August 13, 1999.
The Class A 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, the "Depository"), except as set forth below. The
Class A Notes, if issued in definitive form, will be serially numbered.
Beneficial interests in the Class A 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 Class A Notes. Unless and until Definitive Notes
are issued under the limited circumstances described herein, no Note Owner (as
defined herein) acquiring an interest in the Class A 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 Class A
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 the Class A Notes will refer to
distributions, notices, reports and statements to the Depository or its nominee,
as the registered Noteholder, for distribution to Note Owners of the Class A
Notes 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
Class A 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 such 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. Various amounts will also be swapped under the Swap Agreements.
On the Remittance 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 May to (and including) 9th August
Collection Determination Date................ 15th August
Remittance Date.............................. 17th August
Interest Determination Date.................. 17th August
Notice Date.................................. 18th August
Payment Date................................. 19th August
Interest Period.............................. 19th May to (but excluding) 19th August
</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 F-1+ from Fitch and (b) the Collections
Account is maintained with Westpac or a subsidiary
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of 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 such receipts
had been deposited into the Collections Account five Business Days following
receipt by Westpac or the Servicer (less any relevant tax).
If Westpac has a short term rating of less than A-1+ from Standard & Poor's,
less than P-1 from Moody's or less than F-1+ 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 for so long as it is an Approved Bank. 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 F-1+ 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, P-1 or better from Moody's and F-1 or better from
Fitch.
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 thereof 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 Swaps);
(3) any amount received by or on behalf of the Issuer Trustee under any
Support Facility (other than the Currency Swaps), including under a Mortgage
Insurance Policy, which the Trust Manager determines should be accounted for
to reduce 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 to the prior Currency Swap
Providers.
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"Finance Charge Collections" shall equal:
(1) all amounts received by or on behalf of the Issuer Trustee in
respect of financial institutions duty, bank accounts debit tax or similar
taxes relating to the Housing Loans ("Government Charges"), interest, fees
and other income payable under Housing Loans in the Mortgage Pool,
including:
(i) Liquidation Proceeds received on account of interest;
(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
(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 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 an
introductory 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 (as defined herein) 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
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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 "--Distribution of Total Available Funds") 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 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 interest payable to the Class B Notes ("Class B
Interest");
(2) second, if the Class B Interest 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
Providers 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 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.
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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 Swaps);
(2) on the A$ Equivalent 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 365 days.
With respect to any Payment Date, "Class B Interest" means all interest on
the outstanding Class B Notes in respect of an Interest Period, "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.
"A$ Equivalent" means, in relation 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 set forth in the Currency
Swaps. "US$ Equivalent" means, in relation to an amount denominated or to be
denominated in Australian dollars, the amount converted to (and denominated in)
U.S. dollars at the applicable exchange rate set forth in the Currency Swaps.
DISTRIBUTION OF TOTAL AVAILABLE FUNDS
GENERAL
On each Payment Date, the Trust Manager shall instruct the Issuer Trustee to
apply the Total Available Funds in making the following payments in respect of
the preceding Collection Period in the following order of priority:
(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
Swaps), PARI PASSU, 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) PARI PASSU, 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 Providers under the swap
confirmation relating to the Class A Notes of the A$ Class A Interest
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 Class B Interest as of that date.
The sum of paragraphs (1) to (6) above represents "Total Payments" for a
Collection Period.
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The Issuer Trustee shall only make a payment described in paragraphs (1)
through (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 fees payable to the Principal Paying Agent, the Agent Bank and
any other agents under the Agency Agreement;
(8) PARI PASSU 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 and a Paying Agent and any other agents or the Agent Bank in
relation to the Trust under the Transaction Documents, for that Collection
Period; and
(9) PARI PASSU 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.
CALCULATION OF INTEREST PAYABLE ON THE CLASS A NOTES AND CLASS B 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 determined on May 11, 1999. See "--Calculation of
USD-LIBOR-BBA" below. The "Interest Rate" for the Class B Notes for a particular
Interest Period is equal to the Bank Bill Rate on the first day of such Interest
Period plus %. The Interest Rate on the Class B Notes for the first Interest
Period will be determined on May 13, 1999.
With respect to any Payment Date, interest on the Class A Notes and the
Class B 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 with respect to the Class A Notes, or, with
respect to the Class B Notes, 365 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 "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
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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) PARI PASSU and rateably, 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;
(iv) as a payment to the Currency Swap Providers under the swap
confirmations relating to the Class A Notes, of the A$ Equivalent of any
Carryover Class A Charge Offs; and
(3) as a payment, to the holders of Class B Notes in or towards
reinstating the Stated Amount of such Class B Notes to the extent 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.
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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. The Issuer Trustee does not
intend and is not permitted to accumulate any surpluses.
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 from or
on behalf of Borrowers 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) Liquidation Proceeds received on account of principal;
(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
Swaps) 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 aggregate of the A$ Equivalent of the total Initial
Invested Amount of the Class A Notes and the total Initial Invested Amount of
the Class B 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 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 Providers to
enable the Issuer Trustee to make payments to the Class A 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 on which principal payments on the Notes are to be made,
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.
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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, PARI PASSU and rateably, based on their respective
entitlements:
(i) as a payment, denominated in A$, to the Currency Swap Providers
under the swap confirmations relating to the Class A Notes of an amount
equal to the lesser of:
(a) the Class A Forex Percentage of the sum of: (1) the Class A
Percentage of Net Principal Collections; and (2) 50% of the Class B
Percentage of Net Principal Collections; and
(b) the A$ 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$, to the holders of the Class
B Notes of an amount equal to 50% of the Class B Percentage of Net Principal
Collections.
The "Serial Method 1 Distribution Test" is met if, on any Collection
Determination Date the following conditions are all satisfied:
(i) the Subordinated Percentage at the previous Collection
Determination Date was greater than or equal to twice the Initial
Subordinated Percentage;
(ii) that Collection Determination Date occurs on or before May 13,
2002;
(iii) the fraction, expressed as a percentage, the numerator of which
is the Total Invested Amount on such Collection Determination Date and
the denominator of which is the Total Initial Invested Amount, is greater
than or equal to 10%; and
(iv) the Average Quarterly Percentage on such Collection
Determination Date:
(a) does not exceed 2% and the Total Carryover Charge Off on that
Collection Determination Date does not exceed 30% of the US$
Equivalent 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 US$
Equivalent of the Class B Initial Invested Amount; and
(v) the US$ Equivalent of the Stated Amounts of all Class B Notes on
such Collection Determination Date exceeds 0.25% of the sum of (x) the
Initial Invested Amounts of all Class A Notes, (y) the US$ Equivalent of
the Initial Invested Amounts of all Class B Notes and (z) the US$
Equivalent of the Invested Amounts of all RFS Class A Notes (if any).
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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, PARI PASSU and rateably, based on their respective
entitlements:
(i) as a payment, denominated in A$, to the Currency Swap Providers
under the swap confirmations relating to the Class A Notes of an amount
equal to the lesser of:
(a) the Class A Forex Percentage of the Class A Percentage of Net
Principal Collections; and
(b) the A$ 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$, to the holders of the Class
B Notes of an amount equal to the Class B Percentage of Net Principal
Collections.
The "Serial Method 2 Distribution Test" is met if, on any Collection
Determination Date the following conditions are all satisfied:
(i) the Subordinated Percentage at the previous Collection
Determination Date was greater than or equal to twice the Initial
Subordinated Percentage;
(ii) that Collection Determination Date occurs after May 13, 2002;
(iii) the fraction, expressed as a percentage, the numerator of which
is the Total Invested Amount on such Collection Determination Date and
the denominator of which is the Total Initial Invested Amount, is greater
than or equal to 10%;
(iv) the Average Quarterly Percentage as at the Collection
Determination Date:
(a) does not exceed 2% and the Total Carryover Charge Off on that
Collection Determination Date does not exceed 30% of the US$
Equivalent 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 US$
Equivalent of the Class B Initial Invested Amount; and
(v) the US$ Equivalent of the Stated Amounts of all Class B Notes on
such Collection Determination Date exceeds 0.25% of the sum of (x) the
Initial Invested Amounts of all Class A Notes, (y) the US$ Equivalent of
the Initial Invested Amounts of all Class B Notes and (z) the US$
Equivalent of the Invested Amounts of all RFS Class A Notes (if any).
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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, PARI PASSU and rateably, based on their respective
entitlements:
(i) as a payment, denominated in A$, to the Currency Swap Providers
under the swap confirmations relating to the Class A Notes of an amount
equal to the lesser of:
(a) the Class A Forex Percentage of the Net Principal
Collections; and
(b) the A$ 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$, to the holders of the Class
B Notes of an amount equal to the lesser of (i) the amount remaining after
all distributions in (1) above and (ii) the Class B Stated Amounts for all
Class B Notes.
CERTAIN RELATED DEFINITIONS
With respect to any date, the "Average Quarterly Percentage" is the sum of
the Quarterly Percentages for the four full Quarters preceding that date,
divided by four. With respect to any Collection Period, the "Quarterly
Percentage" equals a fraction, expressed as a percentage, the numerator of which
is the aggregate Housing Loan Principal of all Housing Loans which are
Delinquent for more than 60 consecutive days as of the close of business on the
last day of that Collection Period, and the denominator of which is the
aggregate Housing Loan Principal of all Housing Loans as of the close of
business on the last day of that Collection Period. With respect to any Housing
Loan and date, "Housing Loan Principal" shall be the unpaid principal amount of
that Housing Loan on such date.
The "Class A Forex Percentage" equals a fraction, expressed as a percentage,
the numerator of which is the A$ 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.
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 "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 (as defined herein) 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, 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 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, the Class B Stated Amounts and the Redraw Limit calculated as at the
preceding Collection Determination Date.
The "Initial Subordinated Percentage" shall be 2.44%.
The "Subordinated Percentage" means the fraction, expressed as a percentage,
calculated on each Collection Determination Date by the Trust Manager, the
numerator of which is the aggregate of the Class B Stated Amounts and the
denominator of which is the sum of (i) the aggregate of (A) the A$ Equivalent of
the Class A Stated Amounts and (B) the Class B Stated Amounts at that time, (ii)
the
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Redraw Limit at that time, (iii) the aggregate of the RFS Stated Amounts at that
time, and (iv) the aggregate of the RFS Class A Stated Amounts at that time.
"Total Invested Amount" means, at any time, the sum at that time of (a) the
Invested Amounts of all Class A Notes and (b) the US$ Equivalent of the Invested
Amounts of all other Classes of Notes.
"Total Initial Invested Amount" means, at any time, the sum at that time of
(a) the Initial Invested Amounts of all Class A Notes and (b) the US$ Equivalent
of the Inital Invested Amounts of all other Classes of Notes.
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 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 PARI PASSU and rateably,
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 A$ 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) the US$ Equivalent of all Carryover Class B Charge Offs for all
Class B Notes as at that date;
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(3) the US$ Equivalent of all Carryover RFS Charge Offs for all RFSs as
at that date; and
(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, PARI
PASSU and rateably 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 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
Providers shall deposit amounts denominated in US$.
(1) The Issuer Trustee shall direct the Currency Swap Providers to pay
all amounts denominated in US$ payable to the Issuer Trustee by the Currency
Swap Providers under the Currency Swaps 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 Providers
under the Currency Swaps 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.
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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 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 a feature 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"). Under 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 under
"--Principal Collections" herein, second, from drawings under the Redraw
Facility and third, from the proceeds of the issuance of RFSs, to the extent
each is available.
If Westpac is not fully reimbursed in relation to a Redraw, 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 and the Trust Manager. 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 (a "Redraw Shortfall")
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$30,000,000. 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 Notes then outstanding.
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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 Available Redraw Amount (as defined herein). A drawing may only be made
under the Redraw Facility on account of a Redraw Shortfall.
"Available Redraw Amount" means at any time the greater of: (a) the Redraw
Limit at such time less (i) the Principal Outstanding at that time; and (ii) the
Carryover Redraw Charge Offs at that time; and (b) zero. The sum of all Redraw
Advances outstanding on any particular date less the Carryover Redraw Charge
Offs at that time shall be the "Principal Outstanding."
A drawing may only be made by the Issuer Trustee delivering 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.
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 from day to day on the amount of each such
Redraw Advance from the date of its advance at a rate equal to the Bank Bill
Rate plus a margin (which varies depending on how long the Redraw Advance is
outstanding), calculated on the 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.
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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 the date of 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 to the Redraw Facility Provider
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, the Servicer, Westpac 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
(b) the relevant corporation to enter 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);
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(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 (4)
(inclusive) or having substantially similar effect, occurs with respect to
the relevant corporation.
The "Termination Date" with respect to the Trust shall be the 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 by the Security Trustee of its rights
under the Security Trust Deed after the occurrence of an Event of Default;
or
(4) at any time after all creditors of the Trust 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; and
(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 Class A Notes, the Class B Notes, the RFSs and
the Class A RFS 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 has cancelled the Redraw Limit
in full. The Issuer Trustee may cancel all or part of the Redraw Limit on
not less than five Business Days irrevocable notice to the Redraw Facility
Provider;
(5) the date which is one year after the Maturity Date;
(6) the date on which the Redraw Limit is cancelled in full by the
Redraw Facility Provider; or
(7) at the election of the Redraw Facility Provider, the date on which
Westpac Securitisation Management Pty Limited retires or is removed as Trust
Manager under the Master Trust Deed.
The Redraw Limit may be also be reduced in part by the Redraw Facility
Provider by giving notice to the Issuer Trustee and the Trust Manager. Such a
reduction will not result in a termination of the Redraw Facility.
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ISSUANCE OF REDRAW FUNDING SECURITIES
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 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." Such RFS Class A Note will:
(1) have an Initial Invested Amount equal to the RFS Initial Invested
Amount of the converted 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 the 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 evidenced by a notation in a register maintained by the Issuer
Trustee; 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 Swaps.
FORM OF THE RFSS AND THE RFS CLASS A NOTES
The RFSs and the RFS Class A Notes will be evidenced by a notation in a
register maintained by the Issuer Trustee, denominated in Australian dollars and
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 Class A Notes. The RFSs and RFS
Class A Notes are not offered hereby.
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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 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.
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.
FORM OF THE CLASS B NOTES
The Class B Notes will be evidenced by a notation in a register maintained
by the Issuer Trustee, denominated in Australian dollars and will be issued in
Australia to Australian resident investors only. The Class B Notes are not
offered hereby.
INTEREST PAYABLE ON THE CLASS B NOTES
Commencing on the Closing Date, Interest is payable quarterly in arrear on
each 19 February, 19 May, 19 August and 19 November until the Maturity Date or
until the Stated Amount of the Class B Note is reduced to zero (whichever is
earlier). "Interest" with respect to a Class B Note shall be equal to the
interest accrued on the Invested Amount for such Class B Note at a rate equal to
the Bank Bill Rate on the first day of the Interest Period and the margin of
% applicable to the Class B Note, during the period from (and including)
the Payment Date to (but excluding) the next Payment Date, calculated on the
actual number of days in the related Interest Period over 365.
Payments to the holders of Class B Notes will be in Australian dollars.
Payments of Interest on the Class B Notes will be subordinated to Interest
payable on the Class A Notes, the RFSs and the RFS Class A Notes.
SUBORDINATION OF THE CLASS B NOTES; PRIORITY OF PAYMENT OF PRINCIPAL TO RFSS
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 Class A
Noteholders, the holders of the RFS Class A Notes and the Class B Noteholders.
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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 location of the
properties securing the Housing Loan and the substituted housing loan. In
addition, the Unpaid Balance of all housing loans acquired by the Trust must be
less than the Unpaid Balance of the Housing Loans transferred to the WST
warehouse trust. 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 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 the Substitution Net Transfer Amount
(Principal) and Substitution Net Transfer Amount (Income) with respect to such
Housing Loan.
PRESCRIPTION
A Class A 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 Class A Note to
zero. After the date on which a Class 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 Class A
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 Class
A Notes or Class B Notes are outstanding, the Security Trustee may (subject, in
certain circumstances, to the prior written consent of the Noteholder Mortgagees
in accordance with the provisions of the Security Trust Deed), and will (if so
directed by the Noteholder Mortgagees where they are the only Voting Mortgagees,
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.
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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."
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 75% of the votes of all 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.
WITHHOLDING OR TAX DEDUCTIONS
All payments in respect of the Class A Notes will be made without
withholding or tax deduction for, or on account of, any present or future taxes,
duties or charges of whatsoever nature unless the Issuer Trustee or any Paying
Agent is required by applicable law to make any such payment in respect of the
Class A Notes subject to any withholding or deduction for, or on account of, any
present or future taxes, duties or charges of whatsoever nature. In the event
that the Issuer Trustee or the Paying Agent (as the case may be) shall make such
payment after such withholding or deduction has been made, it shall account to
the relevant authorities for the amount so required to be withheld or deducted.
Neither the Issuer Trustee nor any Paying Agent will be obliged to make any
additional payments to holders of the Class A Notes in respect to that
withholding or deduction.
REDEMPTION OF THE CLASS A NOTES FOR TAXATION OR OTHER REASONS
If the Trust Manager satisfies the Issuer Trustee and the Note Trustee
immediately prior to giving the notice referred to below that either (i) on the
next Payment Date the Issuer Trustee would be required to deduct or withhold
from any payment of principal or interest (or corresponding A$ payment under a
Currency Swap) in respect of the Class A Notes any amount for or on account of
any present or future taxes, duties, assessments or governmental charges of
whatever nature imposed, levied, collected, withheld or assessed by the
Commonwealth of Australia or any of its political sub-divisions or any of its
authorities or (ii) the total amount payable in respect of interest in relation
to the Housing Loans for a Collection Period ceases to be receivable (whether or
not actually received) by the Issuer Trustee during such Collection Period by
reason of any present or future taxes, duties, assessments or governmental
charges of whatever nature imposed, levied, collected, withheld or assessed by
the Commonwealth of Australia or any of its political sub-divisions or any of
its authorities, the Issuer Trustee must, when so directed by the Trust Manager
(at any time at the Trust Manager's option) (provided that the Issuer Trustee
will be in a position on such Payment Date to discharge (and will so certify to
the Issuer Trustee and the Note Trustee) all its liabilities in respect of the
Class A Notes and any amounts required under the Security Trust Deed to be paid
in priority to or PARI PASSU with the Class A Notes) upon having given not more
than 60 nor less than 30 days' notice to the Noteholders of the Class A Notes
redeem all, but not some, of the Class A Notes at their Invested Amount (or at
the option of the holders of 75% of the aggregate Invested Amount of the Class A
Notes, at their Stated Amount), together with accrued interest to the date of
redemption on any subsequent Payment Date, provided that the holders of 75% of
the aggregate Invested Amount of the Class A Notes may elect, and shall notify
the Issuer Trustee and the Trust Manager, that they do not require the Issuer
Trustee to redeem the Class A Notes in the circumstances described above.
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TERMINATION OF THE TRUST
TERMINATION EVENTS
The Trust shall continue until, and shall terminate on the later of: (i) its
respective Termination Date; (ii) the date on which the Trust Assets have been
sold or realized upon (which such sale shall be completed within 180 days after
the Termination Date of the Trust so far as reasonably practicable and
reasonably commercially viable); and (iii) the date on which the Issuer Trustee
ceases to hold any Housing Loans or Mortgages in relation to the Trust.
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 the holders of 75% of the
aggregate Invested Amount 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 the holders of
75% of the votes of all 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.
The Trust Manager shall have the discretion and 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
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to give effect to all such recommendations or proposals of the Trust 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 or 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+ by S&P, P-1 by Moody's and
F-1+ by Fitch; and (g) any other assets of a class of assets that are both: (i)
included within the definition of a "pool of mortgages" in the Duties Act 1997
of New South Wales, 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. No Authorized Investment may have a maturity which
is later than the Maturity Date of the outstanding Notes.
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, deliver to the
Principal Paying Agent on behalf of the Issuer Trustee, a report (the
"Noteholder's Report") containing the following information:
(i) the Invested Amount and the Stated Amount of each Class of Notes;
(ii) the Interest Payments and principal distributions on each Class of
Notes;
(iii) the Available Income;
(iv) the Total Available Funds;
(v) the aggregate of all Redraws made during that Collection Period;
(vi) the Redraw Shortfall;
(vii) the Subordinated Percentage;
(viii) the Initial Subordinated Percentage;
(ix) the Payment Shortfall (if any);
(x) 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;
(xi) the Gross Principal Collections;
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(xii) the Principal Collections;
(xiii) the Liquidity Shortfall (if any);
(xiv) the Remaining Liquidity Shortfall (if any);
(xv) the Principal Charge Off (if any);
(xvi) the Class A Percentage and the Class B Percentage;
(xvii) 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 (The "Bond Factor"
with respect to a Class of Notes is the Initial Invested Amount of such
Class less all principal payments on such Class divided by the Initial
Invested Amount of such Class);
(xviii) 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);
(xix) all Carryover Charge Offs (if any);
(xx) if required, the Threshold Rate at that Collection Determination
Date;
(xxi) the Quarterly Percentage;
(xxii) LIBOR, as at the first day of the related Interest Period ending
immediately after that Collection Determination Date as calculated by the
Agent Bank;
(xxiii) scheduled and unscheduled payments of principal on the Housing
Loans;
(xxiv) aggregate Balances Outstanding of Fixed Rate Housing Loans and
aggregate Balances Outstanding of Variable Rate Housing Loans; and
(xxv) delinquency statistics with respect to the Housing Loans.
The Class A 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.
The Trust Manager will, on or promptly after the Business Day preceding each
Payment Date (each, a "Notice Date"), prepare and arrange for the publication on
Reuters Screen page WST/SEC 11 to WST/ SEC 12 of summary pool performance data
for the Trust in a format as determined by the Trust Manager.
BOOK-ENTRY REGISTRATION
The Class A Notes will be represented by one or more book-entry Notes (the
"Book-Entry Notes"). Persons acquiring beneficial ownership interests in the
Class A Notes ("Note Owners") will hold their Notes through the Depository Trust
Company ("DTC") in the United States, or Cedelbank 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 the Class A
Notes and will initially be registered in the name of Cede & Co., the nominee of
DTC. Cedelbank and Euroclear will hold omnibus positions on behalf of their
participants through customers' securities accounts in Cedelbank'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, N.A. will act as depositary for Cedelbank,
and Morgan Guaranty Trust Company of New York will act as depositary for
Euroclear (in such capacities, individually,
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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 Note will be Cede & Co., as nominee of DTC. Note Owners will not be
considered holders of the Class A Notes in relation to the Master Trust Deed.
Note Owners are only permitted to exercise their rights indirectly through
participants and DTC.
The Note 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
Cedelbank or Euroclear, as appropriate).
Note Owners will receive all distributions of principal of, and interest on,
the Class A Notes from the Issuer Trustee through DTC and DTC Participants.
While the Class A 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 Class A Notes and is required to receive and transmit distributions of
principal of, and interest on, the Class A Notes. Participants and indirect
participants with whom Note Owners have accounts with respect to Class A 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 (i.e., Definitive Notes) in the Class A
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 Class A Notes only through Participants and indirect participants
by instructing such Participants and indirect participants to transfer Class A
Notes, by book-entry transfer, through DTC for the account of the purchasers of
such Class A Notes, which account is maintained with their respective
Participants. Under the Rules and in accordance with DTC's normal procedures,
transfers of ownership of Class A 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
Cedelbank 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 Cedelbank Participants on such Business Day. Cash received in
Cedelbank or Euroclear as a result of sales of securities by or through a
Cedelbank 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 Cedelbank or Euroclear cash account
only as of the Business Day following settlement in DTC.
Transfers between Participants will occur in accordance with DTC Rules.
Transfers between Cedelbank 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 Cedelbank
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
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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. Cedelbank
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.
Cedelbank is incorporated under the laws of Luxembourg as a professional
depository. Cedelbank holds securities for its participating organizations
("Cedelbank Participants") and facilitates the clearance and settlement of
securities transactions between Cedelbank Participants through electronic
book-entry changes in accounts of Cedelbank Participants, thereby eliminating
the need for physical movement of certificates. Transactions may be settled in
Cedelbank in any of 28 currencies, including United States dollars. Cedelbank
provides to its Cedelbank Participants, among other things, services for
safekeeping, administration, clearance and settlement of internationally-traded
securities and securities lending and borrowing. Cedelbank interfaces with
domestic markets in several countries. As a professional depository, Cedelbank
is subject to regulation by the Luxembourg Monetary Institute. Cedelbank
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 Cedelbank is
also available to others, such as banks, brokers, dealers and trust companies
that clear through or maintain a custodial relationship with a Cedelbank
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
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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 Principal Paying Agent 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 Principal Paying Agent to Cede & Co. Distributions with respect
to the Class A Notes held through Cedelbank or Euroclear will be credited to the
cash accounts of Cedelbank 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. 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 Class A Notes in the secondary
market since certain potential investors may be unwilling to purchase the Class
A Notes for which they cannot obtain physical certificates.
Quarterly 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 Note 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. Cedelbank or the
Euroclear Operator, as the case may be, will take any other action permitted to
be taken by a Class A Noteholder under the Transaction Documents on behalf of a
Cedelbank Participant or Euroclear Participant only in accordance with its
relevant rules and 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
Class A Notes which conflict with actions taken with respect to other Class A
Notes.
Although DTC, Cedelbank and Euroclear have agreed to the foregoing
procedures in order to facilitate transfers of Class A Notes among participants
of DTC, Cedelbank 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 Note 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.
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DEFINITIVE NOTES
The Class A Notes will be issued in definitive form to the Note Owners or
their nominees ("Definitive Notes"), rather than to the Depository or its
nominee, only if (i) the Trust Manager advises the Principal Paying Agent in
writing that the Depository is no longer willing or able to discharge properly
its responsibilities as Depository with respect to the Class A Notes, or the
Depository or its successor ceases to carry on business and the Trust Manager is
unable to locate a qualified successor, (ii) the Issuer Trustee, at the
direction of the Trust Manager advises the Principal Paying Agent in writing
that the book-entry system through the Depository is or is to be terminated or
(iii) an Event of Default has occurred, and Note Owners representing not less
than a majority of the aggregate Invested Amount of such Class advise the
Principal Paying Agent and the Issuer Trustee through the Participants and the
Depository in writing that the continuation of a book-entry system through the
Depository is no longer in the best interest of the Note Owners.
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. Upon surrender by
the Depository of the definitive certificate representing the Class A Notes and
instructions for registration, the Trustee will execute and the Principal Paying
Agent will authenticate the Class A Notes as Definitive Notes, and thereafter
the Trustee will recognize the Note Owners of such Definitive Notes as Class A
Noteholders under the Transaction Documents.
Distributions of principal and interest on the Class A Notes will be made by
the Principal Paying Agent directly to Class A Noteholders in accordance with
the procedures set forth herein and in the Master Trust Deed, Series Notice, the
Note Trust Deed and Agency Agreement. Interest payments and any principal
payments on each Payment Date will be made to Class A 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 Principal Paying
Agent. The final payment, on any Class A 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 Class A Noteholders. The Trustee will provide
such notice to registered Noteholders.
Definitive Notes will be transferable and exchangeable at the offices of the
transfer agent and registrar, which initially will be the Principal Paying Agent
(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, SERIES NOTICE AND THE NOTE TRUST DEED WITHOUT
NOTEHOLDER CONSENT
The Issuer Trustee, the Trust Manager, the Servicer (with respect to the
Master Trust Deed and the Series Notice) and the Note Trustee (with respect to
the Note Trust Deed) may by way of supplemental deed alter, add to or modify the
Master Trust Deed, the Series Notice and the Note Trust Deed so long as such
alteration, addition or modification was effected upon consent of the
Noteholders or Beneficiaries (see "--Modification of Master Trust Deed, Series
Notice and the Note 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 law or regulation or
with the requirements of any Australian governmental agency;
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(c) 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
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
(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, SERIES NOTICE AND THE NOTE 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, the Series Notice and the
Note Trust Deed (except an alteration, addition or modification referred to in
"--Modification of Master Trust Deed, Series Notice and the Note 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 holders of 75% of the aggregate Invested
Amount of the Notes, the Class A Notes or the Class B Notes (as the case may be)
or with the prior written consent of the Beneficiaries (as the case may be).
MEETINGS OF VOTING MORTGAGEES
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 Class A Notes and the Class
B Notes are 75% or more of all amounts secured by the Security Trust Deed, the
Noteholder Mortgagees 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 while the Noteholder Mortgagees are the only Voting Mortgagees
unless the Noteholder Mortgagees otherwise consent, if 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.
VOTING OF CLASS A NOTEHOLDERS; MODIFICATION; CONSENTS; WAIVER
The Note Trust Deed contains provisions for the Class A Noteholders to
consider any matter affecting their interests. In general, the holders of a
majority of the aggregate Invested Amount of the Class A Notes may take or
consent to any action permitted to be taken by Class A Noteholders under the
Note Trust Deed. Notwithstanding the foregoing, the consent of holders of 75% of
the aggregate Invested Amount of the Class A Notes shall be required to (i)
direct the Note Trustee to direct the Security Trustee to enforce the security
under the Note Trust Deed, (ii) override any waiver by the Note Trustee of a
breach of any provisions of the Transaction Documents or an Event of Default,
(iii) alter, add, or modify the terms and conditions of the Class A Notes or the
provisions of any of the Transaction Documents if such alteration, addition or
modification is, in the opinion of the Note Trustee, materially prejudicial or
likely to be materially prejudicial to the Class A Noteholders as a whole or the
Class A Noteholders, which shall include any modification to the date of
maturity of the Class A Notes, or a modification which would have
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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 percentage of the aggregate Invested Amount required to consent to
any action 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"). Any
action taken by the requisite percentage of the Invested Amount of the Class A
Noteholders shall be binding on all Class A Noteholders (both present and
future).
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 or necessary to comply with any law or regulation. 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, 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.
EVENTS OF DEFAULT; RIGHTS UPON EVENT OF DEFAULT
An "Event of Default" under the Security Trust Deed will occur if:
(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 Class
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 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 Noteholder
Mortgagees 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 Noteholder
Mortgagees, for so long as amounts outstanding under the Class A Notes and
the Class B Notes are 75% or more of the Secured Moneys) 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
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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 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
Noteholder Mortgagees 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 Transaction 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 Transaction Documents.
If an Event of Default occurs and is continuing, the Note Trustee shall
deliver to each Class A Noteholder notice of such Event of Default within 90
days of the date that the Note Trustee became aware of such Event of Default,
provided that, except in the case of a default in payment of Interest and
principal on the Class A Notes, the Note Trustee may withhold such notice if and
so long as it determines in good faith that withholding the notice is in the
interests of the Class A Noteholders.
ENFORCEMENT OF THE SECURITY TRUST DEED
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 Noteholder Mortgagees 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 Secured Moneys (including amounts outstanding under the
Notes plus accrued and unpaid interest) to be immediately due and payable;
(3) crystallize 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.
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, and is put in funds to the extent to which it may become
liable for the relevant enforcement actions.
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For so long as the Noteholder Mortgagees are the only Voting Mortgagees,
they 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 Noteholder Mortgagees are the only
Voting Mortgagees, unless the Noteholder Mortgagees otherwise consent. The
Noteholder Mortgagees will be the only Voting Mortgagees for so long as the
amounts outstanding under the Class A Notes and the Class B Notes are 75% or
more of all Secured Moneys.
Upon the occurrence of an Event of Default: (i) if the Noteholder Mortgagees
are the only Voting Mortgagees; and (ii) if the Noteholder Mortgagees direct the
Security Trustee to enforce the charge (in the case of the Note Trustee as a
Voting Mortgagee, 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.
No Mortgagee (including any Noteholder) 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 Secured Moneys, the Noteholder
Mortgagees; and
(2) at any other time: (i) the Note Trustee, acting on behalf of the
Class A Noteholders under the Note Trust Deed and the Security Trust Deed;
and (ii) each other Mortgagee under the Security Trust Deed (other than the
Class A Noteholders).
Any reference to the Noteholder Mortgagees where they are the only Voting
Mortgagees or where their consent is required under the Security Trust Deed in
relation to a discretion or act of the Security Trustee means Noteholder
Mortgagees representing more than 50% of the aggregate combined Invested Amount
of the Class A Notes and the Class B Notes.
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 and the Class B Noteholders where they are the only Voting
Mortgagees or to any Extraordinary Resolution of the Voting Mortgagees and shall
comply with all directions given by the Noteholder Mortgagees where they are the
only Voting Mortgagees or contained in or given pursuant to any Extraordinary
Resolution of the Voting Mortgagees in accordance with the Security Trust Deed.
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). The Class B Notes are
subject to similar constraints.
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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 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.
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; or any
Class A Notes, unless directed or requested to do so (i) by an Extraordinary
Resolution of the Class A Noteholders; or (ii) in writing by the holders of at
least one-quarter of the aggregate Invested Amount of the Class A Notes 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.
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 or the Class A Notes (including the
Conditions).
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 by
Extraordinary Resolution of the Voting Mortgagees in accordance with the
Security Trust Deed.
If: (i) the Security Trustee convenes a meeting of the Voting Mortgagees, or
is required by an Extraordinary Resolution to take any action under the Security
Trust Deed, and advises the Voting Mortgagees that it will not act in relation
to the enforcement of the Security Trust 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 the Security Trust Deed and put in funds to the extent to
which it may become liable (including costs and expenses); and (ii) the Voting
Mortgagees refuse to grant the requested indemnity, and put it in funds, then
the Security Trustee is not obliged to act in relation to that enforcement under
the Security Trust Deed. In those circumstances, the Voting Mortgagees may
exercise such of those powers conferred on them by the Security Trust Deed as
they determine by Extraordinary Resolution.
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.
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CERTAIN COVENANTS
So long as any of the Class A Notes remains outstanding, the Issuer Trustee
has made the following covenants for the benefit of Class A 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 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;
(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 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.
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(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.
ANNUAL COMPLIANCE STATEMENT
The Trustee will deliver to the Note Trustee annually a written statement as
to the fulfillment of its obligations under the Transaction Documents.
THE NOTE TRUSTEE
Citibank, N.A., London office, will be the Note Trustee. The Note Trustee
may resign after giving three months written notice, 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 Note Trust Deed or if the Note Trustee becomes
insolvent or ceases its business. In addition, holders of 75% of the aggregate
Invested Amount of the Class A Notes may require the Issuer Trustee to remove
the Note Trustee. In such circumstances and others set forth in the Note Trust
Deed, the Issuer Trustee will be obligated to appoint a successor note trustee.
Any resignation or removal of the Note Trustee and appointment of a successor
note trustee will not become effective until acceptance of the appointment by a
successor note trustee and confirmation by the Rating Agencies that such
appointment will not cause a downgrading, qualification or withdrawal of the
then current ratings of the Class A Notes.
The Note Trustee shall, with respect to all the powers, trusts, authorities,
duties and discretions vested in it by the Transaction Documents, except where
expressly provided otherwise, have regard to the interests of the Class A
Noteholders and the Class B Noteholders subject to the proviso in the following
sentence.
GOVERNING LAW
The Notes and the Transaction Documents (other than certain of the swap
agreements) are governed by, and shall be construed in accordance with, the laws
of New South Wales, Australia.
LONDON STOCK EXCHANGE LISTING
For purposes of the listing of the Class A Notes on the London Stock
Exchange, attached hereto as Appendix II are the terms and conditions of the
Class A Notes.
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
material terms of the Servicing Agreement. The summary does not purport to be
complete and is subject to the provisions of the Servicing Agreement, which has
been filed as an exhibit to the Registration Statement of which this Prospectus
is a part.
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 are amended in
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accordance with the Servicing Agreement 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 to the servicing standards set forth above and the limitations set
forth below, 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 servicing the Housing
Loans and 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
equitable title to the Housing Loans and related Mortgages in the Mortgage
Pool to full legal title 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, on
request from Westpac it will assist Westpac in collecting all moneys due
under those Housing Loans and Mortgages and pay them into the Collections
Account not later than the time Westpac would be required to do so.
(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 not later than the time
Westpac would be required to do so.
(4) If a material default occurs in respect of a Housing Loan, it will
take action in accordance with its normal enforcement procedures 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 do or omit to do anything which could be reasonably expected to
prejudicially affect or limit its rights or the rights of
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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 when each such claim is made.
(6) 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
which would rank before or PARI PASSU with the relevant Housing Loan and
Mortgage or allow the creation or existence of any other security interest
in the Mortgaged Property unless priority arrangements are entered into with
such third party under which the third party acknowledges that the Housing
Loan and the Mortgage ranks ahead in priority to the third party's 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.
(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.
(10) It will give notice in writing to the Issuer Trustee and the Rating
Agencies of it becoming aware of the occurrence of any Servicer Transfer
Event.
(11) It will maintain in effect all qualifications, consents, licenses,
permits, approvals, exemptions, filings and registrations as may be required
under any applicable law in order properly to service the Housing Loans and
Mortgages and to perform or comply with its obligations under the Servicing
Agreement.
(12) It will notify: (i) the Issuer Trustee and the Trust Manager of any
event which it reasonably believes is likely to have an Adverse Effect
promptly after becoming aware of such event; and (ii) the Trust Manager of
anything else which the Trust Manager reasonably requires regarding any
proposed modification to any Housing Loan or Mortgage.
(13) It will provide information reasonably requested by the Issuer
Trustee or the Trust Manager, with respect to all matters relating to the
Trust and the assets of the Trust, and the Issuer Trustee or the Trust
Manager believes reasonably necessary for it to perform its obligations
under the Transaction Documents, and upon reasonable notice and at
reasonable times permit the Issuer Trustee to enter the premises and inspect
the data and records in relation to the Trust and the Relevant Documents.
WESTPAC UNDERTAKINGS
Westpac has undertaken, among other things, the following under the
Servicing Agreement:
(1) It will maintain in effect all qualifications, consents, licenses,
permits, approvals, exemptions, filings and registrations as may be required
under any applicable law in relation to its ownership of any Housing Loan or
Mortgage and to perform or comply with its obligations under the Servicing
Agreement; and comply with all Laws in connection with its ownership of any
Housing Loans and Mortgages where failure to do so would have an Adverse
Effect.
(2) It will cooperate with the Servicer in relation to the performance
by the Servicer of its duties under the Servicing Agreement, including,
without limitation, in relation to the enforcement of any Housing Loan or
Mortgage.
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(3) If a material default occurs in respect to a Mortgage, it will take
such action as the Servicer directs it to take in accordance with the
Servicing Agreement.
(4) It will act in accordance with the terms of any Mortgage Insurance
Policies, and not do or omit to do anything which could be reasonably
expected to prejudicially affect or limit the rights of the Issuer Trustee
under or in respect of a Mortgage Insurance Policy to the extent those
rights relate to a Housing Loan and the Mortgage.
(5) 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
which would rank before or PARI PASSU with the relevant Housing Loan and
Mortgage or allow the creation or existence of any other security interest
in the Mortgaged Property unless priority arrangements are entered into with
such third party under which the third party acknowledges that the Housing
Loan and the Mortgage ranks ahead in priority to the third party's 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.
(6) It will not, except as required by law, release a Borrower from any
amount owing in respect of a Housing Loan or otherwise vary or discharge any
Housing Loan or Mortgage or enter into any agreement or arrangement which
has the effect of altering the amount payable in respect of a Housing Loan
or Mortgage where it would have an Adverse Effect.
(7) It will release any Housing Loan or Mortgage, reduce the amount
outstanding under or vary the terms of any Housing Loan or grant other
relief to a Borrower, if required to do so by any law or if ordered to do so
by a court, tribunal, authority, ombudsman or other entity whose decisions
are binding on Westpac. If the order is due to Westpac breaching any
applicable law then Westpac must indemnify the Issuer Trustee for any loss
the Issuer Trustee may suffer by reason of the order. The amount of the loss
is to be determined by agreement with the Issuer Trustee or failing this, by
Westpac's external auditors.
(8) It will notify the Servicer immediately of each request by a
Borrower to borrow further moneys under or in relation to a Housing Loan or
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. The Servicer shall not be liable for a breach of the
Servicing Agreement, or be liable under any indemnity, in relation to any action
or inaction on its part, where it has been notified by the Issuer Trustee or the
Trust Manager that the action or inaction is not reasonably likely to, or will
not 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.
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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 with respect 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 (as determined by the Issuer Trustee) 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 from the Issuer Trustee, 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.
Subject to certain limitations, the Servicer has indemnified the Issuer
Trustee against any expense, loss, damage or liability 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 and be entitled to the Servicing
Fee.
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 similar 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 Relevant
Documents for Housing Loans in the Mortgage Pool separate from other documents;
(ii) maintaining reports on movements of the Relevant Documents; and (iii) being
able to locate security packets containing the Relevant Documents.
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.
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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 BBB 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 and is subsisting,
then the Servicer must deliver the Relevant Documents to, or at the
direction of, the Issuer Trustee. If the Servicer does not do so within 10
Business Days (or such longer period as the Issuer Trustee permits), then the
Issuer Trustee must enter the premises where the Relevant Documents are kept,
take possession of and remove the Relevant Documents. If the Issuer Trustee does
not have possession of the documents within that period 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 Issuer Trustee
ceases to have any obligation to any creditor in relation to any Trust;
(c) the date on which the Issuer 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.
THE LIQUIDITY FACILITY
The following section contains a summary of the material terms of the
Liquidity Facility. The summary does not purport to be complete and is subject
to the provisions of the Liquidity Facility, a form of which has been filed as
an exhibit to the Registration Statement of which this Prospectus is a part.
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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$46,000,000;
(2) the Unpaid Balance of all Performing Loans at that date; 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 on or before the Closing
Date.
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 request 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 F-1+ from Fitch, the
Liquidity Facility Provider must, within five Business Days or such longer
period as the Rating Agencies confirm will not result in a downgrade, withdrawal
or qualification of the Class A Notes, deposit into an account held in the name
of the Issuer Trustee (the "Collateral Account") 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
F-1 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 or
F-1 from Fitch where the bank is Westpac, or F-1+ where the bank is not Westpac,
then the balance of the Collateral Account, and all amounts standing to the
credit of the Collateral Account, must (subject to certain limited restrictions)
within five Business Days (or such
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longer period as the Rating Agencies agree) 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 F-1+ from Fitch.
If the short term credit rating of the Liquidity Facility Provider is not
less than A-1 from Standard & Poor's, P-1 from Moody's and F-1 from Fitch, 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+, not lower than P-1 from Moody's and not lower than F-1+ from Fitch.
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+ from Standard & Poor's, P-1
from Moody's and F-1+ from Fitch, then the balance in the Collateral Account
must be repaid within five Business Days 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
CLASS A 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 to the Liquidity Facility
Provider under the Liquidity Facility and the Issuer Trustee does not pay
that amount;
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(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:
(1) the date on which the Issuer Trustee enters into a replacement
liquidity facility as previously notified to the Rating Agencies;
(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 has cancelled the Liquidity
Limit in full.
Cancellation of the Liquidity Limit is conditional on the Rating Agencies
confirming that such cancellation will not result in a downgrade, withdrawal or
qualification of the credit rating assigned by the Rating Agencies to the Notes.
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DESCRIPTION OF THE SWAP AGREEMENTS
DESCRIPTION OF INTEREST RATE SWAP AGREEMENTS
The following section contains a summary of the material 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 subject 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"). Each swap will be
governed by an ISDA Master Agreement, as amended by a supplementary schedule and
confirmed by a written confirmation. All such documents will be governed by the
laws of the state of New South Wales. 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
interest rates on Housing Loans with a variable rate 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 or from an existing Fixed Rate of interest to a new Fixed Rate of
interest after the Cut-Off Date. The Issuer Trustee will pay the applicable
daily weighted average Fixed Rate on Housing Loans that have converted to a
Fixed Rate since the Cut-Off Date 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 on Housing Loans that are 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 or
about 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 short term
debt rating below A-1+, A2 or F-1+ 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 Class A 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 A-l+, A2 or F-1+ by either Standard
& Poor's, Moody's or Fitch, respectively, 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.
Upon the termination of an Interest Rate Basis Swap, a termination payment
calculated pursuant to the Loss Method (as defined in such Interest Rate Basis
Swap) will be due to be paid by the Issuer Trustee to the Interest Rate Swap
Provider or by the Interest Rate Swap Provider to the Issuer Trustee. The
termination payment with respect to the Variable Rate Basis Swap will be zero.
The Issuer Trustee may look to any cash collateral security posted by the
Interest Rate Swap Provider relating to the terminated Interest Rate Basis Swap
for satisfaction of the Interest Rate Swap Provider's termination payment.
NOVATION
Upon the novation of a Interest Rate Swap Agreement, either the Interest
Rate Swap Provider will pay to the substitute Interest Rate Swap Provider an
up-front premium or the substitute Interest Rate Swap Provider will pay to the
Interest Rate Swap Provider an up-front premium to preserve the economic
equivalent of the mark-to-market value of the swap transaction as of the date of
novation. The Issuer Trustee will not bear any risk with respect to the novation
of an Interest Rate Swap unless the Interest Rate Swap Provider is unable to pay
any required up-front premium and there is insufficient cash collateral security
posted with respect to such Interest Rate Swap to cover such premium.
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 (the "Threshold Rate") 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 documents 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. 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).
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DESCRIPTION OF CURRENCY SWAPS
The following sections contain a summary of the material terms of the
Currency Swaps, which the Issuer Trustee will enter into with Morgan Guaranty
Trust Company of New York, acting through its London Branch ("Morgan Guaranty")
and Westpac (together, the "Currency Swap Providers" and together with the
Interest Rate Swap Provider, the "Swap Providers"). The summary does not purport
to be complete and is subject to the provisions of the Currency Swaps. The
Currency Swaps are provided on a "joint and several" basis by Westpac and Morgan
Guaranty. See "--Cross Support."
Collections in relation to the Housing Loans and related Mortgages and under
the Variable Rate Basis Swap and the Fixed Rate Basis Swaps will be denominated
in Australian dollars. However, the payment obligations of the Issuer Trustee in
relation to Interest and principal on the Class A 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
(together, the "Currency Swaps") with the Currency Swap Providers. The Currency
Swaps will be governed by an ISDA Master Agreement dated on or about May 13,
1999, by and between the Issuer Trustee and Morgan Guaranty (governed by New
York law) and an ISDA Master Agreement dated on or about May 13, 1999, by and
between the Issuer Trustee and Westpac (governed by the laws of New South Wales)
respectively. Each ISDA Master Agreement will be amended by a schedule thereto.
Each swap transaction will be confirmed by a written confirmation (such ISDA
Master Agreements, the schedules thereto and the related swap confirmations, the
"Currency Swaps").
Under the Currency Swaps, the Issuer Trustee is required to pay to the
Currency Swap Providers on each Payment Date amounts in A$ equal to a certain
percentage of the amount of any Principal Collections to be paid to the Class A
Noteholders received by the Issuer Trustee (the percentage being that which is
described in the section entitled "DESCRIPTION OF THE CLASS A NOTES--Payments of
Principal on the Notes") and the Currency Swap Providers are 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 related swap confirmations).
In addition, under the Currency Swaps on each Payment Date the Issuer Trustee
will make A$ floating rate payments to the Currency Swap Providers and the
Currency Swap Providers will make US$ floating rate payments which are
equivalent in amount to the Interest payable in US$ to the Class A Noteholders.
If on any Payment Date, the Issuer Trustee does not or is unable to make the
full floating payment, the US$ floating rate payment to be made by the Currency
Swap Providers 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 Class A 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
Swaps, an amount equal to the US$ subscription amounts will be paid to the
Currency Swap Providers, which will pay the A$ Equivalent of such amounts to the
Issuer Trustee.
On the Closing Date the Issuer Trustee will be obliged to pay to the
Currency Swap Providers an amount equal to the proceeds of the issue of the
Class A 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 Series Notice requires that the Issuer Trustee direct the Currency Swap
Providers to pay all US$ amounts to the Principal Paying Agent or the US$
Account. All US$ amounts shall be paid to the Class A Noteholders in accordance
with their entitlements and the priorities set out in "DESCRIPTION OF THE CLASS
A NOTES."
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TERMINATION OF THE CURRENCY SWAPS BY THE CURRENCY SWAP PROVIDERS
Under the Currency Swaps each Currency Swap Provider shall have the right to
terminate its currency swap in the following circumstances:
(1) If the Issuer Trustee fails to make a payment under the Currency
Swap within the 10 Business Days.
(2) If due to change in law it becomes illegal for the Issuer Trustee or
a Currency Swap Provider to make or receive payments or comply with any
other material provision of the Currency Swaps, the Currency Swap requires
such party to make certain efforts to transfer its rights and obligations to
another office or another affiliate to avoid this illegality (so long as the
transfer would not result in a downgrade of the rating of the Notes). If
those efforts are not successful then the applicable 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 Providers have the limited right to terminate
where it is required to gross-up or receive payments from which amounts have
been withheld if the Note Trustee is satisfied that the Noteholders will be
paid in full.
(4) An Insolvency Event with respect to the Issuer Trustee occurs.
(5) Any Event of Default occurs and an Extraordinary Resolution of the
Voting Mortgagees is passed directing the Security Trustee to take certain
actions.
TERMINATION OF THE CURRENCY SWAPS BY THE ISSUER TRUSTEE
There are a number of circumstances in which the Issuer Trustee has the
right to terminate the Currency Swaps with respect to a Swap Provider. In each
of these cases it is only permitted to exercise that right with the prior
written consent of the Note Trustee:
(1) Where the Currency Swap Providers fail to make a payment under the
Currency Swap within 10 Business Days or the Currency Swap Providers become
insolvent or merge into another entity without that entity properly assuming
responsibility for the obligations of the Currency Swap Providers under the
Currency Swaps.
(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 Providers are
obliged to make certain efforts to transfer their rights and obligations to
avoid that illegality. If those efforts fail the Currency Swaps may be
terminated.
(3) If the Issuer Trustee becomes obliged under the Currency Swaps to
receive payments from which amounts have been withheld or deducted
(including where this situation arises from a merger affecting the Currency
Swap Providers).
(4) If the Issuer Trustee becomes obliged to make a withholding or
deduction in respect of the Class A Notes and, as a result, the Class A
Notes are redeemed.
The Issuer Trustee (and the Note Trustee) may only terminate the Currency
Swaps following prior consultation by the Note Trustee with the Currency Swap
Providers as to the timing of termination. The Issuer Trustee will exercise such
right to terminate at the direction of the Trust Manager. The Currency Swap
Providers acknowledge that the Trust Manager will perform the day to day
management of the Trust and may exercise or satisfy any of the Issuer Trustee's
rights or obligations under the Currency Swap.
TERMINATION PAYMENTS
On the Termination Date or the Early Termination Date (each as defined in
the Currency Swaps) in respect of the Currency Swaps, a termination payment will
be due to be paid by the Issuer Trustee to the
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Currency Swap Providers or to the Issuer Trustee by the Currency Swap Providers
in respect of the Currency Swaps. The termination of a Currency Swap is an Event
of Default under the Security Trust Deed. If the Security Trust Deed is enforced
after such Events of Default, 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 Swaps 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 Providers) 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 SWAPS
If the Currency Swaps are terminated with respect to a Currency Swap
Provider, the Issuer Trustee may (at the direction of the Trust Manager) enter
into one or more currency swaps which replaces the terminated Currency Swap
(other than by way of transfer to avoid termination of the swap) (a "Replacement
Currency Swap") but only on the condition that the Settlement Amount (as defined
in the ISDA Master Agreement) payable (if any) by the Issuer Trustee to the
Currency Swap Provider upon termination of the original Currency Swap will be
paid in full when due in accordance with the Series Notice and 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 premium payable by the provider of the Replacement Currency Swap to be paid
directly to the applicable Currency Swap Provider in satisfaction of and to the
extent of the Issuer Trustee's obligation to pay the termination payment to such
Currency Swap Provider. If such premium paid by the Replacement Swap Provider is
less than the Settlement Amount due to the Currency Swap Provider, the balance
may be satisfied by the Issuer Trustee as a Trust Expense.
DOWNGRADE OF CURRENCY SWAP PROVIDERS
Each Currency Swap Provider, severally, will give a commitment for as long
as any outstanding Class A Notes are rated AAA/Aaa/AAA by Standard & Poor's,
Moody's and Fitch, respectively, to (a) provide collateral; and/or (as
determined with the relevant Rating Agencies) (b) if applicable, take other
measures acceptable to the relevant Rating Agencies, in respect of the Currency
Swap to which it is a party in the event that the rating that would be given to
senior debt jointly issued by the two Currency Swap Providers is ever downgraded
below Specified Levels. "Specified Levels" means long term debt ratings of
AA-/Aa3/AA- by Standard & Poor's, Moody's and Fitch, respectively, in respect of
clause (a) above, and either long term debt ratings of A- by Standard & Poor's
and Fitch, or short term debt ratings of A-1/F-1 by Standard & Poor's and Fitch,
respectively, in respect of clause (b) above. If a Currency Swap Provider
replaces a defaulting Currency Swap Provider with itself (as described below
under "--Cross Support"), the commitment described above will continue to apply
to the remaining Currency Swap Provider, except the Specified Levels shall apply
in respect of the senior debt of that Currency Swap Provider (rather than to the
joint debt).
CROSS SUPPORT
Each Currency Swap Provider has agreed to pay on demand of the Issuer
Trustee to or at the direction of the Issuer Trustee any amounts that the other
Currency Swap Provider is required to pay pursuant to the relevant Currency Swap
but has failed to pay. So long as a Currency Swap Provider pays such amounts,
the Issuer Trustee shall not be entitled to terminate the relevant Currency Swap
with respect to such default. In any case, a Currency Swap Provider may, in
certain circumstances, elect to replace the defaulting other Currency Swap
Provider with itself or another suitably rated party approved by the Issuer
Trustee, the Trust Manager and the Note Trustee.
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CURRENCY SWAP PROVIDERS
Morgan Guaranty Trust Company of New York, acting through its London Branch,
and Westpac are joint providers of the Currency Swaps.
Morgan Guaranty Trust Company of New York ("Morgan Guaranty") is a wholly
owned subsidiary and the principal asset of J.P. Morgan & Co. Incorporated
("Morgan"), a Delaware corporation whose principal office is located in New
York, New York. Morgan Guaranty 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 March 31, 1999, Morgan Guaranty and its subsidiaries
had total assets of $183.8 billion, total net loans of $25.6 billion, total
deposits of $58.6 billion, and stockholder's equity of $10.7 billion. As of
December 31, 1998, Morgan Guaranty and its subsidiaries had total assets of
$175.2 billion, total net loans of $24.9 billion, total deposits of $56.2
billion, and stockholder's equity of $10.5 billion.
The consolidated statement of condition of Morgan Guaranty as of March 31,
1999, is set forth on page 9 of Exhibit 99 to Form 8-K dated April 14, 1999, as
filed by Morgan with the Securities and Exchange Commission. Morgan Guaranty
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.
For a description of Westpac, see "ORIGINATOR OF THE HOUSING LOANS".
The information with respect to the Currency Swap Providers contained herein
has been obtained from the Currency Swap Providers. The delivery of this
Prospectus will not create any implication that there has been no change in the
affairs of the Currency Swap Providers since the date hereof or that the
information contained or referred to herein is correct as of any time subsequent
to its date. The Currency Swap Providers have not had any involvement in the
preparation of any part of this Prospectus, other than the information with
respect to the Currency Swap Providers set forth in this section and under the
heading "DESCRIPTION OF THE SWAP AGREEMENTS--Description of Currency Swap." The
Currency Swap Providers make no statement or representation in this Prospectus
(other than the information referred to above), have not authorized or caused
the issue of any part of it and take no responsibility for any part of it.
The Class A Notes do not represent an obligation of the Currency Swap
Providers, J.P. Morgan Securities, Inc., Morgan or any of their respective
affiliates. Holders of the Class A Notes will not have any right to proceed
directly against the Currency Swap Providers in respect of the Currency Swap
Providers' obligations under the Currency Swaps.
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 the law of the applicable State or Territory (which laws may differ
substantially between States and Territories) and the summaries do not reflect
the particular laws of any particular jurisdiction or encompass all relevant
laws of all jurisdictions in which any Mortgaged Property may be situated. The
summaries are subject to the applicable Australian federal and state laws
governing real property and the granting and enforcement of security over real
property.
GENERAL
Generally each Housing Loan will be secured by a mortgage which has 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 or if the Housing Loan is not secured by a first ranking mortgage the
Approved Seller will
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equitably assign to the Issuer Trustee all prior ranking registered mortgages in
relation to that Housing Loan). 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.
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 or leasehold title, interests in which are
created by registration in one or more central land registries 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, registered easements and other
dealings 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, each proprietor has title to, and may
freely dispose of, their unit. All proprietors are members of a "body
corporate", which is vested with the control, management and administration of
the common property and the strata scheme generally, for the benefit of the
proprietors, including the rules governing the apartment block. Certain parts of
the property, such as the land on which the building is erected, the stairwells,
entrance lobbies and the like are known as "common property" and are held by the
body corporate for the benefit of the 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.
URBAN LEASEHOLD
All land in the Australian Capital Territory is owned by the Commonwealth of
Australia and is subject to a leasehold system of land tenure. Mortgaged
Property in that jurisdiction comprises a Crown lease and developments on the
land are subject to the terms of that lease. Any such lease:
(a) cannot have a term exceeding 99 years, although the term can be
extended under a straightforward administrative process in which the only
qualification to be considered is whether the land may be required for a
public purpose; and
(b) where they involve residential property are subject to a nominal
rent of 5 cents per annum on demand.
As with other Torrens title land, the Borrower's leasehold interest in the
land is entered in a central register and the Borrower may deal with their
leasehold interest (including granting a mortgage over the property) without
consent from the government.
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In all cases where Mortgaged Property consists of a leasehold interest, the
unexpired term of the lease exceeds the term of the Housing Loan secured by that
Mortgaged Property.
Leasehold property may become subject to native title claims. Native title
has only quite recently been recognized by Australian courts. Native title to
particular property is based on the traditional laws and customs of indigenous
Australians and is not necessarily extinguished by grants of Crown leases over
that property. The extent to which native title exists over property (including
property subject to a Crown lease) depends on how that property was previously
used by the indigenous claimants asserting native title, and whether the native
title has been extinguished by the granting of the leasehold interest. If the
lease confers the right of exclusive possession over the property (which is
typically the case with residential leases), the current view is that native
title over the relevant property should be extinguished. Whether a lease confers
exclusive possession will depend on a construction of the lease and the
legislation under which the lease was granted.
Housing Loans secured by Mortgaged Property which is leasehold in the
Australian Capital Territory represents only approximately 1.21% (by value) of
all Housing Loans.
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.
In most States and Territories, a mortgagee will retain a duplicate
certificate of title (which mirrors the original certificate of title held at
the relevant land registry office). 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.
In Queensland, under the Land Title Act 1994, duplicate certificates of
title are no longer issued to mortgagees as a matter of practice. A record of
the title is stored on computer at the land registry office and the mortgage is
registered on that computerized title.
Once the mortgagor has repaid the debt, a discharge executed by the
mortgagee is lodged with the relevant 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.
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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. In Australia, a lender may sue to recover all
outstanding principal, interest and fees under the personal covenant of a
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; or
(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 the 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
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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 has the right
to apply to a court to, among other things:
(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 if
the interest rate is changed in a way which is unconscionable;
(3) have certain provisions of the Housing Loan or relevant Mortgage
which are in breach of the legislation declared unenforceable;
(4) obtain an order for a civil penalty against Westpac or, after a
Title Perfection Event, the Issuer Trustee, in relation to a breach of
certain key requirements of the Consumer Credit Legislation, the amount of
which may be set off against any amount payable by the Borrower under the
Housing Loan; or
(5) obtain restitution or compensation from either Westpac or, following
a Title Perfection Event, 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 Class A 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.
Breaches of the Consumer Credit Legislation may also lead to 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 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 a 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 of Australia, 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
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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.
USE OF PROCEEDS
The net proceeds from the sale of the Class A Notes will amount to
A$ and will be used by the Issuer Trustee to acquire equitable title
to 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 Class A 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 the Class A 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 Class A
Notes will be characterized as debt of the Issuer Trustee. Each Noteholder, by
the acceptance of a Class A Note, will agree to treat the Class A 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 the Class A Notes held by it in accordance with such
Noteholder's method of accounting.
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SALES OF NOTES
A Noteholder's tax basis in a Class A Note will equal its cost of such Class
A Note, reduced by any amortized premium (as described below) and any payments
other than interest made on such Class A Note and increased by any market
discount or original issue discount included in the Noteholder's income. A
Noteholder that sells a Class A Note will recognize gain or loss (in the
aggregate) in an amount equal to the difference between its adjusted tax basis
in the Class A 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 a capital gain or loss if the Class A Note was held as
a capital asset and, if the Class A Note was held for more than one year, will
be long-term capital gain or loss. In the case of an individual taxpayer,
long-term capital gains are eligible for reduced rates of taxation. 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 Class A Note will be considered to have acquired such Class
A Note at a "market discount" to the extent the remaining principal amount of
such Class A Note exceeds the Noteholder's tax basis in such Class A 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
Class A Note.
In the case of a sale or other disposition of a Class 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 Class A Note by
gift (and in certain other circumstances), could result in the recognition of
market discount income, computed as if such Class A Note had been sold for its
fair market value.
In the case of a partial principal payment on a Class 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 the market discount that has accrued during the period such Class A 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 Class A 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 Class A Note subject to the market discount rules exceeds the interest
(including OID) currently includible in income with respect to such Class A
Note, deductions of such interest must be deferred to extent of the market
discount allocable to the taxable
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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 Class A Note at
a premium to the extent the Noteholder's tax basis in such Class A Note exceeds
the remaining principal amount of such Class A Note. In that event, a Noteholder
who holds a Class 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 Class A 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 Class A 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 Class A
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 Class A
Notes. 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.
Recently, the Treasury Department issued new regulations (the "New
Regulations") which make certain modifications to the backup withholding and
information reporting rules described above. The New Regulations attempt to
unify certification requirements and modify reliance standards. The New
Regulations will generally be effective for payments made after December 31,
1999, subject to certain transition rules. Prospective investors are urged to
consult their own tax advisors regarding the New Regulations.
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.
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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 CLASS A NOTES SHOULD CONSULT THEIR OWN TAX ADVISERS CONCERNING THE
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 CLASS A NOTES. ANY SUCH DEALING WOULD NEED TO COMPLY WITH THE SELLING
RESTRICTIONS AND SECURITIES LAW GENERALLY.
PAYMENTS OF PRINCIPAL, PREMIUMS AND INTEREST
In the opinion of Allen Allen & Hemsley, Australian tax counsel to the
Issuer Trustee ("Australian Tax Counsel") under existing Australian tax law,
non-resident holders of the Class A Notes or interests in any Book-Entry 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, including, subject to the
fulfillment of all conditions required by section 128F of the Tax Act as
referred to below, interest withholding tax. Under Article 11 of the 1983 United
States-Australia Tax Treaty, the maximum Australian withholding rate on interest
paid to United States residents who are entitled to the benefit of such Treaty
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 Class A 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 Class A Notes in a way that satisfies an objective public offer test. The
Issuer Trustee will seek to issue the Class A Notes in a way that will satisfy
such test and otherwise meet the requirements of section 128F, including by
listing the Class A Notes.
The test will not be satisfied if the Issuer Trustee knew, or had reasonable
grounds to suspect, that the Class A 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 Tax
Act; or
(2) an associate of the Issuer Trustee within the meaning of section
128F of the Tax Act, other than in the capacity of a dealer, manager or
underwriter in relation to the placement of a Class A 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 debentures be issued outside
Australia and that the interest be paid outside Australia. .. this measure will
remove a tax discrimination in favour of corporate debt issued in foreign
financial markets over corporate debt issued in Australia markets." It is
proposed that these amendments will apply to issues of securities after 2 July
1998. A bill to implement the amendments was introduced into Australian Federal
Parliament on 3 December 1998. That bill is being debated at the date of this
prospectus. It is not currently possible to predict when the amendments will be
enacted.
153
<PAGE>
PROFIT ON SALE
In the opinion of Australian Tax Counsel, under current Australian law,
non-resident holders of Class A Notes will not be subject to Australian income
tax on profits derived from the sale or disposal of Class A Notes (but see below
for discussion of Australia's capital gains provisions):
(1) if the profits do not have an Australian source; or
(2) where the profits do have an Australian source, if the holder is
resident in a country with which Australia has entered into a double tax
treaty, is entitled to the benefit of that treaty and the profits are
business profits for the purposes of the treaty which are not attributable
to a business carried on through an Australian Establishment.
The source of any profit on the disposal of Class A Notes will depend on the
factual circumstances of the actual disposal. Where the Class A 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 Class A 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) Class A Notes are sold for an amount in excess of their issue price
prior to maturity; or
(2) Class A Notes are sold to an Australian resident in connection with
a "washing arrangement" (as defined in the Tax Act).
In the opinion of Australian Tax Counsel, under provisions for the taxation
of capital gains, non-resident holders of Class A Notes would be subject to
Australian tax on profits derived from the sale or disposal of Class A Notes if
the Class A Notes were at any time prior to the sale or disposal held as part of
a business carried on through an Australian Establishment.
OTHER TAXES
In the opinion of Australian Tax Counsel, no stamp, issue, registration or
similar taxes are payable in Australia in connection with the issue of the Class
A Notes. Furthermore, a transfer of, or agreement to transfer, Class A Notes
executed outside of Australia will not be subject to Australian stamp duty.
ERISA CONSIDERATIONS
Subject to the considerations discussed below, the Class A 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
Class A Notes might be deemed to constitute prohibited transactions under ERISA
and the Code if assets of the Trust 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 Trust 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 Trust and
154
<PAGE>
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, at the time of their
initial issuance that the Class A Notes should be treated as debt without
substantial equity features for purposes of the Plan Assets Regulation and that
the Class A Notes do not constitute equity interests in the Trust for purposes
of the Plan Assets Regulation. The debt characterization of the Class A Notes
could change after their initial issuance if the Trust incurred losses.
However, without regard to whether the Class A Notes are treated as an
equity interest for such purposes, the acquisition or holding of the Class A
Notes by or on behalf of a Benefit Plan could be considered to give rise to a
prohibited transaction if the Trust, the Issuer Trustee, the Servicer, the Trust
Manager, the Note Trustee, any Approved Seller, the Seller Trustee or the
Security Trustee or any of their 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 Class 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 Class A Note,
each purchaser shall be deemed to represent and warrant that its purchase and
holding of the Class A 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 CLASS A NOTES SHOULD
CONSULT ITS TAX AND/OR LEGAL ADVISORS REGARDING WHETHER THE ASSETS OF THE TRUST
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, "Aaa" by Moody's and "AAA" by Fitch. The security
ratings of the Class A 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. The Class A Notes are pass-through debt
securities. The rating does not address the expected schedule of principal
repayments other than to say that principal will be returned no later than the
final maturity date.
LEGAL INVESTMENT CONSIDERATIONS
The Class A 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
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 Class A Notes, which, for the
reasons stated herein, do not constitute "mortgage related securities" under
SMMEA. No representation is made as to whether the Class A 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
155
<PAGE>
authorities. Prospective purchasers are urged to consult with their counsel
concerning the status of the Class A Notes as legal investments for such
purchasers.
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting Agreement,
by and among the underwriters named below (the "Underwriters"), Westpac, the
Issuer Trustee and Trust Manager, the Issuer Trustee has agreed to sell to the
Underwriters, and each of the Underwriters have severally agreed to purchase,
the principal amount of the Class A Notes set forth opposite its name below.
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT
OF CLASS A NOTES
UNDERWRITER (US$)
- ----------------------------------------------------------------------- ---------------------
<S> <C>
J.P. Morgan Securities Inc.............................................
Morgan Stanley & Co. Incorporated......................................
Westpac Banking Corporation............................................
Deutsche Bank Securities Inc...........................................
Warburg Dillon Read (a division of UBS AG).............................
Merrill Lynch, Pierce, Fenner & Smith Incorporated.....................
Salomon Smith Barney Inc...............................................
Nomura International plc...............................................
$
--------
Total............................................................ $
--------
--------
</TABLE>
In the Underwriting Agreement, the Underwriters named therein have agreed,
subject to the terms and conditions set forth therein, to purchase all of the
Class A Notes offered hereby if any Class A 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 Class A 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 Initial Invested Amount of the
Class A Notes.
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
Initial Invested Amount of the Class A Notes.
In connection with the offering, the Underwriters may engage in transactions
that stabilize, maintain or otherwise affect the price of the Class A Notes.
Specifically, the Underwriters may overallot the offering, creating a syndicate
short position. In addition, the Underwriters may bid for, and purchase, the
Class A Notes in the open market to cover syndicate shorts or to stabilize the
price of the Class A Notes. Any of these activities may stabilize or maintain
the market price of the Class A Notes 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 Class A 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 Securitisation
Management Pty Limited and Westpac have agreed to indemnify the Underwriters
against certain liabilities, including civil liabilities under the Securities
Act, or contribute to payments which the Underwriters may be required to make in
respect thereof.
156
<PAGE>
In the ordinary course of its business, certain of the Underwriters and
certain of their affiliates have in the past and may in the future engage in
commercial and investment banking activities with Westpac and its affiliates.
OFFERING RESTRICTIONS
UNITED KINGDOM
Each Underwriter has severally represented and agreed with the Issuer
Trustee that:
(i) it has not offered or sold and will not offer or sell any Class A
Notes to persons in the United Kingdom prior to admission of the Class A
Notes to listing in accordance with Part IV of the Financial Services Act
1986 (the "Financial Services Act") except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995 or the Financial Services Act;
(ii) it has complied and will comply with all applicable provisions of
the Financial Services Act with respect to anything done by it in relation
to the Class A Notes in, from or otherwise involving the United Kingdom; and
(iii) it has only issued or passed on and will only issue or pass on in
the United Kingdom any document received by it in connection with the issues
of the Class A Notes, other than any document which consists of or of any
part of listing particulars, supplementary listing particulars or any other
document required or permitted to be published by listing rules under Part
IV of the Financial Services Act, to a person who is of a kind described in
Article 11(3) of the Financial Services Act 1986 (Investment Advertisements)
(Exemptions) Order 1996 (as amended) or is a person to whom the document may
otherwise lawfully be issued or passed on.
AUSTRALIA
The Class A Notes may not, in connection with their initial distribution, be
offered or sold, directly or indirectly, in the Commonwealth of Australia, its
territories or possessions ("Australia"), or to any resident of Australia. Each
Underwriter has severally represented and agreed that in connection with the
initial distribution of the Class A Notes it:
(i) has not (directly or indirectly) offered for subscription or
purchase or issue invitations to subscribe for or buy nor has it sold, the
Class A Notes;
(ii) will not (directly or indirectly) offer for subscription or
purchase or issued invitations to subscribe for or buy nor will it sell the
Class A Notes; and
(iii) has not distributed and will not distribute any offering circular,
or any advertisement or other offering material,
in Australia, its territories or possessions or to any person who is (a)
actually known by the Underwriter (without an obligation on the Underwriter to
make any inquiry) to be a resident of Australia for the purposes of section 128F
of the Tax Act or (b) an associate of Westpac within the meaning of that section
(other than in the capacity of a dealer or underwriter in relation to a
placement of the Class A Notes) as identified on a list provided by Westpac.
157
<PAGE>
LISTING AND GENERAL INFORMATION
LISTING
Westpac Banking Corporation, acting through its London branch, will act as
listing agent with respect to the Class A Notes. The listing of the Class A
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 Class A Notes on the London Stock Exchange will be granted on or about May
7, 1999, subject to the issuance of Global Notes. The Class A Notes will be
issued in the form of one or more Global Notes. There will be no temporary
global notes.
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 March 31, 1999.
LITIGATION
The Issuer Trustee is not, and has not, been 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 CEDELBANK
The Class A Notes have been accepted for clearance through Euroclear and
Cedelbank with a common code of for the Class A Notes. The ISIN for
the Class A 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 Principal Paying Agent at 5 Carmelite Street, London EC4Y 0PA,
during the period of fourteen days from the date of this Prospectus (except for
(a) and (c) (xiii), together the "Transaction Documents"):
(a) the Constitution 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 among the Issuer Trustee, the Trust Manager,
the Approved Seller, the Note Trustee and the Servicer dated on or about
May 13, 1999;
(ii) the Servicing Agreement dated February 18, 1997 and the
Servicing Agreement Amendment Agreement dated on or about May 13, 1999,
each among Westpac, the Servicer and the Issuer Trustee;
(iii) the Note Trust Deed among the Issuer Trustee, the Trust Manager
and the Note Trustee dated on or about May 13, 1999;
(iv) the Agency Agreement among the Issuer Trustee, the Trust
Manager, the Note Trustee, the Principal Paying Agent and the Agent Bank
dated on or about May 13, 1999;
(v) the Security Trust Deed among the Issuer Trustee, the Security
Trustee, the Note Trustee and the Trust Manager dated on or about May 6,
1999;
158
<PAGE>
(vi) the Liquidity Facility Agreement among the Issuer Trustee, the
Liquidity Provider and the Trust Manager dated on or about May 13, 1999;
(vii) the Redraw Facility Agreement among the Issuer Trustee, the
Redraw Facility Provider and the Trust Manager dated on or about May 13,
1999;
(viii) the Interest Rate Swaps between the Issuer Trustee and Westpac
dated on or about May 13, 1999;
(ix) the Currency Swap between Westpac, as a Currency Swap Provider
and the Issuer Trustee dated on or about May 13, 1999;
(x) the Currency Swap between Morgan Guaranty, as a Currency Swap
Provider, and the Issuer Trustee dated on or about May 13, 1999;
(xi) the Mortgage Pool Insurance Policy between HLIC, Westpac and the
Issuer Trustee;
(xii) the PMI Policies issued by Royal & Sun, MGICA, WLMI and HLIC
which cover individual housing loans for principal and interest losses;
and
(xiii) Underwriting Agreement among the Trust Manager, the Issuer
Trustee, Westpac and the Underwriters dated on or about May 6, 1999;
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:
(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.
CONSENTS TO OPINIONS
Mayer, Brown & Platt have given and not withdrawn their written consent to
the inclusion in this Prospectus of their opinion in the form and context in
which it is included on pages 27 and 150 and have authorized the content of
their opinion for the purposes of section 152(1)(e) of the Financial Services
Act 1986.
Allen Allen & Hemsley have given and not withdrawn their written consent to
the inclusion in the Prospectus of their opinion in the form and context in
which it is included on pages 7, 153 and 154 and have authorized the content of
their opinion for the purposes of section 152(1)(e) of the Financial Services
Act 1986.
LEGAL MATTERS
Certain legal matters with respect to the Class A Notes will be passed upon
for the Trust Manager and the Issuer Trustee by Mayer, Brown & Platt, New York,
New York, and for the Trust Manager by 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 Class A Notes will be passed upon
for the Trust Manager by Mayer, Brown & Platt, and certain Australian income tax
consequences will be passed upon for the Trust Manager by Allen Allen & Hemsley.
159
<PAGE>
INDEX OF TERMS
<TABLE>
<CAPTION>
PAGE
---------------
<S> <C>
A$............................................................................................... 7
A$ Class A Interest Amount....................................................................... 99
A$ Equivalent.................................................................................... 99
Accrued Interest Adjustment...................................................................... 51
ACN.............................................................................................. 66
ACT.............................................................................................. 57
Additional Termination Event..................................................................... 140
Adverse Effect................................................................................... 43, 148
Agent Bank....................................................................................... 16
AMP.............................................................................................. 91
Approved Bank.................................................................................... 96
Approved Sellers................................................................................. 13
APRA............................................................................................. 71
ASIC............................................................................................. 14
Australia........................................................................................ 157
Australian Establishment......................................................................... 153
Australian Tax Counsel........................................................................... 153
Authorized Investments........................................................................... 118
Availability Fee................................................................................. 111
Available Income................................................................................. 96
Available Liquidity Amount....................................................................... 136
Available Redraw Amount.......................................................................... 110
Average Quarterly Percentage..................................................................... 106
Bank Bill Rate................................................................................... 110
Basic Terms Modification......................................................................... 125
beneficial owner................................................................................. 120
Beneficiary...................................................................................... 102
Benefit Plan..................................................................................... 154
Bond Factor...................................................................................... 119
Book-Entry Notes................................................................................. 95, 119
Borrower......................................................................................... 21
Business Day..................................................................................... 16, 94
Carryover Charge Off............................................................................. 30
Carryover Class A Charge Offs.................................................................... 108
Carryover Class B Charge Offs.................................................................... 108
Carryover Redraw Charge Offs..................................................................... 108
Carryover RFS Class A Charge Offs................................................................ 108
Cede............................................................................................. 3
Cedelbank........................................................................................ 1
Cedelbank Participants........................................................................... 121
Certificate of Insurance......................................................................... 86
charge........................................................................................... 24, I-1
chargor.......................................................................................... 24, 49, I-1
Class............................................................................................ 16
Class A Charge Off............................................................................... 107
Class A Forex Percentage......................................................................... 106
Class A Noteholders.............................................................................. 16, 94
Class A Notes.................................................................................... 1, 14, 94
Class A Percentage............................................................................... 106
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
PAGE
---------------
<S> <C>
Class B Charge Off............................................................................... 107
Class B Interest................................................................................. 99
Class B Notes.................................................................................... 1, 14, 94
Class B Percentage............................................................................... 106
Clean-up Offer................................................................................... 25
Closing Date..................................................................................... 15
Code............................................................................................. 150
Collateral Account............................................................................... 136
Collection Account............................................................................... 117
Collection Determination Date.................................................................... 94
Collection Period................................................................................ 94
Collections...................................................................................... 95
Collections Account.............................................................................. 22
Commission....................................................................................... 3
Concessional Fixed Rate.......................................................................... 37
Conference Report................................................................................ 151
Consumer Credit Legislation...................................................................... 42, 148
Cooperative...................................................................................... 121
CPR.............................................................................................. 92
Currency Swap Providers.......................................................................... 141
Currency Swaps................................................................................... 141
Cut-Off Date..................................................................................... 15
Cut-Off Date Balance Outstanding................................................................. 21, 54
Cut-Off Date Pool Balance........................................................................ 57
Definitive Note.................................................................................. 120
Definitive Notes................................................................................. 123
Delinquent....................................................................................... 23, 72, 136
Depository....................................................................................... 95
Draw Fee......................................................................................... 110
DTC.............................................................................................. 1, 119
Eligibility Criteria............................................................................. 55
Eligible Servicer................................................................................ 40
ERISA............................................................................................ 154
Euroclear........................................................................................ 1
Euroclear Operator............................................................................... 121
Euroclear Participants........................................................................... 121
European Depositaries............................................................................ 120
Event of Default................................................................................. 125
Excess Available Income.......................................................................... 101
Excess Collections Distribution.................................................................. 101
Exchange Act..................................................................................... 3
Extraordinary Resolution......................................................................... 49
Fair Market Value................................................................................ 25
Finance Charge Collections....................................................................... 97
Finance Charge Loss.............................................................................. 97
Financial Intermediary........................................................................... 120
Financial Services Act........................................................................... 154
Fitch............................................................................................ 27
Fixed Rate....................................................................................... 37
Fixed Rate Housing Loans......................................................................... 57
floating charge.................................................................................. 24
GE............................................................................................... 89
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
PAGE
---------------
<S> <C>
GECA............................................................................................. 89
Government Charges............................................................................... 97
Gross Principal Collections...................................................................... 102
GST.............................................................................................. 45
GST Legislation.................................................................................. 45
HLIC............................................................................................. 19, 85
Holders.......................................................................................... 94
Housing Loan Principal........................................................................... 25, 106
Housing Loans.................................................................................... 2
Initial Invested Amount.......................................................................... 16
Initial Principal Distributions.................................................................. 103
Initial Subordinated Percentage.................................................................. 106
Insolvency Event................................................................................. 111
Interest......................................................................................... 17, 100, 114
Interest Determination Date...................................................................... 16, 94, 100
Interest Period.................................................................................. 16
Interest Rate.................................................................................... 16, 100
Interest Rate Swap Provider...................................................................... 139
Invested Amount.................................................................................. 16, 30
IRS.............................................................................................. 150
ISDA............................................................................................. 17, 100
ISDA Definitions................................................................................. 17, 100
ISDA Master Agreement............................................................................ 24
Issuer Trustee................................................................................... 1, 13, 66
Issuer Trustee Fee............................................................................... 69
Issuer Trustee's Default......................................................................... 69
Liquidation Losses............................................................................... 97
Liquidation Proceeds............................................................................. 97
Liquidity Draw................................................................................... 136
Liquidity Facility Provider...................................................................... 23
Liquidity Limit.................................................................................. 23, 136
Liquidity Shortfall.............................................................................. 136
LMI.............................................................................................. 89
London Stock Exchange............................................................................ 1
Loss Date........................................................................................ 87
LVR.............................................................................................. 19
Margin........................................................................................... 113
Master Trust Deed................................................................................ 13
Maturity Date.................................................................................... 16
MGICA............................................................................................ 20, 86
MIP.............................................................................................. 73, I-1
Moody's.......................................................................................... 27
Morgan........................................................................................... 144
Morgan Guaranty.................................................................................. 141, 144
Mortgage Default................................................................................. 87
Mortgage Insurance Policies...................................................................... 19
Mortgage Insurers................................................................................ 20
Mortgage Pool.................................................................................... 21
Mortgage Pool Insurance Policy................................................................... 19, 86
Mortgage Rates................................................................................... 22
mortgage related securities...................................................................... 26
Mortgage Servicing System........................................................................ 22
</TABLE>
iii
<PAGE>
<TABLE>
<CAPTION>
PAGE
---------------
<S> <C>
Mortgage Shortfall............................................................................... 107
Mortgaged Property............................................................................... 21
Mortgagee in Possession.......................................................................... 73
Mortgagees....................................................................................... 24, 48, 54
Mortgages........................................................................................ 54
MPC.............................................................................................. 72
Net Principal Collections........................................................................ 18, 103
New Regulations.................................................................................. 152
Note Owners...................................................................................... 119
Note Registrar................................................................................... 14
Note Trust Deed.................................................................................. 13, 71
Note Trustee..................................................................................... 13, 71
Noteholder Mortgagees............................................................................ 14
Noteholder's Report.............................................................................. 118
Notes............................................................................................ 15, 94
Notice Date...................................................................................... 119
Notice of Creation of Trust...................................................................... 47
NSW.............................................................................................. 57
NT............................................................................................... 57
OID.............................................................................................. 151
P & I............................................................................................ 85
Paying Agents.................................................................................... 14
Payment Date..................................................................................... 1, 16
Payment Shortfall................................................................................ 22, 98
Performing Loan.................................................................................. 23, 136
Plan Assets Regulation........................................................................... 154
PMI Policy....................................................................................... 19, 90
Prepayment Benefit............................................................................... 98
Prepayment Benefit Shortfall..................................................................... 97
Prepayment Calculation Adjustment................................................................ 103
Prepayment Cost.................................................................................. 97
Prepayment Cost Surplus.......................................................................... 97
Principal Charge Off............................................................................. 107
Principal Collections............................................................................ 103
Principal Draw................................................................................... 23, 98
Principal Loss................................................................................... 98
Principal Outstanding............................................................................ 110
Principal Paying Agent........................................................................... 14
Procedures Manual................................................................................ 130
PTCE............................................................................................. 155
QLD.............................................................................................. 57
Quarter.......................................................................................... 94
Quarterly Percentage............................................................................. 106
Rating Agencies.................................................................................. 27
Record Date...................................................................................... 16
Redraw........................................................................................... 36, 83, 109
Redraw Advance................................................................................... 110
Redraw Facility Agreement........................................................................ 25, 109
Redraw Facility Charge Off....................................................................... 107
Redraw Facility Provider......................................................................... 18, 109
Redraw Funding Securities........................................................................ 15
Redraw Limit..................................................................................... 109
</TABLE>
iv
<PAGE>
<TABLE>
<CAPTION>
PAGE
---------------
<S> <C>
Redraw Shortfall................................................................................. 109
redraws.......................................................................................... 15
Registered....................................................................................... 21, I-1
Registration Statement........................................................................... 5
Related Security................................................................................. 54
Relevant Date.................................................................................... 115
Relevant Depositary.............................................................................. 120
Relevant Document................................................................................ 54
Remaining Liquidity Shortfall.................................................................... 98
Remittance Date.................................................................................. 96
Replacement Currency Swap........................................................................ 143
Representative................................................................................... 50
RFS Charge Off................................................................................... 107
RFS Class A Charge Off........................................................................... 107
RFS Class A Forex Percentage..................................................................... 106
RFS Class A Interest............................................................................. 99
RFS Class A Note................................................................................. 113
RFS Class A Notes................................................................................ 2, 15
RFS Interest..................................................................................... 99
RFS Series....................................................................................... 113
RFSs............................................................................................. 2, 15
Royal & Sun...................................................................................... 20, 86
Rules............................................................................................ 120
SA............................................................................................... 57
Sale Notice...................................................................................... 13
Scheduled Payment................................................................................ 21
Secured Moneys................................................................................... 50, I-1
Securities Act................................................................................... 5
Securitized Portfolios........................................................................... 73
Security Trust Deed.............................................................................. 13
Security Trustee................................................................................. 13, 48
Security Trustee Fee............................................................................. 52
Seller Trustee................................................................................... 13, 47
Serial Method 1 Distribution Test................................................................ 104
Serial Method 2 Distribution Test................................................................ 105
Series Notice.................................................................................... 23
Service.......................................................................................... 150
Servicer......................................................................................... 13, 54
Servicer Transfer Event.......................................................................... 134
Servicer's Security Undertaking.................................................................. 35
Servicing Agreement.............................................................................. 13
Servicing Fee.................................................................................... 133
SMMEA............................................................................................ 26, 155
Specified Levels................................................................................. 143
Standard & Poor's................................................................................ 27
Stated Amount.................................................................................... 17, 30
Strata title..................................................................................... 145, I-1
Subordinated Percentage.......................................................................... 106
Substitution Net Transfer Amount (Income)........................................................ 96
Substitution Net Transfer Amount (Principal)..................................................... 102
Support Facility................................................................................. 24
Swap Agreements.................................................................................. 24
</TABLE>
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<TABLE>
<CAPTION>
PAGE
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<S> <C>
Swap Providers................................................................................... 141
TAS.............................................................................................. 57
Tax Act.......................................................................................... 153
Tax Counsel...................................................................................... 150
Term............................................................................................. 135
Termination Date................................................................................. 112
Terms and Conditions............................................................................. 122
Threshold Rate................................................................................... 37, 140
TIN.............................................................................................. 152
Title Perfection Event........................................................................... 34
TMC.............................................................................................. 13, 72
top up........................................................................................... 36, 84
Torrens title.................................................................................... 145, I-1
Total Available Funds............................................................................ 96
Total Carryover Charge Off....................................................................... 107
Total Initial Invested Amount.................................................................... 107
Total Invested Amount............................................................................ 107
Total Payments................................................................................... 99
Transaction Documents............................................................................ 25, 158
Transfer Agent and Registrar..................................................................... 123
Trust............................................................................................ 1, 13, 23
Trust Accounts................................................................................... 117
Trust Assets..................................................................................... 2
Trust Expenses................................................................................... 100
Trust Manager.................................................................................... 2, 13, 78
Trust Manager Fee................................................................................ 79
Trust Manager's Default.......................................................................... 79
U.S. dollars..................................................................................... 7
Underwriters..................................................................................... 156
Unpaid Balance................................................................................... 23, 25, 116
US$.............................................................................................. 7
US$ Account...................................................................................... 108
US$ Equivalent................................................................................... 99
USD-LIBOR-BBA.................................................................................... 17, 100
USD-LIBOR-Reference Banks........................................................................ 17, 101
Variable Rate Housing Loans...................................................................... 57
VIC.............................................................................................. 57
Voting Mortgagee................................................................................. 127
WA............................................................................................... 57
weighted average life............................................................................ 92
Westpac.......................................................................................... 2, 13, 71
Westpac Group.................................................................................... 47
Withholding Tax Event............................................................................ 26
WLMI............................................................................................. 20, 86
WSML............................................................................................. 78
</TABLE>
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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 the lands office in the
relevant Australian State or Territory, 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
Transaction 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.
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APPENDIX II--TERMS AND CONDITIONS OF THE CLASS A NOTES
TERMS AND CONDITIONS OF THE CLASS A NOTES
THE FOLLOWING, SUBJECT TO AMENDMENTS, ARE THE TERMS AND CONDITIONS OF THE
CLASS A NOTES, SUBSTANTIALLY AS THEY WILL APPEAR ON THE REVERSE OF THE CLASS A
NOTES. CLASS A NOTES IN DEFINITIVE FORM WILL ONLY BE ISSUED IN CERTAIN
CIRCUMSTANCES. WHILE THE CLASS A NOTES REMAIN IN BOOK-ENTRY FORM, THE SAME TERMS
AND CONDITIONS GOVERN THEM, EXCEPT TO THE EXTENT THAT THEY ARE APPROPRIATE ONLY
TO THE CLASS A NOTES IN DEFINITIVE FORM. FOR A SUMMARY OF THE PROVISIONS
RELATING TO THE CLASS A NOTES IN BOOK-ENTRY FORM, SEE THE SUMMARY AT THE END OF
THIS SECTION.
The issue of US$883,900,000 Class A Mortgage Backed Floating Rate Notes due
2030 (the "Class A Notes") of Westpac Securities Administration Limited in its
capacity as trustee of the Series 1999-1G WST Trust (the "Trust"), in such
capacity (the "Issuer Trustee") was authorized by resolutions of the Board of
Directors of the Issuer Trustee passed on March 31, 1999. These Notes, together
with A$33,750,000 Class B Mortgage Backed Floating Rate Notes due 2030 (the
"Class B Notes" and, together with the Class A Notes, the "Notes") of the Issuer
Trustee are (a) issued subject to a Master Trust Deed (the "Master Trust Deed")
dated 14th February 1997 between the Issuer Trustee and The Mortgage Company Pty
Limited, acceded to by Westpac Securitisation Management Pty Limited (the "Trust
Manager"), by a Series Notice (the "Series Notice") dated May 13, 1999 between
(among others) the Issuer Trustee, Citibank, N.A., London office, (the note
trustee for the time being referred to as the "Note Trustee") as trustee for the
holders for the time being of the Class A Notes (the "Class A Noteholders", and
together with the holders for the time being of the Class B Notes (the "Class B
Noteholders"), the "Noteholders") and the Trust Manager, and by these terms and
conditions (the "Class A Conditions"); (b) issued subject to a note trust deed
dated May 13, 1999 (the "Note Trust Deed") between the Issuer Trustee, the Trust
Manager and the Note Trustee; and (c) secured by a Security Trust Deed (the
"Security Trust Deed") dated May 6, 1999 between the Issuer Trustee, the Trust
Manager, the Note Trustee and Perpetual Trustee Company Limited (ACN 000 001
007) (the security trustee for the time being referred to as "Security
Trustee").
The statements set out below include summaries of, and are subject to the
detailed provisions of the Master Trust Deed, the Series Notice, the Security
Trust Deed and the Note Trust Deed. Certain words and expressions used herein
have the meanings defined in those documents. In accordance with an agency
agreement (the "Agency Agreement") dated May 13, 1999 between the Issuer
Trustee, the Trust Manager, the Note Trustee and Citibank, N.A., London office,
as principal paying agent (the "Principal Paying Agent", which expression
includes its successors as principal paying agent under the Agency Agreement)
and as agent bank (the "Agent Bank", which expression includes its successors as
Agent Bank under the Agency Agreement), and under which further paying agents
may be appointed (together with the Principal Paying Agent, the "Paying Agents",
which expression includes the successors of each paying agent as such under the
Agency Agreement and any additional paying agents appointed), payments in
respect of the Class A Notes will be made by the Paying Agents and the Agent
Bank will make the determinations specified in the Agency Agreement. The Class A
Noteholders will be entitled (directly or indirectly) to the benefit of, will be
bound by, and will be deemed to have notice of, all the provisions of the Master
Trust Deed, the Series Notice, the Security Trust Deed, the Note Trust Deed and
the Servicing Agreement as amended (the "Servicing Agreement Amendment
Agreement") dated May 13, 1999 and made between the Issuer Trustee, Westpac
Banking Corporation ("Westpac") and The Mortgage Company Pty Limited as Servicer
(together with any substitute or successor, the "Servicer") (together with the
Currency Swap Agreements (as defined below), those documents the "Relevant
Documents" and, together with certain other transaction documents defined as
such in the Series Notice, the "Transaction Documents"). Copies of the
Transaction Documents are available for inspection at the principal office of
the Principal Paying Agent, being at the date hereof 5 Carmelite Street, London,
EC4Y 0PA.
In connection with the issue of the Class A Notes, the Issuer Trustee has
entered into an ISDA master interest rate and currency exchange agreement dated
May 13, 1999 with Westpac Banking Corporation (in such capacity, the "Interest
Rate Swap Provider") together with three confirmations relating thereto dated
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May 13, 1999 (the "Variable Rate Basis Swap" and the "Fixed Rate Basis Swaps",
respectively and, collectively, the "Interest Rate Swaps"). The Issuer Trustee
has also entered into ISDA master interest rate and currency exchange agreements
dated May 13, 1999 with each of Morgan Guaranty Trust Company of New York,
London Branch, and Westpac Banking Corporation (each, in such capacity, a
"Currency Swap Provider", and together with the Interest Rate Swap Provider, the
"Swap Providers") together with a confirmation relating to each such agreement
dated May 13, 1999 in respect of two distinct swap transactions relating to the
Class A Notes (each, a "Currency Swap", and together the "Currency Swaps").
1. FORM, DENOMINATION AND TITLE
The Class A Notes will be issued in registered form, without interest
coupons, in minimum denominations of US$100,000 and integral multiples thereof.
The Class A Notes will be represented by one or more typewritten fully
registered book-entry notes (each, a "Book-Entry Note" and collectively, the
"Book-Entry Notes") registered in the name of Cede & Co. ("Cede") as nominee of
The Depository Trust Company ("DTC"). Beneficial interests in the Book-Entry
Notes will be shown on, and transfers thereof will be effected only through,
records maintained by DTC and its participants. Morgan Guaranty Trust Company of
New York, Brussels office, as operator of the Euroclear System ("Euroclear") and
Cedelbank, societe anonyme ("Cedelbank"), may hold interests in the Book-Entry
Notes on behalf of persons who have accounts with Euroclear and Cedelbank
through accounts maintained in the names of Euroclear or Cedelbank, or in the
names of their respective depositories, with DTC.
If the Issuer Trustee is obliged to issue Definitive Notes under clause 3.3
of the Note Trust Deed, interests in the applicable Book-Entry Note will be
transferred to the beneficial owners thereof in the form of Definitive Notes,
without interest coupons, in the denominations set forth above. A Definitive
Note will be issued to each Noteholder in respect of its registered holding or
holdings of Class A Notes against delivery by such Noteholders of a written
order containing instructions and such other information as the Issuer Trustee
and Citibank, N.A., London office, acting as note registrar (the "Note
Registrar") may require to complete, execute and deliver such Definitive Notes.
In such circumstances, the Issuer Trustee will cause sufficient Definitive Notes
to be executed and delivered to the Note Registrar for completion,
authentication and dispatch to the relevant Noteholders.
2. STATUS, SECURITY AND RELATIONSHIP BETWEEN THE CLASS A NOTES, THE CLASS B
NOTES, THE RFSS AND THE RFS CLASS A NOTES
The Class A Notes are secured by a first ranking floating charge over all of
the assets of the Trust (which include, among other things, the Loans (as
defined below) and the Mortgages (as defined below) and related securities) (as
more particularly described in the Security Trust Deed) and rank PARI PASSU and
rateably without any preference or priority among themselves.
The Class A Notes are constituted by the Master Trust Deed and the Series
Notice and are secured by the same security as secures the Class B Notes but the
Class A Notes will rank in priority to the Class B Notes in the event of the
security being enforced and in respect of principal and interest (as set out in
Class A Condition 4 and 5).
The proceeds of the issue of the Class A Notes and the Class B Notes are to
be used by the Issuer Trustee to purchase an equitable interest in certain
housing loans (the "Loans") and certain related mortgages (the "Mortgages") from
Westpac or Westpac Securities Administration Limited in its capacity as trustee
of certain other trusts (each a "WST Seller").
In the event that the security for the Class A Notes is enforced and the
proceeds of such enforcement are insufficient, after payment of all other claims
ranking in priority to or PARI PASSU with the Class A Notes under the Security
Trust Deed, to pay in full all principal and interest and other amounts
whatsoever due in respect of the Class A Notes, then the Class A Noteholders
shall have no further claim against the Issuer Trustee in respect of any such
unpaid amounts.
The net proceeds of realisation of the assets of the Trust may be
insufficient to pay all amounts due to the Noteholders. Save in certain limited
circumstances the other assets of the Issuer Trustee will not be
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available for payment of any shortfall arising and all claims in respect of such
shortfall shall be extinguished (see further Class A Condition 15). None of the
Servicer, the Trust Manager, the Seller Trustee, Westpac, the Note Trustee or
the Security Trustee has any obligation to any Noteholder for payment of any
amount by the Issuer Trustee in respect of the Notes.
THE ISSUER TRUSTEE MAY FROM TIME TO TIME ISSUE DEBT SECURITIES ("RFSS")
CONSTITUTED UNDER THE MASTER TRUST DEED AND THE SERIES NOTICE TO FUND AMOUNTS
REDRAWN BY RELEVANT BORROWERS UNDER THE LOANS (UP TO THE SCHEDULED AMORTISED
PRINCIPAL OF THE LOANS) FROM TIME TO TIME ("REDRAWS"). RFSS WILL, ON ISSUE, RANK
PARI PASSU AND PRIOR TO ENFORCEMENT OF THE SECURITY RELATING TO THE RFSS AND THE
CLASS A NOTES RATEABLY WITHOUT ANY PREFERENCE OR PRIORITY WITH THE CLASS A NOTES
IN RELATION TO PAYMENT OF INTEREST, BUT AHEAD OF THE CLASS A NOTES IN RELATION
TO PRINCIPAL. UPON ENFORCEMENT OF THE SECURITY RELATING TO THE RFSS AND THE
CLASS A NOTES, ALL MONEYS OWING TO THE HOLDERS OF THE RFSS AND THE HOLDERS OF
THE CLASS A NOTES WILL (SUBJECT TO AMOUNTS BEING AVAILABLE FOR SUCH PAYMENT) BE
PAID PARI PASSU.
IF, BY THE FIFTH COLLECTION DETERMINATION DATE (AS DEFINED IN CLASS A
CONDITION 5) FOLLOWING THE ISSUE OF AN RFS, THE RFS HAS NOT BEEN REDEEMED, IT
SHALL CONVERT TO AN RFS CLASS A NOTE (EACH, AN "RFS CLASS A NOTE" AND, TOGETHER
THE "RFS CLASS A NOTES"). RFS CLASS A NOTES RANK PARI PASSU AND RATEABLY WITHOUT
PREFERENCE OR PRIORITY WITH CLASS A NOTES IN RELATION TO BOTH INTEREST AND
PRINCIPAL. RFSS AND RFS CLASS A NOTES ARE REGISTERED, AUSTRALIAN-TRADED
INSTRUMENTS DENOMINATED IN AUSTRALIAN DOLLARS ("A$") AND SOLD TO AUSTRALIAN
INVESTORS ONLY AND FOR THE AVOIDANCE OF DOUBT ARE NOT FUNGIBLE WITH THE CLASS A
NOTES.
THE NOTE TRUST DEED CONTAINS PROVISIONS REQUIRING THE NOTE TRUSTEE TO HAVE
REGARD TO THE INTERESTS OF THE CLASS A NOTEHOLDERS AS REGARDS ALL THE POWERS,
TRUSTS, AUTHORITIES, DUTIES AND DISCRETIONS OF THE NOTE TRUSTEE (EXCEPT WHERE
EXPRESSLY PROVIDED OTHERWISE).
THE SECURITY TRUST DEED CONTAINS PROVISIONS REQUIRING THE SECURITY TRUSTEE
TO GIVE PRIORITY TO THE INTERESTS OF THE CLASS A NOTEHOLDERS AND THE HOLDERS OF
RFSS (IF ANY) AND RFS CLASS A NOTES (IF ANY), IF THERE IS A CONFLICT BETWEEN THE
INTERESTS OF SUCH NOTEHOLDERS AND ANY OTHER VOTING MORTGAGEE (AS DEFINED BELOW).
3. COVENANTS OF THE ISSUER TRUSTEE
So long as any of the Class A Notes remains outstanding, the Issuer Trustee
has made certain covenants for the benefit of Class A Noteholders which are set
out in the Master Trust Deed.
These covenants are as follows:
(a) 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.
(b) The Issuer Trustee shall:
(i) act honestly and in good faith in the performance of its duties and
in the exercise of its discretions 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 discretions under the Master Trust
Deed, having regard to the interests of the Class A Noteholders and other
creditors and beneficiaries of the Trust;
(iii) use its best endeavours 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;
(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 authorisations) to ensure that it is
able to exercise all its powers and remedies and perform all its
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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.
(c) 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 asset of the Trust (the "Trust
Assets").
(d) 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.
(e) The Issuer Trustee will open and operate certain bank accounts in
accordance with the Master Trust Deed and the Series Notice.
(f) 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.
(g) The Issuer Trustee shall properly perform the functions which are
necessary for it to perform under all Transaction Documents in respect of the
Trust.
4. INTEREST
(A) PAYMENT DATES
Each Class A Note bears interest on its Invested Amount (as defined below)
from and including 13 May 1999 or such later date as may be agreed between the
Issuer Trustee and the Managers for the issue of the Class A Notes (the "Closing
Date"). Interest in respect of the Class A Notes will be payable quarterly in
arrears on the 19th day falling in August 1999 in respect of the period from
(and including) the Closing Date to (but excluding) that date, and thereafter on
each 19 February, 19 May, 19 August and 19 November (each such date a "Payment
Date" and each such three month period beginning on each of 1 February, 1 May, 1
August and 1 November a "Quarter"). If any Payment Date would otherwise fall on
a day which is not a Business Day (as defined below), it shall be postponed to
the next day which is a Business Day (as defined below) unless it would thereby
fall into the next calendar month in which event it shall be brought forward to
the immediately preceding Business Day.
"Business Day" in this Class A Condition 4 and in Class A Conditions 5 and 9
below means any day (London time) other than a Saturday, Sunday or public
holiday on which banks are open for business in London and New York City.
The period beginning on (and including) the Closing Date and ending on (but
excluding) the first Payment Date and each successive period beginning on (and
including) a Payment Date and ending on (but excluding) the next Payment Date is
called an "Interest Period". Interest payable on a Class A Note in respect of
any Interest Period or any other period will be calculated on the basis of the
actual number of days elapsed and a 360 day year.
Interest shall cease to accrue on any Class A Note from (and including):
(i) the date on which the Stated Amount (as defined in Class A Condition
5(a)) of that Class A Note is reduced to zero; or
(ii) if the Stated Amount on the due date for redemption is not zero,
the due date for redemption of the Class A Note, unless, upon due
presentation, payment of principal due is improperly withheld or refused,
following which interest shall continue to accrue on the Invested
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Amount of the Class A Note at the rate from time to time applicable to the
Class A Notes until the moneys in respect of that Class A Note have been
received by the Note Trustee or the Principal Paying Agent and notice to
that effect is given in accordance with Class A Condition 12, or the Stated
Amount of that Class A Note has been reduced to zero.
(B) INTEREST RATE
The rate of interest applicable from time to time to the Class A Notes (the
"Interest Rate") will be determined by the Agent Bank on the basis of the
following paragraphs.
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 an 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 US 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 the 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 US 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 US 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 Interest Payment Date.
The Interest Rate applicable to the Class A Notes for such Interest Period
shall be the aggregate of (i) such Interest Rate or arithmetic mean as
determined by the Agent Bank and (ii) the margin of % applicable to the
Class A Notes.
There is no maximum or minimum Interest Rate.
(C) DETERMINATION OF INTEREST RATE AND CALCULATION OF INTEREST
The Agent Bank will, as soon as practicable after 11.00 am (London time) on
each Interest Determination Date, determine the Interest Rate applicable to, and
calculate the amount of interest payable (the "Interest") for the immediately
succeeding Interest Period. The Interest is calculated by applying the Interest
Rate for the Class A Notes to the Invested Amount (as defined in Class A
Condition 5(a)) of the Class A Note on the first day of the next Interest
Period, multiplying such product by the actual number of days in the relevant
Interest Period and dividing by 360 and rounding the resultant figure down to
the nearest cent (half a cent being rounded upwards). The determination of the
Interest Rate and the Interest by the Agent Bank shall (in the absence of
manifest error) be final and binding upon all parties.
(D) NOTIFICATION AND PUBLICATION OF INTEREST RATE AND INTEREST
The Agent Bank will cause the Interest Rate and the Interest applicable to
each Class A Note for each Interest Period and the relevant Payment Date to be
notified to the Issuer Trustee, the Trust Manager, the Note Trustee, the Paying
Agents, and, for so long as the Class A Notes are listed on the Official List of
the London Stock Exchange Limited (the "London Stock Exchange"), the London
Stock Exchange, and will cause the same to be published in accordance with Class
A Condition 12 on or as soon as possible after the
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date of commencement of the relevant Interest Period. The Interest and the
relevant Payment Date so published may subsequently be amended (or appropriate
alternative arrangements made by way of adjustment) without notice in the event
of a shortening of the Interest Period.
(E) DETERMINATION OR CALCULATION BY THE NOTE TRUSTEE
If the Agent Bank at any time for any reason does not determine the Interest
Rate or calculate the Interest for a Class A Note, the Note Trustee shall do so
and each such determination or calculation shall be deemed to have been made by
the Agent Bank. In doing so, the Note Trustee shall apply the foregoing
provisions of this Condition, with any necessary consequential amendments, to
the extent that, in its opinion, it can do so, and, in all other respects it
shall do so in such a manner as it shall deem fair and reasonable in all the
circumstances.
(F) AGENT BANK
The Issuer Trustee will procure that, so long as any of the Class A Notes
remains outstanding, there will at all times be an Agent Bank. The Issuer
Trustee reserves the right at any time to terminate the appointment of the Agent
Bank. Notice of that termination will be given to the Class A Noteholders. If
any person is unable or unwilling to continue to act as the Agent Bank, or if
the appointment of the Agent Bank is terminated, the Issuer Trustee will, with
the approval of the Note Trustee, appoint a successor Agent Bank to act as such
in its place, provided that neither the resignation nor removal of the Agent
Bank shall take effect until a successor approved by the Note Trustee has been
appointed.
5. REDEMPTION AND PURCHASE
(A) MANDATORY REDEMPTION IN PART FROM PRINCIPAL COLLECTIONS AND
APPORTIONMENT OF PRINCIPAL COLLECTIONS BETWEEN THE CLASS A NOTES, THE CLASS
B NOTES, THE RFS CLASS A NOTES AND THE RFSS
The Class A Notes shall be subject to mandatory redemption in part on any
Payment Date if on that date there are any Principal Collections (as defined
below) available to be distributed in relation to such Class A Notes. The
principal amount so redeemable in respect of each Class A Note prior to
enforcement of the Security Trust Deed (each a "Principal Payment") on any
Payment Date shall be the amount available for payment as set out in Class A
Condition 5(b) on the day which is four Business Days prior to the Payment Date
(the "Collection Determination Date") preceding that Payment Date multiplied by
the Invested Amount of the applicable Class A Note over the total Invested
Amount of all Class A Notes then outstanding (rounded down to the nearest cent
with half a cent being rounded upwards); provided always that no Principal
Payment on a Class A Note on any date may exceed the amount equal to the
Invested Amount of that Class A Note at that date less amounts charged off as at
that date, or to be charged off on the following Payment Date, as described in
Class A Condition 5(c) (that reduced amount being the "Stated Amount" of that
Class A Note).
The "Invested Amount" of a Class A Note is equal to the Initial Invested
Amount (as defined herein) of such Class A Note less all payments previously
made in respect of principal in respect of such Class A Note. The "Initial
Invested Amount" of a Class A Note is its principal balance at the date of its
issuance.
"Principal Collections" means, in respect of a Collection Period (as defined
below) and as applicable on any Collection Determination Date, the aggregate of:
(i) all amounts received by or on behalf of the Issuer Trustee from or on
behalf of borrowers under the Loans during the Collection Period in respect of
principal, in accordance with the terms of the Loans, including principal
prepayments;
(ii) all other amounts received by or on behalf of the Issuer Trustee under
or in respect of principal under the Loans and the Mortgages during that
Collection Period including:
(A) any amounts recovered in respect of enforcement of Loans and
Mortgages (other than under lender's mortgage insurance), on account of
principal;
(B) any payments by Westpac to the Issuer Trustee on the repurchase of a
Loan under the Master Trust Deed during that Collection Period which are
attributable to principal;
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(C) any payments by Westpac Securities Administration Limited (in its
capacity as trustee of any other trust established under the Master Trust
Deed) (the "WST Purchaser") on the purchase by the WST Purchaser of any
assets of the Trust which are attributable to principal;
(D) any Prepayment Costs (as defined in the Series Notice) applied
towards Prepayment Benefits (as defined in the Series Notice) under the
Series Notice; and
(E) any Prepayment Benefit Shortfall (as defined in the Series Notice)
paid by Westpac to the Trust under the Series Notice;
(iii) all amounts received by or on behalf of the Issuer Trustee during that
Collection Period from any provider of a Support Facility (as defined in the
Series Notice) (other than the Currency Swap) under that Support Facility and
which the Trust Manager determines should be accounted for to reduce any
principal loss on a Loan, being the total amount outstanding under a Loan after
applying all proceeds from the enforcement of the Loan and related Mortgages (a
"Liquidation Loss") to the extent that Liquidation Loss is attributable to
principal;
(iv) all amounts received by or on behalf of the Issuer Trustee during that
Collection Period:
(A) from Westpac or the WST Seller Trustee (each an "Approved Seller")
in respect of any breach of a representation, warranty or undertaking
contained in the Master Trust Deed or the Series Notice;
(B) from an Approved Seller under any obligation under the Master Trust
Deed or the Series Notice to indemnify or reimburse the Issuer Trustee for
any amount;
(C) from the Servicer, in respect of any breach of any representation,
warranty or undertaking contained in the Servicing Agreement; and
(D) from the Servicer under any obligation under the Servicing Agreement
to indemnify or reimburse the Issuer Trustee for any amount,
in each case, which are determined by the Trust Manager to be in respect of
principal payable under the Loans and the Mortgages;
(v) any amounts in the nature of principal received by or on behalf of the
Issuer Trustee during that Collection Period pursuant to the sale of any asset
comprised in the Trust (including any amount received by the Issuer Trustee on
the issue of Notes and which was not used to purchase Loans or Mortgages, and
which the Trust Manager determines is surplus to the requirements of the Trust);
(vi) (for the purposes of clause 6.11 of the Series Notice only) any amount
of Excess Available Income (as defined in the Series Notice) to be applied to
pay a Principal Charge Off or a Carryover Charge Off (as defined in the Series
Notice);
(vii) 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 dated May 13, 1999
between the Issuer Trustee, the Trust Manager and Westpac (the "Redraw
Facility");
(viii) any Excess Available Income to be applied to Principal Draws (as
defined in the Series Notice) made on a previous Payment Date;
(ix) any Prepayment Calculation Adjustment (as defined in the Series Notice)
for that Collection Period;
(x) any Substitution Net Transfer Amount (Principal) (as defined in the
Series Notice) received by the Trust from a WST Purchaser with respect to that
Collection Period;
less any amounts deducted by or paid to Westpac to reimburse Redraws funded by
Westpac for which Westpac has not previously been reimbursed. A premium
receivable by the Issuer Trustee on the entry into a replacement Currency Swap
under clause 6.26 of the Series Notice is not treated as a Principal Collection.
"Collection Period" means, in relation to a Payment Date, the period from
(and including) the tenth day of the Quarter preceding the Quarter in which the
Payment Date occurs to (and including) the ninth
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day of the Quarter in which the Payment Date occurs. The first Collection Period
is the period from (but excluding) March 31, 1999 (the "Cut-Off Date") to (and
including) August 9, 1999. The last Collection Period is the period from (but
excluding) the last day of the previous Collection Period to (and including) the
termination date of the Trust.
(B) INITIAL PRINCIPAL DISTRIBUTIONS
Principal Collections will be distributed as follows on each Payment Date
before any payments in respect of the Notes:
(i) first, to repay any Redraws provided by Westpac in relation to Loans to
the extent that Westpac has not previously been reimbursed in relation to those
Redraws;
(ii) second, to repay all principal outstanding under the Redraw Facility on
that Payment Date;
(iii) third, to allocate to Total Available Funds any Principal Draw (as
defined in the Series Notice); and
(iv) fourth, to repay PARI PASSU and rateably all amounts outstanding under
the RFSs (if any).
(C) PRINCIPAL ALLOCATION METHOD
On each Collection Determination Date, the Trust Manager will determine the
aggregate of the Class B Stated Amounts divided by the sum of (i) the aggregate
of (A) the A$ Equivalent of the Class A Stated Amounts and (B) 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 (the "Subordinated Percentage"). The
Trust Manager will calculate the Subordinated Percentage so as to determine the
appropriate principal distribution methodology to apply for that Collection
Period, as described below.
(D) APPLICABILITY OF SERIAL METHOD 1
If, on any Collection Determination Date:
(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 the third
anniversary of the Closing Date;
(iii) the Total Invested Amount as at that Collection Determination Date as
a percentage of the Total Initial Invested Amount, is greater than or equal to
10%:
(iv) the Average Quarterly Percentage as at that 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 US$ Equivalent 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 US$ Equivalent of
the Class B Initial Invested Amount; and
(v) the US$ Equivalent of the Stated Amounts of all Class B Notes as at that
Collection Determination Date exceeds 0.25% of the sum of (x) the Initial
Invested Amounts of all Class A Notes, (y) the US$ Equivalent of the Initial
Invested Amounts of all Class B Notes and (z) the US$ Equivalent of the Invested
Amounts of all RFS Class A Notes (if any);
then Principal Collections will be allocated serially in accordance with Serial
Method 1 set out in paragraph (e) below.
(E) SERIAL METHOD 1
On any Collection Determination Date, if the Trust Manager determines that
Serial Method 1 should apply, the Issuer Trustee (based on instructions from the
Trust Manager) will pay out of Principal Collections for the relevant Collection
Period which remain after the Initial Principal Distributions, on the
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Payment Date following that Collection Determination Date the following amounts
in the following priority:
(i) first PARI PASSU and rateably between themselves:
(A) as a payment, denominated in A$, to the Currency Swap Providers
under the relevant swap confirmations relating to the Class A Notes of an
amount equal to the lesser of:
(1) the Class A Forex Percentage of the sum of:
(aa) the Class A Percentage of Principal Collections remaining
after all Initial Principal Distributions; and
(bb) 50% of the Class B Percentage of those Principal
Collections; and
(2) the A$ Equivalent of the Class A Stated Amounts for all Class A
Notes; and
(B) 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:
(1) the RFS Class A Forex percentage of the sum of:
(aa) the Class A Percentage of Principal Collections remaining
after all Initial Principal Distributions; and
(bb) 50% of the Class B Percentage of those Principal
Collections; and
(2) the RFS Class A Stated Amounts for all RFS Class A Notes (if
any); and
(ii) second, as a payment, denominated in A$, to the holders of the Class B
Notes of an amount equal to 50% of the Class B Percentage of those Principal
Collections remaining after all Initial Principal Distributions.
(F) APPLICABILITY OF SERIAL METHOD 2
If, on any Collection Determination Date:
(i) the Subordinated Percentage at the previous Collection Determination
Date was greater than or equal to twice the Initial Subordinated Percentage;
(ii) that Collection Determination Date occurs after the third
anniversary of the Closing Date;
(iii) the Total Invested Amount as at that Collection Determination
Date, as a percentage of the Total Initial Invested Amount, is greater than
or equal to 10%;
(iv) the Average Quarterly Percentage as at the Collection Determination
Date:
(A) does not exceed 2% and the Total Carryover Charge Off on that
Collection Determination Date does not exceed 30% of the US$ Equivalent
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 US$ Equivalent
of the Class B Initial Invested Amount; and
(v) the US$ Equivalent of the Stated Amount of the Class B Notes as at
that Collection Determination Date exceeds 0.25% of the sum of (x) the
Initial Invested Amounts of all Class A Notes, (y) the US$ Equivalent of the
Initial Invested Amounts of all Class B Notes and (z) the US$ Equivalent of
the Invested Amounts of all RFS Class A Notes (if any);
then Principal Collections will be allocated serially in accordance with Serial
Method 2 set out in paragraph (g) below.
(G) SERIAL METHOD 2
On any Collection Determination Date, if the Trust Manager determines that
Serial Method 2 shall apply, the Issuer Trustee (based on instructions from the
Trust Manager) will pay out of Principal Collections for the relevant Collection
Period which remain after the Initial Principal Distributions on the
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Payment Date following that Collection Determination Date in the following
amounts in the following priority:
(i) first, PARI PASSU and rateably between themselves:
(A) as a payment, denominated in A$, to the Currency Swap Providers
under the relevant swap confirmations relating to the Class A Notes of an
amount equal to the lesser of:
(1) the Class A Forex Percentage of the Class A Percentage of
Principal Collections remaining after all Initial Principal
Distributions; and
(2) the A$ Equivalent of the Class A Stated Amounts for all Class A
Notes; and
(B) 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:
(1) the RFS Class A Forex Percentage of the Class A Percentage of
those Principal Collections remaining after all Initial Principal
Distributions; and
(2) the RFS Class A Stated Amounts for all RFS Class A Notes (if
any); and
(ii) second as a payment, denominated in A$, to the holders of the Class B
Notes of an amount equal to the Class B Percentage of those Principal
Collections.
(H) SEQUENTIAL METHOD
On any Collection Determination Date, if the Trust Manager determines that
neither Serial Method 1 nor Serial Method 2 (set out in Conditions 5(d) to (g)
above) applies, the Issuer Trustee (based on instructions from the Trust
Manager) will pay out of Principal Collections for the relevant Collection
Period which remain after the Initial Principal Distributions the following
amounts in the following priority:
(i) FIRST PARI PASSU and rateably between themselves:
(A) as a payment, denominated in A$, to the Currency Swap Providers
under the relevant swap confirmations relating to the Class A Notes of an
amount equal to the lesser of:
(1) the Class A Forex Percentage of the amount available for
distribution under this paragraph (i) after all Initial Principal
Distributions; and
(2) the A$ Equivalent of the Class A Stated Amounts for all Class A
Notes; and
(B) as a payment, denominated in A$, to the holders of the RFS Class A
Notes (if any) of an amount equal to the lesser of:
(1) the RFS Class A Forex Percentage of the amount available for
distribution under this paragraph (i) after all Initial Principal
Distributions; and
(2) the RFS Class A Stated Amounts for all RFS Class A Notes (if
any); and
(ii) second, as a payment, denominated in A$, to the holders of the Class B
Notes of an amount equal to the lesser of:
(A) the amount available for distribution under this paragraph (ii)
after the application of paragraph (i); and
(B) the Class B Stated Amounts for all Class B Notes.
(I) GENERAL
No amount of principal will be paid to a Noteholder in excess of the Stated
Amount applicable to the Notes held by that Noteholder.
(J) DISTRIBUTION OF EXCESS AVAILABLE INCOME
On each Collection Determination Date Excess Available Income for the
Collection Period relating to that Collection Determination Date will be applied
in the following order of priority:
(i) to reimburse Principal Charge Offs for that Collection Period;
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(ii) PARI PASSU and rateably between themselves (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):
(A) as a payment to the RFSs (if any) in or towards reinstating the
Stated Amount of the RFSs, to the extent of any Carryover RFS Charge Offs;
(B) as a payment to the RFS Class A Notes (if any) in or towards
reinstating the Stated Amount of the RFS Class A Notes, to the extent of any
Carryover RFS Class A Charge Offs;
(C) as a payment to the Currency Swap Providers under the relevant swap
confirmations relating to the Class A Notes, of the A$ Equivalent of any
Carryover Class A Charge Offs; and
(D) as a repayment under the Redraw Facility Agreement, as a reduction
of, and to the extent of, any Carryover Redraw Charge Offs;
(iii) as a payment, denominated in A$, to the holders of the Class B Notes
of the A$ Equivalent of any Carryover Class B Charge Offs; and
(iv) to all Principal Draws which have not been repaid as at that Payment
Date.
Any amount to be paid pursuant to paragraphs (ii) and (iii) will be paid on
the Payment Date immediately following the Collection Determination Date.
(K) US$ ACCOUNT
The Issuer Trustee shall direct the Currency Swap Providers to pay all
amounts denominated in US$ payable to the Issuer Trustee by the Currency Swap
Providers under the Currency Swaps into the US$ Account or to the Principal
Paying Agent under the Agency Agreement on behalf of the Issuer Trustee. The
Issuer Trustee shall pay all such amounts as follows, and in accordance with the
Note Trust Deed and the Agency Agreement:
(i) under Class A Condition 4, PARI PASSU in relation to the Class A Notes
as payments of Interest on those Class A Notes;
(ii) under Class A Condition 5(j)(ii)(C), PARI PASSU in relation to the
Class A Notes in or towards reinstating the Stated Amount of those Class A
Notes, to the extent of the Carryover Class A Charge Offs; and
(iii) under Class A Condition 5(e)(i)(A), 5(g)(i)(A) and 5(h)(i)(A) PARI
PASSU in relation to the Class A Notes as Class A Principal Payments until the
Class A Stated Amounts have been reduced to zero.
(L) CHARGE OFFS
If the Principal Charge Offs (as defined in the Series Notice) for any
Collection Period exceed the Excess Available Income (as defined in the Series
Notice) calculated on the Collection Determination Date for that Collection
Period, the Trust Manager must, on and with effect from the Payment Date
immediately following the end of the Collection Period:
(i) reduce PARI PASSU the Class B Stated Amount of each of the Class B Notes
by the amount of that excess which is attributable to each Class B Note until
the Class B Stated Amount is zero; and
(ii) if the Class B Stated Amount is zero and any amount of that excess has
not been applied under paragraph (i), reduce PARI PASSU and rateably as between
themselves (based on the Stated Amount of the RFSs (if any), the Principal
Outstanding under the Redraw Facility, the Stated Amount of the RFS Class A
Notes (if any) and the A$ Equivalent of the Stated Amount of the Class A Notes):
(A) the Class A Stated Amount on each of the Class A Notes by the US$
Equivalent of the balance of that excess which is attributable to each Class
A Note until the Class A Stated Amount of that Class A Note is zero;
(B) the RFS Class A Stated Amount on each of the RFS Class A Notes (if
any) by the balance of that excess which is attributable to each RFS Class A
Note until the RFS Class A Stated Amount of that RFS Class A Note is zero;
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(C) the RFS Stated Amount on each of the RFSs (if any) by the balance of
that excess which is attributable to each RFS until the RFS Stated Amount is
zero: and
(D) the principal outstanding under the Redraw Facility by the balance
of that excess until the Principal Outstanding is zero.
(M) CALCULATION OF PRINCIPAL PAYMENTS, STATED AMOUNT AND BOND FACTOR
(i) On each Collection Determination Date, the Trust Manager shall
determine:
(A) the amount of any Principal Payment in respect of each Class A Note
on the Payment Date following that Collection Determination Date;
(B) the Stated Amount and Invested Amount of each Class A Note as of the
first day of the next following Interest Period (after deducting any
Principal Payment due to be made in respect of each Class A Note on the next
Payment Date); and
(C) the fraction in respect of each Class A Note expressed as a decimal
to the seventh point (the "Bond Factor" of which the numerator is the
aggregate of the Invested Amount of all Class A Notes at that date less all
Principal Payments to be made on the following Payment Date, and the
denominator is the Initial Invested Amount of the Class A Notes.
(ii) The Trust Manager will notify the Note Trustee, the Principal Paying
Agent, the Agent Bank and (for so long as the Class A Notes are listed on the
London Stock Exchange) the London Stock Exchange by not later than the
Collection Determination Date immediately preceding the relevant Payment Date of
each determination of a Principal Payment, Invested Amount, Stated Amount and
Bond Factor and will immediately cause details of each of those determinations
to be published in accordance with Condition 12. If no Principal Payment is due
to be made on the Class A Notes on any Payment Date a notice to this effect will
be given to the Class A Noteholders in accordance with Class A Condition 12.
(iii) If the Trust Manager does not at any time for any reason determine a
Principal Payment, the Invested Amount, the Stated Amount or the Bond Factor
applicable to Class A Notes in accordance with this paragraph, the Principal
Payment, Invested Amount, the Stated Amount and the Bond Factor shall be
determined by the Note Trustee in accordance with this paragraph and paragraph
(i) above (but based on the information in its possession) and each such
determination or calculation shall be deemed to have been made by the Trust
Manager.
(iv) The Trust Manager will deliver to the Principal Paying Agent a
quarterly servicing report as set forth in clause 11 of the Note Trust Deed.
(N) REDEMPTION FOR TAXATION OR OTHER REASONS
If the Trust Manager satisfies the Issuer Trustee and the Note Trustee
immediately prior to giving the notice referred to below that either (i) on the
next Payment Date the Issuer Trustee would be required to deduct or withhold
from any payment of principal or interest (or corresponding A$ payment under a
Currency Swap) in respect of the Class A Notes any amount for or on account of
any present or future taxes, duties, assessments or governmental charges of
whatever nature imposed, levied, collected, withheld or assessed by the
Commonwealth of Australia or any of its political sub-divisions or any of its
authorities or (ii) the total amount payable in respect of interest in relation
to the Loans for a Collection Period ceases to be receivable (whether or not
actually received) by the Issuer Trustee during such Collection Period by reason
of any present or future taxes, duties, assessments or governmental charges of
whatever nature imposed, levied, collected, withheld or assessed by the
Commonwealth of Australia or any of its political sub-divisions or any of its
authorities, the Issuer Trustee must, when so directed by the Trust Manager (at
any time at the Trust Manager's option) (provided that the Issuer Trustee will
be in a position on such Payment Date to discharge (and will so certify to the
Issuer Trustee and Note Trustee) all its liabilities in respect of the Class A
Notes and any amounts required under the Security Trust Deed to be paid in
priority to or PARI PASSU with the Class A Notes), upon having given not more
than 60 nor less than 30 days' notice to the Class A Noteholders in accordance
with Class A Condition 12 redeem all, but not some only, of the Class A Notes at
their Invested Amount (or at the option of the holders of 75% of the aggregate
Invested
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Amount of Class A Notes at the time, at their Stated Amount), together with
accrued interest to the date of redemption on any subsequent Payment Date,
provided that the holders of 75% of the aggregate Invested Amount of Class A
Notes at the time may elect, and shall notify the Issuer Trustee and the Trust
Manager, that they do not require the Issuer Trustee to redeem the Class A Notes
in the circumstances described above.
(O) OPTIONAL REDEMPTION IN WHOLE
On any Payment Date, and upon giving no more than 60 nor less than 30 days'
notice to the Note Trustee and the Security Trustee, on which the aggregate
principal outstanding of the Loans is less than 10% of the aggregate principal
outstanding of the Loans at the Cut-Off Date, the Issuer Trustee may redeem all
(but not some only) of the Class A Notes at their Stated Amount.
(P) REDEMPTION ON MATURITY
If not otherwise redeemed, the Class A Notes will be redeemed at their
Stated Amount on the Payment Date falling in May, 2030.
(Q) CANCELLATION
All Class A Notes redeemed in full pursuant to the foregoing provisions will
be cancelled forthwith, and may not be resold or reissued.
(R) CERTIFICATION
For the purposes of any redemption made pursuant to this Condition 5 the
Note Trustee may rely upon an officer's certificate under the Note Trust Deed
from the Trust Manager on behalf of the Issuer Trustee certifying or stating the
opinion of each person signing such certificate as:
(i) to the fair value (within 90 days of such release) of the property or
securities proposed to be released from the Security Trust Deed;
(ii) that in the opinion of such person the proposed release will not impair
the security under the Security Trust Deed in contravention of the provisions of
the Security Trust Deed or the Note Trust Deed; and
(iii) that the Issuer Trustee will be in a position to discharge all its
liabilities in respect of the relevant Class A Notes and any amounts required
under the Security Trust Deed to be paid in priority to or PARI PASSU with those
Class A Notes,
and such officer's certificate shall be conclusive and binding on the Issuer
Trustee, the Note Trustee and the holders of those Class A Notes.
(S) PURCHASES
The Issuer Trustee may not purchase any Class A Notes at any time.
6. PAYMENTS
(A) METHOD OF PAYMENT
Any instalment of interest or principal, payable on any Class A Note which
is punctually paid or duly provided for by the Issuer Trustee to the Principal
Paying Agent on the applicable Payment Date or Maturity Date shall be paid to
the person in whose name such Class A Note is registered on the Record Date, by
cheque mailed first-class, postage prepaid, to such person's address as it
appears on the Note Register on such Record Date, except that, unless Definitive
Notes have been issued pursuant to clause 3.3 of the Note Trust Deed, with
respect to Class A Notes registered on the Record Date in the name of the
nominee of DTC (initially, such nominee to be Cede & Co.), payment will be made
by wire transfer in immediately available funds to the account designated by
such nominee and except for the final instalment of principal payable with
respect to such Class A Note on a Payment Date or Maturity Date.
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(B) INITIAL PRINCIPAL PAYING AGENT
The initial Principal Paying Agent is Citibank, N.A., London office, at its
office, at 5 Carmelite Street, London, EC4Y 0PA, England.
(C) PAYING AGENTS
The Issuer Trustee (or the Trust Manager on its behalf after advising the
Issuer Trustee thereof) may at any time (with the previous written approval of
the Note Trustee) vary or terminate the appointment of any Paying Agent and
appoint additional or other Paying Agents, provided that it will at all times
maintain a Paying Agent having a specified office in London and in New York
City. Notice of any such termination or appointment and of any change in the
office through which any Paying Agent will act will be given in accordance with
Class A Condition 12.
(D) DUE DATE FOR REDEMPTION
If the due date for redemption in full of a Class A Note is not a Payment
Date, the interest accrued in respect of the period from the preceding Payment
Date (or from the Closing Date as the case may be) shall be payable only against
presentation or surrender of the relevant Class A Note.
(E) PAYMENTS ON BUSINESS DAYS
If the due date for payment of any amount of principal or Interest in
respect of any Class A Note is not a Business Day then payment will not be made
until the next succeeding Business Day and the holder thereof shall not be
entitled to any further interest or other payment in respect of that delay. In
this Condition 6 the expression "Business Day" means any day (other than a
Saturday, Sunday or a public holiday) on which banks are open for business in
the place where the specified office of the Paying Agent is situated and, in the
case of payment by transfer to a US dollar account, in New York City and prior
to any exchange of the Book-Entry Note (in respect of the Class A Notes) for any
definitive Class A Notes, on which DTC is open for business.
(F) INTEREST
If Interest is not paid in respect of a Class A Note on the date when due
and payable (other than because the due date is not a Business Day), that unpaid
Interest shall itself bear interest at the Interest Rate applicable from time to
time to the Class A Notes until the unpaid interest, and interest on it, is
available for payment and notice of that availability has been duly given in
accordance with Class A Condition 12.
7. TAXATION
All payments in respect of the Class A Notes will be made without
withholding or deduction for, or on account of, any present or future taxes,
duties or charges of whatsoever nature unless the Issuer Trustee or any Paying
Agent is required by applicable law to make any such payment in respect of the
Class A Notes subject to any withholding or deduction for, or on account of, any
present or future taxes, duties or charges of whatsoever nature. In that event
the Issuer Trustee or that Paying Agent (as the case may be) shall make such
payment after such withholding or deduction has been made and shall account to
the relevant authorities for the amount so required to be withheld or deducted.
Neither the Issuer Trustee nor any Paying Agent will be obliged to make any
additional payments to Class A Noteholders in respect of that withholding or
deduction.
8. PRESCRIPTION
A Class A 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 that Class A Note to
zero. After the date on which a Class A Note becomes void in its entirety, no
claim may be made in respect of it.
As used in these Conditions, 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 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 Class A
Condition 12.
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9. EVENTS OF DEFAULT
Each of the following is an "Event of Default":
(a) the Issuer Trustee fails to pay:
(i) 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
or holders of RFSs or holders of RFS Class A Notes, or
(ii) any other amount owing to Class A Noteholders, Class B Noteholders
or holders of RFSs or 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
Mortgagee or where the Mortgagee is a Noteholder, with the Note Trustee).
(b) the Issuer Trustee fails to perform or observe any other provisions
(other than an obligation referred to in paragraph (a)) of a Transaction
Document (other than the Underwriting Agreement) where such failure will have a
material and adverse affect 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 to the approval of the Class B Noteholders and the
Note Trustee on behalf of the Class A Noteholders (together, the "Noteholder
Mortgagees") 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 Noteholder Mortgagees,
for so long as amounts outstanding under the Class A Notes and the Class B Notes
are 75% of the Secured Money) after written notice from the Security Trustee
requiring the failure to be remedied.
(c) any of the following occurs in relation to the Issuer Trustee (in its
personal capacity or as Trustee of the Trust):
(i) an administrator of the Issuer Trustee is appointed; or
(ii) except for the purpose of a solvent reconstruction or amalgamation:
(A) 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:
(1) the winding up, dissolution or administration of the Issuer
Trustee; or
(2) the Issuer Trustee entering into an arrangement, compromise
or composition with or assignment for the benefit of its creditors or
a class of them; or
(B) the Issuer Trustee 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
(iii) the Issuer Trustee 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,
where this occurs in relation to another trust of which it is the trustee);
or
(iv) a receiver, receiver and manager or administrator is appointed (by
the Issuer Trustee or by any other person) to all or substantially all of
the assets and undertaking of the Issuer Trustee 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
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(v) anything analogous to an event referred to in paragraphs (i) to (iv)
(inclusive) or having substantially similar effect, occurs with respect to
the Issuer Trustee;
(d) 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;
(e) any security interest over the Trust Assets is enforced;
(f) all or any part of any Transaction Document, other than the Redraw
Facility or the Basis Swap (each as defined in the Series Notice), 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 Redraw Facility or the Basis Swap);
or
(g) without the prior consent of the Security Trustee (that consent, in
accordance with the provisions of the Security Trust Deed, being subject to the
prior written consent of the Noteholder Mortgagees 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.
In the event that the security constituted by the Security Trust Deed
becomes enforceable following an event of default under the Notes any funds
resulting from the realization of such security shall be applied in accordance
with the order of priority of payments as stated in the Security Trust Deed.
10. ENFORCEMENT
(a) At any time after an Event of Default occurs, the Security Trustee may,
with the prior written consent of the Noteholder Mortgagees in accordance with
the provisions of the Security Trust Deed and shall, if so directed by (a) the
Noteholder Mortgagees alone, where the Noteholder Mortgagees are the only Voting
Mortgagees, or otherwise (b) an Extraordinary Resolution (being 75% of votes
capable of being cast by Voting Mortgagees present or in person or by proxy of
the relevant meeting or a written resolution signed by all Voting Mortgagees) of
the Voting Mortgagees (which includes the Note Trustee on behalf of the Class A
Noteholders, but not the Class A Noteholders themselves), declare the Class A
Notes immediately due and payable and enforce the Security Trust Deed. If an
Extraordinary Resolution of Voting Mortgagees referred to in sub-paragraph (b)
above elects not to direct the Security Trustee to enforce the Security Trust
Deed, in circumstances where the Security Trustee could enforce, the Noteholder
Mortgagees may nonetheless, and the Note Trustee as a Noteholder Mortgagee,
shall at the direction of the Class A Noteholders, direct the Security Trustee
to enforce the Security Trust Deed on behalf of the Noteholders.
"Voting Mortgagee" means:
(a) 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 and the Noteholder Mortgagees; and
(b) at any other time:
(i) the Note Trustee, acting on behalf of the Class A Noteholders under
the Note Trust Deed and the Security Trust Deed: and
(ii) each other Mortgagee under the Security Trust Deed (other than the
Class A Noteholders).
II-16
<PAGE>
Any reference to the Noteholder Mortgagees while they are the only Voting
Mortgagees or where their consent is required under the Security Trust Deed in
relation to a direction or act of the Security Trustee, means Noteholder
Mortgagees representing more than 50% of the aggregate Invested Amount of the
Class A Notes and the Class B Notes.
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 Noteholder Mortgagees where they are the only Voting Mortgagees 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 Class A 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 chargees except as provided in the Security Trust Deed.
(b) 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 realised 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).
(c) Neither the Note Trustee nor the Security Trustee will be liable for any
decline in the value, nor any loss realised 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 Trustee or any third party in
respect of the Issuer Trustee or the Class A 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.
(d) 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 by Noteholders holding
at least 75% of the aggregate Invested Amount of Class A Notes at the time; 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.
(e) 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 these Class A Conditions).
II-17
<PAGE>
(f) The rights, remedies and discretions 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 (as defined in the Master Trust Deed) and payable
to the Liquidity Facility Provider (as defined in the Master Trust Deed) and the
proceeds of cash collateral lodged with and payable to a Swap Provider or other
provider of a Support Facility (as defined in the Master Trust Deed)) will be
applied in the order of priority as set out in the Security Trust Deed. Any
claims of Noteholders remaining after realization of the security and
application of the proceeds as aforesaid shall, except in certain limited
circumstances, be extinguished.
11. REPLACEMENTS OF CLASS A NOTES
If any Class A Note is lost, stolen, mutilated, defaced or destroyed, it may
be replaced at the specified office of the Principal Paying Agent upon payment
by the claimant of the expenses incurred in connection with that replacement and
on such terms as to evidence and indemnity as the Issuer Trustee may reasonably
require. Mutilated or defaced Class A Notes must be surrendered before
replacements will be issued.
12. NOTICES
All notices, other than notices given in accordance with the following
paragraph, to Class A Noteholders shall be deemed given if in writing and
mailed, first-class, postage prepaid to each Class A Noteholder, at his or her
address as it appears on the Note Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Class A Noteholders is given by mail, neither the
failure to mail such notice nor any defect in any notice so mailed to any
particular Class A Noteholder shall affect the sufficiency of such notice with
respect to other Class A Noteholders, and any notice that is mailed in the
manner herein provided shall conclusively be presumed to have been duly given.
A notice may be waived in writing by the relevant Class A Noteholder, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Class A Noteholders shall be filed with the Note
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
Any such notice shall be deemed to have been given on the date such notice
is deposited in the mail.
In case, by reason of the suspension of regular mail services as a result of
a strike, work stoppage or similar activity, it shall be impractical to mail
notice of any event to Class A Noteholders when such notice is required to be
given, then any manner of giving such notice as the Trustee shall direct the
Note Trustee shall be deemed to be a sufficient giving of such notice.
Any notice specifying a Payment Date, an Interest Rate, Interest payable, a
Principal Payment (or the absence of a Principal Payment), an Invested Amount, a
Stated Amount or a Bond Factor shall be deemed
II-18
<PAGE>
to have been duly given if the information contained in such notice appears on
the relevant page of the Reuters Screen or such other similar electronic
reporting service as may be approved by the Note Trustee and notified to Class A
Noteholders (the "Relevant Screen"). Any such notice shall be deemed to have
been given on the first date on which such information appeared on the Relevant
Screen. If it is impossible or impracticable to give notice in accordance with
this paragraph then notice of the matters referred to in this Condition shall be
given in accordance with the preceding paragraph.
The Principal Paying Agent shall deliver a quarterly servicing report for
each Collection Period to each Class A Noteholder on the Notice date relating to
such Collection Period in the method provided in the first paragraph of this
Condition 12.
13. MEETINGS OF VOTING MORTGAGEES AND VOTES OF CLASS A 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 Noteholder Mortgagees' consent, if 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 Trust Deed contains provisions for the Class A Noteholders to
consider any matter affecting their interests. In general, the holders of a
majority of the aggregate Invested Amount of the Class A Notes may take or
consent to any action permitted to be taken by Class A Noteholders under the
Note Trust Deed. Notwithstanding the foregoing, the consent of holders of 75% of
the aggregate Invested Amount of the Class A Notes shall be required to (i)
direct the Note Trustee to direct the Security Trustee to enforce the security
under the Note Trust Deed, (ii) override any waiver by the Note Trustee of a
breach of any provisions of the Transaction Documents or an Event of Default,
(iii) alter, add, or modify the terms and conditions of the Class A Notes or the
provisions of any of the Transaction Documents if such alteration, addition or
modification is, in the opinion of the Note Trustee, materially prejudicial or
likely to be materially prejudicial to the Class A Noteholders as a whole or the
Class A Noteholders, which shall include any modification to 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
percentage of the aggregate Invested Amount required to consent to any action 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"). Any action taken by the
requisite percentage of the Invested Amount of the Class A Noteholders shall be
binding on all Class A Noteholders (both present and future).
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
authorisation of any breach or proposed breach of the Class A Notes (including
these 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 these
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
II-19
<PAGE>
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, authorisation 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 A Noteholders in accordance with
Class A Condition 12 as soon as practicable thereafter.
14. INDEMNIFICATION AND EXONERATION OF THE NOTE TRUSTEE AND THE SECURITY TRUSTEE
The Note Trust Deed contains provisions for the indemnification of the Note
Trustee and for its relief from responsibility, including provisions relieving
it from taking proceedings to realise the security and to obtain repayment of
the Class A Notes unless indemnified to its satisfaction. Each of the Note
Trustee and the Security Trustee is entitled to enter into business transactions
with the Issuer Trustee and/or any other party to the Relevant Documents without
accounting for any profit resulting from such transactions. Neither the Security
Trustee nor the Note Trustee will be responsible for 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 operators or by any person on behalf of the Note Trustee.
The Security Trust Deed contains provisions for the indemnification of the
Security Trustee by the Issuer Trustee and for its relief from responsibility,
including provisions relieving it from taking any action in relation to the
enforcement of the Security Trust Deed unless it is indemnified to its
satisfaction. The Security Trustee has no liability under the Security Trust
Deed, any other Transaction Document, any Note, the Notice of Creation of Trust
or any Mortage Insurance Policy other than to the extent to which the liability
is able to be satisfied out of the property held by it on trust under the
Security Trust Deed and it is actually indemnified for the liability, except to
the extent to which it is not satisfied because there is a reduction in the
extent of the Security Trustee's indemnification as a result of its fraud,
negligence or willful default.
15. LIMITATION OF LIABILITY OF THE ISSUER TRUSTEE
(A) GENERAL
Clause 33 of the Master Trust Deed applies to the obligations and
liabilities of the Issuer Trustee in relation to this Class A Note.
(B) LIABILITY OF TRUSTEE LIMITED TO ITS RIGHT OF INDEMNITY
(i) This Class A Note applies to the Issuer Trustee only in its capacity as
trustee of the Trust and in no other capacity. A liability arising under or in
connection with this Class A Note or the Trust 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 this Class A Note or any other Transaction Document 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 this Class A Note or the Trust.
(ii) None of the Note Trustee or the Class A Noteholders may take action
against the Issuer Trustee in any capacity other than as trustee of the Trust or
seek the appointment of a receiver (except under the Security Trust Deed), or a
liquidator, an administrator or any similar person to the Issuer Trustee or
prove in any liquidation, administration or arrangements of or affecting the
Issuer Trustee.
(iii) The provisions of this Condition 15 shall not apply to any obligation
or liability of the Issuer Trustee to the extent that it is not satisfied
because under a Transaction Document or by operation of law
II-20
<PAGE>
there is a reduction in the extent of the Issuer Trustee's indemnification out
of the Trust Assets as a result of the Issuer Trustee's fraud, negligence or
breach of trust.
(iv) It is acknowledged that the Trust Manager, the Servicer, each Paying
Agent, the Agent Bank and the Note Trustee (each a "Relevant Party") are
responsible under the Transaction Documents for performing a variety of
obligations relating to the Trust. No act or omission of the Issuer Trustee
(including any related failure to satisfy its obligations under this Class A
Note or a Transaction Document) will be considered fraud, negligence or breach
of trust of the Issuer Trustee for the purpose of sub-paragraph (iii) of this
Condition 15 to the extent to which the act or omission was caused or
contributed to by any failure by any Relevant Party or any other person who
provides services in respect of the Trust (other than a person who has been
delegated or appointed by the Issuer Trustee and for whom the Issuer Trustee is
responsible under the Transaction Documents, other than a Relevant Party) to
fulfil its obligations relating to the Trust or by any other act or omission of
a Relevant Party or any other person who provides services in respect of the
Trust (other than a person who has been delegated or appointed by the Issuer
Trustee and for whom the Issuer Trustee is responsible under the Transaction
Documents, other than a Relevant Party).
(v) No attorney, agent, receiver or receiver and manager appointed in
accordance with a Transaction Document (including without limitation a Relevant
Party) has authority to act on behalf of the Issuer Trustee in a way which
exposes the Issuer 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
Issuer Trustee for the purpose of sub-paragraph (iii), if the Issuer Trustee has
exercised reasonable care in the selection and supervision of such a person.
16. GOVERNING LAW
The Class A Notes and the Relevant Documents (other than the Currency Swap
with Morgan Guaranty Trust Company of New York, London branch, which is governed
by the laws of New York) are governed by, and shall be construed in accordance
with, the laws of New South Wales, Australia.
SUMMARY OF PROVISIONS RELATING TO THE CLASS A NOTES WHILE IN BOOK ENTRY FORM
The Class A Notes will initially be represented by typewritten book-entry
notes (the Book-Entry Class A Notes"), without coupons, in the principal amount
of US$883,900,000. The Book-Entry Class A Notes will be deposited with the
Common Depositary for DTC on or about the Closing Date. Upon deposit of the
Book-Entry Class A Notes with the Common Depositary, DTC will credit each
investor in the Class A Notes with a principal amount of Class A Notes for which
it has subscribed and paid.
The Book-Entry Class A Note will be exchangeable for definitive Class A
Notes in certain circumstances described below.
Each person who is shown in the Note Register as the holder of a particular
principal amount of Class A Notes will be entitled to be treated by the Issuer
Trustee and the Note Trustee as a holder of such principal amount of Class A
Notes and the expression "Class A Noteholder" shall be construed accordingly,
but without prejudice to the entitlement of the holder of the Book-Entry Class A
Note to be paid principal and interest thereon in accordance with its terms.
Such persons shall have no claim directly against the Issuer Trustee in respect
of payment due on the Class A Notes for so long as the Class A Notes are
represented by a Book-Entry Class A Note and the relevant obligations of the
Issuer Trustee will be discharged by payment to the registered holder of the
Book-Entry Class A Note in respect of each amount so paid.
(A) PAYMENTS
Interest and principal on each Book-Entry Class A Note will be payable by
the Principal Paying Agent to the Common Depositary provided that no payment of
interest may be made by the Issuer Trustee or any
II-21
<PAGE>
Paying Agent in the Commonwealth of Australia or its possessions or into a bank
account or to an address in the Commonwealth of Australia or its possessions.
Each of the persons appearing from time to time as the beneficial owner of a
Class A Note will be entitled to receive any payment so made in respect of that
Class A Note in accordance with the respective rules and procedures of DTC. Such
persons will have no claim directly against the Issuer Trustee in respect of
payments due on the Class A Notes which must be made by the holder of the
relevant Book-Entry Class A Note, for so long as such Book-Entry Class A Note is
outstanding.
A record of each payment made on a Book-Entry Class A Note, distinguishing
between any payment of principal and any payment of interest, will be recorded
in the Note Register by the Principal Paying Agent and such record shall be
prima facie evidence that the payment in question has been made.
(B) EXCHANGE
The Book-Entry Class A Note will be exchangeable for definitive Class A
Notes only if:
(a) the Trust Manager advises the Principal Paying Agent in writing that
the Clearing Agency is no longer willing or able properly to discharge its
responsibilities with respect to the Class A Notes or the Clearing Agency
ceases to carry on business, and the Trust Manager is unable to located a
qualified successor;
(b) the Issuer Trustee, at the direction of the Trust Manager (at the
Trust Manager's option) advises the Principal Paying Agent in writing that
the book entry system through the Clearing Agency is or is to be terminated;
or
(c) after the occurrence of an Event, of Default the Class A Note
Owner's representing beneficial interests aggregating to at least a majority
of the aggregate Invested Amount of the Class A Notes advise the Principal
Paying Agent and Issuer Trustee through the Clearing Agency in writing that
the continuation of a book entry system through the Clearing Agency is no
longer in the best interest of the Note Owners,
then the Principal Paying Agent shall notify all Class A Note Owners and the
Issuer Trustee of the occurrence of any such event and of the availability of
Definitive Notes to Class A Note Owners requesting the same. Upon the surrender
of the Book-Entry Notes to the Issuer Trustee by the Clearing Agency, and the
delivery by the Clearing Agency of the relevant registration instructions to the
Issuer Trustee, the Issuer Trustee shall execute and procure the Principal
Paying Agent to authenticate the Definitive Notes in accordance with the
instructions of the Clearing Agency.
(C) NOTICES
So long as the Notes are represented by the Book-Entry Class A Note and the
same is/are held on behalf of the Clearing Agency, notices to Class A
Noteholders may be given by delivery of the relevant notice to the Clearing
Agency for communication by them to entitled account holders in substitution for
delivery to each Class A Noteholder as required by the Class A Conditions.
(D) CANCELLATION
Cancellation of any Class A Note required by the Class A Conditions will be
effected by reduction in the principal amount of the relevant Book-Entry Class A
Note.
II-22
<PAGE>
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NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR SOLICITATION OF AN OFFER TO
BUY ANY SECURITIES OTHER THAN THE CLASS A NOTES OFFERED HEREBY, NOR AN OFFER OF
THE CLASS A NOTES IN ANY STATE OR JURISDICTION IN WHICH, OR TO ANY PERSON TO
WHOM, SUCH OFFER WOULD BE UNLAWFUL. THE DELIVERY OF THIS PROSPECTUS AT ANY TIME
DOES NOT IMPLY THAT INFORMATION HEREIN OR THEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO ITS DATE; HOWEVER, IF ANY MATERIAL CHANGE OCCURS WHILE THE
PROSPECTUS IS REQUIRED BY LAW TO BE DELIVERED, THE PROSPECTUS WILL BE AMENDED OR
SUPPLEMENTED ACCORDINGLY.
------------------------
TABLE OF CONTENTS
PROSPECTUS
<TABLE>
<CAPTION>
PAGE
---------
<S> <C>
Summary of Terms................................ 13
Structural Chart................................ 28
Cash Flow Summary............................... 29
Cash Flow Chart................................. 32
Noteholder Principal Distributions.............. 33
Risk Factors.................................... 34
Formation of the Trust.......................... 47
Security for the Notes.......................... 48
The Trust Fund.................................. 54
The Issuer Trustee.............................. 66
The Note Trustee................................ 71
Originator of the Housing Loans................. 71
The Servicer.................................... 72
The Trust Manager............................... 78
Westpac Residential Loan Program................ 80
The Mortgage Insurance Policies................. 85
Prepayment and Yield Considerations............. 91
Description of the Class A Notes................ 94
Description of the Servicing Agreement.......... 130
The Liquidity Facility.......................... 135
Description of the Swap Agreements.............. 139
Currency Swap Providers......................... 144
Certain Legal Aspects of the Housing Loans...... 144
Use of Proceeds................................. 150
United States Federal Income Tax Consequences... 150
Australian Tax Matters.......................... 153
ERISA Considerations............................ 154
Ratings of the Notes............................ 155
Legal Investment Considerations................. 155
Underwriting.................................... 156
Listing and General Information................. 158
Legal Matters................................... 159
Index of Defined Terms.......................... i
Appendix I--Glossary of Australian Legal
Terms.......................................... I-1
Appendix II--Terms and Conditions of the Class A
Notes.......................................... II-1
</TABLE>
US$833,900,000
[LOGO]
IN ITS CAPACITY AS ISSUER TRUSTEE OF THE
SERIES 1999-1G WST TRUST
US$883,900,000 CLASS A MORTGAGE
BACKED FLOATING RATE NOTES DUE 2030
---------------------
PROSPECTUS
---------------------
J.P. MORGAN & CO.
MORGAN STANLEY DEAN WITTER
WESTPAC BANKING CORPORATION
DEUTSCHE BANK SECURITIES
WARBURG DILLON READ
MERRILL LYNCH & CO.
SALOMON SMITH BARNEY
NOMURA INTERNATIONAL PLC
MAY , 1999
- -------------------------------------------
-------------------------------------------
- -------------------------------------------
-------------------------------------------
<PAGE>
[Alternate Market Making Cover]
PROSPECTUS
US$883,900,000
[LOGO]
(ACN 000 049 472)
IN ITS CAPACITY AS TRUSTEE OF THE
SERIES 1999-1G WST TRUST
US$883,900,000 CLASS A MORTGAGE BACKED FLOATING RATE NOTES DUE MAY 19, 2030
Interest on the Class A Mortgage Backed Floating Rate Notes (the "Class A
Notes") offered hereby and issued by Westpac Securities Administration Limited
solely in its capacity as issuer trustee of the Series 1999-1G WST Trust (the
"Trust") (the "Issuer Trustee") will be payable quarterly on the 19th day of
each of February, May, August and November (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 August 19, 1999 (each, a "Payment Date"). The principal of the Class
A Notes will be payable on the maturity date indicated above, subject to earlier
redemption in whole or in part as described herein. Only the Class A Notes are
offered hereby.
The Issuer Trustee will also issue Class B Mortgage Backed Floating Rate
Notes (the "Class B Notes") with an aggregate face value of A$33,750,000 at the
same time as it issues the Class A Notes. The Class A Notes will be senior in
priority of distribution of principal and interest to the Class B Notes. Under
certain limited circumstances, the Issuer Trustee may issue certain additional
securities, the RFSs, which in certain circumstances will convert to RFS Class A
Notes. The RFSs will be senior in priority of distributions of principal to the
Class A Notes and the RFS Class A Notes (except with respect to enforcement, in
which case such classes will be PARI PASSU) and senior in priority of
distributions of principal and interest to the Class B 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 and senior in priority of distributions of
principal and interest to the Class B Notes. The Class B Notes, RFSs and RFS
Class A Notes are not offered hereby. See "SUMMARY OF TERMS--Class B Notes" and
"--Redraws, RFSs and RFS Class A Notes."
PROSPECTIVE INVESTORS IN THE NOTES SHOULD REVIEW THE INFORMATION SET FORTH
UNDER "RISK FACTORS" BEGINNING ON PAGE 34 HEREIN.
THE CLASS A 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 CLASS A
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>
PROCEEDS TO ISSUER
PRICE TO PUBLIC UNDERWRITING FEES TRUSTEE(1)
<S> <C> <C> <C>
Class A Notes.......................... % (2) %
</TABLE>
(1) Expenses, estimated to be US$900,561.20, were paid by Westpac Banking
Corporation.
(2) Westpac Banking Corporation paid fees to the Underwriters equal to 0.15% of
the Initial Invested Amount of the Class A Notes.
(3) The total underwriting fees paid to the Underwriters are equal to $ .
The Class A Notes have been admitted to the Official List of the London
Stock Exchange Limited (the "London Stock Exchange"). Copies of this Prospectus
(which includes Appendices I and II), which comprise Listing Particulars with
regard to the Issuer Trustee and the Class A 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 and Wales for
registration in accordance with Section 149 of that Act.
This Prospectus may be used by Westpac Banking Corporation, an affiliate in
connection with market making transactions in the Class A Notes. Westpac Banking
Corporation, Inc. may act as principal Trust Manager and the Issuer Trustee, or
agent in such transactions. Such sales will be made at prices related to
prevailing market prices at the time of sale or otherwise.
WESTPAC BANKING CORPORATION
, 1999.
<PAGE>
UNDERWRITING
This Prospectus may be used by Westpac Banking Corporation, an affiliate of
the Trust Manager and the Issuer Trustee, in connection with offers and sales
related to secondary market transactions in the Class A Notes. Westpac Banking
Corporation may act as principal or agent in such transactions. Such sales will
be made at prices related to prevailing market prices at the time of sale or
otherwise. Westpac Banking Corporation does not have any obligation to make a
market in the Class A Notes, and it may discontinue any such market- making
activities at any time without notice, in its sole discretion. Westpac Banking
Corporation is among the underwriters participating in the initial distribution
of the Class A Notes.
<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 US dollars) in
connection with the issuance and distribution of the Class A Notes being
registered under this Registration Statement, other than underwriting discounts
and commissions:
<TABLE>
<S> <C>
SEC Registration Fee.................................................... 245,741.20
Printing and Engraving.................................................. 75,000
Legal Fees and Expenses................................................. 309,000
Trustee Fees and Expenses............................................... 13,000
Rating Agency Fees...................................................... 162,700
Accounting Fees & Expenses.............................................. 29,720
Miscellaneous........................................................... 65,400
---------
Total............................................................... 900,561.20
---------
---------
</TABLE>
- ------------------------
* All amounts except the SEC Registration Fee are estimates of expenses
incurred in connection with the issuance and distribution of the Notes.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to Section 109 of the Constitution of the Registrant:
(1) To the extent permitted by law and without limiting the powers of the
Registrant, the Registrant must indemnify each person who is, or has
been, a director or secretary of the Registrant against any liability
which results directly or indirectly from facts or circumstances relating
to the person serving or having served in that capacity in relation to
the Registrant or any of its subsidiaries or in the capacity of an
employee of the Registrant or any of its subsidiaries:
(a) to any person (other than the Registrant or a related body
corporate), which does not arise out of conduct involving a lack of
good faith or conduct known to the person to be wrongful;
(b) for costs and expenses incurred by the person in defending
proceedings, whether civil or criminal, in which judgment is given in
favor of the person or in which the person is acquitted, or in
connection with any application in relation to such proceedings in
which the court grants relief to the person under the Corporations
Law and the Corporations Regulations of Australia.
(2) The Registrant need not indemnify a person as provided for in paragraph
(1) in respect of a liability to the extent that the person is entitled
to an indemnity in respect of that liability under a contract of
insurance.
(3) To the extent permitted by law and without limiting the powers of the
Registrant, the board of directors may authorize the Registrant to, and
the Registrant may enter into any:
(a) documentary indemnity in favor of; or
(b) insurance policy for the benefit of,
a person who is, or has been, a director, secretary, auditor, employee or other
officer of the Registrant or of a subsidiary of the Registrant, which indemnity
or insurance policy may be in such terms as the board of
II-1
<PAGE>
directors approves and, in particular, may apply to acts or omissions prior to
or after the time of entering into the indemnity or policy; and
(4) The benefit of each indemnity given in paragraph (1) of Section 109
continues, even after its terms or the terms of this paragraph are
modified or deleted, in respect of a liability arising out of acts or
omissions occurring prior to the modification or deletion.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
The following information relates to securities of the Registrant issued or
sold by the Registrant, or for which it has acted as trust manager with respect
to, that were not registered under the Securities Act:
1. The Registrant was incorporated on February 19, 1998 and issued one of
its shares to Westpac Equity Holdings Pty Ltd. for $A1.00.
2. On April 8, 1998, the Registrant acted as trust manager with respect to
the WST-NZ Series 1998-1 Trust and WST Funding Trust New Zealand Sub
Series #1 which issued the following Mortgage-Backed Notes:
Class A Asset Notes NZ$278,820,837 due 14 April 2024
Class B Asset Notes NZ$19,393,545 due 14 April 2024
Class A Funding Notes A$243,690,000 due 15 April 2024
Class B Funding Notes A$16,950,000 due 15 April 2024
The Funding Notes were issued to institutional investors in Australia.
The issuance of the Mortgage-Backed Notes was underwritten by Westpac
Capital Markets and JP Morgan Australia Securities Pty Limited, which
received a commission of A$551,007.
The offer and sale of these securities are claimed to be exempt from
registration with the Securities and Exchange Commission pursuant to either
Section 4(2) of the Act, Regulation D promulgated thereunder, and/or Regulation
S promulgated thereunder.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
<TABLE>
<CAPTION>
<C> <S>
1.1 Form of Underwriting Agreement.
3.1 Memorandum of Association of the Registrant.*
3.2 Articles of Association of the Registrant.*
4.1 Master Trust Deed.*
4.2 Form of the Series Notice.
4.3 Form of the Note Trust Deed.
4.4 Form of the Security Trust Deed.
4.5 Form of Agency Agreement.
5.1 Opinion of Mayer, Brown & Platt as to legality of the Class A Notes.
8.1 Opinion of Mayer, Brown & Platt as to certain tax matters (included in Exhibit 5.1 hereof).
8.2 Opinion of Allen Allen & Hemsley as to certain tax matters.
10.1 The Servicing Agreement.*
10.2 Form of Servicing Agreement Amendment Agreement.
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
10.3 Form of the Liquidity Facility Agreement.
<C> <S>
10.4 Form of the Redraw Facility Agreement.
10.5 Form of the Currency Swap (Westpac and Issuer Trustee).
10.6 Form of the Currency Swap (Morgan Guaranty and Issuer Trustee).
10.7 Form of Interest Rate Swaps.
23.1 Consent of Mayer, Brown & Platt (included in Exhibit 5.1 hereof).
23.2 Consent of Allen Allen & Hemsley (included in Exhibit 8.2 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>
- ------------------------
* Previously filed.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant on behalf of the Westpac Securitisation Trust,
Series 1999-1G WST Trust (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) 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
II-3
<PAGE>
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-4
<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. 2 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Sydney, Australia, on the 5th day of
May 1999.
<TABLE>
<S> <C> <C>
WESTPAC SECURITISATION MANAGEMENT PTY
LIMITED
By: /s/ LEWIS E. LOVE, JR.
-----------------------------------------
Lewis E. Love, Jr.
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to the Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
*R. PATRICK HANDLEY
- ------------------------------ Principal Executive May 5, 1999
R. Patrick Handley Officer and Director
*MARTEN TOUW
- ------------------------------ Principal Financial May 5, 1999
Marten Touw Officer and Director
*LUCY BERETIN
- ------------------------------ Principal Accounting May 5, 1999
Lucy Beretin Officer
*KIMBERLY GIRE
- ------------------------------ Director May 5, 1999
Kimberly Gire
*LEWIS E. LOVE, JR.
- ------------------------------ Director May 5, 1999
Lewis E. Love, Jr.
*CHRIS SKILTON
- ------------------------------ Director May 5, 1999
Chris Skilton
</TABLE>
<TABLE>
<S> <C> <C> <C>
*By: /s/ LEWIS E. LOVE, JR.
-------------------------
Lewis E. Love, Jr. Director May 5, 1999
ATTORNEY-IN-FACT
</TABLE>
II-5
<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 Amendment No. 2 to the
Registration Statement and signs this Amendment No. 2 to the Registration
Statement solely in such capacity and for the limited purpose of said Section
6(a).
<TABLE>
<S> <C>
/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
</TABLE>
II-6
<PAGE>
EXHIBITS INDEX
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT PAGE
NO. DESCRIPTION OF EXHIBIT NUMBER
- --------- ---------------------------------------------------------------------------------------------- -------------
<C> <S> <C>
1.1 Form of Underwriting Agreement.
3.1 Memorandum of Association of the Registrant.*
3.2 Articles of Association of the Registrant.*
4.1 Master Trust Deed.*
4.2 Form of the Series Notice.
4.3 Form of the Note Trust Deed.
4.4 Form of the Security Trust Deed.
4.5 Form of Agency Agreement.
5.1 Opinion of Mayer, Brown & Platt as to legality of the Class A Notes.
8.1 Opinion of Mayer, Brown & Platt as to certain tax matters (included in Exhibit 5.1 hereof).
8.2 Opinion of Allen Allen & Hemsley as to certain tax matters.
10.1 The Servicing Agreement.*
10.2 Form of the Servicing Agreement Amendment Agreement.
10.3 Form of the Liquidity Facility Agreement.
10.4 Form of the Redraw Facility Agreement.
10.5 Form of the Currency Swap (Westpac and Issuer Trustee).
10.6 Form of the Currency Swap (Morgan Guaranty and Issuer Trustee).
10.7 Form of Interest Rate Swaps.
23.1 Consent of Mayer, Brown & Platt (included in Exhibit 5.1 hereof).
23.2 Consent of Allen Allen & Hemsley (included in Exhibit 8.2 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>
- ------------------------
* Previously filed.
<PAGE>
UNDERWRITING AGREEMENT
U.S.$_____________
WESTPAC SECURITIES ADMINISTRATION LIMITED
SERIES 1999-1G WST TRUST
U.S.$_____________ Class A Mortgage Backed Floating Rate Notes
UNDERWRITING AGREEMENT
May 6, 1999
J.P. Morgan Securities Inc.
Morgan Stanley & Co. Incorporated
As Representatives of the
Several Underwriters Listed
in Schedule I
c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260-0060
Ladies and Gentlemen:
Westpac Securities Administration Limited (ACN 000 049 472), a limited
liability public company under the Corporations Law of New South Wales,
Australia in its capacity as trustee of the Series 1999-1G WST Trust (the
"Issuer Trustee") proposes to sell to the several Underwriters listed in
Schedule I hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives"), U.S.$_____________ principal amount of
Class A Mortgage Backed Floating Rate Notes (the "Class A Notes") issued by the
Series 1999-1G WST Trust (the "Trust"). Each Note will be secured by the assets
of the Trust. The assets of the Trust include, among other things, a pool of
variable and fixed rate residential housing loans (the "Housing Loans")
originated or acquired by Westpac Banking Corporation (ARBN 007 457 141)
("Westpac") including all monies at any time paid or payable thereon or in
respect thereof from, on and after March 31, 1999 (the "Cut-Off Date") with
respect to payments of principal and after the Closing Date (as defined herein)
with respect to payments of interest, rights under certain insurance policies
with respect to the Housing Loans, the Collections Account and the rights of the
Issuer Trustee under the Basic Documents. The Series 1999-1G WST Trust will be
created pursuant to the Master Trust Deed, dated February 14, 1997 (the "Master
Trust Deed") and a series notice, to be dated May 13, 1999 (the "Series
Notice"), each between the Issuer Trustee and Westpac Securitisation Management
Pty Limited (the "Trust Manager"), which sets forth specific provisions
regarding the Trust and details the provisions of the Notes. The Note Trust
<PAGE>
Deed, dated May 13, 1999 (the "Note Trust Deed") by and among the Issuer
Trustee, the Trust Manager and Citibank, N.A. (the "Note Trustee") provides for
the issuance and registration of the Notes in accordance with the terms and
conditions attached thereto. The Mortgage Company Pty Limited (ACN 070 968 302)
will act as servicer (the "Servicer") of the Housing Loans. The Trust Manager
and Westpac are each a "Westpac Party" and collectively are referred to herein
as the "Westpac Parties."
The Trust Manager has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement, including a prospectus, relating to the Notes. The registration
statement as amended at the time when it became effective, or, if a
post-effective amendment is filed with respect thereto, as amended by such
post-effective amendment at the time of its effectiveness (including in each
case information (if any) deemed to be part of the registration statement at the
time of effectiveness pursuant to Rule 430A under the Securities Act) is
referred to in this Agreement as the "Registration Statement", and the
prospectus in the form first used to confirm sales of Notes is referred to in
this Agreement as the "Prospectus".
When used in this Agreement, "Basic Documents" shall mean the Master
Trust Deed, the Series Notice, the Servicing Agreement, the Notes, the Security
Trust Deed, the Note Trust Deed, the Swap Agreements and the Agency Agreement
and any other contract, agreement or instrument which is or is to be entered
into by any of the Westpac Parties or the Issuer Trustee on the Closing Date or
otherwise in connection with any of the foregoing or this Agreement. To the
extent not defined herein, capitalized terms used herein have the meanings
assigned to such terms in the Prospectus.
In this Agreement, a reference to the Issuer Trustee is a reference to
the Issuer Trustee in its capacity as trustee of the Series 1999-1G WST Trust
only, and in no other capacity. Any reference to the assets, business, property
or undertaking of the Issuer Trustee is a reference to the Issuer Trustee in
that capacity only.
The Westpac Parties and the Issuer Trustee hereby agree with the
Underwriters as follows:
1. PURCHASE AND SALE.
The Issuer Trustee, at the direction of the Trust Manager, agrees to
sell the Notes to the several Underwriters as hereinafter provided, and each
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees to purchase,
severally and not jointly, from the Issuer Trustee the respective principal
amount of Notes set forth opposite such Underwriter's name in Schedule I hereto
at a price equal to 100% of the principal amount of the Class A Notes (the
"Notes"). In connection with such purchase, Westpac will pay in immediately
available funds to the Underwriters the commissions payable under the letter
agreement relating to fees and expenses among Westpac and the Representatives (a
copy of which is attached hereto as an exhibit).
2. OFFERING.
2
<PAGE>
The Westpac Parties and the Issuer Trustee understand that the
Underwriters intend (i) to make a public offering of their respective portions
of the Notes as soon after (A) the Registration Statement has become effective
and (B) the parties hereto have executed and delivered this Agreement as in the
judgment of the Representatives is advisable and (ii) initially to offer the
Notes upon the terms set forth in the Prospectus.
3. DELIVERY AND PAYMENT.
Payment for the Notes shall be made by wire transfer in immediately
available funds to the account specified by the Issuer Trustee to the
Representatives no later than noon on May 13, 1999, or at such other time on the
same or such other date, not later than the fifth Business Day thereafter, as
the Representatives and the Trust Manager may agree upon in writing.
Payment for the Notes shall be made against delivery to the nominee of
The Depository Trust Company ("DTC") for the account of the Representatives of
one or more book-entry notes (the "Book-Entry Notes") representing the Notes,
with any transfer taxes payable in connection with the transfer to the
Underwriters of the Notes duly paid by the Trust Manager. The Book-Entry Notes
will be made available for inspection by the Representatives at the office of
Mayer, Brown & Platt, 1675 Broadway, New York, New York 10019 not later than
1:00 P.M., New York City time, on the Business Day prior to the Closing Date. As
used herein the term "Business Day" means any day other than a day on which
banks are permitted or required to be closed in New York City, and the term
"Closing Date" means May 13, 1999.
4. REPRESENTATIONS AND WARRANTIES OF THE WESTPAC PARTIES AND THE ISSUER
TRUSTEE.
I. The Issuer Trustee represents and warrants to each Underwriter that:
(a) since April 8, 1999 there has been no material adverse
change or any development involving a prospective material adverse change
in the condition (financial or otherwise) of the Issuer Trustee except as
disclosed in the Prospectus, which is material in the context of the Issuer
Trustee performing its obligations and duties under the Notes and each
Basic Document to which it is or is to be a party;
(b) the Issuer Trustee is a corporation duly incorporated and
existing under the laws of New South Wales; it is lawfully qualified and
holds all Authorisations (as defined in the Master Trust Deed) necessary to
carry on its business as described in the Prospectus and to issue the Notes
and to act as required by each Basic Document to which it is or is to be 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 (as defined in the Master Trust
Deed)) and no other thing is required to be done (including without
limitation the making of any filing or registration) in order to issue the
Notes or to execute and act as required by each Basic Document to which it
is to be a party;
(c) this Agreement has been duly authorized, executed and delivered
by the Issuer Trustee;
3
<PAGE>
(d) the Notes have been duly authorized, and, when issued, delivered
and paid for pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and binding
obligations of the Issuer Trustee, entitled to the benefits provided by the
Note Trust Deed and the Security Trust Deed, subject to general principles
affecting creditors rights and general principles of equity. The Basic
Documents have been duly authorized, and, when executed and delivered by
the Issuer Trustee and, each of the other parties thereto, each of the
Basic Documents will constitute a legal, valid and binding obligation of
the Issuer Trustee, enforceable against the Issuer Trustee in accordance
with its terms, subject as to enforceability to applicable bankruptcy,
insolvency, reorganization, conservatorship, receivership, liquidation or
other similar laws affecting the enforcement of creditors rights generally
and to general equitable principles;
(e) the Issuer Trustee is not, nor with the giving of notice or
lapse of time or both would be, in violation of or in default under, its
Constitution or any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Issuer Trustee is a party or by
which it or any of its properties is bound, except for violations and
defaults which individually and in the aggregate would not have a material
adverse effect on the transactions contemplated herein or in the Basic
Documents; the issue and sale of the Notes and the performance by the
Issuer Trustee of all of the provisions of its obligations under the Notes,
the Basic Documents and this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Issuer Trustee is a party or by
which the Issuer Trustee is bound or to which any of the property or assets
of the Trust is subject, nor will any such action result in any violation
of the provisions of the Constitution of the Issuer Trustee or any
applicable law or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Issuer Trustee, or
any of its properties; and, to the knowledge of the Issuer Trustee, no
consent, approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Notes or the consummation by the
Issuer Trustee of the transactions contemplated by this Agreement or the
Basic Documents, except such consents, approvals, authorizations, orders,
licenses, registrations or qualifications as have been obtained under the
Securities Act, the Trust Indenture Act and as may be required under state
securities or "Blue Sky" laws in connection with the purchase and
distribution of the Notes by the Underwriters;
(f) other than as set forth or contemplated in the Prospectus, there
are no legal or governmental investigations, actions, suits or proceedings
pending or, to the knowledge of the Issuer Trustee, threatened against or
affecting the Issuer Trustee or the Trust or, to which the Issuer Trustee
is or may be a party or to which the Issuer Trustee or any property of the
Trust is or may be the subject, (i) asserting the invalidity of this
Agreement or of any of the Basic Documents in relation to the Issuer
Trustee, (ii) seeking to prevent the issuance of the Notes or the
consummation of any of the transactions contemplated by this Agreement or
any of the Basic Documents by the Issuer Trustee, (iii) that may adversely
affect the federal or state income, excise, franchise or similar tax
4
<PAGE>
attributes of the Notes, (iv) that could materially and adversely affect
the performance of the Issuer Trustee of its obligations under, or the
validity or enforceability of, this Agreement or any of the Basic Documents
by the Issuer Trustee or (v) which could individually or in the aggregate
reasonably be expected to have a material adverse effect on the interests
of the holders of the Notes or the marketability of the Notes;
(g) the representations and warranties of the Issuer Trustee
contained in the Basic Documents are true and correct in all material
respects;
(h) PricewaterhouseCoopers LLP ("PricewaterhouseCoopers") are
independent public accountants with respect to the Issuer Trustee within
the meaning of the Securities Act;
(i) to the Issuer Trustee's knowledge, no event has occurred which
would entitle the Trust Manager to direct the Issuer Trustee to retire as
trustee of the Trust under clause 24 of the Master Trust Deed;
(j) the Prospectus complies with the Listing Rules of the London
Stock Exchange Limited (the "London Stock Exchange"), and any preliminary
prospectus and the Prospectus (in the case of the Prospectus, as of the
date hereof and in the case of any preliminary prospectus, as of its date)
(i) contains all the information required by section 146 of the Financial
Services Act; and (ii) in the context of the issue of the Notes to be
issued to persons other than residents of the United States of America, is
accurate in all material respects and does not contain any untrue statement
of a material fact or omit to state any material fact necessary to make the
information therein, in the light of the circumstances under which it is
given, not misleading and all reasonable inquiries have been made to
ascertain the accuracy of all such information.
(k) the Issuer Trustee has not taken any corporate action nor (to
the best of its knowledge and belief) have any other steps been taken or
legal proceedings been started or threatened against the Issuer Trustee for
its winding-up, dissolution or reorganization or for the appointment of a
receiver, receiver and manager, administrator, provisional liquidator or
similar officer of it or of any or all of its assets;
(l) subject to compliance with Section 128F of the Income Tax
Assessment Act (1936) (the "Tax Act") and compliance by the Underwriters
with clause 11 hereto, no stamp or other duty is assessable or payable in,
and no withholding or deduction for any taxes, duties, assessments or
governmental charges of whatever nature is imposed or made for or on
account of any income, registration, transfer or turnover taxes, customs or
other duties or taxes of any kind, levied, collected, withheld or assessed
by or within, the Commonwealth of Australia or any sub-division of or
authority therein or thereof having power to tax in such jurisdiction, in
connection with the authorization, execution or delivery of the agreements
to which it is to be a party or with the authorization, execution, issue,
sale or delivery of the Notes and the performance of the Issuer Trustee's
obligations under the agreements to which it is to be a party and the
Notes;
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(m) the Notes and the obligations of the Issuer Trustee under the
Note Trust Deed will be secured (pursuant to the Security Trust Deed) by a
first floating charge over the assets of the Trust; and
(n) no event has occurred or circumstances arisen which, had the
Notes already been issued, would (whether or not with the giving of notice
and/or the passage of time and/or the fulfillment of any other requirement)
constitute an event described under "DESCRIPTION OF THE CLASS A
NOTES--Events of Default; Rights Upon Events of Default" in the Prospectus.
II. The Trust Manager represents and warrants to each Underwriter that:
(a) no order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary
prospectus filed as part of the Registration Statement as originally filed
or as part of any amendment thereto, or filed pursuant to Rule 424 under
the Securities Act, complied when so filed in all material respects with
the Securities Act, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Trust Manager in writing by such Underwriter
through the Representatives expressly for use therein;
(b) the Registration Statement has been declared effective under the
Securities Act by the Commission; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of the
Trust Manager, threatened by the Commission; and the Registration Statement
and Prospectus (as amended or supplemented if the Trust Manager shall have
furnished any amendments or supplements thereto) comply, or will comply, as
the case may be, in all material respects with the Securities Act and the
Trust Indenture Act of 1939, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Trust Indenture Act") and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the date of the
Prospectus and any amendment or supplement thereto, contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and the Prospectus, as amended or supplemented, if applicable,
at the Closing Date will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; except that the foregoing representations and warranties shall
not apply to (i) that part of the Registration Statement which constitutes
the Statement of Eligibility and Qualification (Form T-1) of the Note
Trustee under the Trust Indenture Act, and (ii) statements or omissions in
the Registration Statement or the Prospectus made in reliance upon and in
conformity with information relating to any Underwriter furnished to the
Trust Manager in writing by such Underwriter through the Representatives
expressly for use therein;
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(c) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, business,
prospects, management, financial position, stockholders' equity or results
of operations of the Trust Manager, taken as a whole, otherwise than as set
forth or contemplated in the Prospectus;
(d) the Trust Manager is a corporation duly incorporated and validly
existing under the Corporations Law of the Commonwealth of Australia, the
Trust Manager has the power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement and the Basic
Documents to which it is a party and carry out the transactions
contemplated by such Basic Documents; the Trust Manager has been duly
qualified or licensed for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification or licensing, other than where the failure to be so qualified
or licensed or in good standing would not have a material adverse effect on
the transactions contemplated herein or in the Basic Documents;
(e) this Agreement has been duly authorized, executed and delivered
by the Trust Manager;
(f) the Basic Documents have been duly authorized by the Issuer
Trustee, and upon effectiveness of the Registration Statement, the Note
Trust Deed will have been duly qualified under the Trust Indenture Act and,
when executed and delivered by the Trust Manager and each of the other
parties thereto, each of the Basic Documents will constitute a legal, valid
and binding obligation of the Trust Manager, enforceable against the Trust
Manager in accordance with its terms, subject as to enforceability to
applicable bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation or other similar laws affecting the enforcement
of creditors rights generally and to general equitable principles; and the
Notes and the Basic Documents each will conform to the descriptions thereof
in the Prospectus;
(g) the Trust Manager is not, nor with the giving of notice or lapse
of time or both would be, in violation of or in default under, its
Constitution or any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which it is a party or by which it or any
of its properties is bound, except for violations and defaults which
individually and in the aggregate would not have a material adverse effect
on the transactions contemplated herein or in the Basic Documents; the
issue and sale of the Notes and the performance by the Trust Manager of all
of the provisions of its obligations under the Notes, the Basic Documents
and this Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Trust Manager is a party or by which the Trust Manager is bound
or to which any of the property or assets of the Trust Manager is subject,
nor will any such action result in any violation of the provisions of the
Constitution of the Trust Manager or any applicable law
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or statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Trust Manager, or any of its
properties; and no consent, approval, authorization, order, license,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Notes or the
consummation by the Trust Manager of the transactions contemplated by this
Agreement or the Basic Documents, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as have
been obtained under the Securities Act, the Trust Indenture Act and as may
be required under state securities or "Blue Sky" laws in connection with
the purchase and distribution of the Notes by the Underwriters;
(h) other than as set forth or contemplated in the Prospectus, there
are no legal or governmental investigations, actions, suits or proceedings
pending or, to the knowledge of the Trust Manager, threatened against or
affecting the Trust Manager or its properties or, to which the Trust
Manager is or may be a party or to which the Trust Manager or any property
of the Trust Manager is or may be the subject, (i) asserting the invalidity
of this Agreement or of any of the Basic Documents, (ii) seeking to prevent
the issuance of the Notes or the consummation of any of the transactions
contemplated by this Agreement or any of the Basic Documents, (iii) that
may adversely affect the federal or state income, excise, franchise or
similar tax attributes of the Notes, (iv) that could materially and
adversely affect the performance of the Trust Manager of its obligations
under, or the validity or enforceability of, this Agreement or any of the
Basic Documents or (v) which could individually or in the aggregate
reasonably be expected to have a material adverse effect on the interests
of the holders of the Notes or the marketability of the Notes; and there
are no statutes, regulations, contracts or other documents that are
required to be filed as an exhibit to the Registration Statement or
required to be described in the Registration Statement or the Prospectus
which are not filed or described as required;
(i) the representations and warranties of the Trust Manager
contained in the Basic Documents are true and correct in all material
respects;
(j) PricewaterhouseCoopers are independent public accountants with
respect to the Trust Manager within the meaning of the Securities Act;
(k) the Trust Manager owns, possesses or has obtained all
Authorisations (as defined in the Master Trust Deed), licenses, permits,
certificates, consents, orders, approvals and other authorizations from,
and has made all declarations and filings with, all federal, state, local
and other governmental authorities (including foreign regulatory agencies),
all self-regulatory organizations and all courts and other tribunals,
domestic or foreign, necessary to perform its obligations under this
Agreement and the Basic Documents, and the Trust Manager has not received
any actual notice of any proceeding relating to revocation or modification
of any such Authorisation, license, permit, certificate, consent, order,
approval or other authorization; and the Trust Manager is in compliance
with all laws and regulations necessary for the performance of its
obligations under this Agreement and the Basic Documents;
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<PAGE>
(l) no event has occurred which would entitle the Trust Manager to
direct the Issuer Trustee to retire as trustee of the Trust under clause 24
of the Master Trust Deed;
(m) the Prospectus complies with the Listing Rules of the London
Stock Exchange Limited (the "London Stock Exchange"), and any preliminary
prospectus and Prospectus (in the case of the Prospectus, as of the date
hereof and in the case of any preliminary prospectus, as of its date)
contains all the information required by section 146 of the Financial
Services Act;
(n) the Trust Manager has not taken any corporate action nor (to the
best of its knowledge and belief) have any other steps been taken or legal
proceedings been started or threatened against the Trust Manager for its
winding-up, dissolution or reorganization or for the appointment of a
receiver, receiver and manager, administrator, provisional liquidator or
similar officer of it or of any or all of its assets;
(o) subject to compliance with Section 128F of the Income Tax
Assessment Act (1936), no stamp or other duty is assessable or payable in,
and no withholding or deduction for any taxes, duties, assessments or
governmental charges of whatever nature is imposed or made for or on
account of any income, registration, transfer or turnover taxes, customs or
other duties or taxes of any kind, levied, collected, withheld or assessed
by or within, the Commonwealth of Australia or any sub-division of or
authority therein or thereof having power to tax in such jurisdiction, in
connection with the authorization, execution or delivery of the agreements
to which it is to be a party or with the authorization, execution, issue,
sale or delivery of the Notes and the performance of the Trust Manager's
obligations under the agreements to which it is to be a party and the
Notes;
(p) no event has occurred or circumstances arisen which, had the
Notes already been issued, would (whether or not with the giving of notice
and/or the passage of time and/or the fulfillment of any other requirement)
constitute an event described under "DESCRIPTION OF CLASS A NOTES--Events
of Default; Rights Upon Events of Default" in the Prospectus.
III. Westpac represents and warrants to each Underwriter that:
(a) Westpac is a corporation organized under the laws of New South
Wales;
(b) this Agreement has been duly authorized, executed and delivered
by Westpac;
(c) the representations and warranties of Westpac contained in the
Basic Documents are true and correct in all material respects;
(d) since April 8, 1999 there has been no material adverse
change or any development involving a prospective material adverse change
in the condition (financial or otherwise) of Westpac or the Westpac Group;
and
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<PAGE>
(e) as of the Closing Date, Westpac will have transferred to the
Issuer Trustee a valid equitable assignment of each related Housing Loan
offered for sale by it to the Issuer Trustee;
5. COVENANTS AND AGREEMENTS.
I. The Trust Manager covenants and agrees with each of the several
Underwriters as follows:
(a) to use its best efforts to cause the Registration Statement to
become effective at the earliest possible time and, if required, to file
the final Prospectus with the Commission within the time periods specified
by Rule 424(b) and Rule 430A under the Securities Act, and to furnish
copies of the Prospectus to the Underwriters, provided that the
distribution of such copies shall be at the Underwriters' expense, in
New York City prior to 10:00 a.m., New York City time, on the Business Day
next succeeding the date of this Agreement in such quantities as the
Representatives may reasonably request;
(b) to deliver, at the expense of the Trust Manager, to the
Representatives and to Brown & Wood LLP, counsel to the Underwriters,
signed copies of the Registration Statement (as originally filed) and each
amendment thereto, in each case including exhibits, and to each other
Underwriter a conformed copy of the Registration Statement (as originally
filed) and each amendment thereto, in each case without exhibits and,
during the period mentioned in paragraph (e) below, to each of the
Underwriters, as many copies of the Prospectus (including all amendments
and supplements thereto) as the Representatives may reasonably request,
provided that the distribution of such copies shall be at the Underwriter's
expense;
(c) before filing any amendment or supplement to the Registration
Statement or the Prospectus, whether before or after the time the
Registration Statement becomes effective, to furnish to the Representatives
a copy of the proposed amendment or supplement for review and not to file
any such proposed amendment or supplement to which the Representatives
reasonably object;
(d) to advise the Representatives promptly, and to confirm such
advice in writing, (i) when the Registration Statement has become
effective, (ii) when any amendment to the Registration Statement has been
filed or becomes effective, (iii) when any supplement to the Prospectus or
any amendment to the Prospectus has been filed and to furnish the
Representatives with copies thereof, (iv) of any request by the Commission
for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for any additional information, (v) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of any order preventing or suspending the
use of any preliminary prospectus or the Prospectus or the initiation or
threatening of any proceeding for that purpose, (vi) of the occurrence of
any event, within the period referenced in paragraph (e) below, as a result
of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, and (vii) of the receipt by the Trust Manager of any
notification with respect
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<PAGE>
to any suspension of the qualification of the Notes for offer and sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose; and to use its best efforts to prevent the issuance of any
such stop order, or of any order preventing or suspending the use of any
preliminary prospectus or the Prospectus, or of any order suspending any
such qualification of the Notes, or notification of any such order thereof
and, if issued, to obtain as soon as possible the withdrawal thereof;
(e) if, during such period of time after the first date of the
public offering of the Notes as in the opinion of counsel for the
Underwriters a prospectus relating to the Notes is required by law to be
delivered in connection with sales by an Underwriter or a dealer, any event
shall occur as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare and furnish, at the expense of the
Trust Manager, to the Underwriters and to the dealers (whose names and
addresses the Representatives will furnish to the Trust Manager) to which
Notes may have been sold by the Representatives on behalf of the
Underwriters and to any other dealers upon request, such amendments or
supplements to the Prospectus as may be necessary so that the statements in
the Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law;
(f) to endeavor to qualify the Notes for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representatives
shall reasonably request and to continue such qualification in effect so
long as reasonably required for distribution of the Notes; PROVIDED that
the Trust Manager shall not be required to file a general consent to
service of process in any jurisdiction;
(g) to make generally available to the holders of the Notes and to
the Representatives as soon as practicable an earnings statement covering a
period of at least twelve months beginning with the first fiscal quarter of
the Trust occurring after the effective date of the Registration Statement,
which shall satisfy the provisions of Section 11(a) of the Securities Act
and Rule 158 of the Commission promulgated thereunder;
(h) so long as the Notes are outstanding, to furnish to the
Representatives (i) copies of each certificate, the annual statements of
compliance and the annual independent certified public accountant's
audit report on the financial statements furnished to the Trustee pursuant
to the Basic Documents by first class mail as soon as practicable after
such statements and reports are furnished to the Trustee, (ii) copies of
each amendment to any of the Basic Documents, (iii) on each Determination
Date or as soon thereafter as practicable, the Bond Factor as of the
related Record Date [shall be available to the Representatives on Bloomberg
and Reuters], (iv) copies of all reports or other communications (financial
or other) furnished to holders of the Notes, and copies of any reports and
financial statements furnished to or filed with the Commission, any
governmental or regulatory authority or any national securities exchange,
and (v) from time to time such other information concerning the Trust or
the Trust Manager as the Representatives may reasonably request;
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<PAGE>
(i) to the extent, if any, that the ratings provided with respect to
the Notes by the Rating Agencies are conditional upon the furnishing of
documents or the taking of any other action by the Trust Manager, the Trust
Manager shall use its best efforts to furnish such documents and take any
other such action;
(j) to list the Notes on the London Stock Exchange and to use its
best efforts to maintain such listing for as long as any of the Notes are
outstanding; provided, however, if such listing becomes impossible, each of
the Issuer Trustee and the Trust Manager will use their best efforts to
obtain, and will thereafter use its best efforts to maintain a quotation
for, or listing of, the Notes on such other exchange as is commonly used
for the quotation or listing of debt securities as they may, with the
approval of the Representatives, decide;
(k) to furnish from time to time copies of the Prospectus and any
and all documents, instruments, information and undertakings (in addition
to any already published or lodged with the London Stock Exchange) and
publish all advertisements or other material and to comply with any other
requirements of the London Stock Exchange that may be necessary in order to
effect and maintain such listing;
(l) to assist the Representatives to make arrangements with DTC,
Euroclear and Cedelbank concerning the issue of the Notes and related
matters;
(m) to not take, or cause to be taken, any action and will not
knowingly permit any action to be taken which it knows or has reason to
believe would result in the Notes not being assigned the ratings referred
to in Section 6(p) below; and
II. The Issuer Trustee covenants and agrees with each of the several
Underwriters as follows:
(a) to use the net proceeds received by the Issuer Trustee from the
sale of the Notes pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
(b) the Issuer Trustee will notify the Representatives promptly
after it becomes actually aware of any matter which would make any of its
representations, warranties, agreements and indemnities herein untrue if
given at any time prior to payment being made to the Issuer Trustee on the
Closing Date and take such steps as may be reasonably requested by the
Representatives to remedy and/or publicize the same;
(c) the Issuer Trustee will pay any stamp duty or other issue,
transaction, value added or similar tax, fee or duty (including court fees)
in relation to the execution of, or any transaction carried out pursuant
to, the Agreements or in connection with the issue and distribution of the
Notes or the enforcement or delivery of this Agreement;
(d) the Issuer Trustee will use all reasonable endeavors to procure
satisfaction on or before the Closing Date of the conditions referred to in
Section 6 below and, in particular (i) the Issuer Trustee shall execute
those of the Basic Documents not executed on the date hereof on or before
the Closing Date, and (ii) the Issuer Trustee will assist the
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Representatives to make arrangements with DTC, Euroclear and Cedelbank
concerning the issue of the Notes and related matters;
(e) the Issuer Trustee will procure that the charges created by or
contained in the Security Trust Deed are registered within all applicable
time limits in all appropriate registers;
(f) the Issuer Trustee will perform all its obligations under each
of the Basic Documents to which it is a party which are required to be
performed prior to or simultaneously with closing on the Closing Date;
(g) the Issuer Trustee will not take, or cause to be taken, any
action and will not knowingly permit any action to be taken which it knows
or has reason to believe would result in the Notes not being assigned the
ratings referred to in Section 6(p) below; and
(h) the Issuer Trustee will not prior to or on the Closing Date
amend the terms of any Basic Document nor execute any of the Basic
Documents other than in the agreed form without the consent of the
Underwriters.
III. Westpac covenants and agrees with each of the several Underwriters that
whether or not the transactions contemplated in this Agreement are consummated
or this Agreement is terminated, all fees, costs and expenses incident to the
performance of its obligations hereunder, including commissions payable, in
immediately available funds to the Underwriters for the performance of their
obligations under this Agreement, shall be paid as set forth in a letter among
Westpac and the Representatives.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS.
The several obligations of the Underwriters hereunder are subject to
the performance by the Westpac Parties and the Issuer Trustee of their
obligations hereunder and to the following additional conditions:
(a) the Registration Statement shall have become effective, or if a
post-effective amendment is required to be filed under the Securities Act,
such post-effective amendment shall have become effective, not later than
5:00 P.M., New York City time, on the date hereof; and no stop order
suspending the effectiveness of the Registration Statement or any
post-effective amendment shall be in effect, and no proceedings for such
purpose shall be pending before or threatened by the Commission; the
Prospectus shall have been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing by the
rules and regulations under the Securities Act and in accordance with
Section 5(a) hereof; and all requests for additional information shall have
been complied with to the satisfaction of the Representatives;
(b) the representations and warranties of the Westpac Parties and
the Issuer Trustee contained herein are true and correct on and as of the
Closing Date as if made on and as of the Closing Date and the
representations and warranties of the Westpac Parties in the Basic
Documents will be true and correct on the Closing Date; and each Westpac
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Party and the Issuer Trustee shall have complied with all agreements and
all conditions on its part to be performed or satisfied hereunder and under
the Basic Documents at or prior to the Closing Date;
(c) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading,
nor shall any notice have been given of (i) any intended or potential
downgrading or (ii) any review or possible change that does not indicate an
improvement, in the rating accorded any securities of or guaranteed by each
Westpac Party by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act;
(d) since the respective dates as of which information is given in
the Prospectus there shall not have been any material adverse change or any
development involving a prospective material adverse change, in or
affecting the general affairs, business, prospects, management, financial
position, stockholders' equity or results of operations of each Westpac
Party, taken as a whole, otherwise than as set forth or contemplated in the
Prospectus, the effect of which in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public offering
or the delivery of the Notes on the Closing Date on the terms and in the
manner contemplated in the Prospectus;
(e) the Representatives shall have received on and as of the Closing
Date a certificate of an executive officer of each Westpac Party, with
specific knowledge about financial matters of such Westpac Party,
satisfactory to the Representatives to the effect set forth in subsections
(a) through (d) of this Section;
(f) Allen Allen & Hemsley, Australian counsel for Westpac, the Trust
Manager and the Servicer, shall have furnished to the Representatives their
written opinion, dated the Closing Date, in form and substance satisfactory
to the Representatives, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass upon
such matters;
(g) Allen Allen & Hemsley, Australian tax counsel for Westpac, the
Trust Manager and the Servicer, shall have furnished to the Representatives
their written opinion, dated the Closing Date, in form and substance
satisfactory to the Representatives, and such counsel shall have received
such papers and information as they may reasonably request to enable them
to pass upon such matters;
(h) on the date hereof and also on the Closing Date, each of
PricewaterhouseCoopers and Deloitte & Touche shall have furnished to the
Underwriters letters, dated the respective dates of delivery thereof, in
form and substance satisfactory to the Underwriters;
(i) the Representatives shall have received on and as of the Closing
Date an opinion of Brown & Wood LLP, counsel to the Underwriters, with
respect to the Registration Statement, the Prospectus and other related
matters as the Representatives
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may reasonably request, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass upon
such matters;
(j) Mayer Brown & Platt, United States counsel for Westpac, the
Issuer Trustee and the Trust Manager, shall have furnished to the
Representatives their written opinion, dated the Closing Date, in form and
substance satisfactory to the Representatives, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(k) Mayer Brown & Platt, United States federal income tax counsel
for Westpac, the Issuer Trustee and the Trust Manager, shall have furnished
to the Representatives their written opinion, dated the Closing Date, in
form and substance satisfactory to the Representatives;
(l) Mallesons Stephen Jaques, counsel for the Issuer Trustee, shall
have furnished to the Representatives their written opinion, dated the
Closing Date, in form and substance satisfactory to the Representatives,
and such counsel shall have received such papers and information as they
may reasonably request to enable them to pass upon such matters;
(m) Brown & Wood, London, counsel for the Note Trustee, shall have
furnished to the Representatives their written opinion, dated the Closing
Date, in form and substance satisfactory to the Representatives, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(n) Counsel to the Interest Rate Swap Provider and Currency Swap
Providers shall have furnished to the Representatives their written opinion
and substance satisfactory to the Representatives;
(o) the Representative shall have received a letter or letters from
each counsel delivering any written opinion to any Rating Agency in
connection with the transaction described herein which is not otherwise
described in this Agreement allowing the Representative to rely on such
opinion as if it were addressed to the Representative;
(p) at the Closing Date, the Class A Notes shall have been rated
"AAA" by Standard & Poor's Ratings Services, A Division of The McGraw-Hill
Companies, Inc. ("Standard and Poor's") and Fitch IBCA, Inc. ("Fitch") and
"Aaa" by Moody's Investors Service, Inc. ("Moody's" and together with
Standard and Poor's and Fitch, the "Rating Agencies") as evidenced by
letters from the Rating Agencies;
(q) the execution and delivery by all parties thereto of the Basic
Documents on or prior to the Closing Date;
(r) the London Stock Exchange shall have agreed on or prior to the
Closing Date to list the Notes; and
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(s) on or prior to the Closing Date the Westpac Parties and the
Issuer Trustee shall have furnished to the Representatives such further
certificates and documents as the Representatives shall reasonably request.
7. (a) INDEMNIFICATION AND CONTRIBUTION.
Each of Westpac and the Trust Manager, jointly and severally, agrees to
indemnify and hold harmless each Underwriter, each affiliate of an Underwriter
which assists such Underwriter in the distribution of the Securities, and each
person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including, without
limitation, the legal fees and other expenses incurred in connection with any
suit, action or proceeding or any claim asserted) caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the Trust Manager
shall have furnished any amendments or supplements thereto) (other than to the
extent any losses, claims, damages or liabilities arise as a result of any
information under the heading "Prepayment and Yield Considerations"), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except (i) insofar as such losses, claims, damages or liabilities are caused by
any untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to any Underwriter
furnished to the Trust Manager in writing by such Underwriter through the
Representatives expressly for use therein or (ii) that such indemnity with
respect to the Prospectus shall not inure to the benefit of any Underwriter (or
any person controlling any Underwriter) from whom the person asserting any such
loss, claim, damage or liability purchased the Notes which are the subject
thereof if such person did not receive a copy of the Prospectus (or the
Prospectus as amended or supplemented) at or prior to the confirmation of the
sale of such Notes to such person in any case where such delivery is required by
the Act and the untrue statement or omission of a material fact contained in
such Prospectus was corrected in the Prospectus (or the Prospectus as amended or
supplemented);
(b) To the extent that any payment of damages by Westpac pursuant to
subsection 7(a) above is determined to be a payment of damages pursuant to
"Funds Management and Securitisation Prudential Statement C2" such payment shall
be subject to the terms of Section 89 therein.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Trust Manager, its directors, its officers who sign the
Registration Statement, the Issuer Trustee and Westpac and each person who
controls any of the Westpac Parties or the Issuer Trustee within the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Westpac Parties or the Issuer Trustee
to each Underwriter, but only with reference to information relating to such
Underwriter furnished to the Trust Manager in writing by such Underwriter
through the Representatives expressly for use in the Registration Statement, the
Prospectus, or any amendment or supplement thereto.
16
<PAGE>
(d) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to Subsections
(a) or (b) above, such person (the "Indemnified Person") shall promptly notify
the person against whom such indemnity may be sought (the "Indemnifying Person")
in writing, and the Indemnifying Person, upon request of the Indemnified Person,
shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary, (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm for the Underwriters, each affiliate of any
Underwriter which assists such Underwriter in the distribution of the Notes, and
such control persons of Underwriters shall be designated in writing by the
Representatives and any such separate firm for the Trust Manager, its directors,
its officers who sign the Registration Statement, the Issuer Trustee and Westpac
and such control persons of any of the Westpac Parties or the Issuer Trustee
shall be designated in writing by the Trust Manager. The Indemnifying Person
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by the
third sentence of this subsection (c), the Indemnifying Person agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such Indemnifying Person of the aforesaid request and (ii) such
Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
(e) If the indemnification provided for in subsections (a) or (b) above
is unavailable to an Indemnified Person in respect of any losses, claims,
damages or liabilities referred to therein, then each Indemnifying Person under
such subsection, in lieu of indemnifying such Indemnified Person thereunder,
shall contribute to the amount paid or payable by such Indemnified Person as a
result of such losses, claims, damages or liabilities in such proportion as
17
<PAGE>
is appropriate to reflect the relative benefits received by the Westpac Parties
and the Issuer Trustee on the one hand and the Underwriters on the other hand
from the offering of the Notes and also the relative fault of the Westpac
Parties and the Issuer Trustee on the one hand and the Underwriters on the other
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Westpac Parties and the
Issuer Trustee on the one hand and the Underwriters on the other shall be deemed
to be in the same respective proportions as the net proceeds from the offering
(before deducting expenses) received by the Westpac Parties and the Issuer
Trustee and the total underwriting discounts and the commissions received by the
Underwriters bear to the aggregate public offering price of the Notes. The
relative fault of the Westpac Parties and the Issuer Trustee on the one hand and
the Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Westpac Parties or the Issuer Trustee or by the Underwriters and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Westpac Parties, the Issuer Trustee and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 7
were determined by PRO RATA allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in this
subsection (d) shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Notes underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amount of Notes set forth opposite their names in Schedule
I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(f) The indemnity and contribution agreements contained in this Section
7 and the representations and warranties of the Westpac Parties or the Issuer
Trustee set forth in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Westpac Parties or the Issuer Trustee,
its officers or directors or any other person controlling the Westpac Parties or
the Issuer Trustee and (iii) acceptance of and payment for any of the Notes.
18
<PAGE>
8. TERMINATION.
Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Trust Manager, if after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, (ii) trading of any securities of or guaranteed by any of the Westpac
Parties or the Issuer Trustee shall have been suspended on any exchange or in
any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York, Sydney, Australia or London, England shall have been
declared by either Federal or New York or related authorities, or (iv) there
shall have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Representatives, is material and adverse and which, in the judgment of the
Representatives, makes it impracticable to market the Notes on the terms and in
the manner contemplated in the Prospectus.
9. EFFECTIVENESS OF AGREEMENT; DEFAULT OF UNDERWRITERS.
This Agreement shall become effective upon the later of (x) execution
and delivery hereof by the parties hereto and (y) release of notification of the
effectiveness of the Registration Statement (or, if applicable, any
post-effective amendment) by the Commission.
If on the Closing Date any one or more of the Underwriters shall fail
or refuse to purchase Notes which it or they have agreed to purchase hereunder
on such date, and the aggregate principal amount of Notes which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate principal amount of the Notes to be purchased on
such date, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Notes set forth opposite their
respective names in Schedule I bears to the aggregate principal amount of Notes
set forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as the Representatives may specify, to purchase the Notes
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase on such date; PROVIDED that in no event shall the principal amount
of Notes that any Underwriter has agreed to purchase pursuant to Section 1 be
increased pursuant to this Section 9 by an amount in excess of one-ninth of such
principal amount of Notes without the written consent of such Underwriter. If on
the Closing Date any Underwriter or Underwriters shall fail or refuse to
purchase Notes which it or they have agreed to purchase hereunder on such date,
and the aggregate principal amount of Notes with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of Notes to be
purchased on such date, and arrangements satisfactory to the Representatives and
the Trust Manager for the purchase of such Notes are not made within 36 hours
after such default, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter or the Trust Manager. In any such case either
you or the Trust Manager shall have the right to postpone the Closing Date, but
in no event for longer than seven days, in order that the required changes, if
any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
10. EXPENSES UPON TERMINATION.
19
<PAGE>
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Westpac Parties or
the Issuer Trustee to comply with the terms or to fulfill any of the conditions
of this Agreement, or if for any reason any of the Westpac Parties or the Issuer
Trustee shall be unable to perform its obligations under this Agreement or any
condition of the Underwriters' obligations cannot be fulfilled, Westpac agrees
to reimburse the Underwriters or such Underwriters as have so terminated this
Agreement with respect to themselves, severally, for all out-of-pocket expenses
(including the fees and expenses of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated
hereunder.
11. FEE LETTER.
Notwithstanding any term or provision herein in relation to fees and
expenses, any obligation of reimbursement of such fees or expenses by a Westpac
Party shall be subject to, and where applicable, superceded by, the terms and
provisions of the Fee Letter dated May 6, 1999, (attached as Exhibit 1 hereto)
executed by each Underwriter and Westpac.
12. SELLING RESTRICTIONS.
(a) No prospectus in relation to the Notes has been lodged with, or
registered by, the Australian Securities Commission or the Australian Stock
Exchange Limited. Each Underwriter represents and agrees that in connection with
the initial distribution of the Notes:
(i) it has not (directly or indirectly) offered for subscription or
purchase or issued invitations to subscribe for or buy nor has it
sold, the Notes,
(ii) will not (directly or indirectly) offer for subscription or purchase
or issue invitations to subscribe for or buy nor will it sell the
Notes, and
(iii) has not distributed and will not distribute any prospectus, or any
advertisement or other offering material
in the Commonwealth of Australia, its territories or possessions
("Australia") or to any person who is actually known by the Underwriter
(without an obligation on the Underwriter to make any inquiry) to be a
resident of Australia for the purposes of section 128F of the Income Tax
Assessment Act 1936 of Australia (the "Tax Act") or to any associates of
Westpac identified on Annex A hereto or as otherwise notified in writing
by Westpac to the Underwriters from time to time.
(b) Each Underwriter (severally, not jointly) undertakes that the issue of
Notes governed by this Agreement resulted from:
(i) an offer by such Underwriter within 30 days of issue to any person
as a result of negotiations being initiated in electronic form
(specifying the particular electronic screen or service), the
Prospectus or in such other form as may be applicable, being a form
that is used by the financial markets for dealing in securities; or
20
<PAGE>
(ii) its offer of the Notes for sale within 30 days of issue to at least
10 persons who are in the business of providing finance or investing
or dealing in securities in financial markets each of whom was not
known to be an associate of any of the others (within the meaning of
section 128F of the Tax Act),
and in either case it has announced on behalf of the Issuer Trustee in
relation to the offer that Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System ("Euroclear") or
Cedelbank will confer rights in the Notes under Book-Entry Notes. Each
Underwriter will provide the Issuer Trustee (within five Business Days of
the offer of Notes by it) a written statement which sets out details of
the relevant offer.
Each Underwriter (severally, not jointly) agrees to co-operate with
reasonable requests from the Issuer Trustee for information for the
purposes of assisting the Issuer Trustee to demonstrate that the public
offer test under section 128F of the Tax Act has been satisfied, provided
that no Underwriter shall be obliged to disclose the identity of the
purchaser of any Note or any information from which such identity
might/would be capable of being ascertained, or any information the
disclosure of which would be contrary to or prohibited by any relevant
law, regulation or directive.
(iii) Each Underwriter acknowledges that no representation is made by the
Issuer Trustee or any Underwriter that any action has been or will
be taken in any jurisdiction by the Issuer Trustee or any
Underwriter that would permit a public offering of the Notes, or
possession or distribution of the Prospectus or any other offering
material, in any country or jurisdiction where action for that
purpose is required. Each Underwriter will comply with all
applicable securities laws and regulations in each jurisdiction in
which it purchases, offers, sell or delivers Notes or has in its
possession or distributes the Prospectus or any other offering
material, in all cases at its own expense.
13. CERTAIN MATTERS RELATING TO THE ISSUER TRUSTEE.
The Issuer Trustee enters into this Agreement only in its capacity as
trustee of the Trust and in no other capacity. A liability arising under or in
connection with this Agreement or the Trust can be enforced against the Issuer
Trustee only to the extent to which it can be satisfied out of assets of the
Trust out of which the Issuer Trustee is actually indemnified for such
liability. This limitation of the Issuer Trustee's liability applies despite any
other provisions of this Agreement 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 this Agreement
or the Trust.
The parties other than the Issuer Trustee may not sue the Issuer
Trustee in any capacity other than as trustee of the Trust or seek the
appointment of a receiver (except under the Security
21
<PAGE>
Trust Deed) or a liquidator, an administrator or any other similar person to the
Issuer Trustee or prove in any liquidation, administration or arrangements of or
affecting the Issuer Trustee.
The provisions of this clause 13 shall not apply to any obligation or
liability of the Issuer Trustee to the extent that it is not satisfied because
under the Master Trust Deed or by operation of law there is a reduction in the
extent of the Issuer Trustee's indemnification out of the assets of the Trust as
a result of the Issuer Trustee's fraud, negligence or breach of trust.
It is acknowledged that the Trust Manager, the Servicer, the Currency
Swap Providers, the Note Trustee, the Principal Paying Agent, the other Paying
Agents and the Agent Bank (each, a "Relevant Party") are responsible under the
Transaction Documents (as defined in the Master Trust Deed) for performing a
variety of obligations relating to the Trust. No act or omission of the Issuer
Trustee (including any related failure to satisfy its obligations under the
Transaction Documents) will be considered fraud, negligence or breach of trust
of the Issuer Trustee for the purpose of this Agreement to the extent to which
the act or omission was caused or contributed to by any failure by any Relevant
Party or any other person who provides services in respect of the Trust (other
than a person who has been delegated or appointed by the Issuer Trustee and for
whom the Issuer Trustee is responsible under the relevant Transaction Document,
but excluding any Relevant Party) to fulfil its obligations relating to the
Trust or by any other act or omission of a Relevant Party or by any other person
who provides services in respect of the Issuer Trustee (other than a person who
has been delegated or appointed by the Issuer Trustee and for whom the Issuer
Trustee is responsible under the Transaction Documents, but excluding any
Relevant Party).
14. SUCCESSORS.
This Agreement shall inure to the benefit of and be binding upon the
Westpac Parties, the Issuer Trustee, the Underwriters, each affiliate of any
Underwriter which assists such Underwriter in the distribution of the Notes, any
controlling persons referred to herein and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. No purchaser of Notes from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
15. ACTIONS BY REPRESENTATIVES; NOTICES.
Any action by the Underwriters hereunder may be taken by the
Representatives jointly or by J.P. Morgan Securities Inc. alone on behalf of the
Underwriters, and any such action taken by the Representatives jointly or by
J.P. Morgan Securities Inc. alone shall be binding upon the Underwriters. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be given to the
Representatives c/o J.P. Morgan Securities Inc., 60 Wall Street, New York, New
York 10060-0060 (Facsimile No.: (212) 648-5909); Attention: Syndicate Desk.
Notices to the Trust Manager shall be given to it at c/o Westpac Banking
Corporation, 575 Fifth Avenue, 39th Floor, New York, New York 10017 (Facsimile
No. 212-682-0587), Attention: Lewis E. Love, Jr., with a copy to Level 4, 60
Martin
22
<PAGE>
Place, Sydney, NSW 2000, Attention: Susan Bannigan; to the Issuer Trustee shall
be given to it at c/o Westpac Banking Corporation, 575 Fifth Avenue, 39th Floor,
New York, New York 10017 (Facsimile No. 212-682-0587), Attention: Lewis E. Love,
Jr., with a copy to Level 5, 50 Pitt Street, Sydney, NSW 2000, Australia,
Attention: David Barwise and Bob Hamilton; and to Westpac shall be given to it
at 575 Fifth Avenue, 39th Floor, New York, New York 10017 (Facsimile No.
212-682-0587), Attention: Lewis E. Love, Jr.
16. COUNTERPARTS: APPLICABLE LAW.
This Agreement may be signed in counterparts, each of which shall be an
original and all of which together shall constitute one and the same instrument.
This Agreement shall be governed by and construed in accordance with the laws of
the State of New York, without giving effect to the conflicts of laws provisions
thereof.
23
<PAGE>
If the foregoing is in accordance with your understanding, please sign
and return the enclosed counterparts hereof.
Very truly yours,
WESTPAC SECURITISATION MANAGEMENT
PTY LIMITED
By:
-------------------------------------
Name:
Title:
WESTPAC SECURITIES ADMINISTRATION LIMITED
By:
-------------------------------------
Name:
Title:
WESTPAC BANKING CORPORATION
By:
-------------------------------------
Name:
Title:
24
<PAGE>
Accepted: May __, 1999
J.P. Morgan Securities Inc.
Morgan Stanley & Co. Incorporated
Acting severally on behalf of themselves and the several Underwriters listed in
Schedule I hereto.
J.P. MORGAN SECURITIES INC.
By:
-----------------------------------
Name:
Title:
MORGAN STANLEY & CO. INCORPORATED
By:
-----------------------------------
Name:
Title:
25
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT OF CLASS A
UNDERWRITER NOTES TO BE PURCHASED
- ----------- ---------------------------
<S> <C>
J.P. Morgan Securities Inc.............................
Morgan Stanley & Co. Incorporated......................
Westpac Banking Corporation............................
Deutsche Bank Securities, Inc..........................
Merrill Lynch, Pierce, Fenner and Smith
Incorporated...........................
Salomon Smith Barney Inc...............................
Nomura International plc...............................
Total................................
</TABLE>
26
<PAGE>
Exhibit 4.2
SERIES 1999-1G WST TRUST
SERIES NOTICE
- -------------------------------------------------------------------
WESTPAC SECURITIES ADMINISTRATION LIMITED
(Trustee)
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED
(Trust Manager)
WESTPAC BANKING CORPORATION
(Approved Seller)
CITIBANK, N.A., LONDON OFFICE
(Note Trustee)
THE MORTGAGE COMPANY PTY LIMITED
(Servicer)
ALLEN ALLEN & HEMSLEY
The Chifley Tower
2 Chifley Square
Sydney NSW 2000
Australia
Tel 61 2 9230 4000
Fax 61 2 9230 5333
(C) Copyright Allen Allen & Hemsley 1999
<PAGE>
ALLEN ALLEN
SERIES 1999-1G WST TRUST SERIES NOTICE & HEMSLEY
- --------------------------------------------------------------------------------
<TABLE>
TABLE OF CONTENTS
<S> <C>
1. INTRODUCTION AND TRUST MANAGER 1
1.1 Introduction 1
1.2 Trust Manager 1
2. DIRECTION AND TRUST BACK 1
3. DEFINITIONS AND INTERPRETATION 2
3.1 Definitions 2
3.2 Interpretation 26
3.3 Limitation of liability of the Trustee 27
3.4 Knowledge of Trustee 28
4. NOTES 28
4.1 Conditions of Notes 28
4.2 Summary of conditions of Notes 28
4.3 Issue of Notes 31
4.4 Trustee's Covenant to Noteholders 31
4.5 Repayment of Notes on Payment Dates 31
4.6 Final Redemption 32
4.7 Period During Which Interest Accrues 32
4.8 Calculation of Interest 32
4.9 Aggregate receipts 33
5. REDRAW FUNDING SECURITIES 33
5.1 Note Issue Direction for RFS 33
5.2 Conditions to Note Issue Direction 33
5.3 Terms of Note Issue Direction 34
5.4 Conversion of RFS 34
5.5 Master Trust Deed definitions 34
6. CASHFLOW ALLOCATION METHODOLOGY 35
6.1 General 35
- --------------------------------------------------------------------------------
</TABLE>
<PAGE>
ALLEN ALLEN
SERIES 1999-1G WST TRUST SERIES NOTICE & HEMSLEY
- --------------------------------------------------------------------------------
<TABLE>
<S> <C>
6.2 Determination Date - Calculations 35
6.3 Redraws 37
6.4 Determination Date - Payment Shortfall 37
6.5 Determination Date - Liquidity Shortfall 37
6.6 Allocating Liquidation Losses 38
6.7 Insurance claims 38
6.8 Remittance Date 38
6.9 Payment - Purchase Price adjustment 39
6.10 Total Payments 39
6.11 Excess Available Income - reimbursement of Charge Offs and Principal Draw 40
6.12 Excess Collections Distribution 41
6.13 Initial Principal Distributions 41
6.14 Principal Payments - Sequential Method 42
6.15 Principal Payments - Serial Method prior to third anniversary (procedure 1) 43
6.16 Principal Payments - Serial Method after third anniversary (procedure 2) 45
6.17 Remaining Liquidity Shortfall 46
6.18 Charge Offs 47
6.19 Payments into US$ Account 47
6.20 Payments out of US$ Account 48
6.21 Prepayment Costs and Prepayment Benefits 48
6.22 Rounding of amounts 49
6.23 Bond Factors 49
6.24 Trust Manager's Report 49
6.25 Prescription 49
6.26 Replacement of Currency Swap 49
7. MASTER TRUST DEED 50
7.1 Completion of details in relation to Master Trust Deed 50
7.2 Amendments to Master Trust Deed 51
8. TRANSFER OF PURCHASED RECEIVABLES - TOP UPS 51
9. TRANSFERS TO WAREHOUSE TRUST 52
- --------------------------------------------------------------------------------
</TABLE>
<PAGE>
ALLEN ALLEN
SERIES 1999-1G WST TRUST SERIES NOTICE & HEMSLEY
- --------------------------------------------------------------------------------
<TABLE>
<S> <C>
10. SUBSTITUTION OF PURCHASED RECEIVABLES 52
10.1 Purchase from Warehouse Trust 52
10.2 Contents of direction 52
10.3 Conditions to direction 53
10.4 Criteria for Replacement Receivable 53
10.5 Consent of Designated Ratings Agency 53
11. APPLICATION OF THRESHOLD RATE 54
11.1 Calculation of Threshold Rate 54
11.2 Setting Threshold Rate 54
11.3 Trustee Setting Threshold Rate 54
12. BENEFICIARY 54
12.1 Issue of Units 54
12.2 Residual Capital Unit 55
12.3 Residual Income Unit 55
12.4 Register 56
12.5 Transfer of Units 56
12.6 Limit on rights 57
13. TITLE PERFECTION EVENTS 57
14. ADDITIONAL RECEIVABLE PRODUCT FEATURES 57
15. WST WAREHOUSE TRUST #1 57
15.1 Direction under Warehouse Series Notice 57
15.2 Direction 57
16. SERVICER REPRESENTATIONS 58
17. WAREHOUSE TRUSTEE REPRESENTATIONS 60
18. NOTE TRUSTEE 61
18.1 Capacity 61
18.2 Exercise of rights 61
18.3 Representation and warranty 61
- --------------------------------------------------------------------------------
</TABLE>
<PAGE>
ALLEN ALLEN
SERIES 1999-1G WST TRUST SERIES NOTICE & HEMSLEY
- --------------------------------------------------------------------------------
<TABLE>
<S> <C>
18.4 Payments 61
19. WESTPAC UNDERTAKINGS 61
19.1 Set Off 61
19.2 Notice of actions 61
19.3 Notification of Trust 62
20. REDEMPTION 62
21. GOVERNING LAW AND JURISDICTION 62
- --------------------------------------------------------------------------------
</TABLE>
<PAGE>
ALLEN ALLEN
SERIES 1999-1G WST TRUST SERIES NOTICE & HEMSLEY
- --------------------------------------------------------------------------------
1. INTRODUCTION AND TRUST MANAGER
- --------------------------------------------------------------------------------
1.1 INTRODUCTION
This Series Notice is issued on 1999 by Westpac Securitisation
Management Pty Limited (ACN 081 709 211) of Level 25, 60 Martin Place,
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 14 February 1997 (the MASTER TRUST DEED)
between the The Mortgage Company Pty Limited (ACN 070 968 302) of Level
25, 60 Martin Place, Sydney, New South Wales and Westpac Securities
Administration Limited (ACN 000 049 472) of Level 10, 130 Pitt Street,
Sydney, New South Wales as trustee of the Series 1999-1G 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 (ACN 070 968 302) (the SERVICER)
agrees to service the Purchased Receivables and Purchased Receivable
Securities in accordance with the Servicing Agreement.
Citibank, N.A., London Office (the NOTE TRUSTEE) has agreed to act as
note trustee in relation to Notes issued by the Trust under the Note
Trust Deed and in accordance with this Series Notice.
1.2 TRUST MANAGER
(a) The Master Trust Deed is amended for the purpose of the Series
1999-1G WST Trust so that all references to TRUST MANAGER will
be taken to be references to Westpac Securitisation Management
Pty Limited of Level 25, 60 Martin Place, Sydney, New South
Wales, and each party agrees that:
(i) Westpac Securitisation Management Pty Limited will be
Trust Manager for the purposes of that Trust; and
(ii) The Mortgage Company Pty Limited will have no
obligations or liabilities as Trust Manager for the
purpose of that Trust.
This amendment does not relate to or affect any Other Trust.
(b) Westpac Securitisation Management Pty Limited will comply with
all obligations of the Trust Manager in relation to the Series
1999-1G WST Trust as named as such in the Master Trust Deed.
- --------------------------------------------------------------------------------
<PAGE>
ALLEN ALLEN
SERIES 1999-1G WST TRUST SERIES NOTICE & HEMSLEY
- --------------------------------------------------------------------------------
2. DIRECTION AND TRUST BACK
- --------------------------------------------------------------------------------
(a) A Trust Back, entitled WESTPAC 1999-1G 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 1999-1G WST Trust, and do not apply to any other
Trust (as defined in the Master Trust Deed).
A$ CLASS A COUPON AMOUNT means, for any Payment Date, the amount in
Australian dollars which is calculated:
(a) on a daily basis at the applicable rate set out in the
Confirmation relating to the Class A Notes (being
AUD-BBR-BBSW, as defined in the ISDA Definitions, as at the
first day of the Coupon Period ending on (but excluding) that
Payment Date with a designated maturity of 90 days plus the
Spread);
(b) on the A$ Equivalent of the aggregate of the Invested Amount
of the Class A Notes as at the first day of the Coupon Period
ending on (but excluding) that Payment Date; and
(c) on the basis of the actual number of days in that Coupon
Period and a year of 365 days.
A$ EQUIVALENT means:
(i) in relation to an amount denominated or to be
denominated in US$, the amount converted to (and
denominated in) A$ at the A$ Exchange Rate; or
(ii) in relation to an amount denominated or to be
denominated in A$, the amount of A$.
A$ EXCHANGE RATE means, on any date, the rate of exchange (set as at
the commencement of a Currency Swap) applicable under that Currency
Swap for the exchange of United States dollars for Australian dollars.
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ACCRUED INTEREST ADJUSTMENT means in relation to an Approved Seller,
all:
(a) interest and fees accrued on the Purchased Receivables,
purchased from that Approved Seller, up to (but excluding) the
Closing Date which are unpaid as at the close of business on
the Closing Date; and
(b) all amounts received by that Approved Seller under those
Purchased Receivables applied by the Servicer to payment of
interest and fees under those Purchased Receivables for the
period from (but excluding) the Cut-Off Date to (but
excluding) the Closing Date.
AGENCY AGREEMENT means the Agency Agreement dated [*] 1999 between the
Trustee, the Trust Manager, the Note Trustee, the Principal Paying
Agent and the Agent Bank.
AGENT BANK means the person appointed as agent bank under the Agency
Agreement from time to time.
APPLICATION FOR NOTES means an application for Registered Notes in the
form of schedule 1 to the Master Trust Deed or in such other form as
may from time to time be agreed between the Trustee and the Trust
Manager.
APPROVED SELLER means Westpac Banking Corporation (ARBN 007 457 141)
or, 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 of the Master Trust Deed, the Trustee in its capacity as
trustee of the WST Warehouse Trust #1.
ARREARS subsist in relation to a Purchased Receivable if the Obligor
under that Purchased Receivable fails to pay any amount due under that
Purchased Receivable on the day it was due. Delayed payments arising
from payment holidays based on early repayments (agreed in writing by
Westpac), or from maternity or paternity leave repayment reductions,
which are granted by Westpac or the Servicer will not, by themselves,
lead to a Purchased Receivable being in Arrears.
ASSET means any Loan, Mortgage or Related Security specified in each
Sale Notice which is to be acquired in favour of the Trust, or any
Authorised Investment acquired by the Trust.
AUTHORISED SIGNATORY means:
(a) in relation to the Note Trustee, any duly authorised officer
of Citibank, N.A., London Office and any other duly authorised
person of Citibank, N.A., London Office;
(b) in relation to the Principal Paying Agent, any duly authorised
officer of Citibank, N.A. and any other duly authorised person
of Citibank, N.A.; and
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(c) in relation to the Agent Bank, any duly authorised officer of
Citibank, N.A. and any other duly authorised person of
Citibank, N.A., London Office.
AVAILABLE INCOME means, in relation to the Trust for any Collection
Period, the total of the following:
(a) the Finance Charge Collections for the Trust for that
Collection Period; plus
(b) to the extent not included in paragraph (a):
(i) any amount received or due to be received by or on
behalf of the Trustee in relation to that Collection
Period on or by the Payment Date immediately
following the end of that Collection Period with
respect to net receipts under any Hedge Agreement
(other than the Currency Swap);
(ii) any interest income received by or on behalf of the
Trustee during that Collection Period in respect of
moneys credited to the Collection Account in relation
to the Trust;
(iii) amounts in the nature of interest otherwise paid by
Westpac, the Servicer or the Trust Manager to the
Trustee in respect of Collections held by it;
(iv) all other amounts received by or on behalf of the
Trustee in respect of the Assets in the nature of
income;
(v) all amounts received by or on behalf of the Trustee
during that Collection Period from any provider of a
Support Facility (other than the Currency Swap) under
that Support Facility and which the Trust Manager
determines should be accounted for to reduce a
Finance Charge Loss; and
(vi) any Substitution Net Transfer Amount (Income)
received by the Trust from a Warehouse Trust with
respect to that Collection Period,
but excluding interest credited to a Support Facility Collateral
Account and any amount payable by the Trustee under clause 6.26.
AVAILABLE LIQUIDITY AMOUNT means at any time the Liquidity Limit at
that time less the Liquidity Outstandings at that time, if positive.
AVERAGE QUARTERLY PERCENTAGE means, at any date, the sum of Quarterly
Percentages for the four full Collection Periods preceding that date,
divided by four.
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BANK means:
(a) for the purposes of paragraph (a) of the definition of
Business Day and the definition of US$ Account:
(i) a corporation authorised under the BANKING ACT 1959
(Cth) 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;
(ii) a person authorised under the BANKING ACT 1987 (UK)
to carry on a deposit taking business; or
(iii) a banking institution or trust company organised or
doing business under the laws of the United States or
any state thereof; and
(b) in any other case, a corporation authorised under the BANKING
ACT 1959 (Cth) 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.
BANK BILL RATE on any date means 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 Banking Corporation having regard to comparable
indices then available, PROVIDED THAT on the first day of any first
Coupon 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.
BASIS SWAP means, in relation to the master agreement dated on or about
the date of this Series Notice made between the Trustee as trustee of
the Trust, the Trust Manager and Westpac, on the terms of the ISDA
Master Agreement (with amendments thereto), each Transaction (as
defined in
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that agreement) entered into in accordance with that agreement in
relation to the interest rate risk arising from a Receivable which is
subject to either a variable rate set, as permitted by the relevant
Receivable Agreement, at the discretion of Westpac, or a concessionary
introductory fixed rate of 12 months or less as determined by Westpac.
BENEFICIARY means, in relation to the Trust, each holder of a Unit (as
defined in clause 12).
BOND FACTOR means the Class A Bond Factor, the Class B Bond Factor, the
RFS Class A Bond Factor or the RFS Bond Factor.
BOOK-ENTRY NOTE means a book-entry note issued or to be issued by the
Trustee in registered form under clause 3.1 of the Note Trust Deed
representing Class A Notes, substantially in the form of schedule 1 to
the Note Trust Deed.
BUSINESS DAY means:
(a) in relation to the Note Trust Deed, the Agency Agreement, any
Class A Note (including any Condition) and any payment of US$
under a Currency Swap, any day, other than a Saturday, Sunday
or public holiday, on which Banks are open for business in
London and New York, or as otherwise specified in the relevant
Conditions; and
(b) in relation to any Registered Notes, any other Transaction
Document and any payments of A$ under the Currency Swap, any
day, other than a Saturday, Sunday or public holiday, on which
Banks are open for business in Sydney.
CARRYOVER CHARGE OFF means, in relation to the Trust at any time, a
Carryover Class A Charge Off, a Carryover Class B Charge Off, a
Carryover RFS Charge Off, a Carryover RFS Class A Charge Off or a
Carryover Redraw Charge Off.
CARRYOVER CLASS A CHARGE OFF means, on any Determination Date in
relation to a Class A Note, the aggregate of Class A Charge Offs in
relation to that Class A Note prior to that Determination Date and
which have not been reinstated under clauses 6.11(a)(ii)(C) and
6.20(b)(ii).
CARRYOVER CLASS B CHARGE OFF means, on any 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 Determination Date and
which have not been reinstated under clause 6.11(a)(iii).
CARRYOVER REDRAW CHARGE OFF means, on any Determination Date, the
aggregate of Redraw Charge Offs prior to that Determination Date and
which have not been reinstated under clause 6.11(a)(ii)(D).
CARRYOVER RFS CHARGE OFF means, on any Determination Date in relation
to an RFS, the aggregate of RFS Charge Offs in relation to that
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RFS prior to that Determination Date and which have not been reinstated
under clause 6.11(a)(ii)(A).
CARRYOVER RFS CLASS A CHARGE OFF means, on any Determination Date in
relation to an RFS Class A Note, the aggregate of Class A RFS Charge
Offs in relation to that RFS Class A Note prior to that Determination
Date and which have not been reinstated under clause 6.11(a)(ii)(B).
CLASS A BOND FACTOR means, on a Determination Date, the aggregate of
the Class A Invested Amounts for all Class A Notes for that
Determination Date less all Class A Principal Payments to be made on
the next Payment Date divided by the aggregate Class A Initial Invested
Amount for all Class A Notes, expressed to seven decimal places.
CLASS B BOND FACTOR means, on a Determination Date, the aggregate of
the Class B Invested Amounts for all Class B Notes for that
Determination Date less all Class B Principal Payments to be made on
the next Payment Date divided by the aggregate Class B Initial Invested
Amount for all Class B Notes, expressed to seven decimal places.
CLASS A CHARGE OFF means, in relation to a Class A Note, the amount of
any reduction in the Class A Stated Amount for that Note under clause
6.18.
CLASS B CHARGE OFF means, in relation to a Class B Note, the amount of
any reduction in the Class B Stated Amount for that Note under clause
6.18.
CLASS A COUPON means all interest accrued on the Class A Notes in
respect of a Coupon Period in accordance with clause 4.8.
CLASS B COUPON means all interest accrued on the Class B Notes in
respect of a Coupon Period in accordance with clause 4.8.
CLASS A FOREX PERCENTAGE means, on any date the A$ Equivalent of the
Class A Stated Amounts at that date divided by the sum of the A$
Equivalent of the Class A Stated Amounts and the RFS Class A Stated
Amounts, as at that date, expressed as a percentage.
CLASS A INITIAL INVESTED AMOUNT means, in relation to any Class A Note,
the Initial Invested Amount of that Class A Note.
CLASS B INITIAL INVESTED AMOUNT means, in relation to any Class B Note,
the Initial Invested Amount of that Class B Note.
CLASS A NOTE means a Note issued as a Class A Note by the Trustee with
the characteristics of a Class A Note under this Series Notice and
includes any Book-Entry Note (or any part or interest in it) and any
Definitive Note, but does not include any RFS Class A Note.
CLASS A NOTEHOLDER means a Noteholder who holds a Class A Note.
CLASS B NOTE means a Note issued as a Class B Note by the Trustee with
the characteristics of a Class B Note under this Series Notice.
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CLASS B NOTEHOLDER means a Noteholder who holds a Class B Note.
CLASS A PERCENTAGE means, on a Determination Date, the sum of the
aggregate of:
(a) the A$ Equivalent of the Class A Stated Amounts;
(b) the RFS Class A Stated Amounts; and
(c) the Redraw Limit,
in each case for the preceding Determination Date as a percentage of
the sum of the A$ Equivalent of the Total Stated Amount, the RFS Class
A Stated Amounts and the Redraw Limit calculated as at the preceding
Determination Date.
CLASS B PERCENTAGE means, on a Determination Date, the aggregate of the
Class B Stated Amounts for the preceding Determination Date as a
percentage of the sum of the A$ Equivalent of the Total Stated Amount,
RFS Class A Stated Amounts and the Redraw Limit calculated as at the
preceding Determination Date.
CLASS A PRINCIPAL PAYMENT means each payment to the Class A Noteholders
under clause 6.20(b)(iii).
CLASS B PRINCIPAL PAYMENT means each payment to the Class B Noteholders
under clause 6.14 (a)(iii), 6.15(a)(C) and 6.16(a)(C).
CLASS A STATED AMOUNT means, on a Determination Date and in relation to
a Class A Note, an amount equal to:
(a) the Class A Initial Invested Amount for that Note; less
(b) the aggregate of all Class A Principal Payments made before
that Determination Date with respect to that Class A Note;
less
(c) Carryover Class A Charge Offs (if any) made in relation to
that Class A Note to the extent not reinstated under clause
6.11 before that Determination Date; less
(d) Class A Principal Payments (if any) to be made in relation to
that Class A Note on the next Payment Date; less
(e) Class A Charge Offs (if any) to be made in relation to that
Class A Note on the next Payment Date; plus
(f) the amount (if any) of the Excess Available Income applied in
reinstating the Stated Amount of that Class A Note under
clause 6.11(a)(ii) on that Determination Date.
CLASS B STATED AMOUNT means, on a Determination Date and in relation to
a Class B Note, an amount equal to:
(a) the Class B Initial Invested Amount for that Note; less
(b) the aggregate of all Class B Principal Payments made before
that Determination Date with respect to that Class B Note;
less
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(c) Carryover Class B Charge Offs (if any) made in relation to
that Class B Note to the extent not reinstated under clause
6.11 before that Determination Date; less
(d) Class B Principal Payments (if any) to be made in relation to
that Class B Note on the next Payment Date; less
(e) Class B Charge Offs (if any) to be made in relation to that
Class B Note on the next Payment Date; plus
(f) the amount (if any) of the Excess Available Income applied in
reinstating the Stated Amount of that Class B Note under
clause 6.11(a)(iii) on that Determination Date.
CLEARING AGENCY means an organisation registered as a CLEARING AGENCY
pursuant to Section 17A of the Exchange Act appointed by the Trust
Manager and the Trustee to hold Class A Notes (directly or through a
Common Depositary), and initially means DTC.
CLOSING DATE means, in relation to the Trust, 13 May 1999.
COLLECTION ACCOUNT means, in relation to the Trust, the Australian
dollar account, number 032 024 26 3813, with Westpac at 60 Martin
Place, Sydney, New South Wales, or any other account opened and
maintained by the Trustee with an Approved Bank under clause 27 of the
Master Trust Deed.
COLLECTION PERIOD means, in relation to a Payment Date, the period from
(and including) the tenth day of the Quarter preceding the Quarter in
which the Payment Date occurs to (and including) the ninth day of the
Quarter in which the Payment Date occurs. The first Collection Period
is the period from (but excluding) the Cut-Off Date to (and including)
9 August 1999. The last Collection Period is the period from (but
excluding) the last day of the previous Collection Period to (and
including) the Termination Date of the Trust.
COLLECTIONS means, in relation to the Trust for a period, Finance
Charge Collections and Gross Principal Collections for that period.
COMMON DEPOSITARY means Cede & Co. as depositary for DTC, or any other
common depositary for DTC or any other Clearing Agency appointed from
time to time to hold any Book-Entry Note.
CONDITIONS means the Conditions for the Class A Notes in the form set
out in schedule 3 to the Note Trust Deed (but, so long as the Class A
Notes are represented by Book-Entry Notes, with the deletion of any
provisions which are applicable only to the Definitive Notes), as the
same may from time to time be modified in accordance with this Series
Notice. Any reference in this Series Notice to a particular numbered
Condition shall be construed accordingly.
CONFIRMATION means, in respect of a Currency Swap, any Confirmation (as
defined in the Currency Swap).
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COUPON means a Class A Coupon, Class B Coupon, an RFS Class A Coupon or
RFS Coupon.
COUPON PAYMENT DATE means, for the purposes of the Master Trust Deed,
each Payment Date.
COUPON PERIOD means:
(a) in relation to the first Coupon Period of an RFS, the period
commencing on (and including) the issue date of that RFS and
ending on (but excluding) the next Payment Date;
(b) in relation to the final Coupon Period of an RFS, the period
commencing on (and including) the Payment Date immediately
preceding the date of conversion of that RFS under clause 5.4
and ending on (but excluding) that date of conversion;
(c) in relation to the first Coupon Period of any Class A Note or
Class B Note, the period commencing on (and including) the
Closing Date and ending on (but excluding) the first Payment
Date;
(d) in relation to the first Coupon Period of any RFS Class A
Note, the period commencing on (and including) the date on
which that RFS Class A Note converts from an RFS under clause
5.4 and ending on (but excluding) the first Payment Date
following that date;
(e) in relation to the final Coupon Period, the period commencing
on (and including) the Payment Date prior to the Maturity Date
and ending on (but excluding) the Maturity Date; and
(f) in relation to each other Coupon Period, each period
commencing on (and including) a Payment Date and ending on
(but excluding) the next Payment Date.
COUPON RATE means, in relation to:
(a) a Note (other than a Registered Note) and a Coupon Period,
LIBOR in relation to that Coupon Period; and
(b) in relation to a Registered Note and a Coupon Period, the Bank
Bill Rate on the first day of that Coupon Period,
plus, in all cases, the relevant Margin for the relevant Note.
CURRENCY SWAP means, in relation to each master agreement dated on or
about the date of this Series Notice between the Trustee as trustee of
the Trust, the Trust Manager and each Currency Swap Provider, on the
terms of the ISDA Master Agreement (with amendments thereto), each
Transaction (as defined in that agreement) entered into in accordance
with that agreement under which the relevant Currency Swap Provider
agrees to pay certain amounts in US$ to the Trustee in exchange for
certain amounts in A$ or any other Hedge Agreement on similar terms
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which, if entered into, will not result in the downgrading of, or
withdrawal of rating for, any Notes.
CURRENCY SWAP PROVIDER means:
(a) initially, Morgan Guaranty Trust Company of New York, London
Office and Westpac; and
(b) thereafter, any other person who is a party to a Currency
Swap.
CUT-OFF DATE means the date specified in the Sale Notice as the Cut-Off
Date.
DAY COUNT FRACTION means, for the purpose of the Currency Swap, the
basis for the calculation of interest on Class A Notes set out in
Clause 4.8(a)(iii).
DEALER AGREEMENT means the Underwriting Agreement or an RFS Dealer
Agreement.
DEFINITIVE NOTE means a note in definitive form (whether bearer or
registered) issued or to be issued in respect of Class A Notes under,
and in the circumstances specified in, clause 3.3 of the Note Trust
Deed, and includes any replacement for a Definitive Note issued under
Condition 11.
DESIGNATED MATURITY means, for the purpose of the Currency Swap, three
months.
DESIGNATED RATING AGENCY means:
(a) in the case of Class A Notes, S&P, Moody's and Fitch;
(b) in the case of Class B Notes, S&P and Fitch;
(c) in the case of RFSs and RFS Class A Notes, S&P or as otherwise
determined by the Trust Manager and advised to the Trustee.
DETERMINATION DATE means, in relation to the Trust for a Collection
Period, the date which is four Business Days prior to the Payment Date
following the end of that Collection Period.
DTC means the Depository Trust Company.
ELIGIBILITY CRITERIA means the criteria set out in the schedule to this
Series Notice.
ENFORCEMENT EXPENSES means the costs and expenses incurred by Westpac
or the Servicer in connection with the enforcement of any Purchased
Receivables or the related Receivable Rights referred to in clause
7.2(a) of the Servicing Agreement.
EXCESS AVAILABLE INCOME means, for a Collection Period, the amount (if
any) by which the Total Available Funds for the Collection Period
exceeds the Total Payments for the Collection Period.
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EXCESS COLLECTIONS DISTRIBUTION means, in relation to a Collection
Period, the amount (if any) by which the Excess Available Income for
that Collection Period exceeds the amounts applied under clause 6.11 on
the Determination Date relating to that Collection Period.
FINANCE CHARGE COLLECTIONS means, for a Collection Period, the
aggregate of:
(a) the aggregate of all amounts received by or on behalf of the
Trustee during that Collection Period in respect of Government
Charges, interest, fees and other amounts in the nature of
income payable under or in respect of the Purchased
Receivables and the related Receivable Rights, to the extent
not included within any other paragraph of this definition,
including:
(i) any Liquidation Proceeds received on account of
interest;
(ii) any payments by Westpac to the Trustee on the
repurchase of a Purchased Receivable under the Master
Trust Deed during that Collection Period which are
attributable to interest;
(iii) any amounts in the nature of interest adjustments
received by the Trust from the Trustee as trustee of
a Warehouse Trust in relation to the transfer of
Purchased Receivables and Purchased Receivable
Securities from the Trust to that Warehouse Trust;
and
(iv) the Prepayment Cost Surplus for that Collection
Period (if any);
(b) all amounts in respect of interest, fees and other amounts in
the nature of income, received by or on behalf of the Trustee
during that Collection Period including:
(i) from an Approved Seller, in respect of any breach of
a representation, warranty or undertaking contained
in the Master Trust Deed or this Series Notice;
(ii) from an Approved Seller under any obligation under
the Master Trust Deed or this Series Notice to
indemnify or reimburse or pay damages to the Trustee
for any amount;
(iii) from the Servicer in respect of any breach of a
representation, warranty or undertaking contained in
the Servicing Agreement or the Series Notice; and
(iv) from the Servicer under any obligation under the
Servicing Agreement or the Series Notice to indemnify
or reimburse or pay damages to the Trustee for any
amount,
in each case which are determined by the Trust Manager to be
in respect of interest, fees and other amounts in the nature
of
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income payable under the Purchased Receivables and the related
Receivable Rights; and
(c) Recoveries received by or on behalf of the Trustee during that
Collection Period; less:
(d) the Government Charges collected by or on behalf of the
Trustee for that Collection Period;
(e) the aggregate of all fees and charges due to the Servicer or
Westpac under the Receivables as agreed by them from time to
time and collected by Westpac or the Servicer during that
Collection Period; and
(f) the Prepayment Cost Surplus (if any) due to Westpac under
clause 6.21(b) for that Collection Period and collected by
Westpac or the Servicer during that Collection Period.
FINANCE CHARGE LOSS means, for a Collection Period, the amount of all
Liquidation Losses referred to in clause 6.6(a).
GOVERNMENT CHARGES means, for any Collection Period, the aggregate of
all amounts collected by the Servicer or Westpac in respect of the
Purchased Receivables and the related Receivable Rights representing
financial institutions duty, bank accounts debit tax or similar Taxes.
GROSS PRINCIPAL COLLECTIONS means, for a Collection Period, the
aggregate of:
(a) all amounts received by or on behalf of the Trustee from or on
behalf of Obligors under the Purchased Receivables during the
Collection Period in respect of principal, in accordance with
the terms of the Purchased Receivables, including principal
prepayments;
(b) all other amounts received by or on behalf of the Trustee
under or in respect of principal under the Purchased
Receivables and the related Receivable Rights during that
Collection Period including:
(i) any Liquidation Proceeds received on account of
principal;
(ii) any payments by Westpac to the Trustee on the
repurchase of a Purchased Receivable under the Master
Trust Deed during that Collection Period which are
attributable to principal;
(iii) any payments by the Trustee (as trustee of a
Warehouse Trust) on the purchase by that Warehouse
Trust of any Assets of the Trust which are
attributable to principal;
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(iv) any Prepayment Costs applied towards Prepayment
Benefits under clause 6.21(a); and
(v) any Prepayment Benefit Shortfall paid by Westpac to
the Trust under clause 6.21(c);
(c) all amounts received by or on behalf of the Trustee during
that Collection Period from any provider of a Support Facility
(other than the Currency Swap) under that Support Facility and
which the Trust Manager determines should be accounted for to
reduce a Principal Loss;
(d) all amounts received by or on behalf of the Trustee during
that Collection Period:
(i) from an Approved Seller, in respect of any breach of
a representation, warranty or undertaking contained
in the Master Trust Deed or this Series Notice;
(ii) from an Approved Seller under any obligation under
the Master Trust Deed or this Series Notice to
indemnify or reimburse or pay damages to the Trustee
for any amount;
(iii) from the Servicer, in respect of any breach of any
representation, warranty or undertaking contained in
the Servicing Agreement; and
(iv) from the Servicer under any obligation under the
Servicing Agreement to indemnify or reimburse or pay
damages to the Trustee for any amount,
in each case, which are determined by the Trust Manager to be
in respect of principal payable under the Purchased
Receivables and the related Receivable Rights;
(e) any amounts in the nature of principal received by or on
behalf of the Trustee during that Collection Period pursuant
to the sale of any Asset (including any amount received by the
Trustee on the issue of Notes, or the A$ Equivalent of that
amount if the relevant Notes are denominated in US$, which was
not used to purchase a Purchased Receivable or Purchased
Receivable Security and which the Trust Manager determines is
surplus to the requirements of the Trust);
(f) for the purposes of clause 6.11 only, any amount of Excess
Available Income to be applied to pay a Principal Charge Off
or a Carryover Charge Off;
(g) any amount received by or on behalf of the 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;
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(h) any Excess Available Income to be applied under clause
6.11(a)(iv) to Principal Draws made on a previous Payment
Date;
(i) any Prepayment Calculation Adjustment for that Collection
Period; and
(j) any Substitution Net Transfer Amount (Principal) received by
the Trust from a Warehouse Trust with respect to that
Collection Period,
but excludes any amount payable by the Trustee under clause 6.26.
HEDGE AGREEMENT in relation to the Trust includes the Basis Swap, any
Interest Rate Swap or (notwithstanding the definition of HEDGE
AGREEMENT in the Master Trust Deed) the Currency Swap.
HOUSING LOAN PRINCIPAL means, in relation to a Purchased Receivable,
the principal amount of that Purchased Receivable from time to time.
INCOME PERCENTAGE means, in relation to the holder of a Residual Income
Unit (as defined in clause 12) at any time, the subscription price paid
by that person for that Residual Income Unit divided by the total
subscription prices of all Residual Income Units recorded in the
Register maintained under clause 12 at that time, expressed as a
percentage.
INFORMATION MEMORANDUM means the Prospectus dated [*] relating to the
Trust and the Notes.
INITIAL INVESTED AMOUNT means, in respect of a Note, the amount stated
as the Initial Invested Amount for that Note in clause 4.2(e).
INITIAL PRINCIPAL DISTRIBUTION means any distribution of Principal
Collections in accordance with clause 6.13.
INITIAL SUBORDINATED PERCENTAGE means [2.44%].
INTEREST RATE SWAP means, in relation to the master agreement dated on
or about the date of this Series Notice made between the Trustee as
trustee of the Trust, the Trust Manager and Westpac Banking
Corporation, on the terms of the ISDA Master Agreement (with amendments
thereto), each Transaction (as defined in that agreement) entered into
in accordance with that agreement in relation to the interest rate risk
arising from a Receivable which is a Fixed Option Home Loan or which is
otherwise subject to a fixed rate of interest (other than a Receivable
subject to a concessional introductory fixed rate of interest for 12
months or less).
INVESTED AMOUNT means, on any day in relation to a Note, the Initial
Invested Amount of that Note minus the aggregate of Principal Payments
made or to be made in respect of the Note on or before that date.
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ISDA DEFINITIONS means the 1991 Definitions (as supplemented by the
1998 Supplement) published by the International Swaps and Derivatives
Association, Inc.
LIBOR means, in relation to any Coupon Period, the rate of interest
determined by the Agent Bank on the basis of the following paragraphs.
On the second Business Day before the beginning of each Coupon Period
(each a COUPON DETERMINATION Date), the Agent Bank will determine the
rate "USD-LIBOR-BBA" as the applicable Floating Rate Option under the
ISDA Definitions being the rate applicable to any Coupon Period for
three-month deposits in US dollars which appears on the Telerate Page
3750 as of 11.00 a.m., London time, on the Coupon Determination Date.
If such rate does not appear on the Telerate Page 3750, the rate for
that Coupon Period will be determined as if "USD-LIBOR-Reference Banks"
were the applicable Floating Rate Option under the ISDA Definitions.
Provided that on the first day of the first Coupon 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.
In this definition of LIBOR, BUSINESS DAY means any day on which
commercial banks are open for business (including dealings in foreign
exchange and foreign currency deposits) in London.
LEAD MANAGER means:
(a) in relation to the Underwriting Agreement, any Manager; and
(b) in relation to an RFS Dealer Agreement, any person identified
as a "Lead Manager" in that RFS Dealer Agreement for the
purposes of this Series Notice.
LIQUIDITY FACILITY AGREEMENT means, in relation to the Trust, the
agreement so entitled dated on or about the date of this Series Notice
between the Trustee, the Trust Manager and the Liquidity Facility
Provider.
LIQUIDITY FACILITY PROVIDER means, in relation to the Trust, Westpac
Banking Corporation.
LIQUIDATION LOSS means, for a Collection Period in relation to a
Purchased Receivable which is being enforced, the amount (if any) by
which the Unpaid Balance of the Purchased Receivable (together with the
Enforcement Expenses relating to the Purchased Receivable and the
related Receivable Rights) exceeds the Liquidation Proceeds in relation
to the Purchased Receivable.
LIQUIDATION PROCEEDS means, in relation to a Purchased Receivable and
the related Receivable Rights which have been or are being enforced,
all amounts recovered, or determined by the Servicer as likely to be
recovered, in respect of the enforcement of the Purchased Receivable
and
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the related Receivable Rights (but does not include the proceeds of any
Mortgage Insurance Policy).
LIQUIDITY DRAW means a drawing under the Liquidity Facility.
LIQUIDITY LIMIT means the commitment of the Liquidity Facility Provider
under the Liquidity Facility, as varied from time to time.
LIQUIDITY OUTSTANDINGS means, at any time, the total principal amount
of all outstanding Liquidity Draws at that time.
LIQUIDITY SHORTFALL means, in relation to a Collection Period, the
amount (if any) by which the Total Payments for the Collection Period
exceed the aggregate of the Available Income and any Principal Draws
for the Collection Period.
MANAGER means:
(a) in relation to the Underwriting Agreement, any person
identified as an "Underwriter" in the Underwriting Agreement
for the purposes of this Series Notice; and
(b) in relation to an RFS Dealer Agreement, any person identified
as a "Manager" in that RFS Dealer Agreement for the purposes
of this Series Notice.
MARGIN means, in relation to any Note, the Margin for that Note
specified in clause 4.2(d).
MATURITY DATE means, in relation to a Note, the Maturity Date for that
Note specified in clause 4.2(i).
MORTGAGE includes any Mortgage originated by Westpac which is
transferred to the Trustee by the Warehouse Trustee (as Approved
Seller) from the Warehouse Trust.
MORTGAGE INSURER means Housing Loans Insurance Corporation Pty Limited,
Royal and Sun Alliance Lenders Mortgage Insurance Limited, MGICA
Limited or Westpac Lenders Mortgage Insurance Limited.
MORTGAGE SHORTFALL means, in relation to a Purchased Receivable, the
amount (if a positive number) equal to the Principal Loss for that
Purchased Receivable minus the aggregate of:
(a) the total amount recovered and recoverable in respect of that
Purchased Receivable under the Mortgage Insurance Policies,
determined to be attributable to principal under clause
6.7(b); and
(b) the total amount recovered and recoverable by the Trustee from
the Approved Sellers or the Servicer (as the case may be) in
respect of that Purchased Receivable (by way of damages or
otherwise) under or in respect of the Master Trust Deed, this
Series Notice or the Servicing Agreement (as the case may be),
determined by the Trust Manager to be attributable to
principal.
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For the purposes of:
(c) this definition, an amount shall be regarded as not
recoverable upon the earlier of:
(i) a determination being made, in the case of paragraph
(a), by the Trust Manager, and in the case of
paragraph (b), by the Trustee, in each case upon the
advice of such suitably qualified expert advisers as
the Trust Manager or the Trustee (as the case may be)
thinks fit, that there is no such amount, or that
such amount is not likely to be recovered (including
because the relevant Mortgage Insurance Policy has
been terminated, the Mortgage Insurer is entitled to
reduce the amount of the claim or the Mortgage
Insurer defaults in payment of a claim); and
(ii) the date which is two years after the Determination
Date upon which the relevant Principal Loss was
determined under clause 6.6(b); and
(d) this Series Notice, a Mortgage Shortfall arises on the date
upon which there are no further amounts referred to in (a) and
(b) recoverable in respect of the relevant Purchased
Receivable.
NOTE means a Class A Note, a Class B Note, an RFS Class A Note or an
RFS referred to in clauses 4 and 5, and includes:
(a) the Conditions relating to a Class A Note; and
(b) any interest in a Book-Entry Note as an account holder with a
Clearing Agency.
NOTE ACKNOWLEDGEMENT means an acknowledgment of the registration of a
person as the holder of a Registered Note in the form set out in
schedule 2 to the Master Trust Deed 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 Registered Notes
materially in the form of schedule 4 to the Master Trust Deed or in
such other form as may from time to time be agreed between the Trustee
and the Trust Manager.
NOTEHOLDER means, at any time, the person who:
(a) in relation to a Registered Note, is registered as the holder
of that Note at that time;
(b) in relation to a Definitive Note, is the registered holder of
that Note (in the case of registered Definitive Notes) or
bearer of that Note (in the case of bearer Definitive Notes)
at that time; or
(c) in relation to a Note which is represented by a Book-Entry
Note, is the registered holder of that Note at that time,
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except that for the purposes of payments in respect of Book-Entry
Notes, the right to those payments shall be vested, as against the
Trustee and the Note Trustee in respect of the Trust, by payment to the
Clearing Agency in accordance with and subject to their respective
Conditions and the provisions of this Series Notice and the Note Trust
Deed. The words HOLDER and HOLDERS shall (where appropriate) be
construed accordingly.
NOTE PARTY means the Agent Bank, each Paying Agent and the Note
Registrar.
NOTE REGISTRAR means Citibank, N.A., London Office or any successor
note registrar approved in writing by the Note Trustee and appointed
under the Agency Agreement.
NOTE REGISTER means the register kept by the Note Registrar to provide
for the registration and transfer of Class A Notes under the Note Trust
Deed.
NOTE TRUST DEED means the deed so entitled dated on or about the date
of this Series Notice between the Trustee, the Trust Manager and the
Note Trustee.
NOTE TRUSTEE means Citicorp Trustee Company Limited.
NOTICE DATE means, in relation to a Collection Period, the date which
is the Business Day prior to the Payment Date following the end of that
Collection Period.
NOTICE OF CREATION OF TRUST means the Notice of Creation of Trust dated
[*] May 1999 issued under the Master Trust Deed in relation to the
Trust.
OTHER TRUST means any Trust (as defined in the Master Trust Deed) other
than the Trust.
PAYING AGENT means any person appointed as a Paying Agent under the
Agency Agreement, including the Principal Paying Agent.
PAYMENT DATE, in relation to a Note, has the meaning given in relation
to that Note in clause 4.2(h).
PAYMENT SHORTFALL means, in relation to a Collection Period, the amount
(if any) by which the Total Payments for that Collection Period exceed
the Available Income for that Collection Period.
PREPAYMENT BENEFIT means, on the early discharge of a Purchased
Receivable which is a Housing Loan bearing a fixed rate of interest
(other than a Receivable subject to a concessionary rate of interest
for 12 months or less), the amount (if any) credited to the relevant
Obligor's loan account by Westpac by means of a reduction in the
Housing Loan Principal of that Purchased Receivable, in accordance with
the relevant Receivable Agreement.
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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.
PREPAYMENT CALCULATION ADJUSTMENT means, in relation to a Purchased
Receivable, any amount credited to the Obligor by Westpac under that
Purchased Receivable to reflect an interest adjustment resulting from a
change in computer systems.
PREPAYMENT COST means, on the early discharge of a Purchased Receivable
which is a Housing Loan bearing a fixed rate of interest (other than a
Receivable subject to a concessionary rate of interest for 12 months or
less), the amount (if any) owed by the relevant Obligor and collected
by Westpac, in accordance with the relevant Receivable Agreement.
PREPAYMENT COST SURPLUS means, in relation to a Collection Period, the
amount by which the total of all Prepayment Costs for that Collection
Period exceeds the total of all Prepayment Benefits for that Collection
Period.
PRINCIPAL CHARGE OFF means, in relation to any Collection Period, the
aggregate of all Mortgage Shortfalls for that Collection Period.
PRINCIPAL COLLECTIONS means, for a Collection Period:
(a) the Gross Principal Collections for that Collection Period;
less
(b) any amounts deducted by or paid to Westpac under clause 6.3(a)
to reimburse Redraws funded by Westpac during that Collection
Period for which Westpac has not previously been reimbursed.
PRINCIPAL DRAW means, for a Collection Period, the amount calculated
under clause 6.4 in relation to that Collection Period.
PRINCIPAL ENTITLEMENT means, in relation to a Note for the purposes of
the Master Trust Deed on any date, the Stated Amount of that Note at
that date.
PRINCIPAL LOSS means, for a Collection Period in relation to a
Purchased Receivable, the amount of any Liquidation Loss for that
Purchased Receivable for that Collection Period referred to in clause
6.6(b).
PRINCIPAL OUTSTANDING has the meaning given in the Redraw Facility
Agreement.
PRINCIPAL PAYING AGENT means Citibank, N.A., London Office, or any
successor as Principal Paying Agent under the Agency Agreement.
PRINCIPAL PAYMENT means a Class A Principal Payment, a Class B
Principal Payment, an RFS Class A Principal Payment or an RFS Principal
Payment.
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PRINCIPAL REPAYMENT DATE means, in relation to a Note for the purposes
of the Master Trust Deed, the Maturity Date for that Note and each date
on which the Invested Amount or Stated Amount is reduced under this
Series Notice.
PROPERTY RESTORATION EXPENSES means costs and expenses incurred by or
on behalf of the Trustee, or by the Servicer under the Servicing
Agreement, in repairing, maintaining or restoring to an appropriate
state of repair and condition any Mortgaged Property, in exercise of a
power conferred on the mortgagee under the Purchased Receivable and
Relevant Documents relating thereto.
PURCHASED RECEIVABLE means each Loan specified in the Sale Notice
(including any Redraw in respect of that Loan), unless the Trustee has
ceased to have an interest in that Loan.
PURCHASED RECEIVABLE SECURITY means each Mortgage specified in the Sale
Notice, unless the Trustee has ceased to have an interest in that
Mortgage.
QUARTER means each three month period in a year which period begins on
1 February, 1 May, 1 August or 1 November.
QUARTERLY PERCENTAGE means, for a Collection Period, the aggregate
Housing Loan Principal of all Purchased Receivables which are in
Arrears for more than 60 consecutive days as at close of business on
the last day of that Collection Period, expressed as a percentage of
the aggregate Housing Loan Principal of all Purchased Receivables as at
close of business on the last day of that Collection Period.
RECEIVABLE means, in relation to the Trust, the rights of the relevant
Approved Seller or the Trustee (as the case may require) under or in
respect of Loans constituted upon acceptance of Westpac's standard Loan
Offer for:
(a) a Premium Option Home Loan;
(b) a Fixed Options Home Loan;
(c) a Special Offer Fixed Options Home Loan;
(d) a First Option Home Loan earning a variable rate of interest;
(e) a Premium Option Home Loan with 1 Year Guaranteed Rate;
(f) a Fixed Rate Investment Property Loan;
(g) a Variable Rate Investment Property Loan earning a variable
rate of interest;
(h) an Investment Loan with 1 Year Guaranteed Rate earning a
concessional introductory rate fixed for up to one year; or
(i) a First Option Investment Property Loan earning a variable
rate of interest.
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(or any variation of those products after the Sale Notice is or was
given) as varied by Westpac's standard letter of variation, or any
other Receivables (as defined in the Master Trust Deed) originated by
Westpac which is acceptable to the Trustee (in all cases in the form
certified by Westpac before the Sale Notice is or was given, and as
certified thereafter from time to time).
RECORD DATE means:
(i) with respect to a Payment Date for any Registered
Note, 4.00pm (Sydney time) on the second Business Day
before that Payment Date;
(ii) with respect to the Payment Date for any Book-Entry
Note, close of business on the second Business Day
before that Payment Date; and
(iii) with respect to the Payment Date for any Definitive
Note, the last day of the calendar month before that
Payment Date.
RECOVERY means any amount received by Westpac or the Servicer under or
in respect of a Purchased Receivable and the related Receivable Rights
at any time after a Finance Charge Loss or Principal Loss has arisen in
respect of that Purchased Receivable (other than any amount received
under a Mortgage Insurance Policy), provided that amount is not
otherwise payable to an insurer under a Mortgage Insurance Policy.
REDRAW means, in relation to any Collection Period, an amount provided
to an Obligor by Westpac under a Purchased Receivable in respect of any
principal prepayments previously made to the Obligor's loan account in
accordance with the terms of the Obligor's Purchased Receivable.
REDRAW CHARGE OFF means the amount of any reduction in the Principal
Outstanding under the Redraw Facility Agreement under clause
6.18(b)(iv) of this Series Notice.
REDRAW FACILITY AGREEMENT means, in relation to the Trust, the
agreement so entitled dated on or about the date of this Series Notice
between the Trustee, the Trust Manager and the Redraw Facility
Provider.
REDRAW FACILITY PROVIDER means, in relation to the Trust, Westpac
Banking Corporation.
REDRAW LIMIT means the Redraw Limit as defined in the Redraw Facility
Agreement.
REDRAW SHORTFALL means, on each Determination Date, the aggregate of
Redraws made prior to that Determination Date which remain outstanding
after applying Gross Principal Collections towards reimbursement of
those Redraws under clause 6.3.
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REFERENCE BANK means any financial institution authorised to quote on
the Reuters Screen BBSW Page.
REGISTERED NOTE means an RFS, an RFS Class A Note or a Class B Note.
REGISTERED NOTE PAYMENT DATE means a Payment Date for a Registered
Note.
REGISTERED NOTEHOLDER means a person who is a Noteholder in relation to
a Registered Note.
REMAINING LIQUIDITY SHORTFALL means, in relation to a Collection
Period, the amount (if any) by which the Liquidity Shortfall (if any)
for that Collection Period exceeds the Available Liquidity Amount for
that Collection Period.
REMITTANCE DATE means, in relation to a Collection Period, the date
which is two Business Days prior to the Payment Date following the end
of that Collection Period.
RFS means a debt security issued by the Trustee as trustee of the Trust
under clause 5.
RFS BOND FACTOR means, on a Determination Date, for each RFS Series,
the RFS Invested Amount less any RFS Principal Payments to be made on
the next Payment Date divided by the aggregate RFS Initial Invested
Amount for all RFSs, expressed to seven decimal places.
RFS CHARGE OFF means the amount of any reduction in the RFS Stated
Amount under clause 6.18(b)(iii).
RFS CLASS A BOND FACTOR means, on a Determination Date, for all
outstanding RFS Class A Notes, the RFS Class A Invested Amount less any
RFS Class A Principal Payments to be made on the next Payment Date
divided by the aggregate RFS Class A Initial Invested Amount for all
RFS Class A Notes, expressed to seven decimal places.
RFS CLASS A CHARGE OFF means the amount of any reduction in the RFS
Class A Stated Amount under clause 6.18(b)(ii).
RFS CLASS A COUPON means all interest on the RFS Class A Notes in
respect of a Coupon Period in accordance with clause 4.8.
RFS CLASS A FOREX PERCENTAGE means, on any date, 100% minus the Class A
Forex Percentage as at that date, expressed as a percentage.
RFS CLASS A INITIAL INVESTED AMOUNT means, in relation to any RFS Class
A Note, the Initial Invested Amount of that RFS Class A Note.
RFS CLASS A INVESTED AMOUNT means, in relation to any RFS Class A Note
at any time, the Invested Amount of that RFS Class A Note at that time.
RFS CLASS A NOTE means any RFS which is converted to a Class A Note
under clause 5.4.
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RFS CLASS A PRINCIPAL PAYMENT means each payment to the holder of an
RFS Class A Note under clause 6.15(B)(2) or 6.16(B)(2).
RFS CLASS A STATED AMOUNT means, on a Determination Date and in
relation to an RFS Class A Note, an amount equal to:
(a) the RFS Class A Initial Invested Amount for that RFS Class A
Note; less
(b) the aggregate of all RFS Class A Principal Payments made
before that Determination Date with respect to that RFS Class
A Note; less
(c) Carryover RFS Class A Charge Offs (if any) made in relation to
that RFS Class A Notes to the extent not reinstated under
clause 6.11 before that Determination Date; less
(d) RFS Class A Principal Payments (if any) to be made in relation
to that RFS Class A Note on the next Payment Date; less
(e) RFS Class A Charge Offs (if any) to be made in relation to
that RFS Class A Note on the next Payment Date; plus
(f) the amount (if any) of the Excess Available Income applied in
reinstating the Stated Amount of that RFS Class A Note under
clause 6.11(a)(ii) on that Determination Date.
RFS COUPON means all interest accrued on the RFSs in respect of a
Coupon Period in accordance with clause 4.8.
RFS DEALER AGREEMENT means, in relation to any RFSs, any dealer
agreement which may be entered into by the Trustee, the Trust Manager
and any other person from time to time in relation to subscription for
those RFSs.
RFS INITIAL INVESTED AMOUNT means, in relation to any RFS, the Initial
Invested Amount of that RFS.
RFS INVESTED AMOUNT means, at any time, the Invested Amount of that RFS
at that time.
RFS PRINCIPAL PAYMENT means each payment to the holders of an RFS under
clause 6.13(a)(iv).
RFS SERIES means a tranche of RFSs with the same issue date, maturity
date and series number.
RFS STATED AMOUNT means, on a Determination Date and in relation to an
RFS, an amount equal to:
(a) the RFS Initial Invested Amount for that RFS; less
(b) the aggregate of all RFS Principal Payments made before that
Determination Date with respect to that RFS; less
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(c) Carryover RFS Charge Offs (if any) made in relation to that
RFS to the extent not reinstated under clause 6.11 before that
Determination Date; less
(d) RFS Principal Payments (if any) to be made in relation to that
RFS on the next Payment Date; less
(e) RFS Charge Offs (if any) to be made in relation to that RFS on
the next Payment Date; plus
(f) the amount (if any) of the Excess Available Income applied in
reinstating the Stated Amount of that RFS under clause
6.11(a)(ii) on that Determination Date.
SALE NOTICE means any Sale Notice (as defined in the Master Trust Deed)
which may be given by Westpac or the Warehouse Trustee to the Trustee
as trustee of the Trust after the date of execution of this Series
Notice and which is subsequently accepted by the Trustee.
SECURITY TRUST DEED means the security trust deed dated [*] May 1999
between the Trustee, the Trust Manager, the Note Trustee and the
Security Trustee.
SECURITY TRUSTEE means Perpetual Trustee Company Limited (ACN 000 001
007).
SERVICER'S REPORT means each report to be prepared by the Servicer
under clause 6.5 of the Servicing Agreement.
SERVICING AGREEMENT means the agreement so entitled dated 18 February
1997 as amended by the Servicing Agreement Series 1999-1G Amendment
Agreement dated on or about the date of this Series Notice between the
Trustee, the Trust Manager and the Servicer.
SERVICING FEE means the fee payable under clause 7.1(c) of this Series
Notice and clause 7.1 of the Servicing Agreement.
SPREAD, in relation to any amount to be paid under a Currency Swap, has
the meaning given in that Currency Swap in respect of payments by the
Trustee under that Currency Swap.
STATED AMOUNT means a Class A Stated Amount, a Class B Stated Amount,
an RFS Class A Stated Amount or an RFS Stated Amount.
STOCK EXCHANGE means the London Stock Exchange Limited.
SUBORDINATED PERCENTAGE means, at any time, the aggregate of the Class
B Stated Amounts divided by the sum of:
(a) the A$ Equivalent of the Total Stated Amount at that time;
(b) the Redraw Limit at that time;
(c) the aggregate of the RFS Stated Amounts at that time; and
(d) the aggregate of the RFS Class A Stated Amounts at that time.
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SUBSTITUTION means, in relation to any Receivable comprising an Asset
of an Other Trust, the transfer of that Receivable by the Trustee as
trustee of that Other Trust (expressed in the Series Notice for that
Other Trust) to the Trust, in exchange for a Receivable which comprises
an Asset of the Trust as contemplated under clause 10.
SUBSTITUTION NET TRANSFER AMOUNT means a Substitution Net Transfer
Amount (Principal) or a Substitution Net Transfer Amount (Income).
SUBSTITUTION NET TRANSFER AMOUNT (INCOME) means, in relation to a
Substitution of a Receivable on any day:
(i) the Unpaid Balance (other than any unpaid principal
amount) of the Receivable acquired by the relevant
Warehouse Trust from the Trust in relation to the
Substitution on that day; minus
(ii) the Unpaid Balance (other than any unpaid principal
amount) of the Receivable acquired by the Trust from
the relevant Warehouse Trust in relation to the
Substitution on that day,
but only if that amount is positive.
SUBSTITUTION NET TRANSFER AMOUNT (PRINCIPAL) means, in relation to a
Substitution of a Receivable on any day:
(i) the unpaid principal amount of the Receivable
acquired by the relevant Warehouse Trust from the
Trust in relation to the Substitution on that day;
minus
(ii) the unpaid principal amount of the Receivable
acquired by the Trust from the relevant Warehouse
Trust in relation to the Substitution on that day,
but only if that amount is positive.
SUPPORT FACILITY COLLATERAL ACCOUNT means, in relation to a Support
Facility, each Collateral Account as defined in that Support Facility.
SWAP PROVIDER means, in relation to a Hedge Agreement, the counterparty
which enters into that arrangement with the Trustee.
THRESHOLD RATE means, at any time, the minimum rate of interest that
must be set on all Purchased Receivables where permitted under the
relevant Receivable Agreement which will be sufficient (assuming that
all relevant parties comply with their obligations at all times under
the Transaction Documents, the Purchased Receivables and the related
Receivable Rights), when aggregated with the income produced by the
rate of interest on all other Purchased Receivables, to ensure that the
Trustee will have available to it sufficient Collections to enable it
to comply with its obligations under the Transaction Documents relating
to the Trust as they fall due (including the repayment of any Principal
Draws by the Maturity Date of all Notes and the payment of all A$
denominated amounts to each Currency Swap Provider under the
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relevant Currency Swap necessary to enable the Trustee to pay all
Coupons due on Class A Notes from time to time).
TITLE PERFECTION EVENT means, in relation to the Trust, the events set
out in clause 13.
TOTAL AVAILABLE FUNDS means, for a Collection Period, the aggregate of:
(a) the Available Income for that Collection Period;
(b) any Principal Draw which the Trustee is required to allocate
under clause 6.13(a)(ii) on or before the Payment Date for
that Collection Period; and
(c) any Liquidity Draw which the Trustee is required to make under
clause 6.5 on or before the Payment Date for that Collection
Period.
TOTAL CARRYOVER CHARGE OFF means, on any date, the sum of:
(a) all Carryover Class A Charge Offs for all Class A Notes (other
than RFS Class A Notes) as at that date;
(b) the US$ Equivalent of all Carryover Class B Charge Offs for
all Class B Notes as at that date;
(c) the US$ Equivalent of all Carryover RFS Charge Offs for all
RFSs as at that date; and
(d) the US$ Equivalent of all Carryover RFS Class A Charge Offs
for all RFS Class A Charge Offs as at that date.
TOTAL INITIAL INVESTED AMOUNT means, at any time, the sum of:
(a) all Initial Invested Amounts of all Class A Notes; and
(b) the US$ Equivalent of all Initial Invested Amounts of all
Registered Notes,
at that time.
TOTAL INVESTED AMOUNT means, at any time, the sum of:
(a) all Invested Amounts of all Class A Notes; and
(b) the US$ Equivalent of all Invested Amounts of all Registered
Notes,
at that time.
TOTAL PAYMENTS means, in relation to a Collection Period, all amounts
paid by the Trustee under clause 6.10 in relation to that Collection
Period.
TOTAL STATED AMOUNT means, at any time, the sum of the aggregate of the
Class A Stated Amounts and the aggregate of the US$ Equivalent of the
Class B Stated Amounts at that time.
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TRANSACTION DOCUMENT means each Transaction Document (as defined in the
Master Trust Deed) which relates to the Trust and includes:
(a) each Dealer Agreement;
(b) the Note Trust Deed; and
(c) the Agency Agreement.
TRUST means the Series 1999-1G WST Trust constituted under the Master
Trust Deed and the Notice of Creation of Trust.
TRUST EXPENSES means, in relation to a Collection Period (and in the
following order of priority):
(a) first, Taxes payable in relation to the Trust for that
Collection Period;
(b) second, the Trustee's Fee for that Collection Period;
(c) third, the Trust Manager's Fee for that Collection Period;
(d) fourth, any fee payable to the Security Trustee under the
Security Trust Deed;
(e) fifth, the Servicing Fee for that Collection Period;
(f) sixth, any fee payable to the Note Trustee under the Note
Trust Deed;
(g) seventh, pari passu any fee payable to a Note Party under the
Agency Agreement;
(h) eighth, pari passu 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, a Note Party in relation to the Trust under the
Transaction Documents, for that Collection Period; and
(i) ninth, pari passu any other Expenses relating to the Trust,
all of the amounts in paragraphs (a) to (i) (inclusive) being EXPENSES
for the purposes of the Master Trust Deed.
TRUST MANAGER'S REPORT means a report in the form agreed by the Trustee
and the Trust Manager from time to time.
UNDERWRITING AGREEMENT means the Underwriting Agreement dated [*] 1999
between the Trustee, the Trust Manager, Westpac, J.P. Morgan Securities
Inc., Morgan Stanley & Co. Incorporated and others in relation to
subscription for Class A Notes.
US$ ACCOUNT means, in relation to the Trust, the US$ account with the
Principal Paying Agent, or any other account opened and maintained
outside Australia with the Principal Paying Agent.
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US$ EQUIVALENT means:
(i) in relation to an amount denominated or to be
denominated in Australian dollars, that amount
converted to (and denominated in) US$ at the US$
Exchange Rate; or
(ii) in relation to an amount denominated or to be
denominated in US$, the amount of US$.
US$ EXCHANGE RATE means, on any date, the rate of exchange (set as at
the commencement of a Currency Swap) applicable under that Currency
Swap for the exchange of Australian dollars for United States dollars.
WAREHOUSE INVESTMENT AGREEMENT means:
(a) the document so entitled dated 19 February 1997 between the
Trustee as trustee of the Warehouse Trust, the Trust Manager
and Westpac Banking Corporation; or
(b) any other agreement which the Trustee and the Trust Manager
agree is a Warehouse Investment Agreement or Warehouse
Facility Agreement for the purposes of this Series Notice.
WAREHOUSE INVESTOR has the meaning given to that term in a Warehouse
Investment Agreement.
WAREHOUSE TRUST means the WST Warehouse Trust #1.
WAREHOUSE TRUSTEE means Westpac Securities Administration Limited as
trustee of the Warehouse Trust.
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 and any reference to UNITED
STATES DOLLARS, USD and US$ is to currency of the United States of
America.
3.3 LIMITATION OF LIABILITY OF THE TRUSTEE
(A) GENERAL
Clause 33 of the Master Trust Deed applies to the obligations
and liabilities of the Trustee, the Warehouse Trustee and the
Trust Manager under this Series Notice.
(B) LIABILITY OF TRUSTEE LIMITED TO ITS RIGHT OF INDEMNITY
(i) The Trustee enters into this Series Notice 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
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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 in any capacity other than as trustee of the
Trust or seek the appointment of a receiver (except
under the Security Trust Deed), or a liquidator, an
administrator or any similar person to the Trustee or
prove in any liquidation, administration or
arrangements 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 a
Transaction Document 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, the
Servicer, the Currency Swap Providers, the Note
Trustee, the Principal Paying Agent, the other Paying
Agents and the Agent Bank (each a RELEVANT PARTY) are
responsible under this Series Notice and the other
Transaction Documents 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 Series Notice)
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 any
Relevant Party 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
Series Notice or the relevant Transaction Documents,
but excluding any Relevant Party) to fulfil its
obligations relating to the Trust or by any other act
or omission of a Relevant Party 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 Series Notice or the relevant Transaction
Documents, but excluding any Relevant Party).
(v) No attorney, agent, receiver or receiver and manager
appointed in accordance with this Series Notice or
any
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other Transaction Documents (including a Relevant
Party) 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 a person.
(C) LIABILITY OF WAREHOUSE TRUSTEE LIMITED TO ITS RIGHT OF
INDEMNITY
Clause 3.3(b) shall apply to the Warehouse Trustee as if
restated in full with all references to the TRUSTEE being
replaced with references to the WAREHOUSE TRUSTEE and all
reference to the TRUST being replaced with references to the
WAREHOUSE TRUST.
3.4 KNOWLEDGE OF TRUSTEE
In relation to the Trust, the Trustee will be considered to have
knowledge or notice of or be aware of any matter or thing if the
Trustee has knowledge, notice or awareness of that matter or thing by
virtue of the actual notice or awareness of the officers or employees
of the Trustee who have day to day responsibility for the
administration of the Trust.
4. NOTES
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4.1 CONDITIONS OF NOTES
(a) The conditions of the Registered Notes will be as set out in
the Master Trust Deed, as supplemented and amended by the
provisions set out in this Series Notice.
(b) The conditions of the Class A Notes will be as set out in the
Master Trust Deed, the Conditions and the Series Notice.
4.2 SUMMARY OF CONDITIONS OF NOTES
Under clause 13.3 of the Master Trust Deed, the Trust Manager provides
the following information in respect of the Notes.
<TABLE>
<S> <C>
(a) Class of Note: There will be the following Classes of Notes:
(i) Class A Notes
(ii) Class B Notes
(iii) any RFS Series
(iv) any RFS Class A Notes
</TABLE>
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<TABLE>
<S> <C>
(b) Total Initial Invested Amount
of each Class of Notes: Class A Notes - US$[*]
Class B Notes - A$[*]
RFS Series - aggregate of the Initial Invested
Amounts of the RFSs at the relevant issue date
RFS Class A Notes - the aggregate of the
Initial Invested Amounts of the relevant RFSs
(c) Manner and order in which
principal and interest is to As set out in clause 6
be paid on Notes:
(d) Margin: (i) in relation to a Note, the margin
expressed as a percentage per annum
notified by the Trust Manager to the
Trustee as applying to that Note:
(ii) in the case of Class A Notes, [*]%;
(iii) in the case of Class B Notes, [*]%;
(iv) in the case of any RFSs, on the
relevant issue date of those RFSs as
inscribed in the Register in relation
to those RFSs;
(v) in the case of any RFS Class A Note, the
Margin for Class A Notes plus the Spread, as
inscribed in the Register in relation to
that RFS Class A Note.
(e) Initial Invested Amount: (i) Class A Notes - denominated with an
Initial Invested Amount of US$100,000;
(ii) Class B Notes - denominated with an
Initial Invested Amount of A$[10,000];
</TABLE>
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<TABLE>
<S> <C>
(iii) RFS Series - A$10,000 or such other amount
notified by the Trust Manager to the Trustee
as applying to the RFS Series at the
relevant issue date in accordance with
clause 5.
(f) Rating: (i) Class A Notes - AAA long term credit
rating from S&P, Aaa long term credit
rating from Moody's and AAA long term
credit rating from Fitch;
(ii) Class B Notes - AA- long term credit rating
from S&P and AA- long term credit rating
from Fitch;
(iii) RFSs and RFS Class A Notes - such rating (if
any) notified by the Trust Manager to the
Trustee as approved by the Designated Rating
Agency for the RFSs as applying to the RFS
Series at the relevant issue date in
accordance with clause 5.
(g) Issue Price: (i) Class A Notes - issued at par value;
(ii) Class B Notes - issued at par value;
(iii) RFS Series - issued at par value, at a
premium or at a discount, as notified by the
Trust Manager to the Trustee to the RFS
Series at the relevant issue date in
accordance with clause 5.
(h) Payment Dates: (i) Class A Notes - the 19th day of each
Quarter (New York time).
(ii) Class B Notes, RFSs and RFS Class A Notes -
the 19th day of each Quarter (Sydney time).
</TABLE>
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<TABLE>
<S> <C>
(iii) If in either case that day is not a
Business Day then the Payment Date
will be the first Business Day (Sydney
time or New York time, as the case may
be) following that day. The first
Payment Date for the Class A Notes
will be 19 August 1999 (New York
time). The first Payment Date for the
Class B Notes will be 19 August 1999
(Sydney time).
(i) Maturity Date: Class A Notes, Class B Notes, RFSs and RFS
Class A Notes: The Payment Date falling in May
2030.
</TABLE>
4.3 ISSUE OF NOTES
(a) Registered Notes must be issued in minimum parcels or
subscriptions which have an aggregate Initial Invested Amount
of A$500,000, or must otherwise be issued on terms that they
will constitute an EXCLUDED ISSUE OF SECURITIES for the
purposes of the Corporations Law.
(b) Class A Notes must be issued in amounts, or on terms, that
their offer for subscription and their issue will comply with:
(i) the Financial Services Act 1986 (UK) and all
regulations made under or in relation to that Act and
the Public Offers of Securities Regulations 1995; and
(ii) the United States Securities Act of 1933, the United
States Securities Exchange Act of 1934, all
regulations made under or in relation to them, and
all other laws or regulations of any jurisdiction of
the United States of America regulating the Offer or
issue of, or subscription for, Notes.
4.4 TRUSTEE'S COVENANT TO NOTEHOLDERS
Subject to the terms of the Master Trust Deed and this Series Notice,
the Trustee:
(a) acknowledges its indebtedness in respect of the Invested
Amount of each Note; and
(b) covenants for the benefit of each Noteholder:
(i) to make all payments on or in respect of the Notes
held by that Noteholder on the due date for payment;
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(ii) to comply with the terms of this Series Notice and
the Transaction Documents to which it is a party; and
(iii) to pay the Stated Amount in relation to the Notes
held by that Noteholder on the Maturity Date.
4.5 REPAYMENT OF NOTES ON PAYMENT DATES
(a) On each Payment Date for a Note, the Invested Amount of that
Note shall be reduced by, and the obligations of the Trustee
with respect to that Note shall be discharged to the extent
of, the amount of the Principal Payment made on that Payment
Date in respect of that Note.
(b) All payments of principal on Class A Notes will be made in
United States dollars.
(c) All payments of principal on Registered Notes will be made in
Australian dollars.
4.6 FINAL REDEMPTION
Each Note shall be finally redeemed, and the obligations of the Trustee
with respect to the payment of the Invested Amount of that Note shall
be finally discharged, on the first to occur of:
(a) the date upon which the Invested Amount of that Note is
reduced to zero;
(b) if the Stated Amount is less than the Invested Amount, the
date on which the Stated Amount of that Note is reduced to
zero;
(c) the date upon which the relevant Noteholder renounces all of
its rights to any amounts payable under or in respect of that
Note; and
(d) the Payment Date immediately following the date on which the
Trustee completes a sale and realisation of all Assets of the
Trust in accordance with the Master Trust Deed or this Series
Notice.
4.7 PERIOD DURING WHICH INTEREST ACCRUES
Each Note bears interest calculated and payable in arrear in accordance
with this Series Notice from:
(a) in the case of Class A Notes or Class B Notes, the Closing
Date;
(b) in the case of an RFS, the date on which it is issued; and
(c) in the case of an RFS Class A Note, the date on which it
converts from an RFS under clause 5.4,
to the date upon which that Note is finally redeemed under clause 4.6.
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4.8 CALCULATION OF INTEREST
(a) Subject to paragraphs (b) and (e), interest payable on each
Note in respect of each Coupon Period is calculated:
(i) on a daily basis at the applicable Coupon Rate;
(ii) on the Invested Amount of that Note as at the first
day of that Coupon Period; and
(iii) on the basis of the actual number of days in that
Coupon Period and a year of 365 days (in the case of
Registered Notes) or 360 days (in the case of Class A
Notes),
and shall accrue due from day to day.
(b) No interest will accrue on any Note for the period from and
including:
(i) the date on which the Stated Amount of that Note is
reduced to zero; or
(ii) in the case of an Class A Note, if the Stated Amount
of the Class A Note on the due date for redemption is
not zero, the due date for redemption of the Class A
Note, unless, after the due date for redemption,
payment of principal due is improperly withheld or
refused, following which interest shall continue to
accrue on the Invested Amount of the Class A Note at
the rate from time to time applicable to the Class A
Note until:
(A) the moneys in respect of that Class A Note
have been received by the Note Trustee or
the Principal Paying Agent and notice to
that effect is given in accordance with the
relevant Conditions; or
(B) the Stated Amount of that Class A Note has
been reduced to zero.
(c) All payments of interest on Class A Notes
will be made in United States dollars.
(d) All payments of interest on Registered Notes
will be made in Australian dollars.
4.9 AGGREGATE RECEIPTS
Notwithstanding anything in clauses 6.13 to 6.20 (inclusive), no
Noteholder will be entitled to receive aggregate principal under any of
those clauses on any Note in excess of the Stated Amount for that Note.
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5. REDRAW FUNDING SECURITIES
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5.1 NOTE ISSUE DIRECTION FOR RFS
If, on a Determination Date, either:
(a) (i) Gross Principal Collections for the Collection Period
preceding that Determination Date; plus
(ii) all amounts available to be drawn by the Trustee
under the Redraw Facility in accordance with clause
6.3 for that Collection Period,
are insufficient to fund Redraws for that Collection Period in
accordance with this Series Notice; or
(b) the Principal Outstanding divided by the Redraw Limit (as
defined in the Redraw Facility), expressed as a percentage, is
equal to or greater than 90% of the Redraw Limit,
then the Trust Manager may give the Trustee a Note Issue Direction to
issue a series of redraw funding securities (RFS SERIES) in accordance
with clause 13 of the Master Trust Deed and this clause 5.
5.2 CONDITIONS TO NOTE ISSUE DIRECTION
The Trust Manager must not give a Note Issue Direction under clause 5.1
unless it has received written confirmation from the Designated Rating
Agency that the issue of the RFSs would not result in a downgrading or
withdrawal of a rating of any Note then outstanding.
5.3 TERMS OF NOTE ISSUE DIRECTION
A Note Issue Direction given under clause 5.1:
(a) must be given no later than the Business Day before the
proposed issue date of the relevant RFSs, or any other date
agreed by the Trustee and the Trust Manager; and
(b) must specify the Margin, the aggregate Initial Invested
Amount, Initial Invested Amount, rating, issue price and
Maturity Date of the relevant RFSs (in each case containing
the relevant information specified in clause 4.2).
5.4 CONVERSION OF RFS
If, on the fifth Determination Date following the date on which an RFS
Series was issued, the RFS Stated Amount for all RFSs comprised in that
RFS Series has not been fully and finally reduced to zero, each of
those RFSs:
(a) will convert to an RFS Class A Note for each Coupon Period
after the Payment Date following that Determination Date;
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(b) will cease to be treated as an RFS in any respect;
(c) will:
(i) have an Initial Invested Amount equal to the RFS
Initial Invested Amount of that Note when it was an
RFS;
(ii) have an Invested Amount equal to the RFS Invested
Amount of that Note when it was an RFS at the date of
conversion;
(iii) have a Stated Amount equal to the RFS Stated Amount
of that Note when it was an RFS at the date of
conversion;
(iv) be denominated in Australian dollars;
(v) receive all payments of principal and interest
denominated in Australian dollars;
(vi) have a Coupon Rate calculated by reference to the
Bank Bill Rate, not LIBOR;
(vii) be a registered instrument, not a bearer instrument;
and
(viii) have a Margin as set out in clause 4.2(d)(iii).
5.5 MASTER TRUST DEED DEFINITIONS
Subject to this Series Notice:
(a) each RFS is a NOTE;
(b) each RFS Series is a CLASS, and
(c) all RFS Class A Notes outstanding on any date are a CLASS,
for the purposes of the Master Trust Deed.
6. CASHFLOW ALLOCATION METHODOLOGY
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6.1 GENERAL
Collections and other amounts credited to the Collection Account will
be allocated by the Trust Manager, and paid by the Trustee as directed
by the Trust Manager, as set out in this clause 6.
6.2 DETERMINATION DATE - CALCULATIONS
(a) 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;
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(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);
(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, RFS Charge Offs and Redraw
Charge Offs (if any);
(xxiii) all Carryover Charge Offs (if any);
(xxiv) the Purchase Price adjustment calculated under
paragraph 4(c) of the Sale Notice;
(xxv) if required by clause 11, the Threshold Rate at that
Determination Date;
(xxvi) total Prepayment Costs (if any);
(xxvii) total Prepayment Benefits (if any);
(xxviii) the Prepayment Cost Surplus (if any);
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(xxix) the Prepayment Benefit Shortfall (if any);
(xxx) the Substitution Net Transfer Amount (if any);
(xxxi) the Quarterly Percentage;
(xxxii) each US$ Equivalent amount, and each A$ Equivalent
amount, required to be calculated under this Series
Notice;
(xxxiii) LIBOR, as at the first day of the Coupon Period
ending before that Determination Date as calculated
by the Agent Bank; and
(xxxiv) all other calculations necessary for the Trustee to
make allocations and distributions under this clause
6 and the Conditions.
(b) The Trust Manager must:
(i) notify the Trustee of each of the amounts,
percentages and rates calculated by it in paragraph
(a);
(ii) instruct the Trustee as to the payments to be made by
the Trustee on the relevant Payment Date; and
(iii) by no later than 4.00pm (Sydney time) on the
Determination Date, notify the Currency Swap
Providers and the Principal Paying Agent of the
amounts to be paid to the Currency Swap Providers
under clauses:
(A) 6.10 and 6.11;
(B) 6.14, 6.15 or 6.16 (as the case may be); and
(C) 6.17 (if relevant).
(c) Any amount to be paid to the Currency Swap Providers under the
clauses referred to in sub-paragraph (b)(iii) may be divided
between the Currency Swap Providers as agreed by the Trustee,
the Trust Manager and the Currency Swap Providers. The
obligations of the Currency Swap Providers under the Currency
Swaps are joint and several, and for the purpose of the
clauses referred to in sub-paragraph (b)(iii) a payment by the
Trustee to one Currency Swap Provider shall be taken to be a
payment to both.
6.3 REDRAWS
(a) The Trustee and the Trust Manager irrevocably authorise:
(i) Westpac to deduct from Gross Principal Collections
received by it; and
(ii) the Servicer to pay to Westpac from Gross Principal
Collections received by the Servicer,
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the total amount of all Redraws provided by Westpac in
relation to Purchased Receivables, to the extent that Westpac
has not previously been reimbursed in relation to any Redraws.
(b) The Servicer will, at the end of each Collection Period,
notify the Trust Manager of the amounts calculated by the
Servicer under clauses 6.2(a)(iv) and 6.2(a)(v).
(c) If the Trust Manager determines on any Determination Date that
there is a Redraw Shortfall, the Trust Manager must on that
date direct the Trustee to make a drawing under the Redraw
Facility on or before the Payment Date following that
Determination Date equal to the amount which the Trustee is
permitted to draw under clause 3.1(c) of the Redraw Facility.
(d) The Trustee must, if so directed by the Trust Manager but
subject to the terms of the Redraw Facility Agreement, make
that drawing and pay that amount to Westpac on or before the
relevant Payment Date.
(e) The Trustee shall not be in default under any Transaction
Document (and in particular it shall not be an EVENT OF
DEFAULT under the Security Trust Deed) if Westpac is not
reimbursed for Redraws in relation to Purchased Receivables
funded by Westpac. This paragraph (e) does not limit Westpac's
rights under the Security Trust Deed in respect of those
Redraws.
6.4 DETERMINATION DATE - PAYMENT SHORTFALL
If the Trust Manager determines on any Determination Date that there is
a Payment Shortfall for the relevant Collection Period the Trust
Manager must direct the Trustee to pay out of Principal Collections, as
an Initial Principal Distribution under clause 6.13, an amount (the
PRINCIPAL DRAW) equal to the lesser of:
(a) the Payment Shortfall; and
(b) the amount of Principal Collections available for distribution
on the Payment Date following that Determination Date.
6.5 DETERMINATION DATE - LIQUIDITY SHORTFALL
(a) If the Trust Manager determines on any Determination Date that
there is a Liquidity Shortfall for the relevant Collection
Period the Trust Manager must on that date direct the Trustee
to make a Liquidity Draw on or before the Payment Date
following that Determination Date equal to the amount which
the Trustee is permitted to draw under clause 3.1 of the
Liquidity Facility Agreement.
(b) The Trustee must, if so directed by the Trust Manager but
subject to the terms of the Liquidity Facility Agreement, make
that
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Liquidity Draw and have the proceeds of the Liquidity Draw
deposited into the Collection Account on or before 11.00 am on
the Payment Date. The Trust Manager must deal with the amount
so deposited in accordance with this clause 6.
6.6 ALLOCATING LIQUIDATION LOSSES
On each Determination Date, the Trust Manager must determine, in
relation to the aggregate of all Liquidation Losses arising during that
Collection Period:
(a) the amount of those Liquidation Losses which is attributable
to interest, fees and expenses in relation to the relevant
Purchased Receivables (FINANCE CHARGE LOSS); and
(b) the amount of those Liquidation Losses which is attributable
to principal in relation to the relevant Purchased Receivables
(PRINCIPAL LOSS),
on the basis that all Liquidation Proceeds actually received by or on
behalf of the Trustee in relation to a Purchased Receivable are applied
first against interest, fees and other Enforcement Expenses (other than
Property Restoration Expenses) relating to that Purchased Receivable,
and then against the Housing Loan Principal and Property Restoration
Expenses relating to that Purchased Receivable.
6.7 INSURANCE CLAIMS
(a) If, on any Determination Date, the Trust Manager determines
that there has been a Liquidation Loss in relation to a
Purchased Receivable, the Trust Manager shall direct the
Servicer (if the Servicer has not already done so), promptly,
and in any event within 20 Business Days of that notice, to
make a claim under the relevant Mortgage Insurance Policy if
it has not already done so.
(b) Upon receipt of any amount under or in respect of a Mortgage
Insurance Policy in payment of a claim referred to in
paragraph (a), the Trust Manager must determine which part of
the amount is attributable to interest, fees and other amounts
in the nature of income, and which part of that amount is
attributable to principal.
6.8 REMITTANCE DATE
(a) By no later than 4.00 pm (Sydney time) on the Remittance Date
for a Collection Period, the Trust Manager must deposit or use
its best endeavours to procure that the Servicer or Westpac
(as the case may be) deposits, in the Collection Account all
Available Income and Principal Collections for that Collection
Period to the extent received on or before that time.
(b) The Trust Manager must direct the Trustee to:
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(i) apply amounts credited to the Collection Account in
making payments in discharge of the Trustee's
obligations under this clause 6; and
(ii) make the applications and reinstatements required or
contemplated by this clause 6,
in each case, under and in accordance with this clause 6.
6.9 PAYMENT - PURCHASE PRICE ADJUSTMENT
The Trustee shall make the Purchase Price adjustment on the relevant
Payment Date as provided in paragraph 4(c) of each Sale Notice.
6.10 TOTAL PAYMENTS
(a) Subject to paragraph (b) and clause 6.17, on each Payment
Date, and based on the calculations and instructions provided
to it by the Trust Manager under clause 6.2(b), the Trustee
must pay out of Total Available Funds, in relation to the
Collection Period ending immediately before that Payment Date,
the following amounts in the following order of priority:
(i) first, in relation to the first Collection Period, an
amount equal to any Accrued Interest Adjustment
required to be paid to the Approved Sellers (the
Trustee acknowledges and agrees that it has no
entitlement to the moneys comprising the Accrued
Interest Adjustment);
(ii) second, Trust Expenses which have been incurred prior
to that Payment Date and which have not previously
been paid or reimbursed under an application of this
clause 6.10 (in the order of priority set out in the
definition of TRUST EXPENSES);
(iii) third, pari passu and ratably as between themselves,
any amounts payable under any Support Facility (other
than a Currency Swap), including:
(A) the net amount (if any) payable by the
Trustee under the Basis Swap;
(B) the net amount (if any) payable by the
Trustee under each Interest Rate Swap; and
(C) any interest or fees payable by the Trustee
under the Liquidity Facility Agreement,
but not including amounts due under
paragraph (iv), paragraph (v) or paragraph
(vi);
(iv) fourth, any repayment of a Liquidity Draw made on or
prior to the previous Payment Date;
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(v) fifth, pari passu and ratably as between themselves:
(A) the RFS Coupon on all RFSs at that date;
(B) the payment to the Currency Swap Providers
under any Confirmations relating to the
Class A Notes of the A$ Class A Coupon
Amount at that date;
(C) the RFS Class A Coupon on all RFS Class A
Notes at that date;
(D) any fee payable by the Trustee under the
Redraw Facility Agreement; and
(vi) sixth, the payment to the Class B Noteholders of the
Class B Coupon as at that date.
(b) The Trustee shall only make a payment under any of
sub-paragraphs (a)(i) to (a)(vi) inclusive to the extent that
any Total Available Funds remain from which to make the
payment after amounts with priority to that payment have been
distributed.
(c) For the purposes of sub-paragraph 6.10(a)(ii), if any Trust
Expenses are, or are to be, denominated in US$, the Trustee
may, at the direction of the Trust Manager, convert those
Trust Expenses to US$. Neither the Trustee nor the Trust
Manager will be liable to any person with respect to any such
conversion.
6.11 EXCESS AVAILABLE INCOME - REIMBURSEMENT OF CHARGE OFFS AND PRINCIPAL
DRAW
(a) Subject to paragraph (b), on each Determination Date, the
Trust Manager must apply any Excess Available Income for the
Collection Period relating to that Determination Date in the
following order of priority:
(i) first, the Excess Available Income must be applied in
payment of all Principal Charge Offs for that
Collection Period;
(ii) second, the balance of the Excess Available Income
(after application under paragraph (i)) must be
applied pari passu and rateably between themselves
(based on the Stated Amount of RFSs, the Stated
Amount of the RFS Class A Notes, the Principal
Outstanding and the A$ Equivalent of the Stated
Amount of the Class A Notes):
(A) as a payment to the holders of the RFSs in
or towards reinstating the Stated Amount of
the RFSs, to the extent of any Carryover RFS
Charge Offs;
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(B) as a payment to the holders of the RFS Class
A Notes in or towards reinstating the Stated
Amount of the RFS Class A Notes, to the
extent of any Carryover RFS Class A Charge
Offs;
(C) as a payment, to the Currency Swap Providers
under any Confirmations relating to the
Class A Notes, of the A$ Equivalent of any
Carryover Class A Charge Offs; and
(D) as a repayment under the Redraw Facility
Agreement, as a reduction of, and to the
extent of, any Carryover Redraw Charge Offs;
(iii) third, the balance of the Excess Available Income
(after application under paragraphs (i) and (ii))
must be applied in or towards reinstating the Stated
Amount of the Class B Notes, to the extent of
Carryover Class B Charge Offs; and
(iv) fourth, the balance of the Excess Available Income
(after application under paragraphs (i) to (iv)
inclusive) must be applied to all Principal Draws
which have not been repaid as at that Payment Date.
Any amount applied pursuant to sub-paragraphs (i) to (iv)
(inclusive) above will be treated having been made using
Principal Collections to the extent of that application, and
in the case of amounts paid under sub-paragraph (ii) or (iii)
will be paid on the Payment Date following that Determination
Date.
(b) The Trustee shall only make a payment under any of sub-paragraphs
(a)(i) to (a)(iv) inclusive to the extent that any Excess Available
Income remains from which to make the payment after amounts with
priority to that payment have been distributed.
6.12 EXCESS COLLECTIONS DISTRIBUTION
(a) The Trustee must pay any Excess Collections Distribution for a
Collection Period to the Beneficiary on the relevant Payment
Date.
(b) The Trustee may not recover any Excess Collections
Distribution from the Beneficiary once it is paid to the
Beneficiary except where there has been an error in the
relevant calculation of the Excess Collections Distribution.
6.13 INITIAL PRINCIPAL DISTRIBUTIONS
(a) Subject to paragraph (b), on each Payment Date, and based on
the calculations and instructions provided to it by the Trust
Manager under clause 6.2(b), the Trustee must distribute out
of Principal
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Collections, in relation to the Collection Period ending
immediately before that Payment Date, the following amounts in
the following order of priority:
(i) first, to repay any Redraws provided by Westpac in
relation to Purchased Receivables to the extent that
it has not previously been reimbursed in relation to
those Redraws;
(ii) second, to repay all Principal Outstanding under the
Redraw Facility Agreement on that Payment Date;
(iii) third, to allocate to Total Available Funds any
Principal Draw calculated in accordance with clause
6.4; and
(iv) fourth, to repay all amounts outstanding under each
RFS Series in the following order of priority:
(A) first, pari passu against outstanding RFSs
at that Payment Date from the RFS Series
with the oldest issue date at that Payment
Date, until those RFSs are repaid in full;
(B) second, pari passu the balance against
outstanding RFSs at that Payment Date from
the RFS Series with the next oldest issue
date at that Payment Date, until those RFSs
are repaid in full; and
(C) thereafter, pari passu the balance against
outstanding RFSs under further applications
of paragraph (B) until either all RFSs are
repaid in full or there are no further
amounts available for distribution under
this clause 6.13.
(b) The Trustee shall only make a payment under any of
sub-paragraphs (a)(i) to (a)(iv) inclusive to the extent that
any Principal Collections remain from which to make the
payment after amounts with priority to that payment have been
distributed.
6.14 PRINCIPAL PAYMENTS - SEQUENTIAL METHOD
(a) If on any Determination Date neither clause 6.15 nor clause
6.16 applies, the Trustee must (subject to paragraph (b)),
based on the instructions given to it by the Trust Manager, on
the Payment Date following that Determination Date, pay out of
Principal Collections for the Collection Period ending
immediately before that Payment Date the following amounts in
the following order of priority (the SEQUENTIAL METHOD):
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(i) first, all the Initial Principal Distributions for
the Collection Period ending immediately before that
Payment Date;
(ii) second, pari passu and rateably between themselves:
(A) as a payment, denominated in Australian
dollars, to the Currency Swap Providers
under any Confirmations relating to the
Class A Notes, of an amount equal to the
lesser of:
(1) the Class A Forex Percentage of the
amount available for distribution
under this sub-paragraph (ii) after
all Initial Principal
Distributions; and
(2) the A$ Equivalent of the Class A
Stated Amounts for all Class A
Notes; and
(B) as a payment, denominated in Australian
dollars, to the RFS Class A Noteholders an
amount equal to the lesser of:
(1)
the RFS Class A Forex Percentage of
the amount available for
distribution under this
subparagraph
(ii) after all Initial
Principal Distributions; and (2)
the RFS Class A Stated Amounts for
all RFS Class A Notes; and (iii)
third, as a payment to the Class B
Noteholders of an amount equal to
the lesser of: (A) the amount
available for distribution under
this sub-paragraph (iii) after the
application of sub-paragraphs (i)
and (ii); and
(B) the Class B Stated Amounts for all
Class B Notes.
(b) The Trustee shall only make a payment under any of
sub-paragraphs (a)(i) to (a)(iii) inclusive to the extent that
any Principal Collections remain from which to make the
payment after amounts with priority to that payment have been
distributed.
6.15 PRINCIPAL PAYMENTS - SERIAL METHOD PRIOR TO THIRD ANNIVERSARY
(PROCEDURE 1)
(a) If on any Determination Date:
(i) the Subordinated Percentage at the previous
Determination Date was greater than or equal to twice
the Initial Subordinated Percentage; and
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(ii) that Determination Date occurs on or before the third
anniversary of the Closing Date; and
(iii) the Total Invested Amount as at that Determination
Date, as a percentage of the Total Initial Invested
Amount, is greater than or equal to 10%; and
(iv) the Average Quarterly Percentage as at that
Determination Date:
(A) does not exceed 2% and the Total Carryover
Charge Off on that Determination Date does
not exceed 30% of the US$ Equivalent of the
Class B Initial Invested Amount; or
(B) does not exceed 4% and the Total Carryover
Charge Off on that Determination Date does
not exceed 10% of the US$ Equivalent of the
Class B Initial Invested Amount; and
(v) the US$ Equivalent of the Stated Amounts of all Class
B Notes as at that Determination Date exceeds the
aggregate of:
(A) the US$ Equivalent of the Initial Invested
Amounts of all Class A Notes and Class B
Notes; and
(B) the US$ Equivalent of the Invested Amount of
all RFS Class A Notes,
as at that Determination Date multiplied by 0.25%,
then the Trustee must (subject to paragraph (b)), based on the
instructions given to it by the Trust Manager, on the Payment
Date following that Determination Date, pay out of Principal
Collections for the Collection Period ending immediately
before that Payment Date the following amounts in the
following order of priority:
(A) first, all the Initial Principal
Distributions for the Collection Period
ending immediately before that Payment Date;
(B) second, pari passu and rateably between
themselves:
(1) as a payment, denominated in
Australian dollars, to the Currency
Swap Providers under any
Confirmations relating to the Class
A Notes, of an amount equal to the
lesser of:
(a) the Class A Forex
Percentage of the sum of:
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(i) the Class A Percentage of Principal Collections
remaining after all Initial Principal Distributions;
and
(ii) 50% of the Class B Percentage of those Principal
Collections; and
(b) the A$ Equivalent of the Class A Stated Amounts for all Class
A Notes; and
(2) as a payment denominated in
Australian dollars to the RFS Class
A Noteholders of an amount equal to
the lesser of:
(a) RFS Class A Forex percentage of the sum of:
(i) the Class A Percentage of Principal Collections
remaining after all Initial Principal Distributions;
and
(ii) 50% of the Class B Percentage of those Principal
Collections; and
(b) the RFS Class A Stated Amounts for all RFS Class A Notes; and
(C) third, as a payment to the Class B Noteholders of an
amount equal to 50% of the Class B Percentage of
those Principal Collections remaining after all
Initial Principal Distributions.
(b) The Trustee shall only make a payment under sub-paragraphs
(a)(A) to (a)(C) inclusive to the extent that any Principal
Collections remain from which to make the payment after
amounts with priority to that payment have been distributed.
6.16 PRINCIPAL PAYMENTS - SERIAL METHOD AFTER THIRD ANNIVERSARY (PROCEDURE
2)
(a) If on any Determination Date:
(i) the Subordinated Percentage at the previous
Determination Date was greater than or equal to twice
the Initial Subordinated Percentage; and
(ii) that Determination Date occurs after the third
anniversary of the Closing Date; and
(iii) the Total Invested Amount as at that Determination
Date, as a percentage of the Total Initial Invested
Amount, is greater than or equal to 10%; and
(iv) the Average Quarterly Percentage as at that
Determination Date:
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(A) does not exceed 2% and the Total Carryover
Charge Off on that Determination Date does
not exceed 30% of the US$ Equivalent of the
Class B Initial Invested Amount; or
(B) does not exceed 4% and the Total Carryover
Charge Off on that Determination Date does
not exceed 10% of the US$ Equivalent of the
Class B Initial Invested Amount; and
(v) the US$ Equivalent of the Stated Amount of Class B
Notes as at that Determination Date exceeds the
aggregate of:
(A) the US$ Equivalent of all Initial Invested
Amounts of all Class A Notes and Class B
Notes; and
(B) the US$ Equivalent of the Invested Amount of
all RFS Class A Notes,
as at that Determination Date, multiplied by 0.25%,
then the Trustee must (subject to paragraph (b)), based on the
instructions given to it by the Trust Manager, on the Payment
Date following that Determination Date, pay out of Principal
Collections for the Collection Period ending immediately
before that Payment Date the following amounts in the
following order of priority:
(A) first, all the Initial Principal
Distributions for the Collection Period
ending immediately before that Payment Date;
(B) second, pari passu and rateably between
themselves:
(1) as a payment, denominated in
Australian dollars, to the Currency
Swap Providers under any
Confirmations 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 Principal
Collections remaining
after all Initial
Principal Distributions;
and
(b) the A$ Equivalent of the
Class A Stated Amounts for
all Class A Notes; and
(2) as a payment, denominated in
Australian dollars to the RFS Class
A Noteholders, of an amount equal
to the lesser of:
(a) the RFS Class A Forex
Percentage of the Class A
Percentage of those
Principal
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Collections remaining
after all Initial
Principal Distributions;
and
(b) the RFS Class A Stated
Amounts for all RFS Class
A Notes; and
(C) third, as a payment to the Class B
Noteholders of an amount equal to the Class
B Percentage of those Principal Collections.
(b) The Trustee shall only make a payment under any of
sub-paragraphs (a)(A) to (a)(C) inclusive to the extent that
any Principal Collections remain from which to make the
payment after amounts with priority to that payment have been
distributed.
6.17 REMAINING LIQUIDITY SHORTFALL
(a) If there is a Remaining Liquidity Shortfall for a Collection
Period, the Trust Manager on behalf of the Trustee shall
reduce the A$ Class A Coupon Amount, the Class B Coupon and
Coupons payable with respect to RFSs and RFS Class A Notes, in
each case in relation to that Collection Period, as follows:
(i) the Remaining Liquidity Shortfall shall first reduce
the Class B Coupon payable to the Class B Noteholders
on the relevant Payment Date; and
(ii) if the Class B Coupon payable on the relevant Payment
Date relating to the Class B Notes has been reduced
to zero and any Remaining Liquidity Shortfall
remains, the excess Remaining Liquidity Shortfall
shall reduce:
(A) the A$ Class A Coupon Amount payable to the
Currency Swap Providers;
(B) the RFS Coupon;
(C) the RFS Class A Coupon; and
(D) any draw fee under clause 4.2 of the Redraw
Facility Agreement,
for that Payment Date, on that Payment Date, pari passu and
rateably among themselves.
(b) If there is any reduction in the A$ Class A Coupon Amount
payable to a Currency Swap Provider on a Payment Date under
clause 6.17(a) above, the Trust Manager on behalf of the
Trustee shall on that Payment Date reduce the Class A Coupon
for that Payment Date by the same proportion as the reduction
in the A$ Class A Coupon Amount.
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6.18 CHARGE OFFS
If the Principal Charge Off for any Collection Period exceeds the
Excess Available Income calculated on the Determination Date for that
Collection Period, the Trust Manager must, on and with effect from the
Payment Date immediately following the end of the Collection Period:
(a) reduce pari passu the Class B Stated Amount of each of the
Class B Notes by the amount of that excess which is
attributable to each Class B Note until the Class B Stated
Amount is zero (CLASS B CHARGE OFFS); and
(b) if the Class B Stated Amount is zero and any amount of that
excess has not been applied under paragraph (a), reduce pari
passu and rateably as between themselves (based on the Stated
Amount of the RFSs, the Principal Outstanding, the Stated
Amount of the RFS Class A Notes and the A$ Equivalent of the
Stated Amount of the Class A Notes):
(i) the Class A Stated Amount on each of the Class A
Notes by the US$ Equivalent of the balance of that
excess which is attributable to each Class A Note
until the Class A Stated Amount of that Class A Note
is zero (CLASS A CHARGE OFFS);
(ii) the RFS Class A Stated Amount on each of the RFS Class
A Notes by the balance of that excess which is
attributable to each RFS Class A Note until the RFS
Class A Stated Amount of that RFS Class A Note is zero
(RFS CLASS A CHARGE OFFS);
(iii) the RFS Stated Amount on each of the RFSs by the
balance of that excess which is attributable to each
RFS until the RFS Stated Amount is zero (RFS CHARGE
OFFS); and
(iv) the Principal Outstanding under the Redraw Facility
Agreement by the balance of that excess, applied
against Redraw Advances (as defined in the Redraw
Facility Agreement) in inverse chronological order of
their Drawdown Dates (as defined in the Redraw
Facility Agreement), until the Principal Outstanding
is zero (REDRAW CHARGE OFFS).
6.19 PAYMENTS INTO US$ ACCOUNT
(a) The Trustee shall direct each Currency Swap Provider to pay
all amounts denominated in US$ payable to the Trustee by that
Currency Swap Provider under the relevant Currency Swap into
the US$ Account or to the Principal Paying Agent under the
Agency Agreement on behalf of the Trustee.
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(b) If any of the Trustee, the Trust Manager or the Servicer
receives any amount denominated in US$ from a Currency Swap
Provider under the relevant Currency Swap they will promptly
pay that amount to the credit of the US$ Account.
6.20 PAYMENTS OUT OF US$ ACCOUNT
(a) The Trustee 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 a Currency Swap
Provider in relation to a payment by the Trustee:
(i) under clause 6.10(a)(v)(B), will be paid pari passu
in relation to Class A Notes as payments of Coupon on
those Class A Notes;
(ii) under clause 6.11(a)(ii)(C), will be paid pari passu
in relation to Class A Notes in or towards
reinstating the Stated Amount of those Class A Notes,
to the extent of the Carryover Class A Charge Offs;
(iii) under clause 6.14(a)(ii), 6.15(B)(1) or 6.16(B)(1),
will be paid pari passu to Class A Noteholders as
Class A Principal Payments until the Class A Stated
Amounts have been reduced to zero;
(iv) in relation to Trust Expenses, under clause 6.10 will
be paid to the relevant recipient of those Trust
Expenses.
6.21 PREPAYMENT COSTS AND PREPAYMENT BENEFITS
(a) On each 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 (b); and
(ii) there is a Prepayment Benefit Shortfall, it will be
funded under paragraph (c).
(b) On each Payment Date, and based on the calculations and
instructions provided to it by the Trust Manager under clause
6.2(b), the Trustee shall 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 Trustee.
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(c) If, on any Determination Date, the Trust Manager calculates
that there is a Prepayment Benefit Shortfall, the Trust
Manager shall by close of business on that Determination Date
notify Westpac of the amount of that Prepayment Benefit
Shortfall. Westpac must, by 4.00 pm (Sydney time) on the
Remittance Date deposit in the Collection Account for the
credit of the Trustee an amount equal to that Prepayment
Benefit Shortfall. That amount will be treated as a Gross
Principal Collection.
6.22 ROUNDING OF AMOUNTS
In making the calculations required or contemplated by this clause 6,
the Trust Manager shall round calculations to four decimal places,
except that all monetary amounts shall be rounded down to the nearest
cent (or, in the case of payments to a Currency Swap Provider under
clause 6, half a cent being rounded upwards) or as otherwise required
in this Series Notice.
6.23 BOND FACTORS
The Trust Manager shall, on or promptly after each Notice Date, notify
all Registered Noteholders, the Principal Paying Agent and the Note
Trustee of the relevant Class A Bond Factor, the Class B Bond Factor,
the RFS Class A Bond Factor and each RFS Bond Factor calculated on the
Determination Date preceding that Notice Date.
6.24 TRUST MANAGER'S REPORT
The Trust Manager will provide to the Trustee the Trust Manager's
Report for a Collection Period no later than 4.00pm (Sydney time) on
the Remittance Date following that Collection Period.
6.25 PRESCRIPTION
Despite any other provision of this Series Notice and the Master Trust
Deed, Condition 8 of the Class A Notes applies to all amounts payable
in relation to any Class A Note.
6.26 REPLACEMENT OF CURRENCY SWAP
(a) If a Currency Swap is terminated, the Trustee may enter into
one or more currency swaps which replace that Currency Swap
(other than by way of transfer under section 6(b) of that
Currency Swap) (collectively a REPLACEMENT CURRENCY SWAP) but
only on the condition that the Settlement Amount (as defined
in that Currency Swap), if any, which is payable by the
Trustee to that Currency Swap Provider on termination of that
Currency Swap will be paid in full when due in accordance with
this Series Notice and that Currency Swap.
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(b) If the condition in paragraph (a) is satisfied, the Trustee
may enter into the Replacement Currency Swap and if it does so
it must direct the Replacement Currency Swap to pay any
upfront premium to enter into the Replacement Currency Swap
due to the Trustee directly to the relevant Currency Swap
Provider in satisfaction of and to the extent of the Trustee's
obligation to pay the Settlement Amount to that Currency Swap
Provider as referred to in paragraph (a). To the extent that
such premium is not greater than or equal to the Settlement
Amount the balance may be satisfied by the Trustee as a TRUST
EXPENSE.
7. MASTER TRUST DEED
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7.1 COMPLETION OF DETAILS IN RELATION TO MASTER TRUST DEED
(a) (TRUST MANAGER FEE)
For the purpose of clause 19 of the Master Trust Deed, the fee
payable to the Trust Manager in respect of the Trust for each
Collection Period will be an amount calculated:
(i) on the average daily balance of the Housing Loan
Principal of the Purchased Receivables during that
Collection Period;
(ii) at the rate of 0.01% per annum or as otherwise agreed
by the Trust Manager and the Trustee from time to
time; and
(iii) on the actual number of days in the Collection Period
divided by 365 days,
and shall accrue due from day to day. That fee is payable in
Australian dollars.
(b) (TRUSTEE FEE)
For the purpose of clause 23.1 of the Master Trust Deed, the
fee payable to the Trustee in respect of the Trust for each
Collection Period will be an amount calculated:
(i) on the average daily balance of Housing Loan
Principal of the Purchased Receivables during that
Collection Period;
(ii) at the rate of 0.03% per annum or as otherwise agreed
by the Trust Manager and the Trustee from time to
time; and
(iii) on the actual number of days in the Collection Period
divided by 365 days,
and shall accrue due from day to day. That fee is payable in
Australian dollars.
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(c) (SERVICING FEE)
For the purpose of clause 7.1 of the Servicing Agreement, the
fee payable to the Servicer in respect of the Trust for each
Collection Period will be an amount calculated:
(i) on the average daily balance of Housing Loan
Principal of the Purchased Receivables during that
Collection Period;
(ii) at the rate of 0.25% per annum or as otherwise agreed
by the Trust Manager, the Trustee and the Servicer
from time to time; and
(iii) on the actual number of days in the Collection Period
divided by 365 days,
or as otherwise agreed by the Trustee, the Trust Manager and
the Servicer. That fee shall accrue due from day to day and is
payable in Australian dollars.
(d) (FIRST COLLECTION PERIOD) For the purpose of this clause 7.1,
the first Collection Period will commence on (and include) the
Closing Date.
(e) (FEE CHANGES TO TAKE ACCOUNT OF GST)
None of the above fees in this clause 7.1 are to be increased
by reference to any applicable goods and services tax unless:
(i) the Trustee, the Trust Manager and the recipient of
the relevant fee agree (that agreement not to be
unreasonably withheld); and
(ii) the increase will not result in the downgrading or
withdrawal of the rating of any Notes.
7.2 AMENDMENTS TO MASTER TRUST DEED
The Master Trust Deed is amended for the purpose of the Trust in the
manner set out in annexure A to this Series Notice. The amendments do
not relate to or affect any Other Trust.
8. TRANSFER OF PURCHASED RECEIVABLES - TOP UPS
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(a) If during any Collection Period an Obligor requests from
Westpac an increase in the principal balance under the
Receivable Agreement for the relevant Purchased Receivable
(other than as a Redraw) and that request is approved by the
Servicer, the Trust Manager must direct the Trustee to
transfer (subject to this clause 8) that Purchased Receivable
from the Trust to a Warehouse Trust. The transfer will occur
in accordance with clause 7 of the
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Master Trust Deed, this Series Notice and the Warehouse Series
Notice.
(b) The Trust Manager, as manager of the Warehouse Trust, shall monitor
each Warehouse Investment Limit and each Warehouse Funding (each as
defined in the relevant Warehouse Investment Agreements) and will
advise Westpac, the Servicer and the Trustee if, at any time, the
Trustee will be unable to obtain funds under any Warehouse Investment
Agreements to enable transfers to be made under paragraph (a).
(c) If Westpac is advised by the Trust Manager that there are not
sufficient funds available under any Warehouse Investment
Agreements to enable transfers to be made under paragraph (a),
neither the Servicer nor Westpac will allow any Obligor to
increase the principal balance of any Purchased Receivable
until sufficient funds are available under a Warehouse
Investment Agreement.
9. TRANSFERS TO WAREHOUSE TRUST
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Subject to clause 10, the Trust Manager 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 the Series Notice for that Warehouse Trust;
(b) must be for a consideration equal to the Unpaid Balance of
that Receivable;
(c) must not involve the transfer of a Receivable which is in
Arrears; and
(d) may only be made if there are funds available under any
Warehouse Investment Agreement to enable the relevant
Warehouse Trust to pay the necessary consideration for the
transfer,
and the Trust Manager must be satisfied that the transfer will not
result in downgrading of the rating of any Notes.
The Trustee must comply with that direction.
10. SUBSTITUTION OF PURCHASED RECEIVABLES
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10.1 PURCHASE FROM WAREHOUSE TRUST
(a) Subject to this clause 10, the Trust Manager may at any time
determine whether any Warehouse Trust holds a Receivable and
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related Receivable Rights which complies with the requirements
in clause 10.4 (a REPLACEMENT RECEIVABLE).
(b) If a Warehouse Trust does hold a Replacement Receivable, the
Trust Manager may, subject to:
(i) the Master Trust Deed and the Series Notice for that
Warehouse Trust; and
(ii) this clause 10,
take such action as is required under the Master Trust Deed to
procure the transfer of a Purchased Receivable and the
relevant Receivable Rights (together, RELEASE RECEIVABLE) from
the Trust to the Warehouse Trust, and the transfer of the
Replacement Receivable from the Warehouse Trust to the Trust
(a SUBSTITUTION).
(c) The transfer by the Trustee of a Release Receivable must be on
terms that the relevant Warehouse Trust will pay to the Trust
any Substitution Net Transfer Amount and, on the following
Payment Date, any relevant interest adjustment.
10.2 CONTENTS OF DIRECTION
A direction under clause 10.1 must specify:
(a) the Receivables of the Trust which are the subject of the
Substitution;
(b) the Warehouse Trust which is to be involved in the
Substitution;
(c) the Receivables of the relevant Warehouse Trust which are the
subject of the Substitution; and
(d) the total Substitution Net Transfer Amount payable by the
Warehouse Trust.
10.3 CONDITIONS TO DIRECTION
The Trust Manager may only arrange a Substitution under clause 10.1,
if:
(a) the relevant Release Receivable is not in Arrears;
(b) there is funding available under any relevant Warehouse
Investment Agreement to meet any Substitution Net Transfer
Amount payable by the Warehouse Trust in relation to the
relevant Substitution; and
(c) the Unpaid Balance of all Purchased Receivables acquired by
the Trust from the relevant Warehouse Trust is less than the
Unpaid Balance of all Release Receivables transferred to the
relevant Warehouse Trust.
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10.4 CRITERIA FOR REPLACEMENT RECEIVABLE
For the purposes of this clause 10, a Replacement Receivable must:
(a) have a maturity date no later than the date which is one year
before the Maturity Date of the Notes (other than RFSs);
(b) have similar product features to one or more Purchased
Receivables at that time;
(c) have an Unpaid Balance which is within A$30,000 of the Unpaid
Balance of the relevant Release Receivable (whether greater or
less than that amount);
(d) are otherwise suitable for substitution under this clause 10,
in the Trust Manager's sole and absolute discretion; and
(e) be the subject of a Mortgage Insurance Policy from a Mortgage
Insurer.
In making a determination under paragraph (b), the Trust Manager may
(but is not required to) have regard to whether the Replacement
Receivables:
(f) are located in the same State or Territory as the relevant
Release Receivable; and
(g) have the same or similar (by location) postcode as the
relevant Release Receivable.
10.5 CONSENT OF DESIGNATED RATINGS AGENCY
The Trust Manager must not procure the transfer of Receivables under
this clause 10 unless it has received written confirmation from the
Designated Rating Agency for each Class of Notes that the transfer
would not result in a downgrading of the rating given to any relevant
Note or the withdrawal of the rating of any relevant Note. The Trust
Manager will provide a copy of that confirmation to the Trustee and the
Note Trustee.
11. APPLICATION OF THRESHOLD RATE
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11.1 CALCULATION OF THRESHOLD RATE
If at any time the Basis Swap is terminated, the Trust Manager shall,
on each of:
(a) the earlier of:
(i) the date which is 3 Business Days following the date
on which the Basis Swap is terminated; and
(ii) the Determination Date immediately following the date
on which the Basis Swap is terminated; and
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(b) each successive Determination Date for so long as the Basis
Swap has not been replaced by a similar Hedge Agreement or
until the Trustee and the Trust Manager otherwise agree (and
the Designated Rating Agency for each Class of Notes has
confirmed in writing that that agreement would not result in a
downgrading of the rating given to any relevant Note or the
withdrawal of the rating of any relevant Note),
calculate the Threshold Rate as at that date and notify the Trustee,
the Servicer and Westpac of that Threshold Rate on the relevant Payment
Date.
11.2 SETTING THRESHOLD RATE
If the Servicer is notified of a Threshold Rate under clause 11.1, it
will, not more than 7 Business Days following the date on which the
Basis Swap is terminated, ensure that the interest rate payable on each
Purchased Receivable which is subject to a variable rate set, as
permitted by the relevant Receivable Agreement, at the discretion of
Westpac is not less than the Threshold Rate, and immediately notify the
Trustee when it has done so.
11.3 TRUSTEE SETTING THRESHOLD RATE
If the Trustee does not receive notice from the Servicer under clause
11.2 within 7 Business Days following the date on which the Basis Swap
is terminated, the Trustee shall immediately exercise its rights and
powers under the Transaction Documents, including, without limitation,
taking action against the Servicer, to ensure that the interest rate
payable on each Purchased Receivable which is subject to a variable
rate set, as permitted by the Receivable Agreement, is not less than
the Threshold Rate.
12. BENEFICIARY
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12.1 ISSUE OF UNITS
(a) The beneficial interest in the Trust will be constituted by
the issue of:
(i) a single residual capital unit (the RESIDUAL CAPITAL
UNIT); and
(ii) such numbers of residual income units (each, a
RESIDUAL INCOME UNIT) as the Trustee may issue from
time to time in accordance with this clause 12.1.
The holders of the Residual Capital Unit and the Residual
Income Units (each, a UNIT) hold the beneficial interest in
the
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Trust in accordance with the Master Trust Deed and this Series
Notice.
(b) The Trustee must, on payment by the relevant Beneficiary of
the issue price of the Unit specified below, issue a Unit by
registering that Beneficiary's name in the register kept under
this clause 12. A failure by the Trust Manager to issue a Unit
does not affect the Beneficiary's rights as beneficiary of the
Trust under the Master Trust Deed and this Series Notice.
12.2 RESIDUAL CAPITAL UNIT
(a) The holder of the Residual Capital Unit is Westpac Banking
Corporation (WESTPAC).
(b) The issue price of the Residual Capital Unit is the amount of
$10, paid by Westpac under the Notice of Creation of the Trust
on establishment of the Trust.
(c) The beneficial interest held by the holder of the Residual
Capital Unit is limited to the Trust and each Asset of the
Trust (other than any Asset of the Trust held on trust for the
holders of Residual Income Units under clause 12.3) subject to
and in accordance with the Master Trust Deed and this Series
Notice.
(d) The holder of the Residual Capital Unit has no right to
receive distributions in respect of the Trust other than the
right to receive on the termination of the Trust the entire
beneficial interest of the Trust subject to rights of holders
of Residual Income Unit. The Residual Capital Unit may not be
redeemed at any other time or in any other way.
(e) The Residual Capital Unit is not transferable.
12.3 RESIDUAL INCOME UNIT
(a) The person may, with the consent of the Trustee and the Trust
Manager (whose consent may be given or withheld in their
absolute discretion), become the holder of a Residual Income
Unit by paying the subscription price for the Residual Income
Unit.
(b) The issue price of a Residual Income Unit will be the amount
agreed between the Trustee, the Trust Manager and the person
applying for the Residual Income Unit.
(c) The beneficial interest held by the holder of the Residual
Income Unit is limited to that holder's Income Percentage of
the amounts (if any) standing to the credit of the Collections
Account which represents Net Income available for distribution
under clause 30 of the Master Trust Deed.
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(d) The holder of the Residual Income Unit has the right to
receive distributions in respect of the Trust under the Master
Trust Deed and this Series Notice only to the extent that Net
Income is available for distribution under the Master Trust
Deed and this Series Notice.
(e) Each Residual Income Unit is transferable in accordance with
clause 12.5.
12.4 REGISTER
(a) The entitlement of any person to a Unit will be evidenced by
registration in the register maintained under this clause 12.4
(the REGISTER).
(b) The Trustee will keep the Register at its registered office in
a form that it considers appropriate and will enter the
following particulars.
(i) The name and address of the holder of each Unit.
(ii) The date on which the name of the holder of each Unit
is entered in the Register.
(iii) The date on which the holder of a Unit ceases to be
registered as the holder of that Unit.
(iv) The subscription moneys initially paid for each Unit,
and the aggregate subscription moneys of all Units
from time to time.
(v) Any other details which the Trustee may consider
necessary or desirable.
(c) The holder of a Unit shall promptly notify the Trustee of any
change of name or address and the Trustee will alter the
Register accordingly.
(d) Without limiting clause 12.1, the interest of any holder in a
Unit will be constituted by registration in the register.
12.5 TRANSFER OF UNITS
(a) (i) The holder of a Unit may transfer the Unit by
instrument in writing in any form approved by the
Trustee. No fee will be charged on the transfer of a
Unit.
(ii) An instrument of transfer shall be executed by or on
behalf both of the transferor and the transferee.
(iii) A transferor of a Unit remains the holder of the Unit
transferred until the transfer is registered and the
name of the transferee is entered in the register in
respect of the Unit.
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(b) The instrument of transfer of a Unit must be left for
registration at the address where the Register is kept on
which the Unit to which the transfer relates are registered.
It must be left together with any information that the Trustee
properly requires to show the right of the transferor to make
the transfer.
(c) The Trustee must notify the Designated Rating Agency for each
Class of Notes and the Trust Manager of any transfer of units
under this clause 12.5.
12.6 LIMIT ON RIGHTS
Each Beneficiary is subject to, and bound by, the provisions of the
Master Trust Deed (including clause 12.1).
13. TITLE PERFECTION EVENTS
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Each of the following is a Title Perfection Event.
(a) (DOWNGRADE) Westpac ceases to have a long term rating of at
least BBB from S&P and BBB from Fitch and (so long as Class A
Notes are outstanding) Baa2 from Moody's.
(b) (INSOLVENCY EVENT) An Insolvency Event occurs with respect to
Westpac.
(c) (NON COMPLIANCE) Westpac fails to pay any Collections (as
defined in the Servicing Agreement) within 5 Business Days of
receipt of notice to do so from the Trustee or the Trust
Manager under the Servicing Agreement.
14. ADDITIONAL RECEIVABLE PRODUCT FEATURES
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Westpac may, in relation to a Purchased Receivable, from time to time
seek to offer the relevant Obligor additional features for that
Purchased Receivable which were not features of that Purchased
Receivable at the Cut-Off Date. Before seeking to offer any such
additional feature, Westpac must satisfy the Trust Manager that the
additional features would not adversely affect any relevant Mortgage
Insurance Policy and would not cause the rating of any Notes to be
downgraded or withdrawn.
15. WST WAREHOUSE TRUST #1
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15.1 DIRECTION UNDER WAREHOUSE SERIES NOTICE
This direction is given under clause 5 of the WST Warehouse Trust #1
Series Notice.
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15.2 DIRECTION
The Trust Manager directs the Warehouse Trustee:
(a) to dispose of the Receivables that are from time to time
specified in a Sale Notice prepared by the Trust Manager and
given to the Warehouse Trustee;
(b) the trust that will acquire those Receivables is the Trust;
(c) the consideration to be paid by the Trust for the Receivable
will be specified in the Sale Notice referred to in paragraph
(a);
(d) the proposed date of disposal is 13 May 1999; and
(e) the Warehouse Investor has agreed to the consideration to be
paid by the Trust.
16. SERVICER REPRESENTATIONS
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The Servicer makes the following representations and warranties for the
benefit of the Trustee in relation to the Sale Notice referred to in
clause 15 and the Receivables, Receivable Rights and Related Securities
referred to in that Sale Notice.
(a) (ELIGIBLE RECEIVABLE) As at the Cut-Off Date, each Receivable
which is specified in that Sale Notice is an Eligible
Receivable. In relation to any related Receivable Security
that is required to be registered with any Governmental Agency
and which is not registered at the Cut-Off Date, it will be
registered.
(b) (RECEIVABLE SECURITIES) The Servicer has not done, or omitted
to do, anything which would prevent each Receivable,
Receivable Security and Related Security which is specified in
that Sale Notice from being valid, binding and enforceable
against the relevant Obligor(s) in all material respects
except to the extent that it is affected by laws relating to
creditors rights generally, or doctrines of equity.
(c) (OWNERSHIP) In relation to each Receivable Security which is
specified in that Sale Notice the Servicer has not done, or
omitted to do anything which would prevent the relevant
Obligor(s) from being the sole legal owner of the relevant
Mortgaged Property and registered as the sole proprietor(s) of
the relevant Mortgaged Property.
(d) (INSURANCE) As at the Closing Date, each Receivable which is
specified in the Sale Notice is the subject of a Mortgage
Insurance Policy from a Mortgage Insurer for the scheduled
term of that Receivable. The sale of each such Receivable to
the Trustee is not contrary to the relevant Mortgage Insurance
Policy. The Servicer has not done or omitted to do anything
which might
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prejudicially affect or limit the rights of the Trustee under
or in respect of a Mortgage Insurance Policy to the extent
that those rights relate to that Receivable or the related
Receivable Security. On transfer to the Trustee of equitable
title to a Purchased Receivable, the Trustee will have the
benefit of the relevant Mortgage Insurance Policy for that
Receivable.
(e) (SOLVENCY OF MORTGAGE INSURERS) The officers of the Servicer
who have responsibility for the transactions contemplated by
the Transaction Documents do not have actual notice that any
insurer under any insurance policy in relation to a Receivable
is insolvent or will be unable to pay a valid claim.
(f) (SELECTION PROCESS) There is no fraud, dishonesty, material
misrepresentation or negligence on the part of the Servicer in
connection with the selection and offer to the Trustee of any
Receivables or related Receivable Securities which is
specified in that Sale Notice.
(g) (RELEVANT DOCUMENTS) The Servicer holds in its possession or
control all Relevant Documents that relate to the Receivables
and the related Receivable Securities which are specified in
that Sale Notice necessary to enforce the provisions of and
the security created by the relevant Receivable Securities.
(h) (NO RECISION, ETC) As at the Cut-Off Date, none of the
Receivables or Receivable Securities which are specified in
that Sale Notice were satisfied, cancelled, discharged or
rescinded and the Mortgaged Property relating to each relevant
Receivable and Receivable Security had not been released from
the security of the relevant Receivable Securities.
(i) (INTEREST RATE) Except as may be provided in a Receivable
Agreement or Receivable Security which is specified in the
Sale Notice, and subject to applicable laws, the Servicer has
not done, or omitted to do anything which would render the
interest rate for each such Receivable subject to any
limitation, or to any consent, additional memoranda or other
writing required from the relevant Obligor to give effect to a
change in that rate and any change in that rate will be
effective on notice being given to the that Obligor in
accordance with the terms of the relevant Receivable or
Receivable Security.
(j) (ASSIGNABILITY) All consents required in relation to the
assignment of the Receivables and the related Receivable
Rights specified in that Sale Notice have been obtained. Those
Receivables and Receivable Rights are assignable.
(k) (SERVICING) Each relevant Receivable referred to in the Sale
Notice and each Receivable Security and Related Security has
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been serviced by the Servicer in accordance with the Servicing
Agreement, the Servicing Agreement Series 1997-2 Amendment
Agreement dated 23 April 1997, the Servicing Agreement Series
1997-3 Amendment Agreement dated 25 June 1997 and the
Servicing Agreement Series 1997-4E Amendment Agreement dated
29 September 1997 and the Servicing Agreement Series 1998-1G
Amendment Agreement dated 10 June 1998 from the time of its
transfer from Westpac to the Series 1997-1 WST Trust, the
Series 1997-2 WST Trust, the Series 1997-3 WST Trust, the
Series 1997-4E WST Trust or the Series 1998-1G WST Trust, as
the case may be, until the Closing Date. That servicing
includes, without limitation, ensuring compliance with the
Consumer Credit code in connection with servicing the
Receivables and Receivable Securities where failure to do so
would have an Adverse Effect.
(l) (ORDINARY COURSE OF BUSINESS) Between the Cut-Off Date and the
Closing Date, the Servicer dealt with the Receivables and the
Receivable Securities specified in the Sale Notice in the
ordinary course of its business.
17. WAREHOUSE TRUSTEE REPRESENTATIONS
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The Warehouse Trustee makes the following representations and
warranties for the benefit of the Trustee in relation to the Sale
Notice referred to in clause 15 and the Receivables, Receivable Rights
and Related Securities referred to in that Sale Notice.
(a) (QUALITY OF TITLE) It has good title to the Receivables and
the related Receivable Rights specified in that Sale Notice.
Those Receivables and the related Receivable Rights, together
with the interest of the Warehouse Trustee under the Relevant
Documents, are owned by it free and clear of any Security
Interest other than a Security Trust Deed given by the
Warehouse Trustee in favour of the Security Trustee. That
Security Trust Deed created only a floating charge over those
Receivables and related Receivable Rights.
(b) (RECEIVABLE SECURITIES) The Warehouse Trustee has not done
anything, during the period within which the Warehouse Trustee
was trustee of the Receivables and the related Receivable
Rights specified in that Sale Notice, which would prevent each
Receivable, Receivable Security and Related Security which is
specified in that Sale Notice from being valid, binding and
enforceable against the relevant Obligor(s) in all material
respects except to the extent that it is affected by laws
relating to creditors rights generally, or doctrines of
equity.
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(c) (SET OFF) The Warehouse Trustee has not done anything, during
the period within which the Warehouse Trustee was trustee of
the Receivables and the related Receivable Rights specified in
that Sale Notice, which would render, once equitably assigned
to the Trustee, any Receivable or Receivable Right which is
specified in that Sale Notice subject to any right of
rescission, set off, counterclaim or similar defence, nor to
render any Receivable or Receivable Right which is specified
in that Sale Notice subject to, or affected by, any interest
off-set arrangement or right.
(d) (SECURITY INTEREST) The sale, transfer and assignment of the
Warehouse Trustee's interest in the Receivables and the
related Receivable Rights which are specified in that Sale
Notice, will not constitute a breach of any Relevant Document
or the Warehouse Trustee's obligations or a default by the
Warehouse Trustee under any Security Interest.
(e) (SOLVENCY) The Warehouse Trustee is solvent.
18. NOTE TRUSTEE
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18.1 CAPACITY
The Note Trustee is a party to this Series Notice in its capacity as
trustee for the Noteholders from time to time under the Note Trust
Deed.
18.2 EXERCISE OF RIGHTS
(a) The rights, remedies and discretions of the Class A
Noteholders under the Transaction Documents including all
rights to vote or give instructions to the Security Trustee
and to enforce undertakings or warranties under the
Transaction Documents may only be exercised by the Note
Trustee on behalf of the Class A Noteholders in accordance
with the Note Trust Deed.
(b) The Class A Noteholders may only exercise enforcement rights
in respect of the Mortgaged Property through the Note Trustee
and only in accordance with the Transaction Documents.
18.3 REPRESENTATION AND WARRANTY
The Note Trustee represents and warrants to each other party to this
Series Notice that it has power under the Note Trust Deed to enter into
the Transaction Documents and to exercise the rights, remedies and
discretions of, and to vote on behalf of the Noteholders.
18.4 PAYMENTS
Any payment to be made to the Noteholders under the Transaction
Documents may be made to the Principal Paying Agent or the Note
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Trustee (as the case may be) in accordance with the Agency Agreement
and the Note Trust Deed.
19. WESTPAC UNDERTAKINGS
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19.1 SET OFF
Westpac irrevocably waives, and must not exercise, any right it may
have to set off amounts deposited with it by the Trustee (in its
capacity as trustee of the Trustee) against amounts owed by the Trustee
to Westpac (in any capacity) under any Transaction Document.
19.2 NOTICE OF ACTIONS
Westpac, as Approved Seller, must notify the Trustee and the Trust
Manager promptly after becoming aware of any action, claim or other
legal proceedings which may be brought against Westpac and which
Westpac believes would have a materially adverse effect on its title to
any Receivable or Receivable Security (an ACTION).
19.3 NOTIFICATION OF TRUST
If the Trustee is notified of an Action under clause 19.2, the Trust
Manager (failing which the Trustee) must notify the relevant court or
tribunal of the Trustee's interest in the relevant Receivables or
Receivable Securities, unless Westpac (as Approved Seller), the Trust
Manager and the Trustee agree that to do so might prejudice Westpac's
ability successfully to defend or prosecute the Action (as the case may
be).
20. REDEMPTION
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(a) For the purposes of clause 8.9 of the Master Trust Deed and
the relevant Condition 5(n), the Trustee may only redeem Class
A Notes under Condition 5(n) at the direction of the Trust
Manager.
(b) The Trust Manager may give a direction under paragraph (a) in
its absolute discretion in accordance with Condition 5(n),
except that the Trust Manager may only give that direction to
the extent that funds are available under the relevant
Warehouse Investment Agreement to acquire the Purchased
Receivables to enable redemption of the Class A Notes.
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21. GOVERNING LAW AND JURISDICTION
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This deed is governed by the laws of New South Wales. Each party
submits to the non-exclusive jurisdiction of courts exercising
jurisdiction there.
EXECUTED as a deed in New South Wales.
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.
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TRUSTEE/WAREHOUSE 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 )
WESTPAC SECURITISATION )
MANAGEMENT PTY LIMITED )
by its attorney )
in the presence of: )
-----------------------------------
Signature
- ---------------------------------------- -----------------------------------
Witness Print name
- ----------------------------------------
Print name
SERVICER
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
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AN APPROVED SELLER/WAREHOUSE INVESTOR
SIGNED SEALED and DELIVERED )
on behalf of ) -----------------------------------
WESTPAC BANKING ) Signature
CORPORATION )
by its attorney ) -----------------------------------
in the presence of: ) Print name
)
-----------------------------------
Signature
- ---------------------------------------- -----------------------------------
Witness Print name
- ----------------------------------------
Print name
NOTE TRUSTEE
SIGNED SEALED and DELIVERED )
on behalf of )
CITIBANK, N.A., LONDON OFFICE )
by its attorney )
in the presence of: )
-----------------------------------
Signature
- ---------------------------------------- -----------------------------------
Witness Print name
- ----------------------------------------
Print name
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SCHEDULE
An Eligible Receivable means a Loan which, as at the Cut-Off Date for that Loan:
(a) is denominated and payable only in Australian dollars in Australia;
(b) is secured by a Receivable Security that constitutes a first ranking
mortgage over land situated in Australia which is or will be registered
under the Real Property Legislation, or where a Receivable Security is
not, or will not be when registered, a first ranking mortgage, the
relevant Sale Notice includes an offer in relation to all prior ranking
registered mortgages;
(c) is secured by a Receivable Security over a Mortgaged Property which has
erected on it a residential dwelling;
(d) has an LVR (as defined below) less than or equal to 95%;
(e) was approved and originated by Westpac in the ordinary course of its
business;
(f) under which the relevant Obligor does not owe more than $750,000;
(g) the relevant Obligor in respect of which was required to repay the
Receivable within 30 years of the Cut-Off Date;
(h) is not in Arrears for more than 30 consecutive days;
(i) the sale of an equitable interest in, or the sale of an equitable
interest in any related Receivable Security, does not contravene or
conflict with any law;
(j) together with the related Receivable Security, has been or will be
stamped, or has been taken by the relevant stamp duties authority to be
stamped, with all applicable duty;
(k) is subject to the terms and conditions of Westpac's standard Loan Offer
for the loan products referred to in the definition of Receivable in
the Series Notice, or any similar loan product, however named, the
product features of which comply with clause 14;
(l) 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;
(m) is not a Loan with an interest only payment type and a bullet principal
repayment at the end of the interest only period; and
(n) the relevant Obligor in respect of which is a resident of Australia.
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For the purpose of this schedule:
LVR means the outstanding amount of the Loan, plus any other amount secured by
any Mortgage for that Loan or related Loans, at the date of determination
divided by the aggregate value of the Mortgaged Property subject to the related
Mortgage for that Loan, expressed as a percentage.
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ANNEXURE A
WST SERIES 1999-1G TRUST
AMENDMENTS TO MASTER TRUST DEED
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GENERAL
(a) All references in the Master Trust Deed to the WILFUL DEFAULT
of the Trustee in each of clauses 8.4(f), 8.4(g), 8.4(h),
24.1(c), 24.8, 24.10(a), 33.9, 33.10, 33.12(b), 33.13,
33.14(a), 33.14(b), 33.14(c), 33.17(b), 33.17(c), 33.17(d),
33.17(e), 33.18(h) and in Schedule 2 are replaced by the words
BREACH OF TRUST and in clause 12.1(l) the words WILFUL DEFAULT
are deleted.
(b) The words "memorandum or articles of association" in clause
32.1(e) of the Master Trust Deed and the words "memorandum and
articles of association" in paragraph 1(a) of Schedule 6 to
the Master Trust Deed are deleted and replaced with the word
"constitution".
CLAUSE 1.1 - APPROVED BANK
The definition of APPROVED BANK in clause 1.1 of the Master Trust Deed
is deleted and replaced with the following definition.
"APPROVED BANK means:
(a) a Bank which has a short term rating of at least A-1+ from
S&P, P-1 from Moody's and F-1+ from Fitch; 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 means Westpac Banking Corporation for so long as it has a short
term rating of A-1 or better from S&P, P-1 or better from Moody's and
F-1 or better from Fitch."
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CLAUSE 1.1 - AUTHORISED INVESTMENT
For the purposes of the definition of AUTHORISED INVESTMENT in clause
1.1 of the Master Trust Deed:
(a) each of the investments in paragraphs (d), (e), (f) of that
definition and (h) must have a rating of AAA (long term) or
A-1+ (short term) (as the case may be) from S&P and a rating
of Aaa (long term) or P-1 (short term) (as the case may be)
from Moody's and a rating of AAA (long term) or F-1+ (short
term) (as the case may be) from Fitch to be an AUTHORISED
INVESTMENT for the Trust; and
(b) paragraph (h)(i) is deleted and replaced with the following:
"included within the definition of POOL OF MORTGAGES in the
Duties Act 1997 of New South Wales; and".
CLAUSE 1.1 - BANK
The existing definition of BANK in clause 1.1 of the Master Trust Deed
is deleted and replaced with the following definition.
"BANK means:
(a) 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; or
(b) where any Transaction Document requires money to be deposited
by the Trustee outside Australia, a corporation authorised by
the banking legislation of the relevant jurisdiction to carry
on the general business of banking in that jurisdiction."
CLAUSE 1.1 - EXPENSES
For the purposes of the definition of EXPENSES in clause 1.1 of the
Master Trust Deed, a new paragraph (o) is inserted as follows and the
existing paragraph (o) becomes paragraph (b).
"(o) any fees and expenses payable to any Stock Exchange or DTC from
time to time by the Trustee;"
CLAUSE 1.1 - EXTRAORDINARY RESOLUTION
For the purposes of the definition of EXTRAORDINARY RESOLUTION in
clause 1.1 of the Master Trust Deed, that definition is deleted and the
following definition is inserted.
"EXTRAORDINARY RESOLUTION in relation to:
(a) the Registered Noteholders means, subject to the provisions of
the Security Trust Deed:
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(i) a resolution passed at a meeting of the Registered
Noteholders 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 the Registered Noteholders cast (by show
of hands or poll, as the case may be); or
(ii) a resolution in writing under clause 17.15 signed by
all the Registered Noteholders;
(b) all Noteholders means, subject to the provisions of the
Security Trust Deed a resolution passed by Registered
Noteholders duly convened and held in accordance with the
provisions contained in clause 17 and by Class A Noteholders
in accordance with the Note Trust Deed by a majority
consisting of not less than 75% calculated as follows:
(A X I) + (U)
-------------
T
Where: A = the percentage of Registered Noteholders
voting in favour of the resolution;
I = the US$ Equivalent of the Invested Amount of
all Registered Notes;
U = the aggregate Invested Amount of the Class A
Noteholders who voted in favour of the
resolution
T = the Total Invested Amount.
CLAUSE 1.1 - FITCH
For the purpose of clause 1.1 of the Master Trust Deed, a new
definition is inserted as follows:
"FITCH means Fitch IBCA, Inc."
CLAUSE 1.1 - INSOLVENCY EVENT
For the purposes of the definition of INSOLVENCY EVENT in clause 1.1 of
the Master Trust Deed:
(a) the word "Westpac" is inserted after the words "a Servicer,";
and
(b) the following words are inserted at the end of paragraph (c)
of the definition:
", and for the avoidance of doubt an inability of the Trustee
in its capacity as trustee of the Trust to pay its debts does
not include:
(i) the Trustee making any drawing under a Support
Facility in accordance with the Transaction
Documents; or
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(ii) until the Class A Notes are repaid in full, the
Trustee making any Class B Charge Off or failing to
pay the full amount of any Class B Coupon."
CLAUSE 1.1 - RATING AGENCY
For the purpose of the definition of RATING AGENCY in clause 1.1 of the
Master Trust Deed, the word ", Fitch" is inserted after the word "S&P".
CLAUSE 1.1 - TERMINATION DATE
For the purpose of the definition of TERMINATION DATE in clause 1.1 of
the Master Trust Deed, the words "and the Trustee and the Trust Manager
agree that no further Notes are proposed to be issued by the Trustee in
relation to that Trust" are inserted at the end of paragraph (c)(i) of
that definition.
CLAUSE 1.1 - TAXATION ACT
For the purposes of the definition of TAXATION ACT inclusive 1.1 of the
Master Trust Deed, the words "and the Income Tax Assessment Act 1997
(Commonwealth)" are inserted at the end of that definition.
CLAUSE 1.2
For the purposes of clause 1.2 of the Master Trust Deed, a new
paragraph is inserted as follows.
"(q) Except as otherwise provided, a reference to any time is a
reference to Sydney time."
CLAUSE 2.1
For the purposes of clause 2.1 of the Master Trust Deed, the words "and
the relevant Series Notice" are inserted at the end of that clause.
CLAUSE 3.4
Clause 3.4 of the Master Trust Deed is deleted and replaced with the
following new Clause 3.4.
"Each Trust shall continue until, and shall terminate on the later of:
(i) its respective Termination Date;
(ii) the date on which the provisions of clause 3.5 have been
satisfied; and
(iii) the date on which the Trustee ceases to hold any Trust Back
Assets in relation to that Trust."
CLAUSE 8.3(B) - SALE NOTICE
For the purposes of clause 8.3(b) of the Master Trust Deed, a Sale
Notice given by Westpac or the Warehouse Trustee in relation to the
Trust may be given at any time on the same day as the day on which the
Expiry Time falls.
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CLAUSE 8.5(A) - CONDITIONS PRECEDENT TO PURCHASE
For the purposes of clause 8.5(a) of the Master Trust Deed, the
following is a condition precedent to the giving of the Sale Notice.
(CERTIFIED COPIES) Except to the extent previously provided to the
Trustee (in its capacity as trustee of any Trust), certified copies of
the forms of each Mortgage Insurance Policy, and the forms of the
Receivable Agreements, relating to the Purchased Receivables.
CLAUSE 8.6 - REPRESENTATIONS AND WARRANTIES
For the purposes of clause 8.6 of the Master Trust Deed, Westpac makes
the following representations and warranties in relation to the Sale
Notice given by it and the Receivables and Receivable Rights referred
to in that Sale Notice.
(a) (ASSIGNABILITY) All consents required in relation to the
assignment of the Receivables and the related Receivable
Rights specified in the Sale Notice have been obtained. Those
Receivables and Receivable Rights are assignable.
(b) (QUALITY OF TITLE) It is the sole, legal and beneficial owner
of the Receivables and the related Receivable Rights specified
in the Sale Notice. Those Receivables and the related
Receivable Rights, together with the interest of Westpac under
the Relevant Documents, are owned by it free and clear of any
Security Interest (other than any Security Interest arising
solely as the result of any action taken by the Trustee).
(c) (ELIGIBLE RECEIVABLE) As at the Cut-Off Date, each Receivable
which is specified in the Sale Notice is an Eligible
Receivable. In relation to any related Receivable Security
that is required to be registered with any Governmental Agency
and which is not registered at the Cut-Off Date, it will be
registered.
(d) (RECEIVABLE SECURITIES) Each Receivable, Receivable Security
and Related Security which is specified in the Sale Notice is
valid, binding and enforceable against the relevant Obligor(s)
in all material respects except to the extent that it is
affected by laws relating to creditors rights generally, or
doctrines of equity.
(e) (SET OFF) Once equitably assigned to the Trustee, no
Receivable or Receivable Right which is specified in the Sale
Notice will be subject to any right of rescission, set off,
counterclaim or similar defence. No Receivable or Receivable
Right which is specified in that Sale Notice is subject to, or
affected by, any interest off-set arrangement or right.
(f) (COMPLIANCE WITH LAWS) At the time each Receivable and
Receivable Security which is specified in the Sale Notice and
each Related Security was entered into it complied in all
material
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respects with applicable laws, including, without limitation,
where the Consumer Credit Legislation applies, the Consumer
Credit Legislation.
(g) (OWNERSHIP) In relation to each Receivable Security which is
specified in the Sale Notice the relevant Obligor(s) is or are
the sole legal owner of the relevant Mortgaged Property and
registered as the sole proprietor(s) of the relevant Mortgaged
Property.
(h) (INSURANCE) As at the Closing Date, each Receivable which is
specified in the Sale Notice is the subject of a Mortgage
Insurance Policy from a Mortgage Insurer for the scheduled
term of that Receivable. The sale of each such Receivable to
the Trustee is not contrary to the relevant Mortgage Insurance
Policy. Westpac has not done or omitted to do anything which
might prejudicially affect or limit its rights or the rights
of the Trustee under or in respect of a Mortgage Insurance
Policy to the extent that those rights relate to that
Receivable or the related Receivable Security. On transfer to
the Trustee of equitable title to a Purchased Receivable, the
Trustee will have the benefit of the relevant Mortgage
Insurance Policy for that Receivable.
(i) (SOLVENCY OF MORTGAGE INSURERS) The officers of Westpac who
have responsibility for the transactions contemplated by the
Transaction Documents do not have actual notice that any
insurer under any insurance policy in relation to a Receivable
is insolvent or will be unable to pay a valid claim.
(j) (SELECTION PROCESS) There is no fraud, dishonesty, material
misrepresentation or negligence on the part of Westpac in
connection with the selection and offer to the Trustee of any
Receivables or related Receivable Securities which is
specified in the Sale Notice.
(k) (NO VOID TRANSACTIONS) The assignment of the Receivables and
Receivable Rights which are specified in the Sale Notice will
not be held by a court to be an undervalue transfer, a
fraudulent conveyance, or a voidable preference under any law
relating to insolvency.
(l) (SECURITY INTEREST) The sale, transfer and assignment of
Westpac's interest in the Receivables and the related
Receivable Rights which are specified in a Sale Notice, will
not constitute a breach of any Relevant Document or Westpac's
obligations or a default by Westpac under any Security
Interest.
(m) (RELEVANT DOCUMENTS) Westpac holds in its possession or
control all Relevant Documents that relate to the Receivables
and the related Receivable Securities which are specified in
the Sale
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Notice necessary to enforce the provisions of and the security
created by the relevant Receivable Securities.
(n) (SOLVENCY) Westpac is solvent.
(o) (NO RECISION, ETC) As at the Cut-Off Date, none of the
Receivables or Receivable Securities which are specified in
the Sale Notice were satisfied, cancelled, discharged or
rescinded and the Mortgaged Property relating to each relevant
Receivable and Receivable Security had not been released from
the security of the relevant Receivable Securities.
(p) (INTEREST RATE) Except as may be provided in a Receivable
Agreement or Receivable Security which is specified in the
Sale Notice, and subject to applicable laws, the interest rate
for each such Receivable is not subject to any limitation, no
consent, additional memoranda or other writing is required
from the relevant Obligor to give effect to a change in that
rate and any change in that rate will be effective on notice
being given to the that Obligor in accordance with the terms
of the relevant Receivable or Receivable Security.
(q) (ORDINARY COURSE OF BUSINESS) Between the Cut-Off Date and the
Closing Date, Westpac dealt with the Receivables and the
Receivable Securities specified in the Sale Notice in the
ordinary course of its business.
Westpac also makes the following representations and warranties in
relation to the Receivables and Receivable Rights referred to in the
Sale Notice given by the Warehouse Trustee:
(i) (SALE TO EARLIER SERIES) Those Receivables and Receivable
Rights were assigned by Westpac to either the Series 1997-1
WST Trust, the Series 1997-2, the Series 1997-3 WST Trust, the
Series 1997-4E WST Trust or the Series 1998-1G WST Trust.
(ii) (REPRESENTATIONS AND WARRANTIES) At the time of those
assignments Westpac gave the same representations and
warranties to the trustee of the Series 1997-1 WST Trust, the
Series 1997-2 WST Trust, the Series 1997-3 WST Trust, the
Series 1997-4E WST Trust or the 1998-1G WST Trust, as the case
may be, in relation to those Receivables and Receivable Rights
as it has given to the Trustee in relation to the Sale Notice
given by Westpac to the Trustee. The only difference is that
in relation to the sale to the trustee of the Series 1997-1
WST Trust Westpac did not represent and warrant that on
transfer to the trustee of the Series 1997-1 WST Trust of
equitable title to a Purchased Receivable, the Trustee will
have the benefit of the relevant Mortgage Insurance Policy for
that Receivable. That
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representation and warranty is given by the Servicer in clause
16(d) of this Series Notice.
CLAUSE 8.9(D) - CLEAN UP OFFER
For the purposes of clause 8.9(d) of the Master Trust Deed, the term
"(i)" is inserted after "sub-paragraph" in the second line of
sub-paragraph (ii), and the following provisions apply.
(a) On any Determination Date on which the aggregate Housing Loan
Principal of a Portfolio of Receivables for Purchased
Receivables expressed as a percentage of the Housing Loan
Principal of those Purchased Receivables at the Cut-Off Date,
is less than 10%, the Trust Manager may:
(i) as manager of the Trust, direct the Trustee to offer
to sell the Portfolio of Receivables to a Warehouse
Trust in accordance with clause 7 of the Master Trust
Deed and any relevant Series Notice; and
(ii) as manager of that Warehouse Trust, direct the Trustee
(as trustee of that Warehouse Trust), to acquire
orally or by conduct the Portfolio of Receivables in
accordance with clause 7 of the Master Trust Deed and
any relevant Series Notice.
(b) The Trustee as trustee of the Trust will do all things
reasonably necessary to give effect to the disposal of the
Portfolio of Receivables to that Warehouse Trust in accordance
with the Master Trust Deed and any relevant Series Notice.
(c) The Trust Manager may only give the direction referred to in
sub-paragraph (i) to the extent that funds are available under
the relevant Warehouse Investment Agreement to acquire the
Purchased Receivables.
CLAUSE 10 - NOTES
For the purposes of the Trust, clause 10 in the Master Trust Deed is
deleted and the provisions of that clause 10 are as follows.
10.1 ACKNOWLEDGEMENT OF INDEBTEDNESS
Subject to the terms of the Master Trust Deed and this Series
Notice:
(a) each entry in the Register for the Trust in respect
of a Registered Note relating to the Trust; and
(b) in relation to each Class A Note relating to the
Trust, that Class A Note,
constitutes an independent and separate acknowledgement to the
relevant Noteholder by the Trustee of its indebtedness as
trustee
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of the Trust for the Invested Amount of that Note together
with the other rights given to Noteholders under the Master
Trust Deed, the Series Notice and the Security Trust Deed, and
(in relation to an Class A Note) the Note Trust Deed and the
relevant Conditions.
10.2 LEGAL NATURE OF NOTES
(a) Registered Notes will be in the form of inscribed
stock, and the Trustee's obligations in relation to
the Notes and under the Master Trust and this Series
Notice in respect of those Notes (including any
obligation to pay interest or principal) will become
effective on inscription in the Register for the Trust
under the Master Trust and this Series Notice of the
details for those Notes.
(b) Class A Notes will be in registered form in respect of
Book-Entry Notes and will be in bearer or registered
form in respect of Definitive Notes, provided that
there will be no bearer notes issued in the United
States of America.
10.3 TERMS OF NOTES
(a) All Notes issued by the Trustee as trustee of the
Trust shall be issued with the benefit of, and subject
to, the Master Trust Deed, this Series Notice and the
Security Trust Deed and, in relation to Class A Notes,
the Note Trust Deed and the relevant Conditions.
(b) This Series Notice is binding on the Trust Manager,
the Trustee, the Note Trustee and the Noteholders.
10.4 INTEREST AND PRINCIPAL ENTITLEMENT OF NOTEHOLDERS
Subject to the Master Trust Deed, this Series Notice and the
Security Trust Deed and, in relation to Class A Notes, the
Note Trust Deed and the relevant Conditions (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 the Trust shall in respect of the Notes
issued by it in that capacity pay or cause to be paid to the
Noteholders (as relevant) 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 NOTES NOT INVALID IF ISSUED IN BREACH
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No Note shall be invalid or unenforceable on the ground that
it was issued in breach of the Master Trust Deed, this Series
Notice or any other Transaction Document.
10.6 LOCATION OF REGISTERED NOTES
The property in Registered Notes shall for all purposes be
regarded as situated at the place where the Register is
located on which those Registered Notes are recorded.
10.7 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.
10.8 NOTE REGISTER
In the event that any Definitive Notes are issued in
registered form, the Trustee (or if the Trustee fails to do
so, the Trust Manager on behalf of the Trustee) will appoint a
person to operate and maintain a register of those notes in
accordance with standard United States practice and law.
CLAUSE 12.4 - FURTHER LIMIT ON INTEREST OF NOTEHOLDERS
For the purposes of the Trust, clause 12.4 in the Master Trust Deed is
deleted and the provisions of that clause 12.4 are as follows.
A Noteholder in relation to the 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 the Security
Trust Deed, other interest in the Trust.
CLAUSES 13.1 AND 13.6(A) - NOTE ISSUE DIRECTION
(a) For the purposes of clause 13.1 of the Master Trust Deed, the
Note Issue Direction for the Notes may be issued by the Trust
Manager on or at any time prior to the Note Issue Date for the
Notes.
(b) For the purposes of clause 13.6(a) of the Master Trust Deed,
the certification by the Trust Manager may occur on or at any
time prior to the Note Issue Date for the Notes.
CLAUSE 13.1(B) - CONDITIONS PRECEDENT TO DIRECTION
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For the purposes of clause 13.1(b) of the Master Trust Deed, the
following is a condition precedent to the issue of a Note Issue
Direction in relation to proposed Purchased Receivables.
(POWER OF ATTORNEY) Original execution copies of powers of attorney
duly executed and delivered by Westpac in registrable form in each
Australian jurisdiction appointing certain specified officers of the
Trustee as its attorney for the purposes of enabling the Trustee to
perfect its title to those purchased Receivables.
CLAUSE 13.6(B)
For the purposes of clause 13.6(b) of the Master Trust Deed, insert the
words "or 7.7(c) (as the case maybe)" after "clause 13.8(g)" in the
last line.
CLAUSE 13.7 - DEALER AGREEMENT
The Trustee will enter into the Dealer Agreement.
CLAUSE 13.8
For the purposes of clause 13.8 of the Master Trust Deed, insert a new
paragraph (g) as follows.
"(g) (TRANSFER OF BENEFIT OF RECEIVABLES) subject to payment of the
amount referred to in paragraph (e), 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 the Portfolio of Receivables referred to in the
corresponding Note Issue Direction with effect from the Note
Issue Date as trustee of the relevant Trust (together with the
benefit with effect from the Note Issue Date of all
Receivables, Related Securities, Support Facilities and other
rights and entitlements relating to the Portfolio of
Receivables)."
CLAUSE 13.9 - ACTION FOLLOWING NOTE ISSUE DIRECTION
For the purposes of the Trust, clause 13.9 in the Master Trust Deed is
deleted and the provisions of that clause 13.9 are as follows.
As soon as practicable after a Note Issue Date for a Trust:
(a) in relation to Registered Notes only:
(i) (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;
(ii) (ISSUE NOTE ACKNOWLEDGEMENT) the Trustee shall issue a
Note Acknowledgement to each Registered Noteholder in
respect of its holding of Registered Notes; and
(iii) (ISSUE MARKED NOTE TRANSFERS) if requested by a
Registered Noteholder in its Application for Notes,
the
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Trustee shall issue a Marked Note Transfer to the
Registered Noteholder; and
(b) in relation to Class A Notes only, the Trustee shall issue
those Class A Notes in accordance with the Note Trust Deed and
this Series Notice.
CLAUSES 14, 15, 16 AND 17
For the purposes of the Trust, clauses 14, 15, 16 and 17 in the Master
Trust Deed are deleted and the provisions of those clauses 14, 15, 16
and 17 are as follows.
14. TRANSFERS OF NOTES
14.1 NO RESTRICTIONS ON TRANSFER OF NOTES
Subject to the Master Trust Deed and this Series Notice, there shall be
no restriction on the transfer of Notes.
14.2 MINIMUM TRANSFER
(a) A Registered Noteholder must not transfer any Registered Notes held
by it unless:
(i) the amount payable by the transferee for those
Registered Notes is not less than A$500,000; or
(ii) the offer or invitation to the transferee by the
Registered Noteholder in relation to the Registered
Notes is an excluded offer or an excluded invitation
for the purposes of the Corporations Law.
(b) A Noteholder must not transfer any Class A Notes except in
accordance with the Financial Services Act 1986 (UK) and all
regulations made under or in relation to that Act and the
Public Offers of Securities Regulations 1995 and in accordance
with the provisions of clause 3.6 of the Note Trust Deed.
(c) None of the Trustee, the Trust Manager, the Servicer or an
Approved Seller is liable to any Noteholder in relation to a
breach by that Noteholder of paragraph (b).
14.3 FORM OF TRANSFER
Every transfer of Registered 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).
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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 REGISTERED NOTEHOLDER
Subject to this clause 14, the Trustee shall on receipt of a Note
Transfer enter the transferee in the Register as the holder of the
Registered Notes which are the subject of the Note Transfer.
14.8 TRUSTEE ENTITLED TO REFUSE TO REGISTER REGISTERED TRANSFER
The Trustee may refuse to register any Note Transfer which would result
in:
(a) (BREACH) a contravention of or failure to observe:
(I) (MASTER TRUST DEED) the terms of the Master Trust
Deed;
(II) (SERIES NOTICE) this Series Notice;
(III) (SECURITY TRUST DEED) the Security Trust Deed; or
(IV) (THE LAW) any 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 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) (NOTE TRANSFER NOT EFFECTIVE UNTIL REGISTRATION) A Note
Transfer shall not take effect until registered by the Trustee
and until the transferee is entered in the Register as the
holder of the Registered Notes which are the subject of the
Note Transfer, the transferor shall remain the holder of those
Registered Notes.
(b) (TRANSFER RECEIVED WHEN REGISTER CLOSED) When a Note Transfer
is received by the Trustee during any period when the 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.
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14.12 RIGHTS AND OBLIGATIONS OF TRANSFEREE
Subject to the Master Trust Deed and this Series Notice, a transferee
of Registered Notes on being noted in the Register as the holder of the
Registered 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 MASTER TRUST DEED) all the rights and obligations
of a Noteholder as provided by the Master Trust Deed and this
Series Notice as if the transferee was originally a party to
the Master Trust Deed and this Series Notice.
14.13 PAYMENTS TO TRANSFEREE
Subject to the Master Trust Deed (including clause 35.1 of the Master
Trust Deed), on the entry of a transferee of Registered Notes in the
Register the transferee shall become entitled to receive any payments
then due or which may become due to the holder of the relevant
Registered 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 Registered Notes as
a result of the death, mental incapacity or bankruptcy of a
Registered Noteholder may, on producing such evidence as the
Trustee requires of their entitlement, elect to be either
registered as the Registered Noteholder or to transfer the
Registered Notes in the manner specified in this clause.
(b) (METHOD OF ELECTION) If an entitled person elects to be
registered as the Registered 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 Registered Notes in favour of that person. All
the provisions of the Master Trust Deed and this Series Notice
relating to the transfer of Registered 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 Registered Noteholder had not occurred and
the notice or Note Transfer was a Note Transfer executed by
the Registered Noteholder.
(c) (DISCHARGE) A person entitled to Registered Notes under this
clause shall be entitled to receive and may give a good
discharge for all moneys payable in respect of such Registered
Notes but, except as otherwise provided by the Master Trust
Deed and this Series Notice, shall not be entitled to any of
the rights or
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privileges of a Registered Noteholder unless and until the
person is entered in the Register as the holder of those
Registered Notes.
14.15 MARKED NOTE TRANSFER
(a) (ENTITLEMENT TO MARKING) A Registered Noteholder may from time
to time request the Trustee to provide the Registered
Noteholder with a Marked Note Transfer.
(b) (MARKING) The Registered 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
Registered 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 Registered
Noteholders) from the date on which the Note Transfer was
marked, the Trustee shall not register any transfer of
Registered 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 Register for any purpose.
(e) (DELIVERY) A Marked Note Transfer shall be issued to a
Registered Noteholder by personal delivery at the time the
Registered 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 Registered 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 Registered Noteholder) of persons authorised to
execute Note Transfers on behalf of such Registered Noteholder and
shall be entitled to assume (until notified to the contrary) that such
authority has not been revoked.
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14.18 NOTES LODGED WITH AUSTRACLEAR
If Registered Notes are lodged into the Austraclear System, the Trustee
shall enter Austraclear in the Register as the holder of those
Registered Notes. While those Registered Notes remain in the
Austraclear System:
(a) all payments and notices required of the Trustee and the Trust
Manager in relation to those Registered Notes will be directed
to Austraclear; and
(b) all dealings (including transfers) and payments in relation to
those Registered 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 Register as the holder of
Registered 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 Registered Notes. If
the person has been entered into the Register under a Note Transfer and
the transferor continues to retain a holding of Registered Notes, the
Trustee shall within the same period stated above issue to the
transferor a Note Acknowledgement in respect of that retained holding
of Registered Notes. No certificates will be issued in respect of
Registered Notes.
15.2 NOTE ACKNOWLEDGEMENT NOT CERTIFICATE OF TITLE
A Note Acknowledgement shall not be a certificate of title as to
Registered Notes and the Register shall be the only conclusive evidence
of the ownership of Registered Notes and the entitlements under them. A
Note Acknowledgement cannot be pledged or deposited as security nor can
a Registered 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
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If a Registered Noteholder wishes to receive 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
Registered 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
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 Registered Notes is held by more than one person,
only the person whose name stands first in the Register in relation to
that parcel of Registered Notes shall be entitled to:
(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 Registered Notes.
15.7 DELIVERY OF NOTE ACKNOWLEDGEMENT
A Note Acknowledgement may be sent to the relevant Registered
Noteholder by mail or by personal delivery to the Registered
Noteholder's address appearing in the Register and the Note
Acknowledgement so sent shall be at the risk of that Registered
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
the Trust, on which shall be entered the following information relating
to the Trust:
(a) (NAME) the name of the Trust;
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(b) (CREATION) the date of the creation of the Trust;
(c) (NOTE ISSUE DATES) the Note Issue Dates for Registered Notes
issued in relation to the Trust;
(d) (CONVERSION DATE) the date on which each RFS was converted to
an RFS Class A Note under clause 5.4 of this Series Notice;
(e) (INITIAL INVESTED AMOUNT) the total Initial Invested Amount of
Registered Notes issued on each Note Issue Date;
(f) (INVESTED AMOUNT) the Invested Amount of each Registered Note
or Class of Registered Notes from time to time;
(g) (STATED AMOUNT) the Stated Amount of each Registered Note or
Class of Registered Notes from time to time;
(h) (SERIES) details of relevant Classes of Registered Notes;
(i) (DETAILS OF REGISTERED NOTEHOLDERS) the name and address of
each Registered Noteholder;
(j) (NUMBER OF REGISTERED NOTES) the number of Registered Notes
held by each Registered Noteholder;
(k) (NOTE ACKNOWLEDGEMENT) the serial number of each Note
Acknowledgement issued to each Registered Noteholder;
(l) (DATE OF ENTRY) the date on which a person was entered as the
holder of Registered Notes;
(m) (DATE OF CESSATION) the date on which a person ceased to be a
Registered Noteholder;
(n) (ACCOUNT) the account to which any payments due to a
Registered Noteholder are to be made (if applicable);
(o) (DETAILS) where applicable, Payment Dates, Principal Repayment
Dates, Maturity Dates and Margin on the Notes;
(p) (PAYMENTS) a record of each payment in respect of the
Registered Notes in relation to the Trust; and
(q) (TAX FILE NUMBER) a record that the Trustee has (or has not)
received the tax file number for each Registered Noteholder;
and
(r) (ADDITIONAL INFORMATION) such other information as:
(i) is required by this 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 the Trust, in which shall be entered the Authorised
Investments and other Assets of the Trust (other than Purchased
Receivables and the
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related Receivable Rights) entered into the relevant asset register on
an individual basis.
16.3 PLACE OF KEEPING REGISTER, COPIES AND ACCESS
The 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 REGISTERED NOTEHOLDERS) open for inspection by
a Registered Noteholder during normal business hours but only
in respect of information relating to that Registered
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 the Register in clause 16.1 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 the Register is
inconsistent with any other document, matter or thing.
(b) (NO TRUSTS ETC) The Trustee shall not be obliged to enter on
the Register notice of any trust, Security Interest or other
interest whatsoever in respect of any Registered Notes and the
Trustee shall be entitled to recognise a Registered Noteholder
as the absolute owner of Registered Notes and the Trustee
shall not be bound or affected by any trust affecting the
ownership of any Registered 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:
(a) without prior notice to the Noteholders close the Register in
clause 16.1:
(i) in relation to all Notes (other than with respect to
the conversion of RFSs under clause 5.4), each period
from the close of business (Sydney time) on the
Business Day
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preceding each Payment Date to close of business on
that Payment Date;
(ii) in relation to the conversion of RFSs under clause
5.4, each period from the close of business (Sydney
time) on the day which is 5 Business Days before the
proposed conversion date to close of business on that
conversion date; or
(iii) when required for the Auditor to conduct any audit in
relation to the Trust; or
(b) with prior notice to each Noteholder who holds a Registered
Note, close the Register for other periods not exceeding 30
days (or such other period of time as agreed between the
Trustee and the Trust Manager, with the approval of an
Extraordinary Resolution of Registered Noteholders) in
aggregate in any calendar year.
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 Registered Noteholder by the Registered
Noteholder, the Trustee shall alter the Register accordingly as soon as
reasonably practicable (and in any event within 5 Business Days of
receipt of that notice).
16.7 CERTIFICATION OF REGISTER
If:
(a) an entry is omitted from the Register;
(b) an entry is made in the Register otherwise than in accordance
with the Master Trust Deed or this Series Notice;
(c) an entry wrongly exists in the Register;
(d) there is an error, omission, misdescription or defect in any
entry in the Register; or
(e) default is made or unnecessary delay takes place in entering
in the Register that any person has ceased to be the holder of
Registered Notes,
the Trustee shall rectify the same upon becoming aware of it.
16.8 CORRECTNESS OF REGISTER
Neither the Trust Manager nor the Trustee shall be liable for any
mistake in the Register or in any purported copy except to the extent
that the mistake is attributable to its fraud, negligence or breach of
trust.
16.9 TRUST MANAGER MUST PROVIDE INFORMATION
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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 the Register.
16.10 THIRD PARTY REGISTRAR
The Trustee may cause the Register to be maintained by a third party on
its behalf and require that person to discharge the Trustee's
obligations under the Master Trust Deed and this Series Notice in
relation to the Register.
17. DETERMINATIONS BY NOTEHOLDERS
17.1 CLASS A NOTEHOLDERS
(a) Any proposal requiring the consent of Class A Noteholders will
be determined in accordance with the Note Trust Deed.
(b) The provisions of this clause 17, other than this clause 17.1,
shall not apply to Class A Notes.
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 Registered Noteholders or Class of Registered
Noteholders.
(b) Registered Noteholders or a Class of Registered Noteholders
holding in aggregate not less than 20% of the Invested Amounts
of all Registered Notes or in that Class, may at any time
convene a meeting of the Registered Noteholders 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
Registered Noteholders or any Class of Registered Noteholders
of a Trust shall be given to the relevant Registered
Noteholders of the Trust.
(b) (SHORT NOTICE) Notwithstanding clause 17.3(a), if it is so
agreed by a majority in number of the Registered Noteholders
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 Registered Notes 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 Registered
Noteholder shall not invalidate the proceedings at any
meeting.
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(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 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 Registered
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 Registered 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
(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 Registered Noteholder and may be a representative of the
Trustee. If such a person is not present or is present but unwilling to
act, then the Registered 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
Registered Noteholders holding, or Representatives holding or
representing, in the aggregate not less than 75% of the Invested
Amounts of all Registered Notes 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
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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 Registered Noteholders holding, or being Representatives
holding or representing, in the aggregate not less than 50% of
the Invested Amounts of all Registered Notes or constituting
the Class (as the case may be) and then outstanding (whatever
the Registered 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
Registered 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
particular majority is conclusive evidence of the fact without
proof of the
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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 Registered Noteholders holding, or being Representatives
holding or representing, in aggregate not less than 2% of the
Registered Notes 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
Registered Noteholder holding, or being a
Representative holding or representing, then
outstanding Registered Notes shall have one vote; and
(ii) on a poll, every person present shall have one vote
for each Registered Note 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 Registered
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 Registered Noteholders or any Class (as the case may be). No person
shall otherwise be entitled to attend or vote at any meeting of the
Registered Noteholders or any Class (as the case may be) unless he or
she holds outstanding Registered Notes or is a Representative holding
or representing such Registered Notes.
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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 Registered Noteholder.
(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 Registered 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 section 250D of the Corporations Law by a
Registered 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 Registered 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 Registered 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
Registered
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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 REGISTERED NOTEHOLDERS
(a) (POWERS) Subject to the Security Trust Deed (and in particular
any power of the Registered Note Trustee of Bearer Registered
Noteholders to override the decisions of Registered
Noteholders), a meeting of the Registered Noteholders 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;
(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
Registered Noteholders against the Trustee, the Trust
Manager, an Approved Seller or the relevant Servicer
whether such rights arise under any Transaction
Document or otherwise;
(iii) to sanction the exchange or substitution of
Registered Notes for or the conversion of Registered
Notes into, other obligations or securities of the
Trustee or any other body corporate formed or to be
formed;
(iv) under clause 36.2 of the Master Trust Deed, 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, an 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;
(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 Registered Noteholders shall not
have power to, nor shall any resolution submitted to the
meeting propose or have the effect of:
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(i) removing the 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 (subject to clause
17.12(a)(iii)).
17.13 EXTRAORDINARY RESOLUTION BINDING ON REGISTERED NOTEHOLDERS
An Extraordinary Resolution passed at a meeting of the Registered
Noteholders or of any Class duly convened and held in accordance with
this deed shall be binding on all the Registered Noteholders or of the
Class whether or not present at such meeting. Each of the Registered
Noteholders 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
Registered 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 Registered Noteholders 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 Registered Noteholders 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 Registered Noteholders or any Class, been
signed by all Registered Noteholders 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 Registered Noteholders or any Class
prescribe such further regulations regarding the holding of meetings of
the Registered Noteholders or any Class of Registered 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 Registered
Noteholders or any Class of Registered 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 Registered
Noteholders required to pass an Extraordinary Resolution or an ordinary
resolution.
CLAUSE 18.3 - NOTE ISSUANCE
For the purpose of clause 18.3(a) of the Master Trust Deed (but subject
to the conditions contained in clause 18.3 of the Master Trust Deed),
the Trust Manager has the following additional express powers:
(a) to negotiate with any Lead Manager and any Manager in relation
to the issue of relevant Notes;
(b) to invite bids from any Lead Manager or Manager for relevant
Notes on behalf of the Trustee; and
(c) to accept any such bid on behalf of the Trustee.
CLAUSE 18.9 - ACCOUNTING FOR MONEYS RECEIVED
For the purposes of clause 18.9(a) of the Master Trust Deed, the Trust
Manager will pay to the Trustee, within 5 Business Days of receipt, all
moneys coming into its hand belonging to the Trust or payable to the
Trust by the Trust Manager.
CLAUSE 18.10 - REUTERS
The Trust Manager will, on or promptly after each Notice Date, prepare
and arrange for the publication on Reuters Screen page WST/SEC11 to
WST/SEC12 (or another similar electronic reporting service, in the case
of Class A Notes approved by the Note Trustee and notified to Class A
Noteholders) of summary pool performance data for that Trust in a
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format similar to that used by other mortgage-backed securities or
asset-backed securities (as the case may be) in the Australian market
in relation to the Registered Notes, and in the London market in
relation to Class A Notes. In the case of the Class A Notes, this
includes:
(a) details of the Class A Notes (including the then Stated
Amount, Coupon Rate, relevant Coupon, the relevant Payment
Date, the Initial Invested Amount and the then Invested
Amount);
(b) the Class A Bond Factor; and
(c) statistics relating to Arrears on Purchased Receivables.
CLAUSE 21.2
For the purposes of clause 21.2 of the Master Trust Deed, the following
new paragraphs (v) to (z) are inserted and the existing paragraph (v)
becomes paragraph (aa).
(CLEARING SYSTEMS) to lodge Notes, or arrange for Notes to be lodged,
with DTC, or a depositary for DTC;
(CURRENCY CONVERSION) convert currencies on such terms and conditions
as the Trust Manager thinks fit and that are acceptable to the Trustee
acting reasonably;
(STOCK EXCHANGE) list and maintain the listing of the Notes on any
stock exchange;
(NOTE TRUSTEE) appoint a note trustee in respect of a relevant Trust;
(PAYING AGENTS) appoint paying agents in respect of a relevant Trust;
and"
CLAUSE 24.11 - OUTGOING TRUSTEE TO RETAIN LIEN
For the purposes of clause 24.11 of the Master Trust Deed, the term
"24.8(c)" in line two is replaced with "24.9(c)".
CLAUSE 33.14
For the purposes of clause 33.14 of the Master Trust Deed, insert a new
paragraph (f) as follows:
"(f) (for acts of Note Registrar) for any act, omission or default
of any Note Registrar appointed under the relevant Agency
Agreement or Note Trust Deed, in relation to its duties and
obligations under the relevant Agency Agreement or Note Trust
Deed, except where the Note Registrar is the Trustee."
CLAUSE 34.2 - NOTICES TO NOTEHOLDERS
(a) A notice, request or other communication by the Trustee, the
Trust Manager or a Servicer to Registered Noteholders shall be
deemed to be duly given or made by:
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(i) an advertisement placed on a Business Day in The
Australian Financial Review (or other nationally
distributed newspaper); or
(ii) mail, postage prepaid, to the address of the
Registered Noteholders as shown on the Register. Any
notice so mailed shall be conclusively presumed to
have been duly given whether or not the Registered
Noteholder actually receives the notice.
(b) A notice, request or other communication by the Trustee, the
Trust Manager, the Note Trustee or a Servicer to Class A
Noteholders shall be deemed to be duly given or made if given
or made in accordance with the relevant Condition 12.
CLAUSE 35 - PAYMENTS GENERALLY
35.1 PAYMENTS TO NOTEHOLDERS
(a) Any payment made by or on behalf of the Trustee in respect of
any Registered Note shall be made to the person whose name is,
on the Record Date, entered in the Register as the registered
owner of the relevant Registered Note (or in the case of joint
registered owners, to the person whose name first appears in
the Register).
(b) Any payment by or on behalf of the Trustee in respect of any
Class A Note shall be made in accordance with the Note Trust
Deed and the Agency Agreement.
35.2 PAYMENT METHODS - REGISTERED NOTES
Any moneys payable by the Trustee, the Trust Manager or the Servicer to
a Registered Noteholder or to a Beneficiary under the Master Trust Deed
and this Series Notice 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
Registered Noteholder or the Beneficiary (as the case may be)
and despatched by post to the address of the Registered
Noteholder shown in the 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;
(c) (DIRECT PAYMENT) by direct transfer to a designated account of
the Registered 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
Registered Noteholder or the Beneficiary (as the case may be)
and agreed to by the Trust Manager and the Trustee.
35.3 PAYMENT TO BE MADE ON BUSINESS DAY
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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
(a) There is a full satisfaction of the moneys payable under a
Registered Note, and a good discharge to the Trustee, the
Trust Manager or the Servicer (as the case may be) in relation
to that Registered Note, when the cheque is despatched by post
in accordance with clause 35.2(a) or, if not posted, delivered
to the Registered Noteholder or as directed by the Registered
Noteholder. None of the Trustee, the Trust Manager or the
Servicer shall be responsible for any moneys which are not
credited to the bank account of a Registered Noteholder or a
Beneficiary if the Trustee's bank has been instructed to
effect the direct transfer referred to in clause 35.2(c).
(b) There is a full satisfaction of the moneys payable under a
Class A Note, and a good discharge to the Trustee, the Trust
Manager or the Servicer (as the case may be) in relation to
that Class A Note, when so provided under the Note Trust Deed.
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 Registered 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) Subject to this clause, 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.
(b) (INTEREST WITHHOLDING TAX - REGISTERED NOTES) The Trustee or
any person making payments on behalf of the Trustee will be
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obliged to deduct interest withholding tax imposed by the
Commonwealth of Australia from payments of interest in respect
of the Registered 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 (INTEREST WITHHOLDING TAX) 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. The Trustee, or any person making any payments
on behalf of the Trustee, is entitled to deduct Interest
Withholding Tax in relation to payments on any Registered
Notes.
(c) (INTEREST WITHHOLDING TAX - CLASS A NOTES) Payments on Class A
Notes by or on behalf of the Trustee will be made subject to
deduction for any Interest Withholding Tax and all other
withholdings and deductions referred to in Condition 7 of the
Class A Notes.
(d) (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 on any Registered Note to
each Noteholder who has or is required to have a Tax File
Number at the highest personal marginal tax rate unless the
Trustee receives from such Registered Noteholder the Tax File
Number of that Registered Noteholder or evidence of any
exemption the Registered 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. The Trustee, or any person making any
payments on behalf of the Trustee, is entitled to deduct any
such tax-at-source required to be paid by it in relation to
Registered Notes at that highest personal marginal tax rate if
no Tax File Number is provided.
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<PAGE>
Exhibit 4.3
[LETTERHEAD OF ALLEN, ALLEN & HEMSLEY
NOTE TRUST DEED
- -------------------------------------------------------------------
WESTPAC SECURITIES ADMINISTRATION LIMITED
(as Trustee)
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED
(the Trust Manager)
CITIBANK, N.A., LONDON OFFICE
(Note Trustee)
CITIBANK, N.A.
(Principal Paying Agent)
ALLEN ALLEN & HEMSLEY
The Chifley Tower
2 Chifley Square
Sydney NSW 2000
Australia
Tel 61 2 9230 4000
Fax 61 2 9230 5333
(C) Copyright Allen Allen & Hemsley 1999
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CROSS REFERENCE TABLE1
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TRUST INDENTURE ACT SECTION CLAUSE
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310 (a)(1) 23.6
(a)(2) 23.1(d)
(a)(3) 23.6
(a)(4) 22.2(b)
(a)(5) NA2
(b) 23.6
(c) 23.6, 23.1
NA
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311 (a) 13.1
(b) 13.1
(c) NA
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312 (a) 31.1, 31.2(a)
(b) 31.2(b)
(c) 31.2(c)
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313 (a) 31.3
(b)(1) 31.3
(b)(2) NA
(c) 31.4
(d) 31.3
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314 (a)(1) 31.5
(a)(2) 31.5
(a)(3) 31.5
(a)(4) 11.1(i)
(b) 11.1(j)
(c) 32.1(a)
(d) 32.1(b)
(e) 32.1(c)
(f) 32.1(a)
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315 (a) 13.2(b)
(b) 13.3
(c) 13.2(a)
(d) 13.2(c), (d)
(e) 32.2
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316 (a)(1) 32.3
(a)(2) NA
(b) 32.4
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317 (a)(1) 6.1
(a)(2) 2.5
(b) NA
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318 (a) 32.5
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NOTES:
1. This Cross Reference Table shall not, for any purpose, be deemed to be
part of this deed.
2. NA means not applicable.
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<TABLE>
TABLE OF CONTENTS
<S> <C>
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions and Interpretation 1
1.2 Definitions in Master Trust Deed, Series Notice and Conditions 4
1.3 Incorporation by reference 4
1.4 Interpretation 4
1.5 Determination, statement and certificate sufficient evidence 5
1.6 Document or agreement 5
1.7 Transaction Document 5
1.8 Trustee as trustee 5
1.9 Obligations of the Trustee 5
2. PAYMENTS ON CLASS A NOTES 6
2.1 Principal amount 6
2.2 Covenant to repay 6
2.3 Deemed payment 6
2.4 Following Event of Default 7
2.5 Requirements of Paying Agent 8
2.6 Certification 8
2.7 Determinations 8
3. FORM OF, ISSUE OF AND DUTIES AND TAXES ON, CLASS A NOTES 9
3.1 Issue of Book-Entry Notes 9
3.2 Form of Book-Entry Notes 9
3.3 Definitive Notes 11
3.4 Stamp and Other Taxes 11
3.5 Indemnity for non-issue 12
3.6 Note Register and Note Registrar 12
4. COVENANT OF COMPLIANCE 13
5. CANCELLATION OF CLASS A NOTES 13
5.1 Cancellation 13
</TABLE>
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<TABLE>
<S> <C>
5.2 Records 14
6. ENFORCEMENT 14
6.1 Actions following Event of Default 14
6.2 Evidence of default 14
6.3 Overdue interest 14
6.4 Restrictions on enforcement 15
7. PROCEEDINGS 15
7.1 Acting only on direction 15
7.2 Security Trustee acting 16
7.3 Note Trustee alone entitled to act 16
7.4 Available amounts 16
7.5 Conflict of interests 17
8. NOTICE OF PAYMENT 17
9. INVESTMENT BY NOTE TRUSTEE 17
10. PARTIAL PAYMENTS 17
11. COVENANTS BY THE TRUSTEE AND TRUST MANAGER 18
11.1 Covenants by the Trustee and Trust Manager 18
12. REMUNERATION OF NOTE TRUSTEE 21
12.1 Fee 21
12.2 Additional Remuneration 21
12.3 Costs, expenses 21
12.4 Overdue rate 21
12.5 Continuing obligation 22
13. NOTE TRUSTEE 22
13.1 Preferential Collection of Claims Against Trustee 22
13.2 Duties of Note Trustee 22
13.3 Obligations of Note Trustee 23
13.4 Notice of Defaults 23
</TABLE>
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<TABLE>
<S> <C>
13.5 Rights of Note Trustee 23
14. NOTE TRUSTEE'S LIABILITY 30
15. DELEGATION BY NOTE TRUSTEE 31
16. EMPLOYMENT OF AGENT BY NOTE TRUSTEE 31
17. NOTE TRUSTEE CONTRACTING WITH TRUSTEE 31
18. WAIVER 32
19. AMENDMENT 33
19.1 Approval 33
19.2 Resolution of Class A Noteholders 33
19.3 Distribution of amendments 33
19.4 Amendments binding 34
19.5 Conformity with TIA 34
20. CLASS A NOTEHOLDERS 34
20.1 Absolute Owner 34
20.2 Clearing Agency Certificate 35
21. CURRENCY INDEMNITY 35
22. NEW NOTE TRUSTEES 36
22.1 Appointment by Trustee 36
22.2 Appointment by Note Trustee 37
22.3 Notice 37
23. NOTE TRUSTEE'S RETIREMENT AND REMOVAL 38
23.1 Removal by Trustee 38
23.2 Removal by Class A Noteholders 38
23.3 Resignation 38
23.4 Rating Agencies confirmation 38
23.5 Trust Corporation 38
</TABLE>
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<TABLE>
<S> <C>
23.6 Successor to Note Trustee 39
23.7 Eligibility; Disqualification 39
24. NOTE TRUSTEE'S POWERS ADDITIONAL 40
25. SEVERABILITY OF PROVISIONS 40
26. NOTICES 40
26.1 General 40
26.2 Details 41
27. GOVERNING LAW AND JURISDICTION 42
28. COUNTERPARTS 42
29. LIMITED RECOURSE 42
29.1 General 42
29.2 Liability of Trustee limited to its right to indemnity 42
29.3 Unrestricted remedies 43
29.4 Restricted remedies 43
30. SUCCESSOR TRUSTEE 44
31. CLASS A NOTEHOLDERS' LISTS AND REPORTS 44
31.1 Provision of information 44
31.2 Preservation of Information; Communications to Class A Noteholders 44
31.3 Reports by Note Trustee 45
31.4 Notices to Class A Noteholders; Waiver 45
31.5 Reports by Trustee 46
32. TRUST INDENTURE ACT - MISCELLANEOUS 46
32.1 Compliance Certificates and Opinions, etc 46
32.2 Undertaking for Costs 48
32.3 Exclusion of section 316 48
32.4 Unconditional Rights of Class A Noteholders to Receive Principal
and Interest 49
</TABLE>
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<TABLE>
<S> <C>
32.5 Conflict with Trust Indenture Act 49
33. CONSENT OF CLASS A NOTEHOLDERS 49
33.1 General 49
33.2 Special Written Approvals 49
33.3 Requirement for writing 51
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</TABLE>
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DATE 1999
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PARTIES
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1. WESTPAC SECURITIES ADMINISTRATION LIMITED (ACN 000 049 472)
incorporated in New South Wales of Level 10, 130 Pitt Street,
Sydney in its capacity as trustee of the Series 1999-1G WST
Trust (the TRUSTEE);
2. WESTPAC SECURITISATION MANAGEMENT PTY LIMITED (ACN 081 709
211) incorporated in the Australian Capital Territory of Level
25, 60 Martin Place, Sydney as trust manager in relation to
the Series 1999-1G WST Trust (the TRUST MANAGER);
3. CITIBANK, N.A., LONDON OFFICE acting through its office at 11
Old Jewry, London EC2R 8DU (NOTE TRUSTEE), which expression
shall, wherever the context requires, include any other person
or company for the time being a trustee under this deed or
trustees of this deed; and
4. CITIBANK, N.A. acting through its office at 5 Carmelite
Street, London EC4Y 0PA (the PRINCIPAL PAYING AGENT), which
expression shall wherever the context requires, include any
successor principal paying agent from time to time appointed
under the Agency Agreement.
RECITALS
- -----------
A The Trustee has resolved at the direction of the Trust Manager
to issue US$[*] of mortgage backed floating rate notes due
2030 comprising US$[*] Class A Notes, those Class A Notes to
be constituted and secured in the manner provided in this deed
and the other Transaction Documents.
B The Note Trustee has agreed to act as trustee for the Class A
Noteholders under this deed.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
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1.1 DEFINITIONS AND INTERPRETATION
The following definitions apply unless the context requires otherwise.
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CLASS A NOTE OWNER means, with respect to a Book-Entry Note, the person
who is the beneficial owner of such Book-Entry Note, as reflected on
the books of the Clearing Agency, or on the books of a person
maintaining an account with such Clearing Agency (directly as a
Clearing Agency Participant or as an indirect participant, in each case
in accordance with the rules of such Clearing Agency).
CLEARING AGENCY PARTICIPANT means a broker, dealer, bank, other
financial institution or other person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities
deposited with the Clearing Agency.
CORPORATE TRUST OFFICE means the principal office of the Note Trustee
at which at any particular time its corporate trust business is
administered, which at the date of the execution of this deed is 11 Old
Jewry, London EC2R 8DU, or at such other address as the Note Trustee
may designate by notice to the Trust Manager, Class A Noteholders and
the Trustee or the principal corporate trust office of any successor
Note Trustee.
EVENT OF DEFAULT means, in respect of a Class A Note, any of the events
described in Condition 9.
EXCHANGE ACT means the Securities Exchange Act of 1934 of the United
States of America, as amended.
INDEPENDENT means, in relation to a person, that the person:
(a) is independent of the Trustee, the Trust Manager, the
Servicer, any Approved Seller and any of their Associates;
(b) does not have any direct financial interest or any material
indirect financial interest (other than less than 5% of the
outstanding amount of any publicly traded security) in any
person referred to in paragraph (a); and
(c) is not an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions of
any person referred to in paragraph (a).
INDEPENDENT CERTIFICATE means, in relation to any person, a certificate
or opinion from that person where that person must be Independent,
which opinion or certificate states that the signer has read the
definition of INDEPENDENT in this deed and that the signer is
Independent within the meaning of that definition.
ISSUER ORDER and ISSUER REQUEST means a written order or request signed
in the name of the Trustee by any one of its Authorised Signatories and
delivered to the Note Trustee.
MASTER TRUST DEED means the Master Trust Deed dated 14 February 1997
between the Trustee and the Trust Manager.
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NOTE DEPOSITORY AGREEMENT means the agreement among Trustee, Note
Trustee and The Depository Trust Company, as the initial Clearing
Agency, dated as of the Closing Date, relating to the Class A Notes, as
the same may be amended or supplemented from time to time.
NOTEHOLDERS REPORT means the report to be delivered by the Trust
Manager, on behalf of the Trustee, in accordance with clause 11.1(1)
containing the information set out in Schedule 2.
OFFICER'S CERTIFICATE means a certificate signed by any Authorised
Signatory of the Trustee or the Trust Manager on behalf of the Trustee,
under the circumstances described in, and otherwise complying with, the
applicable requirements of section 314 of the TIA.
OPINION OF COUNSEL means one or more written opinions of legal counsel
who may, except as otherwise expressly provided in this deed, be
employees of or counsel to the Trustee or the Trust Manager on behalf
of the Trustee and who shall be satisfactory to the Trustee or the Note
Trustee, as applicable, and which opinion or opinions shall be
addressed to the Trustee or the Note Trustee, as applicable, and shall
be in form and substance satisfactory to the Trustee and the Note
Trustee, as applicable.
PAYING AGENT means any institution, including where the context permits
the Principal Paying Agent at its office (for so long as required for
interest under the Class A Notes to be exempt from interest withholding
tax under section 128F of the Income Tax Assessment Act 1936 (Cth))
outside of Australia:
(a) initially appointed as Paying Agent by the Trustee under the
Agency Agreement; or
(b) as may, with the prior written approval of, and on terms
previously approved in writing by, the Note Trustee (that
approval not to be unreasonably withheld or delayed) from time
to time be appointed by the Trustee in relation to the Class A
Notes,
in each case (except in the case of the initial Principal Paying Agent)
where notice of the appointment has been given to the Class A
Noteholders under this deed and in accordance with Condition 12.
RESPONSIBLE OFFICER means, with respect to the Note Trustee, any of its
officers, including any Vice President, Assistant Vice President,
Assistant Treasurer, Assistant Secretary, or any other of its officers
customarily performing functions similar to those performed by any of
them and, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
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SERIES NOTICE means the Series Notice dated 13 May 1999 between the
Trustee, the Trust Manager, the Note Trustee, Westpac Banking
Corporation and the Servicer.
TIA means the Trust Indenture Act of 1939 of the United States of
America, as amended.
TRUST ACCOUNT means the Collection Account, the US$ Account or any
other account maintained by or on behalf of the Trustee in relation to
the Trust.
TRUST CORPORATION means any person eligible for appointment as a
trustee under an indenture to be qualified pursuant to the TIA, as set
forth in Section 310(a) of the TIA, which shall include Citibank, N.A.,
London Office for so long as it complies with such section.
1.2 DEFINITIONS IN MASTER TRUST DEED, SERIES NOTICE AND CONDITIONS
(a) Words and expressions which are defined in the Master Trust
Deed (as amended by the Series Notice), the Series Notice and
the Conditions (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 Note
Trustee or any Class A Noteholder under this deed unless the
Note Trustee has agreed in writing to the changes under this
deed.
1.3 INCORPORATION BY REFERENCE
Where this deed refers to a provision of the TIA, the provision is
incorporated by reference in and made part of this deed. The following
terms used in the TIA have the following meaning in this deed.
COMMISSION means the Securities and Exchange Commission of the United
States of America.
INDENTURE SECURITIES means the Class A Notes.
INDENTURE SECURITY HOLDER means an Class A Noteholder.
INDENTURE TO BE QUALIFIED means the Note Trust Deed.
INDENTURE TRUSTEE or INSTITUTIONAL TRUSTEE means the Note Trustee.
OBLIGOR on the indenture securities means the Trustee.
Any other term which is used in this deed in respect of a section or
provision of the TIA and which is defined in the TIA, defined in the
TIA by reference to another statute or defined by or in any rule of or
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issued by the Commission, will have the meaning assigned to them by
such definitions.
1.4 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 Note 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) all references to costs or charges or expenses include any
value added tax or similar tax charged or chargeable in
respect of the charge or expense.
1.5 DETERMINATION, STATEMENT AND CERTIFICATE SUFFICIENT EVIDENCE
Except where otherwise provided in this deed any determination,
statement or certificate by the Note Trustee or an Authorised Signatory
of the Note Trustee provided for in this deed is sufficient evidence of
each thing determined, stated or certified until proven wrong.
1.6 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
(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.
1.7 TRANSACTION DOCUMENT
This deed is a TRANSACTION DOCUMENT for the purposes of the Master
Trust Deed.
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1.8 TRUSTEE AS TRUSTEE
In this deed, except where provided to the contrary:
(a) a reference to the Trustee is a reference to the Trustee 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 Trustee is a reference to the assets, business,
property or undertaking of the Trustee only in the capacity
described in paragraph (a) above.
1.9 OBLIGATIONS OF THE TRUSTEE
(a) A reference to the Trustee in each of clauses 3.6 other than
the first sentence, 5, 11.1(i), 11.1(j), 31.1, 31.5 and 32.1
is a reference to the Trust Manager on behalf of the Trustee
and, failing action by the Trust Manager in accordance with
the relevant clause (including any requirement to take such
action within a specified time), the Trustee.
(b) The Trustee shall not be liable for any act or omission by the
Trust Manager where it is acting on behalf of the Trust
Manager under sub-paragraph (a).
2. PAYMENTS ON CLASS A NOTES
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2.1 PRINCIPAL AMOUNT
The aggregate principal amount of the Class A Notes is limited to
US$[*].
2.2 COVENANT TO REPAY
(a) The Trustee covenants with the Note Trustee that the Trustee
will, in accordance with the terms of the Class A Notes
(including the Conditions) and the Transaction Documents (and
subject to the terms of the Transaction Documents and the
Conditions, including clause 29 of this deed and Condition 6)
on:
(i) the Maturity Date of the Class A Notes; or
(ii) each earlier date as the Class A Notes, or any of
them, may become repayable (whether in full or in
part),
pay or procure to be paid unconditionally to or to the order
of the Note Trustee in US$ in London for immediate value the
principal amount of the Class A Notes repayable, or in the
case of a partial payment of the Class A Notes, the principal
amount payable, subject to and in accordance with the terms of
the Class A Notes (including the Conditions).
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(b) Subject to clause 2.3 and to the terms of the Class A Notes
(including the Conditions) and the Transaction Documents,
until any payment as well after as before any judgment or
other order of a court of competent jurisdiction the Trustee
shall pay or procure to be paid unconditionally to or to the
order of the Note Trustee:
(i) any interest, at the respective rates calculated from
time to time, in accordance with and on the dates
provided for in the Conditions; and
(ii) principal payable at the times and in the amounts as
may be determined in accordance with Condition 5. (c)
The Note Trustee shall hold the benefit of the
covenant in this clause 2.2, and all other rights of
the Class A Noteholders under the Class A Notes, on
trust for the benefit of the Class A Noteholders.
2.3 DEEMED PAYMENT
(a) Any payment of principal or interest in respect of Class A
Notes to or to the account of the Principal Paying Agent in
the manner provided in clause 3 of the Agency Agreement shall
satisfy the covenant in relation to the Class A Notes by the
Trustee in this clause 2 to the extent of that payment.
(b) The payment by the Trustee of its payment obligations on each
Payment Date under the Series Notice and the Conditions to the
Principal Paying Agent shall be a good discharge to the
Trustee.
(c) The Trustee shall not be liable for any act or omission or
default of the Principal Paying Agent under this deed.
2.4 FOLLOWING EVENT OF DEFAULT
(a) At any time after an Event of Default in respect of the Class
A Notes has occurred, or at any time after Definitive Notes
have not been issued when so required in accordance with the
Conditions, the Note Trustee may:
(i) by notice in writing to the Trustee, the Trust
Manager, the Principal Paying Agent, the other Paying
Agents and the Agent Bank require the Principal
Paying Agent, the other Paying Agents and the Agent
Bank under the Agency Agreement either:
(A) (1) to act as Principal Paying Agent
and Paying Agents and Agent Bank
respectively of the Note Trustee in
relation to payments to be made by
or on behalf of the Note Trustee
under the provisions of this deed
on the
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terms of the Agency Agreement
except that the Note Trustee's
liability under any provisions of
the Agency Agreement for the
indemnification of the Paying
Agents and Agent Bank shall be
limited to any amount for the time
being held by the Note Trustee on
the trusts of this deed and which
is available to be applied by the
Note Trustee under this deed; and
(2) hold all Definitive Notes, and all
amounts, documents and records held
by them in respect of the Class A
Notes, on behalf of the Note
Trustee; or
(B) to deliver up all Definitive Notes and all
amounts, documents and records held by them
in respect of the Class A Notes, to the Note
Trustee or as the Note Trustee shall direct
in that notice, other than any documents or
records which the relevant Paying Agent or
Agent Bank is obliged not to release by any
law or regulation; and
(ii) by notice in writing to the Trustee require it to
make all subsequent payments in respect of the Class
A Notes to the order of the Note Trustee and not to
the Principal Paying Agent and, with effect from the
issue of that notice to the Trustee and until that
notice is withdrawn clause 2.3 shall not apply.
(b) The payment by the Trustee of its payment obligations on each
Payment Date under the Series Notice and the Conditions to the
Note Trustee in accordance with paragraph (b) shall be a good
discharge to the Trustee.
(c) The Trustee shall not be liable for any act or omission or
default of the Note Trustee during the period it is required
to make payments in respect of the Class A Notes to the Note
Trustee under paragraph (b).
2.5 REQUIREMENTS OF PAYING AGENT
The Trustee will cause each Paying Agent to execute and deliver to the
Note Trustee an instrument in which that Paying Agent shall agree with
the Note Trustee, subject to the provisions of this Clause, that such
Paying Agent shall:
(a) hold in trust for the Note Trustee and the Class A Noteholders
all sums held by that Paying Agent for the payment of
principal and interest with respect to the Class A Notes until
all relevant
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sums are paid to the Note Trustee or the Class A Noteholders
or otherwise disposed of as provided in this deed; and
(b) immediately notify by telex or facsimile the Note Trustee, the
Trustee, the Security Trustee and the Trust Manager if the
full amount of any payment of principal or interest required
to be made by the Series Notice and Conditions in respect of
the Class A Notes is not unconditionally received by it or to
its order in accordance with the Agency Agreement.
2.6 CERTIFICATION
For the purposes of any redemption of Class A Notes under Condition 5
the Note Trustee may rely upon an Officer's Certificate from the Trust
Manager on behalf of the Trustee certifying or stating, the opinion of
each person signing that Officer's Certificate as to the following
matters:
(a) the fair value (within 90 days of such release) of the
property or securities to be released from the Security Trust
Deed;
(b) that the proposed release will not impair the security under
the Security Trust Deed in contravention of the provisions of
the Security Trust Deed or this deed; and
(c) that the Trustee will be in a position to discharge all its
liabilities in respect of the relevant Class A Notes and any
amounts required under the Security Trust Deed to be paid in
priority to or PARI PASSU with those Class A Notes,
and that Officer's Certificate shall be conclusive and binding on the
Trustee, the Note Trustee and the holders of those Class A Notes.
2.7 DETERMINATIONS
If the Trust Manager does not at any time for any reason determine a
Principal Payment, the Invested Amount, the Stated Amount or the Bond
Factor applicable to any Class A Notes in accordance with Condition
5(m), the Principal Payment, Invested Amount, the Stated Amount and the
Bond Factor may be determined by the Note Trustee in accordance with
Conditions 5(i) and 5(m) (but based on the information in its
possession) and each such determination or calculation shall be deemed
to have been made by the Trust Manager, and the Note Trustee shall have
no liability in respect thereof other than as a result of the gross
negligence or wilful default of the Note Trustee.
3. FORM OF, ISSUE OF AND DUTIES AND TAXES ON, CLASS A NOTES
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3.1 ISSUE OF BOOK-ENTRY NOTES
(a) The Class A Notes shall on issue be represented by Book-Entry
Notes.
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(b) Each Book-Entry Note must be signed manually or by facsimile
by an Authorised Signatory of the Trustee on behalf of the
Trustee and must be manually authenticated by the Principal
Paying Agent.
3.2 FORM OF BOOK-ENTRY NOTES
(a) The Book-Entry Notes shall be typed in the form or
substantially in the form set out in schedule 1.
(b) The procedures relating to the exchange, authentication,
delivery, surrender, cancellation, presentation, marking up or
down of any of the Book-Entry Note (or part of the Book-Entry
Note and any other matters to be carried out by the relevant
parties upon exchange (in whole or part) of any Class A Note
shall be made in accordance with the provisions of the
relevant terms of the Book-Entry Notes and the normal practice
of the Common Depositary, the Principal Paying Agent and the
rules and procedures of the Clearing Agency from time to time.
(c) The Book-Entry Notes shall be in an aggregate principal amount
of US$[*].
(d) The Trustee shall procure that, prior to the issue and
delivery of any Book-Entry Note, that Book-Entry Note will be
authenticated manually by an Authorised Signatory of the
Principal Paying Agent and no Book-Entry Note shall be valid
for any purpose unless and until so authenticated. A
Book-Entry Note so executed and authenticated shall be binding
and valid obligations of the Trustee. Until a Book-Entry Note
(or part of a Book-Entry Note) has been exchanged pursuant to
this deed, it (or that part) shall in all respects be entitled
to the same benefits as a Definitive Note. Each Book-Entry
Note shall be subject to this deed except that the registered
owner of a Book-Entry Note shall be the only person entitled
to receive payments from the Principal Paying Agent of
principal or interest in relation to it.
(e) The Class A Notes upon original issue will be issued in the
form of typewritten Notes representing the Book-Entry Notes.
The Trustee shall, on the date of this deed, deliver or
arrange the delivery on its behalf to the Principal Paying
Agent, as agent for the Clearing Agency, of the Book-Entry
Notes. The Book-Entry Notes shall initially be registered on
the Note Register in the name of the Common Depositary as
nominee of the Clearing Agency, and no Class A Note Owner will
receive a Definitive Note representing such Class A Note
Owner's interest in such Class A Note, except as provided in
clause 3.3.
(f) Whenever a notice or other communication to the Class A
Noteholders is required under this deed, unless and until
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Definitive Notes shall have been issued to Class A Note Owners
pursuant to clause 3.3, the Note Trustee shall give all such
notices and communications specified herein to be given to
Class A Noteholders to the Clearing Agency, and shall have no
obligation to the Class A Note Owners.
(g) Unless and until the Definitive Notes have been issued to an
Class A Note Owner pursuant to clause 3.3:
(i) the provisions of this clause shall be in full force and
effect;
(ii) the Note Registrar, the Trustee, the Trust Manager, each
Paying Agent and the Note Trustee shall be entitled to deal
with the Clearing Agency for all purposes of this deed
(including the payment of principal of and interest on the
Class A Notes and the giving of instructions or directions
hereunder) as the sole holder of the Class A Notes, and shall
have no obligation to any Class A Note Owners;
(iii) to the extent that the provisions of this clause conflict with
any other provisions of this deed, the provisions of this
clause shall prevail;
(iv) the rights of Class A Note Owners shall be exercised only
through the Clearing Agency and shall be limited to those
established by law and agreements between such Class A Note
Owners and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Note Depository Agreement,
unless and until Definitive Notes are issued pursuant to
clause 3.3, the initial Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive
and transmit payments of principal and interest on the Class A
Notes to such Clearing Agency Participants; and
(v) whenever this deed requires or permits actions to be taken
based upon instructions or directions of Class A Note Owners
evidencing a specific percentage of all Invested Amounts of
all Class A Notes, the Clearing Agency shall be deemed to
represent such percentage only to the extent that it has
received instructions to such effect from Class A Note Owners
and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial
interest in the Class A Notes and has delivered such
instructions to the Principal Paying Agent.
3.3 DEFINITIVE NOTES
If:
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(a) the Trust Manager advises the Principal Paying Agent in
writing that the Clearing Agency is no longer willing or able
properly to discharge its responsibilities with respect to the
Class A Notes or the Clearing Agency or its successor and the
Trust Manager is unable to locate a qualified successor;
(b) the Trustee, at the direction of the Trust Manager (at the
Trust Manager's option) advises the Principal Paying Agent in
writing that the book-entry system through the Clearing Agency
is or is to be terminated; or
(c) after the occurrence of an Event of Default, the Class A Note
Owners representing beneficial interests aggregating to at
least a majority of the aggregate Invested Amount of the Class
A Notes advise the Trustee through the Clearing Agency in
writing that the continuation of a book entry system through
the Clearing Agency is no longer in the best interests of the
Class A Note Owners,
then the Principal Paying Agent shall notify all of the appropriate
Class A Note Owners and the Trustee of the occurrence of any such event
and of the availability of Definitive Notes to such Class A Note Owners
requesting the same. Upon the surrender of the Book-Entry Notes to the
Trustee by the Clearing Agency, and the delivery by the Clearing Agency
of the relevant registration instructions to the Trustee, the Trustee
(with the assistance of the Trust Manager) shall execute and procure
the Principal Paying Agent to authenticate the Definitive Notes in
accordance with the instructions of the Clearing Agency.
The Definitive Notes will be serially numbered and shall be
typewritten, printed, lithographed or engraved or produced by any
combination of these methods (with or without steel engraved borders),
all as determined by the Authorised Signatories executing such
Definitive Notes, as evidenced by their execution of such Definitive
Notes.
Neither the Note Registrar nor the Trustee shall be liable for any
delay in delivery of such instructions and may conclusively rely on,
and shall be protected in relying on, such instructions.
3.4 STAMP AND OTHER TAXES
The Trustee will pay any stamp and other duties and Taxes payable in
Australia, the United Kingdom, Belgium, Luxembourg or the United States
on or in connection with:
(a) the execution of the Transaction Documents;
(b) the constitution and original issue and delivery of the Class
A Notes; and
(c) any action taken by the Note Trustee or (where permitted under
this deed so to do), the Clearing Agency, or any Class A Note
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Owner to enforce the provisions of the Class A Notes or the
Transaction Documents.
3.5 INDEMNITY FOR NON-ISSUE
If the Trustee is required to issue, or procure the issue of,
Definitive Notes following an event specified in clause 3.3 but fails
to do so within 30 days of delivery to the Trustee of the Book-Entry
Notes in accordance with clause 3.3 then the Trustee shall, subject to
clause 29.2, indemnify the Note Trustee, the Class A Noteholders and
Class A Note Owners, and keep them indemnified, against any loss or
damage incurred by any of them if the amount received by the Note
Trustee, the Class A Noteholders or Class A Note Owners is less than
the amount that would have been received had Definitive Notes been
issued. If and for so long as the Trustee discharges its obligations
under this indemnity, the breach by the Trustee of the provisions of
clause 3.3 shall be deemed to be cured. The Trust Manager must promptly
advise the Trustee if it becomes actually aware of the occurrence of
the relevant event and the Trustee shall promptly notify the Note
Trustee of the relevant event.
3.6 NOTE REGISTER AND NOTE REGISTRAR
(a) The Trustee shall keep or cause to be kept the Note Register
in which, subject to such reasonable regulations as it may
prescribe, the Trustee shall provide for the registration of
the Class A Notes and the registration of transfers of Class A
Notes. The NOTE REGISTRAR will be responsible for registering
Notes and transfers of Class A Notes as herein provided. The
Trustee may, with the consent of the Note Trustee, appoint
another person as Note Registrar. Upon any resignation or
removal of any Note Registrar under the Agency Agreement, the
Trustee with the assistance of and at the direction of, the
Trust Manager shall promptly appoint a successor or, if it
elects not to make such an appointment, assume the duties of
the Note Registrar.
(b) Upon surrender for registration of transfer of any Class A
Note at the office or agency of the Trustee to be maintained
as provided in clause 11.1, if the requirements of Section
8-401(a) of the Uniform Commercial Code of New York (the UCC)
are met the Trustee shall execute and upon its written request
the Principal Paying Agent shall authenticate and the Class A
Noteholder shall obtain from the Note Trustee, in the name of
the designated transferee or transferees, one or more new
Class A Notes, in any authorised denominations, and a like
aggregate principal amount.
(c) At the option of the Class A Noteholder, Class A Notes may be
exchanged for other Class A Notes in any authorised
denominations, and a like aggregate principal amount, upon
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surrender of the Class A Notes to be exchanged at such office
or agency. Whenever any Class A Notes are so surrendered for
exchange, if the requirements of Section 8-401(a) of the UCC
are met the Trustee shall execute and upon its written request
the Principal Paying Agent shall authenticate and the Class A
Noteholder shall obtain from the Note Trustee, the Class A
Notes which the Class A Noteholder making the exchange is
entitled to receive.
(d) Every Class A Note presented or surrendered for registration
of transfer or exchange shall be (i) duly endorsed by, or be
accompanied by a written instrument of transfer in a form
satisfactory to the Note Registrar duly executed by, the Class
A Noteholder thereof or such Class A Noteholder's attorney
duly authorised in writing, with such signature guaranteed by
an "eligible guarantor institution" meeting the requirements
of the Note Registrar which requirements include membership or
participation of Securities Transfer Agents Medallion Program
(STAMP) or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in
substitution for, Stamp, all in accordance with the Exchange
Act, and (ii) accompanied by such other documents as the Note
Registrar may require.
(e) No Service charge shall be made to an Class A Noteholder for
any registration of transfer or exchange of Class A Notes, but
the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of
Class A Notes.
(f) The preceding provisions of this section notwithstanding, the
Trustee shall not be required to make and the Note Registrar
need not register transfers or exchanges of Class A Notes
selected for redemption or of any Class A Note for a period of
30 days preceding the due date for any payment with respect to
the Class A Note.
4. COVENANT OF COMPLIANCE
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The Trustee covenants with the Note Trustee that it will comply with
and perform and observe all material provisions of the Transaction
Documents which are expressed to be binding on it for the benefit of
the Note Trustee or any Class A Noteholder. The Conditions shall be
binding on the Trustee, the Note Trustee and the Class A Noteholders.
The Note Trustee is entitled to enforce the obligations of the Trustee
under the Class A Notes and the Conditions as if the same were set out
and contained in this deed (which shall be read and construed as one
document with the Class A Notes).
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5. CANCELLATION OF CLASS A NOTES
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5.1 CANCELLATION
The Trustee shall procure that all Class A Notes:
(a) which have been surrendered for payment, registration of
transfer, exchange or redemption; or
(b) in the case of any Definitive Note, which, being mutilated or
defaced, have been surrendered and replaced under Condition
11,
shall forthwith be cancelled by or on behalf of the Trustee.
5.2 RECORDS
The Trustee shall procure that:
(a) the Principal Paying Agent keeps a full and complete record of
all Class A Notes and of their redemption, payment, exchange
or cancellation (as the case may be) and of all replacement
Class A Notes, issued in substitution for lost, stolen,
mutilated, defaced or destroyed Definitive Notes; and
(b) such records shall be made available to the Note Trustee at
all reasonable times.
6. ENFORCEMENT
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6.1 ACTIONS FOLLOWING EVENT OF DEFAULT
At any time while an Event of Default is subsisting the Note Trustee
may (subject to the Security Trust Deed, to clauses 6.4 and 7, and to
Conditions 9 and 10) at its discretion and without further notice take
any action available to it to direct the Security Trustee to:
(a) institute any proceedings against the Trustee which are
permitted under the Transaction Documents;
(b) enforce the security created under the Security Trust Deed
(including anything set out in clause 8.2 of the Security
Trust Deed); and
(c) enforce repayment of the Class A Notes together with accrued
interest and any other moneys payable to the Note Trustee, the
Class A Noteholders or under the Transaction Documents.
6.2 EVIDENCE OF DEFAULT
If the Security Trustee or the Note Trustee takes any action against
the Trustee to enforce any of the provisions of any Class A Notes or
this deed, proof that as regards any Class A Note, the Trustee has not
paid any principal or interest due in respect of that Class A Note
shall (unless
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the contrary is proved) be sufficient evidence that the Trustee has not
paid that principal or interest on all other Class A Notes in respect
of which the relevant payment is then due.
6.3 OVERDUE INTEREST
The rates of interest payable in respect of any Class A Note which has
become due and repayable in full and which has not been repaid shall be
calculated at three-monthly intervals, commencing on the expiry of the
Coupon Period for the Class A Note during which the Class A Note became
due and repayable in accordance with the provisions of Condition 4
except that no notices need be given to Class A Noteholders, in
relation to that interest.
6.4 RESTRICTIONS ON ENFORCEMENT
(a) If any of the Class A Notes remain 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 realised to discharge in
full all amounts owing to the Class A Noteholders and
any other amounts payable by the 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 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
Trustee, to discharge in full in due course all the
amounts referred to in paragraph (i).
(b) Neither the Note Trustee nor the Security Trustee will be
liable for any decline in the value, nor any loss realised
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 Trustee or
any third party in respect of the Trustee or the Class A 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 in
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good faith based on advice received by it in accordance with
paragraph (a).
7. PROCEEDINGS
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7.1 ACTING ONLY ON DIRECTION
(a) Subject to paragraph (b), 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 take any
proceedings, actions or steps under, or any other proceedings
pursuant to or in connection with, the Security Trust Deed,
this deed, or any Class A Notes, unless directed or requested
to do so in writing by holders of at least 75% of the
aggregate Invested Amount of Class A Notes 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; or
(b) The Note Trustee shall be protected with respect to any action
taken or omitted to be taken by it in good faith in accordance
with the direction of the holders of the required aggregate
Invested Amount of the Class A Notes in accordance with this
deed relating to the time, method and place of conducting any
proceeding for any remedy available to, or exercising any
trust or power conferred upon it, under this deed.
7.2 SECURITY TRUSTEE ACTING
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 Trustee to enforce the
performance of any of the provisions of the Security Trust Deed, or the
Class A Notes (including the Conditions).
7.3 NOTE TRUSTEE ALONE ENTITLED TO ACT
Only the Note Trustee may:
(a) direct the Security Trustee to enforce or otherwise; or
(b) enforce the provisions of this deed, or the Class A Notes
(including the Conditions),
and no Class A Noteholder is entitled to take any of the above actions
or to proceed directly against the Trustee to enforce the performance
of any of the provisions of this deed or the Class A Notes (including
the Conditions).
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7.4 AVAILABLE AMOUNTS
For the purpose of Condition 5(n) the Note Trustee shall not be
satisfied that the Trustee will be in a position to discharge the
liabilities referred in those Conditions unless, either:
(a) the Trustee will have available to it sufficient cash in the
Collection Account and sufficient Authorised Investments which
will mature on or before the relevant Payment Date after
making any other payments or provisions having priority in
order of application under the applicable provisions of the
Security Trust Deed; or
(b) the Trustee has entered into a legally binding contract with
an entity either whose long term unsecured and unguaranteed
debt is rated AA- by S&P, AA- by Fitch and Aa3 by Moody's or
whose short term unsecured and unguaranteed debt securities
are rated A-1 by S&P, F-1 from Fitch where the entity is
Westpac, or F-1+ where the entity is not Westpac and P-1 from
Moody's to provide sufficient cash on or before the relevant
Payment Date to enable the Trustee to discharge the relevant
liabilities.
7.5 CONFLICT OF INTERESTS
The Note Trustee shall, with respect to all the powers, trusts,
authorities, duties and discretions vested in it by the Transaction
Documents, except where expressly provided otherwise, have regard to
the interests of the Class A Noteholders.
8. NOTICE OF PAYMENT
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The Note Trustee shall give notice to the relevant Class A Noteholders
in accordance with Condition 12 of the day fixed for any payment to
them of amounts received by the Note Trustee under clause 16 of the
Security Trust Deed. Those payments may be made in accordance with
Condition 6 as appropriate (in the case of Definitive Notes) or in the
name of the nominee of the Clearing Agency by wire transfer in
immediately available funds to an account designated by such nominee to
the order of the registered holder of the Class A Note (in the case of
any Book-Entry Note) and payment of those amounts by the Note Trustee
to the Principal Paying Agent for that purpose shall be a good
discharge to the Note Trustee.
9. INVESTMENT BY NOTE TRUSTEE
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Any amount which, under the trusts of this Deed ought to or may be
invested by the Note Trustee, may be invested in the name or under the
control of the Note Trustee in any Authorised Investments and the
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Note Trustee may at any time or times vary any Authorised Investments
into other Authorised Investments and shall not be responsible for any
loss due to depreciation in value or otherwise resulting from any
Authorised Investments made by it.
10. PARTIAL PAYMENTS
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In the case of Definitive Notes, on any payment of amounts received by
or on behalf of the Note Trustee under clause 16 of the Security Trust
Deed (other than the payment in full against surrender of a Definitive
Note) the Definitive Note in respect of which such payment is made
shall be produced to the Note Trustee or the Paying Agent by or through
whom such payment is made and the Note Trustee shall or shall cause the
Paying Agent to enface on the Definitive Note a memorandum of the
amount and the date of payment, but the Note Trustee may in any
particular case dispense with that production and enfacement upon an
indemnity being given to the Note Trustee by the recipient of the
payment as the Note Trustee considers sufficient.
11. COVENANTS BY THE TRUSTEE AND TRUST MANAGER
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11.1 COVENANTS BY THE TRUSTEE AND TRUST MANAGER
Each of the Trustee and the Trust Manager undertakes to the Note
Trustee, on behalf of the Class A Noteholders as follows in relation to
the Trust for so long as any of the Class A Notes remain outstanding
(except to the extent that the Note Trustee otherwise consents).
(a) (MASTER TRUST DEED COVENANTS) It will comply with its
covenants in clause 18, 22 or 29 of the Master Trust Deed (as
the case may be).
(b) (TRANSACTION DOCUMENTS):
(i) It will ensure that it complies with its material
obligations under the Transaction Documents.
(ii) It will use its best endeavours to procure that each
other party to a Transaction Document complies with
and performs its obligations under that Transaction
Document.
(c) (INFORMATION) Give to the Note Trustee a copy of any
information relating to the Trust that the Note Trustee
reasonably requests in connection with the exercise and
performance of its powers and obligations under this deed.
(d) (NOTIFY EVENTS OF DEFAULT)
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(i) It will promptly notify the Note Trustee if, to the
knowledge of its officers who are responsible for the
administration of the Trust, it becomes actually
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 (to the extent known, without making any
enquiry) of that Event of Default, Trustee's Default,
Servicer Transfer Event, Title Perfection Event or
Trust Manager's Default (as the case may be).
(ii) The Trustee will confirm to the Note Trustee in
writing, on each anniversary of this deed:
(A) whether or not any Event of Default is
subsisting of which it is actually aware;
and
(B) any other matter which is required to be
notified to the Note Trustee under the
Transaction Documents and which has not
previously been so notified.
(e) (LISTING) It will use its best endeavours to:
(i) obtain and maintain the listing of the Class A Notes
on the Stock Exchange (including compliance with the
continuing obligations applicable to the Trustee by
virtue of the admission of the Class A Notes to the
Official List of the Stock Exchange) or, if it is
unable to do so having used best endeavours, use best
endeavours to obtain and maintain a quotation or
listing of the Class A Notes on any other stock
exchange or exchanges or securities market or markets
as the Trust Manager (with the prior written approval
of the Note Trustee, that approval not to be
unreasonably withheld or delayed) decides and
following that quotation or listing enter into a deed
supplemental to this Trust Deed to effect such
consequential amendments to this deed necessary to
comply with the requirements of any such stock
exchange or securities market; and
(ii) procure that there will at all times be furnished to
the Stock Exchange (or to any other relevant stock
exchange or securities market) any information which
the Stock Exchange or, as the case may be, any other
such stock exchange or securities market, may require
to be furnished in accordance with its requirements.
(f) (MAINTENANCE OF OFFICE OR AGENCY) The Trustee will maintain in
the Borough of Manhattan, The City of New York and in
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London, an office or agency where Class A Notes may be
surrendered for registration of transfer or exchange, and
where notices and demands to or upon the Trustee in respect of
the Class A Notes and this deed may be served. The Trustee
hereby initially appoints the Principal Paying Agent to serve
as its agent for the foregoing purposes. The Principal Paying
Agent shall act solely for, and as agent of, the Trustee and
shall not have any obligations towards or relationship or
agency or trust with any other person in respect of its
appointment under this sub-paragraph (f). The Trustee will
give prompt written notice to the Note Trustee of the
location, and of any change in the location, of any such
office or agency. If at any time the Trustee shall fail to
maintain any such office or agency or shall fail to furnish
the Note Trustee with the address thereof, such surrenders,
notices and demands may be made or served at the Corporate
Trust Office, and the Trustee hereby appoints the Note Trustee
as its agent to receive all such surrenders, notices and
demands.
(g) (AGENT BANK) It will procure that, so long as any of the Class
A Notes remain outstanding, there will at all times be an
Agent Bank.
(h) (CHANGE TO PAYING AGENTS OR AGENT BANK) It will give notice to
the Class A Noteholders in accordance with the Agency
Agreement and Condition 12 of:
(i) any appointment, resignation or removal of any Paying
Agent (other than the appointment of the initial
Principal Paying Agent) or Agent Bank;
(ii) any change to any Paying Agent's Paying Office (as
defined in the Agency Agreement); or
(iii) any change to the Agent Bank's Specified Office (as
defined in the Agency Agreement). (i) (NOTICES) It
will promptly give to the Note Trustee, or ensure
that the Note Trustee receives, two copies of the
form of every notice given to the Class A Noteholders
in accordance with Condition 12.
(j) (ANNUAL STATEMENT AS TO COMPLIANCE) The Trustee will deliver
to the Note Trustee, within 120 days after the end of each
fiscal year of the Trust (commencing on 30 June 2000), and
otherwise in compliance with the requirements of section
314(a)(4) of the TIA, an Officer's Certificate stating that:
(i) a review of the activities of the Trustee in respect
of the Trust during such year and of performance
under the Transaction Documents has been made under
supervision
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of the person signing the Officer's Certificate (the
SIGNATORY); and
(ii) to the best of the knowledge of the Signatory, based
on the review referred to in paragraph (i), the
Trustee has complied with all conditions and
covenants under the Transaction Documents throughout
the relevant year, or, if there has been a default in
the compliance of any such condition or covenant,
specifying each such default known to the Signatory
of the nature and status of the default.
For the purposes of this clause 11.2(j) compliance shall be
determined without regard to any period of grace or
requirement of notice under the Transaction Documents.
(k) (OPINIONS AS TO TRUST ESTATE) On the Closing Date, the Trustee
shall furnish to the Note Trustee an Opinion of Counsel (who
may be of counsel for the Trustee) either stating that in the
opinion of such counsel the Security Trust Deed and any other
requisite documents has been properly recorded and filed so as
to make effective the Security Interest intended to be created
by the Security Trust Deed, and reciting the details of such
action, or stating that in the opinion of such counsel no such
action is necessary to make such Security Interest effective.
Within 120 days after the end of each fiscal year commencing
on 30 June 2000 the Trustee shall furnish to the Note Trustee
an Opinion of Counsel (who may be of counsel for the Trustee)
either stating that in the opinion of such counsel such action
has been taken with respect to the recording, filing,
re-recording, and refiling of the Security Trust Deed and any
other requisite documents as is necessary to maintain the
Security Interest created by the Security Trust Deed, and
reciting the details of such action, or stating that in the
opinion of such counsel no such action is necessary to
maintain such Security Interest.
(l) (i) The Trustee (or the Trust Manager on its behalf)
shall deliver to the Principal Paying Agent on each
Collection Determination Date the Noteholders Report
for the related Collection Period, with written
instructions for the Principal Paying Agent to
forward the Noteholders Report to each Class A
Noteholder.
(ii) Each Noteholder Report shall contain the information
set out in Schedule 2.
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12. REMUNERATION OF NOTE TRUSTEE
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12.1 FEE
The Trustee shall pay to the Note Trustee a fee agreed between them.
12.2 ADDITIONAL REMUNERATION
If the Note Trustee gives a notice under Condition 10 or it undertakes
duties which it considers expedient or necessary under this deed, or
which the Trustee requests it to undertake and which duties the Note
Trustee, the Trust Manager and the Trustee agree to be of an
exceptional nature or otherwise outside the scope of the normal duties
of the Note Trustee under this deed, the Trustee shall pay to the Note
Trustee any additional remuneration as they agree.
12.3 COSTS, EXPENSES
(a) The Trustee shall also reimburse, pay or discharge all
reasonable costs, charges, liabilities and expenses and any
stamp and other Taxes or duties paid by the Note Trustee in
connection with properly undertaking its duties under the
Transaction Documents and in connection with any legal
proceedings brought by the Note Trustee to enforce any
obligation under this deed or the Class A Notes. The Note
Trustee shall not be reimbursed for any overhead or general
operating expenses incurred by the Note Trustee.
(b) Without prejudice to the right of indemnity by law given to
trustees, to the extent the Trustee is itself entitled to be
indemnified, the Trustee indemnifies the Note Trustee and
every other person properly appointed by it under this deed
from and against all liabilities, losses, damages, costs,
expenses, actions, proceedings, claims and demands incurred by
or made against it or him in the execution of the trusts of
this deed or of their powers or in respect of any matter or
thing done or omitted in any way relating to this deed (other
than arising from any breach of trust, fraud, wilful default
or negligence by the Note Trustee or that person).
12.4 OVERDUE RATE
All sums payable by the Trustee under clause 12.3 shall be payable by
the Trustee on the next Payment Date in the order set out in the Series
Notice or (if applicable) the Security Trust Deed and shall carry
interest at the rate of LIBOR from the due date. Any amount payable
shall carry interest at that rate from the due date to the date of
actual payment.
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12.5 CONTINUING OBLIGATION
Unless otherwise specifically stated in any discharge relating to this
deed the provisions of this clause shall continue in full force and
effect notwithstanding such discharge.
13. NOTE TRUSTEE
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13.1 PREFERENTIAL COLLECTION OF CLAIMS AGAINST TRUSTEE
The Note Trustee shall comply with section 311(a) of the TIA, excluding
any creditor relationship listed in section 311(b) of the TIA. A Note
Trustee who has resigned or been removed shall be subject to section
311(a) of TIA to the extent required by the TIA.
13.2 DUTIES OF NOTE TRUSTEE
(a) If an Event of Default has occurred and is subsisting, of
which a Responsible Officer of the Note Trustee has actual
knowledge, the Note Trustee shall exercise the rights and
powers vested in it by this deed and use the same degree of
care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of such
person's own affairs.
(b) Except while an Event of Default subsists:
(i) the Note Trustee undertakes to perform such duties
and only such duties as are specifically set forth in
this deed and no implied covenants or obligations
shall be read into this deed against the Note
Trustee; and
(ii) in the absence of bad faith on its part, the Note
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Note Trustee and conforming to the
requirements of this deed; however, the Note Trustee
shall examine the certificates and opinions to
determine whether or not they conform to the
requirements of this deed.
(c) The Note Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its
own wilful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph
(a) of this clause; and
(ii) the Note Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer
unless it is proved that the Note Trustee was
negligent in ascertaining the pertinent facts.
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(d) Section 315(d)(3) of the TIA is expressly excluded by this
deed.
13.3 OBLIGATIONS OF NOTE TRUSTEE
The Note Trustee represents and warrants that it is duly qualified to
assume its obligations under this deed and has obtained all necessary
approvals required to perform its obligations under this deed.
13.4 NOTICE OF DEFAULTS
(a) If an Event of Default occurs and is subsisting and the Note
Trustee is actually aware of that Event of Default, the Note
Trustee shall mail to each Class A Noteholder notice of the
Event of Default within 90 days after becoming so aware.
(b) Except in the case of a default in payment of principal of or
interest on any Class A Note (including payments pursuant to
the mandatory redemption provisions of that Class A Note), the
Note Trustee may withhold the notice referred to in paragraph
(a) if and so long as the board of directors, the executive
committee or a trust committee of its directors in good faith
determines that withholding the notice is in the interest of
Class A Noteholders.
13.5 RIGHTS OF NOTE TRUSTEE
(a) The Note Trustee may conclusively rely on any document
believed by it to be genuine and to have been signed or
presented by the proper person. The Note Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Note Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel. The
Note Trustee shall not be liable for any action it takes,
suffers or omits to take in good faith in reliance on the
Officer's Certificate or Opinion of Counsel.
(c) No provision of this deed shall require the Note Trustee to
expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder or
in the exercise of any of its rights or powers, if it shall
have reasonable grounds to believe that repayment of such
funds or indemnity satisfactory to it against such risk or
liability is not assured to it.
(d) The Note Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this deed or
the Class A Notes, shall not be accountable for the Trustee's
use of the proceeds from the Class A Notes, and shall not be
responsible for any statement of the Trustee in this deed or
in any document issued in connection with the sale of the
Class A Notes or in the Class A Notes.
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(e) The Note Trustee may in relation to this deed act on the
advice or opinion of or any information obtained from any
lawyer, valuer, accountant, banker, broker, credit-rating
agency, lead manager or other expert whether obtained by the
Trustee, the Note Trustee, the Trust Manager, the Servicer or
otherwise.
(f) Any advice, opinion or information including but not limited
to advice, opinion or information from any lawyer, valuer,
accountant, banker, broker, credit-rating agency or lead
manager, whether obtained by the Trustee, the Note Trustee,
the Trust Manager, the Servicer or otherwise, may be sent or
obtained by letter, telex, telegram, facsimile transmission or
cable and the Note Trustee shall not be liable for acting on
any such advice, opinion or information purporting to be
conveyed by any such letter, telex, telegram, facsimile
transmission or cable although the same shall contain some
error or shall not be authentic.
(g) The Note Trustee may call for and shall be at liberty to
accept as sufficient evidence of any fact or matter or the
expediency of any transaction or thing a certificate signed by
an Authorised Signatory of the Trustee or the Trust Manager
(as the case may be) and the Note Trustee shall not be bound
in any such case to call for further evidence or be
responsible for any loss that may be occasioned by the Note
Trustee acting on that certificate.
(h) The Note Trustee is at liberty to hold or to place this deed
and any other documents relating to this deed in any part of
the world (other than Australia) with any banker or banking
company or company whose business includes undertaking the
safe custody of documents or lawyer or firm of lawyers
reasonably considered by the Note Trustee to be of good repute
and neither the Note Trustee nor the Security Trustee shall be
responsible for or required to insure against any loss
incurred in connection with any such deposit and may pay all
sums required to be paid on account of or in respect of any
such deposit.
(i) The Note Trustee shall not be responsible for the application
of the proceeds of the issue of any of the Class A Notes by
the Trustee or any moneys borrowed by the Trustee under any
Transaction Document or the exchange of any Book-Entry Note
for any other Book-Entry Note or Definitive Note, as the case
may be.
(j) The Note Trustee shall not be bound to give notice to any
person of the execution of this deed or any of the Transaction
Documents or any transaction contemplated hereby or thereby or
to take any steps to ascertain whether any Event of Default
has happened and, until it has actual knowledge or express
notice to the contrary, the Note Trustee is entitled to assume
that no
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Event of Default has happened and that the Trustee and each
other party to any Relevant Document is observing and
performing all the obligations on its part contained in the
Class A Notes and under this deed or, as the case may be, the
Security Trust Deed or any other Transaction Document to which
it is a party.
(k) Save as expressly otherwise provided in this deed or the
Transaction Documents, the Note Trustee shall have absolute
and uncontrolled discretion as to the exercise of the
discretions vested in the Note Trustee by this deed and the
Transaction Documents (the exercise of which as between the
Note Trustee and the Class A Noteholders) shall be conclusive
and binding on the Class A Noteholders but whenever the Note
Trustee is under the provisions of this deed or the
Transaction Documents bound to act at the request or direction
of the Class A Noteholders, or any of them, the Note Trustee
shall nevertheless not be so bound unless first indemnified to
its satisfaction against all actions, proceedings, claims and
demands to which it may render itself liable and all costs,
charges, damages, expenses and liabilities which it may incur
by so doing.
(l) Any consent or approval given by the Note Trustee for the
purpose of this deed, the Conditions and any Transaction
Document may be given on any terms and subject to any
conditions as the Note Trustee thinks fit and despite anything
to the contrary contained in this deed, any Transaction
Document or the Conditions may be given retrospectively.
(m) The Note Trustee shall not (unless and to the extent ordered
so to do by a court of competent jurisdiction) be required to
disclose to any Class A Noteholder or any Mortgagee, any
confidential financial, price sensitive or other information
made available to the Note Trustee by the Trustee or any other
person in connection with the trusts of this deed and no Class
A Noteholder shall be entitled to take any action to obtain
from the Note Trustee any such information.
(n) Where it is necessary or desirable for any purpose in
connection with this deed to convert any sum from one currency
to another it shall (unless otherwise provided by this deed or
required by law) be converted at the rate or rates, in
accordance with the method and as at the date for the
determination of the rate of exchange, as may be agreed by the
Note Trustee in consultation with the Trustee and the Trust
Manager as relevant and any rate, method and date so agreed
shall be binding on the Trustee, the Class A Noteholders.
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(o) The Note Trustee may certify whether or not any of the events
set out in paragraphs (b) to (e) of Condition 9 or any breach
under clause 8 of the Security Trust Deed is in its opinion
materially prejudicial to the interests of the relevant Class
A Noteholders and may certify, in relation to the event set
out in paragraph (a) of Condition 9 in relation to any payment
of interest on the Class A Notes that the Trustee had, on the
due date for payment of the amount of interest in question,
sufficient cash to pay, in accordance with the provisions of
the Series Notice or the Security Trust Deed, all interest
(after payment of all sums which are permitted under the
Series Notice or the Security Trust Deed to be paid in
priority to or pari passu with them) and that certificate
shall be conclusive and binding upon the Trustee, the Class A
Noteholders. The Note Trustee shall have no liability to the
Trustee, any Class A Noteholder or any other person in
relation to any such certificate or in relation to any delay
or omission in providing certificate. In giving any
certificate relating to paragraph (a) of Condition 9, the Note
Trustee may rely on any determination made by any independent
accountants of recognised standing in Australia and any such
determination shall be conclusive and binding on the Trustee
and the Class A Noteholders.
(p) The Note Trustee shall not be bound to take any steps to
ascertain whether any event, condition or act, the happening
of which would cause a right or remedy to become exercisable
by the Note Trustee under this deed or by the Trustee under
any of the Transaction Documents has happened or to monitor or
supervise the observance and performance by the Trustee or any
of the other parties thereto of their respective obligations
thereunder and, until it shall have actual knowledge or
express notice to the contrary the Note Trustee shall be
entitled to assume that no such event, condition or act has
happened and that the Trustee and each of the other parties
thereto are observing and performing all their respective
obligations thereunder.
(q) The Note Trustee shall not be responsible for recitals,
statements, warranties or representations of any party
contained in any Transaction Document or other document
entered into in connection with it and shall assume its
accuracy and correctness and its execution, legality,
effectiveness, adequacy, genuineness, validity or
enforceability or admissibility in evidence of that agreement
or other document or any security constituted by them, and the
Note Trustee may accept without enquiry, requisition or
objection all title as the Trustee may have to any of the
Mortgaged Property or as any other person may have to any
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other security charged from time to time to the Note Trustee
and shall not be bound to investigate or make any enquiry in
the title of the Trustee to any of the Mortgaged Property or
the title of any other person to any other security charged
from time to time to the Note Trustee whether or not any
default or failure is or was known to the Note Trustee or
might be, or might have been, discovered upon examination
inquiry or investigation and whether or not capable of remedy.
Notwithstanding the generality of the foregoing each Class A
Noteholder is solely responsible for making its own
independent appraisal of and investigation into the financial
condition, creditworthiness, condition, affairs, status and
nature of the Trustee and the Note Trustee shall not at any
time have any responsibility for the same and no Class A
Noteholder shall rely on the Note Trustee in that respect.
(r) The Note Trustee shall not be liable for any failure, omission
or defect in or filing or procuring registration or filing of
or otherwise protecting or perfecting the Security Trust Deed
or the Mortgaged Property or any other security or failure to
call for or delivery of documents of title to the Mortgaged
Property or any other security or to require any further
assurances in relation to any property or assets comprised in
the Mortgaged Property or any other security.
(s) The Note Trustee shall not be obliged (whether or not directed
to do so by the Class A Noteholders) to direct the Security
Trustee to perfect legal title to any Purchased Receivable
Security if, in the opinion of the Note Trustee, that
perfection would or might result in the Note Trustee becoming
liable to or incurring any obligation to any Borrower under a
Purchased Receivable Security and, in its opinion, there is or
would be insufficient cash to discharge, in accordance with
the provisions of the Security Trust Deed, that liability or
obligations as and when they arise. Notwithstanding the
generality of the foregoing, the Note Trustee shall have no
responsibility or liability for the payment of any fees for
the registration of any Receivable Security in Australia or
for any related legal, administrative or other fees, costs and
expenses (including, but not limited to, any proper
disbursements and any value added tax).
(t) The Note Trustee shall, as regards all the powers, trusts,
authorities, duties and discretions vested in it by this deed,
the Transaction Documents or the Class A Notes (including the
Conditions), except where expressly provided otherwise have
regard to the interests of the Class A Noteholders.
(u) Without prejudice to the provisions of any Transaction
Document, the Note Trustee shall not be under any obligation
to
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insure any of the Mortgaged Property (or any other property)
or any deeds or documents of title or other evidence relating
to that property and shall not be responsible for any loss,
expense or liability which may be suffered as a result of the
lack of or inadequacy of any that insurance.
(v) The Note Trustee shall not be responsible for any loss,
expense or liability occasioned to the Mortgaged Property or
any other property or in respect of all or any of the moneys
which may stand to the credit of the Collection Account, from
time to time however caused (including any bank, broker,
depositary, warehouseman or other intermediary or any clearing
system or its operator acting in accordance with or contrary
to the terms of any of the Transaction Documents or
otherwise), unless that loss is occasioned by the wilful
neglect or misconduct or fraud, or breach of trust of the Note
Trustee.
(w) The Note Trustee has no responsibility whatsoever to the
Trustee or any Class A Noteholder as regards any deficiency or
additional payment, as the case may be, which might arise
because the Note Trustee or the Trustee is subject to any Tax
in respect of the Mortgaged Property, the Security Trust Deed
or any other security or any income or any proceeds from them.
(x) No provision of this deed requires the Note Trustee to do
anything which may be illegal or contrary to applicable law or
regulation or expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties, or in the exercise of any of its rights or powers, if
it has reasonable grounds to believe that repayment of those
funds or adequate indemnity against that risk or liability is
not assured to it. Without limitation nothing contained in
this deed imposes any obligation on the Note Trustee to make
any further advance to a Borrower or to borrow any moneys
under a Transaction Document or to maintain, protect or
preserve any moneys standing to the credit of the Collection
Account.
(y) The Note Trustee is not responsible for the genuineness,
validity, effectiveness or suitability of any of the
Transaction Documents or any of the Mortgages, Charges or
other documents entered into in connection with them or any
Mortgage Insurance Policy or any other document or any
obligation or rights created or purported to be created by
them or under them or any Security Interest or the priority of
constituted by or purported to be constituted by or pursuant
to that Security Interest, nor shall it be responsible or
liable to any person because of any invalidity of any
provision of those documents or the unenforceability of those
documents, whether arising from statute, law or decision of
any court and (without limitation) the Note Trustee shall not
be
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responsible for or have any duty to make any investigation in
respect of or in any way be liable whatsoever for:
(i) the nature, status, creditworthiness or solvency of
any Borrower or any other person or entity who has at
any time provided any security or support whether by
way of Guarantee, Security Interest or otherwise in
respect of any advance made to any Borrower;
(ii) the execution, legality, validity, adequacy,
admissibility in evidence or enforceability of any
Mortgage or Loan or any other document entered into
in connection with them;
(iii) the title, ownership, value, sufficiency or existence
of any Land, Mortgaged Property, or any Mortgage
Insurance Policy;
(iv) the registration, filing, protection or perfection of
any Mortgage or the priority of the security created
under a Mortgage whether in respect of any initial
advance or any subsequent advance or any other sums
or liabilities;
(v) the scope or accuracy of any representations,
warranties or statements made by or on behalf of any
Borrower in any application for any advance or in any
Mortgage or Loan or in any document entered into in
connection with them;
(vi) the performance or observance by any Borrower or any
other person of any provisions of any Mortgage or
Loan or in any document entered into in connection
with them or the fulfilment or satisfaction of any
conditions contained in them or relating to them or
as to the existence or occurrence at any time of any
default, event of default or similar event contained
in them or any waiver or consent which has at any
time been granted in relation to any of the above;
(vii) the existence, accuracy or sufficiency of any legal
or other opinions, searches, reports, certificates,
valuations or investigations delivered or obtained or
required to be delivered or obtained at any time in
connection with any Mortgage or Loan;
(viii) the title of the Trustee to any Mortgage, Loan or
other Mortgaged Property;
(ix) the suitability, adequacy or sufficiency of any
guidelines under which Loans are entered into or
compliance with those guidelines or compliance with
any applicable criteria for any further advances or
the legality or ability or enforceability of the
advances or the priority of the Mortgage in relation
to the advances;
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(x) the compliance of the provisions and contents of and
the manner and formalities applicable to the
execution of the Mortgages and Loans and any
documents connected with them or the making of any
advance intended to be secured by them or with any
applicable laws or regulations (including Consumer
Credit Legislation);
(xi) the failure by any Approved Seller, the Trustee, the
Servicer or the Trust Manager to obtain or comply
with any Authorisation in connection with the
origination, sale, purchase or administration of any
of the Mortgages or Loans or the making of any
advances in connection with them or the failure to
effect or procure registration of or to give notice
to any person in relation to or otherwise protect the
security created or purported to be created by or
pursuant to any of the Mortgages or Loans or other
documents entered into in connection with them;
(xii) the failure to call for delivery of documents of
title to or require any transfers, legal mortgages,
charges or other further assurances in relation to
any of the assets the subject matter of any of the
Transaction Documents or any other document;
(xiii) any accounts, books, records or files maintained by
any Approved Seller, the Servicer, the Trustee, the
Trust Manager or any other person in respect of any
of the Mortgages or Loans; or
(xiv) any other matter or thing relating to or in any way
connected with any Mortgage or Loans or any document
entered into in connection with them whether or not
similar to the above.
(z) The Note Trustee is not liable or responsible for any loss,
cost, damages, expenses or inconvenience which may result from
anything done or omitted to be done by it in accordance with
the provisions of this deed, any Transaction Document or any
other document or as a consequence of or in connection with it
being held or treated as, or being deemed to be, a creditor,
for the purposes of the Consumer Credit Legislation, in
respect of any of the Mortgages.
(aa) In connection with any proposed modification, waiver,
authorisation or determination permitted by this deed, the
Note Trustee shall not have regard to the consequences thereof
for individual Class A Noteholders resulting from their being
for any purpose domiciled or resident in, or otherwise
connected with, or subject to, the jurisdiction of any
particular territory.
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(bb) The Note Trustee shall have no responsibility for the
maintenance of any rating of the Class A Notes by a Designated
Rating Agency or any other credit-rating agency or any other
person.
(cc) The Note Trustee has no liability whatsoever for any loss,
cost, damage or expenses directly or indirectly suffered or
incurred by the Trustee, any Class A Noteholder or any other
person as a result of the delivery by the Note Trustee of a
certificate, or the omission by it to deliver a certificate,
to the Trustee as to material prejudice pursuant to Condition
9 on the basis of an opinion formed by it in good faith.
(dd) The Note Trustee shall be under no obligation to monitor or
supervise the functions of the Servicer from time to time
under the terms of the Servicing Agreement or any other person
under any other Transaction Document, including and is
entitled, in the absence of actual knowledge of a breach of
duty or obligation, to assume that the Servicer is properly
performing its obligations in accordance with the provisions
of the Servicing Agreement or that any other person is
properly performing its obligations in accordance with each
other Transaction Document, as the case may be.
(ee) The Note Trustee acknowledges that the Trust Manager is
responsible, under the Series Notice, for calculating all
amounts referred to in clause 6.2 of the Series Notice (other
than calculations required to be made by the Agent Bank under
the Agency Agreement) and the Note Trustee has no liability in
respect of these calculations other than as a result of the
negligence, bad faith or wilful default of the Note Trustee.
(ff) The Note Trustee shall not be liable to the Trustee, or any
Class A Noteholder by reason of having accepted as valid or
not having rejected any Definitive Note purporting to be such
and subsequently found to be forged or not authentic and the
Note Trustee may call for and shall be at liberty to accept
and place full reliance on as sufficient evidence of the facts
stated therein a certificate or letter of confirmation
certified as true and accurate and signed on behalf of the
Common Depositary or any common depositary for them or any
person as the Note Trustee reasonably considers appropriate,
or any form of record made by any of them to the effect that
at any particular time or through any particular period any
particular person is, was, or will be, shown in its records as
entitled to a particular number of Class A Notes.
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14. NOTE TRUSTEE'S LIABILITY
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Nothing in this deed shall in any case in which the Note Trustee has
failed to show the degree of care and diligence required of it as
trustee having regard to the provisions of this deed conferring on it
any powers, authorities or discretions exempt the Note Trustee from or
indemnify it against any liability for breach of trust or any liability
which by virtue of any rule of law would otherwise attach to it in
respect of any wilful misconduct, negligence, default, breach of duty
or breach of trust of which it may be guilty in relation to its duties
under this deed.
15. DELEGATION BY NOTE TRUSTEE
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(a) The Note Trustee may whenever it thinks fit delegate by power
of attorney or otherwise to any person or persons for any
period (whether exceeding one year or not) or indefinitely all
or any of the trusts, powers and authorities vested in the
Note Trustee by this deed and that delegation may be made upon
any terms and subject to any conditions (including power to
sub-delegate) and subject to any regulations as the Note
Trustee may in the interests of the Class A Noteholders think
fit.
(b) If the Note Trustee exercises reasonable care in the selection
of a delegate under paragraph (a), the Note Trustee shall not
be in any way responsible for any loss incurred by reason of
any misconduct or default on the part of any delegate or
sub-delegate. The Note Trustee must within a reasonable time
prior to any delegation or any renewal, extension or
termination of any delegation give notice of it to the
Trustee.
16. EMPLOYMENT OF AGENT BY NOTE TRUSTEE
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The Note Trustee may in the conduct of the trusts of this deed instead
of acting personally employ and pay an agent, whether being a lawyer or
other professional person, to transact or concur in transacting any
business and to do or concur in doing all acts required to be done in
connection with the trusts of this deed. If the Note Trustee exercises
reasonable care in the selection of that agent, the Note Trustee shall
not in any way be responsible for any loss incurred by reason of any
misconduct or default on the part of that agent.
Any trustee of this deed which is a lawyer, accountant, broker or other
person engaged in any profession or business is entitled to charge and
be paid all usual professional and other charges for business
transacted and acts done by him or his firm in connection with the
trusts of this deed and also his reasonable charges in addition to
disbursements for all other work and business done and all time spent
by him or his firm in
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connection with matters arising in connection with this deed. Those
charges will be for the account of the Note Trustee who shall be
reimbursed by the Trustee under clause 12.
17. NOTE TRUSTEE CONTRACTING WITH TRUSTEE
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Neither the Note Trustee nor any director or officer of a corporation
acting as a trustee under this deed, nor the Security Trustee, is by
reason of its or their fiduciary position in any way precluded from
entering into or being interested in any contract or financial or other
transaction or arrangement with the Trustee or any other party to any
of the Transaction Documents or any person or body corporate associated
with the Trustee including any contract, transaction or arrangement of
a banking or insurance nature or any contract, transaction or
arrangement in relation to the making of loans or the provision of
financial facilities to or the purchase, placing or underwriting of or
subscribing or procuring subscriptions for or otherwise acquiring
holding or dealing with the Class A Notes, or any of them, or any other
bonds, stocks, shares, debenture stock, debentures, notes or other
securities of the Trustee or any other party to any of the Transaction
Documents or any related person or body corporate or from accepting or
holding the trusteeship of any other trust deed constituting or
securing any other securities issued by or relating to the Trustee or
any other party to any of the Transaction Documents or any related
person or body corporate or any other office of profit under the
Trustee or any other party to any of the Transaction Documents or any
related person or body corporate and shall be entitled to retain and
shall not be in any way liable to account for any profit made or share
of brokerage or commission or remuneration or other benefit received or
in connection with any of those arrangements.
18. WAIVER
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(a) The Note Trustee may without prejudice to its rights in
respect of any subsequent breach, condition, event or act from
time to time and at any time (but only if, and in so far as,
in its opinion the interests of any of the Class A Noteholders
are not materially prejudiced), waive or authorise on any
terms and subject to any conditions as it sees fit and proper:
(i) any breach or proposed breach by the Trustee of any
of the covenants or provisions contained in this deed
or in the Class A Notes (including the Conditions) or
any other Transaction Document; or
(ii) determine that any condition, event or act which
constitutes, or which with the giving of notice, the
lapse
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of time or the issue of a certificate would
constitute, but for that determination, an Event of
Default shall not, or shall not subject to specified
conditions, be so treated for the purposes of this
deed,
but the Note Trustee shall not exercise any powers conferred
on it by this clause in contravention of any express direction
given in writing by holders of Class A Notes representing at
least 75% of the aggregate Invested Amount of the Class A
Notes or by a request under Condition 10(d). No direction or
request shall affect any waiver, authorisation or
determination previously given or made.
(b) Any waiver, authorisation or determination under this clause
is binding on the Class A Noteholders and if, but only if, the
Note Trustee so requires, shall be notified by the Trustee to
the Class A Noteholders in accordance with Condition 12 as
soon as practicable.
19. AMENDMENT
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19.1 APPROVAL
The Note Trustee, the Trust Manager and the Trustee may, following
giving notice to each Designated Rating Agency, by way of supplemental
deed alter, add to or modify this deed (including this clause 19), the
Conditions (other than the proviso in clause 33.2 or any provision of
this deed or the Conditions referred to in that proviso) and this
clause or any Transaction Document so long as that 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 Note 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 Note 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 Note 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
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(d) in the opinion of the Note Trustee neither materially
prejudicial nor likely to be prejudicial to the interest of
the Class A Noteholders as a whole or,
and in the manner, and to the extent, permitted by the Transaction
Documents.
19.2 RESOLUTION OF CLASS A NOTEHOLDERS
Where in the opinion of the Note Trustee a proposed alteration,
addition or modification to this deed, other than an alteration,
addition or modification referred to in clause 19.1, is materially
prejudicial or likely to be materially prejudicial to the interest of
Class A Noteholders as a whole or any class of Class A Noteholders, or
the Note Trustee, the Trust Manager and the Trustee may make that
alteration, addition or modification if sanctioned in writing by
holders of at least 75% of the aggregate Invested Amount of the Class A
Notes.
19.3 DISTRIBUTION OF AMENDMENTS
The Trust Manager shall distribute to all Class A Noteholders a copy of
any amendments made under clause 19.1 or 19.2 under Condition 12 as
soon as reasonably practicable after the amendment has been made.
19.4 AMENDMENTS BINDING
Any amendment under this clause is binding on the Class A Noteholders.
19.5 CONFORMITY WITH TIA
Every amendment of this deed executed pursuant to this clause 19 shall
conform to the requirements of the TIA as then in effect so long as
this deed shall then be qualified under the TIA.
20. CLASS A NOTEHOLDERS
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20.1 ABSOLUTE OWNER
(a) The Trustee, the Trust Manager, the Security Trustee, the Note
Trustee and any Paying Agent may treat the registered holders
of any Definitive Note as the absolute owner of that
Definitive Note (whether or not that Definitive Note is
overdue and despite any notation or notice of ownership or
writing on it or any notice of previous loss or theft of it or
trust or other interest in it) for the purpose of making
payment and for all purposes and none of the Trustee, the
Trust Manager, the Security Trustee, the Note Trustee or the
Paying Agents is affected by any notice to the contrary.
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(b) So long as the Class A Notes, or any of them, are represented
by a Book-Entry Note, the Trustee, the Trust Manager, the Note
Trustee and any Paying Agent may treat the person for the time
being shown in the records of the Clearing Agency as the
holder of any Class A Note as the absolute owner of that Class
A Note and the Trustee, the Trust Manager, the Note Trustee
and the Paying Agents are not affected by any notice to the
contrary, but without prejudice to the entitlement of the
registered holder of the Book-Entry Note to be paid principal
and interest on the Book-Entry Note in accordance with its
terms. Such person shall have no claim directly against the
Trustee in respect of payment due on the Class A Notes for so
long as the Class A Notes are represented by a Book-Entry Note
and the relevant obligations of the Trustee will be discharged
by payment to the registered holder of the Book-Entry Note in
respect of each amount so paid.
(c) Any payments by the Trustee to the registered holder of a
Book- Entry Note or to an owner of an Class A Note under this
clause will be a good discharge to the Trustee.
(d) All payments made to the owner of an Class A Note under this
clause (or, in the case of a Book-Entry Note, to or to the
order of the registered holder of that Book-Entry Note) shall
be valid and, to the extent of the sums so paid, effective to
satisfy and discharge the liability for the moneys payable
upon those Class A Notes.
(e) Any instalment of interest or principal, payable on any Class
A Note which is punctually paid or duly provided for by the
Trustee to the Paying Agent on the applicable Payment Date or
Maturity Date shall be paid to the person in whose name such
Class A Note is registered on the Record Date, by cheque
mailed first-class, postage prepaid, to such person's address
as it appears on the Note Register on such Record Date, except
that, unless Definitive Notes have been issued pursuant to
clause 3.3, with respect to Class A Notes registered on the
Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payment will be
made by wire transfer in immediately available funds to the
account designated by such nominee and except for the final
instalment of principal payable with respect to such Class A
Note on a Payment Date or Maturity Date and except for the
redemption for any Class A Note called for redemption pursuant
to Condition 5 which shall be payable as provided in paragraph
(f).
(f) The principal of each Class A Note shall be payable on each
Payment Date and the Maturity Date as set forth in the
Conditions. The Principal Paying Agent shall notify the person
in whose name a Class A Note is registered at the close of
business on the Record Date preceding the Payment Date on
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which the Trustee expects that the final instalment of
principal of and interest on such Class A Note will be paid.
Such notice shall be mailed or transmitted by facsimile prior
to such final Maturity Date and shall specify that such final
instalment will be payable only upon presentation and
surrender of such Class A Note and shall specify the place
where such Class A Note may be presented and surrendered for
payment of such instalment. Notices in connection with
redemptions of Class A Notes shall be mailed to the Class A
Noteholders as provided in clause 31.4.
20.2 CLEARING AGENCY CERTIFICATE
The Trustee, the Trust Manager and the Note Trustee may call for and
shall be at liberty to accept and place full reliance on as sufficient
evidence a certificate or letter or confirmation signed on behalf of
any Clearing Agency or any form of record made by either of them to the
effect that at any particular time or throughout any particular period
any particular person is, was, or will be, shown in its records as
entitled to a particular interest in a Book-Entry Note.
21. CURRENCY INDEMNITY
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Subject to this deed, the Trustee indemnifies the Note Trustee and the
Class A Noteholders and keeps them indemnified against:
(a) any loss or damage incurred by any of them arising from the
non-payment by the Trustee of any US$ due to the Note Trustee
or the relevant Class A Noteholders under this deed or the
relevant Class A Notes by reason of any variation in the rates
of exchange between those used for the purposes of calculating
the amount due under a judgment or order in respect of that
payment, which amount is expressed in a currency other than
US$, and under which the Note Trustee, the Class A Noteholders
do not have an option to have that judgment or order expressed
in US$, and those prevailing at the date of actual payment by
the Trustee; and
(b) any deficiency arising or resulting from any variation in
rates of exchange between:
(i) the date (if any) as of which the non-US$ currency
equivalent of the US$ amounts due or contingently due
under this deed (other than this clause) or in
respect of the relevant Class A Notes is calculated
for the purposes of any bankruptcy, insolvency or
liquidation of the Trustee; and
(ii) the final date for ascertaining the amount of claims
in that bankruptcy, insolvency or liquidation
provided that in
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that bankruptcy, insolvency or liquidation claims are
required to be made in a currency other than US$.
The amount of that deficiency shall not be reduced by any
variation in rates of exchange occurring between that final
date and the date of any distribution of assets in connection
with that bankruptcy, insolvency or liquidation.
(c) The indemnities in this clause are obligations of the Trustee
separate and independent from its obligations under the Class
A Notes and apply irrespective of any time or indulgence
granted by the Note Trustee or the Class A Noteholders from
time to time and shall continue in full force and effect
despite the judgment or filing of any proof or proofs in any
bankruptcy, insolvency or liquidation of the Trustee for a
liquidated sum or sums in respect of amounts due under this
deed (other than this clause) or the Class A Notes. Any
deficiency will constitute a loss suffered by the Class A
Noteholders and no proof or evidence of any actual loss shall
be required by the Trustee or its liquidator.
22. NEW NOTE TRUSTEES
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22.1 APPOINTMENT BY TRUSTEE
The Trustee may on the recommendation of the Trust Manager at any time
appoint a new note trustee of this deed who has previously been
approved in writing by holders of at least 75% of the aggregate
Invested Amount of the Class A Notes. One or more persons may hold
office as note trustee or note trustees of this deed but that note
trustee or note trustees must be or include a Trust Corporation.
Whenever there are more than two note trustees of this deed the
majority of those note trustees are competent to execute and exercise
all the duties, powers, trusts, authorities and discretions vested in
the Note Trustee by this deed if a Trust Corporation is included in
that majority.
22.2 APPOINTMENT BY NOTE TRUSTEE
(a) The Note Trustee may, on 30 days prior written notice to the
Trustee and Trust Manager, appoint any person established or
resident in any jurisdiction (whether a Trust Corporation or
not) to act either as a separate note trustee or as a co-note
trustee jointly with the Note Trustee:
(i) if the Note Trustee considers that appointment to be
in the interests of the Class A Noteholders;
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(ii) for the purposes of conforming to any legal
requirements, restrictions or conditions in any
jurisdiction in which any particular act or acts is
or are to be performed; or
(iii) for the purposes of obtaining a judgment in any
jurisdiction or the enforcement in any jurisdiction
of either a judgment already obtained or any of the
provisions of this deed against the Trustee.
(b) Subject to the provisions of this deed, a person appointed
under paragraph (a) has all trusts, powers, authorities and
discretions (not exceeding those conferred on the Note Trustee
by this deed) and all duties and obligations conferred or
imposed by the instrument of appointment. All rights, powers,
duties and obligations conferred or imposed upon the Note
Trustee shall be conferred or imposed upon and exercised or
performed by the Note Trustee and such separate note trustee
or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorised to act separately
without the Note Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any
particular act or acts are to be performed the Note Trustee
shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and
obligations shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of
the Note Trustee.
(c) The Note Trustee may remove any person appointed under this
clause. The reasonable remuneration of any person appointed
under this clause together with any costs, charges and
expenses properly incurred by it in performing its function as
note trustee or co-note trustee will be costs, charges and
expenses incurred by the Note Trustee under this deed.
22.3 NOTICE
(a) The Trustee shall notify the Principal Paying Agent and the
Class A Noteholders of any appointment of a new note trustee
or any retirement or removal of an existing note trustee of
this deed as soon as practicable after becoming aware of that
appointment, retirement or removal.
(b) The Note Trustee shall notify each Designated Rating Agency of
any appointment of a new note trustee or its retirement or
removal as soon as practicable.
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23. NOTE TRUSTEE'S RETIREMENT AND REMOVAL
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23.1 REMOVAL BY TRUSTEE
The Trustee (or the Trust Manager on its behalf after advising the
Trustee) may at any time terminate the appointment of the Note Trustee
by giving written notice to that effect to each Designated Rating
Agency and the Note Trustee with effect immediately on that notice, if
any of the following occurs in relation to the Note Trustee:
(a) an Insolvency Event has occurred in relation to the Note
Trustee;
(b) the Note Trustee has ceased its business;
(c) the Note Trustee has failed to remedy, within fourteen days
after written notice by the Trustee or Trust Manager, any
material breach of this deed on the part of the Note Trustee;
or
(d) the Note Trustee fails to satisfy any obligation imposed on it
under the TIA with respect to the Trust or this deed or comply
with clause 23.6.
23.2 REMOVAL BY CLASS A NOTEHOLDERS
The Class A Noteholders may resolve by written consent of the holders
of at least 75% of the aggregate Invested Amount of Class A Notes to
require the Trustee (or the Trust Manager on its behalf) to remove the
Note Trustee or note trustees for the time being of this deed.
23.3 RESIGNATION
Subject to this clause 23, the Note Trustee may resign its appointment
under this deed at any time by giving to the Trustee, the Trust Manager
and each Designated Rating Agency not less than 3 months written notice
to that effect, which notice shall expire not less than 30 days before
nor 30 days after any due date for payment of any Class A Notes.
23.4 RATING AGENCIES CONFIRMATION
Any resignation or removal of the Note Trustee and appointment of a
successor note trustee will not become effective until acceptance of
the appointment by that successor note trustee and confirmation by the
Designated Rating Agencies that such appointment will not cause a
downgrading, qualification or withdrawal of the then current ratings of
the Class A Notes.
23.5 TRUST CORPORATION
The Trustee undertakes that if the only Note Trustee which is a Trust
Corporation retires or is removed it will use its best endeavours to
appoint a new note trustee of this deed which is a Trust Corporation as
soon as reasonably practicable. The retirement or removal of any Note
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Trustee shall not become effective until a successor Note Trustee which
is a Trust Corporation is appointed.
23.6 SUCCESSOR TO NOTE TRUSTEE
(a) On the execution by the Trustee, the Trust Manager and any
successor Note Trustee of an instrument effecting the
appointment of that successor Note Trustee, that successor
Note Trustee shall, without any further act, deed or
conveyance, become vested with all the authority, rights,
powers, trusts, immunities, duties and obligations of the
predecessor Note Trustee with effect as if originally named as
Note Trustee in this deed and that predecessor Note Trustee,
on payment to it of the pro rata proportion of its fee and
disbursements then unpaid (if any), shall have no further
liabilities under this deed, except for any accrued
liabilities arising from or relating to any act or omission
occurring prior to the date on which the successor Note
Trustee is appointed.
(b) Any corporation:
(i) into which the Note Trustee is merged;
(ii) with which the Note Trustee is consolidated;
(iii) resulting from any merger or consolidation to which
the Note Trustee is a party;
(iv) to which the Note Trustee sells or otherwise
transfers all or substantially all the assets of its
corporate trust business,
shall, on the date when that merger, conversion,
consolidation, sale or transfer becomes effective and to the
extent permitted by applicable law, become the successor Note
Trustee under this deed without the execution or filing of any
agreement or document or any further act on the part of the
parties this deed, unless otherwise required by the Trustee or
the Trust Manager, and after that effective date all
references in this deed to the Note Trustee shall be
references to that corporation.
23.7 ELIGIBILITY; DISQUALIFICATION
(a) The Note Trustee shall at all times satisfy the requirements
of section 310(a) of the TIA.
(b) The Note Trustee shall have a combined capital and surplus (as
those terms are used in the TIA) of at least $50,000,000 as
set forth in its most recent published annual report of
condition.
(c) The Note Trustee shall comply with section 310(b) of the TIA
provided that any indenture or indentures under which other
securities of the Trustee are outstanding shall be excluded
from
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the operation of section 310(b)(1) of the TIA for the purposes
of paragraph (b) if the requirements for such exclusion set
out in section 310(b)(1) of the TIA are met.
24. NOTE TRUSTEE'S POWERS ADDITIONAL
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The powers conferred upon the Note Trustee by this deed shall be in
addition to any powers which may from time to time be vested in the
Note Trustee by the general law or as a holder of any of the Class A
Notes.
25. SEVERABILITY OF PROVISIONS
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Any provision of this deed 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 nor affect the validity or
enforceability of that provision in any other jurisdiction.
26. NOTICES
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26.1 GENERAL
All notices, requests, demands, consents, approvals, agreements or
other communications to or by a party to this deed:
(a) must be in writing;
(b) must be signed by an Authorised Signatory of the sender; and
(c) will be taken to be duly given or made:
(i) (in the case of delivery in person or by post) when
delivered, received or left at the address of the
recipient shown in clause 26.2 or to any other
address which it may have notified by the recipient
to the sender;
(ii) (in the case of facsimile transmission) on receipt of
a transmission report confirming successful
transmission to the number shown in clause 26.2 or
any other number notified by the recipient to the
sender under this clause 26; and
(iii) (in the case of a telex) on receipt by the sender of
the answerback code of the recipient at the end of
transmission to the number shown in clause 26.2 or
any other number notified by the recipient to the
sender under this clause 26,
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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 4.00 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.
26.2 DETAILS
The address, facsimile and telex of each party at the date of this deed
are as follows:
THE TRUSTEE
WESTPAC SECURITIES ADMINISTRATION LIMITED
Level 5, Endeavour House
50 Pitt Street
SYDNEY NSW 2000
Tel: 612 9220 4113
Fax: 612 9260 7010
Attention: Trustee Securitisation Manager
THE TRUST MANAGER
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED
Level 6
60 Martin Place
SYDNEY NSW 2000
Tel: 612 9226 3212
Fax: 612 9226 1732
Attention: Securitisation Trust Manager
Copy to: Lewis E Love, Jr
C/- Westpac Banking Corporation
575 Fifth Avenue
39th Floor
New York N.Y. 10023
THE PRINCIPAL PAYING AGENT
CITIBANK, N.A.
5 Carmelite Street
London
EC4Y 0PA[*]
Tel: [*]
Telex: [*]
Fax: [*]
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Attention: [*]
THE NOTE TRUSTEE
CITIBANK, N.A., LONDON OFFICE
11 Old Jewry
London EC2R 8DU
Tel: [*]
Telex: [*]
Fax: [*]
Attention: [*]
27. GOVERNING LAW AND JURISDICTION
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This deed is governed by the laws of New South Wales. Each party
submits to the non-exclusive jurisdiction of courts exercising
jurisdiction there.
28. COUNTERPARTS
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This deed may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
29. LIMITED RECOURSE
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29.1 GENERAL
Clause 33 of the Master Trust Deed applies to the obligations and
liabilities of the Trustee and the Trust Manager under this deed.
29.2 LIABILITY OF TRUSTEE LIMITED TO ITS RIGHT TO INDEMNITY
(a) The Trustee enters into this deed only in its capacity as
trustee of the Trust and in no other capacity. A liability
arising under or in connection with this deed 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 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 the Trust.
(b) The parties other than the Trustee may not sue the Trustee in
any capacity other than as trustee of the Trust or seek the
appointment of a receiver (except under the Security Trust
Deed),
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or a liquidator, an administrator or any similar person to the
Trustee or prove in any liquidation, administration or
arrangements of or affecting the Trustee.
(c) The provisions of this clause 29 shall not apply to any
obligation or liability of the Trustee to the extent that it
is not satisfied because under a Transaction Document 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.
(d) Without affecting any limit or exclusion of liability in
relation to the duties, powers or obligations under the
Transaction Documents of any of the Trust Manager, the
Servicer, the Currency Swap Providers, the Note Trustee, the
Principal Paying Agent, the other Paying Agents or the Agent
Bank (each a RELEVANT PARTY), it is acknowledged that the
Trust Manager, the Servicer, the Currency Swap Providers, the
Note Trustee, the Principal Paying Agent, the other Paying
Agents and the Agent Bank (each a RELEVANT PARTY) are
responsible under this deed and the other Transaction
Documents 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 deed)
will be considered fraud, negligence or breach of trust of the
Trustee for the purpose of sub-paragraph (c) to the extent to
which the act or omission was caused or contributed to by any
failure by any Relevant Party 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, but excluding any Relevant Party) to
fulfil its obligations relating to the Trust or by any other
act or omission of a Relevant Party 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, but excluding any Relevant
Party).
(e) No attorney, agent, receiver or receiver and manager appointed
in accordance with this deed or any other Transaction
Documents (including a Relevant Party) 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 (c), if the
Trustee has exercised reasonable care in the selection and
supervision of such a person.
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29.3 UNRESTRICTED REMEDIES
Nothing in clause 29.2 limits any party (other than the Trustee) in:
(a) obtaining an injunction or other order to restrain any breach
of this deed by any party;
(b) obtaining declaratory relief; or
(c) in relation to its rights under the Security Trust Deed.
29.4 RESTRICTED REMEDIES
Except as provided in clause 29.3, no Paying Agent shall:
(a) (JUDGMENT) obtain a judgment for the payment of money or
damages by the Trustee;
(b) (STATUTORY DEMAND) issue any demand under s459E(1) of the
Corporations Law (or any analogous provision under any other
law) against the Trustee;
(c) (WINDING UP) apply for the winding up or dissolution of the
Trustee;
(d) (EXECUTION) levy or enforce any distress or other execution
to, on, or against any assets of the Trustee;
(e) (COURT APPOINTED RECEIVER) apply for the appointment by a
court of a receiver to any of the assets of the Trustee;
(f) (SET-OFF OR COUNTERCLAIM) exercise or seek to exercise any
set-off or counterclaim against the Trustee; or
(g) (ADMINISTRATOR) appoint, or agree to the appointment, of any
administrator to the Trustee,
or take proceedings for any of the above and each Paying Agent waives
its rights to make those applications and take those proceedings.
30. SUCCESSOR TRUSTEE
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The Note Trustee shall do all things reasonably necessary to enable any
successor Trustee appointed under clause 24 of the Master Trust Deed to
become the Trustee under this deed.
31. CLASS A NOTEHOLDERS' LISTS AND REPORTS
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31.1 PROVISION OF INFORMATION
The Trustee will furnish or cause to be furnished to the Note Trustee:
(a) every six months (with the first six month period commencing
on the Closing Date) (each such date being a NOTICE DATE), a
list,
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in such form as the Note Trustee may reasonably require, of
the names and addresses of the Class A Noteholders as of the
Record Date immediately preceding that Notice Date; and
(b) at such other times as the Note Trustee may request in
writing, within 30 days after receipt by the Trustee of any
such request, a list of similar form and content as of a date
not more than 10 days prior to the time such list is
furnished,
provided that so long as:
(c) the Note Trustee is the Note Registrar; or
(d) the Class A Notes are Book-Entry Notes,
no such list shall be required to be furnished.
31.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO CLASS A NOTEHOLDERS
(a) The Note Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Class A
Noteholders contained in the most recent list (if any)
furnished to the Note Trustee as provided in clause 31.1 and,
so long as it continues to act as Note Registrar, the names
and addresses of Class A Noteholders received by the Note
Trustee in its capacity as Note Registrar. The Trustee may
destroy any list furnished to it as provided in such clause
31.1 upon receipt of a new list so furnished.
(b) Class A Noteholders may communicate pursuant to section 312(b)
of the TIA with other Class A Noteholders with respect to
their rights under this Deed or under the Class A Notes.
(c) The Trustee, Note Trustee and Note Registrar shall have the
protection of section 312(c) of the TIA.
31.3 REPORTS BY NOTE TRUSTEE
If required by section 313(a) of the TIA, within 60 days after each 30
June, beginning with 30 June 2000, the Note Trustee shall mail to each
Class A Noteholder and the Trustee as required by section 313(c) of the
TIA a brief report dated as of such date that complies with section
313(a) of the TIA. The Note Trustee also shall comply with section
313(b) of the TIA. A copy of each report at the time of its mailing to
Class A Noteholders shall be filed by the Note Trustee with the
Commission and each stock exchange, if any, on which the Class A Notes
are listed. The Trust Manager on behalf of the Trustee shall notify the
Note Trustee if and when the Class A Notes are listed on any stock
exchange.
31.4 NOTICES TO CLASS A NOTEHOLDERS; WAIVER
Where this deed provides for notice to Class A Noteholders of any
event, such notice shall be sufficiently given (unless otherwise herein
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expressly provided) if in writing and mailed, first-class, postage
prepaid to each Class A Noteholder affected by such event, at his or
her address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Class A Noteholders
is given by mail, neither the failure to mail such notice nor any
defect in any notice so mailed to any particular Class A Noteholder
shall affect the sufficiency of such notice with respect to other Class
A Noteholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given.
Where this deed provides for notice in any manner, such notice may be
waived in writing by any person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Class A Noteholders shall be filed
with the Note Trustee but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such a
waiver.
In case, by reason of the suspension of regular mail services as a
result of a strike, work stoppage or similar activity, it shall be
impractical to mail notice of any event to Class A Noteholders when
such notice is required to be given pursuant to any provision of this
deed, then any manner of giving such notice as the Trustee shall direct
the Note Trustee shall be deemed to be a sufficient giving of such
notice.
31.5 REPORTS BY TRUSTEE
The Trustee shall:
(a) file with the Note Trustee, within 15 days after the Trustee
is required to file the same with the Commission, copies of
the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Trustee may be required to file with the
Commission pursuant to section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended;
(b) file with the Note Trustee and the Commission in accordance
with rules and regulations prescribed from time to time by the
Commission such additional information, documents and reports
with respect to compliance by the Trustee with the conditions
and covenants of this deed as may be required from time to
time by such rules and regulations; and
(c) supply to the Note Trustee (and the Note Trustee shall
transmit by mail to all Class A Noteholders described in
section 313(c) of the TIA) such summaries of any information,
documents and reports required to be filed by the Trustee
pursuant to clauses (a)
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and (b) of this clause 31.5 as may be required by rules and
regulations prescribed from time to time by the Commission.
32. TRUST INDENTURE ACT - MISCELLANEOUS
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32.1 COMPLIANCE CERTIFICATES AND OPINIONS, ETC
(a) Upon any application or request by the Trustee to the Note
Trustee to take any action under any provision of this deed,
the Trustee shall furnish to the Note Trustee:
(i) an Officer's Certificate stating that all conditions
precedent, if any, provided for in this deed relating
to the proposed action have been complied with;
(ii) an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any,
have been complied with; and
(iii) (if required by the TIA) an Independent Certificate
from a firm of certified public accountants meeting
the applicable requirements of section 314(c)(3) of
the TIA, except that, in the case of any such
application or request as to which the furnishing of
such documents is specifically required by any
provision of this deed, no additional certificate or
opinion need be furnished.
(b) (i) Prior to the deposit of any property or securities
with the Trustee that is to be made the basis for the
release of any property or securities subject to the
Security Interest created by the Security Trust Deed,
the Trustee shall, in addition to any obligation
imposed in clause 32.1(a) or elsewhere in this deed,
furnish to the Note Trustee an Officer's Certificate
certifying or stating the opinion of each person
signing such certificate as to the fair value (within
90 days of such deposit) of the property or
securities to be so deposited.
(ii) Whenever any property or securities are to be
released from the Security Interest created by the
Security Trust Deed, the Trustee shall also furnish
to the Note Trustee an Officer's Certificate
certifying or stating the opinion of each person
signing such certificate as to the fair value (within
90 days of such release) of the property or
securities proposed to be released and stating that
in the opinion of such person the proposed release
will not impair the security under the Security Trust
Deed in contravention of the provisions of the
Security Trust Deed or this deed.
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(iii) Whenever the Trustee is required to furnish to the
Note Trustee an Officer's Certificate certifying or
stating the opinion of any signer thereof as to the
matters described in paragraphs (i) and (ii), the
Trustee shall also furnish to the Note Trustee an
Independent Certificate as to the same matters if the
fair value of the property or securities and of all
other property or securities deposited or released
from the Security Interest created by the Security
Trust Deed since the commencement of the then current
calendar year, as set forth in the certificate
required by clause (ii) and this clause (iii), equals
10% or more of the Total Invested Amount of the
Notes, but such certificate need not be furnished in
the case of any release of property or securities if
the fair value thereof as set forth in the related
Officer's Certificate is less than $25,000 or less
than one percent of the then Total Invested Amount of
the Notes.
Notwithstanding any other provision of this clause,
the Trustee may:
(A) collect, liquidate, sell or otherwise
dispose of Receivables or other Assets of
the Trust as and to the extent permitted or
required by the Transaction Documents; and
(B) make cash payments out of the Collection
Account or the US$ Account as and to the
extent permitted or required by the
Transaction Documents.
(c) Every Officer's Certificate or opinion with respect to
compliance with a condition or covenant provided for in this
deed shall include:
(i) a statement that each signatory of such certificate
or opinion has read or has caused to be read such
covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the
statements or opinions contained in such certificate
or opinion are based;
(iii) a statement that, in the opinion of each such
signatory, such signatory has made such examination
or investigation as is necessary to enable such
signatory to express an informed opinion as to
whether or not such covenant or condition has been
complied with; and
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(iv) a statement as to whether, in the opinion of each
such signatory such condition or covenant has been
complied with.
32.2 UNDERTAKING FOR COSTS
(a) Subject to paragraph (b), all parties to this deed agree, and
each Class A Noteholder by such Class A Noteholder's
acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the
enforcement of any right or remedy under this deed, or in any
suit against the Note Trustee for any action taken, suffered
or omitted by it as the Note Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defences made by
such party litigant.
(b) The provisions of this clause shall not apply to:
(i) any suit instituted by the Note Trustee;
(ii) any suit instituted by any Class A Noteholder, or
group of Class A Noteholders in each case holding in
the aggregate more than 10% of the aggregate Invested
Amount of the Class A Notes; or
(iii) any suit instituted by any Class A Noteholder for the
enforcement of the payment of principal or interest
on any Class A Note on or after the respective due
dates expressed in such Class A Note and in this deed
(or, in the case of final redemption of a Class A
Note, on or after the Final Maturity Date).
32.3 EXCLUSION OF SECTION 316
(a) Section 316(a)(1) of the TIA is expressly excluded by this
deed.
(b) For the purposes of section 316(a)(2) of the TIA in
determining whether any Class A Noteholders have concurred in
any relevant direction or consent, Notes owned by the Trustee
or by any Associate of the Trustee, shall be disregarded,
except that for the purposes of determining whether the Note
Trustee shall be protected in relying on any such direction or
consent, only Class A Notes which the Note Trustee knows are
so owned shall be so disregarded.
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32.4 UNCONDITIONAL RIGHTS OF CLASS A NOTEHOLDERS TO RECEIVE PRINCIPAL AND
INTEREST
Notwithstanding any other provisions in this deed, any Class A
Noteholder shall have the right, which is absolute and unconditional,
to receive payment of the principal of and interest, if any, on such
Class A Note on or after the respective due dates thereof expressed in
such Class A Note or in this deed (or, in the case of final redemption
of a Class A Note, on or after the Final Maturity Date) and to
institute suit for the enforcement of any such payment, and such right
shall not be impaired without the consent of such Class A Noteholder,
except to the extent that this deed contains provisions limiting or
denying the right of any Class A Noteholder to institute any such suit,
if and to the extent that the institution or prosecution thereof or the
entry of judgment therein would, under applicable law, result in the
surrender, impairment, waiver, or loss of the Security Interest created
by the Security Trust Deed upon any property subject to such Security
Interest.
32.5 CONFLICT WITH TRUST INDENTURE ACT
If any provision hereof limits, qualifies or conflicts with another
provision hereof that is required to be included in this indenture by
any of the provisions of the Trust Indenture Act, such required
provision shall prevail.
The provisions of section 310 to 317 (inclusive) of the TIA that impose
duties on any person (including the provisions automatically deemed
included herein unless expressly excluded by this deed) are a part of
and govern this deed, whether or not contained herein.
33. CONSENT OF CLASS A NOTEHOLDERS
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33.1 GENERAL
Except as expressly provided in elsewhere in this deed or in clause
33.2 below, any action that may be taken by the Class A Noteholders
under this deed may be taken by registered holders of not less than a
majority of the aggregate Invested Amount of Class A Notes.
33.2 SPECIAL WRITTEN APPROVALS
(a) The following matters are only capable of being effected by
the approval in writing of holders of at least 75% of the
aggregate Invested Amount of the Class A Notes, namely:
(i) modification of the date fixed for final maturity of
the Class A Notes;
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(ii) reduction or cancellation of the principal payable on
the Class A Notes or any alteration of the date or
priority of redemption of the Class A Notes;
(iii) alteration of the amount of interest payable on any
class of the Class A Notes or modification of the
method of calculating the amount of interest payable
on the Class A Notes or modification of the date of
payment of or interest payable on the Class A Notes;
(iv) alteration of the currency in which payments under
the Class A Notes are to be made;
(v) altering the required percentage of aggregate
Invested Amount required to consent or take any
action of the Class A Notes;
(vi) alteration of this sub-paragraph.
(b) Subject to paragraph (c) the Noteholders shall in addition to
the powers given under this deed have the following powers if
approval is given by holders of at least 75% of the aggregate
Invested Amount of the Class A Notes:
(i) power to sanction any compromise or arrangement
proposed to be made between the Trustee and the Class
A Noteholders;
(ii) power to sanction any abrogation, modification,
compromise or arrangement in respect of the rights of
the Class A Noteholders or the Class B Noteholders,
as the case may be, against the Trustee or against
any of its property or against any other person
whether such rights shall arise under these presents,
any of the Notes or otherwise;
(iii) power to assent to any modification of the provisions
contained in these presents, the Class A Notes
(including the Conditions) or the provisions of any
of the Relevant Documents which shall be proposed by
the Trustee or the Note Trustee;
(iv) power to give any authority or sanction which under
the provisions of these presents or the Class A Notes
(including the Conditions) is required to be given
by, in writing by holders of at least 75% of the
aggregate Invested Amount of the Class A Notes;
(v) power to approve of a person to be appointed a
trustee and power to remove any trustee or trustees
for the time being under this deed;
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(vi) power to discharge or exonerate the Note Trustee from
all liability in respect of any act or omission for
which the Note Trustee may have become responsible
under this deed or under the Class A Notes;
(vii) power to authorise the Note Trustee to concur in and
execute and do all such deeds, instruments, acts and
things as may be necessary to carry out and give
effect to the approval in writing by holders of at
least 75% of the aggregate Invested Amount of the
Class A Notes;
(viii) power to sanction any scheme or proposal for the
exchange or sale of the Class A Notes for, or the
conversion of the Class A Notes into, or the
cancellation of the Class A Notes in consideration of
shares, stock, notes, bonds' debentures, debenture
stock and/or other obligations and/or securities of
the Trustee or of any other company formed or to be
formed, or for or into or in consideration of cash,
or partly for or into or in consideration of such
shares, stock, notes, bonds, debenture stock and/or
other obligations and/or securities as aforesaid and
partly for or into or in consideration of cash.
33.3 REQUIREMENT FOR WRITING
Except as expressly provided elsewhere in this deed, all notices and
consents from Class A Noteholders and Class A Note Owners shall be
delivered in writing. Any solicitation of such notices or consent shall
be in writing and be delivered by the Trustee, Trust Manager or Note
Trustee, as applicable, seeking such notice or consent form the Class A
Noteholders or Class A Note Owners to the Principal Paying Agent, who
shall deliver the foregoing to the appropriate Class A Noteholders or
Class A Note Owners. With respect to any solicitation of approval of
Class A Noteholders, the record date for determining Class A
Noteholders with respect to such solicitation shall be the date upon
which the Principal Paying Agent distributes such notices or
solicitation to the Class A Noteholders.
EXECUTED as a deed in New York.
Each attorney executing this deed states that he has no notice of revocation or
suspension of his power of attorney.
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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 )
WESTPAC SECURITISATION )
MANAGEMENT PTY LIMITED )
by its attorney )
in the presence of: )
-----------------------------------
Signature
- ---------------------------------------- -----------------------------------
Witness Print name
- ----------------------------------------
Print name
- --------------------------------------------------------------------------------
<PAGE>
ALLEN ALLEN
NOTE TRUST DEED & HEMSLEY
- --------------------------------------------------------------------------------
NOTE TRUSTEE
SIGNED SEALED and DELIVERED )
on behalf of )
CITIBANK, N.A., LONDON )
OFFICE )
by its attorney )
in the presence of: )
-----------------------------------
Signature
- ---------------------------------------- -----------------------------------
Witness Print name
- ----------------------------------------
Print name
PRINCIPAL PAYING AGENT
SIGNED SEALED and DELIVERED )
on behalf of )
CITIBANK N.A. )
by its attorney )
in the presence of: )
-----------------------------------
Signature
- ---------------------------------------- -----------------------------------
Witness Print name
- ----------------------------------------
Print name
- --------------------------------------------------------------------------------
<PAGE>
ALLEN ALLEN
NOTE TRUST DEED & HEMSLEY
- --------------------------------------------------------------------------------
SCHEDULE 1
FORM OF BOOK-ENTRY NOTE
- --------------------------------------------------------------------------------
REGISTERED CUSIP No
No. R- ----------------------
ISIN No.
----------------------
Common Code
----------------------
Unless this Note is presented by an authorised representative of The Depository
Trust Company, a New York corporation (DTC), to the Issuer or its agent for
registration of transfer, exchange or payment, and any Note issued is registered
in the name of Cede & Co. or in such other name as is requested by an authorised
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorised representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
WESTPAC SECURITIES ADMINISTRATION LIMITED
(ACN 000 049 472)
(a limited liability company incorporated under the law of New
South Wales, Australia)
in its capacity as trustee of the Series 1999-1G WST Trust
BOOK-ENTRY NOTE
representing
US$[NUMBER]**
Class A Mortgage Backed Floating Rate Notes Due May 2030
This Note is a Book-Entry Note without principal or interest in respect of a
duly authorised issue of Notes of Westpac Securities Administration Limited in
its capacity as trustee of the Series 1999-1G WST Trust (the "TRUST") (the
"Issuer"), designated as specified in the title above (the "NOTES"), in an
initial aggregate principal amount of
[ ]** (US$ [ ])**
- --------------------------------------------------------------------------------
<PAGE>
ALLEN ALLEN
NOTE TRUST DEED & HEMSLEY
- --------------------------------------------------------------------------------
and (a) constituted by a Master Trust Deed (the "MASTER TRUST DEED") dated 14
February 1997 between the Issuer and The Mortgage Company Pty Limited (ACN 070
968 302), by a Series Notice (the "SERIES NOTICE") dated 13 May 1999 between
(among others) the Issuer, Citibank, N.A., London Office (the note trustee for
the time being referred to as the "NOTE TRUSTEE") as trustee for the holders for
the time being of the Class A Notes (the "CLASS A NOTEHOLDERS") and Westpac
Securitisation Management Pty Limited (ACN 081 709 211) (the "TRUST MANAGER"),
and by these Conditions; (b) issued subject to a Note Trust Deed dated 13 May
1999 (the "NOTE TRUST DEED") between the Issuer, the Trust Manager and the Note
Trustee; and (c) secured by a Security Trust Deed (the "SECURITY TRUST DEED")
dated 6 May 1999 between the Issuer, the Trust Manager, the Note Trustee and
Perpetual Trustee Company Limited (ACN 000 001 007) (the "SECURITY TRUSTEE",
which expression shall include its successor for the time being as security
trustee under the Security Trust Deed). References to the Conditions (or to any
particular numbered Condition) shall be to the Terms and Conditions of the Class
A Notes set out in Schedule 3 to the Note Trust Deed but with the deletion of
those provisions which are applicable only to Class A Notes in definitive form.
Terms and expressions defined in the Note Trust Deed and the Conditions shall,
save as expressly stated otherwise, bear the same meanings when used herein.
If the Issuer is obliged to issue Definitive Notes under Clause 3.3 of the Note
Trust Deed this Book-Entry Note will be exchangeable in whole at the offices of
the Principal Paying Agent at 5 Carmelite Street, London EC4Y 0PA (or such other
place outside Australia and any of its respective territories and possessions
and other areas subject to jurisdictions as the Note Trustee may agree) for
Definitive Notes and the Issuer shall execute and procure that the Principal
Paying Agent authenticates and delivers in full exchange for this Book-Entry
Note, Definitive Notes in aggregate principal amount equal to the Amount of all
Class A Notes represented by this Book-Entry Note. The Issuer is not obliged to
issue Definitive Notes until 30 days after the occurrence of an event set out in
clause 3.3 of the Note Trust Deed.
The Issuer, in its capacity as trustee of the Trust, subject to this Book-Entry
Note and subject to and in accordance with the Conditions and the Note Trust
Deed promises to pay to Cede & Co., or registered assigns of this Book-Entry
Note the principal sum of US$[WORDS]** (US$[NUMBER])** or such lesser amount as
may from time to time be represented by this Book-Entry Note (or such part of
that amount as may become repayable under the Conditions, the Series Notice and
the Note Trust Deed) on such date(s) that principal sum (or any part of it)
becomes repayable in accordance with the Conditions, the Series Notice and the
Note Trust Deed and to pay interest in arrear on each Payment Date (as defined
in Condition 4) on the Invested Amount (as defined in Condition 5(a)) of this
Book-Entry Note at rates determined in accordance with Condition 4 and all
subject to and in accordance with the certification requirements described in
this Book-Entry Note, the Conditions, the Series Notice and the Note Trust Deed,
which shall be binding on the registered
- --------------------------------------------------------------------------------
<PAGE>
ALLEN ALLEN
NOTE TRUST DEED & HEMSLEY
- --------------------------------------------------------------------------------
holder of this Book-Entry Note (as if references in the Conditions to the Notes
and the Noteholders were references to this Book-Entry Note and the registered
holder of this Book-Entry Note respectively and as if the same had been set out
in this Book-Entry Note in full with all necessary changes, except as otherwise
provided in this Book-Entry Note).
Payments of interest on this Note due and payable on each Payment Date, together
with the instalment of principal, if any, shall be payable to the nominee of the
Common Depositary (initially, such nominee to be Cede & Co.). No payment of
interest or principal may be made by the Issuer or any Paying Agent in the
Commonwealth of Australia or its possessions or into a bank account or to an
address in the Commonwealth of Australia. Each of the persons appearing from
time to time in the records of DTC, as the holder of a beneficial interest in a
Class A Note will be entitled to receive any payment so made in respect of that
Class A Note in accordance with the respective rules and procedures of DTC. Such
persons will have no claim directly against the Issuer in respect of payments
due on the Class A Notes which must be made by the holder of this Book-Entry
Note, for so long as this Book-Entry Note is outstanding.
On any payment of principal and/or interest on the Class A Notes as set out
above details of that payment shall be endorsed by or on behalf of the Issuer in
the Note Register and, in the case of payments of principal, the Invested Amount
of the Class A Notes shall be reduced for all purposes by the amount so paid and
endorsed in the Note Register. Any such record shall be PRIMA FACIE evidence
that the payment in question has been made.
If the Issuer is obliged to issue Definitive Notes under Clause 3.3 of the Note
Trust Deed, the Book-Entry Notes will be surrendered to the Trustee by the
Clearing Agency and the Clearing Agency will deliver the relevant registration
instructions to the Trustee. Definitive Notes shall be executed by the Trustee
and authenticated by the Principal Paying Agent and delivered as per the
instructions of the Clearing Agency.
The Definitive Notes to be issued on that exchange will be in registered form
each in the denomination of US$100,000 or integral multiples thereof. If the
Issuer fails to meet its obligations to issue Definitive Notes, this shall be
without prejudice to the Issuer's obligations with respect to the Notes under
the Note Trust Deed, the Master Trust Deed, the Series Notice and this
Book-Entry Note.
On an exchange of this Book-Entry Note, this Book-Entry Note shall be
surrendered to the Principal Paying Agent.
This Book-Entry Note shall not become valid for any purpose unless and until the
Certificate of Authentication attached has been signed by an Authorised
Signatory of the Principal Paying Agent (as defined in the Series Notice).
This Book-Entry Note is governed by, and shall be construed in accordance with,
the laws of New South Wales, Australia.
- --------------------------------------------------------------------------------
<PAGE>
ALLEN ALLEN
NOTE TRUST DEED & HEMSLEY
- --------------------------------------------------------------------------------
IN WITNESS the Issuer has caused this Book-Entry Note to be signed [manually/in
facsimile] by a person duly authorised on its behalf
WESTPAC SECURITIES ADMINISTRATION LIMITED
By:
------------------------------
Authorised Signatory
IMPORTANT NOTES:
(a) The Class A Notes do not represent deposits or other liabilities of
Westpac Banking Corporation, ARBN 007 457 141 ("WESTPAC") or associates
of Westpac.
(b) The holding of Class A 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 Class A Notes or the assets
of the Trust except to the limited extent provided in the Series
Notice, the Master Trust Deed, the Note Trust Deed and the other
documents for the Trust.
(d) None of Westpac, the Issuer, The Mortgage Company Pty Limited as
servicer on behalf of the Issuer (the "SERVICER") or the Trust Manager
guarantees the payment of interest or the repayment of principal due on
the Class A Notes.
(e) None of the obligations of the Issuer or the Trust Manager are
guaranteed in any way by Westpac or any associate of Westpac.
(f) The Issuer's liability to make payments in respect of the Class A Notes
is limited to its right of indemnity from the assets of Trust from time
to time available to make such payments under the Master Trust Deed and
Series Notice. All claims against the Issuer in relation to the Class A
Notes can be enforced against the Issuer only to the extent to which it
can be satisfied out of the assets of the Trust out of which the Issuer
is actually indemnified for the liability except in the case of (and to
the extent of) any fraud, negligence or breach of trust on the part of
the Issuer.
(g) 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>
ALLEN ALLEN
NOTE TRUST DEED & HEMSLEY
- --------------------------------------------------------------------------------
CERTIFICATE OF AUTHENTICATION
This Book-Entry Note is authenticated by Citibank, N.A. and until so
authenticated shall not be valid for any purpose.
Citibank, N.A.
as Principal Paying Agent
- --------------------------------------------------------------------------------
<PAGE>
ALLEN ALLEN
NOTE TRUST DEED & HEMSLEY
- --------------------------------------------------------------------------------
ASSIGNMENT
- --------------------------------------------------------------------------------
Social Security or taxpayer I.D. or other identifying number of assignee
- --------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
- --------------------------------------------------------------------------------
attorney, to transfer said Note on the books kept for registration thereof, with
full power of substitution in the premises.
Dated:
------------------------------ -----------------------------------
Signature Guaranteed:
Dated:
------------------------------ -----------------------------------
Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Note Registrar, which requirements
include membership or participation
in STAMP or such other "signature
guarantee program" as may be
determined by the Note Registrar in
addition to, or in substitution
for, STAMP, all in accordance with
the Securities Exchange Act of
1934, as amended.
- --------------------
*/ NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular without alteration, enlargement or any change whatsoever.
- --------------------------------------------------------------------------------
<PAGE>
ALLEN ALLEN
NOTE TRUST DEED & HEMSLEY
- --------------------------------------------------------------------------------
SCHEDULE 2
INFORMATION TO BE CONTAINED IN NOTEHOLDER'S REPORT
- --------------------------------------------------------------------------------
(i) the Invested Amount and the Stated Amount of each Class of Notes;
(ii) the Interest Payments and principal distributions on each Class of
Notes;
(iii) the Available Income;
(iv) the Total Available Funds;
(v) the aggregate of all Redraws made during that Collection Period;
(vi) the Redraw Shortfall;
(vii) the Subordinated Percentage;
(viii) the Initial Subordinated Percentage;
(ix) the Payment Shortfall (if any);
(x) 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;
(xi) the Gross Principal Collections;
(xii) the Principal Collections;
(xiii) the Liquidity Shortfall (if any);
(xiv) the Remaining Liquidity Shortfall (if any);
(xv) the Principal Charge Off (if any);
(xvi) the Class A Percentage and the Class B Percentage;
(xvii) 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 (The "Bond Factor"
with respect to a Class of Notes is the Initial Invested Amount of such
Class less all principal payments on such Class divided by the Initial
Invested Amount of such Class);
(xviii) 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);
(xix) all Carryover Charge Offs (if any);
(xx) if required, the Threshold Rate at that Collection Determination Date;
(xxi) the Quarterly Percentage;
- --------------------------------------------------------------------------------
<PAGE>
ALLEN ALLEN
NOTE TRUST DEED & HEMSLEY
- --------------------------------------------------------------------------------
(xxii) LIBOR, as at the first day of the related Interest Period ending
immediately after that Collection Determination Date as calculated by
the Agent Bank;
(xxiii) scheduled and unscheduled payments of principal on the Housing Loans;
(xxiv) aggregate Balances Outstanding of Fixed Rate Housing Loans and
aggregate Balances Outstanding of Variable Rate Housing Loans; and
(xxv) delinquency statistics with respect to the Housing Loans.
<PAGE>
Exhibit 4.4
[LETTERHEAD OF ALLEN ALLEN & HEMSLEY]
SERIES 1999-1G WST TRUST
SECURITY TRUST DEED
- ------------------------
WESTPAC SECURITIES ADMINISTRATION LIMITED
(Chargor)
PERPETUAL TRUSTEE COMPANY LIMITED
(Security Trustee)
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED
(Trust Manager)
CITIBANK, N.A., LONDON OFFICE
(Note Trustee)
ALLEN ALLEN & HEMSLEY
The Chifley Tower
2 Chifley Square
Sydney NSW 2000
Australia
Tel 61 2 9230 4000
Fax 61 2 9230 5333
(C) Copyright Allen Allen & Hemsley 1999
<PAGE>
SERIES 1999-1G WST TRUST SECURITY TRUST DEED
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
1. DEFINITIONS AND INTERPRETATION 2
1.1 Definitions 2
1.2 Master Trust Deed definitions and Trust Document amendments 5
1.3 Interpretation 5
1.4 Determination, statement and certificate sufficient evidence 6
1.5 Document or agreement 6
1.6 Rights and obligations of Mortgagees 6
1.7 Transaction Document 7
1.8 Trustee as trustee 7
2. APPOINTMENT OF SECURITY TRUSTEE 7
2.1 The Security Trustee 7
2.2 Resolution of Conflicts 7
2.3 Duration of Trust 8
2.4 Covenant 8
3. CHARGE 8
3.1 Charge 8
3.2 Security 8
3.3 Prospective liability 8
4. NATURE OF CHARGE 8
4.1 Priority 8
4.2 Nature of Charge 9
4.3 Dealing with Mortgaged Property 9
4.4 Crystallisation 9
4.5 De-crystallisation 10
5. COVENANTS AND WARRANTIES 10
5.1 Covenant 10
5.2 Negative covenants 11
5.3 Warranty 11
<PAGE>
SERIES 1999-1G WST TRUST SECURITY TRUST DEED
- --------------------------------------------------------------------------------
5.4 Trust Manager's undertakings 12
6. FURTHER ASSURANCES 13
6.1 Further assurances 13
7. NOTE TRUSTEE 13
7.1 Capacity 13
7.2 Exercise of rights 13
7.3 Instructions or directions 13
7.4 Payments 13
7.5 Notices 14
8. EVENTS OF DEFAULT 14
8.1 Events of Default 14
8.2 Rights of the Security Trustee upon Event of Default 15
8.3 Notify Events of Default 15
9. ENFORCEMENT 16
9.1 Power to enforce 16
9.2 No obligation to enforce 16
9.3 Obligation to convene meeting 16
9.4 Security Trustee to act in accordance with directions 16
9.5 Security Trustee must receive indemnity 17
9.6 Limitation on rights of Mortgagees 17
9.7 Immaterial waivers 17
9.8 Acts pursuant to resolutions 18
9.9 Overriding provision 18
10. APPOINTMENT OF RECEIVER 18
10.1 Appointment 18
10.2 Agent of Chargor 19
10.3 Receiver's powers 19
10.4 Receiver appointed after commencement of winding up 21
10.5 Powers exercisable by the Security Trustee 22
10.6 Withdrawal 22
<PAGE>
SERIES 1999-1G WST TRUST SECURITY TRUST DEED
- --------------------------------------------------------------------------------
11. REMUNERATION OF SECURITY TRUSTEE 22
11.1 Costs 22
11.2 Fee 22
11.3 Cessation of Fee 22
12. POWER OF ATTORNEY 23
13. COMPLETION OF BLANK SECURITIES 23
14. PERFORMANCE OF CHARGOR'S OBLIGATIONS 23
15. STATUTORY POWERS 24
15.1 Powers in augmentation 24
15.2 Notice not required 24
16. APPLICATION OF MONEYS RECEIVED 24
16.1 Priorities 24
16.2 Moneys actually received 25
16.3 Amounts contingently due 25
16.4 Notice of subsequent Security Interests 26
16.5 Satisfaction of debts 26
16.6 Payments into US$ Account 26
16.7 Payments out of US$ Account 27
16.8 Excluded amounts 27
17. OTHER SECURITY INTERESTS OVER MORTGAGED PROPERTY 27
18. PROTECTION OF MORTGAGEES, RECEIVER AND ATTORNEY 28
19. PROTECTION OF THIRD PARTIES 28
19.1 No enquiry 28
19.2 Receipt 29
20. EXPENSES, INDEMNITY 29
20.1 Expenses 29
20.2 Indemnity 29
<PAGE>
SERIES 1999-1G WST TRUST SECURITY TRUST DEED
- --------------------------------------------------------------------------------
21. CURRENCY INDEMNITY 30
22. STAMP DUTIES 30
23. INTEREST ON OVERDUE AMOUNTS 30
23.1 Accrual 30
23.2 Payment 31
23.3 Rate 31
24. CERTIFICATE AS TO AMOUNT OF SECURED MONEYS, ETC. 31
25. SURVIVAL OF REPRESENTATIONS 31
26. INDEMNITY AND REIMBURSEMENT OBLIGATIONS 31
27. CONTINUING SECURITY 32
28. OTHER SECURITIES 32
29. DISCHARGE OF THE CHARGE 32
29.1 Release 32
29.2 Contingent liabilities 32
29.3 Charge reinstated 33
30. AMENDMENT 33
30.1 Approval of Trust Manager 33
30.2 Extraordinary Resolution of Voting Mortgagees 33
30.3 Distribution of amendments 34
31. LIMITED RECOURSE 34
31.1 General 34
31.2 Liability of Chargor limited to its right to indemnity 34
31.3 Rights against Mortgaged Property preserved 35
31.4 Unrestricted remedies 35
31.5 Restricted remedies 35
32. WAIVERS, REMEDIES CUMULATIVE 36
<PAGE>
SERIES 1999-1G WST TRUST SECURITY TRUST DEED
- --------------------------------------------------------------------------------
33. CONSENTS AND OPINION 36
34. SEVERABILITY OF PROVISIONS 36
35. MORATORIUM LEGISLATION 37
36. ASSIGNMENTS 37
37. NOTICES 37
38. RELATIONSHIP OF MORTGAGEES TO SECURITY TRUSTEE 38
38.1 Instructions; extent of discretion 38
38.2 No obligation to investigate authority 38
38.3 Delegation 38
38.4 Reliance on documents and experts 39
38.5 Notice of transfer 39
38.6 Notice of default 39
38.7 Security Trustee as Mortgagee 39
38.8 Indemnity to Security Trustee 40
38.9 Independent investigation 41
38.10 No monitoring 41
38.11 Information 41
38.12 Conflicts 42
38.13 No Liability 42
38.14 Security Trustee liability 43
39. RETIREMENT AND REMOVAL OF SECURITY TRUSTEE 43
39.1 Retirement 43
39.2 Removal 43
39.3 Replacement 44
40. MEETINGS OF MORTGAGEES 44
40.1 Limitation on Security Trustee's powers 44
40.2 Convening of meetings 45
40.3 Notice of meetings 45
<PAGE>
SERIES 1999-1G WST TRUST SECURITY TRUST DEED
- --------------------------------------------------------------------------------
40.4 Chairman 46
40.5 Quorum 46
40.6 Adjournment 46
40.7 Voting procedure 47
40.8 Right to attend and speak 48
40.9 Appointment of Proxies 48
40.10 Corporate Representatives 49
40.11 Rights of Representatives 49
40.12 Extraordinary Resolutions 49
40.13 Extraordinary Resolution binding on Mortgagees 50
40.14 Minutes and records 51
40.15 Written resolutions 51
40.16 Further procedures for meetings 51
40.17 Noteholder Mortgagees'rights 51
41. AUTHORISED SIGNATORIES 53
42. GOVERNING LAW AND JURISDICTION 53
43. COUNTERPARTS 53
44. SET-OFF 53
45. ACKNOWLEDGEMENT BY CHARGOR 53
46. INFORMATION MEMORANDUM 54
</TABLE>
<PAGE>
SERIES 1999-1G WST TRUST SECURITY TRUST DEED
- --------------------------------------------------------------------------------
DATE 1999
- -------------
PARTIES
- -------------
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 1999-1G 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 25, 60 Martin Place, Sydney, New South Wales (the TRUST
MANAGER); and
4. CITIBANK, N.A., LONDON OFFICE of 11 Old Jewry, London EC2R 8DU
(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 as Mortgagee and as
trustee for each other Mortgagee.
D The Note Trustee enters into this deed for itself and as trustee
for each Class A Noteholder.
- --------------------------------------------------------------------------------
IT IS AGREED as follows.
1
<PAGE>
SERIES 1999-1G WST TRUST SECURITY TRUST DEED
- --------------------------------------------------------------------------------
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.
CHARGE means the charge created by this deed.
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,
- --------------------------------------------------------------------------------
2
<PAGE>
SERIES 1999-1G WST TRUST SECURITY TRUST DEED
- --------------------------------------------------------------------------------
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.
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 Class A 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 Class A Noteholders) under the
Transaction Documents; or
(i) each Note Party in relation to its rights under the
Transaction Documents.
NOTE TRUSTEE means Citibank, N.A., London Office, in its own capacity
and as agent for the Class A Noteholders from time to time.
NOTEHOLDER MORTGAGEES means, together:
(a) the Note Trustee on behalf of the Class A Noteholders; and
(b) each Class B Noteholder.
NOTICE OF CREATION OF TRUST means the Notice of Creation of Trust dated
[*] 1999 issued under the Master Trust Deed in relation to the Trust.
- --------------------------------------------------------------------------------
3
<PAGE>
SERIES 1999-1G WST TRUST SECURITY TRUST DEED
- --------------------------------------------------------------------------------
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 Class A 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.
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 Andrew Jinks.
TRUST means the trust known as the Series 1999-1G 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.
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SERIES 1999-1G WST TRUST SECURITY TRUST DEED
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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; and
(i) the Note Trust Deed.
TRUST FUND means each amount held by the Security Trustee under clause
2.1 of this deed together with any other property and benefits which
the Security Trustee receives, has vested in it or otherwise acquires
to hold on the trust established under this deed including, without
limitation, all the right, title and interest of the Security Trustee
in connection with the Charge and any property which represents the
proceeds of sale of any such property or proceeds of enforcement of the
Charge.
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 Class A Noteholders
and the Class B Noteholders are 75% or more of total Secured
Moneys, the Noteholder Mortgagees alone; and
(b) at any other time (subject to clause 40.17):
(i) the Note Trustee, acting on behalf of the Class A
Noteholders under the Note Trust Deed and clause 7;
and
(ii) each other Mortgagee (other than a Class A
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
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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 Noteholder Mortgagees) 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:
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(a) an AGREEMENT includes a Security Interest, Guarantee,
undertaking, deed, agreement or legally enforceable
arrangement whether or not in writing; and
(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.
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2. APPOINTMENT OF SECURITY TRUSTEE
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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,
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 Class A 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, the holders of the RFSs and
the holders of the RFS Class A Notes if, in the Security
Trustee's opinion, there is a conflict between the interests
of the Class A Noteholders, the holders of the RFSs and the
holders of the RFS Class A 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
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Receivable Security which the Trustee or Westpac has notified to the
Security Trustee is affected by a Trust Back.
3. CHARGE
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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.
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$1,000,000,000,000 or its equivalent and the total amount
recoverable under this deed is limited to A$1,000,000,000,000.
4. NATURE OF CHARGE
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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 Noteholder Mortgagees, or
as
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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
(ii) 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);
(ii) if without the prior written consent of the Security
Trustee (and, subject to clause 40.17(d), the
Noteholder Mortgagees), 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
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(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
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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.
(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:
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SERIES 1999-1G WST TRUST SECURITY TRUST DEED
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(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 and Investments
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
Noteholder Mortgagees) 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
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(e) (SECURITY INTEREST) not create any other Security Interest
over the Mortgaged Property.
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:
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(i) the identity, and notice details of, each Support
Facility Provider; and
(ii) the Secured Moneys owing to each Support Facility
Provider.
6. FURTHER ASSURANCES
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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
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7.1 CAPACITY
The Note Trustee is a party to this deed in its capacity as trustee for
the Class A Noteholders from time to time under the Note Trust Deed.
7.2 EXERCISE OF RIGHTS
(a) The rights, remedies and discretions of the Class A
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 Class A
Noteholders in accordance with the Note Trust Deed.
(b) The Class A 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 Class A
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Noteholders from time to time and need not inquire whether the Note
Trustee or the Class A 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 Class A Noteholder under this deed may be
made to the Note Trustee or a Paying Agent on behalf of that Class A
Noteholder.
7.5 NOTICES
Any notice to be given to a Class A Noteholder under this deed may be
given to the Note Trustee or the Principal Paying Agent on behalf of
that Class A Noteholder.
8. EVENTS OF DEFAULT
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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 Class A 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 Noteholder Mortgagees)) 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 Noteholder Mortgagees)
from the Security Trustee requiring the failure to be
remedied.
(c) (INSOLVENCY) An Insolvency Event occurs in relation to the
Chargor.
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(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 Noteholder Mortgagees):
(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;
(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
Noteholder Mortgagees), 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
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(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
Noteholder Mortgagees, 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
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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 (subject to clause 8.2)
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.
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
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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
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(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.
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 Noteholder Mortgagees) 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 Noteholder Mortgagees) 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
Noteholder Mortgagees) 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
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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.
10. APPOINTMENT OF RECEIVER
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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.
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(b) (i) Any Receiver will be the agent of the Chargor in its
capacity as trustee of the Trust only; and
(ii) 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).
(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.
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(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
(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.
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(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.
(bb) (SECURITY INTERESTS) He may redeem any Security Interest or
acquire it and any debt secured by it.
(cc) (INSURE) He may take out insurance.
(dd) (INSURANCE CLAIMS) He may make, enforce, compromise and settle
all claims in respect of insurance.
(ee) (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.
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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
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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
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agreed from time to time by the Chargor, the Security Trustee
and the Trust Manager.
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
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(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
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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.
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14. PERFORMANCE OF CHARGOR'S OBLIGATIONS
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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 Noteholder Mortgagees) do
anything which in its opinion is necessary or expedient to make good or
to attempt to make good that failure to its satisfaction.
15. STATUTORY POWERS
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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
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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
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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);
(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 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);
(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
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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 Class A 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 Class A
Noteholder) to the Note Trustee, the amount which becomes
actually due to it; and
(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
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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 under clause
16.1(d)(iv), will be applied pari passu to pay all Secured
Moneys owing to Class A Noteholders.
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;
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(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
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(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
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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 default on the part of any
Mortgagee, Receiver or Attorney.
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19. PROTECTION OF THIRD PARTIES
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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
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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
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Class A 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
(i) 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
(ii) any enquiry by a Government Agency concerning the
Chargor or the Mortgaged Property or a transaction or
activity the subject 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
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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
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SERIES 1999-1G WST TRUST SECURITY TRUST DEED
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(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
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(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 Class A
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.
23. INTEREST ON OVERDUE AMOUNTS
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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.
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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.
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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
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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
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Each indemnity reimbursement, and similar obligation in a Trust
Document:
(a) is a continuing obligation;
(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
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Each of this deed and each Collateral Security is a continuing security
despite any settlement of account, intervening payment or anything else
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until a final discharge of this deed and each Collateral Security has
been given to the Chargor.
28. OTHER SECURITIES
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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
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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,
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drawn, endorsed or accepted by the Security Trustee for the
account or at the request of the Chargor for the Trust.
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 Noteholder Mortgagees) agrees otherwise in writing.
30. AMENDMENT
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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 Noteholder
Mortgagees, 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.
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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.
31. LIMITED RECOURSE
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31.1 GENERAL
Clause 33 of the Master Trust Deed applies to the obligations and
liabilities of the Chargor and the Trust Manager under this deed.
31.2 LIABILITY OF CHARGOR LIMITED TO ITS RIGHT TO INDEMNITY
(a) The Chargor enters into this deed only in its capacity as
trustee of the Trust and in no other capacity. Subject to this
clause 31.2, the Trust Manager and the Security Trustee may
enforce their rights against the Chargor, in any way arising
in respect of this deed or the Trust, however a liability
arising under or in connection with this deed or the Trust can
be enforced against the Chargor only to the extent to which it
can be satisfied out of the Mortgaged Property out of which
the Chargor is actually indemnified for the liability. This
limitation of the Chargor's liability applies despite any
other provision of this deed and extends to all liabilities
and obligations of the Chargor in any way connected with any
representation, warranty, conduct, omission, agreement or
transaction related to this deed or the Trust.
(b) The parties other than the Chargor may not sue the Chargor in
any capacity other than as trustee of the Trust or seek the
appointment of a receiver (except under this deed), or a
liquidator, an administrator or any similar person to the
Chargor or prove in any liquidation, administration or
arrangements of or affecting the Chargor.
(c) The provisions of this clause 31.2 shall not apply to any
obligation or liability of the Chargor to the extent that it
is not
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SERIES 1999-1G WST TRUST SECURITY TRUST DEED
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satisfied because under a Trust Document or by operation of
law there is a reduction in the extent of the Chargor's
indemnification out of the Trust Assets as a result of the
Chargor's fraud, negligence or breach of trust.
(d) Without affecting any limit or exclusion of liability in
relation to the duties, powers or obligations under the Trust
Documents of any of the Trust Manager, the Servicer, the Note
Trustee, the Currency Swap Providers, the Principal Paying
Agent, the other Paying Agents or the Agent Bank (each a
RELEVANT PARTY), it is acknowledged that the Trust Manager,
the Servicer, the Note Trustee, the Currency Swap Providers,
the Principal Paying Agent, the other Paying Agents and the
Agent Bank (each a RELEVANT PARTY) are responsible under this
deed and the other Trust Documents for performing a variety of
obligations relating to the Trust. No act or omission of the
Chargor (including any related failure to satisfy its
obligations under this deed) will be considered fraud,
negligence or breach of trust of the Chargor for the purpose
of sub-paragraph (c) to the extent to which the act or
omission was caused or contributed to by any failure by any
Relevant Party or any other person who provides services in
respect of the Trust (other than a person who has been
delegated or appointed by the Chargor and for whom the Chargor
is responsible under this deed or the relevant Trust
Documents, but excluding any Relevant Party) to fulfil its
obligations relating to the Trust or by any other act or
omission of a Relevant Party or any other person who provides
services in respect of the Trust (other than a person who has
been delegated or appointed by the Chargor and for whom the
Chargor is responsible under this deed or the relevant Trust
Documents, but excluding any Relevant Party).
(e) No attorney, agent, receiver or receiver and manager appointed
in accordance with this deed or any other Trust Documents
(including a Relevant Party) has authority to act on behalf of
the Chargor in a way which exposes the Chargor to any personal
liability and no act or omission of any such person will be
considered fraud, negligence or breach of trust of the Chargor
for the purpose of sub-paragraph (c), if the Chargor has
exercised reasonable care in the selection and supervision of
such a person.
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
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SERIES 1999-1G WST TRUST SECURITY TRUST DEED
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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 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.
31.5 RESTRICTED REMEDIES
Except in the event of fraud, negligence or breach of trust by the
Chargor (but subject to clause 31.2), 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;
(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
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(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.
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SERIES 1999-1G WST TRUST SECURITY TRUST DEED
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(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
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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
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(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.
35. MORATORIUM LEGISLATION
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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,
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SERIES 1999-1G WST TRUST SECURITY TRUST DEED
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is excluded from this deed and any Collateral Security.
36. ASSIGNMENTS
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(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 Noteholder Mortgagees) 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
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(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
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the Mortgagee is a Noteholder, at the address of the Note
Trustee.
38. RELATIONSHIP OF MORTGAGEES TO SECURITY TRUSTEE
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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 Noteholder Mortgagees) 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 the 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:
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(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.
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.
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38.8 INDEMNITY TO SECURITY TRUSTEE
(a) (INDEMNITY) Subject to the order of payment contained in the
Series Notice and clause 16 of this deed, clause 31 of this
deed and clause 38.8(b), the Chargor agrees to indemnify and
keep indemnified the Security Trustee and each of its
officers, employees and advisers (each an INDEMNIFIED Party
and collectively the INDEMNIFIED PARTIES) from and against all
claims, actions, proceedings, demands, liabilities, losses,
damages, costs and expenses:
(i) arising out of or in connection with the Trust
Documents; or
(ii) the Security Trustee's engagement as Security Trustee
which any Indemnified Party may suffer or incur in
any jurisdiction,
arising out of or in connection with:
(A) the Chargor failing to perform or observe
any of its obligations under this deed or
any other obligations binding on it; or
(B) any claim that an Indemnified Party has any
liability under the US Securities Act of
1933 or the US Securities Exchange Act of
1934 in relation to the issue of securities
in connection with the Trust,
and all costs and expenses incurred by any Indemnified Party
shall be reimbursed by the Chargor promptly on demand,
including those incurred in connection with the investigation
of, preparation for or defence of any pending or threatened
litigation or claim within the terms of this indemnity or
incidental thereto. This clause 38.8(a) does not limit the
Chargor's liability under any other provision of this deed.
(b) (EXTENT OF INDEMNITY) The Chargor will not be responsible for
any liabilities, losses, damages, costs or expenses which are
determined by a final judgment of a court of competent
jurisdiction to have resulted from fraud, wilful default or
negligence on the part of an Indemnified Party and any sums
already paid by the Chargor under the indemnity in clause
38.8(a) shall be reimbursed in full.
(c) (BENEFITS OF INDEMNITY) Each Indemnified Party, whether or not
a party to this deed, shall be entitled to the benefit of this
clause 38.8 and this clause 38.8 may be enforced on that
Indemnified Party's behalf by the Security Trustee.
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(d) (PRESERVATION OF RIGHTS) Subject to clause 38.8(b) the rights
of an Indemnified Party under this deed shall no in any way be
prejudiced or affected by:
(i) any approval given by an Indemnified Party in
relation to a Registration Statement or any
announcement or advertisement publicity made or
distributed in relation to a Registration Statement;
(ii) any consent to be named in a Registration Statement;
(iii) any knowledge (actual or constructive) of any failure
by the Chargor to perform or observe any of its
obligations under this deed;
(iv) any inaccuracy in any representation or warranty made
or deemed to have been made by the Chargor under the
Trust Documents; or
(v) any other fact, matter or thing which might otherwise
constitute a waiver of or in any way prejudice or
affect any right of an Indemnified Party.
(e) (THE SECURITY TRUSTEE'S OBLIGATION TO NOTIFY) If the Security
Trustee becomes aware of any matter in respect of which an
Indemnified Party wishes to claim for indemnification under
this clause 38.8, the Security Trustee shall promptly notify
the Chargor in writing of the substance of that matter.
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.
38.11 INFORMATION
(a) The Chargor authorises:
(i) the Security Trustee to provide any Voting Mortgagee;
and
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(ii) the Note Trustee to provide any Class A Noteholder,
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;
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(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
(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.
38.14 SECURITY TRUSTEE LIABILITY
Notwithstanding any other provision of this deed, the Security Trustee
will have no liability under or in connection with this deed or any
other Trust Document (whether to any Mortgagee, the Chargor, the Trust
Manager or any other person) other than to the extent to which the
liability is able to be satisfied in accordance with this deed out of
the property of the Trust Fund from which the Security Trustee is
actually indemnified for the liability. This limitation will not apply
to a liability of the Security Trustee to the extent that it is not
satisfied because, under this deed or by operation of law, there is a
reduction in the extent of the Security Trustee's indemnification as a
result of the Security Trustee's fraud, negligence or wilful default.
Nothing in this clause 38.14 or any similar provision in any other
Trust Document limits or adversely affects the powers of the Security
Trustee, any Receiver or Attorney in respect of the Charge or the
Mortgaged Property.
39. RETIREMENT AND REMOVAL OF SECURITY TRUSTEE
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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 and confirmation from the Designating Rating
Agency that the resignation and appointment of a successor would not
cause a withdrawal, downgrade or qualification of the ratings of any
Notes, 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
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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.
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
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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
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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
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such meeting shall not be held until the Class A
Noteholders have, in accordance with the Note Trust
Deed, 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 notify the Class A Noteholders in
accordance with the terms of the Note Trust Deed.
(iii) The proviso in sub-paragraph (i) shall not apply if
the Class A Noteholders' determination under
sub-paragraph (i) is not made in accordance with, and
within the time specified in, the Note Trust Deed.
(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.
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.
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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 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. In 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
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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.
(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 Class A
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 US$10,000 or its equivalent (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.
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(f) (EVIDENCE) In order for the Note Trustee to vote on behalf of
a Class A 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.
(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.
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40.10 CORPORATE REPRESENTATIVES
A person authorised pursuant to section 250D 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;
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(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;
(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
which it 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 Noteholder
Mortgagees.
(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
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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.
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;
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(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 NOTEHOLDER MORTGAGEES' RIGHTS
(a) Despite any other provision of this deed, for so long as the
Noteholder Mortgagees are the only Voting Mortgagees they 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 Noteholder Mortgagees
are the only Voting Mortgagees, unless the Noteholder
Mortgagees otherwise consent.
(c) Despite any other provision of this deed, at any time while an
Event of Default subsists:
(i) if the Noteholder Mortgagees are not the only Voting
Mortgagee; and
(ii) if the Noteholder Mortgagees direct the Security
Trustee to enforce the Charge (in the case of the
Note Trustee as a Noteholder Mortgagee, 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
Noteholder Mortgagees were the only Voting Mortgagee.
(d) Except if the Noteholder Mortgagees are the only Voting
Mortgagees, where the consent of the Noteholder Mortgagees 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 Noteholder Mortgagees must:
(A) not unreasonably withhold that consent, the
Note Trustee as a Noteholder Mortgagee
giving due consideration to the interest of
Class A Noteholders; and
(B) respond promptly (and in any event within 5
Business Days) to the Security Trustee
indicating
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whether the consent is granted or not (and
if it does not reply within 5 Business Days
its consent shall 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
Noteholder Mortgagees 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 Noteholder
Mortgagees, even if the Security Trustee is actually aware
that the Noteholder Mortgagees have unreasonably withheld
their consent in breach of sub-paragraph (d)(i)(A).
(f) Any reference to the Noteholder Mortgagees where:
(i) they are the only Voting Mortgagees; or
(ii) where the consent of the Noteholder Mortgagees 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,
means so many of the Noteholder Mortgagees who represent more
than 50% of the aggregate Invested Amount of the Class A Notes
and the Class B Notes.
41. AUTHORISED SIGNATORIES
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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
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This deed is governed by the laws of New South Wales. The Chargor
submits to the non-exclusive jurisdiction of courts exercising
jurisdiction there.
43. COUNTERPARTS
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This deed may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
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44. SET-OFF
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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
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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
(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
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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 New South Wales.
Each attorney executing this deed states that he has no notice of revocation or
suspension of his power of attorney.
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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 )
in the presence of: )
---------------------------------
Signature
- -------------------------------------------- ---------------------------------
Witness Print name
- --------------------------------------------
Print name
TRUST MANAGER
SIGNED SEALED and DELIVERED )
on behalf of )
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED)
by its attorney )
in the presence of: )
---------------------------------
Signature
- -------------------------------------------- ---------------------------------
Witness Print name
- --------------------------------------------
Print name
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NOTE TRUSTEE
SIGNED SEALED and DELIVERED )
on behalf of )
CITIBANK, N.A., LONDON OFFICE )
by its attorney )
in the presence of: )
---------------------------------
Signature
- -------------------------------------------- ---------------------------------
Witness Print name
- --------------------------------------------
Print name
61
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Exhibit 4.5
[GRAPHIC OMITTED]
AGENCY AGREEMENT
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WESTPAC SECURITIES ADMINISTRATION LIMITED
(Trustee)
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED
(Trust Manager)
CITIBANK, N.A., LONDON OFFICE
(Note Trustee)
CITIBANK, N.A.
(Principal Paying Agent)
CITIBANK, N.A., LONDON OFFICE
(Agent Bank)
CITIBANK, N.A.
(Note Registrar)
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ALLEN ALLEN & HEMSLEY
The Chifley Tower
2 Chifley Square
Sydney NSW 2000
Australia
Tel 61 2 9230 4000
Fax 61 2 9230 5333
(C) Copyright Allen Allen & Hemsley 1999
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ALLEN ALLEN
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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 2
1.1 Definitions 2
1.2 Note Trust Deed definitions 3
1.3 Interpretation 3
1.4 Document or agreement 3
1.5 Transaction Document 3
1.6 Trustee as trustee 3
2. APPOINTMENT OF PAYING AGENTS 4
3. PAYMENT 4
3.1 Payment by Trustee 4
3.2 Confirmation 4
3.3 Payments by Paying Agents 5
3.4 Method of Payment - Book-Entry Notes 5
3.5 Method of payment - Definitive Notes 5
3.6 Late payment 5
3.7 Notice of non-receipt 6
3.8 Trust 6
3.9 Reimbursement 6
3.10 Method of payment 6
3.11 No fee 7
3.12 Payments outside Australia 7
4. REPAYMENT 7
5. APPOINTMENT OF THE AGENT BANK AS REFERENCE AGENT 7
6. DUTIES OF THE AGENT BANK 8
7. NOTE TRUSTEE 9
8. EARLY REDEMPTION OF CLASS A NOTES 10
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9. PRO RATA REDEMPTION, PURCHASES AND CANCELLATION OF NOTES 10
10. NOTICES TO CLASS A NOTEHOLDERS 12
11. DOCUMENTS AND FORMS 12
12. AUTHENTICATION 12
13. INDEMNITY 12
14. THE NOTE REGISTER 13
14.1 Appointment of Note Registrar 13
14.2 Details to be kept on the Note Register 13
14.3 Payments of Principal and Interest 14
14.4 Place of keeping Register, copies and access 14
14.5 Details on Note Register conclusive 15
14.6 Alteration of details on Note Register 15
14.7 Rectification of Note Register 15
14.8 Correctness of Note Register 16
15. CHANGES OF NOTE REGISTRAR 16
15.1 Removal 16
15.2 Resignation 16
15.3 Limitation 16
16. GENERAL 16
16.1 Communications to Class A Noteholders 16
16.2 Agency 17
16.3 Identity 17
16.4 No set-off 17
16.5 Reliance 17
16.6 Entitled to deal 18
16.7 Consultation 18
16.8 Duties 18
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16.9 Income Tax Returns 18
16.10 Obligations of each Note Party 18
17. CHANGES IN PAYING AGENTS AND AGENT BANK 19
17.1 Removal 19
17.2 Resignation 19
17.3 Limitation 19
17.4 Delivery of amounts 20
17.5 Successor to Principal Paying Agent 20
17.6 Successor to Agent Bank 21
17.7 Notice to Class A Noteholders 22
17.8 Change in Paying Office or Specified Office 22
18. FEES AND EXPENSES 23
19. WAIVERS, REMEDIES CUMULATIVE 23
20. SEVERABILITY OF PROVISIONS 24
21. ASSIGNMENTS 24
22. NOTICES 24
22.1 General 24
22.2 Details 25
22.3 Communication through Principal Paying Agent 26
23. LIMITED RECOURSE 26
23.1 General 26
23.2 Liability of Trustee limited to its right to indemnity 26
23.3 Unrestricted remedies 27
23.4 Restricted remedies 28
24. COUNTERPARTS 28
25. GOVERNING LAW 28
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26. SUCCESSOR TRUSTEE 28
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DATE 1999
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PARTIES
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1. WESTPAC SECURITIES ADMINISTRATION LIMITED (ACN 000 049 472)
incorporated in New South Wales of Level 10, 130 Pitt Street, Sydney
in its capacity as trustee of the Series 1999-1G WST Trust (the
TRUSTEE);
2. WESTPAC SECURITISATION MANAGEMENT PTY LIMITED (ACN 081 709 211)
incorporated in the Australian Capital Territory of Level 25, 60
Martin Place, Sydney as trust manager in relation to the Series
1999-1G WST Trust (the TRUST MANAGER);
3. CITIBANK, N.A. acting through its office at 5 Carmelite Street,
London EC4Y 0PA as principal paying agent for the Class A Notes
described below (the PRINCIPAL PAYING AGENT, which expression shall,
wherever the context requires, include any successor principal
paying agent from time to time and, except where the context
otherwise requires, the Principal Paying Agent and any additional
paying agent or paying agents are PAYING AGENTS);
4. CITIBANK, N.A., LONDON OFFICE acting through its office at 11 Old
Jewry, London EC2R 8DU as trustee for the Class A Noteholders (the
NOTE TRUSTEE, which expression shall, wherever the context requires,
include any other trustee or trustees from time to time under the
Note Trust Deed);
5. CITIBANK, N.A., LONDON OFFICE acting through its office at 11 Old
Jewry, London EC2R 8DU as reference agent in relation to the Class A
Notes described below (the AGENT BANK, which expression shall,
whenever the context requires, include any successor reference agent
from time to time); and
6. CITIBANK, N.A. acting through its office at 5 Carmelite Street,
London EC4Y 0PA as note registrar for the Class A Notes (the NOTE
REGISTRAR which expression shall, wherever the context requires,
include any successor note registrar from time to time).
RECITALS
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A The Trustee proposes to issue US$[*] of mortgage backed floating
rate notes due 2030 comprising US$[*] Class A Notes (CLASS A NOTES).
B The Class A Notes will be represented initially by one or more
book-entry notes (the BOOK-ENTRY NOTES).
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C The Class A Notes, upon original issue, will be issued in the form
of typewritten Book-Entry Notes representing the Book-Entry Notes.
The Trustee shall, on the date of this deed, deliver or arrange the
delivery on its behalf of the Book-Entry Notes to the Principal
Paying Agent, as agent for the Clearing Agency. The Book-Entry Notes
shall initially be registered on the Note Register in the name of
the Common Depository, as nominee of the Clearing Agency, and no
Class A Note Owner will receive a Definitive Note representing such
Class A Note Owner's interest in such Class A Note, except as
provided in the Note Trust Deed.
D The Class A Notes will be constituted by the Note Trust Deed, the
Series Notice and the Master Trust Deed.
E The Class A Notes will be secured on the terms of the Security Trust
Deed.
F The Trustee wishes to appoint the Principal Paying Agent as
principal paying agent in respect of the Class A Notes and has
entered into this agreement to provide for the terms and conditions
of that appointment.
G The Trustee wishes to appoint the Agent Bank as its reference agent
in respect of the Class A Notes and has entered into this agreement
to provide for the terms and conditions of that appointment.
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IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
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1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
MASTER TRUST DEED means the Master Trust Deed for the WST Trusts dated
14 February 1997 between the Trustee as trustee and the Trust Manager.
NOTICE OF CREATION OF TRUST means the Notice of Creation of Trust dated
[*] 1999 issued under the Master Trust Deed in relation to the Trust.
PAYING OFFICE means, in relation to a Paying Agent, the office of the
Paying Agent specified in the Class A Notes or otherwise under this
agreement or the Note Trust Deed as the office at which payments in
respect of the Class A Notes will be made as changed from time to time
in accordance with this agreement.
SERIES NOTICE means the Series Notice dated on or about the date of
this agreement relating to the Trust.
SPECIFIED OFFICE means, in relation to the Agent Bank, the office of
the
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Agent Bank specified under this Agreement as the office at which the
Agent Bank will carry out its duties under this agreement.
TRUST means the trust known as the Series 1999-1G WST Trust established
under the Notice of Creation of Trust, the Master Trust Deed and the
Series Notice.
1.2 NOTE TRUST DEED DEFINITIONS
Words and expressions which are defined in the Note Trust Deed
(including by reference to another agreement and including the
Conditions) have the same meanings when used in this agreement unless
the context otherwise requires or unless otherwise defined in this
agreement.
1.3 INTERPRETATION
Clause 1.2 of the Master Trust Deed applies to this agreement 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; and
(b) 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.
1.4 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
(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 agreement.
1.5 TRANSACTION DOCUMENT
This agreement is a TRANSACTION DOCUMENT for the purposes of the Master
Trust Deed.
1.6 TRUSTEE AS TRUSTEE
(a) In this agreement, except where provided to the contrary:
(i) a reference to the Trustee is a reference to the
Trustee in its
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capacity as trustee of the Trust only, and in no
other capacity; and
(ii) a reference to the assets, business, property or
undertaking of the Trustee is a reference to the
assets, business, property or undertaking of the
Trustee only in the capacity described in
sub-paragraph (i) above.
(b) The rights and obligations of the parties under this agreement
relate only to the Series 1999-1G WST Trust, and do not relate
to any other Trust (as defined in the Master Trust Deed).
2. APPOINTMENT OF PAYING AGENTS
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(a) Subject to the terms of this agreement, the Trustee appoints
the Principal Paying Agent as its principal paying agent, and
each other Paying Agent as its paying agent, for making
payments in respect of the Class A Notes in accordance with
the Transaction Documents and the Conditions at their
respective Paying Offices. The Principal Paying Agent, and
each other Paying Agent appointed under this agreement,
accepts that appointment.
(b) Except in clause 17 and as the context otherwise requires,
references to the Principal Paying Agent are to it acting
solely through its Paying Office.
(c) If at any time there is more than one Paying Agent, the
obligations of the Paying Agents under this agreement shall be
several and not joint.
It is acknowledged and agreed that:
(i) each of the Principal Paying Agent and the other Paying Agents
is the agent of the Trustee in its capacity as trustee of the
Trust only, and
(ii) despite anything else in this agreement, any other Transaction
Document or at law, the Trustee in its personal capacity is
not responsible for any negligent act or negligent omission,
fraudulent act or fraudulent omission or any other act or
omission which, had it been done or not done by the Trustee
personally, would have amounted to a breach of trust by the
Trustee under any Transaction Document or at law, of the
Principal Paying Agent or any other Paying Agent.
3. PAYMENT
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3.1 PAYMENT BY TRUSTEE
The Trustee shall not later than 10.00 am (London time) on each
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Payment Date in accordance with clause 3.9, pay to or to the order of,
or procure payment to or to the order of, the Principal Paying Agent
the amount in US$ as may be required (after taking account of any cash
then held by the Principal Paying Agent and available for the purpose)
to be made on that Payment Date under the Series Notice and the
Conditions.
3.2 CONFIRMATION
Not later than 4.00 pm (Sydney time) on each Determination Date, the
Trust Manager on behalf of the Trustee shall notify, or procure
notification to, the Principal Paying Agent and the Note Trustee of the
amount of interest and principal payable in respect of the Class A
Notes on the Payment Date following that Determination Date. The
Trustee or the Trust Manager on its behalf shall also forward to the
Principal Paying Agent at that time confirmation that the payments
provided for in clause 3.1 will be made unconditionally.
3.3 PAYMENTS BY PAYING AGENTS
Subject to payment being duly made as provided in clause 3.1 (or to the
Principal Paying Agent otherwise being satisfied that the payment will
be duly made on the due date), and subject to clause 7, the Paying
Agents shall pay or cause to be paid on behalf of the Trustee on each
Payment Date the relevant amounts of principal and interest due in
respect of the Class A Notes in accordance with the Series Notice and
the Conditions.
3.4 METHOD OF PAYMENT - BOOK-ENTRY NOTES
(a) The Principal Paying Agent shall cause all payments of
principal or interest (as the case may be) due in respect of
Class A Notes represented by a Book-Entry Note to be made to
the Common Depositary for credit to the account of the persons
appearing from time to time in the records of the Common
Depositary as account holder with respect to the Book-Entry
Note.
(b) An annotation of the Principal Paying Agent or of the Common
Depositary under this clause 3.4 shall be sufficient evidence
unless the contrary is proved of the relevant payments having
been made or not made.
3.5 METHOD OF PAYMENT - DEFINITIVE NOTES
Payments of principal or interest on the Definitive Notes, if any,
shall be made in accordance with the Conditions and the Series Notice.
3.6 LATE PAYMENT
(a) If any payment under clause 3.1 is made late but otherwise in
accordance with the provisions of this agreement, each Paying
Agent shall make payments required to be made by it in respect
of the Class A Notes as provided in this clause 3. However,
unless and until
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the full amount of any payment in respect of the Class A Notes
required to be made under the Transaction Documents has been
made under clause 3.1 to or to the order of the Principal
Paying Agent, no Paying Agents shall be bound to make a
payment under clause 3 except to the extent that non-payment
is caused by fraud, wilful misconduct, negligence or bad faith
on the part of that Paying Agent or of any of its directors,
officers, employees or servants.
(b) If the Principal Paying Agent has not received on a Payment
Date the full amount of principal and interest then payable on
any Class A Note in accordance with the Series Notice and the
Conditions, but receives the full amount later, it shall:
(i) forthwith upon full receipt notify the other Paying
Agents (if any), the Trustee, the Note Trustee, the
Security Trustee and the Trust Manager; and
(ii) as soon as practicable after such full receipt give
due notice, in accordance with Condition 12 (unless
the Note Trustee agrees otherwise), to Class A
Noteholders that it has received the full amount.
3.7 NOTICE OF NON-RECEIPT
The Principal Paying Agent shall immediately notify by telex or
facsimile (if appropriate) the other Paying Agents (if any), the Note
Trustee, the Trustee, the Security Trustee and the Trust Manager if the
full amount of any payment of principal or interest required to be made
by the Series Notice and the Conditions in respect of the Class A Notes
is not unconditionally received by it or to its order in accordance
with this agreement.
3.8 TRUST
The Principal Paying Agent shall hold in trust for the Note Trustee and
the Class A Notes all sums held by it for the payment of principal and
interest with respect to the Class A Notes until all relevant sums are
paid to the Note Trustee or the Class A Noteholders or otherwise
disposed of in accordance with the Note Trust Deed.
3.9 REIMBURSEMENT
The Principal Paying Agent shall (provided that it has been placed in
funds by the Trustee) on demand promptly reimburse the other Paying
Agents (if any) for payments of principal and interest properly made by
that Paying Agent in accordance with the Conditions and this agreement.
The Trustee shall not be concerned with the apportionment of any moneys
between the Principal Paying Agent and the other Paying Agents (if any)
and payment to the Principal Paying Agent of any moneys due to the
Paying Agents shall operate as a good discharge to the
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Trustee in respect of such moneys.
3.10 METHOD OF PAYMENT
(a) All sums payable by the Trustee to the Principal Paying Agent
under this agreement shall, unless otherwise provided and
subject to the Currency Swaps, be paid by the Currency Swap
Providers on behalf of the Trustee in US$ to the account with
the bank outside Australia as the Principal Paying Agent may
from time to time notify to the Trustee and the Note Trustee.
Those sums shall be held on trust for payment to the Class A
Noteholders and, failing that payment within the designated
periods of prescription specified in Condition 8, or upon the
bankruptcy, insolvency, winding up or liquidation of the
Principal Paying Agent or default being made by the Principal
Paying Agent in the payment of any amounts in respect of
principal or interest in accordance with this agreement, on
trust for repayment to the Trustee (subject to clause 4). On
repayment in full in accordance with clause 4 to the Trustee
that trust shall terminate and all liabilities of the
Principal Paying Agent with respect to those moneys shall
cease. The Trustee may, promptly after each Payment Date,
request confirmation from the Principal Paying Agent that the
Principal Paying Agent has paid the relevant amount to the
Common Depositary. The Principal Paying Agent will countersign
and promptly return any such confirmation requested by the
Trustee.
(b) Subject to the terms of this agreement, the Principal Paying
Agent shall be entitled to deal with moneys paid to it under
this agreement in the same manner as other moneys paid to it
as a banker by its customers. The Principal Paying Agent shall
be entitled to retain for its own account any interest earned
on the sums from time to time credited to the separate account
referred to in paragraph (a) and it need not segregate such
sums from other amounts held by it.
(c) The payment by the Trustee of its A$ payment obligations on
each Payment Date under the Series Notice and the Conditions
to the Currency Swap Providers shall be a good discharge to
the Trustee.
(d) The Trustee shall not be liable for any act or omission or
default of any Currency Swap Provider or any Paying Agents
under this Agreement.
3.11 NO FEE
Subject to clause 18, no Paying Agent will charge any commission or fee
in relation to any payment under this agreement.
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3.12 PAYMENTS OUTSIDE AUSTRALIA
All payments of interest by a Paying Agent in relation to an Class A
Note must be made to an account outside Australia (for so long as is
required for that payment to be exempt from interest withholding tax
under section 128F of the Income Tax Assessment Act 1936 (Cth) and the
Income Tax Assessment Act 1997 (Cth)).
4. REPAYMENT
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(a) Immediately on any entitlement to receive principal or
interest under any Class A Note becoming void under the
Conditions, the Principal Paying Agent shall repay to the
Trustee the amount which would have been due in respect of
that principal or interest if it had been paid before the
entitlement became void, together with any fees applicable to
that payment or entitlement (pro rated as to the amount and
time) to the extent already paid under clause 18.
(b) Despite paragraph (a) the Principal Paying Agent shall not be
obliged to make any repayment to the Trustee so long as any
fees and expenses which should have been paid to or to the
order of the Principal Paying Agent or, if applicable, the
Note Trustee by the Trustee remain unpaid.
5. APPOINTMENT OF THE AGENT BANK AS REFERENCE AGENT
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(a) The Trustee appoints the Agent Bank as its reference agent in
respect of the Class A Notes upon the terms and conditions set
forth in this agreement and the Agent Bank accepts that
appointment.
(b) It is acknowledged and agreed that:
(i) the Agent Bank is the agent of the Trustee in its
capacity as trustee of the Trust only, and
(ii) despite anything else in this agreement, any other
Transaction Document or at law, the Trustee in its
personal capacity is not responsible for any
negligent act or negligent omission, fraudulent act
or fraudulent omission or any other act or omission
which, had it been done or not done by the Trustee
personally, would have amounted to a breach of trust
by the Trustee under any Transaction Document or at
law, of the Agent Bank.
6. DUTIES OF THE AGENT BANK
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(a) The Agent Bank shall in relation to the Class A Notes until
their final
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maturity or such earlier date on which the Class A Notes are
due and payable in full and in either case until the Trustee
has paid all amounts in relation to the Class A Notes to the
Principal Paying Agent or, if applicable, the Note Trustee:
(i) perform such duties at its Specified Office in New
York and London as are set forth in this agreement
and in the Conditions and any other duties which are
reasonably incidental at the request of the Trustee,
the Trust Manager, the Note Trustee or the Principal
Paying Agent;
(ii) determine LIBOR for each Coupon Period, and calculate
the relevant Coupon on Class A Notes, in the manner
set out in Condition 4 and confirm with the Currency
Swap Providers that the LIBOR as determined under
this agreement is the same as LIBOR determined by the
Currency Swap Providers under the related Currency
Swap;
(iii) notify the Trustee, the Trust Manager, the Note
Trustee, the Paying Agents and the London Stock
Exchange (for so long as the Relevant Class A Notes
are listed on the London Stock Exchange) by telex or
facsimile transmission on or as soon as possible
after the first day of that Coupon Period, of the
Coupon Rate and the Coupon so determined by it in
relation to that Coupon Period, specifying to the
Trustee the rates upon which they are based and
(where relevant) the names of the banks quoting those
rates; and
(iv) cause the Coupon Rates applicable to the Class A
Notes and each Coupon for each Coupon Period together
with the relevant Payment Date, to be published (at
the expense of the Trustee) in accordance with the
provisions of Conditions 4 and 12, on or as soon as
possible after the commencement of the relevant
Interest Period unless the Note Trustee otherwise
agrees, provided that the Trustee and the Note
Trustee shall co-operate with the Agent Bank in order
to effect that publication.
(b) The Coupon and relevant Payment Date published under
sub-paragraph (iv) may subsequently be amended (or appropriate
alternative arrangements made by way of adjustment) without
notice to Class A Noteholders in the event of a shortening of
the Interest Period.
7. NOTE TRUSTEE
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(a) At any time after an Event of Default in respect of the Class
A Notes has
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occurred, or at any time after Definitive Notes have not been
issued when so required in accordance with the Conditions, the
Note Trustee may:
(i) by notice in writing to the Trustee, the Trust
Manager, the Principal Paying Agent, the other Paying
Agents and the Agent Bank require the Principal
Paying Agent, the other Paying Agents and the Agent
Bank either:
(A) (1) to act as Principal Paying
Agent and Paying Agents and Agent
Bank respectively of the Note
Trustee on the terms of this
agreement in relation to payments
to be made by or on behalf of the
Note Trustee under the terms of the
Note Trust Deed, except that the
Note Trustee's liability under any
provisions of this agreement for
the indemnification of the Paying
Agents and Agent Bank shall be
limited to any amount for the time
being held by the Note Trustee on
the trusts of the Note Trust Deed
and which is available to be
applied by the Note Trustee for
that purpose; and
(2) hold all Definitive Notes, and all
amounts, documents and records held
by them in respect of the Class A
Notes, on behalf of the Note
Trustee; or
(B) to deliver up all Definitive Notes and all
amounts, documents and records held by them
in respect of the Class A Notes, to the Note
Trustee or as the Note Trustee shall direct
in that notice, other than any documents or
records which the relevant Paying Agent or
Agent Bank is obliged not to release by any
law or regulation; and
(ii) by notice in writing to the Trustee require it to
make (or arrange to be made) all subsequent payments
in respect of the Class A Notes to the order of the
Note Trustee and not to the Principal Paying Agent
and, with effect from the issue of that notice to the
Trustee and until that notice is withdrawn clause 2.3
of the Note Trust Deed shall not apply.
(b) The payment by the Trustee of its payment obligations on each
Payment Date under the Series Notice and the Conditions to the
Note Trustee in accordance with paragraph (b) shall be a good
discharge to the Trustee and the Trustee shall not be liable
for any act or omission or default of the Note Trustee during
the
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period it is required to make payment to the Note Trustee
under paragraph (b).
(c) The Note Trustee shall forthwith give notice to the Trust
Manager, the Trustee, the Security Trustee, the Agent Bank,
and the Principal Paying Agent of any change in the Authorised
Signatories of the Note Trustee.
(d) If the Agent Bank at any time for any reason does not
determine the Coupon Rate or calculate the Coupon for a Class
A Note, the Note Trustee shall do so and each such
determination or calculation shall be deemed to have been made
by the Agent Bank. In doing so, the Note Trustee shall apply
the provisions of clause 6, with any necessary consequential
amendments, to the extent that, in its opinion, it can do so,
and, in all other respects it shall do so in such a manner as
it shall deem fair and reasonable in all the circumstances.
8. EARLY REDEMPTION OF CLASS A NOTES
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(a) If the Trustee intends to redeem all (but not some only) of
the Class A Notes prior to their Maturity Date pursuant to
Condition 5(n) (which it may only do at the direction of the
Trust Manager), the Trust Manager shall give not less than 5
days' prior notice to the Principal Paying Agent and the Note
Trustee before giving the requisite period of notice to the
relevant Class A Noteholders in accordance with Condition 5(n)
and stating the date on which such Class A Notes are to be
redeemed.
(b) The Principal Paying Agent shall, on receipt of a notice under
paragraph (a):
(i) notify the Common Depositary of the proposed
redemption, specifying:
(A) the aggregate Invested Amount of the Class A
Notes to be redeemed;
(B) the amount of principal to be repaid in
relation to the Class A Notes; and
(C) the date on which the Class A Notes are to
be redeemed; and
(ii) promptly and in accordance with the Conditions on
behalf of and at the expense of the Trustee publish
the notices required in connection with that
redemption.
9. PRO RATA REDEMPTION, PURCHASES AND CANCELLATION OF NOTES
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(a) If the Trustee is required to redeem some (but not all) of the
Class A
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Notes prior to their Maturity Date pursuant to Condition 5(a)
the Trust Manager shall on each Determination Date give prior
notice to the Agent Bank, the Principal Paying Agent and the
Note Trustee, as provided in Condition 5.
(b) On receipt of a notice under paragraph (a), the Principal
Paying Agent shall notify the Common Depositary of the
proposed redemption, specifying in each case the aggregate
principal amount of the Class A Notes to be redeemed and the
date on which such Class A Notes are to be redeemed.
(c) For so long as the Class A Notes are listed on the London
Stock Exchange, the Trust Manager on behalf of the Trustee
shall ensure that notice of the matters referred to in
paragraph (a) is provided to the London Stock Exchange (if
required).
(d) The Trust Manager shall, on (or as soon as practicable after)
each Determination Date in respect of the Class A Notes,
calculate:
(i) the amount of principal to be repaid in respect of
each Class A Note due on the Payment Date next
following that Determination Date;
(ii) the Invested Amount of each Class A Note on the first
day of the next following Coupon Period (after
deducting any principal due to be made on the next
Payment Date); and
(iii) the Bond Factor for the Class A Notes as of the
Notice Date,
and shall forthwith notify or cause to be notified to the
Trustee, the Agent Bank, the Note Trustee, the Principal
Paying Agent and (for so long as the Class A Notes are listed
on the London Stock Exchange) the London Stock Exchange of
each of those determinations in accordance with the Series
Notice. On receipt of that notice, the Principal Paying Agent
shall give a copy of that notice to the Common Depositary in
accordance with the requirements of the Note Depository
Agreement.
(e) The Trust Manager will immediately cause details of each
determination under paragraph (d) to be published in
accordance with Condition 12 by the Notice Date immediately
preceding the relevant Payment Date.
(f) If no principal is due to be repaid on the Class A Notes on
any Payment Date, the Trust Manager shall give notice or shall
cause a notice to this effect to be given to the Class A
Noteholders in accordance with Condition 12.
(g) If any Class A Notes are redeemed in whole or in part in
accordance with the Conditions and the Transaction Documents,
the Principal Paying Agent will, if any Book-Entry Notes are
still outstanding in relation to those Notes, cause the Note
Registrar to record all relevant details in the Note Register.
The Principal
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Paying Agent shall as soon as possible, and in any event
within three months after the date of any redemption or
purchase, furnish to each of the Trustee and the Note Trustee
a certificate setting out the aggregate Invested Amount and
Stated Amount of Class A Notes which have been redeemed or the
aggregate Invested Amount and Stated Amount of Class A Notes
which have been purchased. If the Invested Amount of a
Book-Entry Note is reduced to nil, the Principal Paying Agent
shall destroy the relevant Book-Entry Note and issue a
destruction certificate forthwith to the Note Trustee and
shall send a copy of that certificate to the Trustee, the
Trust Manager and the Note Trustee.
10. NOTICES TO CLASS A NOTEHOLDERS
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(a) At the request and expense of the Trustee, the Principal
Paying Agent shall arrange for the delivery of all notices and
the Noteholders Report to Class A Noteholders in accordance
with the Conditions.
(b) The Principal Paying Agent shall promptly send to the Note
Trustee one copy of the form of every notice given to Class A
Noteholders in accordance with the Conditions.
11. DOCUMENTS AND FORMS
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(a) The Trust Manager shall provide to the Principal Paying Agent
for distribution to each Paying Agent sufficient copies of all
documents required by the Conditions or the Note Trust Deed to
be available to Class A Noteholders for issue or inspection
(including the Note Trust Deed, the Master Trust Deed and the
Series Notice).
(b) The Trust Manager and the Trustee shall provide to the Agent
Bank such documents as the Agent Bank may reasonably require
from the Trustee in order for the Agent Bank properly to
fulfil its duties in respect of the Class A Notes.
12. AUTHENTICATION
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The Principal Paying Agent shall authenticate or cause to be
authenticated the Book-Entry Notes and (if required) the Definitive
Notes (whether on initial issue or on replacement).
13. INDEMNITY
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(a) Subject to paragraph (b) and clause 23, the Trustee shall
indemnify each Paying Agent and the Agent Bank against any
loss, damages, proceeding, liability, cost, claim, action,
demand or expense (each, an EXPENSE) which the Paying Agent
may incur or which may be made against the Paying Agent as a
result of or in connection with the Paying Agent's or Agent
Bank (as the case may be) appointment or the proper exercise
of the Paying Agent's powers and proper performance of the
Paying Agent's or Agent Bank (as the case may be) duties under
this agreement, notwithstanding the resignation or removal of
that Paying Agent or the Agent Bank in accordance with clause
17 (including any liability in respect of payment of a cheque
drawn by that Paying Agent or Agent Bank (as the case may be)
where the cheque is collected or sued upon or an attempt at
collection is made after the amount in respect of which it is
paid has been returned to the Trustee under clause 4).
(b) The indemnity in paragraph (a) applies to any Expense of a
Paying Agent or the Agent Bank (as the case may be) only:
(i) to the extent the Expense does not result from the
breach by the Paying Agent or the Agent Bank (as the
case may be) of the terms of this agreement or from
the Paying Agent's or the Agent Bank's own fraud,
wilful misconduct, negligence or bad faith or that of
its directors, officers or employees or servants;
(ii) if the Paying Agent or the Agent Bank (as the case
may be) gives notice of the Expense to the Trustee
and the Trust Manager as soon as the Paying Agent or
the Agent Bank (as the case may be) becomes aware of
the Expense; and
(iii) if and whenever the Trustee or the Trust Manager so
requires, the Paying Agent or the Agent Bank (as the
case may be) takes any actions or proceedings under
the control and at the expense of the Trustee as the
Trustee may reasonably require to avoid, resist or
compromise that Expense.
(c) Each of the Agent Bank and the Paying Agents severally
indemnifies the Trustee and the Trust Manager against any
Expense which the Trustee or the Trust Manager (as the case
may be) may incur or which may be made against it as a result
of a breach by the Agent Bank or the Paying Agent (as the case
may be) of the terms of this agreement or its own fraud,
wilful misconduct, negligence or bad faith or that of its
directors, officers or employees or servants, including any
failure to obtain and maintain in existence any Authorisation
required by it for the assumption, exercise and performance of
its powers and duties under this agreement.
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14. THE NOTE REGISTER
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14.1 APPOINTMENT OF NOTE REGISTRAR
The Trustee appoints Citibank, N.A. to be the initial Note Registrar.
Citibank, N.A. accepts that appointment.
14.2 DETAILS TO BE KEPT ON THE NOTE REGISTER
The Note Registrar shall keep the Note Register with respect to the
Trust in accordance with the Note Trust Deed, on which shall be entered
the following information relating to the Trust:
(A) (NAME) the name of the Trust;
(B) (CREATION) the date of the creation of the Trust;
(C) (ISSUE DATES) the Issue Dates for Class A Notes issued in
relation to the Trust;
(D) (INITIAL INVESTED AMOUNT) the total Initial Invested Amount of
Class A Notes issued on each such Issue Date;
(e) (INVESTED AMOUNT) the Invested Amount of each Class A Note
from time to time;
(f) (STATED AMOUNT) the Stated Amount of each Class A Note from
time to time;
(G) (DETAILS OF NOTEHOLDERS) the name and address of each Class A
Noteholder;
(H) (NUMBER OF NOTES) the number of Notes held by each Class A
Noteholder;
(I) (DATE OF ENTRY) the date on which a person was entered as the
holder of Class A Notes;
(J) (DATE OF CESSATION) the date on which a person ceased to be an
Class A Noteholder;
(K) (ACCOUNT) the account to which any payments due to an Class A
Noteholder are to be made (if applicable);
(L) (PAYMENTS) a record of each payment in respect of the Class A
Notes; and
(M) (ADDITIONAL INFORMATION) such other information as:
(i) is required by the Series Notice;
(ii) the Note Registrar considers necessary or desirable;
or
(iii) the Trust Manager or the Trustee reasonably requires.
14.3 PAYMENTS OF PRINCIPAL AND INTEREST
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(a) Any payment of principal or interest on any Class A Note shall
be endorsed by the Note Registrar on the Note Register. In the
case of payments of principal, the Invested Amount of the
Class A Notes shall be reduced for all purposes by the amount
so paid and endorsed on the Note Register. Any such record
shall be prima facie evidence that the payment in question has
been made.
(b) If the amount of principal or interest (as the case may be)
due for payment on any Class A Note is not paid in full
(including Carryover Charge Offs and by reason of a deduction
or withholding) the Note Registrar shall endorse a record of
that shortfall on the Note Register.
14.4 PLACE OF KEEPING REGISTER, COPIES AND ACCESS
The Note Register shall be:
(A) (PLACE KEPT) kept at the principal office of the Note
Registrar or at such place as the Trustee, the Trust Manager
and the Note Registrar may agree;
(B) (ACCESS TO TRUST MANAGER AND AUDITOR) open to the Trustee, the
Trust Manager and the Auditor of the Trust to inspect during
normal business hours;
(C) (INSPECTION BY CLASS A NOTEHOLDERS) open for inspection by an
Class A Noteholder during normal business hours but only in
respect of information relating to that Class A Noteholder;
and
(D) (NOT FOR COPYING) not available to be copied by any person
(other than the Trustee or the Trust Manager) except in
compliance with such terms and conditions (if any) as the
Trust Manager, the Trustee and the Note Registrar in their
absolute discretion nominate from time to time.
14.5 DETAILS ON NOTE REGISTER CONCLUSIVE
(A) (RELIANCE ON REGISTER) The Trustee shall be entitled to rely
on the Note 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 the Note Register is
inconsistent with any other document, matter or thing. The
Trustee is not liable to any person in any circumstances
whatsoever for any inaccuracy in, or omission from, the Note
Register.
(B) (NO TRUSTS ETC) The Note Registrar shall not be obliged to
enter on the Note Register notice of any trust, Security
Interest or other interest whatsoever in respect of any Class
A Notes and the Trustee shall be entitled to recognise an
Class A Noteholder as the absolute owner of Class A Notes and
the Trustee shall not be bound or affected by any trust
affecting the ownership of any Class A Notes unless ordered by
a court or required by statute.
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14.6 ALTERATION OF DETAILS ON NOTE REGISTER
On the Note Registrar being notified of any change of name or address
or payment or other details of an Class A Noteholder by the Class A
Noteholder, the Note Registrar shall alter the Note Register
accordingly.
14.7 RECTIFICATION OF NOTE REGISTER
If:
(a) an entry is omitted from the Note Register;
(b) an entry is made in the Note Register otherwise than in
accordance with this deed;
(c) an entry wrongly exists in the Note Register;
(d) there is an error or defect in any entry in the Note Register;
or
(e) default is made or unnecessary delay takes place in entering
in the Note Register that any person has ceased to be the
holder of Class A Notes,
the Note Registrar may rectify the same.
14.8 CORRECTNESS OF NOTE REGISTER
The Note Registrar shall not be liable for any mistake on the Note
Register or in any purported copy except to the extent that the mistake
is attributable to its fraud, negligence or wilful default.
15. CHANGES OF NOTE REGISTRAR
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15.1 REMOVAL
The Trustee (or the Trust Manager on its behalf after advising the
Trustee) may terminate the appointment of the Note Registrar with the
prior written approval of the Note Trustee (which approval must not be
unreasonably withheld or delayed), with effect not less than 60 days
from that notice.
15.2 RESIGNATION
Subject to this clause 15 the Note Registrar may resign its appointment
at any time by giving to the Trustee, the Trust Manager and the Note
Registrar not less than 60 days written notice to that effect.
15.3 LIMITATION
Despite clauses 15.1 and 15.2:
(a) no resignation by or termination of the appointment of the
Note Registrar shall take effect until a new Note Registrar
approved in
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writing by the Note Trustee has been appointed on terms
previously approved in writing by the Note Trustee (in each
case, that approval not to be unreasonably withheld or
delayed); and
(b) the appointment of a new Note Registrar shall be on the terms
and subject to the conditions of this agreement and the
outgoing Note Registrar shall co-operate fully to do all
further acts and things and execute any further documents as
may be necessary or desirable to give effect to the
appointment of the new Note Registrar.
16. GENERAL
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16.1 COMMUNICATIONS TO CLASS A NOTEHOLDERS
The Principal Paying Agent shall, upon receipt from the Trustee, Trust
Manager, Security Trustee or Note Trustee of any communication to be
delivered to Class A Noteholders or Class A Note Owners, including any
communications pursuant to clauses 3.3, 7.1 18(a), 22.1, 23.2 or
32.2(b) of the Note Trust Deed or any other solicitation of notice from
or consent of the Class A Noteholders or Note Owners pursuant to or
relating to the Note Trust Deed or this agreement, forward such
communications to the Class A Noteholders, along with instructions that
the responses relating to such communications be returned to the
Principal Paying Agent. Such communication shall include the date upon
which the response to such solicitation shall be delivered (the
RESPONSE DATE). The Principal Paying Agent shall treat any Noteholder
who has not delivered its response as of the Response Date as having
withheld its consent to the proposed action. The Principal Paying Agent
shall notify the Trustee, Trust Manager and Note Trustee of the results
of any such solicitations of consent.
16.2 AGENCY
Subject to any other provision of this agreement, each Note Party shall
act solely for and as agent of the Trustee and shall not have any
obligations towards or relationship of agency or trust with any person
entitled to receive payments of principal and/or interest on the Class
A Notes and shall be responsible only for performance of the duties and
obligations expressly imposed upon it in this agreement.
16.3 IDENTITY
Each Paying Agent shall (except as ordered by a court of competent
jurisdiction or as required by law) be entitled to treat the person:
(a) who is, while a Book-Entry Note remains outstanding, the
registered owner of that Book-Entry Note as the person
entitled to receive payments of principal or interest (as
applicable) and each person
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shown in the records of the Common Depositary as the holder of
any Class A Note represented by a Book-Entry Note shall be
entitled to receive from the registered owner of that
Book-Entry Note any payment so made in accordance with the
respective rules and procedures of the Common Depositary and
on the terms and subject to the conditions of that Book-Entry
Note;
(b) who is the registered owner of any relevant Definitive Note as
the absolute owner or owners of that Definitive Note (whether
or not that Definitive Note is overdue and despite any notice
of ownership or writing on it or any notice of previous loss
or theft or of any trust or other interest in it); or
(c) who, when a Book-Entry Note in respect of any Class A Note is
no longer outstanding but Definitive Notes in respect of the
Class A Notes have not been issued, is for the time being the
Note Trustee, as the person entrusted with the receipt of
principal or interest, as applicable, on behalf of the
relevant Class A Noteholders,
and in all cases and for all purposes despite any notice to the
contrary and shall not be liable for so doing.
16.4 NO SET-OFF
No Paying Agent shall exercise any right of set-off, withholding,
counterclaim or lien against, or make any deduction in any payment to,
any person entitled to receive amounts of principal or interest on the
Class A Notes in respect of moneys payable by it under this agreement.
16.5 RELIANCE
Each Note Party shall be protected and shall incur no liability for or
in respect of any action taken, omitted or suffered by it in reliance
upon any instruction, request or order from the Trustee or the Trust
Manager or in reliance upon any Class A Note or upon any notice,
resolution, direction, consent, certificate, affidavit, statement or
other paper or document reasonably believed by it to be genuine and to
have been delivered, signed or sent by the proper party or parties.
16.6 ENTITLED TO DEAL
A Note Party shall not be precluded from acquiring, holding or dealing
in any Class A Notes or from engaging or being interested in any
contract or other financial or other transaction with the Trustee, the
Trust Manager or the Servicer as freely as if it were not an agent of
the Trustee under this agreement and in no event whatsoever (other than
fraud, wilful misconduct, negligence or bad faith) shall any Note Party
be liable to account to the Trustee or any person entitled to receive
amounts of principal or interest on the Class A Notes for any profit
made or fees or commissions received in connection with this agreement
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or any Class A Notes.
16.7 CONSULTATION
Each Note Party may, after 10 days prior notice to the Trustee and the
Trust Manager, consult as to legal matters with lawyers selected by it,
who may be employees of or lawyers to the Trustee, the Trust Manager or
the relevant Paying Agent.
16.8 DUTIES
Each Note Party shall perform the duties, and only the duties,
contained in or reasonably incidental to this agreement and the
Conditions and in the Class A Notes and no implied duties or
obligations (other than general laws as to agency) shall be read into
this agreement or the Class A Notes against any Note Party. A Note
Party shall not be required to take any action under this agreement
which would require it to incur any expense or liability, for which (in
its reasonable opinion) either it would not be reimbursed within a
reasonable time or in respect of which it has not been indemnified to
its satisfaction.
16.9 INCOME TAX RETURNS
The Principal Paying Agent shall deliver to each Class A Noteholder
such information as may be reasonably required to enable such Class A
Noteholder to prepare its federal and state income tax returns.
16.10 OBLIGATIONS OF EACH NOTE PARTY
Each Note Party represents and warrants that it is duly qualified to
assume its obligations under this agreement and has obtained all
necessary approvals required to perform its obligations under this
agreement.
17. CHANGES IN PAYING AGENTS AND AGENT BANK
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17.1 REMOVAL
The Trustee (or the Trust Manager on its behalf after advising the
Trustee) may at any time:
(a) with the prior written approval of the Note Trustee appoint:
(i) additional or alternative Paying Agents; or
(ii) an alternative Agent Bank;
(b) subject to this clause 17, terminate the appointment of any
Paying Agent or the Agent Bank by giving written notice to
that effect to each Designated Rating Agency, the Agent Bank
(if its appointment is to be terminated), the Principal Paying
Agent and (if different) the Paying Agent whose appointment is
to be terminated:
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(i) with effect immediately on that notice, if any of the
following occurs in relation to the Paying Agent or Agent Bank
(as the case may be):
(A) an Insolvency Event has occurred in relation to the
Paying Agent or Agent Bank;
(B) the Paying Agent or Agent Bank has ceased its
business;
(C) the Paying Agent or Agent Bank has failed to remedy
within fourteen days after prior written notice by
the Trustee or Trust Manager any material breach of
this agreement on the part of the Paying Agent; or
(ii) otherwise, with the prior written approval of the Note Trustee
(which approval must not be unreasonably withheld or delayed)
with effect not less than 60 days' from that notice, which
date shall be not less than 30 days before nor 30 days after
any due date for payment of any Class A Notes.
17.2 RESIGNATION
Subject to this clause 17, a Paying Agent or the Agent Bank may resign
its appointment under this agreement at any time by giving to the
Trustee, the Trust Manager, each Designated Rating Agency and (where a
Paying Agent is resigning and the Paying Agent is not the Principal
Paying Agent) the Principal Paying Agent not less than 60 days' written
notice to that effect, which notice shall expire not less than 30 days
before or 30 days after any due date for payment of any Class A Notes.
17.3 LIMITATION
Despite clauses 17.1 and 17.2:
(a) no resignation by or termination of the appointment of the
Principal Paying Agent shall take effect until a new Principal
Paying Agent approved in writing by the Note Trustee has been
appointed on terms previously approved in writing by the Note
Trustee (in each case, that approval not to be unreasonably
withheld or delayed);
(b) if any Paying Agent or the Agent Bank resigns in accordance
with clause 17.2, but by the day falling 15 days before the
expiry of any notice under clause 17.2 the Trustee or the
Trust Manager has not appointed a new Paying Agent or Agent
Bank, then the relevant Paying Agent or Agent Bank (as the
case may be) may appoint in its place any reputable bank or
trust company of good standing approved in writing by the Note
Trustee and appointed on terms previously approved in writing
by the Note Trustee (in each case, that approval not to be
unreasonably withheld or delayed);
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(c) no resignation by or termination of the appointment of any
Paying Agent shall take effect if as a result of that
resignation or termination there would cease to be a Paying
Agent which has a Paying Office in the City of New York and
London;
(d) no appointment or termination of the appointment of any Paying
Agent shall take effect unless and until notice has been given
to the Class A Noteholders in accordance with the Conditions;
(e) no resignation by or termination of the appointment of the
Agent Bank shall take effect until a new Agent Bank having its
Specified Office in the City of London has been appointed; and
(f) the appointment of any additional Paying Agent shall be on the
terms and subject to the conditions of this agreement and each
of the parties to this agreement shall co-operate fully to do
all further acts and things and execute any further documents
as may be necessary or desirable to give effect to the
appointment of the Paying Agent (which shall not, except in
the case of an appointment under clause 17.1(a) or a
termination under clause 17.1(b)(ii), be at the cost of the
Trustee or Trust Manager).
17.4 DELIVERY OF AMOUNTS
If the appointment of the Principal Paying Agent terminates, the
Principal Paying Agent shall, on the date on which that termination
takes effect, pay to the successor Principal Paying Agent any amount
held by it for payment of principal or interest in respect of any Class
A Note and shall deliver to the successor Principal Paying Agent all
records maintained by it pursuant to this agreement and all documents
(including any Definitive Notes) held by it.
17.5 SUCCESSOR TO PRINCIPAL PAYING AGENT
(a) On the execution by the Trustee, the Trust Manager and any
successor Principal Paying Agent of an instrument effecting
the appointment of that successor Principal Paying Agent, that
successor Principal Paying Agent shall, without any further
act, deed or conveyance, become vested with all the authority,
rights, powers, trusts, immunities, duties and obligations of
its predecessor with effect as if originally named as
Principal Paying Agent in this agreement and that predecessor,
on payment to it of the pro rata proportion of its
administration fee and disbursements then unpaid (if any),
shall have no further liabilities under this agreement, except
for any accrued liabilities arising from or relating to any
act or omission occurring prior to the date on which the
successor Principal Paying Agent is appointed.
(b) Any corporation:
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(i) into which the Principal Paying Agent is merged;
(ii) with which the Principal Paying Agent is
consolidated;
(iii) resulting from any merger or consolidation to which
the Principal Paying Agent is a party;
(iv) to which the Principal Paying Agent sells or
otherwise transfers all or substantially all the
assets of its corporate trust business,
shall, on the date when that merger, conversion,
consolidation, sale or transfer becomes effective and to the
extent permitted by applicable law, become the successor
Principal Paying Agent under this agreement without the
execution or filing of any agreement or document or any
further act on the part of the parties to this agreement,
unless otherwise required by the Trustee or the Trust Manager,
and after that effective date all references in this agreement
to the Principal Paying Agent shall be references to that
corporation.
17.6 SUCCESSOR TO AGENT BANK
(a) On the execution by the Trustee, the Trust Manager and any
successor Agent Bank of an instrument effecting the
appointment of that successor Agent Bank, that successor Agent
Bank shall, without any further act, deed or conveyance,
become vested with all the authority, rights, powers, trusts,
immunities, duties and obligations of its predecessor with
effect as if originally named as Agent Bank in this agreement
and that predecessor, on payment to it of the pro rata
proportion of its administration fee and disbursements then
unpaid (if any), shall have no further liabilities under this
agreement, except for any accrued liabilities arising from or
relating to any act or omission occurring prior to the date on
which the successor Agent Bank is appointed.
(b) Any corporation:
(i) into which the Agent Bank is merged;
(ii) with which the Agent Bank is consolidated;
(iii) resulting from any merger or consolidation to which
the Agent Bank is a party;
(iv) to which the Agent Bank sells or otherwise transfers
all or substantially all the assets of its corporate
trust business,
shall, on the date when that merger, conversion,
consolidation, sale or transfer becomes effective and to the
extent permitted by applicable law, become the successor Agent
Bank under this agreement without the execution or filing of
any agreement or document or any further act on the part of
the parties to this
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agreement, unless otherwise required by the Trustee or the
Trust Manager, and after that effective date all references in
this agreement to the Agent Bank shall be references to that
corporation.
17.7 NOTICE TO CLASS A NOTEHOLDERS
The Trust Manager on behalf of the Trustee shall, within 14 days of:
(a) the termination of the appointment of any Paying Agent or the
Agent Bank;
(b) the appointment of a new Paying Agent or Agent Bank; or
(c) the resignation of any Paying Agent or Agent Bank,
give to the Class A Noteholders notice of the termination, appointment
or resignation in accordance with Condition 12 (in the case of a
termination under clause 17.1(b)(i) or 17.2 at the cost of the outgoing
Paying Agent).
17.8 CHANGE IN PAYING OFFICE OR SPECIFIED OFFICE
(a) If any Paying Agent proposes to change its Paying Office
(which must be within the same city as its previous Paying
Office), it must give to the Trustee, the Trust Manager, the
Note Trustee and, in the case of a change in the Paying Office
of a Paying Agent other than the Principal Paying Agent, the
Principal Paying Agent, not less than 30 days' prior written
notice of that change, giving the address of the new Paying
Office and stating the date on which the change is to take
effect. No change of Paying Office may occur within the period
between 30 days before and 30 days after any due date for
payment of any Class A Notes.
(b) If the Agent Bank proposes to change its Specified Office
(which must be in the City of London, it must give to the
Trustee, the Trust Manager and the Note Trustee, not less than
30 days' prior written notice of that change, giving the
address of the new Specified Office and stating the date on
which the change is to take effect. No change of specified
office may occur within the period between 30 days before and
30 days after any due date for payment of any Class A Notes.
(c) The Trustee or Trust Manager must, within 14 days of receipt
of a notice under paragraph (a) (unless the appointment is to
terminate pursuant to clause 17.1 or 17.2 on or prior to the
date of that change) give to the Class A Noteholders notice in
accordance with the Conditions of that change and of the
address of the new Paying Office but the costs of giving that
notice shall be borne by the Paying Agent which is changing
its Paying Office and not by the Trustee or the Trust Manager.
(d) Despite any other provision of this agreement, no Paying
Office may be
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located in Australia.
18. FEES AND EXPENSES
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(a) The Trustee shall pay to the Principal Paying Agent during the
period when any of the Class A Notes remain outstanding the
administration fee separately agreed by the Principal Paying
Agent and the Trustee, together with any out-of-pocket
expenses reasonably incurred (including any legal fees and
expenses). If the appointment of the Principal Paying Agent is
terminated under this agreement, the Principal Paying Agent
must refund to the Trustee that proportion of the fee (if any)
which relates to the period during which the Principal Paying
Agent will not be the Principal Paying Agent.
(b) The Trustee shall pay to the Agent Bank during the period when
any of the Class A Notes remain outstanding the fee separately
agreed by the Agent Bank and the Trustee, together with any
out-of-pocket expenses reasonably incurred (including any
legal fees and expenses). If the appointment of the Agent Bank
is terminated under this agreement, the Agent Bank must refund
to the Trustee that proportion of the fee (if any) which
relates to the period during which the Agent Bank will not be
the Agent Bank.
(c) The Trustee shall pay to the Note Registrar during the period
when any of the Class A Notes remain outstanding the fee
separately agreed by the Note Registrar and the Trustee,
together with any out-of-pocket expenses reasonably incurred
(including any legal fees and expenses). If the appointment of
the Note Registrar is terminated under this agreement, the
Note Registrar must refund to the Trustee that proportion of
the fee (if any) which relates to the period during which the
Note Registrar will not be the Note Registrar.
(d) Save as provided in paragraphs (a) and (c), or as expressly
provided elsewhere in this agreement, neither the Trustee nor
the Trust Manager shall have any liability in respect of any
fees or expenses of the Agent Bank, Principal Paying Agent or
any other Paying Agent or the Note Registrar in connection
with this agreement.
(e) The above fees, payments and expenses shall be paid in United
States dollars and the Trustee shall in addition pay any Value
Added Tax which may be applicable. The Principal Paying Agent
shall arrange for payment of commissions to the other Paying
Agents and arrange for the reimbursement of their expenses
promptly upon demand, supported by evidence of that
expenditure, and provided that payment is made as required by
paragraph (a) the Trustee shall not be concerned with or
liable in respect of that payment.
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Page 25
<PAGE>
ALLEN ALLEN
AGENCY AGREEMENT & HEMSLEY
- --------------------------------------------------------------------------------
19. WAIVERS, REMEDIES CUMULATIVE
- --------------------------------------------------------------------------------
(a) No failure to exercise and no delay in exercising any right,
power or remedy under this agreement operates as a waiver. Nor
does any single or partial exercise of any right, power or
remedy preclude any other or further exercise of that or any
other right, power or remedy.
(b) The rights, powers and remedies provided to a party in this
agreement are in addition to, and do not exclude or limit, any
right, power or remedy provided by law.
20. SEVERABILITY OF PROVISIONS
- --------------------------------------------------------------------------------
Any provision of this agreement 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 agreement nor affect the validity or
enforceability of that provision in any other jurisdiction.
21. ASSIGNMENTS
- --------------------------------------------------------------------------------
No party may assign or transfer any of its rights or obligations under
this agreement without the prior written consent of the other parties,
or if the rating of the Class A Notes would be withdrawn or reduced as
a result of the assignment.
22. NOTICES
- --------------------------------------------------------------------------------
22.1 GENERAL
All notices, requests, demands, consents, approvals, agreements or
other communications to or by a party to this agreement:
(a) must be in writing;
(b) must be signed by an Authorised Signatory of the sender; and
(c) will be taken to be duly given or made:
(i) (in the case of delivery in person or by post) when
delivered, received or left at the address of the
recipient shown in clause 22.2 or to any other
address which it may have notified by the recipient
to the sender;
(ii) (in the case of facsimile transmission) on receipt of
a transmission report confirming successful
transmission to the number shown in clause 22.2 or
any other number notified by the
- --------------------------------------------------------------------------------
Page 26
<PAGE>
ALLEN ALLEN
AGENCY AGREEMENT & HEMSLEY
- --------------------------------------------------------------------------------
recipient to the sender under this clause 22; and
(iii) (in the case of a telex) on receipt by the sender of
the answerback code of the recipient at the end of
transmission to the number shown in clause 22.2 or
any other number notified by the recipient to the
sender under this clause 22,
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 4.00 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.
22.2 DETAILS
The address, facsimile and telex of each party at the date of this
agreement are as follows:
THE TRUSTEE
WESTPAC SECURITIES ADMINISTRATION LIMITED
Level 10
130 Pitt Street
SYDNEY NSW 2000
Tel: 612 9220 5058
Fax: 612 9220 5300
Attention: Trustee Securitisation Manager
THE TRUST MANAGER
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED
Level 6
60 Martin Place
SYDNEY NSW 2000
Tel: 612 9226 3212
Fax: 612 9226 1732
Attention: Securitisation Trust Manager
Copy to: Lewis E Love, Jr
C/- Westpac Banking Corporation
575 Fifth Avenue
39th Floor
New York N.Y. 10023
THE PRINCIPAL PAYING AGENT
CITIBANK, N.A.
5 Carmelite Street
London EC4Y 0PA
- --------------------------------------------------------------------------------
Page 27
<PAGE>
ALLEN ALLEN
AGENCY AGREEMENT & HEMSLEY
- --------------------------------------------------------------------------------
Tel: [*]
Telex: [*]
Fax: [*]
Attention: [*]
THE AGENT BANK
CITIBANK, N.A., LONDON OFFICE
11 Old Jewry
London EC2R 8DU
Tel: [*]
Telex: [*]
Fax: [*]
Attention: [*]
THE NOTE TRUSTEE
CITIBANK, N.A., LONDON OFFICE
11 Old Jewry
London EC2R 8DU
Tel: [*]
Telex: [*]
Fax: [*]
Attention: [*]
THE NOTE REGISTRAR
CITIBANK, N.A.
5 Carmelite Street
London EC4Y 0PA
Tel: [*]
Telex: [*]
Fax: [*]
Attention: [*]
22.3 COMMUNICATION THROUGH PRINCIPAL PAYING AGENT
All communications relating to this agreement between the Trustee and
the Agent Bank and any of the Paying Agents or between the Paying
Agents themselves shall, save as otherwise provided in this agreement,
be made through the Principal Paying Agent.
23. LIMITED RECOURSE
- --------------------------------------------------------------------------------
23.1 GENERAL
- --------------------------------------------------------------------------------
Page 28
<PAGE>
ALLEN ALLEN
AGENCY AGREEMENT & HEMSLEY
- --------------------------------------------------------------------------------
Clause 33 of the Master Trust Deed applies to the obligations and
liabilities of the Trustee and the Trust Manager under this agreement.
23.2 LIABILITY OF TRUSTEE LIMITED TO ITS RIGHT TO INDEMNITY
(i) The Trustee enters into this agreement only in its
capacity as trustee of the Trust and in no other
capacity. A liability arising under or in connection
with this agreement 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 agreement
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 agreement or the Trust.
(ii) The parties other than the Trustee may not sue the
Trustee in any capacity other than as trustee of the
Trust or seek the appointment of a receiver (except
under the Security Trust Deed), or a liquidator, an
administrator 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 23 shall not apply to
any obligation or liability of the Trustee to the
extent that it is not satisfied because under a
Transaction Document 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, the
Servicer, the Currency Swap Providers, the Note
Trustee, the Agent Bank, the Principal Paying Agent
and the Paying Agents (each a RELEVANT PARTY) are
responsible under this agreement and the other
Transaction Documents 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 any Relevant Party
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 agreement or
the relevant Transaction Documents,
- --------------------------------------------------------------------------------
Page 29
<PAGE>
ALLEN ALLEN
AGENCY AGREEMENT & HEMSLEY
- --------------------------------------------------------------------------------
but excluding any Relevant Party) to fulfil its
obligations relating to the Trust or by any other act
or omission of a Relevant Party 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 agreement or the relevant Transaction
Documents, but excluding any Relevant Party).
(v) No attorney, agent, receiver, or receiver and manager
appointed in accordance with this agreement or any
other Transaction Document (including a Relevant
Party) 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 a person.
23.3 UNRESTRICTED REMEDIES
Nothing in clause 23.2 limits a Paying Agent, the Agent Bank or the
Note Trustee in:
(a) obtaining an injunction or other order to restrain any breach
of this agreement by any party;
(b) obtaining declaratory relief; or
(c) in relation to its rights under the Security Trust Deed.
23.4 RESTRICTED REMEDIES
Except as provided in clause 23.3, none of the Paying Agents, the Agent
Bank or the Note Trustee shall:
(a) (JUDGMENT) obtain a judgment for the payment of money or
damages by the Trustee;
(b) (STATUTORY DEMAND) issue any demand under s459E(1) of the
Corporations Law (or any analogous provision under any other
law) against the Trustee;
(c) (WINDING UP) apply for the winding up or dissolution of the
Trustee;
(d) (EXECUTION) levy or enforce any distress or other execution
to, on, or against any assets of the Trustee;
(e) (COURT APPOINTED RECEIVER) apply for the appointment by a
court of a receiver to any of the assets of the Trustee;
(f) (SET-OFF OR COUNTERCLAIM) exercise or seek to exercise any
set-off or counterclaim against the Trustee; or
- --------------------------------------------------------------------------------
Page 30
<PAGE>
ALLEN ALLEN
AGENCY AGREEMENT & HEMSLEY
- --------------------------------------------------------------------------------
(g) (ADMINISTRATOR) appoint, or agree to the appointment, of any
administrator to the Trustee,
or take proceedings for any of the above and each Paying Agent, the
Agent Bank and the Note Trustee waives its rights to make those
applications and take those proceedings.
24. COUNTERPARTS
- --------------------------------------------------------------------------------
This agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
25. GOVERNING LAW
- --------------------------------------------------------------------------------
This agreement is governed by the laws of New South Wales. Each party
submits to the non-exclusive jurisdiction of the courts exercising
jurisdiction there.
26. SUCCESSOR TRUSTEE
- --------------------------------------------------------------------------------
Each Paying Agent shall do all things reasonably necessary to enable
any successor Trustee appointed under clause 24 of the Master Trust
Deed to become the Trustee under this agreement.
EXECUTED in London.
Each attorney executing this agreement states that he has no notice of
revocation or suspension of his power of attorney.
TRUSTEE
SIGNED on behalf of )
WESTPAC SECURITIES ADMINISTRATION LIMITED )
by its attorney )
in the presence of: )
-------------------------------
Signature
- ---------------------------------------------- -------------------------------
Witness Print name
- ----------------------------------------------
Print name
- --------------------------------------------------------------------------------
Page 31
<PAGE>
ALLEN ALLEN
AGENCY AGREEMENT & HEMSLEY
- --------------------------------------------------------------------------------
TRUST MANAGER
SIGNED on behalf of )
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED)
by its attorney )
in the presence of: )
-------------------------------
Signature
- ---------------------------------------------- -------------------------------
Witness Print name
- ----------------------------------------------
Print name
NOTE TRUSTEE
SIGNED on behalf of )
CITIBANK, N.A., LONDON OFFICE )
by its attorney )
in the presence of: )
-------------------------------
Signature
- ---------------------------------------------- -------------------------------
Witness Print name
- ----------------------------------------------
Print name
PRINCIPAL PAYING AGENT
SIGNED on behalf of )
CITIBANK, N.A. )
by its attorney )
in the presence of: )
-------------------------------
Signature
- ---------------------------------------------- -------------------------------
Witness Print name
- ----------------------------------------------
- --------------------------------------------------------------------------------
Page 32
<PAGE>
ALLEN ALLEN
AGENCY AGREEMENT & HEMSLEY
- --------------------------------------------------------------------------------
- ----------------------------------------------
Print name
AGENT BANK
SIGNED on behalf of )
CITIBANK, N.A., LONDON OFFICE )
by its attorney )
in the presence of: )
-------------------------------
Signature
- ---------------------------------------------- -------------------------------
Witness Print name
- ----------------------------------------------
Print name
NOTE REGISTRAR
SIGNED on behalf of )
CITIBANK, N.A. )
by its attorney )
in the presence of: )
-------------------------------
Signature
- ---------------------------------------------- -------------------------------
Witness Print name
- ----------------------------------------------
Print name
- --------------------------------------------------------------------------------
Page 33
<PAGE>
Exhibit 5.1
[LETTERHEAD OF MAYER, BROWN & PLATT]
April 30, 1999
Westpac Securitisation Management Pty Limited
Level 25, 60 Martin Place
Sydney NSW 2000
Australia
Ladies and Gentlemen:
We have acted as your counsel in connection with the preparation of the
Registration Statement on Form S-11 (the "Registration Statement"), and the
Prospectus forming a part thereof (the "Prospectus"), filed by you with the
Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Act") relating to the Class A Notes (as defined
below). The Registration Statement and the Prospectus relate to the offer and
sale of the Class A Mortgage Backed Floating Rate Notes (the "Notes") to be
issued by Westpac Securities Administration Limited pursuant to the terms of
the Master Trust Deed, the Notice of Creation of Trust, the Series Notice,
the direction from the Trust Manager to the Issuer Trustee to issue the
Notes, the Note Trust Deed, the Terms and Conditions of the Notes and the
Agency Agreement (collectively, the "Documents") as described in the
Registration Statement. The Master Trust Deed and forms of certain of the
other Documents are included as exhibits to the Registration Statement. We
have examined the Registration Statement, the Prospectus and such other
documents as we have deemed necessary or advisable for purposes of rendering
this opinion. Additionally, our advice has formed the basis for the
description of the selected Federal income tax consequences of the purchase,
ownership and disposition of the Notes to an original purchaser who is
subject to United States Federal income tax that appears under the heading
"United States Federal Income Tax Consequences" in the Prospectus (the "Tax
Description"). Except as otherwise indicated herein, all terms defined in the
Prospectus are used herein as so defined.
We have assumed for the purposes of the opinions set forth below that the
Notes will be issued as described in the Registration Statement and that the
Notes will, at your direction, be
<PAGE>
Westpac Securitisation Management
Pty Limited
April 30, 1999
Page 2
sold by Westpac Securities Administration Limited for reasonably equivalent
consideration. We have also assumed that the Documents and the Notes will be
duly authorized by all necessary corporate action and that the Notes will be
duly issued, executed, authenticated and delivered in accordance with the
provisions of the Documents. In addition, we have assumed that the parties to
each Document will satisfy their respective obligations thereunder.
With respect to the opinion set forth in paragraph 1 of this letter, we
have relied, without independent investigation, on the opinion of Mallesons
Stephen Jaques to be dated on or about the Closing Date as to those matters
concerning the laws of New South Wales, Victoria, Western Australia, Queensland,
the Australian Capital Territory and the Commonwealth of Australia.
The opinion set forth in paragraph 2 of this letter is based upon the
applicable provisions of the Internal Revenue Code of 1986, as amended, Treasury
regulations promulgated and proposed thereunder, current positions of the
Internal Revenue Service (the "IRS") contained in published Revenue Rulings and
Revenue Procedures, current administrative positions of the IRS and existing
judicial decisions. This opinion is subject to the explanations and
qualifications set forth under the caption "United States Federal Income Tax
Consequences" in the Prospectus. No tax rulings will be sought from the IRS with
respect to any of the matters discussed herein.
On the basis of the foregoing examination and assumptions, and upon
consideration of applicable law, it is our opinion that:
1. When each of the Documents has been duly and validly completed,
authorized, executed and delivered by each and every party thereto substantially
in the form filed as an exhibit to the Registration Statement and the Notes have
been duly executed, authenticated, delivered and sold as contemplated in the
Registration Statement, such Notes will be legally and validly issued and
binding obligations of the Issuer Trustee in its capacity as trustee of the
Trust.
2. While the Tax Description does not purport to discuss all possible
Federal income tax ramifications of the purchase, ownership, and disposition of
the Notes, particularly to U.S. purchasers subject to special rules under the
Internal Revenue Code of 1986, we hereby adopt and confirm the opinions set
forth in the Prospectus under the headings "Summary of Terms -- Tax Status" and
"United States Federal Income Tax Consequences". There can be no assurance,
however, that the tax conclusions presented therein will not be successfully
challenged by the IRS, or significantly altered by new legislation, changes in
IRS positions or judicial decisions, any of which challenges or alterations may
be applied retroactively with respect to completed transactions.
<PAGE>
Westpac Securitisation Management
Pty Limited
April 30, 1999
Page 3
We hereby consent to the filing of this letter as an exhibit to the
Registration Statement and to the references to this firm under the headings
"Summary of Terms -- Tax Status," "United States Federal Income Tax
Consequences" and "Legal Matters" in the Prospectus, without admitting that we
are "experts" within the meaning of the Act or the rules and regulations of the
Commission issued thereunder, with respect to any part of the Registration
Statement, including this exhibit.
Very truly yours,
/s/ Mayer, Brown & Platt
MAYER, BROWN & PLATT
<PAGE>
Exhibit 8.2
[LETTERHEAD OF ALLEN ALLEN & HEMSLEY]
29 April 1999
Westpac Securitisation Management Pty Limited
Level 25
60 Martin Plaza
Sydney NSW 2000
Dear Sirs
WESTPAC SECURITISATION TRUST SERIES 1999-1G WST TRUST
We have acted for Westpac Securitisation Management Pty Limited (WSM) in
connection with the Series 1999-1G WST Trust (the TRUST) constituted under the
Master Trust Deed (the MASTER TRUST DEED) dated 14 February 1997 between Westpac
Securities Administration Limited (the TRUSTEE) and The Mortgage Company Pty
Limited, to which WSM has acceded as trust manager with respect to the Trust.
Definitions in the Prospectus (defined below) apply in this opinion but RELEVANT
JURISDICTION means the Commonwealth of Australia or New South Wales. No
assumption or qualification in this opinion limits any other assumption or
qualification in it.
1. DOCUMENTS
We have examined the following documents:
(a) the Master Trust Deed;
(b) the Notice of Creation of Trust for the Trust;
(c) the Series Notice;
(d) the Note Trust Deed between WSM, the Trustee and the Note
Trustee;
(e) the Note Issue Direction for the Trust;
(f) the Agency Agreement between, among others, WSM, the Trustee;
and
(g) a copy of the Prospectus as filed with the Securities and
Exchange Commission (the COMMISSION) under the US Securities
Act of 1933 (the PROSPECTUS).
<PAGE>
ALLEN ALLEN
29 APRIL 1999 & HEMSLEY
- --------------------------------------------------------------------------------
2. ASSUMPTION
For the Purposes of giving this opinion we have assumed that where a
document has been submitted to us in draft form it will be executed in
the form of that draft.
3. QUALIFICATIONS
Our opinion is subject to the following qualifications.
(a) We express no opinion as to any laws other than the laws of
each Relevant Jurisdiction as in force at the date of this
opinion and, in particular we express no opinion as to the
laws of England or the United States.
(b) Our opinion is subject to the explanations and qualifications
set forth under the caption "Australian Tax Matters" in the
Prospectus. We have also relied on an advance opinion from the
Australian Taxation Office in relation to a previous issue by
the Trustee and confirmation provided to Westpac by the
Australian Taxation Office that the advance opinion applies to
the issue of the Class A Notes. No tax rulings will be sought
from the Australian Taxation Office with respect to the Trust
for any of the matters referred to in this opinion.
4. OPINION
Based on the assumptions and subject to the qualifications set out
above we are of the opinion that while the section entitled "Australian
Tax Matters" in the Prospectus does not purport to discuss all possible
Australian tax ramifications of the purchase, ownership, and
disposition of the Class A Notes, we hereby adopt and confirm the
opinions set forth in the Prospectus under the heading "Australian Tax
Matters". There can be no assurance, however, that the tax conclusions
presented in that Tax Description will not be successfully challenged
by the Australian Taxation Office, or significantly altered by new
legislation, changes in Australian Taxation Office positions or
judicial decisions, any of which challenges or alterations may be
applied retroactively with respect to completed transactions.
We consent to the filing of this letter as an exhibit to the
Registration Statement on Form S-11 filed with the Prospectus, without
admitting that we are "experts" within the meaning of the Securities
Act of 1933 or the rules and regulations of the Commission issued under
that Act with respect to any part of the Registration Statement,
including this exhibit.
Yours faithfully,
/s/ Allen Allen & Hemsley
- ------------------------------
ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
Page 2 of 2
<PAGE>
Exhibit 10.2
[GRAPHIC OMITTED]
WESTPAC SECURITISATION TRUSTS SERVICING AGREEMENT SERIES 1999-1G
AMENDMENT AGREEMENT
- -------------------------------------------------------------------
<PAGE>
[GRAPHIC OMITTED]
WESTPAC BANKING CORPORATION
(Westpac)
THE MORTGAGE COMPANY PTY LIMITED
(Servicer)
WESTPAC SECURITIES ADMINISTRATION LIMITED
(Trustee)
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED
(WSM)
<PAGE>
[GRAPHIC OMITTED]
ALLEN ALLEN & HEMSLEY
The Chifley Tower
2 Chifley Square
Sydney NSW 2000
Australia
Tel 61 2 9230 4000
Fax 61 2 9230 5333
(C) Copyright Allen Allen & Hemsley 1999
<PAGE>
ALLEN ALLEN
& HEMSLEY
- --------------------------------------------------------------------------------
SERVICING AGREEMENT SERIES 1999-1G AMENDMENT AGREEMENT
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 1
2. AMENDMENT 2
3. AMENDMENTS LIMITED 5
4. GOVERNING LAW 5
5. COUNTERPARTS 5
- --------------------------------------------------------------------------------
Page (i)
<PAGE>
SERVICING AGREEMENT SERIES 1999-1G AMENDMENT AGREEMENT
- --------------------------------------------------------------------------------
DATE 1999
- -------------
PARTIES
- -------------
1. WESTPAC BANKING CORPORATION (ARBN 007 457 141) incorporated in
New South Wales of 60 Martin Place, Sydney in its capacity as
an Approved Seller to the Series 1999-1G WST Trust (WESTPAC);d
2. THE MORTGAGE COMPANY PTY LIMITED (ACN 070 968 302)
incorporated in the Australian Capital Territory of Level 25,
60 Martin Place, Sydney as servicer of the Series 1999-1G WST
Trust (the SERVICER);
3. WESTPAC SECURITIES ADMINISTRATION LIMITED (ACN 000 049 472)
incorporated in New South Wales of Level 10, 130 Pitt Street,
Sydney as trustee of the Series 1999-1G WST Trust (the
TRUSTEE); and
4. WESTPAC SECURITISATION MANAGEMENT PTY LIMITED (ACN 081 709
211) incorporated in the Australian Capital Territory, of
Level 25, 60 Martin Place, Sydney, New South Wales (WSM).
RECITALS
- -------------
A The Trustee, Westpac and the Servicer are parties to a
Servicing Agreement dated 18 February 1997 (the SERVICING
AGREEMENT).
B The Trustee, Westpac and the Servicer wish to amend the
Servicing Agreement so far as the Servicing Agreement relates
to the Trust, in the manner set out in this agreement.
- --------------------------------------------------------------------------------
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
- --------------------------------------------------------------------------------
1.1 DEFINITIONS
Definitions in the Servicing Agreement apply in this agreement unless
the context requires otherwise or the relevant term is defined in this
agreement, but TRUST means the Series 1999-1G WST Trust constituted
under the Master Trust Deed and the Series Notice dated on or about the
date of this agreement.
1.2 INTERPRETATION
Clause 1.2 of the Servicing Agreement applies as if incorporated in
this agreement.
2. AMENDMENT
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Page 1
<PAGE>
SERVICING AGREEMENT SERIES 1999-1G AMENDMENT ALLEN ALLEN
AGREEMENT & HEMSLEY
- --------------------------------------------------------------------------------
The Servicing Agreement is amended so far as it relates to the Trust as
follows.
(a) The definition of CUSTODY TRANSFER TRIGGER in clause 1.1 of
the Servicing Agreement is deleted and replaced with the
following definition.
"CUSTODY TRANSFER TRIGGER means any of the following events:
(a) a Further Audit resulting in an adverse report;
(b) the long term credit rating of the holding company of
the Servicer that is downgraded:
(i) below BBB by S&P;
(ii) below Baa2 by Moody's; or
(iii) below BBB by Fitch; or
(c) 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."
(b) The definition of SERVICER TRANSFER EVENT in clause 1.1 of the
Servicing Agreement is amended by deleting the number "10" in
paragraph (b) and inserting the number "5".
(c) Clause 1.3 of the Servicing Agreement is deleted and replaced
with the following new clause.
"1.3 LIMITATION OF LIABILITY OF THE TRUSTEE
(a) GENERAL
Clause 33 of the Master Trust Deed applies to the
obligations and liabilities of the Trustee under this
agreement.
(b) LIABILITY OF TRUSTEE LIMITED TO ITS RIGHT OF
INDEMNITY
(i) The Trustee enters into this agreement only
in its capacity as trustee of the Trust and
in no other capacity. A liability arising
under or in connection with this agreement
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
agreement and extends to all liabilities and
obligations of the Trustee in any way
connected with any representation, warranty,
conduct, omission,
- --------------------------------------------------------------------------------
Page 2
<PAGE>
SERVICING AGREEMENT SERIES 1999-1G AMENDMENT ALLEN ALLEN
AGREEMENT & HEMSLEY
- --------------------------------------------------------------------------------
agreement or transaction related to this
agreement or the Trust.
(ii) The parties other than the Trustee may not
sue the Trustee in any capacity other than
as trustee of the Trust or seek the
appointment of a receiver (except under the
Security Trust Deed), or a liquidator, an
administrator or any similar person to the
Trustee or prove in any liquidation,
administration or arrangements of or
affecting the Trustee.
(iii) The provisions of this clause 1.3 shall not
apply to any obligation or liability of the
Trustee to the extent that it is not
satisfied because under a Transaction
Document 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,
the Currency Swap Providers, the Servicer,
the Note Trustee, the Principal Paying
Agent, the other Paying Agents and the Agent
Bank (each a RELEVANT PARTY) are responsible
under this agreement and the other
Transaction Documents 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 any
Relevant Party 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 agreement
or the relevant Transaction Documents, but
excluding any Relevant Party) to fulfil its
obligations relating to the Trust or by any
other act or omission of a Relevant Party 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 agreement or the
relevant Transaction Documents, but
excluding any Relevant Party).
(v) No attorney, agent, receiver or receiver and
manager
- --------------------------------------------------------------------------------
Page 3
<PAGE>
SERVICING AGREEMENT SERIES 1999-1G AMENDMENT ALLEN ALLEN
AGREEMENT & HEMSLEY
- --------------------------------------------------------------------------------
appointed in accordance with this agreement
or any other Transaction Documents
(including a Relevant Party) 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 a person."
(d) Clause 3.1(d)(ii) of the Servicing Agreement is
deleted and replaced with the following clause
3.1(d)(ii).
"(d) if its holding company has a long term
rating from S&P of not less than A- and a
long term rating from Moody's of not less
than A2 and a long term rating from Fitch of
not less than A-, not later than the last
Business Day of each calendar year during
the Term;".
(e) Clause 3.4 of the Servicing Agreement is amended by
deleting the word "may" in the fourth last line of
that clause and replacing it with the word "must".
(f) Clause 6.2(a) of the Servicing Agreement is deleted
and replaced with the following clause 6.2(a).
"(a) If Westpac has a short term rating of A-1+
from S&P, P-1 from Moody's and F-1 + from
Fitch, or otherwise satisfies the
requirements of each Designated Rating
Agency so that any rating given by any
Designated Rating Agency in respect of the
Notes will not be adversely affected,
Westpac must pay the Collections it receives
during a Collection Period on the Remittance
Date for that Collection Period into the
relevant Collection Account."
(g) Clause 6.2(c), of the Servicing Agreement is deleted
and replaced with the following clause 6.2(c).
"(c) If Westpac does not have a short term rating
of at least A-1+ from S&P and at least P-1
from Moody's and at least F-1+ from Fitch,
or otherwise does not satisfy the
requirements of each of those Designated
Rating Agencies so that the rating given by
any Designated Rating Agency in respect of
the Notes will be adversely affected, then
Westpac shall pay all Collections in its
possession or control into the relevant
Collection Account no later than five
Business Days following receipt."
(h) Clause 8.2(a) of the Servicing Agreement is deleted
and replaced with the following clause 8.2(a).
"(a) If a Servicer Transfer Event occurs, the
Trustee must
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<PAGE>
SERVICING AGREEMENT SERIES 1999-1G AMENDMENT ALLEN ALLEN
AGREEMENT & HEMSLEY
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terminate this Agreement with immediate
effect. The Trustee must promptly give
notice of that termination to the Trust
Manager, the Approved Seller, the Servicer
and the Designated Rating Agencies."
(i) The following is inserted as clause 8.2(d):
"(d) If this agreement is terminated in
accordance with this clause 8.2, then until
the Trustee appoints an Eligible Servicer to
be the Servicer, and that Eligible Servicer
agrees to act as Servicer, the Trustee shall
act as Servicer and is entitled to the fee
payable under clause 7 while so acting."
(j) Clause 8.3 of the Servicing Agreement is amended by
deleting the words ", and that" in line two of that
clause and replacing them with the word "which".
(k) Paragraph 5(b)(ii) of schedule 1 to the Servicing
Agreement is deleted.
(l) WSM shall be the TRUST MANAGER for all purposes under
the Servicing Agreement. The Servicer will have no
obligations as Trust Manager and acts only as
Servicer under the Servicing Agreement.
3. AMENDMENTS LIMITED
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The amendments to the Servicing Agreement set out in this agreement
apply only in relation to the Trust, and do not apply in relation to
any other Trust (as defined in the Master Trust Deed).
4. GOVERNING LAW
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This agreement is governed by the laws of New South Wales and each
party submits to the non-exclusive jurisdiction of its courts and the
courts exercising jurisdiction in that State.
5. COUNTERPARTS
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This agreement may be executed in any number of counterparts. All
counterparts taken together are deemed to constitute one instrument.
EXECUTED in Sydney.
Each attorney executing this agreement states that he has no notice of
revocation or suspension of his power of attorney.
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SERVICING AGREEMENT SERIES 1999-1G AMENDMENT ALLEN ALLEN
AGREEMENT & HEMSLEY
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SIGNED on behalf of ) ----------------------------------------
WESTPAC BANKING ) Signature
CORPORATION )
by its attorney ) ----------------------------------------
in the presence of: ) Print Name
----------------------------------------
Signature
- ------------------------------------- ----------------------------------------
Witness Print name
- -------------------------------------
Print name
SIGNED on behalf of )
THE MORTGAGE COMPANY )
PTY LIMITED )
by its attorney )
in the presence of: )
----------------------------------------
Signature
- ------------------------------------- ----------------------------------------
Witness Print name
- -------------------------------------
Print name
SIGNED on behalf of )
WESTPAC SECURITIES )
ADMINISTRATION LIMITED )
by its attorney )
in the presence of: )
----------------------------------------
Signature
- ------------------------------------- ----------------------------------------
Witness Print name
- -------------------------------------
Print name
SIGNED on behalf of )
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SERVICING AGREEMENT SERIES 1999-1G AMENDMENT ALLEN ALLEN
AGREEMENT & HEMSLEY
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WESTPAC SECURITISATION )
MANAGEMENT PTY LIMITED )
by its attorney )
in the presence of: )
----------------------------------------
Signature
- ------------------------------------- ----------------------------------------
Witness Print name
- -------------------------------------
Print name
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<PAGE>
Exhibit 10.3
[GRAPHIC OMITTED]
SERIES 1999-1G WST TRUST LIQUIDITY FACILITY AGREEMENT
- -------------------------------------------------------------------
<PAGE>
[GRAPHIC OMITTED]
WESTPAC SECURITIES ADMINISTRATION LIMITED
(Trustee)
WESTPAC BANKING CORPORATION
(Liquidity Provider)
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED
(Trust Manager)
<PAGE>
[GRAPHIC OMITTED]
ALLEN ALLEN & HEMSLEY
The Chifley Tower
2 Chifley Square
Sydney NSW 2000
Australia
Tel 61 2 9230 4000
Fax 61 2 9230 5333
(C) Copyright Allen Allen & Hemsley 1999
<PAGE>
ALLEN ALLEN
& HEMSLEY
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SERIES 1999-1G WST TRUST LIQUIDITY FACILITY AGREEMENT
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Master Trust Deed definitions 3
1.3 Interpretation 3
1.4 Determination, statement and certificate
sufficient evidence 4
1.5 Transaction Document 4
1.6 Limited to Trust 4
2. PURPOSE 4
3. DRAWINGS 4
3.1 Liquidity Draw 4
3.2 Making of Liquidity Draws 5
3.3 Collateral Account 6
3.4 Collateral Account with Liquidity Provider 6
3.5 New Account 6
3.6 Conditions to transfer of account balance 7
3.7 Withdrawal from accounts 7
3.8 Liquidity Provider upgrade 8
3.9 Interest Cash Advance Deposit 8
4. FUNDING PERIODS 8
5. INTEREST 9
5.1 Accrual 9
5.2 Payment 9
5.3 Capitalisation 9
6. COMMITMENT FEE 9
7. CANCELLATION OF LIQUIDITY LIMIT 9
7.1 During Term 9
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7.2 At end of Term 10
8. Repayment 10
8.1 Final repayment 10
8.2 Repayment of Liquidity Draws 10
8.3 Repayments during Liquidity
Collateralisation Period 10
9. PREPAYMENTS 10
9.1 Voluntary prepayments 10
9.2 Interest 10
9.3 Limitation on prepayments 10
10. PAYMENTS 11
10.1 Manner 11
10.2 Payment to be made on Business Day 11
10.3 Appropriation where insufficient moneys
available 11
11. CHANGES IN LAW 11
11.1 Additional payments 11
11.2 Minimisation 12
11.3 Survival 12
12. CONDITIONS PRECEDENT 12
12.1 Conditions precedent to initial Drawdown
Notice 12
12.2 Conditions precedent to each Liquidity Draw 13
13. REPRESENTATIONS AND WARRANTIES 13
13.1 Representations and warranties 13
13.2 Reliance on representations and warranties 15
14. UNDERTAKINGS 15
14.1 General undertakings 15
14.2 Undertakings relating to Trust 16
14.3 Term of undertakings 17
15. EVENTS OF DEFAULT 17
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15.1 Events of Default 17
15.2 Consequences 17
16. INTEREST ON OVERDUE AMOUNTS 18
16.1 Accrual 18
16.2 Payment 18
16.3 Limitation 18
17. CONTROL ACCOUNTS 18
18. WAIVERS, REMEDIES CUMULATIVE 18
19. SEVERABILITY OF PROVISIONS 19
20. SURVIVAL OF REPRESENTATIONS 19
21. INDEMNITY AND REIMBURSEMENT OBLIGATION 19
22. MORATORIUM LEGISLATION 19
23. CONSENTS AND OPINIONS 19
24. ASSIGNMENTS 20
25. NOTICES 20
26. AUTHORISED SIGNATORIES 20
27. GOVERNING LAW AND JURISDICTION 20
28. COUNTERPARTS 21
29. ACKNOWLEDGEMENT BY TRUSTEE 21
30. LIMITED RECOURSE 21
30.1 General 21
30.2 Liability of Trustee limited to its right to indemnity 21
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30.3 Unrestricted remedies 22
30.4 Restricted remedies 22
31. LIQUIDITY PROVIDER'S OBLIGATIONS 23
32. SUCCESSOR TRUSTEE 23
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SERIES 1999-1G WST TRUST LIQUIDITY FACILITY AGREEMENT
DATE 1999
- -------------
PARTIES
- -------------
1. WESTPAC SECURITIES ADMINISTRATION LIMITED (ACN 000 049 472)
incorporated in New South Wales of Level 10, 130 Pitt Street,
Sydney, New South Wales as Trustee of the Series 1999-1G WST
Trust (the TRUSTEE);
2. WESTPAC BANKING CORPORATION (ARBN 007 457 141) incorporated in
New South Wales of 60 Martin Place, Sydney, New South Wales
(the LIQUIDITY PROVIDER); and
3. WESTPAC SECURITISATION MANAGEMENT PTY LIMITED (ACN 081 709
211) incorporated in the Australian Capital Territory of Level
25, 60 Martin Place, Sydney, New South Wales (the TRUST
MANAGER).
RECITALS
- -------------
The Trustee has requested the Liquidity Provider to provide
the Trustee with a liquidity facility under which loans of up
to an aggregate amount of $[46,000,000] may be made available
to the Trustee.
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IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
- ----------------------------------------------------------------
1.1 DEFINITIONS
In this agreement the following definitions apply unless the context
requires otherwise, or unless otherwise defined.
BANK BILL RATE, in relation to a Funding Period, has the meaning given
in the Series Notice in relation to the first day of that Funding
Period, but if a Funding Period is less than 90 days the Bank Bill Rate
shall be an interpolated rate calculated with reference to the tenor of
that Funding Period.
CASH ADVANCE DEPOSIT means the balance of the Collateral Account from
time to time.
COLLATERAL ACCOUNT means (as the context requires):
(a) the account established and maintained in accordance with
clause 3.3;
(b) the account established and maintained in accordance with
clause 3.5; or
(c) the account to which the Cash Advance Deposit is transferred
in accordance with clause 3.8.
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SERIES 1999-1G WST TRUST LIQUIDITY FACILITY AGREEMENT
DRAWDOWN DATE means, in relation to a Liquidity Draw, the Payment Date
on which the Liquidity Draw is or is to be made under this agreement.
DRAWDOWN NOTICE means a notice under clause 3.1.
EVENT OF DEFAULT means any of the events specified in clause 15.
EXISTING COLLATERAL ACCOUNT has the meaning given in clause 3.5.
FINAL REPAYMENT DATE means the date on which the Term ends.
FUNDING PERIOD means, in relation to a Liquidity Draw, the period
determined in accordance with clause 4.
LIQUIDITY COLLATERALISATION PERIOD means each period commencing on the
date on which either:
(a) the short term credit rating of the Liquidity Provider is
either less than A-1+ from S&P or less than P-1 from Moody's
or less than F-1+ from Fitch; or
(b) S&P, Fitch or Moody's ceases to provide a short term credit
rating for the Liquidity Provider (other than because S&P ,
Moody's or Fitch, as the case may be, ceases to provide such
ratings generally),
and ending on the date on which the short term credit rating of the
Liquidity Provider is A-1+ from S&P, P-1 from Moody's and F-1+ from
Fitch.
LIQUIDITY DRAW means any advance made or to be made under this
agreement.
LIQUIDITY LIMIT means at any date the least of:
(a) subject to clause 7.1, $[46,000,000];
(b) the Unpaid Balance of Performing Loans at that date; and
(c) any lesser amount as may be agreed in writing from time to
time between the Liquidity Provider, the Trustee, the Trust
Manager and the Designated Rating Agency for each Class of
Notes,
as reduced or cancelled under this agreement.
MARGIN means [0.15%] per annum.
MASTER TRUST DEED means the deed entitled "Master Trust Deed" between,
among others, the Trustee and the Trust Manager dated 14 February 1997.
NEW COLLATERAL ACCOUNT has the meaning given in clause 3.5.
PERFORMING LOAN means, at any date, a Purchased Receivable which:
(a) is not in Arrears;
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SERIES 1999-1G WST TRUST LIQUIDITY FACILITY AGREEMENT
(b) at that date has been in Arrears for less than 90 consecutive
days; or
(c) if it has been in Arrears at that date for 90 or more
consecutive days, was insured under a Mortgage Insurance
Policy at the date of this agreement or on or before the
Closing Date.
REFERENCE BANK has the meaning given in the 1991 ISDA Definitions as
amended by the 1998 Supplement.
SERIES NOTICE means the Series Notice issued by the Trust Manager on or
about the date of this agreement under the Master Trust Deed.
TERM means the period commencing on the date of this agreement and
expiring on the earlier of:
(a) the date which is one month after the Notes have been redeemed
in full in accordance with the Master Trust Deed;
(b) the date declared by the Liquidity Provider under clause 15.2;
(c) the date on which the Trustee enters into a liquidity
facility, as previously notified to the Designated Rating
Agency for each Class of Notes, to replace this agreement with
any other person to enable it to fund Liquidity Shortfalls;
and
(d) the date on which the Liquidity Limit is cancelled in full
under clause 7.1.
TRUST means the Series 1999-1G WST Trust constituted under the Master
Trust Deed and the Notice of Creation of Trust.
TRUST DOCUMENT means:
(a) this agreement;
(b) the Master Trust Deed;
(c) the Notice of Creation of Trust;
(d) the Series Notice;
(e) the Note Trust Deed;
(f) the Agency Agreement;
(g) the Security Trust Deed; and
(h) the Servicing Agreement.
TRUSTEE means the Trustee of the Trust at the date of this agreement or
any person which becomes a successor Trustee under clause 24 of the
Master Trust Deed.
1.2 MASTER TRUST DEED DEFINITIONS
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
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used in this agreement, unless the context otherwise requires or unless
otherwise defined in this agreement.
1.3 INTERPRETATION
Clause 1.2 of the Master Trust Deed applies to this agreement as if set
out in full, except that references to THIS DEED are references to THIS
AGREEMENT 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 Liquidity Provider; and
(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.
1.4 DETERMINATION, STATEMENT AND CERTIFICATE SUFFICIENT
EVIDENCE
Except where otherwise provided in this agreement any determination,
statement or certificate by the Liquidity Provider or an Authorised
Signatory of the Liquidity Provider provided for in this agreement is
sufficient evidence unless proven wrong.
1.5 TRANSACTION DOCUMENT
This agreement is a TRANSACTION DOCUMENT for the purposes of the Master
Trust Deed.
1.6 LIMITED TO TRUST
The rights and obligations of the parties under this agreement relate
only to the Trust, and do not relate to any other Trust (as defined in
the Master Trust Deed). Without limitation, the Liquidity Provider has
no obligation under this agreement to provide financial accommodation
to the Trustee as trustee of any other Trust.
2. PURPOSE
- ----------------------------------------------------------------
The Trust Manager directs the Trustee to, and the Trustee shall, apply
the proceeds of each Liquidity Draw to fund Liquidity Shortfalls in
relation to the Trust by crediting it to the Collection Account to be
applied in accordance with clause 6 of the Series Notice, and for no
other purpose.
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SERIES 1999-1G WST TRUST LIQUIDITY FACILITY AGREEMENT
3. DRAWINGS
- ----------------------------------------------------------------
3.1 LIQUIDITY DRAW
(a) Subject to this agreement, if on any Determination Date the
Trust Manager determines that there is a Liquidity Shortfall
in relation to the Collection Period ending immediately prior
to the Determination Date, the Trust Manager must direct the
Trustee to and the Trustee shall (subject to this agreement
and the Series Notice) request a Liquidity Draw by giving to
the Liquidity Provider a Drawdown Notice.
(b) A Drawdown Notice must be:
(i) in writing;
(ii) in or substantially in the form of Annexure A;
(iii) signed by an Authorised Signatory of the Trustee; and
(iv) given not later than 11.00am (Sydney time) on the
Remittance Date following that Collection Period.
(c) The amount requested in a Drawdown Notice must be the lesser
of:
(i) the relevant Liquidity Shortfall; and
(ii) subject to paragraph (d), the Available Liquidity
Amount at that time.
(d) If:
(i) the aggregate of all payments required to be made
under clauses 6.10(a)(i) to (iii) inclusive of the
Series Notice on the relevant Payment Date; plus
(ii) the outstanding Liquidity Draws due to be repaid on
that date; minus
(iii) the Available Income for the relevant Collection
Period;
is equal to or less than the Liquidity Limit, the calculation
of Available Liquidity Amount in paragraph (c)(ii) shall
assume the repayment of all Liquidity Draws due to be repaid
on or before the relevant Drawdown Date.
(e) The Trustee irrevocably authorises the Liquidity Provider to
apply against a Liquidity Draw provided on any Drawdown Date
all amounts which are assumed to have been applied in repaying
previous Liquidity Draws as contemplated by paragraph (d).
(f) In the case of a Liquidity Draw provided:
(i) in accordance with paragraph (c)(i); or
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(ii) following an application of paragraph (d),
the Liquidity Provider will only be required to advance to the
Trustee the difference (if any) between the Liquidity Draw and
the Available Liquidity Amount immediately prior to the
relevant Drawdown Date.
3.2 MAKING OF LIQUIDITY DRAWS
Subject to the terms of this agreement, a Liquidity Draw requested in a
Drawdown Notice shall be made available:
(a) other than during a Liquidity Collateralisation Period, by the
Liquidity Provider crediting the proceeds of that Liquidity
Draw to the Collection Account by no later than 11.00 am
(Sydney time) on the relevant Payment Date;
(b) during a Liquidity Collateralisation Period when the
Collateral Account is maintained with the Liquidity Provider,
by the Trust Manager directing the Trustee to transfer the
amount of that Liquidity Draw from the Collateral Account to
the Collection Account; and
(c) during a Liquidity Collateralisation Period when the
Collateral Account is not maintained with the Liquidity
Provider, by the Trust Manager directing the Trustee to
arrange to transfer the amount of that Liquidity Draw from the
Collateral Account to the Collection Account, in satisfaction
of the Liquidity Provider's obligation to make that Liquidity
Draw available, provided that none of the Liquidity Provider,
the Trust Manager nor the Trustee shall have any obligation if
for any reason the Bank maintaining the Collateral Account
does not comply with a request or direction to make a transfer
requested from the Collateral Account.
3.3 COLLATERAL ACCOUNT
If at any time the Liquidity Provider's short term credit rating is
less than A-1+ from S&P, P-1 from Moody's or F-1+ from Fitch or S&P,
Moody's or Fitch cease to provide a short term credit rating for the
Liquidity Provider (other than because S&P, Moody's or Fitch as the
case may be, ceases to provide such ratings generally):
(a) the Trustee must as soon as practicable establish and maintain
in the name of the Trustee an account with a Bank having a
short term rating of A-1 from S&P, P-1 from Moody's and F-1+
from Fitch or which otherwise satisfies the requirements of
those Designated Rating Agencies; and
(b) the Liquidity Provider must within 5 Business Days or such
longer period as each Designated Rating Agency confirms will
not result
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in a downgrade, withdrawal or a qualification of its rating of
any Notes, deposit into that account an amount equal to the
Available Liquidity Amount at that time.
3.4 COLLATERAL ACCOUNT WITH LIQUIDITY PROVIDER
If and for so long as the Liquidity Provider has a short term credit
rating from S&P of not lower than A-1, from Moody's of not lower than
P-1, and from Fitch of not lower than F-1 the Collateral Account shall
be an account with the Liquidity Provider.
3.5 NEW ACCOUNT
If at any time:
(a) the short term credit rating of the Bank holding the
Collateral Account (the EXISTING COLLATERAL ACCOUNT) from S&P
is lower than A-1, from Moody's is lower than P-1 or from
Fitch is lower than F-1 where the Bank is Westpac or F-1+
where the Bank is not Westpac; or
(b) deposits credited to the Existing Collateral Account cease to
be Authorised Investments because of paragraph (g)(B) of the
definition of AUTHORISED INVESTMENTS in clause 1.1 of the
Master Trust Deed,
the Trust Manager must direct the Trustee to, and the Trustee must,
subject to clause 3.6, within 5 Business Days after such direction (or
such longer period as each Designated Rating Agency may agree):
(c) establish a new account with a Bank which has a short term
credit rating from S&P of not lower than A-1+ from Moody's of
not lower than P-1 and from Fitch of not lower than F-1+(the
NEW COLLATERAL ACCOUNT) in the name of the Trustee; and
(d) transfer so much of the balance of the Existing Collateral
Account to the New Collateral Account as is not an Authorised
Investment by application of paragraph (b).
3.6 CONDITIONS TO TRANSFER OF ACCOUNT BALANCE
The Trustee shall only be obliged to transfer the balance of the
Existing Collateral Account to the New Collateral Account in accordance
with clause 3.5(d) if both the Trust Manager and the Liquidity Provider
are satisfied that the terms upon which the New Collateral Account is
established and maintained are such that:
(a) the Bank with which the New Collateral Account is maintained
will have no right of set-off, combination of accounts, lien,
flawed deposit or other Security Interest over the New
Collateral Account; and
(b) the terms of the New Collateral Account may not be varied in
any way
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without the prior written consent of the Liquidity Provider.
The Trust Manager and the Liquidity Provider must provide the Trustee
with written notice of their satisfaction with these matters as soon as
practicable.
3.7 WITHDRAWAL FROM ACCOUNTS
(a) The Trustee may only make withdrawals from a Collateral
Account if directed to do so by the Trust Manager, and then
only for the following purposes:
(i) to make or fund a Liquidity Draw in accordance with
this agreement;
(ii) to transfer the credit balance of the Existing
Collateral Account to a New Collateral Account in
accordance with clause 3.5;
(iii) to pay the Cash Advance Deposit to the Liquidity
Provider pursuant to clause 3.8(a);
(iv) to withdraw any amount which has been incorrectly
deposited into the Collateral Account;
(v) to pay financial institutions duty, bank accounts
debit tax or equivalent payable in respect of the
Collateral Account;
(vi) at the direction of the Trust Manager, invest in
Authorised Investments which mature no later than the
end of the Funding Period in which the Authorised
Investments were acquired provided that all amounts
received by the Trustee on that maturity must be
credited to the Collateral Account; or
(vii) to refund to the Liquidity Facility Provider the
amount of any of the Liquidity Limit which is
cancelled under clause 7.1.
(b) The Trust Manager must only direct the Trustee to make
withdrawals from the Collateral Account for the above
purposes.
(c) For so long as the Collateral Account is maintained with the
Liquidity Provider, the obligations of the Liquidity Provider
with respect to payment to the Trustee of the debt constituted
by any credit balance on the Collateral Account shall be
conditional upon and subject to the terms of this clause 3.
3.8 LIQUIDITY PROVIDER UPGRADE
(a) If, at any time when the Collateral Account is not maintained
with the Liquidity Provider, a short term credit rating of the
Liquidity Provider is upgraded so that it has a rating from
S&P of not lower than A-1, from Moody's of not lower than P-1,
and from Fitch of not lower than F-1, the Trust Manager must
direct the
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Trustee to, and the Trustee must within 5 Business Days of
being so directed, arrange for the Cash Advance Deposit to be
transferred to an account with the Liquidity Provider (which
account will then become the Collateral Account).
(b) If at any time during a Liquidity Collateralisation Period a
short term credit rating of the Liquidity Provider is upgraded
so that it has a rating from S&P of A-1+, from Moody's of P-1
and from Fitch of F-1+, the Trust Manager must direct the
Trustee to, and the Trustee must within 5 Business Days of
being so directed, repay to the Liquidity Provider the balance
of the Collateral Account.
3.9 INTEREST CASH ADVANCE DEPOSIT
All interest accrued on the Cash Advance Deposit shall belong to the
Liquidity Provider and all interest credited to the Cash Advance
Deposit shall be paid to the Liquidity Provider on each relevant
Payment Date in accordance with the Series Notice.
4. FUNDING PERIODS
- ----------------------------------------------------------------
(a) Subject to this clause, the Funding Period for a Liquidity
Draw commences on its Drawdown Date and ends on the Payment
Date in the Quarter following the Quarter in which that
Drawdown Date occurred.
(b) Notwithstanding paragraph (a), no Funding Period may extend
beyond the Final Repayment Date.
5. INTEREST
- ----------------------------------------------------------------
5.1 ACCRUAL
Interest accrues daily on the outstanding principal amount of each
Liquidity Draw at the rate per annum equal to the sum of the Margin and
the Bank Bill Rate for the relevant Funding Period, calculated on
actual days elapsed and a year of 365 days.
5.2 PAYMENT
The Trustee shall pay accrued interest on each Liquidity Draw in
respect of its Funding Period in arrear on each Payment Date and on
repayment or prepayment of all or the relevant part of the Liquidity
Draw.
5.3 CAPITALISATION
Interest payable under this clause 5 which is not paid when due will
immediately be capitalised. Interest is payable on capitalised interest
at the rate and in the manner referred to in this clause 5.
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6. COMMITMENT FEE
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(a) A commitment fee accrues due from day to day from the date of
this agreement at:
(i) if a Collateral Account has been opened and is
maintained on the relevant day, [0.15%] per annum on
the daily amount of the Available Liquidity Amount
(if any); and
(ii) in any other case, [0.10%] per annum on the daily
amount of the Available Liquidity Amount (if any).
(b) The commitment fee is calculated on the actual number of days
elapsed and a year of 365 days.
(c) The Trust Manager directs the Trustee to, and the Trustee
shall, pay to the Liquidity Provider any accrued commitment
fee in arrears on:
(i) each Payment Date; and
(ii) at the end of the Term,
in accordance with the Series Notice.
7. CANCELLATION OF LIQUIDITY LIMIT
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7.1 DURING TERM
On giving not less than 5 Business Days irrevocable notice to the
Liquidity Provider the Trustee may cancel all or part of the Liquidity
Limit during the Term if each Designated Rating Agency has confirmed
that such cancellation will not result in a downgrading, withdrawal or
qualification of the credit rating assigned by each of the Designated
Rating Agencies to the Notes. A partial cancellation must be in a
minimum of $100,000 and a whole multiple of $10,000 unless the
Liquidity Provider agrees otherwise.
7.2 AT END OF TERM
At the close of business (Sydney time) on the last day of the Term the
Liquidity Limit will be cancelled.
8. REPAYMENT
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8.1 FINAL REPAYMENT
The Trustee shall repay the Liquidity Outstandings on the Final
Repayment Date, together with all interest and other moneys owing to
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the Liquidity Provider under this agreement.
8.2 REPAYMENT OF LIQUIDITY DRAWS
Subject to the terms of this agreement, the Trustee must repay each
Liquidity Draw on the last day of its Funding Period, to the extent
that amounts are available for that purpose under clause 6.10(a)(iv) of
the Series Notice. Those repayments will be applied against Liquidity
Draws in chronological order of their Drawdown Dates.
8.3 REPAYMENTS DURING LIQUIDITY COLLATERALISATION PERIOD
During a Liquidity Collateralisation Period, all repayments or
prepayments in respect of Liquidity Outstandings must be made to the
Collateral Account.
9. PREPAYMENTS
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9.1 VOLUNTARY PREPAYMENTS
The Trustee may prepay all or part of the Liquidity Outstandings with
the consent of the Liquidity Provider and on at least 5 Business Days'
notice. The Trustee shall prepay in accordance with that notice.
9.2 INTEREST
When the Trustee prepays any amount of the Liquidity Outstandings, it
shall also pay any interest accrued on that amount.
9.3 LIMITATION ON PREPAYMENTS
The Trustee may not prepay all or any part of the Liquidity
Outstandings except as set out in this agreement.
10. PAYMENTS
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10.1 MANNER
Subject to clause 8.3, the Trustee shall make all payments under this
agreement:
(a) by cheque, electronic funds transfer or other agreed method to
the Liquidity Provider at its address for service of notices
or by transfer of immediately available funds to the account
specified by the Liquidity Provider and, in either case, by
4.00 pm (Sydney time) on the due date; and
(b) without set-off, counterclaim or other deduction, except any
compulsory deduction for Taxation; and
(c) in accordance with the directions of the Trust Manager, the
Master Trust
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Deed and the Series Notice.
10.2 PAYMENT TO BE MADE ON BUSINESS DAY
If any payment is due on a day which is not a Business Day, the due
date will be the next Business Day.
10.3 APPROPRIATION WHERE INSUFFICIENT MONEYS AVAILABLE
Subject to any express provision of this agreement, the Liquidity
Provider may appropriate amounts it receives as between principal,
interest and other amounts then payable as it sees fit. This will
override any appropriation made by the Trustee.
11. CHANGES IN LAW
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11.1 ADDITIONAL PAYMENTS
Whenever the Liquidity Provider determines that:
(a) the effective cost to the Liquidity Provider of making,
funding or maintaining any Liquidity Draw or the Liquidity
Limit is increased in any way;
(b) any amount paid or payable to the Liquidity Provider or
received or receivable by the Liquidity Provider, or the
effective return to the Liquidity Provider, under or in
respect of this agreement is reduced in any way;
(c) the return of the Liquidity Provider on the capital which is
or becomes directly or indirectly allocated by the Liquidity
Provider to any Liquidity Draw or the Liquidity Limit is
reduced in any way; or
(d) to the extent any relevant law, official directive or request
relates to or affects the Liquidity Limit, any Liquidity Draw
or this agreement, the overall return on capital of the
Liquidity Provider or any of its holding companies is reduced
in any way,
as a result of any change in, any making of or any change in the
interpretation or application by any Government Agency of, any law,
official directive or request, then:
(e) (when it has calculated the effect of the above and the amount
to be charged to the Trustee under this clause) the Liquidity
Provider shall promptly notify the Trust Manager and the
Trustee; and
(f) on the following Payment Date the Trustee shall, subject to
clause 6 of the Series Notice, pay for the account of the
Liquidity Provider the amount certified by an Authorised
Signatory of the Liquidity Provider to be necessary to
compensate the Liquidity Provider for the increased cost or
the reduction (from the date of the notice).
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Without limiting the above in any way, this clause applies:
(g) to any law, official directive or request with respect to
Taxation (other than any Tax on the net income of any person)
or reserve, liquidity, capital adequacy, special deposit or
similar requirements;
(h) to official directives or requests which do not have the force
of law where it is the practice of responsible bankers or
financial institutions in the country concerned to comply with
them; and
(i) where the increased cost or the reduction arises because the
Liquidity Provider is restricted in its capacity to enter
other transactions, is required to make a payment, or forgoes
or earns reduced interest or other return on any capital or on
any sum calculated by reference in any way to the amount of
any Liquidity Draw, the Liquidity Limit or to any other amount
paid or payable or received or receivable under this agreement
or allocates capital to any such sum.
11.2 MINIMISATION
(a) (NO DEFENCE) If the Liquidity Provider has acted in good faith
it will not be a defence that any cost, reduction or payment
referred to in this clause could have been avoided.
(b) (MINIMISATION) The Liquidity Provider shall use reasonable
endeavours to minimise any cost, reduction or payment referred
to in this clause.
11.3 SURVIVAL
This clause survives the repayment of any relevant Liquidity Draw and
the termination of this agreement.
12. CONDITIONS PRECEDENT
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12.1 CONDITIONS PRECEDENT TO INITIAL DRAWDOWN NOTICE
The right of the Trustee to give the initial Drawdown Notice and the
obligations of the Liquidity Provider under this agreement are subject
to the condition precedent that the Liquidity Provider receives all of
the following in form and substance satisfactory to the Liquidity
Provider:
(a) (VERIFICATION CERTIFICATE) a certificate in relation to the
Trustee given by a director of the Trustee substantially in
the form of annexure B with the attachments referred to and
dated not earlier than 14 days before the first Drawdown Date;
(b) (TRUST DOCUMENTS) a certified copy of each duly executed and
(where relevant) stamped Trust Document;
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(c) (MASTER TRUST DEED CONDITIONS PRECEDENT) evidence that the
conditions precedent referred to in clause 13 of the Master
Trust Deed have been satisfied;
(d) (SECURITY TRUST DEED) evidence that the Security Trust Deed
has been or will be registered with each relevant Governmental
Agency free from all prior Security Interests and third party
rights and interests; and
(e) (NOTES) evidence that the Notes have been issued.
12.2 CONDITIONS PRECEDENT TO EACH LIQUIDITY DRAW
The obligations of the Liquidity Provider to make available each
Liquidity Draw are subject to the further conditions precedent that no
Event of Default subsists at the date of the relevant Drawdown Notice
and the relevant Drawdown Date or will result from the provision of the
Liquidity Draw.
13. REPRESENTATIONS AND WARRANTIES
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13.1 REPRESENTATIONS AND WARRANTIES
The Trustee, in its capacity as trustee of the Trust, makes the
following representations and warranties (so far as they relate to the
Trust).
(a) (STATUS) It is a corporation validly existing under the laws
of the place of its incorporation specified in this agreement.
(b) (POWER) It has the power to enter into and perform its
obligations under the Trust Documents to which it is expressed
to be a party, to carry out the transactions contemplated by
those documents and to carry on its business as now conducted
or contemplated.
(c) (CORPORATE AUTHORISATIONS) It has taken all necessary
corporate action to authorise the entry into and performance
of the Trust Documents to which it is expressed to be a party,
and to carry out the transactions contemplated by those
documents.
(d) (DOCUMENTS BINDING) Each Trust Document to which it is
expressed to be a party is its valid and binding obligation
enforceable in accordance with its terms, subject to any
necessary stamping and registration and to laws, defences and
principles of equity generally affecting creditors' rights.
(e) (TRANSACTIONS PERMITTED) The execution and performance by it
of the Trust Documents to which it is expressed to be a party
and each transaction contemplated under those documents do not
violate in any respect a provision of:
(i) a law or treaty or a judgment, ruling, order or
decree of a
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Government Body binding on it;
(ii) its constitution or other constituent documents; or
(iii) any other document or agreement which is binding on
it or its assets,
and, except as provided by the Trust Documents, did not and
will not:
(iv) create or impose a Security Interest on any of its
assets; or
(v) allow a person to accelerate or cancel an obligation
with respect to any indebtedness in respect of
financial accommodation, or constitute an event of
default, cancellation event, prepayment event or
similar event (whatever called) under an agreement
relating to any such indebtedness, whether
immediately or after notice or lapse of time or both.
(f) (AUTHORISATIONS) Each Authorisation which is required in
relation to:
(i) the execution, delivery and performance by it of the
Trust Documents to which it is expressed to be a
party and the transactions contemplated by those
documents;
(ii) the validity and enforceability of those documents;
and
(iii) its business as now conducted or contemplated and
which is material,
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.
(g) (NO MISREPRESENTATION) All information provided by it to the
Liquidity Provider is true in all material respects at the
date of this agreement or, if later, when provided.
(h) (AGREEMENTS DISCLOSED) Each document or agreement to which it
is a party which is material to the Trust Documents or which
has the effect of varying a Trust Document has been disclosed
to the Liquidity Provider in writing.
(i) (TRUST) The Trust has been validly created and is in existence
at the date of this agreement.
(j) (TRUST POWER) It is empowered by the Master Trust Deed:
(i) to enter into and perform the Trust Documents to
which it is expressed to be a party and to carry on
the transactions contemplated by those documents; and
(ii) to carry on the business of the Trust and to own the
Assets of the Trust,
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in its capacity as trustee of the Trust. There is no
restriction on or condition of its doing so.
(k) (TRUST AUTHORISATIONS) All necessary resolutions have been
duly passed and all consents, approvals and other procedural
matters have been obtained or attended to as required by the
Master Trust Deed for it to enter into and perform the Trust
Documents to which it is expressed to be a party.
(l) (SOLE TRUSTEE) It has been validly appointed as trustee of the
Trust and is the sole trustee of the Trust.
(m) (REMOVAL) No notice has been given to it, and so far as it is
aware no resolution has been passed or direction or notice has
been given removing it as trustee of the Trust.
(n) (NO RESETTLEMENT) Other than as permitted by the Trust
Documents, it has not taken any action that will cause the
property of the Trust to be re-settled, set aside or
transferred to any other trust.
(o) (NO TERMINATION) It has not taken any action that will cause
the Trust to be terminated, nor has it taken any action that
will result in the vesting of the assets of the Trust.
(p) (RIGHT OF INDEMNITY) It has not taken any action which will
limit its right of indemnity out of, and lien over, the Assets
of the Trust.
(q) (COMPLIANCE WITH MASTER TRUST DEED) It has complied with its
obligations and duties under the Master Trust Deed, the Series
Notice and (to the best of its knowledge and belief) at law.
No one has alleged that it has not so complied.
13.2 RELIANCE ON REPRESENTATIONS AND WARRANTIES
The Trustee acknowledges that the Liquidity Provider has entered the
Trust Documents in reliance on the representations and warranties in
this clause.
14. UNDERTAKINGS
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14.1 GENERAL UNDERTAKINGS
Each of the Trustee and the Trust Manager undertake to the Liquidity
Provider as follows in relation to the Trust, except to the extent that
the Liquidity Provider consents.
(a) (AUTHORISATIONS) It will ensure that each Authorisation
required for:
(i) the execution, delivery and performance by it of the
Trust Documents to which it is expressed to be a
party and the transactions contemplated by those
documents;
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(ii) the validity and enforceability of those documents;
and
(iii) the carrying on by it of its business as now
conducted or contemplated,
is obtained and promptly renewed and maintained in full force
and effect. It will pay all applicable fees for them. It will
provide copies promptly to the Liquidity Provider when they
are obtained or renewed.
(b) (NEGATIVE PLEDGE) It will not create or allow to exist a
Security Interest over the Assets of the Trust other than:
(i) under the Trust Documents; or
(ii) a lien arising by operation of law in the ordinary
course of day-to-day trading and not securing
indebtedness in respect of financial accommodation
where it duly pays the indebtedness secured by that
lien other than indebtedness contested in good faith.
(c) (COMPLY WITH OBLIGATIONS) It will duly and punctually comply
with its obligations under the Trust Documents.
(d) (NOTICE TO LIQUIDITY PROVIDER) It will notify the Liquidity
Provider and each Designated Rating Agency as soon as it
becomes aware of:
(i) any Event of Default; and
(ii) any proposal by a Government Agency to acquire
compulsorily any Assets of the Trust.
14.2 UNDERTAKINGS RELATING TO TRUST
The Trustee, as trustee of the Trust, undertakes to the Liquidity
Provider as follows, except to the extent that the Liquidity Provider
consents.
(a) (AMENDMENT TO MASTER TRUST DEED) It will not consent to any
amendment to the Master Trust Deed, the Series Notice or any
other Trust Document if it would change:
(i) the basis upon which the amount of any Liquidity Draw
to be made is calculated;
(ii) the entitlement of the Trustee to make any Liquidity
Draw; or
(iii) the basis of calculation or order of application of
any amount to be paid or applied under clause 6 of
the Series Notice.
(b) (RESETTLEMENT) It will not take any action that will result in
a resettlement, setting aside or transfer of any asset of the
Trust other than a transfer which complies with the Master
Trust
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Deed, the Series Notice and the other Trust Documents.
(c) (NO ADDITIONAL TRUSTEE) It will act continuously as trustee of
the Trust in accordance with the Master Trust Deed until the
Trust has been terminated or until it has retired or been
removed in accordance with the Master Trust Deed.
14.3 TERM OF UNDERTAKINGS
Each undertaking in this clause continues from the date of this
agreement until all moneys actually or contingently owing under this
agreement are fully and finally repaid.
15. EVENTS OF DEFAULT
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15.1 EVENTS OF DEFAULT
Each of the following is an Event of Default (whether or not it is in
the control of the Trustee).
(a) (Payments)
(i) At any time the Available Liquidity Amount is zero,
the Trustee fails to pay an amount payable by it
under this agreement within 10 Business Days of its
due date.
(ii) An amount is available for payment under clause 8 and
the Trustee does not pay that amount.
(b) (INSOLVENCY EVENT) An Insolvency Event occurs:
(i) in relation to the Trust (as if it was a RELEVANT
CORPORATION for the purposes of the definition of
INSOLVENCY EVENT); or
(ii) in relation to the Trustee, and a successor trustee
of the Trust is not appointed with 30 days of that
Insolvency Event.
(c) (TERMINATION DATE) The Termination Date occurs in relation to
the Trust.
(d) (VITIATION) All or any part of this agreement is terminated or
is or becomes void, illegal, invalid or unenforceable.
15.2 CONSEQUENCES
In addition to any other rights provided by law or any Trust Document,
at any time after an Event of Default (whether or not it is continuing)
the Liquidity Provider may do all or any of the following:
(a) by notice to the Trustee and the Trust Manager declare all
moneys actually or contingently owing under this agreement
immediately due and payable, and the Trustee will immediately
pay the Liquidity Outstandings together with accrued interest
and fees
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and all such other moneys; and
(b) by notice to the Trustee and the Trust Manager cancel the
Liquidity Limit with effect from any date specified in that
notice.
16. INTEREST ON OVERDUE AMOUNTS
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16.1 ACCRUAL
Interest accrues on each unpaid amount which is due and payable by the
Trustee under or in respect of this agreement (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 determined by the Liquidity Provider to be the sum
of 2% per annum plus the higher of:
(i) the rate (if any) applicable to the unpaid amount
immediately before the due date; and
(ii) the One Month Bank Bill Rate on the first day of each
Funding Period, plus the Margin.
16.2 PAYMENT
The Trustee shall pay interest accrued under this clause on demand and
on each Payment Date, to the extent that amounts are available for that
purpose under clause 6.10(a)(iii) of the Series Notice.
16.3 LIMITATION
Clause 16.1 will only apply in relation to any unpaid Liquidity Draw
if, at the time the Liquidity Draw was required to be paid, the
aggregate of all Liquidity Draws was equal to or greater than the
Liquidity Limit.
17. CONTROL ACCOUNTS
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The accounts kept by the Liquidity Provider constitute sufficient
evidence, unless proven wrong, of the amount at any time due from the
Trustee under this agreement.
18. WAIVERS, REMEDIES CUMULATIVE
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(a) No failure to exercise and no delay in exercising any right,
power or remedy under this agreement operates as a waiver. Nor
does any single or partial exercise of any right, power or
remedy preclude any other or further exercise of that or any
other right, power or remedy.
(b) The rights, powers and remedies provided to the Liquidity
Provider in this agreement are in addition to, and do not
exclude or limit, any right, power or remedy provided by law.
19. SEVERABILITY OF PROVISIONS
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Any provision of this agreement 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 agreement nor affect the validity or
enforceability of that provision in any other jurisdiction.
20. SURVIVAL OF REPRESENTATIONS
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All representations and warranties in this agreement survive the
execution and delivery of this agreement and the provision of advances
and accommodation.
21. INDEMNITY AND REIMBURSEMENT OBLIGATION
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Unless stated otherwise, each indemnity, reimbursement or similar
obligation in this agreement:
(a) is a continuing obligation;
(b) is a separate and independent obligation;
(c) is payable on demand; and
(d) survives termination or discharge of this agreement.
22. MORATORIUM LEGISLATION
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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 Trustee any
obligation under a Trust Document; or
(b) delays, prevents or prejudicially affects the exercise by the
Liquidity Provider of any right, power or remedy conferred by
this agreement,
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is excluded from this agreement.
23. CONSENTS AND OPINIONS
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Except where expressly stated the Liquidity Provider may give or
withhold, or give conditionally, approvals and consents, may be
satisfied or unsatisfied, may form opinions, and may exercise its
rights, powers and remedies, at its absolute discretion.
24. ASSIGNMENTS
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No party may assign or transfer any of its rights or obligations under
this agreement without the prior written consent of the other parties,
or if the rating of the Notes would be withdrawn or reduced as a result
of the assignment.
25. NOTICES
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All notices, requests, demands, consents, approvals, agreements or
other communications to or by a party to this agreement:
(a) must be in writing;
(b) must be signed by an Authorised Signatory of the sender; and
(c) will be taken to be duly given or made:
(i) (in the case of delivery in person or by post) when
delivered, received or left at the address of the
recipient shown in this agreement or to any other
address which it may have notified the sender;
(ii) (in the case of facsimile transmission) on receipt of
a transmission report confirming successful
transmission; and
(iii) (in the case of a telex) on receipt by the sender of
the answerback code of the recipient at the end 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 4.00 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.
26. AUTHORISED SIGNATORIES
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The Trustee irrevocably authorises the Liquidity Provider to rely on a
certificate by persons purporting to be its directors and/or
secretaries as
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to the identity and signatures of its Authorised Signatories. The
Trustee warrants that those persons have been authorised to give
notices and communications under or in connection with this agreement.
27. GOVERNING LAW AND JURISDICTION
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This agreement is governed by the laws of New South Wales. The Trustee
submits to the non-exclusive jurisdiction of courts exercising
jurisdiction there.
28. COUNTERPARTS
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This agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
29. ACKNOWLEDGEMENT BY TRUSTEE
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The Trustee confirms that:
(a) it has not entered into this agreement in reliance on, or as a
result of, any statement or conduct of any kind of or on
behalf of the Liquidity Provider (including any advice,
warranty, representation or undertaking); and
(b) the Liquidity Provider is not obliged to do anything
(including disclose anything or give advice),
except as expressly set out in this agreement.
30. LIMITED RECOURSE
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30.1 GENERAL
Clause 33 of the Master Trust Deed applies to the obligations and
liabilities of the Trustee and the Trust Manager under this agreement.
30.2 LIABILITY OF TRUSTEE LIMITED TO ITS RIGHT TO INDEMNITY
(a) The Trustee enters into this agreement only in its capacity as
trustee of the Trust and in no other capacity. A liability
arising under or in connection with this agreement 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 agreement and extends to
all liabilities and obligations of the Trustee in any way
connected with any representation, warranty, conduct,
omission,
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agreement or transaction related to this agreement or the
Trust.
(b) The parties other than the Trustee may not sue the Trustee in
any capacity other than as trustee of the Trust or seek the
appointment of a receiver (except under the Security Trust
Deed), or a liquidator, an administrator or any similar person
to the Trustee or prove in any liquidation, administration or
arrangements of or affecting the Trustee.
(c) The provisions of this clause 30 shall not apply to any
obligation or liability of the Trustee to the extent that it
is not satisfied because under a Transaction Document 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.
(d) It is acknowledged that the Trust Manager, the Servicer, the
Currency Swap Providers, the Note Trustee, the Principal
Paying Agent, the other Paying Agents and the Agent Bank (each
a RELEVANT PARTY) are responsible under this agreement and the
other Transaction Documents 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 (c) to the extent to which the act or
omission was caused or contributed to by any failure by any
Relevant Party 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 agreement or the relevant
Transaction Documents, but excluding any Relevant Party) to
fulfil its obligations relating to the Trust or by any other
act or omission of a Relevant Party 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 agreement or the
relevant Transaction Documents, but excluding any Relevant
Party).
(e) No attorney, agent, receiver or receiver and manager appointed
in accordance with this agreement or any other Transaction
Documents (including a Relevant Party) 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 (c), if the
Trustee has exercised reasonable care in the selection and
supervision of such a person.
30.3 UNRESTRICTED REMEDIES
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Nothing in clause 30.2 limits the Liquidity Provider in:
(a) obtaining an injunction or other order to restrain any breach
of this agreement by any party;
(b) obtaining declaratory relief; or
(c) relation to its rights under the Security Trust Deed.
30.4 RESTRICTED REMEDIES
Except as provided in clause 30.3, the Liquidity Provider shall not:
(a) (JUDGMENT) obtain a judgment for the payment of money or
damages by the Trustee;
(b) (STATUTORY DEMAND) issue any demand under s459E(1) of the
Corporations Law (or any analogous provision under any other
law) against the Trustee;
(c) (WINDING UP) apply for the winding up or dissolution of the
Trustee;
(d) (EXECUTION) levy or enforce any distress or other execution
to, on, or against any assets of the Trustee;
(e) (COURT APPOINTED RECEIVER) apply for the appointment by a
court of a receiver to any of the assets of the Trustee;
(f) (SET-OFF OR COUNTERCLAIM) exercise or seek to exercise any
set-off or counterclaim against the Trustee; or
(g) (ADMINISTRATOR) appoint, or agree to the appointment, of any
administrator to the Trustee,
or take proceedings for any of the above and the Liquidity Provider
waives its rights to make those applications and take those
proceedings.
31. LIQUIDITY PROVIDER'S OBLIGATIONS
- ----------------------------------------------------------------
The Trustee shall have no recourse to the Liquidity Provider in
relation to this agreement beyond its terms, and the Liquidity
Provider's obligations under this agreement are separate from, and
independent to, any obligations the Liquidity Provider may have to the
Trustee for any other reason (including under any other Trust
Document).
32. SUCCESSOR TRUSTEE
- ----------------------------------------------------------------
The Liquidity Provider shall do all things reasonably necessary to
enable any successor Trustee appointed under clause 24 of the Master
Trust Deed to become the Trustee under this agreement.
EXECUTED in Sydney.
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SERIES 1999-1G WST TRUST LIQUIDITY FACILITY AGREEMENT
Each attorney executing this agreement states that he has no notice of
revocation or suspension of his power of attorney.
SIGNED on behalf of )
WESTPAC SECURITIES )
ADMINISTRATION LIMITED )
by its attorney )
in the presence of: )
-----------------------------------
Signature
- ----------------------------------------- -----------------------------------
Witness Print name
- -----------------------------------------
Print name
SIGNED on behalf of )
WESTPAC BANKING ) -----------------------------------
CORPORATION ) Signature
by its attorney ) -----------------------------------
in the presence of: ) Print name
-----------------------------------
Signature
- ----------------------------------------- -----------------------------------
Witness Print name
- -----------------------------------------
Print name
SIGNED on behalf of )
WESTPAC SECURITISATION )
MANAGEMENT PTY LIMITED )
by its attorney )
in the presence of: )
-----------------------------------
Signature
- ----------------------------------------- -----------------------------------
Witness Print name
- ----------------------------------------------
Print name
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SERIES 1999-1G WST TRUST LIQUIDITY FACILITY AGREEMENT
ANNEXURE A
DRAWDOWN NOTICE
- ----------------------------------------------------------------
To: Westpac Banking Corporation
LIQUIDITY FACILITY AGREEMENT - DRAWDOWN NOTICE NO. [*]
We refer to the Liquidity Facility Agreement dated [*] 1999 (the FACILITY
AGREEMENT).
Under clause 3.1 of the Liquidity Facility Agreement we give you irrevocable
notice as follows:
(1) we wish to draw on [*] (the DRAWDOWN DATE); [NOTE: DATE IS TO BE A
BUSINESS DAY.]
(2) the total principal amount to be drawn is [*]; [NOTE: AMOUNT TO COMPLY
WITH THE LIMITS IN CLAUSE 3.]
(3) particulars of [each/the] Liquidity Draw are as follows:
PRINCIPAL AMOUNT FUNDING PERIOD
[NOTE: LENGTH OF FUNDING PERIOD TO COMPLY WITH CLAUSE 4.]
(4) we request that the proceeds be remitted to account number [*] at [*];
[NOTE: THE ACCOUNT(S) TO BE COMPLETED ONLY IF FUNDS NOT REQUIRED IN
REPAYMENT OF ANY PREVIOUS LIQUIDITY DRAW(S).]
(5) we represent and warrant that no Event of Default under the Facility
Agreement subsists or will result from the drawing.
Definitions in the Facility Agreement apply in this Drawdown Notice.
WESTPAC SECURITIES ADMINISTRATION LIMITED as trustee of the
Series 1999-1G WST Trust
By: [Authorised Signatory]
DATED
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SERIES 1999-1G WST TRUST LIQUIDITY FACILITY AGREEMENT
ANNEXURE B
VERIFICATION CERTIFICATE
- ----------------------------------------------------------------
To: Westpac Banking Corporation
LIQUIDITY FACILITY AGREEMENT
I [*] am a [director] of Westpac Securities Administration
Limited
(the COMPANY).
I refer to the Liquidity Facility Agreement (the FACILITY AGREEMENT) dated [*]
1999 between the Company as Trustee, Westpac Banking Corporation and Westpac
Securitisation Management Pty Limited.
Definitions in the Facility Agreement apply in this Certificate.
I CERTIFY as follows.
1. Attached to this Certificate are complete and up to date copies of:
(a) unless paragraph 2 below applies, the constitution of the
Company (marked A); and
(b) a power of attorney granted by the Company for the execution
of the Facility Agreement 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. If the constitution of the Company is not attached to this certificate,
there has been no change to them since the Company last gave a
certified copy of them to Westpac Banking Corporation.
3. The following are signatures of the Authorised Signatories of the
Company and the persons who have been authorised to sign the Facility
Agreement and to give notices and communications under or in connection
with the Facility Agreement. If no signatures are set out below, the
Authorised Signatories with respect to the Facility Agreement are the
same as in relation to the Series 1998-1G WST Trust, a copy of those
signatures having previously been provided to Westpac Banking
Corporation.
AUTHORISED SIGNATORIES
NAME POSITION SIGNATURE
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SERIES 1999-1G WST TRUST LIQUIDITY FACILITY AGREEMENT
* *
* *
* *
SIGNATORIES
NAME POSITION SIGNATURE
* *
* *
* *
Signed:
Director
Print name
DATED
- --------------------------------------------------------------------------------
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<PAGE>
Exhibit 10.4
[GRAPHIC OMITTED]
SERIES 1999-1G WST TRUST REDRAW FACILITY AGREEMENT
- -------------------------------------------------------------------
<PAGE>
[GRAPHIC OMITTED]
WESTPAC SECURITIES ADMINISTRATION LIMITED
(Trustee)
WESTPAC BANKING CORPORATION
(Redraw Facility Provider)
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED
(Trust Manager)
<PAGE>
[GRAPHIC OMITTED]
ALLEN ALLEN & HEMSLEY
The Chifley Tower
2 Chifley Square
Sydney NSW 2000
Australia
Tel 61 2 9230 4000
Fax 61 2 9230 5333
(C) Copyright Allen Allen & Hemsley 1999
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ALLEN ALLEN
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SERIES 1999-1G WST TRUST REDRAW FACILITY AGREEMENT
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Master Trust Deed definitions 3
1.3 Interpretation 3
1.4 Determination, statement and certificate
sufficient evidence 3
1.5 Transaction Document 3
1.6 Limited to Trust 4
2. PURPOSE 4
3. DRAWINGS 4
3.1 Redraw Advance 4
3.2 Making of Redraw Advances 4
4. FEES 5
4.1 Availability fee 5
4.2 Draw Fee 5
4.3 Capitalisation 5
5. CANCELLATION OF REDRAW LIMIT 6
5.1 During Term 6
5.2 At end of Term 6
5.3 Cancellation by Redraw Facility Provider 6
6. REPAYMENT 6
6.1 Repayment of Redraw Advances 6
6.2 Final repayment 7
7. PREPAYMENTS 7
7.1 Voluntary prepayments 7
7.2 Draw Fee 7
7.3 Limitation on prepayments 7
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SERIES 1999-1G WST TRUST REDRAW FACILITY AGREEMENT
8. PAYMENTS 7
8.1 Manner 7
8.2 Payment to be made on Business Day 7
8.3 Appropriation where insufficient moneys
available 8
9. CHANGES IN LAW 8
9.1 Additional payments 8
9.2 Minimisation 9
9.3 Survival 9
10. CONDITIONS PRECEDENT 9
10.1 Conditions precedent to initial Drawdown
Notice 9
10.2 Conditions precedent to each Redraw Advance 10
11. REPRESENTATIONS AND WARRANTIES 10
11.1 Representations and warranties 10
11.2 Reliance on representations and warranties 12
12. UNDERTAKINGS 12
12.1 General undertakings 12
12.2 Undertakings relating to Trust 13
12.3 Term of undertakings 13
13. EVENTS OF DEFAULT 14
13.1 Events of Default 14
13.2 Consequences 14
14. CONTROL ACCOUNTS 14
15. WAIVERS, REMEDIES CUMULATIVE 14
16. SEVERABILITY OF PROVISIONS 15
17. SURVIVAL OF REPRESENTATIONS 15
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SERIES 1999-1G WST TRUST REDRAW FACILITY AGREEMENT
18. INDEMNITY AND REIMBURSEMENT OBLIGATION 15
19. MORATORIUM LEGISLATION 15
20. CONSENTS AND OPINIONS 16
21. ASSIGNMENTS 16
22. NOTICES 16
23. AUTHORISED SIGNATORIES 16
24. GOVERNING LAW AND JURISDICTION 17
25. COUNTERPARTS 17
26. ACKNOWLEDGEMENT BY TRUSTEE 17
27. LIMITED RECOURSE 17
27.1 General 17
27.2 Liability of Trustee limited to its right to
indemnity 17
27.3 Unrestricted remedies 18
27.4 Restricted remedies 18
28. REDRAW FACILITY PROVIDER'S OBLIGATIONS 19
29. SUCCESSOR TRUSTEE 19
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SERIES 1999-1G WST TRUST REDRAW FACILITY AGREEMENT
DATE 1999
- -------------
PARTIES
- -------------
1. WESTPAC SECURITIES ADMINISTRATION LIMITED (ACN 000 049 472)
incorporated in New South Wales of Level 10, 130 Pitt Street,
Sydney, New South Wales as Trustee of the Series 1999-1G WST
Trust (the TRUSTEE);
2. WESTPAC BANKING CORPORATION (ARBN 007 457 141) incorporated in
New South Wales of 60 Martin Place, Sydney, New South Wales
(the REDRAW FACILITY PROVIDER); and
3. WESTPAC SECURITISATION MANAGEMENT PTY LIMITED (ACN 081 709
211) incorporated in the Australian Capital Territory, of
Level 25, 60 Martin Place, Sydney, New South Wales (the TRUST
MANAGER).
RECITALS
- -------------
The Trustee has requested the Redraw Facility Provider to
provide the Trustee with a redraw facility under which loans
of up to an aggregate amount of $30,000,000 may be made
available to the Trustee.
- --------------------------------------------------------------------------------
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
- ----------------------------------------------------------------
1.1 DEFINITIONS
In this agreement the following definitions apply unless the context
requires otherwise, or unless otherwise defined.
AVAILABLE REDRAW AMOUNT means at any time the greater of:
(a) the Redraw Limit at the time less:
(i) the Principal Outstanding at that time;
(ii) the Carryover Redraw Charge Offs at that time; and
(b) zero.
BANK BILL RATE has the meaning given in the Series Notice, but on the
first Reset Date of any Redraw Advance the BANK BILL RATE shall be an
interpolated rate calculated with reference to the tenor of the period
from that Reset Date to (but not including) the next Reset Date.
DRAWDOWN DATE means, in relation to a Redraw Advance, the Payment Date
on which the Redraw Advance is or is to be made under this agreement.
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SERIES 1999-1G WST TRUST REDRAW FACILITY AGREEMENT
DRAWDOWN NOTICE means a notice under clause 3.1.
EVENT OF DEFAULT means any of the events specified in clause 13.
FINAL REPAYMENT DATE means the date on which the Term ends.
MASTER TRUST DEED means the deed entitled "Master Trust Deed" between
the Trustee and the Trust Manager dated 14 February 1997.
PRINCIPAL OUTSTANDING means, at any time, the total principal amount of
all outstanding Redraw Advances at that time less the Carryover Redraw
Charge Offs at that time.
REDRAW ADVANCE means any advance made or to be made under this
agreement.
REDRAW LIMIT means $30,000,000, or any other amount as agreed in
writing between the Redraw Facility Provider, the Trustee and the Trust
Manager, as reduced or cancelled under this agreement, provided that
the Redraw Limit may not be increased unless the Designated Rating
Agency for each Class of Notes has confirmed in writing that the
increase would not result in a downgrading of the rating given to any
Note of the relevant Class or the withdrawal of the rating of any Note
of the relevant Class.
RESET DATE means in relation to a Redraw Advance:
(a) the Drawdown Date for that Redraw Advance; and
(b) each Payment Date while that Redraw Advance is outstanding.
SERIES NOTICE means the Series Notice issued by the Trust Manager under
the Master Trust Deed on or about the date of this agreement.
TERM means the period commencing on the date of this agreement and
expiring on the earliest of:
(a) the date which is one month after the Notes have been redeemed
in full in accordance with the Master Trust Deed and the
Series Notice;
(b) the date declared by the Redraw Facility Provider under clause
13.2(b);
(c) the date on which the Trustee enters into a redraw facility to
replace this agreement with any other person to enable it to
fund Redraw Shortfalls;
(d) at the election of the Redraw Facility Provider, the date on
which Westpac Securitisation Management Pty Limited retires or
is removed as Trust Manager under the Master Trust Deed;
(e) the date on which the Redraw Limit is cancelled in full by the
Trustee under clause 5.1;
(f) the date which is one year after the Maturity Date; and
(g) the date on which the Redraw Limit is cancelled in full by the
Redraw
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SERIES 1999-1G WST TRUST REDRAW FACILITY AGREEMENT
Facility Provider under clause 5.3.
TRUST means the Series 1999-1G WST Trust constituted under the Master
Trust Deed on the terms of the Series Notice.
TRUST DOCUMENT means:
(a) this agreement;
(b) the Master Trust Deed;
(c) the Notice of Creation of Trust;
(d) the Series Notice;
(e) the Note Trust Deed;
(f) the Agency Agreement;
(g) the Security Trust Deed; and
(h) the Servicing Agreement.
TRUSTEE means the trustee of the Trust at the date of this agreement or
any person which becomes a successor trustee under clause 24 of the
Master Trust Deed.
1.2 MASTER TRUST DEED DEFINITIONS
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 agreement, unless the context otherwise requires or unless
otherwise defined in this agreement.
1.3 INTERPRETATION
Clause 1.2 of the Master Trust Deed applies to this agreement as if set
out in full, except that references to THIS DEED are references to THIS
AGREEMENT 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 Redraw Facility Provider; and
(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.
1.4 DETERMINATION, STATEMENT AND CERTIFICATE SUFFICIENT EVIDENCE
Except where otherwise provided in this agreement any determination,
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SERIES 1999-1G WST TRUST REDRAW FACILITY AGREEMENT
statement or certificate by the Redraw Facility Provider or an
Authorised Signatory of the Redraw Facility Provider provided for in
this agreement is sufficient evidence unless proven wrong.
1.5 TRANSACTION DOCUMENT
This agreement is a TRANSACTION DOCUMENT for the purposes of the Master
Trust Deed.
1.6 LIMITED TO TRUST
The rights and obligations of the parties under this agreement relate
only to the Trust, and do not relate to any other Trust (as defined in
the Master Trust Deed). Without limitation, the Redraw Facility
Provider has no obligation under this agreement to provide financial
accommodation to the Trustee as trustee of any other such Trust.
2. PURPOSE
- ----------------------------------------------------------------
The Trust Manager directs to the Trustee to, and the Trustee shall,
apply the proceeds of each Redraw Advance to fund Redraw Shortfalls in
relation to the Trust by paying it to Westpac in accordance with clause
6.3 of the Series Notice, and for no other purpose.
3. DRAWINGS
- ----------------------------------------------------------------
3.1 REDRAW ADVANCE
(a) Subject to this agreement, if on any Determination Date the
Trust Manager determines that there is a Redraw Shortfall in
relation to the Collection Period ending immediately prior to
that Determination Date the Trust Manager must, and the
Trustee shall (subject to this agreement and the Series
Notice), direct the Trustee to request a Redraw Advance by
giving to the Redraw Facility Provider a Drawdown Notice.
(b) A Drawdown Notice must be:
(i) in writing;
(ii) in or substantially in the form of Annexure A;
(iii) signed by the Trustee; and
(iv) given not later than 11.00 am (Sydney time) on the
Remittance Date following that Collection Period.
(c) The amount requested in a Drawdown Notice must be the lesser
of:
(i) the relevant Redraw Shortfall; and
(ii) the Available Redraw Amount at that time (but
assuming the
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SERIES 1999-1G WST TRUST REDRAW FACILITY AGREEMENT
repayment of all Redraw Advances due to be repaid on
or before the relevant Drawdown Date).
3.2 MAKING OF REDRAW ADVANCES
(a) Subject to the terms of this agreement, a Redraw Advance
requested in a Drawdown Notice shall be made available by the
Redraw Facility Provider paying the proceeds of that Redraw
Advance to Westpac.
(b) The Redraw Facility Provider is not obliged to provide a
Redraw Advance to the extent that the aggregate of Principal
Outstanding and the Carryover Redraw Charge Offs would exceed
the Redraw Limit.
4. FEES
- ----------------------------------------------------------------
4.1 AVAILABILITY FEE
(a) An availability fee accrues at [0.02%] per annum on the daily
amount of the Available Redraw Amount (if any) due from day to
day from the date of this agreement.
(b) The availability fee is calculated on the actual number of
days elapsed and a year of 365 days.
(c) The Trust Manager directs the Trustee to, and the Trustee
shall, pay to the Redraw Facility Provider any accrued
availability fee in arrear on:
(i) each Payment Date; and
(ii) at the end of the Term.
4.2 DRAW FEE
(a) A draw fee accrues due from day to day on the daily amount of
each Redraw Advance at the following rates:
(i) the sum of [0.12%] per annum and the Bank Bill Rate
calculated as of that date (if that date is a Reset
Date) or (otherwise) the Reset Date immediately
before that date, if the Redraw Advance has been
outstanding for less than 12 months; and
(ii) the sum of [0.22%] per annum and the Bank Bill Rate
calculated as of that date (if that date is a Reset
Date) or (otherwise) the Reset Date immediately
before that date, if the Redraw Advance has been
outstanding for 12 months or more.
(b) Each draw fee is calculated on the actual number of days
elapsed and a
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SERIES 1999-1G WST TRUST REDRAW FACILITY AGREEMENT
year of 365 days.
(c) The Trust Manager directs the Trustee to, and the Trustee
shall, pay to the Redraw Facility Provider any accrued draw
fee in arrear on:
(i) each Payment Date; and
(ii) at the end of the Term.
(d) The Bank Bill Rate as at any date will be the Bank Bill Rate
determined:
(i) if that date is a Payment Date, on that Payment Date;
and
(ii) on any other date, on the Payment Date immediately
preceding that date.
4.3 CAPITALISATION
Any draw fee payable under this clause 4 which is not paid when due
will immediately be capitalised. The draw fee is payable on any
capitalised amount at the rate and in the manner referred to in this
clause 4, even if the Term has expired.
5. CANCELLATION OF REDRAW LIMIT
- ----------------------------------------------------------------
5.1 DURING TERM
(a) On giving not less than 5 Business Days irrevocable notice to
the Redraw Facility Provider the Trustee may cancel all or
part of the Redraw Limit during the Term.
(b) A partial cancellation must be in a minimum of $100,000 and a
whole multiple of $10,000 unless the Redraw Facility Provider
agrees
otherwise.
5.2 AT END OF TERM
At the close of business (Sydney time) on the last day of the Term the
Redraw Limit will be cancelled.
5.3 CANCELLATION BY REDRAW FACILITY PROVIDER
(a) The Redraw Facility Provider may cancel all or part of the
Redraw Limit during the Term immediately on giving notice to
the Trustee and the Trust Manager. The Redraw Limit shall be
reduced by the amount of that cancellation on that notice.
(b) On each Payment Date following that cancellation, the Trustee
shall pay to the Redraw Facility Provider the lesser of:
(i) an amount equal to the Principal Outstanding at that
Payment Date less the Redraw Limit at that Payment
Date (if positive); and
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(ii) any amount available for distribution to the Redraw
Facility Provider under clauses 6.10(a)(v) and
6.13(a)(ii) of the Series Notice.
(c) Repayments under paragraph (b) will be applied against Redraw
Advances in chronological order of their Drawdown Dates.
(d) This clause does not affect the Redraw Facility Provider's
rights under clause 13 of this agreement or under clause
6.11(a)(ii)(D) of the Series Notice.
6. REPAYMENT
- ----------------------------------------------------------------
6.1 REPAYMENT OF REDRAW ADVANCES
The Trustee shall repay the Principal Outstanding on each Payment Date
and at the end of the Term, to the extent that amounts are available
for that purpose under clause 6.13(a)(ii) of the Series Notice. Those
repayments will be applied against Redraw Advances in chronological
order of their Drawdown Dates.
6.2 FINAL REPAYMENT
If following the Final Repayment Date, any Principal Outstanding or
Carryover Redraw Charge Off has not been repaid after the distribution
of all Assets of the Trust in accordance with the Series Notice, that
Principal Outstanding or Carryover Redraw Charge Off will be cancelled
and the Trustee will have no further obligation to pay that amount
under this agreement.
7. PREPAYMENTS
- ----------------------------------------------------------------
7.1 VOLUNTARY PREPAYMENTS
The Trustee may prepay all or part of the Principal Outstanding with
the consent of the Redraw Facility Provider and on at least 5 Business
Days' notice. The Trustee shall prepay in accordance with that notice.
7.2 DRAW FEE
When the Trustee prepays any amount of the Principal Outstanding, it
shall also pay any draw fee accrued on that amount.
7.3 LIMITATION ON PREPAYMENTS
The Trustee may not prepay all or any part of the Principal Outstanding
except as set out in this agreement.
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8. PAYMENTS
- ----------------------------------------------------------------
8.1 MANNER
The Trustee shall make all payments under this agreement:
(a) by cheque, electronic funds transfer or other agreed method to
the Redraw Facility Provider at its address for service of
notices or by transfer of immediately available funds to the
account specified by the Redraw Facility Provider and, in
either case, by 4.00 pm (Sydney time) on the due date; and
(b) without set-off, counterclaim or other deduction, except any
compulsory deduction for Tax; and
(c) in accordance with the directions of the Trust Manager, Master
Trust Deed and the Series Notice.
8.2 PAYMENT TO BE MADE ON BUSINESS DAY
If any payment is due on a day which is not a Business Day, the due
date will be the next Business Day.
8.3 APPROPRIATION WHERE INSUFFICIENT MONEYS AVAILABLE
Subject to any express provision of this agreement, the Redraw Facility
Provider may appropriate amounts it receives as between principal, draw
fees, interest and other amounts then payable as it sees fit. This will
override any appropriation made by the Trustee.
9. CHANGES IN LAW
- ----------------------------------------------------------------
9.1 ADDITIONAL PAYMENTS
Whenever the Redraw Facility Provider determines that:
(a) the effective cost to the Redraw Facility Provider of making,
funding or maintaining any Redraw Advance or the Redraw Limit
is increased in any way;
(b) any amount paid or payable to the Redraw Facility Provider or
received or receivable by the Redraw Facility Provider, or the
effective return to the Redraw Facility Provider, under or in
respect of this agreement is reduced in any way;
(c) the return of the Redraw Facility Provider on the capital
which is or becomes directly or indirectly allocated by the
Redraw Facility Provider to any Redraw Advance or the Redraw
Limit is reduced in any way; or
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(d) to the extent any relevant law, official directive or request
relates to or affects the Redraw Limit, any Redraw Advance or
this agreement, the overall return on capital of the Redraw
Facility Provider or any of its holding companies is reduced
in any way,
as a result of any change in, any making of or any change in the
interpretation or application by any Government Agency of, any law,
official directive or request, then:
(e) (when it has calculated the effect of the above and the amount
to be charged to the Trustee under this clause) the Redraw
Facility Provider shall promptly notify the Trust Manager and
the Trustee; and
(f) on the following Payment Date from time to time the Trustee
shall, subject to clause 6 of the Series Notice, pay for the
account of the Redraw Facility Provider the amount certified
by an Authorised Signatory of the Redraw Facility Provider to
be necessary to compensate the Redraw Facility Provider for
the increased cost or the reduction (from the date of the
notice).
Without limiting the above in any way, this clause applies:
(g) to any law, official directive or request with respect to
Taxation (other than any Tax on the net income of any person)
or reserve, liquidity, capital adequacy, special deposit or
similar requirements;
(h) to official directives or requests which do not have the force
of law where it is the practice of responsible bankers or
financial institutions in the country concerned to comply with
them; and
(i) where the increased cost or the reduction arises because the
Redraw Facility Provider is restricted in its capacity to
enter other transactions, is required to make a payment, or
forgoes or earns reduced interest or other return on any
capital or on any sum calculated by reference in any way to
the amount of any Redraw Advance, the Redraw Limit or to any
other amount paid or payable or received or receivable under
this agreement or allocates capital to any such sum.
9.2 MINIMISATION
(a) (NO DEFENCE) If the Redraw Facility Provider has acted in good
faith it will not be a defence that any cost, reduction or
payment referred to in this clause could have been avoided.
(b) (MINIMISATION) The Redraw Facility Provider shall use
reasonable endeavours to minimise any cost, reduction or
payment referred to in this clause.
9.3 SURVIVAL
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This clause survives the repayment of any relevant Redraw Advance and
the termination of this agreement.
10. CONDITIONS PRECEDENT
- ----------------------------------------------------------------
10.1 CONDITIONS PRECEDENT TO INITIAL DRAWDOWN NOTICE
The right of the Trustee to give the initial Drawdown Notice and the
obligations of the Redraw Facility Provider under this agreement are
subject to the condition precedent that the Redraw Facility Provider
receives all of the following in form and substance satisfactory to the
Redraw Facility Provider:
(a) (VERIFICATION CERTIFICATE) a certificate in relation to the
Trustee given by a director of the Trustee substantially in
the form of annexure B with the attachments referred to and
dated not earlier than 14 days before the first Drawdown Date;
(b) (TRUST DOCUMENTS) a certified copy of each duly executed and
(where relevant) stamped Trust Document;
(c) (MASTER TRUST DEED CONDITIONS PRECEDENT) evidence that the
conditions precedent referred to in clause 13 of the Master
Trust Deed have been satisfied;
(d) (SECURITY TRUST DEED) evidence that the Security Trust Deed
has been or will be registered with each relevant Governmental
Agency free from all prior Security Interests and third party
rights and interests; and
(e) (NOTES) evidence that the Notes have been issued.
10.2 CONDITIONS PRECEDENT TO EACH REDRAW ADVANCE
The obligations of the Redraw Facility Provider to make available each
Redraw Advance are subject to the further conditions precedent that:
(a) (NO DEFAULT) no Event of Default subsists at the date of the
relevant Drawdown Notice and the relevant Drawdown Date or
will result from the provision of the Redraw Advance; and
(b) (REPRESENTATIONS TRUE) the representations and warranties by
the Trustee in this agreement 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.
11. REPRESENTATIONS AND WARRANTIES
- ----------------------------------------------------------------
11.1 REPRESENTATIONS AND WARRANTIES
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The Trustee (in its capacity as trustee of the Trust) makes the
following representations and warranties (so far as they relate to the
Trust).
(a) (STATUS) It is a corporation validly existing under the laws
of the place of its incorporation specified in this agreement.
(b) (POWER) It has the power to enter into and perform its
obligations under the Trust Documents to which it is expressed
to be a party, to carry out the transactions contemplated by
those documents and to carry on its business as now conducted
or contemplated.
(c) (CORPORATE AUTHORISATIONS) It has taken all necessary
corporate action to authorise the entry into and performance
of the Trust Documents to which it is expressed to be a party,
and to carry out the transactions contemplated by those
documents.
(d) (DOCUMENTS BINDING) Each Trust Document to which it is
expressed to be a party is its valid and binding obligation
enforceable in accordance with its terms, subject to any
necessary stamping and registration and to laws, defences and
principles of equity generally affecting creditors' rights.
(e) (TRANSACTIONS PERMITTED) The execution and performance by it
of the Trust Documents to which it is expressed to be a party
and each transaction contemplated under those documents do not
violate in any respect a provision of:
(i) a law or treaty or a judgment, ruling, order or
decree of a Government Body binding on it;
(ii) its constitution or other constituent documents; or
(iii) any other document or agreement which is binding on
it or its assets,
and, except as provided by the Trust Documents, did not and
will not:
(iv) create or impose a Security Interest on any of its
assets; or
(v) allow a person to accelerate or cancel an obligation
with respect to any indebtedness in respect of
financial accommodation, or constitute an event of
default, cancellation event, prepayment event or
similar event (whatever called) under an agreement
relating to any such indebtedness, whether
immediately or after notice or lapse of time or both.
(f) (AUTHORISATIONS) Each Authorisation which is required in
relation to:
(i) the execution, delivery and performance by it of the
Trust Documents to which it is expressed to be a
party and the transactions contemplated by those
documents;
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SERIES 1999-1G WST TRUST REDRAW FACILITY AGREEMENT
(ii) the validity and enforceability of those documents;
and
(iii) its business as now conducted or contemplated and
which is material,
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.
(g) (NO MISREPRESENTATION) All information provided by it
to the Redraw Facility Provider is true in all
material respects at the date of this agreement or,
if later, when provided.
(h) (AGREEMENTS DISCLOSED) Each document or agreement to
which it is a party and which is material to the
Trust Documents or which has the effect of varying a
Trust Document has been disclosed to the Redraw
Facility Provider in writing.
(i) (TRUST) The Trust has been validly created and is in
existence at the date of this agreement.
(j) (TRUST POWER) It is empowered by the Master Trust
Deed:
(i) to enter into and perform the Trust
Documents to which it is expressed to be a
party and to carry on the transactions
contemplated by those documents; and
(ii) to carry on the business of the Trust and to
own Assets of the Trust,
in its capacity as trustee of the Trust. There is no
restriction on or condition of its doing so.
(k) (TRUST AUTHORISATIONS) All necessary resolutions have
been duly passed and all consents, approvals and
other procedural matters have been obtained or
attended to as required by the Master Trust Deed for
it to enter into and perform the Trust Documents to
which it is expressed to be a party.
(l) (SOLE TRUSTEE) It has been validly appointed as
trustee of the Trust and is the sole trustee of the
Trust.
(m) (REMOVAL) No notice has been given to it, and so far
as it is aware no resolution has been passed or
direction or notice has been given removing it as
trustee of the Trust.
(n) (NO RESETTLEMENT) Other than as permitted by the
Trust Documents, it has not taken any action that
will cause the property of the Trust to be
re-settled, set aside or transferred to any other
trust.
(o) (NO TERMINATION) It has not taken any action that
will cause the Trust to be terminated, nor has it
taken any action that will result in the vesting of
the Assets of the Trust.
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(p) (RIGHT OF INDEMNITY) It has not taken any action
which will limit its right of indemnity out of, and
lien over, the Assets of the Trust.
(q) (COMPLIANCE WITH MASTER TRUST DEED) It has complied
with its obligations and duties under the Master
Trust Deed, the Series Notice and (to the best of its
knowledge and belief) at law. No one has alleged that
it has not so complied.
11.2 RELIANCE ON REPRESENTATIONS AND WARRANTIES
The Trustee acknowledges that the Redraw Facility Provider has entered
the Trust Documents in reliance on the representations and warranties
in this clause.
12. UNDERTAKINGS
- ----------------------------------------------------------------
12.1 GENERAL UNDERTAKINGS
Each of the Trustee and the Trust Manager undertake to the Redraw
Facility Provider as follows in relation to the Trust, except to the
extent that the Redraw Facility Provider consents.
(a) (AUTHORISATIONS) It will ensure that each Authorisation
required for:
(i) the execution, delivery and performance by it of the
Trust Documents to which it is expressed to be a
party and the transactions contemplated by those
documents;
(ii) the validity and enforceability of those documents;
and
(iii) the carrying on by it of its business as now
conducted or contemplated,
is obtained and promptly renewed and maintained in full force
and effect. It will pay all applicable fees for them. It will
provide copies promptly to the Redraw Facility Provider when
they are obtained or renewed.
(b) (NEGATIVE PLEDGE) It will not create or allow to exist a
Security Interest over the Assets of the Trust other than:
(i) under the Trust Documents; or
(ii) a lien arising by operation of law in the ordinary
course of day-to-day trading and not securing
indebtedness in respect of financial accommodation
where it duly pays the indebtedness secured by that
lien other than indebtedness contested in good faith.
(c) (COMPLY WITH OBLIGATIONS) It will duly and punctually comply
with its obligations under the Trust Documents.
(d) (NOTICE TO REDRAW FACILITY PROVIDER) It will notify the Redraw
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Facility Provider as soon as it becomes aware of:
(i) any Event of Default; and
(ii) any proposal by a Government Agency to acquire
compulsorily any Assets of the Trust.
12.2 UNDERTAKINGS RELATING TO TRUST
The Trustee, as trustee of the Trust, undertakes to the Redraw Facility
Provider as follows, except to the extent that the Redraw Facility
Provider consents.
(a) (AMENDMENT TO MASTER TRUST DEED) It will not consent to any
amendment to the Master Trust Deed, the Series Notice or any
other Trust Document would change:
(i) the basis upon which the amount of any Redraw Advance
to be made is calculated;
(ii) the entitlement of the Trustee to request any Redraw
Advance; or
(iii) the basis of calculation or order of application of
any amount to be paid or applied under clause 6 of
the Series Notice.
(b) (RESETTLEMENT) It will not take any action that will be result
in a resettlement, setting aside or transfer of any asset of
the Trust other than a transfer which complies with the Master
Trust Deed, the Series Notice and the other Trust Documents.
(c) (NO ADDITIONAL TRUSTEE) It will act continuously as trustee of
the Trust in accordance with the Master Trust Deed until the
Trust has been terminated or until it has retired or been
removed in accordance with the Master Trust Deed.
12.3 TERM OF UNDERTAKINGS
Each undertaking in this clause continues from the date of this
agreement until all moneys actually or contingently owing under this
agreement are fully and finally repaid.
13. EVENTS OF DEFAULT
- ----------------------------------------------------------------
13.1 EVENTS OF DEFAULT
Each of the following is an Event of Default (whether or not it is in
the control of the Trustee).
(a) (PAYMENTS) An amount is available for payment under clause 6
and the Trustee does not pay that amount within 10 Business
Days of its due date.
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(b) (INSOLVENCY EVENT) An Insolvency Event occurs:
(i) in relation to the Trust (as if it was a RELEVANT
CORPORATION for the purposes of the definition of
INSOLVENCY EVENT); or
(ii) in relation to the Trustee, and a successor trustee
of the Trust is not appointed with 30 days of that
Insolvency Event.
(c) (TERMINATION DATE) The Termination Date occurs in relation to
the Trust.
(d) (ENFORCEMENT OF SECURITY TRUST DEED) 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).
13.2 CONSEQUENCES
In addition to any other rights provided by law or any Trust Document,
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:
(a) by notice to the Trustee and the Trust Manager declare all
moneys actually or contingently owing under this agreement
immediately due and payable, and the Trustee will immediately
pay the Principal Outstanding together with accrued interest
and fees and all such other moneys; and
(b) by notice to the Trustee and the Trust Manager cancel the
Redraw Limit with effect from any date specified in that
notice.
14. CONTROL ACCOUNTS
- ----------------------------------------------------------------
The accounts kept by the Redraw Facility Provider constitute sufficient
evidence, unless proven wrong, of the amount at any time due from the
Trustee under this agreement.
15. WAIVERS, REMEDIES CUMULATIVE
- ----------------------------------------------------------------
(a) No failure to exercise and no delay in exercising any right,
power or remedy under this agreement operates as a waiver. Nor
does any single or partial exercise of any right, power or
remedy preclude any other or further exercise of that or any
other right, power or remedy.
(b) The rights, powers and remedies provided to the Redraw
Facility Provider in this agreement are in addition to, and do
not exclude or limit, any right, power or remedy provided by
law.
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16. SEVERABILITY OF PROVISIONS
- ----------------------------------------------------------------
Any provision of this agreement 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 agreement nor affect the validity or
enforceability of that provision in any other jurisdiction.
17. SURVIVAL OF REPRESENTATIONS
- ----------------------------------------------------------------
All representations and warranties in this agreement survive the
execution and delivery of this agreement and the provision of advances
and accommodation.
18. INDEMNITY AND REIMBURSEMENT OBLIGATION
- ----------------------------------------------------------------
Unless stated otherwise, each indemnity, reimbursement or similar
obligation in this agreement:
(a) is a continuing obligation;
(b) is a separate and independent obligation;
(c) is payable on demand; and
(d) survives termination or discharge of this agreement.
19. 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 Trustee any
obligation under a Trust Document; or
(b) delays, prevents or prejudicially affects the exercise by the
Redraw Facility Provider of any right, power or remedy
conferred by this agreement, is excluded from this agreement.
20. CONSENTS AND OPINIONS
- ----------------------------------------------------------------
Except where expressly stated the Redraw Facility Provider may give or
withhold, or give conditionally, approvals and consents, may be
satisfied or unsatisfied, may form opinions, and may exercise its
rights, powers and remedies, at its absolute discretion.
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SERIES 1999-1G WST TRUST REDRAW FACILITY AGREEMENT
21. ASSIGNMENTS
- ----------------------------------------------------------------
Neither party may assign or transfer any of its rights or obligations
under this agreement without the prior written consent of the other
party, or if the rating of the Notes would be withdrawn or reduced as a
result of the assignment.
22. NOTICES
- ----------------------------------------------------------------
All notices, requests, demands, consents, approvals, agreements or
other communications to or by a party to this agreement:
(a) must be in writing;
(b) must be signed by an Authorised Signatory of the sender; and
(c) will be taken to be duly given or made:
(i) (in the case of delivery in person or by post) when
delivered, received or left at the address of the
recipient shown in this agreement or to any other
address which it may have notified the sender;
(ii) (in the case of facsimile transmission) on receipt of
a transmission report confirming successful
transmission; and
(iii) (in the case of a telex) on receipt by the sender of
the answerback code of the recipient at the end 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 4.00 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.
23. AUTHORISED SIGNATORIES
- ----------------------------------------------------------------
The Trustee irrevocably authorises the Redraw Facility Provider to rely
on a certificate by persons purporting to be its directors and/or
secretaries as to the identity and signatures of its Authorised
Signatories. The Trustee warrants that those persons have been
authorised to give notices and communications under or in connection
with this agreement.
24. GOVERNING LAW AND JURISDICTION
- ----------------------------------------------------------------
This agreement is governed by the laws of New South Wales. The
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Trustee submits to the non-exclusive jurisdiction of courts exercising
jurisdiction there.
25. COUNTERPARTS
- ----------------------------------------------------------------
This agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
26. ACKNOWLEDGEMENT BY TRUSTEE
- ----------------------------------------------------------------
The Trustee confirms that:
(a) it has not entered into this agreement in reliance on, or as a
result of, any statement or conduct of any kind of or on
behalf of the Redraw Facility Provider (including any advice,
warranty, representation or undertaking); and
(b) the Redraw Facility Provider is not obliged to do anything
(including disclose anything or give advice), except as
expressly set out in this agreement.
27. LIMITED RECOURSE
- ----------------------------------------------------------------
27.1 GENERAL
Clause 33 of the Master Trust Deed applies to the obligations and
liabilities of the Trustee and the Trust Manager under this agreement.
27.2 LIABILITY OF TRUSTEE LIMITED TO ITS RIGHT TO INDEMNITY
(a) The Trustee enters into this agreement only in its capacity as
trustee of the Trust and in no other capacity. A liability
arising under or in connection with this agreement 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 agreement 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 agreement
or the Trust.
(b) The parties other than the Trustee may not sue the Trustee in
any capacity other than as trustee of the Trust or seek the
appointment of a receiver (except under the Security Trust
Deed), or a liquidator, an administrator or any similar person
to the Trustee or prove in any liquidation, administration or
arrangements of or affecting the Trustee.
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(c) The provisions of this clause 3 shall not apply to any
obligation or liability of the Trustee to the extent that it
is not satisfied because under a Transaction Document 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.
(d) It is acknowledged that the Trust Manager, the Servicer, the
Currency Swap Providers, the Note Trustee, the Principal
Paying Agent, the other Paying Agents and the Agent Bank (each
a RELEVANT PARTY) are responsible under this agreement and the
other Transaction Documents 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 (c) to the extent to which the act or
omission was caused or contributed to by any failure by any
Relevant Party 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 agreement or the relevant
Transaction Documents, but excluding any Relevant Party) to
fulfil its obligations relating to the Trust or by any other
act or omission of a Relevant Party 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 agreement or the
relevant Transaction Documents, but excluding any Relevant
Party).
(e) No attorney, agent, receiver or receiver and manager appointed
in accordance with this agreement or any other Transaction
Documents (including a Relevant Party) 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 (c), if the
Trustee has exercised reasonable care in the selection and
supervision of such a person.
27.3 UNRESTRICTED REMEDIES
Nothing in clause 27.2 limits the Redraw Facility Provider in:
(a) obtaining an injunction or other order to restrain any breach
of this agreement by any party;
(b) obtaining declaratory relief; or
(c) in relation to its rights under the Security Trust Deed.
27.4 RESTRICTED REMEDIES
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SERIES 1999-1G WST TRUST REDRAW FACILITY AGREEMENT
Except as provided in clause 27.3, the Redraw Facility Provider shall
not:
(a) (JUDGMENT) obtain a judgment for the payment of money or
damages by the Trustee;
(b) (STATUTORY DEMAND) issue any demand under s459E(1) of the
Corporations Law (or any analogous provision under any other
law) against the Trustee;
(c) (WINDING UP) apply for the winding up or dissolution of the
Trustee;
(d) (EXECUTION) levy or enforce any distress or other execution
to, on, or against any assets of the Trustee;
(e) (COURT APPOINTED RECEIVER) apply for the appointment by a
court of a receiver to any of the assets of the Trustee;
(f) (SET-OFF OR COUNTERCLAIM) exercise or seek to exercise any
set-off or counterclaim against the Trustee; or
(g) (ADMINISTRATOR) appoint, or agree to the appointment, of any
administrator to the Trustee,
or take proceedings for any of the above and the Redraw Facility
Provider waives its rights to make those applications and take those
proceedings.
28. REDRAW FACILITY PROVIDER'S OBLIGATIONS
- ----------------------------------------------------------------
The Trustee shall have no recourse to the Redraw Facility Provider in
relation to this agreement beyond its terms, and the Redraw Facility
Provider's obligations under this agreement are separate from, and
independent to, any obligations the Redraw Facility Provider may have
to the Trustee for any other reason (including under any other Trust
Document).
29. SUCCESSOR TRUSTEE
- ----------------------------------------------------------------
The Redraw Facility Provider shall do all things reasonably necessary
to enable any successor Trustee appointed under clause 24 of the Master
Trust Deed to become the Trustee under this agreement.
EXECUTED in Sydney.
Each attorney executing this agreement states that he has no notice of
revocation or suspension of his power of attorney.
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SERIES 1999-1G WST TRUST REDRAW FACILITY AGREEMENT
SIGNED on behalf of )
WESTPAC SECURITIES )
ADMINISTRATION LIMITED )
by its attorney )
in the presence of: )
-----------------------------------
Signature
- ----------------------------------------- -----------------------------------
Witness Print name
- -----------------------------------------
Print name
SIGNED on behalf of ) -----------------------------------
WESTPAC BANKING ) Signature
CORPORATION )
by its attorney ) -----------------------------------
in the presence of: ) Print name
-----------------------------------
Signature
- ----------------------------------------- -----------------------------------
Witness Print name
- -----------------------------------------
Print name
SIGNED on behalf of )
WESTPAC SECURITISATION )
MANAGEMENT PTY LIMITED )
by its attorney )
in the presence of: )
-----------------------------------
Signature
- ----------------------------------------- -----------------------------------
Witness Print name
- ----------------------------------------------
Print name
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SERIES 1999-1G WST TRUST REDRAW FACILITY AGREEMENT
ANNEXURE A
DRAWDOWN NOTICE
- ----------------------------------------------------------------
To: Westpac Banking Corporation
REDRAW FACILITY AGREEMENT - DRAWDOWN NOTICE NO. [*]
We refer to the Redraw Facility Agreement dated 1999 (the FACILITY
AGREEMENT).
Under clause 3.1 of the Redraw Facility Agreement we give you irrevocable notice
as follows:
(1) we wish to draw on [*] (the DRAWDOWN DATE); [NOTE: DATE IS TO BE A
BUSINESS DAY.]
(2) the principal amount of the Redraw Advance is $[*]; [NOTE: AMOUNT TO
COMPLY WITH THE LIMITS IN CLAUSE 3.]
(3) we request that the proceeds be remitted to account number [*] at [*];
[NOTE: THE ACCOUNT(S) TO BE COMPLETED ONLY IF FUNDS NOT REQUIRED IN REPAYMENT OF
ANY PREVIOUS REDRAW ADVANCE(S).]
(4) we represent and warrant that no Event of Default [under the Facility
Agreement, and no Event of Default as defined in the Security Trust
Deed], subsists or will result from the drawing; and
(5) all representations and warranties under clause 11 of the Facility
Agreement are true as though they had been made at the date of this
Drawdown Notice and the Drawdown Date specified above in respect of the
facts and circumstances then subsisting.
Definitions in the Facility Agreement apply in this Drawdown Notice.
WESTPAC SECURITIES ADMINISTRATION LIMITED as trustee of the
Series 1999-1G WST Trust
By: [Authorised Signatory]
DATED
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ANNEXURE B
VERIFICATION CERTIFICATE
- ----------------------------------------------------------------
To: Westpac Banking Corporation
REDRAW FACILITY AGREEMENT
I [*] am a [director] of Westpac Securities Administration Limited of [*] (the
COMPANY).
I refer to the Redraw Facility Agreement (the FACILITY AGREEMENT) dated 1999
between the Company as Trustee, Westpac Banking Corporation and Westpac
Securitisation Management Pty Limited.
Definitions in the Facility Agreement apply in this Certificate.
I CERTIFY as follows.
1. Attached to this Certificate are complete and up to date copies of:
(a) unless paragraph 2 below applies, the constitution of the
Company (marked A); and
(b) a power of attorney granted by the Company for the execution
of the Facility Agreement 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. If the constitution of the Company is not attached to this certificate,
there has been no change to them since the Company last gave a
certified copy of them to Westpac Banking Corporation.
3. The following are signatures of the Authorised Signatories of the
Company and the persons who have been authorised to sign the Facility
Agreement and to give notices and communications under or in connection
with the Facility Agreement. If no signatures are set out below, the
Authorised Signatories with respect to the Facility Agreement are the
same as in relation to the Series 1999-1G WST Trust, a copy of those
signatures having previously been provided to Westpac Banking
Corporation.
AUTHORISED SIGNATORIES
NAME POSITION SIGNATURE
* *
* *
* *
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SIGNATORIES
NAME POSITION SIGNATURE
* *
* *
* *
Signed:
Director
Print name
DATED
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<PAGE>
Exhibit 10.5
(Multicurrency--Cross Border) [LOGO]
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of __________ 1999
Westpac Banking Corporation Westpac Securities Administration Limited
(ARBN 007 457 141) (ACN 000 049 472) in its capacity as
- ------------------------------ and ---------------------------------------------
trustee of the Series 1999-1G WST Trust
have entered and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other confirming
evidence (each a "Confirmation") exchanged between the parties confirming those
Transactions.
Accordingly, the parties agree as follows: --
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions of
the Schedule and the other provisions of this Master Agreement, the Schedule
will prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purpose of the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the fact
that this Master Agreement and all Confirmations form a single agreement between
the parties (collectively referred to as this "Agreement"), and the parties
would not otherwise enter into any Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of this
Agreement.
(ii) Payments under this Agreement will be made on the due date for value
on that date in the place of the account specified in the relevant
Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the
required currency. Where settlement is by delivery (that is, other than by
payment), such delivery will be made for receipt on the due date in the
manner customary for the relevant obligation unless otherwise specified in
the relevant Confirmation or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to
(1) the condition precedent that no Event of Default or Potential Event of
Default with respect to the other party has occurred and is continuing,
(2) the condition precedent that no Early Termination Date in respect of
the relevant Transaction has occurred or been effectively designated and
(3) each other applicable condition precedent specified in this Agreement.
<PAGE>
(b) Change of Account. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a reasonable
objection to such change.
(c) Netting. If on any date amounts would otherwise be payable: --
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to make
payment or any such amount will be automatically satisfied and discharged and,
if the aggregate amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been payable by the other
party, replaced by an obligation upon the party by whom the larger aggregate
amount would have been payable to pay to the other party the excess of the
larger aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount
will be determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be made
in the Schedule or a Confirmation by specifying that subparagraph (ii) above
will not apply to the Transactions identified as being subject to the election,
together with the starting date (in which case subparagraph (ii) above will not,
or will cease to, apply to such Transactions from such date). This election may
be made separately for different groups of Transactions and will apply
separately to each pairing of Offices through which the parties make and receive
payments or deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless such
deduction or withholding is required by any applicable law, as modified by
the practice of any relevant governmental revenue authority, then in
effect. If a party is so required to deduct or withhold, then that party
("X") will: --
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to be
deducted or withheld (including the full amount required to be
deducted or withheld from any additional amount paid by X to Y under
this Section 2(d)) promptly upon the earlier of determining that
such deduction or withholding is required or receiving notice that
such amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified copy),
or other documentation reasonably acceptable to Y, evidencing such
payment to such authorities; and
(4) if such Tax is an Identifiable Tax, pay to Y, in addition to the
payment to which Y is otherwise entitled under this Agreement, such
additional amount as is necessary to ensure that the net amount
actually received by Y (free and clear of Indemnifiable Taxes,
whether assessed against X or Y) will equal the full amount Y would
have received had no such deduction or withholding been required.
However, X will not be required to pay any additional amount to Y to
the extent that it would not be required to be paid but for: --
(A) the failure by Y to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4(d); or
(B) the failure of a representation made by Y pursuant to
Section 3(f) to be accurate and true unless such failure would
not have occurred but for (I) any action taken by a taxing
authority, or brought in a court of competent jurisdiction, on
or after the date on which a Transaction is entered into
(regardless of whether such action is taken or brought with
respect to a party to this Agreement) or (II) a Change in Tax
Law.
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(ii) Liability. if: --
(1) X is required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, to make any
deduction or withholding in respect of which X would not be required
to pay an additional amount to Y under Section 2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly against
X,
then, except to the extent Y has satisfied or then satisfies the liability
resulting from such Tax, Y will promptly pay to X the amount of such
liability (including any related liability for interest, but including any
related liability for penalties only if Y has failed to comply with or
perform any agreement contained in Section 4(a)(i), 4(a)(iii) or 4(d)).
(e) Default Interest; Other Amounts. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant Transaction,
a party that defaults in the performance of any payment obligation will, to the
extent permitted by law and subject to Section 6(c), be required to pay interest
(before as well as after judgement) on the overdue amount to the other party on
demand in the same currency as such overdue amount, for the period from (and
including) the original due date for payment to (but excluding) the date of
actual payment, at the Default Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed. If, prior to
the occurrence or effective designation of an Early Termination Date in respect
of the relevant Transaction, a party defaults in the performance of any
obligation required to be settled by delivery, it will compensate the other
party on demand if and to the extent provided for in the relevant Confirmation
or elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be deemed
to be repeated by each party on each date on which a Transaction is entered into
and, in the case of the representations in Section 3(f), at all times until the
termination of this Agreement) that: --
(a) Basic Representations.
(i) Status. It is duly organised and validly existing under the laws of
the jurisdiction of its organisation or incorporation and, if relevant
under such laws, in good standing;
(ii) Powers. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party, to
deliver this Agreement and any other documentation relating to this
Agreement that it is required by this Agreement to deliver and to perform
its obligations under this Agreement and any obligations it has under any
Credit Support Document to which it is a party and has taken all necessary
action to authorise such execution, delivery and performance;
(iii) No Violation or Conflict. Such execution, delivery and performance
do not violate or conflict with any law applicable to it, any provision of
its constitutional documents, any order or judgement of any court or other
agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets;
(iv) Consents. All governmental and other consents that are required to
have been obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party have been obtained and are in full
force and effect and all conditions of any such consents have been
complied with; and
(v) Obligations Binding. Its obligations under this Agreement and any
Credit Support Document to which it is a party constitute its legal, valid
and binding obligations, enforceable in accordance with their respective
terms (subject to applicable bankruptcy, reorganisation, insolvency,
moratorium or similar laws affecting creditors' rights generally and
subject, as to enforceability, to equitable principles of general
application (regardless of whether enforcement is sought in a proceeding
in equity or at law)).
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(b) Absence of Certain Events. No Event of Default or Potential Event of Default
or, to its knowledge, Termination Event with respect to it has occurred and is
continuing and no such event or circumstance would occur as a result of its
entering into or performing its obligations under this Agreement or any Credit
Support Document to which it is a party.
(c) Absence of Litigation. There is not pending, to its knowledge, threatened
against it or any of its Affiliates any action, suit or proceeding at law or in
equity or before any court, tribunal, governmental body, agency or official or
any arbitrator that is likely to affect the legality, validity or enforceability
against it of this Agreement or any Credit Support Document to which it is a
party or its ability to perform its obligations under this Agreement or such
Credit Support Document.
(d) Accuracy of Specified Information. All applicable information that is
furnished in writing by or on behalf of it to the other party and is identified
for the purpose of this Section 3(d) in the Schedule is, as of the date of the
information, true, accurate and complete in every material respect.
(e) Payer Tax Representation. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(e) is accurate and true.
(f) Payee Tax Representations. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(f) is accurate and true.
4. Agreements
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party: --
(a) Furnish Specified Information. It will deliver to the other party or, in
certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs: --
(i) any forms, documents or certificates relating to taxation specified in
the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation;
and
(iii) upon reasonable demand by such other party, any form or document
that may be required or reasonably requested in writing in order to allow
such other party or its Credit Support Provider to make a payment under
this Agreement or any applicable Credit Support Document without any
deduction or withholding for or on account of any Tax or with such
deduction or withholding at a reduced rate (so long as the completion,
execution or submission of such form or document would not materially
prejudice the legal or commercial position of the party in receipt of such
demand), with any such form or document to be accurate and completed in a
manner reasonably satisfactory to such other party and to be executed and
to be delivered with any reasonably required certification,
in each case by the date specified in the Schedule or such Confirmation or, if
none is specified, as soon as reasonably practicable.
(b) Maintain Authorisations. It will use all reasonable efforts to maintain in
full force and effect all consents of any governmental or other authority that
are required to be obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party and will use all reasonable efforts to
obtain any that may become necessary in the future.
(c) Comply with Laws. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to comply
would materially impair its ability to perform its obligations under this
Agreement or any Credit Support Document to which it is a party.
(d) Tax Agreement. It will give notice of any failure of a representation made
by it under Section 3(f) to be accurate and true promptly upon learning of such
failure.
(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax
levied or imposed upon it or in respect of its execution or performance of this
Agreement by a jurisdiction in which it is incorporated,
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organised, managed and controlled, or considered to have its seat, or in which a
branch or office through which it is acting for the purpose of this Agreement is
located ("Stamp Tax Jurisdiction") and will indemnify the other party against
any Stamp Tax levied or imposed upon the other part or in respect of the other
party's execution or performance of this Agreement by any such Stamp Tax
Jurisdiction which is not also a Stamp Tax Jurisdiction with respect to the
other party.
5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a party or, if
applicable, any Credit Support Provider of such party or any Specified Entity of
such party of any of the following events constitutes an event of default (an
"Event of Default") with respect to such party: --
(i) Failure to Pay or Deliver. Failure by the party to make, when due, any
payment under this Agreement or delivery under Section 2(a)(i) or 2(e)
required to be made by it if such failure is not remedied on or before the
third Local Business Day after notice of such failure is given to the
party;
(ii) Breach of Agreement. Failure by the party to comply with or perform
any agreement or obligation (other than an obligation to make any payment
under this Agreement or delivery under Section 2(a)(i) or 2(e) or to give
notice of a Termination Event or any agreement or obligation under Section
4(a)(i), 4(a)(iii) or 4(d)) to be complied with or performed by the party
in accordance with this Agreement if such failure is not remedied on or
before the thirtieth day after notice of such failure is given to the
party;
(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of such
party to comply with or perform any agreement or obligation to be
complied with or performed by it in accordance with any Credit
Support Document if such failure is continuing after any applicable
grace period has elapsed;
(2) the expiration or termination of such Credit Support Document or
the failing or ceasing of such Credit Support Document to be in full
force and effect for the purpose of this Agreement (in either case
other than in accordance with its terms) prior to the satisfaction
of all obligations of such party under each Transaction to which
such Credit Support Document relates without the written consent of
the other party; or
(3) the party or such Credit Support Provider disaffirms, disclaims,
repudiates or rejects, in whole or in part, or challenges the
validity of, such Credit Support Document;
(iv) Misrepresentation. A representation (other than a representation
under Section 3(e) or (f)) made or repeated or deemed to have been made or
repeated by the party or any Credit Support Provider of such party in this
Agreement or any Credit Support Document proves to have been incorrect or
misleading in any material respect when made or repeated or deemed to have
been made or repeated;
(v) Default under Specified Transaction. The party, any Credit Support
Provider of such party or any applicable Specified Entity of such party
(1) defaults under a Specified Transaction and, after giving effect to any
applicable notice requirement or grace period, there occurs a liquidation
of, an acceleration of obligations under, or an early termination of, that
Specified Transaction, (2) defaults, after giving effect to any applicable
notice requirement or grace period, in making any payment or delivery due
on the last payment delivery or exchange date of, or any payment on early
termination of, a Specified Transaction (or such default continues for at
least three Local Business Days if there is no applicable notice
requirement or grace period) or (3) disaffirms, disclaims, repudiates or
rejects, in whole or in part, a Specified Transaction (or such action is
taken by any person or entity appointed or empowered to operate it or act
on its behalf);
(vi) Cross Default. If "Cross Default" is specified in the Schedule as
applying to the party, the occurrence or existence of (1) a default, event
of default or other similar condition or event (however
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described) in respect of such party, any Credit Support Provider of such
party or any applicable Specified Entity of such party under one or more
agreements or instruments relating to Specified Indebtedness of any of
them (individually or collectively) in an aggregate amount of not less
than the applicable Threshold Amount (as specified in the Schedule) which
has resulted in such Specified Indebtedness becoming, or becoming capable
at such time of being declared, due and payable under such agreements or
instruments, before it would otherwise have been due and payable or (2) a
default by such party, such Credit Support Provider or such Specified
Entity (individually or collectively) in making one or more payments on
the due date thereof in an aggregate amount of not less than the
applicable Threshold Amount under such agreements or instruments (after
giving effect to any applicable notice requirement or grace period);
(vii) Bankruptcy. The party, any Credit Support Provider of such party or
any applicable Specified Entity of such party: --
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger); (2) becomes insolvent or is unable to pay
its debts or fails or admits in writing its inability generally to
pay its debts as they become due; (3) makes a general assignment,
arrangement or composition with or for the benefit of its creditors;
(4) institutes or has instituted against it a proceeding seeking a
judgement of insolvency or bankruptcy or any other relief under any
bankruptcy or insolvency law or other similar law affecting
creditors' rights, or a petition is presented for its winding-up or
liquidation, and, in the case of any such proceeding or petition
instituted or presented against it, such proceeding or petition (A)
results in a judgement of insolvency or bankruptcy or the entry of
an order for relief or the making of an order for its winding-up or
liquidation or (B) is not dismissed, discharged, stayed or
restrained in each case within 30 days of the institution or
presentation thereof; (5) has a resolution passed for its
winding-up, official management or liquidation (other than pursuant
to a consolidation, amalgamation or merger); (6) seeks or becomes
subject to the appointment of an administrator, provisional
liquidator, conservator, receiver, trustee, custodian or other
similar official for it or for all or substantially all its assets;
(7) has a secured party take possession of all or substantially all
its assets or has a distress, execution, attachment, sequestration
or other legal process levied, enforced or sued on or against all or
substantially all its assets and such secured party maintains
possession, or any such process is not dismissed, discharged, stayed
or restrained, in each case within 30 days thereafter; (8) causes or
is subject to any event with respect to it which, under the
applicable laws of any jurisdiction, has an analogous effect to any
of the events specified in clauses (1) to (7) (inclusive); or (9)
takes any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the foregoing acts; or
(viii) Merger Without Assumption. The party or any Credit Support Provider
of such party consolidates or amalgamates with, or merges with or into, or
transfers all or substantially all its assets to, another entity and, at
the time of such consolidation, amalgamation, merger or transfer: --
(1) the resulting, surviving or transferee entity fails to assume
all the obligations of such party or such Credit Support Provider
under this Agreement or any Credit Support Document to which it or
its predecessor was a party by operation of law or pursuant to an
agreement reasonably satisfactory to the other party to this
Agreement; or
(2) the benefits of any Credit Support Document fail to extend
(without the consent of the other party) to the performance by such
resulting, surviving or transferee entity of its obligations under
this Agreement.
(b) Termination Events. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified Entity
of such party of any event specified below constitutes an Illegality if the
event is specified in (i) below, a Tax Event if the event is specified in (ii)
below or a Tax Event Upon Merger if the event is specified in (iii) below, and,
if specified to be applicable, a Credit Event
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Upon Merger if the event is specified pursuant to (iv) below or an Additional
Termination Event if the event is specified pursuant to (v) below: --
(i) Illegality. Due to the adoption of, or any change in, any applicable
law after the date on which a Transaction is entered into, or due to the
promulgation of, or any change in, the interpretation by any court,
tribunal or regulatory authority with competent jurisdiction of any
applicable law after such date, it becomes unlawful (other than as a
result of a breach by the party of Section 4(b)) for such party (which
will be the Affected Party): --
(1) to perform any absolute or contingent obligation to make a
payment or delivery or to receive a payment or delivery in respect
of such Transaction or to comply with any other material provision
of this Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of such party to
perform, any contingent or other obligation which the party (or such
Credit Support Provider) has under any Credit Support Document
relating to such Transaction;
(ii) Tax Event. Due to (x) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the date on
which a Transaction is entered into (regardless of whether such action is
taken or brought with respect to a party to this Agreement) or (y) a
Change in Tax Law, the party (which will be the Affected Party) will, or
there is a substantial likelihood that it will, on the next succeeding
Scheduled Payment Date (1) be required to pay to the other party an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount is required to be
deducted or withheld for or on account of a Tax (except in respect of
interest under Section 2(e), 6(d)(ii) or 6(e)) and no additional amount is
required to be paid in respect of such Tax under Section 2(d)(i)(4) (other
than by reason of Section 2(d)(i)(4)(A) or (B));
(iii) Tax Event Upon Merger. The party (the "Burdened Party") on the next
succeeding Scheduled Payment Date will either (1) be required to pay an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount has been deducted or
withheld for or on account of any Indemnifiable Tax in respect of which
the other party is not required to pay an additional amount (other than by
reason of Section 2(d)(i)(4)(A) or (B)), in either case as a result of a
party consolidating or amalgamating with, or merging with or into, or
transferring all or substantially all its assets to, another entity (which
will be the Affected Party) where such action does not constitute an event
described in Section 5(a)(viii);
(iv) Credit Event Upon Merger. If "Credit Event Upon Merger" is specified
in the Schedule as applying to the party, such party ("X"), any Credit
Support Provider of X or any applicable Specified Entity of X consolidates
or amalgamates with, or merges with or into, or transfers all or
substantially all its assets to, another entity and such action does not
constitute an event described in Section 5(a)(viii) but the
creditworthiness of the resulting, surviving or transferee entity is
materially weaker than that of X, such Credit Support Provider or such
Specified Entity, as the case may be, immediately prior to such action
(and, in such event, X or its successor or transferee, as appropriate,
will be the Affected Party); or
(v) Additional Termination Event. If any "Additional Termination Event" is
specified in the Schedule or any Confirmation as applying, the occurrence
of such event (and, in such event, the Affected Party or Affected Parties
shall be as specified for such Additional Termination Event in the
Schedule or such Confirmation).
(c) Event of Default and Illegality. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes an
Illegality, it will be treated as an Illegality and will not constitute an Event
of Default.
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6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an Event of
Default with respect to a party (the "Defaulting Party") has occurred and is
then continuing, the other party (the "Non-defaulting Party") may, by not more
than 20 days notice to the Defaulting Party specifying the relevant Event of
Default designate a day not earlier than the day such notice is effective as an
Early Termination Date in respect of all outstanding Transactions. If, however,
"Automatic Early Termination" is specified in the Schedule as applying to a
party, then an Early Termination Date in respect of all outstanding Transactions
will occur immediately upon the occurrence with respect to such party of an
Event of Default specified in Section 5(a)(vii)(1), (3), (5), (6) or, to the
extent analogous thereto, (8), and as of the time immediately preceding the
institution of the relevant proceeding or the presentation of the relevant
petition upon the occurrence with respect to such party of an Event of Default
specified in Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party, specifying the
nature of that Termination Event and each Affected Transaction and will
also give such other information about that Termination Event as the other
party may reasonably require.
(ii) Transfer to Avoid Termination Event. If either an Illegality under
Section 5(b)(i)(1) or a Tax Event occurs and there is only one Affected
Party, or if a Tax Event Upon Merger occurs and the Burdened Party is the
Affected Party, the Affected Party will, as a condition to its right to
designate an Early Termination Date under Section 6(b)(iv), use all
reasonable efforts (which will not require such party to incur a loss,
excluding immaterial, incidental expenses) to transfer within 20 days
after it gives notice under Section 6(b)(i) all its rights and obligations
under this Agreement in respect of the Affected Transactions to another of
its Offices or Affiliates so that such Termination Event ceases to exist.
If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period,
whereupon the other party may effect such a transfer within 30 days after
the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be subject
to and conditional upon the prior written consent of the other party,
which consent will not be withheld if such other party's policies in
effect at such time would permit it to enter into transactions with the
transferee on the terms proposed.
(iii) Two Affected Parties. If an Illegality under Section 5(b)(i)(1) or a
Tax Event occurs and there are two Affected Parties, each party will use
all reasonable efforts to reach agreement within 30 days after notice
thereof is given under Section 6(b)(i) on action to avoid that Termination
Event.
(iv) Right to Terminate. If: --
(1) a transfer under Section 6(b)(ii) or an agreement under Section
6(b)(iii), as the case may be, has not been effected with respect to
all Affected Transactions within 30 days after an Affected Party
gives notice under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon
Merger or an Additional Termination Event occurs, or a Tax Event
Upon Merger occurs and the Burdened Party is not the Affected Party,
either party in the case of an Illegality, the Burdened Party in the case
of a Tax Event Upon Merger, any Affected Party in the case of a Tax Event
or an Additional Termination Event if there is more than one Affected
Party, or the party which is not the Affected Party in the case of a
Credit Event Upon Merger or an Additional Termination Event if there is
only one Affected Party may, by not more than 20 days notice to the other
party and provided that the relevant Termination Event is then
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continuing, designate a day not earlier than the day such notice is
effective as an Early Termination Date in respect of all Affected
Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given under Section
6(a) or (b), the Early Termination Date will occur on the date so
designated, whether or not the relevant Event of Default or Termination
Event is then continuing.
(ii) Upon the occurrence of effective designation of an Early Termination
Date, no further payments or deliveries under Section 2(a)(i) or 2(e) in
respect of the Terminated Transactions will be required to be made, but
without prejudice to the other provisions of this Agreement. The amount,
if any, payable in respect of an Early Termination Date shall be
determined pursuant to Section 6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and will
provide to the other party a statement (1) showing, in reasonable detail,
such calculations (including all relevant quotations and specifying any
amount payable under Section 6(e)) and (2) giving details of the relevant
account to which any amount payable to it is to be paid. In the absence of
written confirmation from the source of a quotation obtained in
determining a Market Quotation, the records of the party obtaining such
quotation will be conclusive evidence of the existence and accuracy of
such quotation.
(ii) Payment Date. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day that
notice of the amount payable is effective (in the case of an Early
Termination Date which is designated or occurs as a result of an Event of
Default) and on the day which is two Local Business Days after the day on
which notice of the amount payable is effective (in the case of an Early
Termination Date which is designated as a result of a Termination Event).
Such amount will be paid together with (to the extent permitted under
applicable law) interest thereon (before as well as after judgment) in
the Termination Currency, from (and including) the relevant Early
Termination Date to (but excluding) the date such amount is paid, at the
Applicable Rate. Such interest will be calculated on the basis of daily
compounding and the actual number of days elapsed.
(e) Payments on Early Termination. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the Schedule
of a payment measure, either "Market Quotation" or "Loss", and a payment method,
either the "First Method" or the "Second Method". If the parties fail to
designate a payment measure or payment method in the Schedule, it will be deemed
that "Market Quotation" or the "Second Method", as the case may be, shall apply.
The amount, if any, payable in respect of an Early Termination Date and
determined pursuant to this Section will be subject to any Set-off.
(i) Events of Default. If the Early Termination Date results from an Event
of Default: --
(1) First Method and Market Quotation. If the First Method and
Market Quotation apply, the Defaulting Party will pay to the
Non-defaulting Party the excess, if a positive number, of (A) the
sum of the Settlement Amount (determined by the Non-defaulting
Party) in respect of the Terminated Transactions and the Termination
Currency Equivalent of the Unpaid Amounts owing to the
Non-defaulting Party over (B) the Termination Currency Equivalent of
the Unpaid Amounts owing to the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply, the
Defaulting Party will pay to the Non-defaulting Party, if a positive
number, the Non-defaulting Party's Loss in respect of this
Agreement.
(3) Second Method and Market Quotation. If the Second Method and
Market Quotation apply, an amount will be payable equal to (A) the
sum of the Settlement Amount (determined by the
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Non-defaulting Party) in respect of the Terminated Transactions and
the Termination Currency Equivalent of the Unpaid Amounts owing to
the Non-defaulting Party less (B) the Termination Currency
Equivalent of the Unpaid Amounts owing to the Defaulting Party. If
that amount is a positive number, the Defaulting Party will pay it
to the Non-defaulting Party; if it is a negative number, the
Non-defaulting Party will pay the absolute value of that amount to
the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss apply, an
amount will be payable equal to the Non-defaulting Party's Loss in
respect of this Agreement. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting Party; if it is a
negative number, the Non-defaulting Party will pay the absolute
value of that amount to the Defaulting Party.
(iii) Termination Events. If the Early Termination Date results from a
Termination Event: --
(1) One Affected Party. If there is one Affected Party, the amount
payable will be determined in accordance with Section 6(e)(i)(3), if
Market Quotation applies, or Section 6(e)(i)(4), if Loss applies,
except that, in either case, references to the Defaulting Party and
to the Non-defaulting Party will be deemed to be references to the
Affected Party and the party which is not the Affected Party,
respectively, and, if Loss applies and fewer than all the
Transactions are being terminated, Loss shall be calculated in
respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties: --
(A) if Market Quotation applies, each party will determine a
Settlement Amount in respect of the Terminated Transactions,
and an amount will be payable equal to (I) the sum of (a)
one-half of the difference between the Settlement Amount of
the party with the higher Settlement Amount ("X") and the
Settlement Amount of the party with the lower Settlement
Amount ("Y") and (b) the Termination Currency Equivalent of
the Unpaid Amounts owing to X less (II) the Termination
Currency Equivalent of the Unpaid Amounts owing to Y; and
(B) if Loss applies, each party will determine its Loss in
respect of this Agreement (or, if fewer than all the
Transactions are being terminated, in respect of all
Terminated Transactions) and an amount will be payable equal
to one-half of the difference between the Loss of the party
with the higher Loss ("X") and the Loss of the party with the
lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X; if
it is a negative number, X will pay the absolute value of that
amount to Y.
(iii) Adjustment for Bankruptcy. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination" applies in
respect of a party, the amount determined under this Section 6(e) will be
subject to such adjustments as are appropriate and permitted by law to
reflect any payments or deliveries made by one party to the other under
this Agreement (and retained by such other party) during the period from
the relevant Early Termination Date to the date for payment determined
under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation applies an
amount recoverable under this Section 6(e) is a reasonable pre-estimate of
loss and not a penalty. Such amount is payable for the loss of bargain and
the loss of protection against future risks and except as otherwise
provided in this Agreement neither party will be entitled to recover any
additional damages as a consequence of such losses.
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7. Transfer
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of the
other party, except that: --
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all its assets to, another entity (but without prejudice to any
other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in any
amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be void.
8. Contractual Currency
(a) Payment in the Contractual Currency. Each payment under this Agreement will
be made in the relevant currency specified in this Agreement for that payment
(the "Contractual Currency"). To the extent permitted by applicable law, any
obligation to make payments under this Agreement in the Contractual Currency
will not be discharged or satisfied by any tender in any currency other than the
Contractual Currency, except to the extent such tender results in the actual
receipt by the party to which payment is owed, acting in a reasonable manner and
in good faith in converting the currency so tendered into the Contractual
Currency, of the full amount in the Contractual Currency of all amounts payable
in respect of this Agreement. If for any reason the amount in the Contractual
Currency so received falls short of the amount in the Contractual Currency
payable in respect of this Agreement, the party required to make the payment
will, to the extent permitted by applicable law, immediately pay such additional
amount in the Contractual Currency as may be necessary to compensate for the
shortfall. If for any reason the amount in the Contractual Currency so received
exceeds the amount in the Contractual Currency payable in respect of this
Agreement, the party receiving the payment will refund promptly the amount of
such excess.
(b) Judgments. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is rendered
(i) for the payment of any amount owing in respect of this Agreement, (ii) for
the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party is
entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the Contractual
Currency received by such party as a consequence of sums paid in such other
currency and will refund promptly to the other party any excess of the
Contractual Currency received by such party as a consequence of sums paid in
such other currency if such shortfall or such excess arises or results from any
variation between the rate of exchange at which the Contractual Currency is
converted into the currency of the judgment or order for the purposes of such
judgment or order and the rate of exchange at which such party is able, acting
in a reasonable manner and in good faith in converting the currency received
into the Contractual Currency, to purchase the Contractual Currency with the
amount of the currency of the judgment or order actually received by such party.
The term "rate of exchange" includes, without limitation, any premiums and costs
of exchange payable in connection with the purchase of or conversion into the
Contractual Currency.
(c) Separate Indemnities. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and independent
causes of action, will apply notwithstanding any indulgence granted by the party
to which any payment is owed and will not be affected by judgment being obtained
or claim or proof being made for any other sums payable in respect of this
Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it will be sufficient
for a party to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
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9. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communication and prior writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing evidenced by
a facsimile transmission) and executed by each of the parties or confirmed by an
exchange of telexes or electronic messages on an electronic messaging system.
(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive the
termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative and
not exclusive of any rights, powers, remedies and privileges provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in respect
of it) may be executed and delivered in counterparts (including by
facsimile transmission), each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of each
Transaction from the moment they agree to those terms (whether orally or
otherwise). A Confirmation shall be entered into as soon as practicable
and may be executed and delivered in counterparts (including by facsimile
transmission) or be created by an exchange of telexes or by an exchange of
electronic messages on an electronic messaging system, which in each case
will be sufficient for all purposes to evidence a binding supplement to
this Agreement. The parties will specify therein or through another
effective means that any such counterpart, telex or electronic message
constitutes a Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power or
privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege will
not be presumed to preclude any subsequent or further exercise of that right,
power or privilege or the exercise of any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
10. Offices; Multibranch Parties
(a) If Section 10(a) is specified in the Schedule as applying, each party that
enters into a Transaction through an Office other than its head or home office
represents to the other party that, notwithstanding the place of booking office
or jurisdiction of incorporation or organisation of such party, the obligations
of such party are the same as if it had entered into the Transaction through its
head or home office. This representation will be deemed to be repeated by such
party on each date on which a Transaction is entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of Transaction without prior written
consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office through
which it makes and receives payments or deliveries with respect to a Transaction
will be specified in the relevant Confirmation.
11. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including legal fees and
Stamp Tax, incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement or any Credit Support Document
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to which the Defaulting Party is a party or by reason of the early termination
of any Transaction, including, but not limited to, costs of collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice or
other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated: --
(i) if in writing and delivered in person or by courier, on the date it is
delivered;
(ii) if sent by telex, on the date the recipient's answerback is received;
(iii) if sent by facsimile transmission, on the date that transmission is
received by a responsible employee of the recipient in legible form (it
being agreed that the burden of proving receipt will be on the sender and
will not be met by a transmission report generated by the sender's
facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or the
equivalent (return receipt requested), on the date that mail is delivered
or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that electronic
message is received,
unless the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered (or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed in
accordance with the law specified an the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings relating to
this Agreement ("Proceedings"), each party irrevocably: --
(i) submits to the jurisdiction of the English courts, if this Agreement
is expressed to be governed by English law, or to the non-exclusive
jurisdiction of the courts of the State of New York and the United States
District Court located in the Borough of Manhattan an New York City, if
this Agreement is expressed to be governed by the laws of the State of New
York; and
(ii) waives any objection which it may have at any time to the laying of
venue of any Proceedings brought in any such court, waives any claim that
such Proceedings have been brought in an inconvenient forum and further
waives the right to object, with respect to such Proceedings, that such
court does not have any jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be governed
by English law, the Contracting States, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments Act 1982 or any modification, extension or
re-enactment thereof for the time being in force) nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) Service of Process. Each party irrevocably appoints the Process Agent (if
any) specified opposite its name in the Schedule to receive, for it and on its
behalf, service of process in any Proceedings. If for any
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reason any party's Process Agent is unable to act as such, such party will
promptly notify the other party and within 30 days appoint a substitute process
agent acceptable to the other party. The parties irrevocably consent to service
of process given in the manner provided for notices in Section 12. Nothing in
this Agreement will affect the right of either party to serve process in any
other manner permitted by law.
(d) Waiver of immunities. Each party irrevocably waives, to the fullest extent
permitted by applicable law, with respect to itself and its revenues and assets
(irrespective of their use or intended use), all immunity on the grounds of
sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any
court, (iii) relief by way of injunction, order for specific performance or for
recovery of property, (iv) attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment to which it or its
revenues or assets might otherwise be entitled in any Proceedings in the courts
of any jurisdiction and irrevocably agrees, to the extent permitted by
applicable law, that it will not claim any such immunity in any Proceedings.
14. Definitions
As used in this Agreement: --
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control" of
any entity or person means ownership of a majority of the voting power of the
entity or person.
"Applicable Rate" means: --
(a) in respect of obligations payable or deliverable (or which would have been
but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of either
party from and after the date (determined in accordance with Section 6(d)(ii))
on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which would
have been but for Section 2(a)(iii)) by a Non-defaulting Party, the Non-default
Rate; and
(d) in all other cases, the Termination Rate.
"Burdened Party" has the meaning specified in Section 5(b).
"Change in Tax Law" means the enactment, promulgation, execution or ratification
of, or any change in or amendment to, any law (or in the application or official
interpretation of any law) that occurs on or after the date on which the
relevant Transaction is entered into.
"consent" includes a consent, approval, action, authorisation, exemption,
notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is specified as
such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of funding the relevant amount plus 1% per annum.
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"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with Section
6(a) or 6(b)(iv).
"Event of Default" has the meaning specified in Section 5(a) and, if applicable,
in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"Indemnifiable Tax" means any Tax other than a Tax that would not be imposed in
respect of a payment under this Agreement but for a present or former connection
between the jurisdiction of the government or taxation authority imposing such
Tax and the recipient of such payment or a person related to such recipient
(including, without limitation, a connection arising from such recipient or
related person being or having been a citizen or resident of such jurisdiction,
or being or having been organised, present or engaged in a trade or business in
such jurisdiction, or having or having had a permanent establishment or fixed
place of business in such jurisdiction, but excluding a connection arising
solely from such recipient or related person having executed, delivered,
performed its obligations or received a payment under, or enforced, this
Agreement or a Credit Support Document).
"law" includes any treaty, law, rule or regulation (as modified, in the case of
tax matters, by the practice of any relevant governmental revenue authority) and
"lawful" and "unlawful" will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which commercial
banks are open for business (including dealings in foreign exchange and foreign
currency deposits) (a) in relation to any obligation under Section 2(a)(i), in
the place(s) specified in the relevant Confirmation or, if not so specified, as
otherwise agreed by the parties in writing or determined pursuant to provisions
contained, or incorporated by reference, in this Agreement, (b) in relation to
any other payment, in the place where the relevant account is located and, if
different, in the principal financial centre, if any, of the currency of such
payment, (c) in relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), in the city specified in the address for
notice provided by the recipient and, in the case of a notice contemplated by
Section 2(b), in the place where the relevant new account is to be located and
(d) in relation to Section 5(a)(v)(2), in the relevant locations for performance
with respect to such Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be its
total losses and costs (or gain, in which case expressed as a negative number)
in connection with this Agreement or that Terminated Transaction or group of
Terminated Transactions, as the case may be, including any loss of bargain, cost
of funding or, at the election of such party but without duplication, loss or
cost incurred as a result of its terminating, liquidating, obtaining or
reestablishing any hedge or related trading position (or any gain resulting from
any of them). Loss includes losses and costs (or gains) in respect of any
payment or delivery required to have been made (assuming satisfaction of each
applicable condition precedent) on or before the relevant Early Termination Date
and not made, except, so as to avoid duplication, if Section 6(e)(i)(1) or (3)
or 6(e)(ii)(2)(A) applies. Loss does not include a party's legal fees and
out-of-pocket expenses referred to under Section 11. A party will determine its
Loss as of the relevant Early Termination Date, or, if that is not reasonably
practicable, as of the earliest date thereafter as is reasonably practicable. A
party may (but need not) determine its Loss by reference to quotations of
relevant rates or prices from one or more leading dealers in the relevant
markets.
"Market Quotation" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an amount,
if any, that would be paid to such party (expressed as a negative number) or by
such party (expressed as a positive number) in consideration of an agreement
between such party (taking into account any existing Credit Support Document
with respect to the obligations of such party) and the quoting Reference
Market-maker to enter into a transaction (the "Replacement Transaction") that
would have the effect of preserving for such party the economic equivalent of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
by the parties under Section 2(a)(i) in respect of such Terminated Transaction
or group of Terminated Transactions that would, but for the occurrence of the
relevant Early Termination Date, have
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been required after that date. For this purpose, Unpaid Amounts in respect of
the Terminated Transaction or group or Terminated Transactions are to be
excluded but, without limitation, any payment or delivery that would, but for
the relevant Early Termination Date, have been required (assuming satisfaction
of each applicable condition precedent) after that Early Termination Date is to
be included. The Replacement Transaction would be subject to such documentation
as such party and the Reference Market-maker may, in good faith, agree. The
party making the determination (or its agent) will request each Reference
Market-maker to provide its quotation to the extent reasonably practicable as of
the same day and time (without regard to different time zones) on or as soon as
reasonably practicable after the relevant Early Termination Date. The day and
time as of which those quotations are to be obtained will be selected in good
faith by the party obliged to make a determination under Section 6(e), and, if
each party is so obliged, after consultation with the other. If more than three
quotations are provided, the Market Quotation will be the arithmetic mean of the
quotations, without regard to the quotations having the highest and lowest
values. If exactly three such quotations are provided, the Market Quotation will
be the quotation remaining after disregarding the highest and lowest quotations.
For this purpose, if more than one quotation has the same highest value or
lowest value, then one of such quotations shall be disregarded. If fewer than
three quotations are provided, it will be deemed that the Market Quotation in
respect of such Terminated Transaction or group of Terminated Transactions
cannot be determined.
"Non-default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the Non-defaulting Party (as certified by it) if
it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Office" means a branch or office of a party, which may be such party's head or
home office.
"Potential Event of Default" means any event which, with the giving of notice or
the lapse of time or both, would constitute an Event of Default.
"Reference Market-makers" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria that
such party applies generally at the time in deciding whether to offer or to make
an extension of credit and (b) to the extent practicable, from among such
dealers having an office in the same city.
"Relevant Jurisdiction" means, with respect to a party, the jurisdictions (a) in
which the party is incorporated, organised, managed and controlled or considered
to have its seat, (b) where an Office through which the party is acting for
purposes of this Agreement is located, (c) in which the party executes this
Agreement and (d) in relation to any payment, from or through which such payment
is made.
"Scheduled Payment Date" means a date on which a payment or delivery is to be
made under Section 2(a)(i) with respect to a Transaction.
"Set-off" means set-off, offset, combination of accounts, right of retention or
withholding or similar right or requirement to which the payer of an amount
under Section 6 is entitled or subject (whether arising under this Agreement,
another contract, applicable law or otherwise) that is exercised by, or imposed
on, such payer.
"Settlement Amount" means, with respect to a party and any Early Termination
Date, the sum of: --
(a) the Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without reference to any
Unpaid Amounts) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation cannot be determined or would not (in
the reasonable belief of the party making the determination) produce a
commercially reasonable result.
"Specified Entity" has the meaning specified in the Schedule.
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"Specified Indebtedness" means, subject to the Schedule, any obligation (whether
present or future, contingent or otherwise, as principal or surety or otherwise)
in respect of borrowed money.
"Specified Transaction" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into between one party to this Agreement (or any Credit Support Provider of such
party or any applicable Specified Entity of such party) and the other party to
this Agreement (or any Credit Support Provider of such other party or any
applicable Specified Entity of such other party) which is a rate swap
transaction, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions), (b) any combination of
these transactions and (c) any other transaction identified as a Specified
Transaction in this Agreement or the relevant confirmation.
"Stamp Tax" means any stamp, registration, documentation or similar tax.
"Tax" means any present or future tax, levy, impost, duty, charge, assessment or
fee of any nature (including interest, penalties and additions thereto) that is
imposed by any government or other taxing authority in respect of any payment
under this Agreement other than a stamp, registration, documentation or similar
tax.
"Tax Event" has the meaning specified in Section 5(b).
"Tax Event Upon Merger" has the meaning specified in Section 5(b).
"Terminated Transactions" means with respect to any Early Termination Date (a)
if resulting from a Termination Event, all Affected Transactions and (b) if
resulting from an Event of Default, all Transactions (in either case) in effect
immediately before the effectiveness of the notice designating that Early
Termination Date (or, if "Automatic Early Termination" applies, immediately
before that Early Termination Date).
"Termination Currency" has the meaning specified in the Schedule.
"Termination Currency Equivalent" means, in respect of any amount denominated in
the Termination Currency, such Termination Currency amount and, in respect of
any amount denominated in a currency other than the Termination Currency (the
"Other Currency"), the amount in the Termination Currency determined by the
party making the relevant determination as being required to purchase such
amount of such Other Currency as at the relevant Early Termination Date, or, if
the relevant Market Quotation or Loss (as the case may be), is determined as of
a later date, that later date, with the Termination Currency at the rate equal
to the spot exchange rate of the foreign exchange agent (selected as provided
below) for the purchase of such Other Currency with the Termination Currency at
or about 11:00 a.m. (in the city in which such foreign exchange agent is
located) on such date as would be customary for the determination of such a rate
for the purchase of such Other Currency for value on the relevant Early
Termination Date or that later date. The foreign exchange agent will, if only
one party is obliged to make a determination under Section 6(e), be selected in
good faith by that party and otherwise will be agreed by the parties.
"Termination Event" means an Illegality, a Tax Event or a Tax Event Upon Merger
or, if specified to be applicable, a Credit Event Upon Merger or an Additional
Termination Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean of the
cost (without proof or evidence of any actual cost) to each party (as certified
by such party) if it were to fund or of funding such amounts.
"Unpaid Amounts" owing to any party means, with respect to an Early Termination
Date, the aggregate of (a) in respect of all Terminated Transactions, the
amounts that became payable (or that would have become payable but for Section
2(a)(iii)) to such party under Section 2(a)(i) on or prior to such Early
Termination Date and which remain unpaid as at such Early Termination Date and
(b) in respect of each Terminated Transaction, for each obligation under Section
2(a)(i) which was (or would have been but for Section 2(a)(iii)) required to be
settled by delivery to such party on or prior to such Early Termination Date and
which has not been so settled as at such Early Termination Date, an amount equal
to the fair market
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value of that which was (or would have been) required to be delivered as of the
originally scheduled date for delivery, in each case together with (to the
extent permitted under applicable law) interest, in the currency of such
amounts, from (and including) the date such amounts or obligations were or would
have been required to have been paid or performed to (but excluding) such Early
Termination Date, at the Applicable Rate. Such amounts of interest will be
calculated on the basis of daily compounding and the actual number of days
elapsed. The fair market value of any obligation referred to in clause (b) above
shall be reasonably determined by the party obliged to make the determination
under Section 6(e) or, if each party is so obliged, it shall be the average of
the Termination Currency Equivalents of the fair market values reasonably
determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
Westpac Securities Administration
Limited
Westpac Banking Corporation (ACN 000 049 472) in its capacity as
ARBN 007 457 141 trustee of the Series 1999-1G WST Trust
- ----------------------------- -----------------------------------------
(Name of Party) (Name of Party)
By: By:
------------------------- -------------------------
Name: Name:
Title: Title:
Date: Date:
Westpac Securitisation Morgan Guaranty Trust
Management Pty Limited Company of New York,
(ACN 081 709 211) London office
- ----------------------------- -----------------------------
(Name of Party) (Name of Party)
By: By:
------------------------- ------------------
Name: Name:
Title: Title:
Date: Date:
18
<PAGE>
SCHEDULE
to the
Master Agreement
dated as of 13 May 1999
between WESTPAC BANKING CORPORATION (ARBN 007 457 141) ("PARTY A")
and WESTPAC SECURITIES ADMINISTRATION LIMITED (ACN 000 049 472) IN ITS CAPACITY
AS TRUSTEE OF THE SERIES 1999-1G WST TRUST ("PARTY B")
and WESTPAC SECURITISATION MANAGEMENT PTY LIMITED (ACN 081 709 211)
(the "TRUST MANAGER")
and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, LONDON OFFICE
(the "CREDIT SUPPORT PROVIDER")
PART 1: TERMINATION PROVISION
(a) "SPECIFIED ENTITY" in relation to:
(i) Party A, is not applicable; and
(ii) Party B, is not applicable.
(b) (i) The following provisions of Section 5 will not apply to
Party A:
Section 5(a)(ii) Section 5(a)(v) Section 5(b)(iv)
Section 5(a)(iii) Section 5(a)(vi)
Section 5(a)(iv) Section 5(b)(iii)
(ii) The following provisions of Section 5 will not apply to
Party B:
Section 5(a)(ii) Section 5(a)(v) Section 5(b)(iii)
Section 5(a)(iii) Section 5(a)(vi) Section 5(b)(iv)
Section 5(a)(iv) Section 5(a)(viii)
(iii) Replace Section 5(a)(i) and insert:
"(i) FAILURE TO PAY OR DELIVER. Failure by the party to
make, when due, any payment under this Agreement or
delivery under Section 2(a)(i) or 2(e) required to be
made by it if such failure is not remedied at or
before 10.00 am on the tenth Local Business Day after
notice of such failure is given to the party";
(iv) Section 5(b)(ii) will not apply to Party A as the Affected
Party (subject to Part 5(4)(ii) of this Schedule).
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2
(v) The "BANKRUPTCY" provisions of Section 5(a)(vii) are replaced
by "An Insolvency Event (as defined in the Master Trust Deed)
has occurred in respect of the party. In relation to Party A,
the events described in the definition of Insolvency Event
shall apply to it as if Party A were a relevant corporation
referred to in that definition. The occurrence of an
Insolvency Event in respect of Party B in its personal
capacity will not constitute an Event of Default provided that
within thirty Business Days of that occurrence, Party B
procures the novation of this Agreement and all Transactions
to a third party in respect of which the Designated Rating
Agencies confirm that the novation will not cause a reduction
or withdrawal of the rating of the Notes and Party A agrees
that it will execute such a novation agreement in standard
ISDA form applicable in the A$ markets".
(vi) The application of Section 5(b)(i) will be restricted as set
out in Part 5(4) of this Schedule.
(c) The "AUTOMATIC EARLY TERMINATION" provisions in Section 6(a) will not
apply to Party A nor Party B.
(d) "PAYMENT ON EARLY TERMINATION". For the purposes of Section 6(e) of
this Agreement:
(i) Market Quotation will apply; and
(ii) the Second Method will apply.
(e) "TERMINATION CURRENCY" means US Dollars.
(f) "ADDITIONAL TERMINATION EVENT" means the occurrence of any of the
following:
(i) Party B is entitled to issue a notice to redeem all of the
Notes (in accordance with the Conditions of the Notes) for
reasons of taxation, in which case Party A shall be the
Affected Party for the purposes of Section 6(b)(iv) of this
Agreement and Party B shall be the Affected Party for the
purposes of Section 6(e)(ii)(1) of this Agreement; or
(ii) an Event of Default (as defined in the Security Trust Deed)
occurs and an Extraordinary Resolution of the Voting
Mortgagees (as defined in the Security Trust Deed) is passed
directing the Security Trustee to exercise rights under clause
8 of the Security Trust Deed, in which case Party B shall be
the Affected Party.
<PAGE>
3
PART 2: TAX REPRESENTATIONS
(a) PAYER TAX REPRESENTATIONS. For the purpose of Section 3(e) of this
Agreement, Party A and Party B each make the following representation:
It is not required by any applicable law, as modified by the practice
of any relevant government revenue authority, of any Relevant
Jurisdiction to make any deduction or withholding for or on account of
any Tax from any payment (other than interest under Section 2(e),
6(d)(ii) or 6(e) of this Agreement) to be made by it to the other party
under this Agreement. In making this representation, it may rely on:
(i) the accuracy of any representation made by the other party
pursuant to Section 3(f) of this Agreement;
(ii) the satisfaction of the agreement contained in Section 4(a)(i)
or 4(a)(iii) of this Agreement and the accuracy and
effectiveness of any document provided by the other party
pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement;
and
(iii) the satisfaction of the agreement of the other party contained
in Section 4(d) of this Agreement,
provided that it shall not be a breach of this representation where
reliance is placed on clause (ii) and the other party does not deliver
a form or document under Section 4(a)(iii) by reason of material
prejudice to its legal or commercial position.
(b) PAYEE TAX REPRESENTATIONS. For the purpose of Section 3(f) of this
Agreement:
Party A and Party B each make the following representation:
It is an Australian resident and does not derive the payments under
this Agreement in part or whole in carrying on business in a country
outside Australia at or through a permanent establishment of itself in
that country.
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4
PART 3: DOCUMENTS TO BE DELIVERED
For the purpose of Section 4(a)(i) and (ii) of this Agreement, each party agrees
to deliver the following documents as applicable:
(a) Tax Forms, documents or certificates to be delivered are:
<TABLE>
<CAPTION>
PARTY REQUIRED TO DELIVER FORM/DOCUMENT/ DATE BY WHICH DOCUMENT TO BE
DOCUMENT CERTIFICATE DELIVERED
<S> <C> <C>
Party A and Party B Any document or certificate reasonably As soon as reasonably practicable
required or reasonably requested by a following the earlier of (a) the
party in connection with its obligations relevant party learning that such
to make a payment under this Agreement document or certificate is
which would enable that party to make required and (b) a request by
the payment free from any deduction or other party.
withholding for or on account of Tax or
as would reduce the rate at which
deduction or withholding for or on
account of Tax is applied to that
payment.
</TABLE>
(b) Other documents to be delivered are:
<TABLE>
<CAPTION>
PARTY REQUIRED TO DELIVER FORM/DOCUMENT/ DATE BY WHICH DOCUMENT TO BE
DOCUMENT CERTIFICATE DELIVERED
<S> <C> <C>
Party A and Party B A legal opinion as to the validity and The date of this agreement.
enforceability of that party's
obligations under this Agreement in form
and substance reasonably acceptable to
the other party.
</TABLE>
<PAGE>
5
<TABLE>
<S> <C> <C>
Party B A certified copy of the Security Trust The date of this Agreement.
Deed, Master Trust Deed, Series Notice
and Note Trust Deed (including Conditions
of Class A and Class B Notes).
For the purposes of this and the following
clause a copy of a document is taken to be
certified if a director or an Authorised
Signatory of Party B, or a person
authorised to execute this Agreement or a
Confirmation on behalf of Party B or a
solicitor acting for Party B has certified
it to be a true and complete copy of the
document of which it purports to be a copy.
Party B (Without limiting any obligation Party B Promptly after any such document
may have under the terms of the Security is entered into.
Trust Deed to notify Party A of amendments)
a certified copy of any document that
amends in any way the terms of the Security
Trust Deed
</TABLE>
All documents delivered under this Part 3(b) are covered by Section 3(d)
representation.
<PAGE>
6
PART 4: MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a) of this
Agreement:
PARTY A:
Address: Westpac Banking Corporation
Level 3
255 Elizabeth Street
Sydney NSW 2000
Attention: Head of Derivatives Operations
Telex No: To be advised by Party A
Answerback: To be advised by Party A
Facsimile No: To be advised by Party A
PARTY B:
Address: Level 10, 130 Pitt Street, Sydney
Attention: The Trustee Securitisation Manager
Facsimile No: 02 9220 5300
And a copy to the Trust Manager to the address provided to Party A.
(b) PROCESS AGENT. For the purpose of Section 13(c) of this Agreement:
Party A appoints as its Process Agent: Not applicable.
Party B appoints as its Process Agent: Not applicable.
The Credit Support Provider appoints as its Process Agent:
Assistant General Counsel
J.P. Morgan Australia
Securities Limited
Level 20, 1 O'Connell Street
Sydney NSW 2000
(c) OFFICES. The provisions of Section 10(a) will apply to Party A.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:
Party A is a Multibranch Party and will act through its Sydney Office
and its London Office. Party B is not a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent is Party A (unless otherwise
specified in a Confirmation in relation to the relevant Transaction).
<PAGE>
7
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document:
(i) Party A: The 1994 ISDA Credit Support Annex attached to this
Agreement and the provisions of Section 20 of this Agreement.
(ii) Party B: The Security Trust Deed.
(g) CREDIT SUPPORT PROVIDER.
(i) In relation to Party A: Morgan Guaranty Trust Company of New
York, London Office, unless:
(A) a Substitute Transaction becomes effective
in accordance with section 21 of the Other
Agreement, in which case, nil; or
(B) an Equivalent-Other Transaction becomes
effective in accordance with section 21 of
the Other Agreement, in which case the New
Currency Swap Provider shall be the new
"Credit Support Provider" in relation to
Party A.
(ii) In relation to Party B. Nil.
(h) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New South Wales and section
13(b)(i) is replaced by "submits to the non-exclusive jurisdiction of
the courts of New South Wales and courts of Appeal from them".
(i) JURISDICTION. In the second line of section 13(b), the words ", the
Credit Support Provider and the Trust Manager" are inserted after the
words "each party".
(j) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) of this
Agreement will apply.
(k) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement. The words "or Affiliates" are deleted where they appear in
the first paragraph of Section 6(b)(ii).
<PAGE>
8
PART 5: OTHER PROVISIONS
(1) PAYMENTS: In Section 2:
(i) In Section 2(a)(i) add the following sentence:
"Each payment will be by way of exchange for the
corresponding payment or payments payable by the
other party";
(ii) In Section 2(a)(ii) insert immediately after the words "freely
transferable funds" the following words:
", free of any set-off, counterclaim, deduction or
withholding (except as expressly provided in this
Agreement),"
(iii) Insert new paragraphs (iv) and (v) in Section 2(a) immediately
after Section 2(a)(iii) as follows:
"(iv) The condition precedent in Section 2(a)(iii)(1) does
not apply to a payment due to be made to a party
if it has satisfied all its payment and delivery
obligations under Section 2(a)(i) and has no
future payment or delivery obligations, whether
absolute or contingent under Section 2(a)(i).
(v) Where:
(1) payments are due pursuant to Section 2(a)(i)
by Party A to Party B (the "PARTY A PAYMENT")
and by Party B to Party A (the "PARTY B
PAYMENT") on the same day
then Party A's obligation to make the Party A payment
will be subject to the condition precedent (which
will be an "applicable condition precedent" for the
purpose of Section 2(a)(iii)(3)) that Party A first
receives either:
(2) the Party B payment; or
(3) confirmation from Party B's bank that it
holds irrevocable instructions to effect
payment of the Party B payment and that
funds are available to make that payment.";
(iv) add the following new sentence to Section 2(b):
"Party B may, for example, reasonably object if the change of
account would materially prejudice Noteholders including,
without limitation, any prejudice arising from any liability
to deduct or withhold any Tax as a result of such a change of
account."
(v) Delete the word "if" at the beginning of Section 2(d)(i)(4)
and insert the following words instead:
"if and only if X is Party A and";
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9
(vi) In Section 2(d)(ii) insert the words "(if and only if Y is
Party A)" after the word "then" at the beginning of the last
paragraph.
(vii) add the following new Section 2(f):
(f) PAYMENT INSTRUCTIONS.
(i) Party B authorises and instructs Party A to make
payment of any amount due from Party A to Party B
hereunder by paying that amount direct to the
Principal Paying Agent to the account specified in
writing by the Principal Paying Agent to Party A and
to Party B. On payment of any such amount by Party A
to the Principal Paying Agent, Party A's obligation
shall be fully discharged in respect of that payment.
(ii) Party A authorises and instructs Party B to make
payment of any amount denominated in Australian
dollars due from Party B to Party A to the following
account in Sydney:
such account in Sydney as is specified by Party A
from time to time.
(2) ADDITIONAL REPRESENTATIONS: In Section 3 add the following immediately
after paragraph (f):
"(g) NON ASSIGNMENT. It has not assigned (whether absolutely, in
equity or otherwise) or declared any trust over (other than,
in respect of Party B, the trusts created under the Master
Trust Deed and the Series Notice) or given any charge over any
of its rights under this Agreement or any Transaction (except
in respect of Party B, for the security interest created under
the Security Trust Deed).
(h) CONTRACTING AS PRINCIPAL. Each existing Transaction has been
entered into by Party A as principal and not otherwise and
each existing Transaction has been entered into by Party B in
its capacity as trustee of the Trust and not otherwise."
(i) Absent a written agreement between the parties that expressly
imposes affirmative obligations to the contrary for that
Transaction:
(A) NON-RELIANCE. It is acting for its own account, and
it has made its own independent decisions to enter
into that Transaction and as to whether that
Transaction is appropriate or proper for it based
upon its own judgment and upon advice from the Trust
Manager and such advisors as it has deemed necessary.
It is not relying on any communication (written or
oral) of the other party as investment advice or as a
recommendation to enter into that Transaction; it
being understood that information and explanations
related to the terms and conditions of a Transaction
shall not be considered investment advice or a
recommendation to enter into that Transaction. It has
not received from the other party any assurance or
guarantee as to the expected results of that
Transaction;
(B) EVALUATION AND UNDERSTANDING. It is capable of
evaluating and understanding (on its own behalf or
through independent professional advice including the
Trust Manager), and understands and accepts the
<PAGE>
10
terms, conditions and risks of that Transaction. It
is also capable of assuming, and assumes, the
financial and other risks of that Transaction;
(C) STATUS OF PARTIES. The other party is not acting as a
fiduciary or an advisor for it in respect of that
Transaction;
(j) Party B represents and warrants on a continuing basis:
(A) TRUST VALIDLY CREATED. The Trust has been validly
created and is in existence at the date of this
Agreement.
(B) SOLE TRUSTEE. It has been validly appointed as
trustee of the Trust and is presently the sole
trustee of the Trust.
(C) NO PROCEEDINGS TO REMOVE. No notice has been given to
it and to its knowledge no resolution has been
passed, and no direction or notice has been given,
removing it as trustee of the Trust.
(D) POWER. It has power to enter into this Agreement and
the Credit Support Document in its capacity as
trustee of the Trust.
(E) GOOD TITLE. It is the owner in equity of the assets
of the Trust and has power to mortgage or charge them
in the manner provided in the Credit Support
Document, and, subject only to the Credit Support
Document and any Security Interest permitted under
the Credit Support Document, those assets are free of
all other Security Interests.
(3) ADDITIONAL COVENANT: In Section 4 add a new paragraph as follows:
"(f) CONTRACTING AS PRINCIPAL. Party A will enter into all
Transactions as principal and not otherwise and Party B will
enter into all Transactions in its capacity as trustee of the
Trust and not otherwise".
(4) AMENDMENT TO SECTION 6. In section 6 make the following amendments:
(i) Section 6(a) is amended by deleting the words "all outstanding
Transactions" where they appear and inserting instead the
words "THE RELEVANT SWAP TRANSACTION".
(ii) Add a new section 6(aa):
"(aa) RESTRICTED TERMINATION RIGHTS.
(i) TERMINATION BY PARTY B: Party B must not designate an
Early Termination Date without the prior written
consent of the Note Trustee.
(ii) CONSULTATION REGARDING TIMING: Each Party may only
designate an Early Termination Date following prior
consultation with the other Party as to the timing of
the Early Termination Date. Subject to its duties
under the Master Trust Deed and the Series Notice,
Party B may exercise any rights in its capacity as
holder of the Purchased Receivables only on the
instructions of the Note Trustee and only after
consultation between Party
<PAGE>
11
A and Note Trustee. Party B may only designate an
Early Termination Date at the direction of the
Trust Manager.
(iii) PARTY A'S LIMITED RIGHTS IN RELATION TO TAX EVENT:
Notwithstanding Part 1(b)(iv) of this Schedule, Party
A may designate an Early Termination Date if it is an
Affected Party following a Tax Event but only if the
Note Trustee is satisfied that the Noteholders and
Couponholders will be paid in full all principal and
interest outstanding on the Notes.
(iv) ILLEGALITY: The parties agree that imposition by any
Agency of an Australian jurisdiction of any exchange
controls, restrictions or prohibitions will not
constitute an Illegality for the purposes of Section
5(b)(i) and Party A will not be entitled to designate
an Early Termination Date, and in those
circumstances, payment by Party B in accordance with
section 2(f) will continue to be proper performance
of its payment obligation and Party A's obligations
will be unaffected, to the extent of Party B's
payments under section 2(f).
(v) TRANSFER WHERE PARTY B DOES NOT GROSS-UP: If any
payment by Party B to Party A under this Agreement
is, or is likely to be, made subject to any deduction
or withholding on account of Tax, Party B will
endeavour to procure the substitution as principal
obligor under this Agreement in respect of each
Affected Transaction of a Party B incorporated in
another jurisdiction approved by Party A and the Note
Trustee and in respect of which the Designated Rating
Agencies confirm that the substitution will not cause
a reduction or withdrawal of the rating of the Notes.
(iii) In section 6(b)(ii), add the words "so long as the transfer in
respect of that Transaction would not lead to a rating
downgrade of any rated debt of Party B that is secured under
the Security Trust Deed" after the words "ceases to exist" at
the end of the first paragraph.
(iv) In section 6(e), delete the sentence "The amount, if any,
payable in respect of an Early Termination Date and determined
pursuant to this Section will be subject to any Set-off." at
the end of the first paragraph.
(5) In section 9, add the following new paragraphs:
"(h) FURTHER ASSURANCES. Each party shall, upon request by the
other party (the "REQUESTING PARTY") at the expense of the
requesting party, perform all such acts and execute all such
agreements, assurances and other documents and instruments as
the requesting party reasonably requires and which are within
the powers of that party to assure and confirm the rights and
powers afforded, created or intended to be afforded or
created, under or in relation to this Agreement and each
Transaction or other dealing which occurs under or is
contemplated by it.
(i) RECORDED CONVERSATION. Each party:
(A) consents to the recording of the telephone
conversations of trading and marketing personnel of
that party and its Affiliates in connection with this
Agreement or any potential Transaction; and
<PAGE>
12
(B) agrees to obtain any necessary consent of, and give
notice of such recording to, such personnel of it and
its Affiliates.
(j) ISDA DEFINITIONS: This Agreement, each Confirmation and each
Transaction are subject to the 1991 ISDA Definitions (as
supplemented by the 1998 Supplement to the 1991 ISDA
Definitions (each as published by the International Swap and
Derivatives Association, Inc.) (the "ISDA DEFINITIONS"), and
will be governed in all respects by any provisions set forth
in the ISDA Definitions, without regard to any amendments to
the ISDA Definitions made after the date of this Agreement.
The ISDA Definitions are incorporated by reference in, and
shall be deemed to be part of, this Agreement and each
Confirmation.
(k) INCONSISTENCY: In the event of any inconsistency between any
two or more of the following documents, they shall take
precedence over each other in the following descending order:
(i) any Confirmation;
(ii) the Schedule to the Master Agreement and "Paragraph
13 - Elections and Variables" to the ISDA Credit
Support Annex (as applicable);
(iii) the ISDA Definitions;
(iv) the printed form of ISDA Master Agreement and ISDA
Credit Support Annex (as applicable)."
(6) FACSIMILE TRANSMISSIONS: Replace Section 12(a)(iii) with:
"(iii) if sent by facsimile, on production of a transmission report
by the machine from which the facsimile was sent which
indicates that the facsimile was sent in its entirety to the
facsimile number of the recipient notified for the purpose of
this Section unless the recipient notifies the sender within
24 hours of the facsimile being sent that the facsimile was
not received in its entirety in legible form;"
(7) DEFINITIONS: In section 14:
(i) add a new paragraph:
"Unless otherwise defined in this Agreement, terms defined in
the Security Trust Deed (either expressly or by incorporation
by reference) have the same meaning where used in this
Agreement."
(ii) Insert the following definitions in its appropriate
alphabetical places in Section 14:
"'RELEVANT SWAP TRANSACTION' means, in relation to Class A
Notes, each Transaction which is a Currency Swap for Class A
Notes only, and in relation to Class B Notes, each Transaction
which is a Currency Swap for Class B Notes only."
"'SECURITY TRUST DEED' means the Series 1999-1G WST Trust
Security Trust Deed dated on or about the date of this
Agreement between Party B as chargor, Perpetual Trustee
Company Limited as security trustee, the Trust Manager and
Citibank, N.A., London Office as note trustee."
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13
(iii) SWAP TRANSACTION. Any reference to a:
(a) "SWAP TRANSACTION" in the 1991 ISDA Definitions is
deemed to be a reference to a "Transaction" for the
purpose of interpreting this Agreement or any
Confirmation; and
(b) "TRANSACTION" in this Agreement or any Confirmation
is deemed to be a reference to a "Swap Transaction"
for the purpose of interpreting the 1991 ISDA
Definitions.
(iv) In the definition of "Market Quotation", on line 1 on page 16
of this Agreement, replace the words "been required after that
date." with:
"been required after that date and, in respect of each
Terminated Transaction which is a Relevant Swap Transaction,
on the basis that the Housing Loan Principal as defined in
Series Notice referred to in the Terminated Transaction will
thereafter have an amortisation schedule based on a constant
prepayment rate per annum ("CPR") equal to:
(a) [XX.X]%, if the Replacement Transaction is calculated
within one year of the Effective Date of the
Terminated Transaction; or
(b) if the Replacement Transaction is calculated later
than one year after the Effective Date of the
Terminated Transaction, the arithmetic mean of the
following:
(I) the four CPRs most recently published prior
to the relevant quotation on Bloomberg
monitor service in respect of the Class of
Notes applicable to the Terminated
Transaction (based on data provided to
Bloomberg by the Trust Manager);
(II) the forecast CPR provided to the party
making the determination (or its agent) by
Party A for the remaining life of the Class
of Notes applicable to the Terminated
Transaction;
(III) the forecast CPR provided to the party
making the determination (or its agent) by
the Credit Support Provider for the
remaining life of the Class of Notes
applicable to the Terminated Transaction;
(IV) the forecast CPR provided to the party
making the determination (or its agent) by
the Trust Manager for the remaining life of
the Class of Notes applicable to the
Terminated Transaction,
without regard to the CPRs having the highest and
lowest values (unless fewer than three CPRs are
provided under subparagraphs (II), (III) and (IV)
collectively, in which case all CPRs will be taken
into account in the calculation of the arithmetic
mean). For this purpose, if more than one CPR has the
same highest value or lowest value, then one of such
CPRs shall be disregarded.
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14
(8) OTHER PROVISIONS, INCLUDING CREDIT SUPPORT:
Insert the following Sections 15, 16, 17, 18, 19, 20 and 21 after
Section 14:
"15. SEGREGATION:
The liability of Party B under this Agreement is several and
is separate in respect of each Relevant Swap Transaction. The
failure of Party B to perform its obligations in respect of
any Relevant Swap Transaction shall not release Party B from
its obligations under this Agreement or under any other
Relevant Swap Transaction in respect of any other Notes issued
by Party B. Nothing in this Agreement affects the respective
priority rankings of claims against the Mortgaged Property of
Party B under the Security Trust Deed. Without limiting the
generality of the foregoing, the provisions of this Agreement
shall have effect separately and severally in respect of each
Relevant Swap Transaction and shall be enforceable by or
against Party B as though a separate agreement applied between
Party A and Party B for each Relevant Swap Transaction, so
that (among other things):
(i) this Agreement together with each Confirmation
relating to a Relevant Swap Transaction will form a
single separate agreement between Party A and Party B
and references to the respective obligations
(including references to payment obligations
generally and in the context of provisions for the
netting of payments and the calculation of amounts
due on early termination) of Party A and Party B
shall be construed accordingly as a several reference
to each mutual set of obligations arising under each
such separate agreement between Party A and Party B;
(ii) representations made and agreements entered into by
the parties under this Agreement are made and entered
separately and severally by Party B in respect of
each Relevant Swap Transaction and may be enforced by
Party B against Party A separately and severally in
respect of each Relevant Swap Transaction;
(iii) rights of termination, and obligations and
entitlements consequent upon termination, only accrue
to Party A against Party B separately and severally
in respect of each Relevant Swap Transaction, and
only accrue to Party B against Party A separately and
severally in respect of each Relevant Swap
Transaction; and
(iv) the occurrence of an Event of Default or Termination
Event in respect of a Relevant Swap Transaction does
not in itself constitute an Event of Default or
Termination Event in respect of any other Relevant
Swap Transaction."
16. RECOURSE
Party B enters into this Agreement in its capacity as Trustee
of the Trust, and Clause 3.3(b) of the Series Notice applies
to this Agreement as if set out in full. Clause 16 of the
Security Trust Deed shall apply to govern Party A's priority
to moneys received from the sale of Assets or other
enforcement of the Charge under the Security Trust Deed.
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15
This Section 16:
(i) applies even though any other provision of this
Agreement is not made subject to it; and
(ii) overrides any other provision of this Agreement which
is inconsistent with it.
17. THE TRUST MANAGER
Party A acknowledges that the Trust Manager will, at the
request of Party B, perform the day to day management of the
Trust on the terms and conditions of the Master Trust Deed and
Series Notice. Unless expressly advised to the contrary in
writing by Party B from time to time, any rights or
obligations of Party B under this Agreement may be exercised
or satisfied (as the case may be) by the Trust Manager on
behalf of Party B and Party A is not obliged to enquire as to
the authority of the Trust Manager to take such action on
behalf of Party B. Except where the context otherwise
requires, references in this Agreement to a "party" to this
Agreement are to Party A or Party B.
18. TRUST DEED
The parties acknowledge and agree that, for the purposes of
the Master Trust Deed and the Trust Documents, this Agreement
is a "Hedge Agreement" and Party A is a "Swap Provider" and
"Support Facility Provider".
19. REPLACEMENT CURRENCY SWAP
(a) If this Agreement is terminated, Party B may, at the
direction of the Trust Manager, enter into one or
more currency swaps which replace the Transactions
under this Agreement (collectively a "Replacement
Currency Swap") but only on the condition that the
Settlement Amount payable (if any) by Party B to
Party A upon termination of this Agreement will be
paid in full when due in accordance with the Series
Notice and this Agreement.
(b) If the condition in section 19(a) is satisfied, Party
B may enter into the Replacement Currency Swap and if
it does so it must direct the Replacement Currency
Swap provider to pay any upfront premium to enter
into the Replacement Currency Swap due to Party B
directly to Party A in satisfaction of and to the
extent of Party B's obligation to pay the Settlement
Amount to Party A as referred to in section 19(a),
and to the extent that such premium is not greater
than or equal to the Settlement Amount, the balance
may be satisfied by Party B as a Trust Expense (as
defined in the Series Notice).
(c) The obligations of Party B (and the rights of Party
A) under this section 19 constitute separate and
independent obligations of Party B (and rights of
Party A) and shall survive the termination of this
Agreement.
(d) If a Settlement Amount is payable by Party A to Party
B upon termination of this Agreement, Party B may
direct Party A to pay all or part of that amount (but
not any greater amount) to the extent required to the
Replacement Currency Swap provider in satisfaction of
and to the extent
<PAGE>
16
of Party B's obligation to pay any
upfront premium to the Replacement Currency Swap
provider to enter into the Replacement Currency Swap.
20. CREDIT SUPPORT
(a) In consideration of Party B entering into an
agreement on the same material terms as this
Agreement with the Credit Support Provider (the
"Other Agreement") and Transactions under the Other
Agreement on the same material economic terms as
Transactions under this Agreement, the Credit Support
Provider hereby unconditionally guarantees to Party B
the payment by Party A of moneys which are payable by
Party A under a Relevant Swap Transaction (on terms
set out in this Agreement and in the Confirmation for
that Relevant Swap Transaction) (the "Payable
Moneys") to Party B in the event that Party A
defaults in the payment of those Payable Moneys.
(b) If Party B has not been, or Party A reasonably
expects that Party B is not going to be, paid all or
any part of the presently payable Payable Moneys by
Party A, then Party A or Party B may by notice to the
Credit Support Provider demand payment of the Payable
Moneys in respect of which demand is being made. The
Credit Support Provider's obligations to pay, within
the applicable grace period, the presently payable
Payable Moneys which have not been paid by Party A
shall not, however, be conditional upon the Credit
Support Provider receiving such notice of demand.
(c) The Credit Support Provider agrees that it will not,
unless and until all the present and prospective
Payable Moneys have been paid, exercise any rights of
subrogation which it may acquire due to its payment
of Payable Moneys under section 20(a).
(d) All payments by the Credit Support Provider shall be
made in the currency in which the Payable Moneys are
denominated.
(e) Party B agrees that, without affecting its rights
under clause 21, to the extent that the Credit
Support Provider pays the Payable Moneys and thereby
avoids or remedies a default by Party A, Party B
shall not be entitled to designate an Early
Termination Date in respect of that default by Party
A, and such a payment by the Credit Support Provider
shall be deemed to be an "actual payment" as referred
to in line 6 of section 2(e) of this Agreement.
(f) The provisions of this section 20 shall constitute
irrevocable obligations of the Credit Support
Provider until a notice of revocation is served by
the Credit Support Provider on Party B, but such a
notice cannot and shall not be served without the
prior written consent of Party A, the Note Trustee
and the Trust Manager in consultation with the
Designated Rating Agencies.
21. CREDIT SUPPORT PROVIDER TRANSACTIONS
(a) The Credit Support Provider may give a Substitution
Notice to Party B specifying a Transaction which
shall be substituted under this Section 21
<PAGE>
17
(a "Replaced Transaction"), but only on the condition
that a Credit Event has occurred in respect of Party
A.
(b) If the Credit Support Provider gives a Substitution
Notice under paragraph 21(a), then either:
(i) a Substitute Transaction shall become
effective and the Effective Date shall be
the date specified in the Substitution
Notice; or
(ii) both:
(A) Party B, the Credit Support Provider
and the Trust Manager must enter
into an Equivalent Transaction with
a suitably rated counterparty
procured by the Credit Support
Provider and accepted by Party B,
the Trust Manager and the Note
Trustee (the "New Currency Swap
Provider") and the Effective Date
shall be the date specified in the
Substitution Notice as the Effective
Date for the Equivalent-Other
Transaction; and
(B) an Equivalent-Other Transaction
shall become effective and the
Effective Date shall be the date
specified in the Substitution
Notice. The New Currency Swap
Provider must sign, and Party B, the
Credit Support Provider and the
Trust Manager must countersign, an
accession as provided for in the
Confirmation for the
Equivalent-Other Transaction.
For the avoidance of doubt, if the Substitution
Notice specifies that either the Transaction under
paragraph (b)(i) or the Transactions under paragraphs
(b)(ii)(A) and (B) shall become effective as
alternatives, and if a suitably rated counterparty is
not procured by the Credit Support Provider under
paragraph (b)(ii)(A), the Substitute Transaction must
become effective in accordance with paragraph (b)(i).
(c) On the date on which the Transactions become
effective in accordance with a Substitution Notice
under either paragraph (b)(i) or (b)(ii):
(i) the Replaced Transaction shall terminate;
and
(ii) the Other Transaction shall terminate.
(d) No Settlement Amount or other amount under section 6
or section 11 shall be payable by, or to, Party B (as
the case may be) upon the termination of the
Transactions under paragraphs (c)(i) and (ii),
because the Transactions specified in paragraphs
(b)(i), or (b)(ii)(A) and (B), as the case may be,
shall have the effect of preserving for Party B the
economic equivalent of the payments under the
Transactions which are being terminated.
(e) Definitions. For the purposes of this Section 21:
<PAGE>
18
"Credit Event" means, in relation to Party A, the
occurrence at any time of any of the following events
with respect to Party A:
(i)(A) failure by Party A to make, when due, any
payment under the Replaced Transaction
required to be made by it if such failure is
not remedied on or before the tenth local
Business Day after notice of such failure is
given to Party A; and
(B) On any day on which a failure by Party A
under paragraph (e)(i)(A) is subsisting:
(I) the Market Value of a floating rate
Reference Obligation is below the
Initial Price of such by more than the
Price Decline Requirement;
(II) the sum of the Market Value of a fixed
rate Reference Obligation and the
Interest Rate Adjustment Amount of
such is below the Initial Price of
such by more than the Price Decline
Requirement; or
(III) the occurrence with respect to Party A
of an event specified in paragraph
7(i) of the Credit Support Annex
attached to this Agreement.
For the purposes of this paragraph
(e)(i)(B), "Market Value", "Reference
Obligation", "Initial Price", "Price
Decline Requirement" and "Interest
Rate Adjustment Amount" shall have the
meanings given in the Confirmation for
the Replaced Transaction; or
(ii) the occurrence of (A) a default, event of
default or other similar condition or event
(however described) in respect of Party A
under one or more agreements or instruments
relating to Specified Indebtedness of Party
A in an aggregate amount of not less than
the applicable Threshold Amount which has
resulted in the Specified Indebtedness
becoming due and payable under such
agreements or instruments before it would
otherwise have been due and payable, or (B)
a default by Party A in making one or more
payments on the due date thereof in an
aggregate amount of not less than the
applicable Threshold Amount under such
agreements or instruments (after giving
effect to any applicable notice requirement
or grace period).
For the purposes of this paragraph (e)(ii),
"Specified Indebtedness" and "Threshold
Amount" shall have the meanings given in the
Confirmation for the Replaced Transaction;
or
(iii) the occurrence with respect to Party A of an
event specified in Section 5(a)(vii)(1) to
(9) inclusive; or
(iv) the occurrence with respect to Party A of an
event specified in Section 5(b)(i)(1); or
<PAGE>
19
(v) the occurrence with respect to Party A (and
not the Credit Support Provider) of an event
specified in Section 5(a)(viii);
"Equivalent Transaction" means a Transaction governed
by a new agreement on the same material terms as this
Agreement and on the same material economic terms as
the Replaced Transaction, and with the same Trade
Date as the Replaced Transaction, except that:
(i) the New Currency Swap Provider is designated
as "Party A";
(ii) the Credit Support Provider is designated as
the new "Credit Support Provider" in
relation to Party A;
(iii) the "Effective Date" is as specified in the
relevant Confirmation for that Transaction,
being the same date as that specified in the
Substitution Notice as the Effective Date
for the Equivalent-Other Transaction; and
(iv) no Initial Exchanges are payable under the
Transaction.
"Equivalent-Other Transaction" means a Transaction
governed by the Other Agreement and on the same
material economic terms as the Other Transaction and
with the same Trade Date as the Replaced Transaction,
except that:
(i) the Credit Support Provider is designated as
the new Party A;
(ii) the New Currency Swap Provider is designated
as the new "Credit Support Provider" in
relation to Party A;
(iii) the "Effective Date" is as specified in the
relevant Substitution Notice; and
(iv) no Initial Exchanges are payable under the
Transaction.
"New Currency Swap Provider" has the meaning given
in paragraph (b)(ii)(A);
"Other Agreement" has the meaning given in
section 20;
"Other Transaction" means the Transaction governed by
the Other Agreement and on the same economic terms as
the Replaced Transaction, with the same Trade Date as
the Replaced Transaction, and as specified as such in
the relevant Substitution Notice;
"Replaced Transaction" means the Transaction governed
by this Agreement, and specified as such in the
relevant Substitution Notice, as referred to in
section 21(a);
"Substitute Transaction" means a Transaction governed
by the Other Agreement, and on the same economic
terms as the Other Transaction and with the same
Trade Date as the Replaced Transaction, except that:
<PAGE>
20
(i) no party is designated as a "Credit Support
Provider";
(ii) the Effective Date is as specified in the
relevant Substitution Notice;
(iii) the Notional Amounts applicable to the
Floating Amounts payable by the respective
parties under the Transaction are the same
as the Notional Amounts applicable to the
Floating Amounts payable by the respective
parties under the Replaced Transaction
except that the references to "fifty (50)
percent" are substituted by references to
"one hundred (100) percent";
(iv) no Initial Exchanges are payable; and
(v) no "Credit Support Provider Provisions"
apply.
"Substitution Notice" means an irrevocable notice in
writing from the Credit Support Provider to Party B
and the Trust Manager, which may be delivered between
9.00 am and 4.00 pm in Sydney on a Business Day in
accordance with section 12, and which:
(i) describes the occurrence of a Credit Event;
(ii) specifies the Effective Date for an
Equivalent-Other Transaction or for a
Substitute Transaction (or for either
Transactions under Section 21(b)(i) or
21(b)(ii), as alternatives) and specifies
the proposed New Currency Swap Provider and,
if an Equivalent-Other Transaction is
specified, the terms of the Equivalent
Transaction (by attaching a proposed
Confirmation for the Equivalent
Transaction); and
(iii) confirms that the Termination Date for the
Replaced Transaction and the Other
Transaction shall be the Effective Date for
the Transactions in either paragraphs
(b)(i), or (b)(ii)(A) and (B), as the case
may be.
(f) Section 21 and any related provision in a
Confirmation (the "Substitution Provisions") shall
not amend, or affect the operation of, any other
provision in this Agreement, except to the extent, if
any, expressly provided by the Substitution
Provisions. For the avoidance of doubt and without
limitation, the Substitution Provisions shall not
amend, or affect the operation of, the provisions of
the Credit Support Annex, sections 15 to 20
inclusive, and provisions in this Agreement which
specify certain events as Events of Default or
Termination Events.
<PAGE>
(Bilateral Form) (ISDA Agreements Subject to New York Law Only)
ISDA-Registered Trademark-
International Swaps and Derivatives Association, Inc.
CREDIT SUPPORT ANNEX
to the Schedule to the
ISDA MASTER AGREEMENT
---------------------
dated as of
---------------------------
WESTPAC SECURITIES
WESTPAC between ADMINISTRATION LIMITED
BANKING AS TRUSTEE OF THE
CORPORATION and SERIES 1999-1G WST TRUST
- ------------------------------ ----------------------------------
("Party A") ("Party B")
This Annex supplements, forms part of, and is subject to, the
above-referenced Agreement, is part of its Schedule and is a Credit Support
Document under this Agreement with respect to each party.
Accordingly, the parties agree as follows--
PARAGRAPH 1. INTERPRETATION
(a) DEFINITIONS AND INCONSISTENCY. Capitalized terms not otherwise defined
herein or elsewhere in this Agreement have the meanings specified pursuant to
Paragraph 12, and all references in this Annex to Paragraphs are to
Paragraphs of this Annex. In the event of any inconsistency between this
Annex and the other provisions of this Schedule, this Annex will prevail, and
in the event of any inconsistency between Paragraph 13 and the other
provisions of this Annex. Paragraph 13 will prevail.
(b) SECURED PARTY AND PLEDGOR. All references in this Annex to the "Secured
Party" will be to either party when acting in that capacity and all
corresponding references to the "Pledgor" will be to the other party when
acting in that capacity; PROVIDED, HOWEVER, that if Other Posted Support is
held by a party to this Annex, all references herein to that party as the
Secured Party with respect to that Other Posted Support will be to that party
as the beneficiary thereof and will not subject that support of that party as
the beneficiary thereof to provisions of law generally relating to security
interests and secured parties.
PARAGRAPH 2. SECURITY INTEREST
Each party, as the Pledgor, hereby pledges to the other party, as the Secured
Party, as security for its Obligations, and grants to the Secured Party a
first priority continuing security interest in, lien on and right of Set-off
against all Posted Collateral Transferred to or received by the Secured Party
hereunder. Upon the Transfer by the Secured Party to the Pledgor of Posted
Collateral, the security interest and lien granted hereunder on that Posted
Collateral will be released immediately and, to the extent possible, without
any further action by either party.
Copyright-C- 1994 by International Swaps and Derivatives Association, Inc.
<PAGE>
PARAGRAPH 3. CREDIT SUPPORT OBLIGATIONS
(a) DELIVERY AMOUNT. Subject to Paragraphs 4 and 5, upon a demand made by
the Secured Party on or promptly following a Valuation Date, if the Delivery
Amount for that Valuation Date equals or exceeds the Pledgor's Minimum
Transfer Amount, then the Pledgor will Transfer to the Secured Party Eligible
Credit Support having a Value as of the date of Transfer at least equal to
the applicable Delivery Amount (rounded pursuant to Paragraph 13). Unless
otherwise specified in Paragraph 13, the "DELIVERY AMOUNT" applicable to the
Pledgor for any Valuation Date will equal the amount by which:
(i) the Credit Support Amount
exceeds
(ii) the Value as of that Valuation Date of all Posted Credit Support held
by the Secured Party.
(b) RETURN AMOUNT. Subject to Paragraphs 4 and 5, upon a demand made by the
Pledgor on or promptly following a Valuation Date, if the Return Amount for
that Valuation Date equals or exceeds the Secured Party's Minimum Transfer
Amount, then the Secured Party will Transfer to the Pledgor Posted Credit
Support specified by the Pledgor in that demand having a Value as of the date
of Transfer as close as practicable to the applicable Return Amount (rounded
pursuant to Paragraph 13). Unless otherwise specified in Paragraph 13, the
"RETURN AMOUNT" applicable to the Secured Party for any Valuation Date will
equal the amount by which:
(i) the Value as of that Valuation Date of all Posted Credit Support held
by the Secured Party
exceeds
(ii) the Credit Support Amount.
"CREDIT SUPPORT AMOUNT" means, unless otherwise specified in Paragraph 13,
for any Valuation Date (i) the Secured Party's Exposure for that Valuation
Date plus (ii) the aggregate of all Independent Amounts applicable to the
Pledgor, if any, minus (iii) all Independent Amounts applicable to the
Secured Party, if any, minus (iv) the Pledgor's Threshold; PROVIDED, HOWEVER,
that the Credit Support Amount will be deemed to be zero whenever the
calculation of Credit Support Amount yields a number less than zero.
PARAGRAPH 4. CONDITIONS PRECEDENT, TRANSFER TIMING, CALCULATIONS AND
SUBSTITUTIONS
(a) CONDITIONS PRECEDENT. Each Transfer obligation of the Pledgor under
Paragraphs 3 and 5 and of the Secured Party under Paragraphs 3.4(d)(ii), 5
and 6(d) is subject to the conditions precedent that:
(i) no Event of Default, Potential Event of Default or Specified Condition
has occurred and is continuing with respect to the other party; and
(ii) no Early Termination Date for which any unsatisfied payment
obligations exist has occurred or been designated as the result of an
Event of Default or Specified Condition with respect to the other party.
(b) TRANSFER TIMING. Subject to Paragraphs 4(a) and 5 and unless otherwise
specified, if a demand for the Transfer of Eligible Credit Support or Posted
Credit Support is made by the Notification Time, then the relevant Transfer
will be made not later than the close of business on the next Local Business
Day; if a demand is made after the Notification Time, then the relevant
Transfer will be made not later than the close of business on the second
Local Business Day thereafter.
(c) CALCULATIONS. All calculations of Value and Exposure for purposes of
Paragraphs 3 and 6(d) will be made by the Valuation Agent as of the Valuation
Time. The Valuation Agent will notify each party (or the other party, if the
Valuation Agent is a party of its calculations not later than the
Notification Time on the Local Business Day following the applicable
Valuation Date (or in the case of Paragraph 6(d), following the date of
calculation).
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<PAGE>
(d) SUBSTITUTIONS.
(i) Unless otherwise specified in Paragraph 13, upon notice to the
Secured Party specifying the items of Posted Credit Support to be
exchanged, the Pledgor may, on any Local Business Day, Transfer to the
Secured Party substitute Eligible Credit Support (the "Substitute
Credit Support"); and
(ii) subject to Paragraph 4(a), the Secured Party will Transfer to the
Pledgor the items of Posted Credit Support specified by the Pledgor in its
notice not later than the Local Business Day following the date on which
the Secured Party receives the Substitute Credit Support, unless otherwise
specified in Paragraph 13 (the "Substitution Date"); PROVIDED that the
Secured Party will only be obligated to Transfer Posted Credit Support
with a Value as of the date of Transfer of that Posted Credit Support equal
to the Value as of that date of the Substitute Credit Support.
PARAGRAPH 5. DISPUTE RESOLUTION
If a party (a "Disputing Party") disputes (1) the Valuation Agent's
calculation of a Delivery Amount or a Return Amount or (II) the Value of any
Transfer of Eligible Credit Support or Posted Credit Support, then (1) the
Disputing Party will notify the other party and the Valuation Agent (if the
Valuation Agent is not the other party) not later than the close of business
on the Local Business Day following (X) the date that the demand is made
under Paragraph 3 in the case of (I) above or (Y) the date of Transfer in the
case of (II) above, (2) subject to Paragraph 4(a), the appropriate party will
Transfer the undisputed amount to the other party not later than the close of
business on the Local Business Day following (X) the date that the demand is
made under Paragraph 3 in the case of (I) above or (Y) the date of Transfer
in the case of (II) above, (3) the parties will consult with each other in
an attempt to resolve the dispute and (4) if they fail to resolve the dispute
by the Resolution Time, then:
(i) In the case of a dispute involving a Delivery Amount or Return
Amount, unless otherwise specified in Paragraph 13, the Valuation Agent
will recalculate the Exposure and the Value as of the Recalculation Date
by:
(A) utilizing any calculations of Exposure for the Transactions
(or Swap Transactions) that the parties have agreed are not in dispute;
(B) calculating the Exposure for the Transactions (or Swap
Transactions) in dispute by seeking four actual quotations at
mid-market from Reference Market-makers for purposes of calculating
Market Quotation, and taking the arithmetic average of those obtained:
PROVIDED that if four quotations are not available for a particular
Transaction (or Swap Transaction), then fewer than four quotations
may be used for that Transaction (or Swap Transaction); and if no
quotations are available for a particular Transaction (or Swap
Transaction), then the Valuation Agent's original calculations will
be used for that Transaction (or Swap Transaction); and
(C) utilizing the procedures specified in Paragraph 13 for calculating
the Value, if disputed, of Posted Credit Support.
(ii) In the case of a dispute involving the Value of any Transfer of
Eligible Credit Support or Posted Credit Support, the Valuation Agent will
recalculate the Value as of the date of Transfer pursuant to Paragraph 13.
Following a recalculation pursuant to this Paragraph, the Valuation Agent
will notify each party (or the other party, if the Valuation Agent is a
party) not later than the Notification Time on the Local Business Day
following the Resolution Time. The appropriate party will, upon demand
following that notice by the Valuation Agent or a resolution pursuant to (3)
above and subject to Paragraphs 4(a) and 4(b), make the appropriate Transfer.
3
<PAGE>
PARAGRAPH 6. HOLDING AND USING POSTED COLLATERAL
(a) CARE OF POSTED COLLATERAL. Without limiting the Secured Party's rights
under Paragraph 6(c), the Secured Party will exercise reasonable care to
assure the safe custody of all Posted Collateral to the extent required by
applicable law, and in any event the Secured Party will be deemed to have
exercised reasonable care if it exercises at least the same degree of care
as it would exercise with respect to its own property. Except as specified
in the preceding sentence, the Secured Party will have no duty with respect to
Posted Collateral, including, without limitation, any duty to collect any
Distributions, or enforce or preserve any rights persisting thereto.
(b) ELIGIBILITY TO HOLD POSTED COLLATERAL; CUSTODIANS.
(i) GENERAL. Subject to the satisfaction of any conditions specified in
Paragraph 13 for holding Posted Collateral, the Secured Party will
be entitled to hold Posted Collateral or to appoint an agent (a
"Custodian") to hold Posted Collateral for the Secured Party. Upon
notice by the Secured Party to the Pledgor of the appointment of a
Custodian, the Pledgor's obligations to make any Transfer will be
discharged by making the Transfer to that Custodian. The holding of
Posted Collateral by a Custodian will be deemed to be the holding of
that Posted Collateral by the Secured Party for which the Custodian is
acting.
(ii) FAILURE TO SATISFY CONDITIONS. If the Secured Party or its Custodian
fails to satisfy any conditions for holding Posted Collateral, then upon a
demand made by the Pledgor, the Secured Party will, not later than five
Local Business Days after the demand, Transfer or cause its Custodian to
Transfer all Posted Collateral held by it to a Custodian that satisfies
those conditions or to the Secured Party if it satisfies those conditions.
(iii) LIABILITY. The Secured Party will be liable for the acts or
omissions of its Custodian to the same extent that the Secured Party
would be liable hereunder for its own acts or omissions.
(c) USE OF POSTED COLLATERAL. Unless otherwise specified in Paragraph 13 and
without limiting the rights and obligations of the parties under Paragraphs
3, 4(d)(ii), 5, 6(d) and 8, if the Secured Party is not a Defaulting Party
or an Affected Party with respect to a Specified Condition and no Early
Termination Date has occurred or been designated as the result of an Event of
Default or Specified Condition with respect to the Secured Party, then the
Secured Party will, notwithstanding Section 9-207 of the New York Uniform
Commercial Code, have the right to:
(i) sell, pledge, rehypothecate, assign, invest, use, commingle or
otherwise dispose of, or otherwise use in its business any Posted
Collateral it holds, free from any claim or right of any nature whatsoever
of the Pledgor, including any equity or right of redemption by the Pledgor;
and
(ii) register any Posted Collateral in the name of the Secured Party, its
Custodian or a nominee of either.
For purposes of the obligation to Transfer Eligible Credit Support or Posted
Credit Support pursuant to Paragraphs 3 and 5 and any rights or remedies
authorized under this Agreement, the Secured Party will be deemed to continue
to hold all Posted Collateral and to receive Distributions made thereon,
regardless of whether the Secured Party has exercised any rights with respect
to any Posted Collateral pursuant to (i) or (ii) above.
(d) DISTRIBUTIONS AND INTEREST AMOUNT.
(i) DISTRIBUTIONS. Subject to Paragraph 4(a), if the Secured Party
receives or is deemed to receive Distributions on a Local Business Day, it
will Transfer to the Pledgor not later than the following Local Business Day
any Distributions it receives or is deemed to receive to the extent that a
Delivery Amount would not be created or increased by that Transfer, as
calculated by the Valuation Agent (and the date of calculation will be deemed
to be a Valuation Date for this purpose).
4
<PAGE>
(ii) INTEREST AMOUNT. Unless otherwise specified in Paragraph 13 and
subject to Paragraph 4(a), in lieu of any interest, dividends or other
amounts paid or deemed to have been paid with respect to Posted
Collateral in the form of Cash (all of which may be retained by the
Secured Party), the Secured Party will Transfer to the Pledgor at the
times specified in Paragraph 13 the Interest Amount to the extent that a
Delivery Amount would not be created or increased by that Transfer, as
calculated by the Valuation Agent (and the date of calculation will be
deemed to be a Valuation Date for this purpose). The Interest Amount or
portion thereof not Transferred pursuant to this Paragraph will
constitute Posted Collateral in the form of Cash and will be subject to
the security interest granted under Paragraph 2.
PARAGRAPH 7. EVENTS OF DEFAULT
For purposes of Section 5(a)(iii)(1) of this Agreement, an Event of Default
will exist with respect to a party if:
(i) that party fails (or fails to cause its Custodian) to make, when
due, any Transfer of Eligible Collateral, Posted Collateral or the
Interest Amount, as applicable, required to be made by it and that
failure continues for two Local Business Days after notice of that
failure is given to that party;
(ii) that party fails to comply with any restriction or prohibition
specified in this Annex with respect to any of the rights specified in
Paragraph 6(c) and that failure continues for five Local Business Days
after notice of that failure is given to that party; or
(iii) that party fails to comply with or perform any agreement or
obligation other than those specified in Paragraphs 7(i) and 7(ii) and
that failure continues for 30 days after notice of that failure is given
to that party.
PARAGRAPH 8. CERTAIN RIGHTS AND REMEDIES
(a) SECURED PARTY'S RIGHTS AND REMEDIES. If at any time (1) an Event of
Default or Specified Condition with respect to the Pledgor has occurred and
is continuing or (2) an Early Termination Date has occurred or been
designated as the result of an Event of Default or Specified Condition with
respect to the Pledgor, then, unless the Pledgor has paid in full all of its
Obligations that are then due, the Secured Party may exercise one or more of
the following rights and remedies:
(i) all rights and remedies available to a secured party under
applicable law with respect to Posted Collateral held by the Secured
Party;
(ii) any other rights and remedies available to the Secured Party under
the terms of Other Posted Support, if any;
(iii) the right to Set-off any amounts payable by the Pledgor with
respect to any Obligations against any Posted Collateral or the Cash
equivalent of any Posted Collateral held by the Secured Party (or any
obligation of the Secured Party to Transfer that Posted Collateral); and
(iv) the right to liquidate any Posted Collateral held by the Secured
Party through one or more public or private sales or other dispositions
with such notice, if any, as may be required under applicable law, free
from any claim or right of any nature whatsoever of the Pledgor, including
any equity or right of redemption by the Pledgor (with the Secured Party
having the right to purchase any or all of the Posted Collateral to be
sold) and to apply the proceeds (or the Cash equivalent thereof) from
the liquidation of the Posted Collateral to any amounts payable by the
Pledgor with respect to any Obligations in that order as the Secured
Party may elect.
Each party acknowledges and agrees that Posted Collateral in the form of
securities may decline speedily in value and is of a type customarily sold on
a recognized market, and, accordingly, the Pledgor is not entitled to prior
notice of any sale of that Posted Collateral by the Secured Party, except any
notice that is required under applicable law and cannot be waived.
5
<PAGE>
(b) PLEDGOR'S RIGHTS AND REMEDIES. If at any time an Early Termination Date
has occurred or been designated as the result of an Event of Default or
Specified Condition with respect to the Secured Party, then (except in the
case of an Early Termination Date relating to less than all Transactions (or
Swap Transactions) where the Secured Party has paid in full all of its
obligations that are then due under Section 6(c) of this Agreement):
(i) the Pledgor may exercise all rights and remedies available to a
pledgor under applicable law with respect to Posted Collateral held by
the Secured Party;
(ii) the Pledgor may exercise any other rights and remedies available to
the Pledgor under the terms of Other Posted Support, if any;
(iii) the Secured Party will be obligated immediately to Transfer all
Posted Collateral and the Interest Amount to the Pledgor; and
(iv) to the extent that Posted Collateral or the Interest Amount is not
so Transferred pursuant to (iii) above, the Pledgor may:
(A) Set-off any amounts payable by the Pledgor with respect to any
Obligations against any Posted Collateral or the Cash equivalent of
any Posted Collateral held by the Secured Party (or any obligation of
the Secured Party to Transfer that Posted Collateral); and
(B) to the extent that the Pledgor does not Set-off under (iv)(A)
above, withhold payments of any remaining amounts payable by the
Pledgor with respect to any Obligations up to the Value of any
remaining Posted Collateral held by the Secured Party, until that
Posted Collateral is Transferred to the Pledgor.
(c) DEFICIENCIES AND EXCESS PROCEEDS. The Secured Party will Transfer to the
Pledgor any proceeds and Posted Credit Support remaining after liquidation.
Set-off and or application under Paragraphs 8(a) and 8(b) after satisfaction
in full of all amounts payable by the Pledgor with respect to any
Obligations; the Pledgor in all events will remain liable for any amounts
remaining unpaid after any liquidation. Set-off and/or application under
Paragraphs 8(a) and 8(b).
(d) FINAL RETURNS. When no amounts are or thereafter may become payable by
the Pledgor with respect to any Obligations (except for any potential
liability under Section 2(d) of this Agreement), the Secured Party will
Transfer to the Pledgor all Posted Credit Support and the Interest Amount, if
any.
PARAGRAPH 9. REPRESENTATIONS
Each party represents to the other party (which representations will be
deemed to be repeated as of each date on which it, as the Pledgor, Transfers
Eligible Collateral) that:
(i) it has the power to grant a security interest in and lien on any
Eligible Collateral it Transfers as the Pledgor and has taken all necessary
actions to authorize the granting of that security interest and lien.
(ii) it is the sole owner of or otherwise has the right to Transfer all
Eligible Collateral it Transfers to the Secured Party hereunder, free and
clear of any security interest, lien, encumbrance or other restrictions
other than the security interest and lien granted under Paragraph 2;
(iii) upon the Transfer of any Eligible Collateral to the Secured Party
under the terms of this Annex, the Secured Party will have a valid and
perfected first priority security interest therein (assuming that any
central clearing corporation or any third-party financial intermediary or
other entity not within the control of the Pledgor involved in the Transfer
of that Eligible Collateral gives the notices and takes the action required
of it under applicable law for perfection of that interest); and
(iv) the performance by its other obligations under this Annex will not
result in the creation of any security interest, lien or other encumbrance
on any Posted Collateral other than the security interest and lien granted
under Paragraph 2.
6
<PAGE>
PARAGRAPH 10. EXPENSES
(a) GENERAL. Except as otherwise provided in Paragraphs 10(b) and 10(c),
each party will pay its own costs and expenses in connection with performing
its obligations under this Annex and neither party will be liable for any
costs and expenses incurred by the other party in connection herewith.
(b) POSTED CREDIT SUPPORT. The Pledgor will promptly pay when due all taxes,
assessments or charges of any nature that are imposed with respect to Posted
Credit Support held by the Secured Party upon becoming aware of the same,
regardless of whether any portion of that Posted Credit Support is
subsequently disposed of under Paragraph 6(c), except for those taxes,
assessments and charges that result from the exercise of the Secured Party's
rights under Paragraph 6(c).
(c) LIQUIDATION/APPLICATION OF POSTED CREDIT SUPPORT. All reasonable costs
and expenses incurred by or on behalf of the Secured Party or the Pledgor in
connection with the liquidation and/or application of any Posted Credit
Support under Paragraph 8 will be payable, on demand and pursuant to the
Expenses Section of this Agreement, by the Defaulting Party or, if there is
no Defaulting Party, equally by the parties.
PARAGRAPH 11. MISCELLANEOUS
(a) DEFAULT INTEREST. A Secured Party that fails to make, when due, any
Transfer of Posted Collateral or the Interest Amount will be obligated to pay
the Pledgor (to the extent permitted under applicable law) an amount equal to
interest at the Default Rate multiplied by the Value of the items of property
that were required to be Transferred, from (and including) the date that
Posted Collateral or Interest Amount was required to be Transferred to (but
excluding) the date of Transfer of that Posted Collateral or Interest Amount.
This interest will be calculated on the basis of daily compounding and the
actual number of days elapsed.
(b) FURTHER ASSURANCES. Promptly following a demand made by a party, the
other party will execute, deliver, file and record any financing statement,
specific assignment or other document and take any other action that may be
necessary or desirable and reasonably requested by that party to create,
preserve, perfect or validate any security interest or lien granted under
Paragraph 2, to enable that party to exercise or enforce its rights under this
Annex, with respect to Posted Credit Support or an Interest Amount or to
effect or document a release of a security interest on Posted Collateral or
an Interest Amount.
(c) FURTHER PROTECTION. The Pledgor will promptly give notice to the Secured
Party of, and defend against, any suit, action, proceeding or lien that
involves Posted Credit Support Transferred by the Pledgor or that could
adversely affect the security interest and lien granted by it under
Paragraph 2, unless that suit, action, proceeding or lien results from the
exercise of the Secured Party's rights under Paragraph 6(c).
(d) GOOD FAITH AND COMMERCIALLY REASONABLE MANNER. Performance of all
obligations under this Annex, including, but not limited to, all
calculations, valuations and determinations made by either party, will be
made in good faith and in a commercially reasonable manner.
(e) DEMANDS AND NOTICES. All demands and notices made by a party under this
Annex will be made as specified in the Notices Section of this Agreement,
except as otherwise provided in Paragraph 13.
(f) SPECIFICATIONS OF CERTAIN MATTERS. Anything referred to in this Annex as
being specified in Paragraph 13 also may be specified in one or more
Confirmations or other documents and this Annex will be construed accordingly.
7
<PAGE>
PARAGRAPH 12. DEFINITIONS
As used in this Annex:--
"CASH" means the lawful currency of the United States of America.
"CREDIT SUPPORT AMOUNT" has the meaning specified in Paragraph 3.
"CUSTODIAN" has the meaning specified in Paragraphs 6(b))i) and 13.
"DELIVERY AMOUNT" has the meaning specified in Paragraph 3(a).
"DISPUTING PARTY" has the meaning specified in Paragraph 5.
"DISTRIBUTIONS" means with respect to Posted Collateral other than Cash, all
principal, interest and other payments and distributions of cash or other
property with respect hereto, regardless of whether the Secured Party has
disposed of that Posted Collateral under Paragraph 6(c). Distributions will
not include any item of property acquired by the Secured Party upon any
disposition or liquidation of Posted Collateral or, with respect to any Posted
Collateral in the form of Cash, any distributions on that collateral, unless
otherwise specified herein.
"ELIGIBLE COLLATERAL" means, with respect to a party, the items, if any,
specified as such for that party in Paragraph 13.
"ELIGIBLE CREDIT SUPPORT" means Eligible Collateral and Other Eligible
Support.
"EXPOSURE" means for any Valuation Date or other date for which Exposure is
calculated and subject to Paragraph 5 in the case of a dispute, the amount,
if any, that would be payable to a party that is the Secured Party by the
other party (expressed as a positive number) or by a party that is the
Secured Party to the other party (expressed as a negative number) pursuant to
Section 6(e)(ii)(2)(A) of this Agreement as if all Transactions (or Swap
Transactions) were being terminated as of the relevant Valuation Time;
PROVIDED that Market Quotation will be determined by the Valuation Agent
using its estimates at mid-market of the amounts that would be paid for
Replacement Transactions (as that term is defined in the definition of
"Market Quotation").
"INDEPENDENT AMOUNT" means, with respect to a party, the amount specified as
such for that party in Paragraph 13; if no amount is specified, zero.
"INTEREST AMOUNT" means, with respect to an Interest Period, the aggregate
sum of the amounts of interest calculated for each day in that Interest
Period on the principal amount of Posted Collateral in the form of Cash held
by the Secured Party on that day, determined by the Secured Party for each
such day as follows:
(x) the amount of that Cash on that day; multiplied by
(y) the Interest Rate in effect for that day; divided by
(z) 360.
"INTEREST PERIOD" means the period from (and including) the last Local
Business Day on which an Interest Amount was Transferred (or, if no Interest
Amount has yet been Transferred, the Local Business Day on which Posted
Collateral in the form of Cash was Transferred to or received by the Secured
Party) to (but excluding) the Local Business Day on which the current
Interest Amount is to be Transferred.
"INTEREST RATE" means the rate specified in Paragraph 13.
"LOCAL BUSINESS DAY" unless otherwise specified in Paragraph 13, has the
meaning specified in the Definitions Section of this Agreement, except that
references to a payment in clause (b) thereof will be deemed to include a
Transfer under the Annex.
8
<PAGE>
"MINIMUM TRANSFER AMOUNT" means, with respect to a party, the amount specified
as much for that party in Paragraph 13: if no amount is specified, zero.
"NOTIFICATION TIME" has the meaning specified in Paragraph 13.
"OBLIGATIONS" means, with respect to a party, all present and future
obligations of that party under this Agreement and any additional obligations
specified for that party in Paragraph 13.
"OTHER ELIGIBLE SUPPORT" means, with respect to a party, the items, if any,
specified as such for that party in Paragraph 13.
"OTHER POSTED SUPPORT" means all Other Eligible Support Transferred to the
Secured Party that remains in effect for the benefit of that Secured Party.
"PLEDGOR" means either party, when that party (i) receives a demand for or is
required to Transfer Eligible Credit Support under Paragraph 3(a) or (ii) has
Transferred Eligible Credit Support under Paragraph 3(a).
"POSTED COLLATERAL" means all Eligible Collateral, other property,
Distributions, and all proceeds thereof that have been Transferred to or
received by the Secured Party under this Annex and not Transferred to the
Pledgor pursuant to Paragraph 3(b), 4(d)(ii) or 6(d)(i) or released by the
Secured Party under Paragraph 8. Any Interest Amount or portion thereof not
Transferred pursuant to Paragraph 6(d)(ii) will constitute Posted Collateral
in the form of Cash.
"POSTED CREDIT SUPPORT" means Posted Collateral and Other Posted Support.
"RECALCULATION DATE" means the Valuation Date that gives rise to the dispute
under Paragraph 5; PROVIDED, HOWEVER, that if a subsequent Valuation Date
occurs under Paragraph 3 prior to the resolution of the dispute, then the
"Recalculation Date" means the most recent Valuation Date under Paragraph 3.
"RESOLUTION TIME" has the meaning specified in Paragraph 13.
"RETURN AMOUNT" has the meaning specified in Paragraph 3(b).
"SECURED PARTY" means either party, when that party (i) makes a demand for or
is entitled to receive Eligible Credit Support under Paragraph 3(a) or (ii)
holds or is deemed to hold Posted Credit Support.
"SPECIFIED CONDITION" means, with respect to a party, any event specified as
such for the party in Paragraph 13.
"SUBSTITUTE CREDIT SUPPORT" has the meaning specified in Paragraph 4(d)(i).
"SUBSTITUTION DATE" has the meanings specified in Paragraph 4(d)(ii).
"THRESHOLD" means, with respect to a party, the amount specified as such for
that party in Paragraph 13; if no amount is specified, zero.
"TRANSFER" means, with respect to any Eligible Credit Support, Posted Credit
Support or Interest Amount, and in accordance with the instructions of the
Secured Party, Pledgor or Custodian, as applicable:
(i) in the case of Cash, payment or delivery by wire transfer into one
or more bank accounts specified by the recipient;
(ii) in the case of certificated securities that cannot be paid or
delivered by book-entry, payment or delivery in appropriate physical form
to the recipient or its account accompanied by any duly executed
instruments of transfer, assignments in blank, transfer tax stamps and any
other documents necessary to constitute a legally valid transfer to the
recipient;
(iii) in the case of securities that can be paid or delivered by
book-entry, the giving of written instructions to the relevant depository,
institution or other entity specified by the recipient, together with a
written copy thereof to the recipient, sufficient if complied with to
result in a legally effective transfer of the relevant interest to the
recipient; and
(iv) in the case of Other Eligible Support or Other Posted Support, as
specified in Paragraph 13.
9
<PAGE>
"VALUATION AGENT" has the meaning specified in Paragraph 13.
"VALUATION DUE" means each date specified in or otherwise determined pursuant
to Paragraph 13.
"VALUATION PERCENTAGE" means, for any item of Eligible Collateral, the
percentage specified in Paragraph 13.
"VALUATION TIME" has the meaning specified in Paragraph 13.
"VALUE" means for any Valuation Date or other date for which Value is
calculated and subject to Paragraph 5 in the case of dispute, with respect
to:
(i) Eligible Collateral or Posted Collateral that is:
(A) Cash, the amount thereof; and
(B) a security, the bid price obtained by the Valuation Agent
multiplied by the applicable Valuation Percentage, if any;
(ii) Posted Collateral that consists of items that are not specified as
Eligible Collateral, zero; and
(iii) Other Eligible Support and Other Posted Support, as specified in
Paragraph 13.
10
<PAGE>
13. Elections and Variables
(a) SECURITY INTEREST FOR "OBLIGATIONS"
The term "Obligations" as used in this Annex does not include any
additional obligations. For the avoidance of doubt, in respect of the
Obligations which are specified in the Relevant Swap Transactions,
any assumptions made for the purposes of calculating the Peak
Exposure in Paragraph 13(b)(i) or the Benefit Exposure in Paragraph
13(b)(iv)(A) must not be applied or otherwise taken into account for
the purpose of calculating the Obligations, since those assumptions
are theoretical only and do not accurately reflect any actual
Obligations.
(b) CREDIT SUPPORT OBLIGATIONS
(i) DELIVERY AMOUNT, RETURN AMOUNT AND CREDIT SUPPORT AMOUNT
"DELIVERY AMOUNT" and "RETURN AMOUNT" each has the meaning
specified in Paragraph 3.
"CREDIT SUPPORT AMOUNT" means, for any Valuation Date:
(A) (I) with respect to Party A as the Secured Party,
Party A's Exposure for that Valuation Date; or
(II) with respect to Party B as the Secured Party, the
Peak Exposure for that Valuation Date; plus
(B) the aggregate of all Independent Amounts applicable to
the Pledgor, if any; minus
(C) all Independent Amounts applicable to the Secured
Party, if any; minus
(D) the Pledgor's Threshold,
provided, however, that the Credit Support Amount will be
deemed to be zero whenever the calculation of Credit Support
Amount yields a number less than zero.
"PEAK EXPOSURE" means the amount equal to Party B's maximum
credit exposure in respect of a Replacement Transaction entered
into on a date one month after the Valuation Date, calculated
by the Valuation Agent using its swap credit exposure
methodology to the Confidence Interval, as that methodology is
updated to reflect, without limitation, the levels of
volatility current as at the Valuation Time for the
differential between USD-LIBOR-BBA and AUD-BBR-BBSW (each rate
with a Designated Maturity of three months) and the A$-US$
forward exchange rates, and assuming that from that Valuation
Date:
(I) the remaining term of the Relevant Swap
Transaction is calculated on the basis that the
Termination Date is a date, no later than 31
years after the Effective Date of the first
<PAGE>
Transaction in respect of the Notes, calculated
by applying the assumptions specified in
subparagraph (II) below;
(II) the Floating Rate Payer Amounts and Exchange
Amounts are calculated on the basis that the
Housing Loan Principal has an amortisation
schedule based on a constant prepayment rate of
10% per annum thereafter,
as each of those terms are defined for the Relevant
Swap Transaction or in the Series Notice applicable to
the Relevant Swap Transaction.
"CONFIDENCE INTERVAL" shall be calculated on the
relevant Valuation Date according to the Joint Rating
(as defined below) as the case may be, as follows:
JOINT RATING Confidence
Interval
A1 (Moody's) and 95%
A+ (S&P) and
A+ (Fitch)
A2 (Moody's) and 97%
A (S&P) and
A (Fitch)
A3 (Moody's) and 99%
A- (S&P) and
A- (Fitch)
(ii) ELIGIBLE COLLATERAL. The following items will qualify as
"Eligible Collateral" for Party A:
<TABLE>
<CAPTION>
Valuation
Percentage
<S> <C> <C>
(A) negotiable debt obligations issued by the
U.S. Treasury Department having a remaining
maturity of not more than one year
("Treasury Bills") 98%
(B) negotiable debt obligations issued by the
U.S. Treasury Department having a remaining
maturity of more than one year but not more
than five years
("Treasury Notes") 95%
(C) negotiable debt obligations issued by the
U.S. Treasury Department having a remaining
maturity of more than five years
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
but not more than ten years ("Treasury Notes") 93%
(D) negotiable debt obligations issued by the
U.S. Treasury Department having a remaining
maturity of more than ten years ("Treasury
Bonds") 90%
(E) Other: Agency Securities having a remaining
maturity of not more than one year 97%
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
Agency Securities having a remaining
maturity of more than one year but not
more than five years 94%
Agency Securities having a remaining
maturity of more than five years but not
more than ten years 92%
Agency Securities having a remaining
maturity of more than ten years. 89%
</TABLE>
"AGENCY SECURITIES" means negotiable debt obligations which are fully
guaranteed as to both principal and interest by the Federal
National Mortgage Association, the Government National Mortgage
Corporation or the Federal Home Loan Mortgage Corporation, but
exclude: (i) interest only and principal only securities; and
(ii) Collateralized Mortgage Obligations, Real Estate Mortgage
Investment Conduits and similar derivative securities.
(iii) OTHER ELIGIBLE SUPPORT
Not applicable.
(iv) THRESHOLDS
(A) "INDEPENDENT AMOUNT" means with respect to Party A, the
Additional Spread.
"ADDITIONAL SPREAD" represents the excess of Party B's
Benefit Exposure over Party B's Exposure, as calculated on
the same Valuation Date according to the Joint Rating (as
defined below) as the case may be, as follows:
<TABLE>
<CAPTION>
Joint Rating Additional
Spread
<S> <C>
A1 (Moody's) and 0.15%
A+ (S&P) and
A+ (Fitch)
A2 (Moody's) and 0.20%
A (S&P) and
A (Fitch)
A3 (Moody's) and 0.25%
A- (S&P) and
A- (Fitch)
</TABLE>
"BENEFIT EXPOSURE" means the amount equal to Party B's
Exposure, except calculated on the basis that:
(I) the Additional Spread is added to the spread on the
US$ side of the Replacement Transaction; and
<PAGE>
(II) the remaining term and the Floating Rate Payer
Amounts and Exchange Amounts for the Replacement
Transaction are calculated by applying the
assumptions specified in subparagraphs (I) and (II)
of the definition of Peak Exposure in paragraph
13(b)(i) above.
For the avoidance of doubt, the Additional Spread is
intended to represent a maximum additional bid/offer spread
of 15, 20 or 25 swap points (as the case may be) running
payable if the bid/offer swap rates quoted to the Secured
Party were adjusted from market rates to the benefit of the
Reference Market-makers.
"INDEPENDENT AMOUNT" means with respect to Party B: Zero.
(B) "THRESHOLD"
With respect to Party A:
(I) if the highest possible jointly supported credit
rating that can be assigned to senior long term debt
jointly supported by Party A and the Credit Support
Provider by Moody's Investors Service Inc ("MOODY'S")
Standard & Poor's Ratings Group ("S&P") and Fitch
IBCA Inc. ("FITCH") in accordance with Moody's ,
S&P's and Fitch's respective approaches to jointly
supported obligations and after taking into
consideration the nature of the Replacement
Transaction (the "JOINT RATING"), is lower than Aa3
(Moody's), AA-(S&P) or AA-(Fitch) (or, in the case of
no Credit Support Provider providing any credit
support obligations, if the credit rating assigned to
Party A's senior long term debt is lower than Aa3
(Moody's), AA-(S&P) or AA-(Fitch) ) and any Notes
rated Aaa by Moody's, AAA by S&P and AAA by Fitch are
outstanding at that Valuation Date, then zero; or
(II) in all other cases, infinity.
With respect to Party B: infinity.
If either Moody's, S&P or Fitch ceases to be in the business
of rating debt securities and such business is not continued
by a successor or assign of such entity (the "DISCONTINUED
AGENCY"), the parties may jointly select a nationally
recognised credit rating agency in substitution thereof and
agree on the rating level issued by such substitute agency
that is equivalent to the ratings specified herein of the
Discontinued Agency, whereupon such substitute agency and
equivalent rating shall replace the Discontinued Agency and
the rating level thereof for purposes of this Agreement.
(C) "MINIMUM TRANSFER AMOUNT" means with respect to both Party A
and Party B: US$100,000.
<PAGE>
(D) ROUNDING. The Delivery Amount and the Return Amount will be
rounded to the nearest integral multiple of US$10,000.
(c) VALUATION AND TIMING
(i) "VALUATION AGENT" means
(A) both Party A and the Credit Support Provider, and the higher
of the valuation amounts of the two parties shall apply. The
valuation amount calculated by Party A and the Credit
Support Provider shall be audited by the parties' respective
internal auditors on a monthly basis for three months after
the inaugural Posted Collateral, and on an annual basis
thereafter; or
(B) if there is no Credit Support Provider, two independent
parties appointed by Party A, and the average of the
valuation amounts calculated by the two independent parties
shall apply.
(ii) "VALUATION DATE" means the last Local Business Day of each week.:
(iii) "VALUATION TIME" means the close of business on the Local
Business Day before the Valuation Date; PROVIDED that the
calculations of Value and Exposure will be made as of
approximately the same time on the same date.
(iv) "NOTIFICATION TIME" means 11:00 am on a Local Business Day.
(d) CONDITIONS PRECEDENT AND SECURED PARTY'S RIGHTS AND REMEDIES
There are no "SPECIFIED CONDITIONS" applicable to Party A and Party B.
(e) SUBSTITUTION
(i) "SUBSTITUTION DATE" has the meaning specified in paragraph
4(d)(ii).
(ii) CONSENT. Not applicable.
(f) DISPUTE RESOLUTION
(i) "RESOLUTION TIME"" means 11:00 am on the Local Business Day
following the date on which the notice is given that gives rise
to a dispute under paragraph 5.
(ii) "VALUE". Not applicable.
(iii) "ALTERNATIVE". The provisions of Paragraph 5 will apply.
(g) HOLDING AND USING POSTED COLLATERAL
(i) ELIGIBILITY TO HOLD POSTED COLLATERAL; CUSTODIANS.
Party A: Not Applicable.
Party B is not entitled to hold Posted Collateral; it must
appoint a Custodian to hold Posted Collateral on its behalf,
pursuant to paragraph
<PAGE>
6(b); PROVIDED that the following conditions applicable to
Party B are satisfied:
(A) Party B is not a Defaulting Party;
(B) Party B's Custodian will always be the Principal Paying
Agent of the Notes (in respect of the Relevant Swap
Transaction), unless that party is Party A; and
(C) if the Principal Paying Agent of the Notes (in respect of
the Relevant Swap Transaction) is Party A, then Party B
must appoint a Custodian which is a Bank (as defined in the
Federal Deposit Insurance Act, as amended) outside
Australia, whose rating (with respect to its long term
unsecured, unsubordinated indebtedness) is at all times at
least Aa2 by Moody's, and Party B must notify Party A in
writing of this appointment and of the relevant account for
Paragraph 13(l).
(D) Posted Collateral may only be held in one or more accounts
in the United States and any account established by Party
B's Custodian to hold Posted Collateral shall be
established and maintained for the sole purpose of
receiving deliveries of and holding Posted Collateral.
Separate accounts must be established and maintained in
respect of Posted Collateral transferred to Party B's
Custodian by Party A and the Credit Support Provider
respectively.
(ii) USE OF POSTED COLLATERAL. The provisions of paragraph 6(c) will
not apply to Party B and its Custodian. Party B's Custodian
will permit Party B to secure Party B's obligations under the
relevant Notes by granting to the Security Trustee (as defined
in the Schedule to this Agreement) a mortgage or other security
over Party B's rights in relation to the Posted Collateral, but
subject to Paragraph 11(m)(viii) of this Annex.
(h) DISTRIBUTIONS AND INTEREST AMOUNT
"INTEREST RATE", TRANSFER OF INTEREST AMOUNT, and ALTERNATIVE TO
INTEREST AMOUNT are not applicable.
(i) ADDITIONAL REPRESENTATION(S). NONE.
(j) OTHER ELIGIBLE SUPPORT AND OTHER POSTED SUPPORT
"VALUE" and "TRANSFER" with respect to Other Eligible Support and
Other Posted Support means: not applicable.
(k) DEMANDS AND NOTICES
All demands, specifications and notices under this Annex will be made
pursuant to the Notices Section of this Agreement; PROVIDED, that any
such demand, specification or notice may be made by telephone
("TELEPHONE NOTICE") between duly authorised employees of each party
if such Telephone Notice is confirmed by a subsequent written
instruction (which may be delivered via facsimile) by the close of
business of the same day that such Telephone Notice is given.
<PAGE>
(l) ADDRESSES FOR TRANSFERS
Party A: Party A to specify account for returns of collateral,
subject to paragraph 13(x) below.
Party B: Party B must notify Party A of its Custodian's account.
(m) OTHER PROVISIONS
(i) Paragraph 4(b) of the Annex is replaced by the following:
"(b) TRANSFER TIMING. Subject to Paragraph 4(a) and 5 and
unless otherwise specified, if a demand for the Transfer of
Eligible Credit Support or Posted Credit Support is made by the
Notification Time, then the relevant Transfer will be made
within one Local Business Day of receipt of the demand; if a
demand is made after the Notification Time, then the relevant
Transfer will be made within two Local Business Days of receipt
of the demand.
(ii) LOCAL BUSINESS DAY
Unless otherwise specified in the Schedule, the place is
London, New York and Sydney.
(iii) PARTY B'S EXPOSURE
In calculating the amounts of Party B's Exposure, Peak Exposure
and Benefit Exposure under Paragraphs 12, and 13(b)(i) and
13(b)(iv)(A) respectively, the Valuation Agent must:
(A) include all Transactions (or any cashflows under any
Transaction) which correspond with amounts payable on
the Relevant Reset Date by Party B's Principal Paying
Agent in respect of Class A Notes which are then rated
by Moody's, S&P and/or Fitch with a higher rating than
the then Joint Rating (or in the case of no Credit
Support Provider having any credit support obligations,
the then rating of Party A's senior long term debt); and
(B) exclude all Transactions (or any cashflows under any
Transaction) which do not correspond with amounts
payable on the Relevant Reset Date by Party B's
Principal Paying Agent in respect of Class A Notes which
are then rated by Moody's, S&P and/or Fitch with the
same or lower rating than the then Joint Rating (or in
the case of no Credit Support Provider having any credit
support obligations, the then rating of Party A's senior
long term debt); and
(C) calculate the Peak Exposure such that it shall not be
less than the Party B's Exposure plus the US$ Equivalent
of 2.5% of the most recently applicable Housing Loan
Principal as at the relevant Valuation Date. The "US$
Equivalent" has the meaning given in the Series Notice
applicable to the Class A Notes.
For the purposes of this Paragraph (m)(iii), "Relevant Reset
Date" means:
<PAGE>
(C) if a Reset Date occurs on the relevant Valuation Date,
then that Valuation Date; or
(D) if a Reset Date does not occur on the relevant Valuation
Date, then the next Reset Date.
(iv) EVENT OF DEFAULT, NOT POTENTIAL EVENT OF DEFAULT OR SPECIFIED
CONDITION AND NEW PARAGRAPH 3(C)
A new Paragraph 3(c) of the Annex is added as follows:
"(c) JOINT RATINGS BELOW SPECIFIED LEVELS. If at any time the
Joint Rating is lower than A-(S&P) and A-(Fitch) (or, in the
case of no Credit Support Provider providing any credit
support obligations, if the credit rating assigned to Party
A's senior long term debt is lower than A-(S&P) and A-(Fitch)
) or the short term rating-equivalent of the Joint Rating is
lower than A-1 (S&P) and F-1 (Fitch), then Party A and the
Credit Support Provider must replace the Currency Swap
Provider or take measures which are acceptable to the relevant
rating agency at the time.
Paragraph 4(a)(i) and 4(a)(ii) of the Annex are amended by
deleting the words "Potential Event of Default or Specified
Condition" and "or Specified Condition" respectively.
Paragraph 6(c) of the Annex is amended by deleting the words
"or an Affected Party with respect to a Specified Condition"
on lines 3 and 4 and "or Specified Condition" on lines 5 and
6.
Paragraph 7(i) of the Annex is amended, on line 3, by
replacing "two Local Business Days" with "three Local Business
Days".
Paragraph 8(a)(1) and 8(a)(2) of the Annex are amended by
deleting the words "or Specified Condition".
(v) PARTY B'S EXPENSES
Party A acknowledges that, pursuant to Section 17 of the
Agreement, Party B will pay its own costs and expenses under
Paragraph 10(a) from proceeds distributed as Trustee's
expenses, in accordance with instructions from the Trustee.
<PAGE>
(vi) GOVERNING LAW NOTWITHSTANDING
This Annex shall be governed by and construed in accordance
with the laws of the state of New York without giving effect
to choice of law doctrine and parties hereto agree that
proceedings relating to any dispute arising out of or in
connection with this Annex shall be subject to the
non-exclusive jurisdiction of the federal or state courts of
competent jurisdiction in the Borough of Manhattan in New York
City, State of New York.
(vii) NO TRIAL BY JURY
Each party waives, to the fullest extent permitted by
applicable law, any right it may have to a trial by jury in
respect of any suit, action or proceeding relating to this
Annex.
(viii) NO POOLING OF COLLATERAL WITH OTHER SECURITY TRUST SECURITY
Notwithstanding any provision in any Trust Document (as
defined in the Security Trust Deed), but without prejudice to
Party B's rights under Paragraph 8(a) of this Annex, no party
shall be entitled to deal with the Posted Collateral in any
manner inconsistent with the rights of the Pledgor and the
Credit Support Provider under Paragraphs 8(b)(iii) and 13(x)
of this Annex, and each party covenants to the other that it
shall not permit any other person to gain any rights in
relation to the Posted Collateral that are inconsistent with
the rights of the Pledgor and the Credit Support Provider.
(ix) CREDIT SUPPORT PROVIDER
For valuable consideration which is hereby acknowledged by the
Credit Support Provider as having been received, the Credit
Support Provider hereby unconditionally guarantees the
obligations of Party A under this Annex, on the following
terms:
(A) If Party A shall in any respect fail to perform its
obligations as Pledgor under this Annex and the breach
is not remedied within any applicable grace period set
out in paragraph 7 of this Annex, the Credit Support
Provider shall perform the obligations of Party A as
Pledgor under and in accordance with this Annex;
(B) Subject to paragraph 13(m)(ix)(E) Party B must return
to the Credit Support Provider any Posted Collateral
which the Credit Support Provider has transferred to
Party B pursuant to paragraph 13(m)(ix)(A),
notwithstanding that any such Posted Collateral was
transferred by the Credit Support Provider to Party B
to secure the Obligations of Party A. The Credit
Support Provider shall be the "Pledgor" for the
purposes of Party B returning Posted Collateral in
accordance with this sub-paragraph and the provisions
in this Annex for the return of Posted Collateral shall
otherwise apply for returns of Posted Collateral by
Party B to the Credit Support Provider;
(C) The provisions of this paragraph 13(m)(ix) shall
constitute irrevocable obligations of the Credit
Support Provider until a notice
<PAGE>
of revocation is served by the Credit Support Provider
on Party B. Such a notice shall not be served without
the prior written consent of Party A and the Manager in
consultation with the Designated Rating Agencies; and
(D) The Credit Support Provider shall not be discharged or
released from its obligations under this Annex and this
Agreement (including, without limitation, the
obligations under Section 20) by any agreement,
conduct, omission, breach or repudiation by Party A or
Party B, or any other act, event or circumstance which
but for this clause would or might operate as a matter
of law to discharge, impair or otherwise affect any of
the obligations of the Credit Support Provider under
this Annex or this Agreement.
(E) If the Credit Support Provider transfers Eligible
Collateral to Party B under paragraph 13(m)(ix)(A) (the
"CSP POSTED COLLATERAL") and Transactions are
terminated in accordance with Section 21 of the Other
Agreement (as defined in Section 20 of this Agreement),
then Party B will transfer the CSP Posted Collateral to
Party A (or its Custodian). Party A (or its Custodian)
shall hold CSP Posted Collateral as security for
obligations owed by the Credit Support Provider to
Party A in connection with any such terminated
Transactions, including, without limitation, any mark
to market amounts payable in respect thereof.
(x) PARTY A'S COLLATERAL AND THE CREDIT SUPPORT PROVIDER
(A) If Party A transfers Eligible Collateral to Party B
under this Annex (the "Party A Posted Collateral") and
then a Substitution Notice is given by the Credit
Support Provider and the Replaced Transaction is
terminated in accordance with section 21 of the
Agreement, then Party B will transfer the Party A
Posted Collateral to a Custodian as specified by Party
A in accordance with paragraph (x)(B) below.
(B) If a Substitution Notice is given in accordance with
section 21 of this Agreement, Party B shall transfer
the Party A Posted Collateral (if any) to the Credit
Support Provider (or its Custodian) as if the Credit
Support Provider (or its Custodian) were the "Pledgor"
for the purposes of returning Posted Collateral under
paragraph 3(b), and otherwise in accordance with
paragraph 3(b). Party B must transfer the Party A
Posted Collateral on or by the Effective Date of the
Substitute Transaction or the Equivalent-Other
Transaction (as specified under section 21 of this
Agreement).
(C) The Credit Support Provider (or its Custodian) shall
hold the Party A Posted Collateral as security for
obligations owed by Party A to the Credit Support
Provider in connection with the terminated Transactions
including without limitation any mark to market amounts
payable in respect thereof.
(D) The Transfer of the Party A Posted Collateral by Party
B in accordance with paragraph (x)(B) shall constitute
performance by Party B of its obligations under
paragraph 3(b) in respect of the
<PAGE>
Party A Posted Collateral, and Party A's rights in
respect of the Party A Posted Collateral under
paragraph 8 (b)(iii) shall be deemed to be modified by
the provisions of this paragraph 13(x).
<PAGE>
WESTPAC BANKING CORPORATION
[13 May 1999]
Westpac Securities Administration Limited
in its capacity as trustee of the Series 1999-1G WST Trust
Level 10, 130 Pitt Street
Sydney
cc: Westpac Securitisation Management Pty Limited
Level 25, 60 Martin Place
Sydney
Morgan Guaranty Trust Company of New York
PO Box 161
61 Victoria Embankment
London EC4Y 0JP
Dear Sir
CURRENCY SWAP TRANSACTIONS - SERIES 1999-1G WST TRUST
CLASS A MORTGAGE BACKED FLOATING RATE NOTES
The purpose of this letter is to confirm the terms and conditions of the swap
transactions entered into between us on the Trade Dates specified below (the
"TRANSACTIONS"). This letter constitutes a "Confirmation" as referred to in the
Master Agreement specified below.
1. This Confirmation supplements, forms part of, and is subject to, the
Master Agreement dated [10 May 1999], as amended and supplemented from
time to time (the "AGREEMENT") between you and us. All provisions
contained in the Agreement govern this Confirmation except as expressly
modified below. Without limitation, Section 21 of the Agreement shall
apply to this Confirmation and the Transactions under it, as further
specified below.
2. Terms defined in the Conditions dated [10 May 1999] in respect of the
issue of US$[XXX] in Class A Mortgage-Backed Floating Rate Notes due
2030 have the same meanings when used in this Confirmation.
3. The terms of the particular Transaction to which this Confirmation
relate are as specified in the Annexures 1, 2 and 3 to this
Confirmation, in respect of Class A Notes, Class A Notes - "Substitute
Transaction" and Class A Notes - "Equivalent-Other Transaction"
respectively.
4. For the purposes of this Confirmation, Westpac Banking Corporation is
known as ,"WESTPAC", Westpac Securities Administration Limited in its
<PAGE>
WESTPAC BANKING CORPORATION
capacity as trustee of the Series 1999-1G WST Trust is known as
"TRUSTEE", Westpac Securitisation Management Pty Limited is known as
"MANAGER" and Morgan Guaranty Trust Company of New York, London Office,
is known as "CREDIT SUPPORT PROVIDER".
5. Account Details
Payments to Westpac: to be advised
Payments to Trustee: to be advised
6. Offices
(a) The Office of Westpac for the Swap Transactions is [LONDON - IS
THIS STILL CORRECT?]; and (b) The Office of the Trustee for the Swap
Transactions is SYDNEY.
Yours sincerely,
WESTPAC BANKING CORPORATION
(ARBN 007 457 141)
By:
Name:
Title:
Confirmed as of the
date above first written:
WESTPAC SECURITIES ADMINISTRATION LIMITED(ACN 000 049 472)
in its capacity as trustee of the Series 1999-1G WST Trust
By:
-----------------------------
Name:
Title:
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED (ACN 081 709 211)
in its capacity as Trust Manager
By:
-----------------------------
Name:
Title:
<PAGE>
WESTPAC BANKING CORPORATION
MORGAN GUARANTY TRUST COMPANY OF NEW YORK in its capacity as Credit
Support Provider to Westpac
By:
-----------------------------
Name:
Title:
<PAGE>
WESTPAC BANKING CORPORATION
ANNEXURE 1 - CLASS A NOTES
Westpac Deal Number
Trade Date: [13 May 1999]
Effective Date: Closing Date
Termination Date: Final Maturity Date (adjusted in
accordance with the [Modified] Following
Business Day Convention)
FLOATING INTEREST AMOUNTS
FLOATING AMOUNTS PAYABLE BY WESTPAC:
These Floating Amounts are payable by Westpac unless there is, on any Floating
Rate Payer Payment Date, any reduction in Class A Interest resulting from a
reduction in A$ Class A Interest Amount pursuant to clause 6.17(a)(ii)(A) of the
Series Notice (as specified in a notice to Westpac by the Determination Time),
in which case the Floating Amount shall be reduced by the same proportion as the
reduction in the A$ Class A Interest Amount.
Floating Rate Payer: Westpac
Notional Amount: An amount equal to fifty (50) percent of
the total Invested Amount of all Class A
Notes as at the first day of the
Interest Period ending on but excluding
the relevant Floating Rate Payer Payment
Date
Floating Rate Payer Payment Dates: Each Payment Date up to and including
the last Payment Date prior to the
Maturity Date, and the Termination Date
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: Three months
Spread: Plus [0.XXXX] percent
<PAGE>
WESTPAC BANKING CORPORATION
Floating Rate Day Count Fraction: Actual/360
Reset Dates: The first day of each Interest Period
Compounding: Inapplicable
<PAGE>
WESTPAC BANKING CORPORATION
FLOATING AMOUNTS PAYABLE BY THE TRUSTEE:
These Floating Amounts are payable by the Trustee unless there is, on any
Floating Rate Payer Payment Date, any reduction in A$ Class A Interest Amount
pursuant to clause 6.17(a)(ii)(A) of the Series Notice (as specified in a notice
by the Trustee or Trust Manager to Westpac by the Determination Time), in which
case, instead of the Floating Amount, the Trustee shall pay an amount equal to
the lesser A$ amount specified in that notice on that Floating Rate Payer
Payment Date.
Floating Rate Payer: Trustee
Notional Amount: An amount equal to fifty (50) percent of
the A$ Equivalent (applying USD
0.XXXXXX) of the total Invested Amount
of all Class A Notes as at the first day
of the Interest Period ending on but
excluding the relevant Floating Rate
Payer Payment Date
Floating Rate Payer Payment Dates: Each Payment Date up to and including
the last Payment Date prior to the
Maturity Date, and the Termination Date
Floating Rate Option: AUD-BBR-BBSW
Designated Maturity: 90 days
Spread: Plus 0.XXXX percent
Floating Rate Day Count Fraction: Actual/365 (Fixed)
Reset Dates: The first day of each Interest Period
Compounding: Inapplicable
<PAGE>
WESTPAC BANKING CORPORATION
EXCHANGES
INITIAL EXCHANGE:
Initial Exchange Date: Closing Date
Westpac Pays Initial Exchange: An amount equal to fifty (50) percent of
the total Class A Initial Invested
Amount of all Class A Notes on the
Closing Date divided by the exchange
rate of USD 0.XXXXXX being (AUD [XXX])
Trustee Pays Initial Exchange: An amount equal to fifty (50) percent of
the total of the Class A Initial
Invested Amount of all of the Class A
Notes on the Closing Date being USD
[XXX]
INSTALMENT EXCHANGE
Instalment Exchange Date Each Payment Date (other than a Final
Exchange Date)
Westpac Pays Instalment Exchange: An amount equal to fifty (50) percent of
the Class A Principal Payment paid on
the relevant Instalment Exchange Date
towards a reduction of the Principal
Amount of Class A Notes, as calculated
by multiplying the Trustee Instalment
Exchange Payment on the relevant
Instalment Exchange Date by the exchange
rate of USD 0.XXXXXX
<PAGE>
WESTPAC BANKING CORPORATION
Trustee Pays Instalment Exchange: An amount equal to fifty (50) percent of
the amount expressed under clause 6.14,
6.15 or 6.16 (as applicable) of the
Series Notice as being payable under a
Confirmation relating to Class A Notes
plus any amount payable under clause
6.11(a)(ii)(C) of the Series Notice
(together, the "TRUSTEE INSTALMENT
EXCHANGE PAYMENT") as specified in the
notice issued by the Trustee (or the
Trust Manager) to Westpac by the
Determination Time in respect of that
Instalment Exchange Date
<PAGE>
WESTPAC BANKING CORPORATION
FINAL EXCHANGE:
Final Exchange Date: The earlier of the Termination Date and
the Date of the 10% Clean Up under
clause 8.9(d) of the Master Trust Deed
as amended by the Series Notice and the
date of redemption of all the Class A
Notes for taxation or other reasons,
adjusted in accordance with the
[Modified] Following Business Day
Convention
Westpac Pays Final Exchange: An amount equal to fifty (50) percent of
the aggregate Final Exchange payable by
the Trustee under this Confirmation,
multiplied by the exchange rate of USD
0. XXXXXX
Trustee Pays Final Exchange: An amount equal to fifty (50) percent of
the aggregate amount expressed under
clause 6.14, 6.15 or 6.16 (as
applicable) of the Series Notice as
being payable under a Confirmation
relating to Class A Notes plus any
amount payable under clause
6.11(a)(ii)(C) of the Series Notice as
specified in the Notice issued by the
Trustee (or the Trust Manager) to
Westpac by the Determination Time in
respect of that Final Exchange Date
Business Day Locations for Trustee: Sydney
Business Day Locations for Westpac: [New York, London - OR LONDON, SYDNEY?]
Payments will be: Gross
<PAGE>
WESTPAC BANKING CORPORATION
GLOSSARY
1. Terms defined in the Series Notice:
A$ Equivalent Invested Amount
Class A Initial Invested Amount Maturity Date
Class A Notes Payment Date
Closing Date Principal Payment
Interest Period Trust Manager
2. Terms defined in the Agreement (including 1991 ISDA Definitions) are:
Actual/360
Actual/365 (Fixed)
AUD-BBR-BBSW
[Modified] Following Business Day Convention
Replaced Transaction
USD-LIBOR-BBA
3. Terms defined in this Confirmation:
Agreement
Trustee
"Determination Time" means 5.00 pm Sydney time 4 Sydney Business Days prior to
the relevant Payment Date or other applicable exchange date.
Westpac
CREDIT SUPPORT PROVIDER PROVISIONS
This Transaction shall be capable of being specified as a Replaced Transaction
in accordance with Section 21 of the Agreement. Those provisions shall apply as
further specified below.
1. Definitions for Credit Events
"CALCULATION AGENT" means the Credit Support Provider or such other
party designated as such for the Transaction. The Calculation Agent's
calculations and determinations shall be made in good faith, in a
<PAGE>
WESTPAC BANKING CORPORATION
commercially reasonable manner and be binding in the absence of
manifest error;
"INITIAL PRICE" means, with respect to any Reference Obligation, the
percentage listed with respect thereto in the definition of Reference
Obligation herein as the Initial Price;
"INTEREST RATE ADJUSTMENT AMOUNT" means, with respect to any Reference
Obligation, the difference between (i) the Mark to Market Value and
(ii) 100% minus the Initial Price;
"MARK TO MARKET RATE" means the Mark to Market Rate specified in
respect of the Reference Obligation;
"MARK TO MARKET VALUE" means, in the determination of the Calculation
Agent, with respect to any Reference Obligation, on any day, the mark
to market value payable on that day (expressed as a percentage of the
notional amount thereof), of a hypothetical interest rate swap
commencing on the Effective Date between a hypothetical party ("Party
X") and a counterparty with the highest long term senior debt rating of
each Rating Agency, which swap has a notional amount equal to
US$100,000,000 and under which Party X (i) receives the Mark to Market
Rate plus the Initial Spread and (ii) pays a fixed interest amount
equal in amount and timing to the coupons on the Reference Obligation
(except a notional amount of $100,000,000 shall be applied). If, under
such swap, Party X would be due to pay such mark to market value, Mark
to Market Value will be negative and, if Party X would be due to
receive such mark to market value, the Mark to Market Value will be
positive.
"MARKET VALUE" means, in accordance with the Quotation Method, the
percentage equal to the arithmetic mean of quotations (exclusive of
accrued but unpaid interest and expressed as a percentage) obtained
from Dealers with respect to a Valuation Date in the manner provided
below. In obtaining such price quotations from Dealers, the Calculation
Agent will request each Dealer to provide firm bid and offer quotations
for an aggregate amount of the Reference Obligation equal to the
Quotation Amount to the extent reasonably practicable as of the
Valuation Time on such Valuation Date. If more than three quotations
are provided on such date, the Market Value shall be the arithmetic
mean of such quotations without regard to the quotations having the
highest and lowest values. If exactly three quotations are provided,
the Market Value shall be the quotation remaining after disregarding
the highest and lowest quotations. For this purpose, if more than one
quotation has the same highest value or lowest value, then one of such
quotations shall be disregarded. If exactly two quotations are
provided, the Market Value shall be the arithmetic mean of such
quotations. If fewer than two quotations are provided, then the Market
Value shall be an amount as determined by the Calculation Agent on the
next Business Day on which
<PAGE>
WESTPAC BANKING CORPORATION
at least two quotations are provided by Dealers. If the Calculation
Agent is unable to calculate the Market Value prior to the fifth
Business Day following the applicable Valuation Date, then the
Calculation Agent shall determine the Market Value for such Valuation
Date in its reasonable discretion;
"PRICE DECLINE REQUIREMENT" means the product of 1.5% and the modified
duration of the Reference Obligation at the time of calculation;
"QUOTATION METHOD":
Mid-market means that only the arithmetic mean of the bid and
offer quotations provided by Dealers that have provided both
bid and offer quotations shall be used in the calculation of
Market Value;
"REFERENCE OBLIGATION" means the obligation(s) as follows:
Issuer/Borrower: Westpac Banking Corporation
Maturity: [Specify]
Coupon: X[OBJECT OMITTED]%
CUSIP/ISIN: CUSIP TT X/ ISIN XS X
Original Issue Amount: USDXXX
Initial Price: X%
Initial Spread: X[OBJECT OMITTED]% U.S.Treasury Notes
due XX/XX/XXXX plus X%;
Mark to Market Rate Yield to maturity of X[OBJECT OMITTED]%
U.S.Treasury Notes due
XX/XX/XXXX
CHANGES WITH RESPECT TO ANY REFERENCE OBLIGATION. In the event that the
aggregate outstanding principal amount of any Reference Obligation has,
in the opinion of the Calculation Agent, been materially reduced by
redemption or otherwise (other than due to any regularly scheduled
amortization or prepayments), then the Calculation Agent, after
consultation with the parties, shall identify a substitute obligation
which ranks equal in priority of payment with such Reference Obligation
and is issued or guaranteed (as to both principal and interest) by the
same issuer and/or guarantor to replace the Reference Obligation. Upon
notice to the parties of a substitute obligation having been identified
by the Calculation Agent, such substitute obligation shall without
further action replace the Reference Obligation.
"SPECIFIED INDEBTEDNESS" means any obligation (whether present or
future, contingent or otherwise, as principal or surety or otherwise)
in respect of money borrowed or raised or under any finance lease,
redeemable preference share, letter of credit, futures contract,
guarantee, indemnity or a
<PAGE>
WESTPAC BANKING CORPORATION
transaction of a type described in the last 6 lines of the definition
of Specified Transaction.
"THRESHOLD AMOUNT" means US$50,000,000
"VALUATION TIME" means 10.00am London Time
2. The parties acknowledge that on the Effective Date of the Substitute
Transaction or the Equivalent Transaction, Party A shall pay to the
Credit Support Provider (in the case of the Substitute Transaction) or
to the new Currency Swap Provider (in the case of the Equivalent
Transaction) the amount equal to the amount (if a positive number) that
hypothetically would have been payable by Party A to Party B under
Section 6(e)(i)(3) if:
(a) the Transaction had been terminated;
(b) an Early Termination Date had occurred on the Effective Date; and
(c) Section 21 had not applied in respect of the Transaction.
Any such amount shall be payable by Party A to, as the case may be,
either the Credit Support Provider in accordance with the provisions of
the side agreement between them dated on or about the Trade Date of
this Transaction (in the case of the Substitute Transaction), or the
New Currency Swap Provider in accordance with the relevant Master
Agreement between Party A and the New Currency Swap Provider (in the
case of the Equivalent Transaction).
<PAGE>
Westpac Banking Corporation
Annexure 2 - Class A Notes - "Substitute Transaction"
Westpac Deal Number
Trade Date: [13 May 1999]
Effective Date: The Effective Date shall be the date
specified in a Substitution Notice given by
Westpac as Credit Support Provider under and
in accordance with Section 21 of the Other
Agreement.
The Effective Date shall not occur if the
conditions in respect of the Substitution
Notice have not been satisfied in full in
accordance with the Other Agreement.
Termination Date: Final Maturity Date (adjusted in accordance
with the [Modified] Following Business Day
Convention)
Floating Interest Amounts
Floating Amounts Payable by Westpac:
These Floating Amounts are payable by Westpac unless there is, on any Floating
Rate Payer Payment Date, any reduction in Class A Interest resulting from a
reduction in A$ Class A Interest Amount pursuant to clause 6.17(a)(ii)(A) of the
Series Notice (as specified in a notice to Westpac by the Determination Time),
in which case the Floating Amount shall be reduced by the same proportion as the
reduction in the A$ Class A Interest Amount.
Floating Rate Payer: Westpac
Notional Amount: An amount equal to the total Invested Amount
of all Class A Notes as at the first day of
the Interest Period ending on but excluding
the relevant Floating Rate Payer Payment
Date
<PAGE>
WESTPAC BANKING CORPORATION
Floating Rate Payer Payment Dates: Each Payment Date on or after the Effective
Date up to, and including the last Payment
Date prior to Maturity Date, and the
Termination Date
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: Three months
Spread: Plus 0.XXXX percent
Floating Rate Day Count Fraction: Actual/360
Reset Dates: The first day of each Interest Period
Compounding: Inapplicable
Floating Amounts Payable by the Trustee:
These Floating Amounts are payable by the Trustee unless there is, on any
Floating Rate Payer Payment Date, any reduction in A$ Class A Interest Amount
pursuant to clause 6.17(a)(ii)(A) of the Series Notice (as specified in a notice
by the Trustee or the Trust Manager to Westpac by the Determination Time), in
which case, instead of the Floating Amount, the Trustee shall pay an amount
equal to the lesser A$ amount specified in that notice on that Floating Rate
Payer Payment Date.
Floating Rate Payer: Trustee
Notional Amount: An amount equal to the A$ Equivalent
(applying USD 0.XXXXXX) of the total
Invested Amount of all Class A Notes as at
the first day of the Interest Period ending
on but excluding the relevant Floating Rate
Payer Payment Date
Floating Rate Payer Payment Dates: Each Payment Date on or after the Effective
Date up to and including the last Payment
Date prior to the Maturity Date, and the
Termination Date
Floating Rate Option: AUD-BBR-BBSW
Designated Maturity: 90 days
<PAGE>
WESTPAC BANKING CORPORATION
Spread: Plus 0.XXXX percent
Floating Rate Day Count Fraction: Actual/365 (Fixed)
Reset Dates: The first day of each Interest Period
Compounding: Inapplicable
<PAGE>
Exchanges
Instalment Exchange
Instalment Exchange Date Each Payment Date on or after the Effective
Date (other than a Final Exchange Date)
Westpac Pays Instalment Exchange: An amount equal to the Class A Principal
Payment paid on the relevant Instalment
Exchange Date towards a reduction of the
Principal Amount of Class A Notes, as
calculated by multiplying the Trustee
Instalment Exchange Payment on the relevant
Instalment Exchange Date by the exchange
rate of USD 0.XXXXXX
Trustee Pays Instalment Exchange: An amount equal to the amount expressed
under clause 6.14, 6.15 or 6.16 (as
applicable) of the Series Notice as being
payable under a Confirmation relating to
Class A Notes plus any amount payable under
clause 6.11(a)(ii)(C) of the Series Notice
(together, the "Trustee Instalment Exchange
Payment") as specified in the notice issued
by the Trustee (or the Trust Manager) to
Westpac by the Determination Time in respect
of that Instalment Exchange Date
Final Exchange:
Final Exchange Date: The earlier of the Termination Date and the
Date of the 10% Clean Up under clause 8.9(d)
of the Master Trust Deed as amended by the
Series Notice and the date of redemption of
all the Class A Notes for taxation or other
reasons, adjusted in accordance with the
[Modified] Following Business Day Convention
<PAGE>
WESTPAC BANKING CORPORATION
Westpac Pays Final Exchange: An amount equal to the aggregate Final
Exchange payable by the Trustee under this
Confirmation, multiplied by the exchange
rate of USD 0.XXXXXX
Trustee Pays Final Exchange: An amount equal to the aggregate amount
expressed under clause 6.14, 6.15 or 6.16
(as applicable) of the Series Notice as
being payable under a Confirmation relating
to Class A Notes plus any amount payable
under clause 6.11(a)(ii)(C) of the Series
Notice as specified in the Notice issued by
the Trustee (or the Trust Manager) to
Westpac by the Determination Time in respect
of that Final Exchange Date
Business Day Locations for Trustee: Sydney
Business Day Locations for Westpac: [New York, London - or London, Sydney?]
Payments will be: Gross
<PAGE>
WESTPAC BANKING CORPORATION
Glossary
1. Terms defined in the Series Notice:
A$ Equivalent Invested Amount
Class A Initial Invested Amount Maturity Date
Class A Notes Payment Date
Closing Date Principal Payment
Interest Period Trust Manager
2. Terms defined in the Agreement (including 1991 ISDA Definitions) are:
Actual/360
Actual/365 (Fixed)
AUD-BBR-BBSW
[Modified] Following Business Day Convention
Other Agreement. For the avoidance of doubt, the Other Agreement is the
agreement between Morgan Guaranty Trust Company of New York as Party A, the
Trustee as Party B, Westpac as the Credit Support Provider to Party A and the
Manager, dated on or about the date of the Agreement, on the same material terms
as the Agreement.
Substitution Notice
USD-LIBOR-BBA
3. Terms defined in this Confirmation:
Agreement
Trustee
"Determination Time" means 5.00 pm Sydney time 4 Sydney Business Days prior to
the relevant Payment Date or other applicable exchange date.
Westpac
<PAGE>
WESTPAC BANKING CORPORATION
Annexure 3 - Class A Notes -"Equivalent-Other Transaction"
Westpac Deal Number
Trade Date: [13 May 1999]
Effective Date: The Effective Date shall be the date
specified in a Substitution Notice given by
Westpac as Credit Support Provider under and
in accordance with Section 21 of the Other
Agreement.
The Effective Date shall not occur if the
conditions in respect of the Substitution
Notice have not been satisfied in full in
accordance with the Other Agreement.
Termination Date: Final Maturity Date (adjusted in accordance
with the [Modified] Following Business Day
Convention)
Floating Interest Amounts
Floating Amounts Payable by Westpac:
These Floating Amounts are payable by Westpac unless there is, on any Floating
Rate Payer Payment Date, any reduction in Class A Interest resulting from a
reduction in A$ Class A Interest Amount pursuant to clause 6.17(a)(ii)(A) of the
Series Notice (as specified in a notice to Westpac by the Determination Time),
in which case the Floating Amount shall be reduced by the same proportion as the
reduction in the A$ Class A Interest Amount.
Floating Rate Payer: Westpac
Notional Amount: An amount equal to fifty (50) percent of the
total Invested Amount of all Class A Notes
as at the first day of the Interest Period
ending on but excluding the relevant
Floating Rate Payer Payment Date
<PAGE>
WESTPAC BANKING CORPORATION
Floating Rate Payer Payment Dates: Each Payment Date on or after the Effective
Date up to and including the last Payment
Date prior to Maturity Date, and the
Termination Date
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: Three months
Spread: Plus O.XXXX percent
Floating Rate Day Count Fraction: Actual/360
Reset Dates: The first day of each Interest Period
Compounding: Inapplicable
Floating Amounts Payable by the Trustee:
These Floating Amounts are payable by the Trustee unless there is, on any
Floating Rate Payer Payment Date, any reduction in A$ Class A Interest Amount
pursuant to clause 6.17(a)(ii)(A) of the Series Notice (as specified in a notice
by the Trustee or Trust Manager to Westpac by the Determination Time), in which
case, instead of the Floating Amount, the Trustee shall pay an amount equal to
the lesser A$ amount specified in that notice on that Floating Rate Payer
Payment Date.
Floating Rate Payer: Trustee
Notional Amount: An amount equal to fifty (50) percent of the
A$ Equivalent (applying USD 0.XXXXXX) of the
total Invested Amount of all Class A Notes
as at the first day of the Interest Period
ending on but excluding the relevant
Floating Rate Payer Payment Date
Floating Rate Payer Payment Dates: Each Payment Date on or after the Effective
Date up to and including the last Payment
Date prior to the Maturity Date, and the
Termination Date
Floating Rate Option: AUD-BBR-BBSW
Designated Maturity: 90 days
<PAGE>
Spread: Plus 0.XXXX percent
Floating Rate Day Count Fraction: Actual/365 (Fixed)
Reset Dates: The first day of each Interest Period
Compounding: Inapplicable
<PAGE>
WESTPAC BANKING CORPORATION
Exchanges
Instalment Exchange
Instalment Exchange Date Each Payment Date on or after the Effective
Date (other than a Final Exchange Date)
Westpac Pays Instalment Exchange: An amount equal to fifty (50) percent of the
Class A Principal Payment paid on the
relevant Instalment Exchange Date towards a
reduction of the Principal Amount of Class A
Notes, as calculated by multiplying the
Trustee Instalment Exchange Payment on the
relevant Instalment Exchange Date by the
exchange rate of USD 0.XXXXXX
Trustee Pays Instalment Exchange: An amount equal to fifty (50) percent of the
amount expressed under clause 6.14, 6.15 or
6.16 (as applicable) of the Series Notice as
being payable under a Confirmation relating
to Class A Notes plus any amount payable
under clause 6.11(a)(ii)(C) of the Series
Notice (together, the "Trustee Instalment
Exchange Payment") as specified in the
notice issued by the Trustee (or the Trust
Manager) to Westpac by the Determination
Time in respect of that Instalment Exchange
Date
<PAGE>
WESTPAC BANKING CORPORATION
Final Exchange:
Final Exchange Date: The earlier of the Termination Date and the
Date of the 10% Clean Up under clause 8.9(d)
of the Master Trust Deed as amended by the
Series Notice and the date of redemption of
all the Class A Notes for taxation or other
reasons, adjusted in accordance with the
[Modified] Following Business Day Convention
Westpac Pays Final Exchange: An amount equal to fifty (50) percent of the
aggregate Final Exchange payable by the
Trustee under this Confirmation, multiplied
by the exchange rate of USD 0.XXXXXX
Trustee Pays Final Exchange: An amount equal to fifty (50) percent of the
aggregate amount expressed under clause
6.14, 6.15 or 6.16 (as applicable) of the
Series Notice as being payable under a
Confirmation relating to Class A Notes plus
any amount payable under clause
6.11(a)(ii)(C) of the Series Notice as
specified in the Notice issued by the
Trustee (or the Trust Manager) to Westpac by
the Determination Time in respect of that
Final Exchange Date
Business Day Locations for Trustee: Sydney
Business Day Locations for Westpac: [New York, London - or London, Sydney?]
Payments will be: Gross
<PAGE>
WESTPAC BANKING CORPORATION
Glossary
1. Terms defined in the Series Notice:
A$ Equivalent Invested Amount
Class A Initial Invested Amount Maturity Date
Class A Notes Payment Date
Closing Date Principal Payment
Interest Period Trust Manager
2. Terms defined in the Agreement (including 1991 ISDA Definitions) are:
Actual/360
Actual/365 (Fixed)
AUD-BBR-BBSW
[Modified] Following Business Day Convention Other Agreement. For the avoidance
of doubt, the Other Agreement is the agreement between Morgan Guaranty Trust
Company of New York as Party A, the Trustee as Party B, Westpac as the Credit
Support Provider to Party A and the Manager, dated on or about the date of the
Agreement, on the same material terms as the Agreement.
Replaced Transaction
USD-LIBOR-BBA
3. Terms defined in this Confirmation:
Agreement
Trustee
"Determination Time" means 5.00 pm Sydney time 4 Sydney Business Days prior to
the relevant Payment Date or other applicable exchange date.
Westpac
Credit Support Provider Provisions
Each Transaction under this Confirmation shall be capable of being specified as
a Replaced Transaction in accordance with the provisions of Section 21 of the
Agreement. Those provisions shall apply as further specified below.
<PAGE>
WESTPAC BANKING CORPORATION
1. Definitions for Credit Events
"Calculation Agent" means the Credit Support Provider or such other party
designated as such for the Transaction. The Calculation Agent's calculations and
determinations shall be made in good faith, in a commercially reasonable manner
and be binding in the absence of manifest error;
"Initial Price" means, with respect to any Reference Obligation, the percentage
listed with respect thereto in the definition of Reference Obligation herein as
the Initial Price;
"Interest Rate Adjustment Amount" means, with respect to any Reference
Obligation, the difference between (i) the Mark to Market Value and (ii) 100%
minus the Initial Price;
"Mark to Market Rate" means the Mark to Market Rate specified in respect of the
Reference Obligation;
"Mark to Market Value" means, in the determination of the Calculation Agent,
with respect to any Reference Obligation, on any day, the mark to market value
payable on that day (expressed as a percentage of the notional amount thereof),
of a hypothetical interest rate swap commencing on the Effective Date between a
hypothetical party ("Party X") and a counterparty with the highest long term
senior debt rating of each Rating Agency, which swap has a notional amount equal
to US$100,000,000 and under which Party X (i) receives the Mark to Market Rate
plus the Initial Spread and (ii) pays a fixed interest amount equal in amount
and timing to the coupons on the Reference Obligation (except a notional amount
of $100,000,000 shall be applied). If, under such swap, Party X would be due to
pay such mark to market value, Mark to Market Value will be negative and, if
Party X would be due to receive such mark to market value, the Mark to Market
Value will be positive.
"Market Value" means, in accordance with the Quotation Method, the percentage
equal to the arithmetic mean of quotations (exclusive of accrued but unpaid
interest and expressed as a percentage) obtained from Dealers with respect to a
Valuation Date in the manner provided below. In obtaining such price quotations
from Dealers, the Calculation Agent will request each Dealer to provide firm bid
and offer quotations for an aggregate amount of the Reference Obligation equal
to the Quotation Amount to the extent reasonably practicable as of the Valuation
Time on such Valuation Date. If more than three quotations are provided on such
date, the Market Value shall be the arithmetic mean of such quotations without
regard to the quotations having the highest and lowest values. If exactly three
quotations are provided, the Market Value shall be the quotation remaining after
disregarding the highest and lowest quotations. For this purpose, if more than
one quotation has the same highest value or lowest value, then one of such
quotations shall be disregarded. If exactly two quotations are provided, the
Market Value shall be the
<PAGE>
WESTPAC BANKING CORPORATION
arithmetic mean of such quotations. If fewer than two quotations are provided,
then the Market Value shall be an amount as determined by the Calculation Agent
on the next Business Day on which at least two quotations are provided by
Dealers. If the Calculation Agent is unable to calculate the Market Value prior
to the fifth Business Day following the applicable Valuation Date, then the
Calculation Agent shall determine the Market Value for such Valuation Date in
its reasonable discretion;
"Price Decline Requirement" means the product of 1.5% and the modified duration
of the Reference Obligation at the time of calculation;
"Quotation Method":
Mid-market means that only the arithmetic mean of the bid and offer quotations
provided by Dealers that have provided both bid and offer quotations shall be
used in the calculation of Market Value;
"Reference Obligation" means the obligation(s) as follows:
Issuer/Borrower: Westpac Banking Corporation
Maturity: [Specify]
Coupon: X[OBJECT OMITTED]%
CUSIP/ISIN: CUSIP TT XX/ ISIN XS XX
Original Issue Amount: USDXX
Initial Price: X%
Initial Spread: X[OBJECT OMITTED]% U.S.Treasury Notes due XX/XX/XXXX plus X%;
Mark to Market Rate Yield to maturity of X[OBJECT OMITTED]% U.S.Treasury
Notes due
XX/XX/XXXX
Changes with respect to any Reference Obligation. In the event that the
aggregate outstanding principal amount of any Reference Obligation has, in the
opinion of the Calculation Agent, been materially reduced by redemption or
otherwise (other than due to any regularly scheduled amortization or
prepayments), then the Calculation Agent, after consultation with the parties,
shall identify a substitute obligation which ranks equal in priority of payment
with such Reference Obligation and is issued or guaranteed (as to both principal
and interest) by the same issuer and/or guarantor to replace the Reference
Obligation. Upon notice to the parties of a substitute obligation having been
identified by the Calculation Agent, such substitute obligation shall without
further action replace the Reference Obligation.
"Specified Indebtedness" means any obligation (whether present or future,
contingent or otherwise, as principal or surety or otherwise) in respect of
money
<PAGE>
WESTPAC BANKING CORPORATION
borrowed or raised or under any finance lease, redeemable preference share,
letter of credit, futures contract, guarantee, indemnity or a transaction of a
type described in the last 6 lines of the definition of Specified Transaction.
"Threshold Amount" means US$50,000,000
"Valuation Time" means 10.00am London Time
2. The parties acknowledge that on the Effective Date of the Substitute
Transaction or the Equivalent Transaction, Party A shall pay to the Credit
Support Provider (in the case of the Substitute Transaction) or to the new
Currency Swap Provider (in the case of the Equivalent Transaction) the amount
equal to the amount (if a positive number) that hypothetically would have been
payable by Party A to Party B under Section 6(e)(i)(3) if:
(a) the Transaction had been terminated;
(b) an Early Termination Date had occurred on the Effective Date; and
(c) Section 21 had not applied in respect of the Transaction.
Any such amount shall be payable by Party A to, as the case may be, either the
Credit Support Provider in accordance with the provisions of the side agreement
between them dated on or about the Trade Date of this Transaction (in the case
of the Substitute Transaction), or the New Currency Swap Provider in accordance
with the relevant Master Agreement between Party A and the New Currency Swap
Provider (in the case of the Equivalent Transaction).
<PAGE>
WESTPAC BANKING CORPORATION
ACCESSION BY NEW CURRENCY SWAP PROVIDER
As specified in the Substitution Notice given by Westpac under the Other
Agreement, we agree to be the Credit Support Provider in relation to Westpac as
governed by the terms of the Agreement, in respect of the Transaction specified
by this Annexure 3, and we agree that all references in the Agreement and this
Transaction to "Credit Support Provider" shall be to us, and for consideration
which we acknowledge as having been received, we hereby agree to assume all the
rights and obligations as Credit Support Provider as and from the Effective Date
of this Transaction. The Agreement is attached as annexure A to this Accession
and the confirmation for the Transaction is attached as annexure B to this
Accession.
Agreed and accepted as the new
Credit Support Provider:
By:
Name:
Title:
Agreed and confirmed as of the Effective Date of the Transaction specified in
this Annexure 3:
WESTPAC SECURITIES ADMINISTRATION LIMITED(ACN 000 049 472)
in its capacity as Party B
By:
-----------------------------
Name:
Title:
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED (ACN 081 709 211)
in its capacity as Trust Manager
By:
-----------------------------
Name:
Title:
WESTPAC BANKING CORPORATION
in its capacity as Party A
By:
-----------------------------
Name:
Title:
<PAGE>
Exhibit 10.6
(Multicurrency--Cross Border) [LOGO]
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of __ June 1999
Morgan Guaranty Trust Company Westpac Securities Administration Limited
of New York (ACN 000 049 472) in its capacity as
- ------------------------------ and ---------------------------------------------
trustee of the Series 1998-1G WST Trust
have entered and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other confirming
evidence (each a "Confirmation") exchanged between the parties confirming those
Transactions.
Accordingly, the parties agree as follows: --
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions of
the Schedule and the other provisions of this Master Agreement, the Schedule
will prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purpose of the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the fact
that this Master Agreement and all Confirmations form a single agreement between
the parties (collectively referred to as this "Agreement"), and the parties
would not otherwise enter into any Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of this
Agreement.
(ii) Payments under this Agreement will be made on the due date for value
on that date in the place of the account specified in the relevant
Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the
required currency. Where settlement is by delivery (that is, other than by
payment), such delivery will be made for receipt on the due date in the
manner customary for the relevant obligation unless otherwise specified in
the relevant Confirmation or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to
(1) the condition precedent that no Event of Default or Potential Event of
Default with respect to the other party has occurred and is continuing,
(2) the condition precedent that no Early Termination Date in respect of
the relevant Transaction has occurred or been effectively designated and
(3) each other applicable condition precedent specified in this Agreement.
<PAGE>
(b) Change of Account. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a reasonable
objection to such change.
(c) Netting. If on any date amounts would otherwise be payable: --
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to make
payment or any such amount will be automatically satisfied and discharged and,
if the aggregate amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been payable by the other
party, replaced by an obligation upon the party by whom the larger aggregate
amount would have been payable to pay to the other party the excess of the
larger aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount
will be determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be made
in the Schedule or a Confirmation by specifying that subparagraph (ii) above
will not apply to the Transactions identified as being subject to the election,
together with the starting date (in which case subparagraph (ii) above will not,
or will cease to, apply to such Transactions from such date). This election may
be made separately for different groups of Transactions and will apply
separately to each pairing of Offices through which the parties make and receive
payments or deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless such
deduction or withholding is required by any applicable law, as modified by
the practice of any relevant governmental revenue authority, then in
effect. If a party is so required to deduct or withhold, then that party
("X") will: --
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to be
deducted or withheld (including the full amount required to be
deducted or withheld from any additional amount paid by X to Y under
this Section 2(d)) promptly upon the earlier of determining that
such deduction or withholding is required or receiving notice that
such amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified copy),
or other documentation reasonably acceptable to Y, evidencing such
payment to such authorities; and
(4) if such Tax is an Identifiable Tax, pay to Y, in addition to the
payment to which Y is otherwise entitled under this Agreement, such
additional amount as is necessary to ensure that the net amount
actually received by Y (free and clear of Indemnifiable Taxes,
whether assessed against X or Y) will equal the full amount Y would
have received had no such deduction or withholding been required.
However, X will not be required to pay any additional amount to Y to
the extent that it would not be required to be paid but for: --
(A) the failure by Y to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4(d); or
(B) the failure of a representation made by Y pursuant to
Section 3(f) to be accurate and true unless such failure would
not have occurred but for (I) any action taken by a taxing
authority, or brought in a court of competent jurisdiction, on
or after the date on which a Transaction is entered into
(regardless of whether such action is taken or brought with
respect to a party to this Agreement) or (II) a Change in Tax
Law.
2
<PAGE>
(ii) Liability. if: --
(1) X is required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, to make any
deduction or withholding in respect of which X would not be required
to pay an additional amount to Y under Section 2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly against
X,
then, except to the extent Y has satisfied or then satisfies the liability
resulting from such Tax, Y will promptly pay to X the amount of such
liability (including any related liability for interest, but including any
related liability for penalties only if Y has failed to comply with or
perform any agreement contained in Section 4(a)(i), 4(a)(iii) or 4(d)).
(e) Default Interest; Other Amounts. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant Transaction,
a party that defaults in the performance of any payment obligation will, to the
extent permitted by law and subject to Section 6(c), be required to pay interest
(before as well as after judgement) on the overdue amount to the other party on
demand in the same currency as such overdue amount, for the period from (and
including) the original due date for payment to (but excluding) the date of
actual payment, at the Default Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed. If, prior to
the occurrence or effective designation of an Early Termination Date in respect
of the relevant Transaction, a party defaults in the performance of any
obligation required to be settled by delivery, it will compensate the other
party on demand if and to the extent provided for in the relevant Confirmation
or elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be deemed
to be repeated by each party on each date on which a Transaction is entered into
and, in the case of the representations in Section 3(f), at all times until the
termination of this Agreement) that: --
(a) Basic Representations.
(i) Status. It is duly organised and validly existing under the laws of
the jurisdiction of its organisation or incorporation and, if relevant
under such laws, in good standing;
(ii) Powers. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party, to
deliver this Agreement and any other documentation relating to this
Agreement that it is required by this Agreement to deliver and to perform
its obligations under this Agreement and any obligations it has under any
Credit Support Document to which it is a party and has taken all necessary
action to authorise such execution, delivery and performance;
(iii) No Violation or Conflict. Such execution, delivery and performance
do not violate or conflict with any law applicable to it, any provision of
its constitutional documents, any order or judgement of any court or other
agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets;
(iv) Consents. All governmental and other consents that are required to
have been obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party have been obtained and are in full
force and effect and all conditions of any such consents have been
complied with; and
(v) Obligations Binding. Its obligations under this Agreement and any
Credit Support Document to which it is a party constitute its legal, valid
and binding obligations, enforceable in accordance with their respective
terms (subject to applicable bankruptcy, reorganisation, insolvency,
moratorium or similar laws affecting creditors' rights generally and
subject, as to enforceability, to equitable principles of general
application (regardless of whether enforcement is sought in a proceeding
in equity or at law)).
3
<PAGE>
(b) Absence of Certain Events. No Event of Default or Potential Event of Default
or, to its knowledge, Termination Event with respect to it has occurred and is
continuing and no such event or circumstance would occur as a result of its
entering into or performing its obligations under this Agreement or any Credit
Support Document to which it is a party.
(c) Absence of Litigation. There is not pending, to its knowledge, threatened
against it or any of its Affiliates any action, suit or proceeding at law or in
equity or before any court, tribunal, governmental body, agency or official or
any arbitrator that is likely to affect the legality, validity or enforceability
against it of this Agreement or any Credit Support Document to which it is a
party or its ability to perform its obligations under this Agreement or such
Credit Support Document.
(d) Accuracy of Specified Information. All applicable information that is
furnished in writing by or on behalf of it to the other party and is identified
for the purpose of this Section 3(d) in the Schedule is, as of the date of the
information, true, accurate and complete in every material respect.
(e) Payer Tax Representation. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(e) is accurate and true.
(f) Payee Tax Representations. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(f) is accurate and true.
4. Agreements
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party: --
(a) Furnish Specified Information. It will deliver to the other party or, in
certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs: --
(i) any forms, documents or certificates relating to taxation specified in
the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation;
and
(iii) upon reasonable demand by such other party, any form or document
that may be required or reasonably requested in writing in order to allow
such other party or its Credit Support Provider to make a payment under
this Agreement or any applicable Credit Support Document without any
deduction or withholding for or on account of any Tax or with such
deduction or withholding at a reduced rate (so long as the completion,
execution or submission of such form or document would not materially
prejudice the legal or commercial position of the party in receipt of such
demand), with any such form or document to be accurate and completed in a
manner reasonably satisfactory to such other party and to be executed and
to be delivered with any reasonably required certification,
in each case by the date specified in the Schedule or such Confirmation or, if
none is specified, as soon as reasonably practicable.
(b) Maintain Authorisations. It will use all reasonable efforts to maintain in
full force and effect all consents of any governmental or other authority that
are required to be obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party and will use all reasonable efforts to
obtain any that may become necessary in the future.
(c) Comply with Laws. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to comply
would materially impair its ability to perform its obligations under this
Agreement or any Credit Support Document to which it is a party.
(d) Tax Agreement. It will give notice of any failure of a representation made
by it under Section 3(f) to be accurate and true promptly upon learning of such
failure.
(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax
levied or imposed upon it or in respect of its execution or performance of this
Agreement by a jurisdiction in which it is incorporated,
4
<PAGE>
organised, managed and controlled, or considered to have its seat, or in which a
branch or office through which it is acting for the purpose of this Agreement is
located ("Stamp Tax Jurisdiction") and will indemnify the other party against
any Stamp Tax levied or imposed upon the other part or in respect of the other
party's execution or performance of this Agreement by any such Stamp Tax
Jurisdiction which is not also a Stamp Tax Jurisdiction with respect to the
other party.
5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a party or, if
applicable, any Credit Support Provider of such party or any Specified Entity of
such party of any of the following events constitutes an event of default (an
"Event of Default") with respect to such party: --
(i) Failure to Pay or Deliver. Failure by the party to make, when due, any
payment under this Agreement or delivery under Section 2(a)(i) or 2(e)
required to be made by it if such failure is not remedied on or before the
third Local Business Day after notice of such failure is given to the
party;
(ii) Breach of Agreement. Failure by the party to comply with or perform
any agreement or obligation (other than an obligation to make any payment
under this Agreement or delivery under Section 2(a)(i) or 2(e) or to give
notice of a Termination Event or any agreement or obligation under Section
4(a)(i), 4(a)(iii) or 4(d)) to be complied with or performed by the party
in accordance with this Agreement if such failure is not remedied on or
before the thirtieth day after notice of such failure is given to the
party;
(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of such
party to comply with or perform any agreement or obligation to be
complied with or performed by it in accordance with any Credit
Support Document if such failure is continuing after any applicable
grace period has elapsed;
(2) the expiration or termination of such Credit Support Document or
the failing or ceasing of such Credit Support Document to be in full
force and effect for the purpose of this Agreement (in either case
other than in accordance with its terms) prior to the satisfaction
of all obligations of such party under each Transaction to which
such Credit Support Document relates without the written consent of
the other party; or
(3) the party or such Credit Support Provider disaffirms, disclaims,
repudiates or rejects, in whole or in part, or challenges the
validity of, such Credit Support Document;
(iv) Misrepresentation. A representation (other than a representation
under Section 3(e) or (f)) made or repeated or deemed to have been made or
repeated by the party or any Credit Support Provider of such party in this
Agreement or any Credit Support Document proves to have been incorrect or
misleading in any material respect when made or repeated or deemed to have
been made or repeated;
(v) Default under Specified Transaction. The party, any Credit Support
Provider of such party or any applicable Specified Entity of such party
(1) defaults under a Specified Transaction and, after giving effect to any
applicable notice requirement or grace period, there occurs a liquidation
of, an acceleration of obligations under, or an early termination of, that
Specified Transaction, (2) defaults, after giving effect to any applicable
notice requirement or grace period, in making any payment or delivery due
on the last payment delivery or exchange date of, or any payment on early
termination of, a Specified Transaction (or such default continues for at
least three Local Business Days if there is no applicable notice
requirement or grace period) or (3) disaffirms, disclaims, repudiates or
rejects, in whole or in part, a Specified Transaction (or such action is
taken by any person or entity appointed or empowered to operate it or act
on its behalf);
(vi) Cross Default. If "Cross Default" is specified in the Schedule as
applying to the party, the occurrence or existence of (1) a default, event
of default or other similar condition or event (however
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described) in respect of such party, any Credit Support Provider of such
party or any applicable Specified Entity of such party under one or more
agreements or instruments relating to Specified Indebtedness of any of
them (individually or collectively) in an aggregate amount of not less
than the applicable Threshold Amount (as specified in the Schedule) which
has resulted in such Specified Indebtedness becoming, or becoming capable
at such time of being declared, due and payable under such agreements or
instruments, before it would otherwise have been due and payable or (2) a
default by such party, such Credit Support Provider or such Specified
Entity (individually or collectively) in making one or more payments on
the due date thereof in an aggregate amount of not less than the
applicable Threshold Amount under such agreements or instruments (after
giving effect to any applicable notice requirement or grace period);
(vii) Bankruptcy. The party, any Credit Support Provider of such party or
any applicable Specified Entity of such party: --
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger); (2) becomes insolvent or is unable to pay
its debts or fails or admits in writing its inability generally to
pay its debts as they become due; (3) makes a general assignment,
arrangement or composition with or for the benefit of its creditors;
(4) institutes or has instituted against it a proceeding seeking a
judgement of insolvency or bankruptcy or any other relief under any
bankruptcy or insolvency law or other similar law affecting
creditors' rights, or a petition is presented for its winding-up or
liquidation, and, in the case of any such proceeding or petition
instituted or presented against it, such proceeding or petition (A)
results in a judgement of insolvency or bankruptcy or the entry of
an order for relief or the making of an order for its winding-up or
liquidation or (B) is not dismissed, discharged, stayed or
restrained in each case within 30 days of the institution or
presentation thereof; (5) has a resolution passed for its
winding-up, official management or liquidation (other than pursuant
to a consolidation, amalgamation or merger); (6) seeks or becomes
subject to the appointment of an administrator, provisional
liquidator, conservator, receiver, trustee, custodian or other
similar official for it or for all or substantially all its assets;
(7) has a secured party take possession of all or substantially all
its assets or has a distress, execution, attachment, sequestration
or other legal process levied, enforced or sued on or against all or
substantially all its assets and such secured party maintains
possession, or any such process is not dismissed, discharged, stayed
or restrained, in each case within 30 days thereafter; (8) causes or
is subject to any event with respect to it which, under the
applicable laws of any jurisdiction, has an analogous effect to any
of the events specified in clauses (1) to (7) (inclusive); or (9)
takes any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the foregoing acts; or
(viii) Merger Without Assumption. The party or any Credit Support Provider
of such party consolidates or amalgamates with, or merges with or into, or
transfers all or substantially all its assets to, another entity and, at
the time of such consolidation, amalgamation, merger or transfer: --
(1) the resulting, surviving or transferee entity fails to assume
all the obligations of such party or such Credit Support Provider
under this Agreement or any Credit Support Document to which it or
its predecessor was a party by operation of law or pursuant to an
agreement reasonably satisfactory to the other party to this
Agreement; or
(2) the benefits of any Credit Support Document fail to extend
(without the consent of the other party) to the performance by such
resulting, surviving or transferee entity of its obligations under
this Agreement.
(b) Termination Events. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified Entity
of such party of any event specified below constitutes an Illegality if the
event is specified in (i) below, a Tax Event if the event is specified in (ii)
below or a Tax Event Upon Merger if the event is specified in (iii) below, and,
if specified to be applicable, a Credit Event
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Upon Merger if the event is specified pursuant to (iv) below or an Additional
Termination Event if the event is specified pursuant to (v) below: --
(i) Illegality. Due to the adoption of, or any change in, any applicable
law after the date on which a Transaction is entered into, or due to the
promulgation of, or any change in, the interpretation by any court,
tribunal or regulatory authority with competent jurisdiction of any
applicable law after such date, it becomes unlawful (other than as a
result of a breach by the party of Section 4(b)) for such party (which
will be the Affected Party): --
(1) to perform any absolute or contingent obligation to make a
payment or delivery or to receive a payment or delivery in respect
of such Transaction or to comply with any other material provision
of this Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of such party to
perform, any contingent or other obligation which the party (or such
Credit Support Provider) has under any Credit Support Document
relating to such Transaction;
(ii) Tax Event. Due to (x) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the date on
which a Transaction is entered into (regardless of whether such action is
taken or brought with respect to a party to this Agreement) or (y) a
Change in Tax Law, the party (which will be the Affected Party) will, or
there is a substantial likelihood that it will, on the next succeeding
Scheduled Payment Date (1) be required to pay to the other party an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount is required to be
deducted or withheld for or on account of a Tax (except in respect of
interest under Section 2(e), 6(d)(ii) or 6(e)) and no additional amount is
required to be paid in respect of such Tax under Section 2(d)(i)(4) (other
than by reason of Section 2(d)(i)(4)(A) or (B));
(iii) Tax Event Upon Merger. The party (the "Burdened Party") on the next
succeeding Scheduled Payment Date will either (1) be required to pay an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount has been deducted or
withheld for or on account of any Indemnifiable Tax in respect of which
the other party is not required to pay an additional amount (other than by
reason of Section 2(d)(i)(4)(A) or (B)), in either case as a result of a
party consolidating or amalgamating with, or merging with or into, or
transferring all or substantially all its assets to, another entity (which
will be the Affected Party) where such action does not constitute an event
described in Section 5(a)(viii);
(iv) Credit Event Upon Merger. If "Credit Event Upon Merger" is specified
in the Schedule as applying to the party, such party ("X"), any Credit
Support Provider of X or any applicable Specified Entity of X consolidates
or amalgamates with, or merges with or into, or transfers all or
substantially all its assets to, another entity and such action does not
constitute an event described in Section 5(a)(viii) but the
creditworthiness of the resulting, surviving or transferee entity is
materially weaker than that of X, such Credit Support Provider or such
Specified Entity, as the case may be, immediately prior to such action
(and, in such event, X or its successor or transferee, as appropriate,
will be the Affected Party); or
(v) Additional Termination Event. If any "Additional Termination Event" is
specified in the Schedule or any Confirmation as applying, the occurrence
of such event (and, in such event, the Affected Party or Affected Parties
shall be as specified for such Additional Termination Event in the
Schedule or such Confirmation).
(c) Event of Default and Illegality. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes an
Illegality, it will be treated as an Illegality and will not constitute an Event
of Default.
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6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an Event of
Default with respect to a party (the "Defaulting Party") has occurred and is
then continuing, the other party (the "Non-defaulting Party") may, by not more
than 20 days notice to the Defaulting Party specifying the relevant Event of
Default designate a day not earlier than the day such notice is effective as an
Early Termination Date in respect of all outstanding Transactions. If, however,
"Automatic Early Termination" is specified in the Schedule as applying to a
party, then an Early Termination Date in respect of all outstanding Transactions
will occur immediately upon the occurrence with respect to such party of an
Event of Default specified in Section 5(a)(vii)(1), (3), (5), (6) or, to the
extent analogous thereto, (8), and as of the time immediately preceding the
institution of the relevant proceeding or the presentation of the relevant
petition upon the occurrence with respect to such party of an Event of Default
specified in Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party, specifying the
nature of that Termination Event and each Affected Transaction and will
also give such other information about that Termination Event as the other
party may reasonably require.
(ii) Transfer to Avoid Termination Event. If either an Illegality under
Section 5(b)(i)(1) or a Tax Event occurs and there is only one Affected
Party, or if a Tax Event Upon Merger occurs and the Burdened Party is the
Affected Party, the Affected Party will, as a condition to its right to
designate an Early Termination Date under Section 6(b)(iv), use all
reasonable efforts (which will not require such party to incur a loss,
excluding immaterial, incidental expenses) to transfer within 20 days
after it gives notice under Section 6(b)(i) all its rights and obligations
under this Agreement in respect of the Affected Transactions to another of
its Offices or Affiliates so that such Termination Event ceases to exist.
If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period,
whereupon the other party may effect such a transfer within 30 days after
the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be subject
to and conditional upon the prior written consent of the other party,
which consent will not be withheld if such other party's policies in
effect at such time would permit it to enter into transactions with the
transferee on the terms proposed.
(iii) Two Affected Parties. If an Illegality under Section 5(b)(i)(1) or a
Tax Event occurs and there are two Affected Parties, each party will use
all reasonable efforts to reach agreement within 30 days after notice
thereof is given under Section 6(b)(i) on action to avoid that Termination
Event.
(iv) Right to Terminate. If: --
(1) a transfer under Section 6(b)(ii) or an agreement under Section
6(b)(iii), as the case may be, has not been effected with respect to
all Affected Transactions within 30 days after an Affected Party
gives notice under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon
Merger or an Additional Termination Event occurs, or a Tax Event
Upon Merger occurs and the Burdened Party is not the Affected Party,
either party in the case of an Illegality, the Burdened Party in the case
of a Tax Event Upon Merger, any Affected Party in the case of a Tax Event
or an Additional Termination Event if there is more than one Affected
Party, or the party which is not the Affected Party in the case of a
Credit Event Upon Merger or an Additional Termination Event if there is
only one Affected Party may, by not more than 20 days notice to the other
party and provided that the relevant Termination Event is then
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continuing, designate a day not earlier than the day such notice is
effective as an Early Termination Date in respect of all Affected
Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given under Section
6(a) or (b), the Early Termination Date will occur on the date so
designated, whether or not the relevant Event of Default or Termination
Event is then continuing.
(ii) Upon the occurrence of effective designation of an Early Termination
Date, no further payments or deliveries under Section 2(a)(i) or 2(e) in
respect of the Terminated Transactions will be required to be made, but
without prejudice to the other provisions of this Agreement. The amount,
if any, payable in respect of an Early Termination Date shall be
determined pursuant to Section 6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and will
provide to the other party a statement (1) showing, in reasonable detail,
such calculations (including all relevant quotations and specifying any
amount payable under Section 6(e)) and (2) giving details of the relevant
account to which any amount payable to it is to be paid. In the absence of
written confirmation from the source of a quotation obtained in
determining a Market Quotation, the records of the party obtaining such
quotation will be conclusive evidence of the existence and accuracy of
such quotation.
(ii) Payment Date. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day that
notice of the amount payable is effective (in the case of an Early
Termination Date which is designated or occurs as a result of an Event of
Default) and on the day which is two Local Business Days after the day on
which notice of the amount payable is effective (in the case of an Early
Termination Date which is designated as a result of a Termination Event).
Such amount will be paid together with (to the extent permitted under
applicable law) interest thereon (before as well as after judgment) in
the Termination Currency, from (and including) the relevant Early
Termination Date to (but excluding) the date such amount is paid, at the
Applicable Rate. Such interest will be calculated on the basis of daily
compounding and the actual number of days elapsed.
(e) Payments on Early Termination. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the Schedule
of a payment measure, either "Market Quotation" or "Loss", and a payment method,
either the "First Method" or the "Second Method". If the parties fail to
designate a payment measure or payment method in the Schedule, it will be deemed
that "Market Quotation" or the "Second Method", as the case may be, shall apply.
The amount, if any, payable in respect of an Early Termination Date and
determined pursuant to this Section will be subject to any Set-off.
(i) Events of Default. If the Early Termination Date results from an Event
of Default: --
(1) First Method and Market Quotation. If the First Method and
Market Quotation apply, the Defaulting Party will pay to the
Non-defaulting Party the excess, if a positive number, of (A) the
sum of the Settlement Amount (determined by the Non-defaulting
Party) in respect of the Terminated Transactions and the Termination
Currency Equivalent of the Unpaid Amounts owing to the
Non-defaulting Party over (B) the Termination Currency Equivalent of
the Unpaid Amounts owing to the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply, the
Defaulting Party will pay to the Non-defaulting Party, if a positive
number, the Non-defaulting Party's Loss in respect of this
Agreement.
(3) Second Method and Market Quotation. If the Second Method and
Market Quotation apply, an amount will be payable equal to (A) the
sum of the Settlement Amount (determined by the
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Non-defaulting Party) in respect of the Terminated Transactions and
the Termination Currency Equivalent of the Unpaid Amounts owing to
the Non-defaulting Party less (B) the Termination Currency
Equivalent of the Unpaid Amounts owing to the Defaulting Party. If
that amount is a positive number, the Defaulting Party will pay it
to the Non-defaulting Party; if it is a negative number, the
Non-defaulting Party will pay the absolute value of that amount to
the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss apply, an
amount will be payable equal to the Non-defaulting Party's Loss in
respect of this Agreement. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting Party; if it is a
negative number, the Non-defaulting Party will pay the absolute
value of that amount to the Defaulting Party.
(iii) Termination Events. If the Early Termination Date results from a
Termination Event: --
(1) One Affected Party. If there is one Affected Party, the amount
payable will be determined in accordance with Section 6(e)(i)(3), if
Market Quotation applies, or Section 6(e)(i)(4), if Loss applies,
except that, in either case, references to the Defaulting Party and
to the Non-defaulting Party will be deemed to be references to the
Affected Party and the party which is not the Affected Party,
respectively, and, if Loss applies and fewer than all the
Transactions are being terminated, Loss shall be calculated in
respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties: --
(A) if Market Quotation applies, each party will determine a
Settlement Amount in respect of the Terminated Transactions,
and an amount will be payable equal to (I) the sum of (a)
one-half of the difference between the Settlement Amount of
the party with the higher Settlement Amount ("X") and the
Settlement Amount of the party with the lower Settlement
Amount ("Y") and (b) the Termination Currency Equivalent of
the Unpaid Amounts owing to X less (II) the Termination
Currency Equivalent of the Unpaid Amounts owing to Y; and
(B) if Loss applies, each party will determine its Loss in
respect of this Agreement (or, if fewer than all the
Transactions are being terminated, in respect of all
Terminated Transactions) and an amount will be payable equal
to one-half of the difference between the Loss of the party
with the higher Loss ("X") and the Loss of the party with the
lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X; if
it is a negative number, X will pay the absolute value of that
amount to Y.
(iii) Adjustment for Bankruptcy. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination" applies in
respect of a party, the amount determined under this Section 6(e) will be
subject to such adjustments as are appropriate and permitted by law to
reflect any payments or deliveries made by one party to the other under
this Agreement (and retained by such other party) during the period from
the relevant Early Termination Date to the date for payment determined
under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation applies an
amount recoverable under this Section 6(e) is a reasonable pre-estimate of
loss and not a penalty. Such amount is payable for the loss of bargain and
the loss of protection against future risks and except as otherwise
provided in this Agreement neither party will be entitled to recover any
additional damages as a consequence of such losses.
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7. Transfer
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of the
other party, except that: --
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all its assets to, another entity (but without prejudice to any
other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in any
amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be void.
8. Contractual Currency
(a) Payment in the Contractual Currency. Each payment under this Agreement will
be made in the relevant currency specified in this Agreement for that payment
(the "Contractual Currency"). To the extent permitted by applicable law, any
obligation to make payments under this Agreement in the Contractual Currency
will not be discharged or satisfied by any tender in any currency other than the
Contractual Currency, except to the extent such tender results in the actual
receipt by the party to which payment is owed, acting in a reasonable manner and
in good faith in converting the currency so tendered into the Contractual
Currency, of the full amount in the Contractual Currency of all amounts payable
in respect of this Agreement. If for any reason the amount in the Contractual
Currency so received falls short of the amount in the Contractual Currency
payable in respect of this Agreement, the party required to make the payment
will, to the extent permitted by applicable law, immediately pay such additional
amount in the Contractual Currency as may be necessary to compensate for the
shortfall. If for any reason the amount in the Contractual Currency so received
exceeds the amount in the Contractual Currency payable in respect of this
Agreement, the party receiving the payment will refund promptly the amount of
such excess.
(b) Judgments. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is rendered
(i) for the payment of any amount owing in respect of this Agreement, (ii) for
the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party is
entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the Contractual
Currency received by such party as a consequence of sums paid in such other
currency and will refund promptly to the other party any excess of the
Contractual Currency received by such party as a consequence of sums paid in
such other currency if such shortfall or such excess arises or results from any
variation between the rate of exchange at which the Contractual Currency is
converted into the currency of the judgment or order for the purposes of such
judgment or order and the rate of exchange at which such party is able, acting
in a reasonable manner and in good faith in converting the currency received
into the Contractual Currency, to purchase the Contractual Currency with the
amount of the currency of the judgment or order actually received by such party.
The term "rate of exchange" includes, without limitation, any premiums and costs
of exchange payable in connection with the purchase of or conversion into the
Contractual Currency.
(c) Separate Indemnities. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and independent
causes of action, will apply notwithstanding any indulgence granted by the party
to which any payment is owed and will not be affected by judgment being obtained
or claim or proof being made for any other sums payable in respect of this
Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it will be sufficient
for a party to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
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9. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communication and prior writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing evidenced by
a facsimile transmission) and executed by each of the parties or confirmed by an
exchange of telexes or electronic messages on an electronic messaging system.
(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive the
termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative and
not exclusive of any rights, powers, remedies and privileges provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in respect
of it) may be executed and delivered in counterparts (including by
facsimile transmission), each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of each
Transaction from the moment they agree to those terms (whether orally or
otherwise). A Confirmation shall be entered into as soon as practicable
and may be executed and delivered in counterparts (including by facsimile
transmission) or be created by an exchange of telexes or by an exchange of
electronic messages on an electronic messaging system, which in each case
will be sufficient for all purposes to evidence a binding supplement to
this Agreement. The parties will specify therein or through another
effective means that any such counterpart, telex or electronic message
constitutes a Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power or
privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege will
not be presumed to preclude any subsequent or further exercise of that right,
power or privilege or the exercise of any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
10. Offices; Multibranch Parties
(a) If Section 10(a) is specified in the Schedule as applying, each party that
enters into a Transaction through an Office other than its head or home office
represents to the other party that, notwithstanding the place of booking office
or jurisdiction of incorporation or organisation of such party, the obligations
of such party are the same as if it had entered into the Transaction through its
head or home office. This representation will be deemed to be repeated by such
party on each date on which a Transaction is entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of Transaction without prior written
consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office through
which it makes and receives payments or deliveries with respect to a Transaction
will be specified in the relevant Confirmation.
11. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including legal fees and
Stamp Tax, incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement or any Credit Support Document
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to which the Defaulting Party is a party or by reason of the early termination
of any Transaction, including, but not limited to, costs of collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice or
other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated: --
(i) if in writing and delivered in person or by courier, on the date it is
delivered;
(ii) if sent by telex, on the date the recipient's answerback is received;
(iii) if sent by facsimile transmission, on the date that transmission is
received by a responsible employee of the recipient in legible form (it
being agreed that the burden of proving receipt will be on the sender and
will not be met by a transmission report generated by the sender's
facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or the
equivalent (return receipt requested), on the date that mail is delivered
or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that electronic
message is received,
unless the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered (or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed in
accordance with the law specified an the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings relating to
this Agreement ("Proceedings"), each party irrevocably: --
(i) submits to the jurisdiction of the English courts, if this Agreement
is expressed to be governed by English law, or to the non-exclusive
jurisdiction of the courts of the State of New York and the United States
District Court located in the Borough of Manhattan an New York City, if
this Agreement is expressed to be governed by the laws of the State of New
York; and
(ii) waives any objection which it may have at any time to the laying of
venue of any Proceedings brought in any such court, waives any claim that
such Proceedings have been brought in an inconvenient forum and further
waives the right to object, with respect to such Proceedings, that such
court does not have any jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be governed
by English law, the Contracting States, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments Act 1982 or any modification, extension or
re-enactment thereof for the time being in force) nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) Service of Process. Each party irrevocably appoints the Process Agent (if
any) specified opposite its name in the Schedule to receive, for it and on its
behalf, service of process in any Proceedings. If for any
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reason any party's Process Agent is unable to act as such, such party will
promptly notify the other party and within 30 days appoint a substitute process
agent acceptable to the other party. The parties irrevocably consent to service
of process given in the manner provided for notices in Section 12. Nothing in
this Agreement will affect the right of either party to serve process in any
other manner permitted by law.
(d) Waiver of immunities. Each party irrevocably waives, to the fullest extent
permitted by applicable law, with respect to itself and its revenues and assets
(irrespective of their use or intended use), all immunity on the grounds of
sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any
court, (iii) relief by way of injunction, order for specific performance or for
recovery of property, (iv) attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment to which it or its
revenues or assets might otherwise be entitled in any Proceedings in the courts
of any jurisdiction and irrevocably agrees, to the extent permitted by
applicable law, that it will not claim any such immunity in any Proceedings.
14. Definitions
As used in this Agreement: --
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control" of
any entity or person means ownership of a majority of the voting power of the
entity or person.
"Applicable Rate" means: --
(a) in respect of obligations payable or deliverable (or which would have been
but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of either
party from and after the date (determined in accordance with Section 6(d)(ii))
on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which would
have been but for Section 2(a)(iii)) by a Non-defaulting Party, the Non-default
Rate; and
(d) in all other cases, the Termination Rate.
"Burdened Party" has the meaning specified in Section 5(b).
"Change in Tax Law" means the enactment, promulgation, execution or ratification
of, or any change in or amendment to, any law (or in the application or official
interpretation of any law) that occurs on or after the date on which the
relevant Transaction is entered into.
"consent" includes a consent, approval, action, authorisation, exemption,
notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is specified as
such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of funding the relevant amount plus 1% per annum.
14
<PAGE>
"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with Section
6(a) or 6(b)(iv).
"Event of Default" has the meaning specified in Section 5(a) and, if applicable,
in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"Indemnifiable Tax" means any Tax other than a Tax that would not be imposed in
respect of a payment under this Agreement but for a present or former connection
between the jurisdiction of the government or taxation authority imposing such
Tax and the recipient of such payment or a person related to such recipient
(including, without limitation, a connection arising from such recipient or
related person being or having been a citizen or resident of such jurisdiction,
or being or having been organised, present or engaged in a trade or business in
such jurisdiction, or having or having had a permanent establishment or fixed
place of business in such jurisdiction, but excluding a connection arising
solely from such recipient or related person having executed, delivered,
performed its obligations or received a payment under, or enforced, this
Agreement or a Credit Support Document).
"law" includes any treaty, law, rule or regulation (as modified, in the case of
tax matters, by the practice of any relevant governmental revenue authority) and
"lawful" and "unlawful" will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which commercial
banks are open for business (including dealings in foreign exchange and foreign
currency deposits) (a) in relation to any obligation under Section 2(a)(i), in
the place(s) specified in the relevant Confirmation or, if not so specified, as
otherwise agreed by the parties in writing or determined pursuant to provisions
contained, or incorporated by reference, in this Agreement, (b) in relation to
any other payment, in the place where the relevant account is located and, if
different, in the principal financial centre, if any, of the currency of such
payment, (c) in relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), in the city specified in the address for
notice provided by the recipient and, in the case of a notice contemplated by
Section 2(b), in the place where the relevant new account is to be located and
(d) in relation to Section 5(a)(v)(2), in the relevant locations for performance
with respect to such Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be its
total losses and costs (or gain, in which case expressed as a negative number)
in connection with this Agreement or that Terminated Transaction or group of
Terminated Transactions, as the case may be, including any loss of bargain, cost
of funding or, at the election of such party but without duplication, loss or
cost incurred as a result of its terminating, liquidating, obtaining or
reestablishing any hedge or related trading position (or any gain resulting from
any of them). Loss includes losses and costs (or gains) in respect of any
payment or delivery required to have been made (assuming satisfaction of each
applicable condition precedent) on or before the relevant Early Termination Date
and not made, except, so as to avoid duplication, if Section 6(e)(i)(1) or (3)
or 6(e)(ii)(2)(A) applies. Loss does not include a party's legal fees and
out-of-pocket expenses referred to under Section 11. A party will determine its
Loss as of the relevant Early Termination Date, or, if that is not reasonably
practicable, as of the earliest date thereafter as is reasonably practicable. A
party may (but need not) determine its Loss by reference to quotations of
relevant rates or prices from one or more leading dealers in the relevant
markets.
"Market Quotation" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an amount,
if any, that would be paid to such party (expressed as a negative number) or by
such party (expressed as a positive number) in consideration of an agreement
between such party (taking into account any existing Credit Support Document
with respect to the obligations of such party) and the quoting Reference
Market-maker to enter into a transaction (the "Replacement Transaction") that
would have the effect of preserving for such party the economic equivalent of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
by the parties under Section 2(a)(i) in respect of such Terminated Transaction
or group of Terminated Transactions that would, but for the occurrence of the
relevant Early Termination Date, have
15
<PAGE>
been required after that date. For this purpose, Unpaid Amounts in respect of
the Terminated Transaction or group or Terminated Transactions are to be
excluded but, without limitation, any payment or delivery that would, but for
the relevant Early Termination Date, have been required (assuming satisfaction
of each applicable condition precedent) after that Early Termination Date is to
be included. The Replacement Transaction would be subject to such documentation
as such party and the Reference Market-maker may, in good faith, agree. The
party making the determination (or its agent) will request each Reference
Market-maker to provide its quotation to the extent reasonably practicable as of
the same day and time (without regard to different time zones) on or as soon as
reasonably practicable after the relevant Early Termination Date. The day and
time as of which those quotations are to be obtained will be selected in good
faith by the party obliged to make a determination under Section 6(e), and, if
each party is so obliged, after consultation with the other. If more than three
quotations are provided, the Market Quotation will be the arithmetic mean of the
quotations, without regard to the quotations having the highest and lowest
values. If exactly three such quotations are provided, the Market Quotation will
be the quotation remaining after disregarding the highest and lowest quotations.
For this purpose, if more than one quotation has the same highest value or
lowest value, then one of such quotations shall be disregarded. If fewer than
three quotations are provided, it will be deemed that the Market Quotation in
respect of such Terminated Transaction or group of Terminated Transactions
cannot be determined.
"Non-default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the Non-defaulting Party (as certified by it) if
it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Office" means a branch or office of a party, which may be such party's head or
home office.
"Potential Event of Default" means any event which, with the giving of notice or
the lapse of time or both, would constitute an Event of Default.
"Reference Market-makers" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria that
such party applies generally at the time in deciding whether to offer or to make
an extension of credit and (b) to the extent practicable, from among such
dealers having an office in the same city.
"Relevant Jurisdiction" means, with respect to a party, the jurisdictions (a) in
which the party is incorporated, organised, managed and controlled or considered
to have its seat, (b) where an Office through which the party is acting for
purposes of this Agreement is located, (c) in which the party executes this
Agreement and (d) in relation to any payment, from or through which such payment
is made.
"Scheduled Payment Date" means a date on which a payment or delivery is to be
made under Section 2(a)(i) with respect to a Transaction.
"Set-off" means set-off, offset, combination of accounts, right of retention or
withholding or similar right or requirement to which the payer of an amount
under Section 6 is entitled or subject (whether arising under this Agreement,
another contract, applicable law or otherwise) that is exercised by, or imposed
on, such payer.
"Settlement Amount" means, with respect to a party and any Early Termination
Date, the sum of: --
(a) the Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without reference to any
Unpaid Amounts) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation cannot be determined or would not (in
the reasonable belief of the party making the determination) produce a
commercially reasonable result.
"Specified Entity" has the meaning specified in the Schedule.
16
<PAGE>
"Specified Indebtedness" means, subject to the Schedule, any obligation (whether
present or future, contingent or otherwise, as principal or surety or otherwise)
in respect of borrowed money.
"Specified Transaction" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into between one party to this Agreement (or any Credit Support Provider of such
party or any applicable Specified Entity of such party) and the other party to
this Agreement (or any Credit Support Provider of such other party or any
applicable Specified Entity of such other party) which is a rate swap
transaction, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions), (b) any combination of
these transactions and (c) any other transaction identified as a Specified
Transaction in this Agreement or the relevant confirmation.
"Stamp Tax" means any stamp, registration, documentation or similar tax.
"Tax" means any present or future tax, levy, impost, duty, charge, assessment or
fee of any nature (including interest, penalties and additions thereto) that is
imposed by any government or other taxing authority in respect of any payment
under this Agreement other than a stamp, registration, documentation or similar
tax.
"Tax Event" has the meaning specified in Section 5(b).
"Tax Event Upon Merger" has the meaning specified in Section 5(b).
"Terminated Transactions" means with respect to any Early Termination Date (a)
if resulting from a Termination Event, all Affected Transactions and (b) if
resulting from an Event of Default, all Transactions (in either case) in effect
immediately before the effectiveness of the notice designating that Early
Termination Date (or, if "Automatic Early Termination" applies, immediately
before that Early Termination Date).
"Termination Currency" has the meaning specified in the Schedule.
"Termination Currency Equivalent" means, in respect of any amount denominated in
the Termination Currency, such Termination Currency amount and, in respect of
any amount denominated in a currency other than the Termination Currency (the
"Other Currency"), the amount in the Termination Currency determined by the
party making the relevant determination as being required to purchase such
amount of such Other Currency as at the relevant Early Termination Date, or, if
the relevant Market Quotation or Loss (as the case may be), is determined as of
a later date, that later date, with the Termination Currency at the rate equal
to the spot exchange rate of the foreign exchange agent (selected as provided
below) for the purchase of such Other Currency with the Termination Currency at
or about 11:00 a.m. (in the city in which such foreign exchange agent is
located) on such date as would be customary for the determination of such a rate
for the purchase of such Other Currency for value on the relevant Early
Termination Date or that later date. The foreign exchange agent will, if only
one party is obliged to make a determination under Section 6(e), be selected in
good faith by that party and otherwise will be agreed by the parties.
"Termination Event" means an Illegality, a Tax Event or a Tax Event Upon Merger
or, if specified to be applicable, a Credit Event Upon Merger or an Additional
Termination Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean of the
cost (without proof or evidence of any actual cost) to each party (as certified
by such party) if it were to fund or of funding such amounts.
"Unpaid Amounts" owing to any party means, with respect to an Early Termination
Date, the aggregate of (a) in respect of all Terminated Transactions, the
amounts that became payable (or that would have become payable but for Section
2(a)(iii)) to such party under Section 2(a)(i) on or prior to such Early
Termination Date and which remain unpaid as at such Early Termination Date and
(b) in respect of each Terminated Transaction, for each obligation under Section
2(a)(i) which was (or would have been but for Section 2(a)(iii)) required to be
settled by delivery to such party on or prior to such Early Termination Date and
which has not been so settled as at such Early Termination Date, an amount equal
to the fair market
17
<PAGE>
value of that which was (or would have been) required to be delivered as of the
originally scheduled date for delivery, in each case together with (to the
extent permitted under applicable law) interest, in the currency of such
amounts, from (and including) the date such amounts or obligations were or would
have been required to have been paid or performed to (but excluding) such Early
Termination Date, at the Applicable Rate. Such amounts of interest will be
calculated on the basis of daily compounding and the actual number of days
elapsed. The fair market value of any obligation referred to in clause (b) above
shall be reasonably determined by the party obliged to make the determination
under Section 6(e) or, if each party is so obliged, it shall be the average of
the Termination Currency Equivalents of the fair market values reasonably
determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
Westpac Securities Administration
Limited
Morgan Guaranty Trust Company (ACN 000 049 472) in its capacity as
of New York, London Office trustee of the Series 1999-1G Trust
- ----------------------------- -----------------------------------------
(Name of Party) (Name of Party)
By: By:
------------------------- -------------------------
Name: Name:
Title: Title:
Date: Date:
Westpac Securitisation
Management Pty Limited Westpac Banking Corporation
(ACN 081 709 211) ARBIN 007 457 141
- ----------------------------- -----------------------------
(Name of Party) (Name of Party)
By: By:
------------------------- -------------------------
Name: Name:
Title: Title:
Date: Date:
18
<PAGE>
SCHEDULE
to the
Master Agreement
dated as of 13 May 1999
between MORGAN GUARANTY TRUST COMPANY OF NEW YORK, LONDON OFFICE ("PARTY A")
and WESTPAC SECURITIES ADMINISTRATION LIMITED (ACN 000 049 472) IN ITS
CAPACITY AS TRUSTEE OF THE SERIES 1999-1G WST TRUST ("PARTY B")
and WESTPAC SECURITISATION MANAGEMENT PTY LIMITED (ACN 081 709 211)
(the "TRUST MANAGER")
and WESTPAC BANKING CORPORATION (ARBN 007 457 141)
(the "CREDIT SUPPORT PROVIDER")
PART 1: TERMINATION PROVISION
(a) "SPECIFIED ENTITY" in relation to:
(i) Party A, is not applicable; and
(ii) Party B, is not applicable.
(b) (i) The following provisions of Section 5 will not apply to Party A:
Section 5(a)(ii) Section 5(a)(v) Section 5(b)(iv)
Section 5(a)(iii) Section 5(a)(vi)
Section 5(a)(iv) Section 5(b)(iii)
(ii) The following provisions of Section 5 will not apply to Party B:
Section 5(a)(ii) Section 5(a)(v) Section 5(b)(iii)
Section 5(a)(iii) Section 5(a)(vi) Section 5(b)(iv)
Section 5(a)(iv) Section 5(a)(viii)
(iii) Replace Section 5(a)(i) and insert:
"(i) FAILURE TO PAY OR DELIVER. Failure by the party to
make, when due, any payment under this Agreement or
delivery under Section 2(a)(i) or 2(e) required to be
made by it if such failure is not remedied at or
before 10.00 am on the tenth Local Business Day after
notice of such failure is given to the party";
(iv) Section 5(b)(ii) will not apply to Party A as the Affected
Party (subject to Part 5(4)(ii) of this Schedule).
<PAGE>
2
(v) The "BANKRUPTCY" provisions of Section 5(a)(vii) are replaced
by "An Insolvency Event (as defined in the Master Trust Deed)
has occurred in respect of the party. In relation to Party A,
the events described in the definition of Insolvency Event
shall apply to it as if Party A were a relevant corporation
referred to in that definition. The occurrence of an
Insolvency Event in respect of Party B in its personal
capacity will not constitute an Event of Default provided that
within thirty Business Days of that occurrence, Party B
procures the novation of this Agreement and all Transactions
to a third party in respect of which the Designated Rating
Agencies confirm that the novation will not cause a reduction
or withdrawal of the rating of the Notes and Party A agrees
that it will execute such a novation agreement in standard
ISDA form applicable in the A$ markets".
(vi) The application of Section 5(b)(i) will be restricted as set
out in Part 5(4) of this Schedule.
(c) The "AUTOMATIC EARLY TERMINATION" provisions in Section 6(a) will not
apply to Party A nor Party B.
(d) "PAYMENT ON EARLY TERMINATION". For the purposes of Section 6(e) of
this Agreement:
(i) Market Quotation will apply; and
(ii) the Second Method will apply.
(e) "TERMINATION CURRENCY" means US Dollars.
(f) "ADDITIONAL TERMINATION EVENT" means the occurrence of any of the
following:
(i) Party B is entitled to issue a notice to redeem all of the
Notes (in accordance with the Conditions of the Notes) for
reasons of taxation, in which case Party A shall be the
Affected Party for the purposes of Section 6(b)(iv) of this
Agreement and Party B shall be the Affected Party for the
purposes of Section 6(e)(ii)(1) of this Agreement; or
(ii) an Event of Default (as defined in the Security Trust Deed)
occurs and an Extraordinary Resolution of the Voting
Mortgagees (as defined in the Security Trust Deed) is passed
directing the Security Trustee to exercise rights under clause
8 of the Security Trust Deed, in which case Party B shall be
the Affected Party.
<PAGE>
3
PART 2: TAX REPRESENTATIONS
(a) PAYER TAX REPRESENTATIONS. For the purpose of Section 3(e) of this
Agreement, Party A and Party B each make the following representation:
It is not required by any applicable law, as modified by the practice
of any relevant government revenue authority, of any Relevant
Jurisdiction to make any deduction or withholding for or on account of
any Tax from any payment (other than interest under Section 2(e),
6(d)(ii) or 6(e) of this Agreement) to be made by it to the other party
under this Agreement. In making this representation, it may rely on:
(i) the accuracy of any representation made by the other party
pursuant to Section 3(f) of this Agreement;
(ii) the satisfaction of the agreement contained in Section 4(a)(i)
or 4(a)(iii) of this Agreement and the accuracy and
effectiveness of any document provided by the other party
pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement;
and
(iii) the satisfaction of the agreement of the other party contained
in Section 4(d) of this Agreement,
provided that it shall not be a breach of this representation where
reliance is placed on clause (ii) and the other party does not deliver
a form or document under Section 4(a)(iii) by reason of material
prejudice to its legal or commercial position.
(b) PAYEE TAX REPRESENTATIONS. For the purpose of Section 3(f) of this
Agreement:
Party A makes no representations with respect to Transactions for which
Party A is acting through its London Office.
Party B makes the following representation:
It is an Australian resident and does not derive the payments under
this Agreement in part or whole in carrying on business in a country
outside Australia at or through a permanent establishment of itself in
that country.
<PAGE>
4
PART 3: DOCUMENTS TO BE DELIVERED
For the purpose of Section 4(a)(i) and (ii) of this Agreement, each party agrees
to deliver the following documents as applicable:
(a) Tax Forms, documents or certificates to be delivered are:
<TABLE>
<CAPTION>
PARTY REQUIRED TO DELIVER DOCUMENT FORM/DOCUMENT/ DATE BY WHICH DOCUMENT TO BE
CERTIFICATE DELIVERED
<S> <C> <C>
Party A and Party B Any document or certificate reasonably As soon as reasonably practicable
required or reasonably requested by a following the earlier of (a) the
party in connection with its obligations relevant party learning that such
to make a payment under this Agreement document or certificate is
which would enable that party to make the required and (b) a request by
payment free from any deduction or other party.
withholding for or on account of Tax or as
would reduce the rate at which deduction or
withholding for or on account of Tax is
applied to that payment.
</TABLE>
(b) Other documents to be delivered are:
<TABLE>
<CAPTION>
PARTY REQUIRED TO DELIVER DOCUMENT FORM/DOCUMENT/ DATE BY WHICH DOCUMENT TO BE
CERTIFICATE DELIVERED
<S> <C> <C>
Party A and Party B A legal opinion as to the validity and The date of this agreement.
enforceability of that party's
obligations under this Agreement in
form and substance reasonably acceptable
to the other party.
</TABLE>
<PAGE>
5
<TABLE>
<CAPTION>
<S> <C> <C>
Party B A certified copy of the Security Trust The date of this Agreement.
Deed, Master Trust Deed, Series Notice
and Note Trust Deed (including Conditions
of Class A and Class B Notes).
For the purposes of this and the following
clause a copy of a document is taken to be
certified if a director or an Authorised
Signatory of Party B, or a person
authorised to execute this Agreement or a
Confirmation on behalf of Party B or a
solicitor acting for Party B has certified
it to be a true and complete copy of the
document of which it purports to be a copy.
Party B (Without limiting any obligation Party B Promptly after any such document may have
Trust Deed to notify Party A of amendments) under the terms of the Security is entered
a certified copy of any document that into.
amends in any way the terms of the Security
Trust Deed
</TABLE>
All documents delivered under this Part 3(b) are covered by Section 3(d)
representation.
<PAGE>
6
PART 4: MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a) of this
Agreement:
PARTY A:
Address: Morgan Guaranty Trust Company of New York
London Office
PO Box 161
60 Victoria Embankment
London EC4Y OJP
Attention: Global Swaps Group
Telex No: 896 631 Answerback: MGT-G
Facsimile No: 0171 325 3862 or 0171 325 3863
PARTY B:
Address: Level 10, 130 Pitt Street, Sydney
Attention: The Trustee Securitisation Manager
Facsimile No: 02 9220 5300
And a copy to the Trust Manager to the address provided to Party A.
(b) PROCESS AGENT. For the purpose of Section 13(c) of this Agreement:
Party A appoints as its Process Agent: Not applicable.
Party B appoints as its Process Agent: Lewis Love, Jr
575 Fifth Avenue
39th Floor
New York 10017-42
Facsimile no. 0011 1 212 682 058
The Credit Support Provider appoints as its Process Agent: WBC to
advise.
(c) OFFICES. The provisions of Section 10(a) will apply to Party A.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:
Party A is a Multibranch Party but will act only through its London
Office. Party B is not a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent is Party A (unless otherwise
specified in a Confirmation in relation to the relevant Transaction).
<PAGE>
7
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document:
(i) Party A: The 1994 ISDA Credit Support Annex attached to this
Agreement and the provisions of Section 20 of this Agreement.
(ii) Party B: The Security Trust Deed.
(g) CREDIT SUPPORT PROVIDER.
(i) In relation to Party A: Westpac Banking Corporation ARBN 007
457 141, unless:
(A) a Substitute Transaction becomes effective
in accordance with section 21 of the Other
Agreement, in which case, nil; or
(B) an Equivalent-Other Transaction becomes
effective in accordance with section 21 of
the Other Agreement, in which case the New
Currency Swap Provider shall be the new
"Credit Support Provider" in relation to
Party A.
(ii) In relation to Party B. Nil.
(h) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
(i) JURISDICTION. In the second line of section 13(b), the words ", the
Credit Support Provider and the Trust Manager" are inserted after the
words "each party".
(j) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) of this
Agreement will apply.
(k) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement. The words "or Affiliates" are deleted where they appear in
the first paragraph of Section 6(b)(ii).
<PAGE>
8
PART 5: OTHER PROVISIONS
(1) PAYMENTS: In Section 2:
(i) In Section 2(a)(i) add the following sentence:
"Each payment will be by way of exchange for the
corresponding payment or payments payable by the
other party";
(ii) In Section 2(a)(ii) insert immediately after the words "freely
transferable funds" the following words:
", free of any set-off, counterclaim, deduction or
withholding (except as expressly provided in this
Agreement),"
(iii) Insert new paragraphs (iv) and (v) in Section 2(a) immediately
after Section 2(a)(iii) as follows:
"(iv) The condition precedent in Section 2(a)(iii)(1)
does not apply to a payment due to be made to a party
if it has satisfied all its payment and delivery
obligations under Section 2(a)(i) and has no future
payment or delivery obligations, whether absolute or
contingent under Section 2(a)(i).
(v) Where:
(1) payments are due pursuant to Section 2(a)(i)
by Party A to Party B (the "PARTY A
PAYMENT") and by Party B to Party A (the
"PARTY B PAYMENT") on the same day
then Party A's obligation to make the Party A payment
will be subject to the condition precedent (which
will be an "applicable condition precedent" for the
purpose of Section 2(a)(iii)(3)) that Party A first
receives either:
(2) the Party B payment; or
(3) confirmation from Party B's bank that it
holds irrevocable instructions to effect
payment of the Party B payment and that
funds are available to make that payment.";
(iv) add the following new sentence to Section 2(b):
"Party B may, for example, reasonably object if the change of
account would materially prejudice Noteholders including,
without limitation, any prejudice arising from any liability
to deduct or withhold any Tax as a result of such a change of
account."
(v) Delete the word "if" at the beginning of Section 2(d)(i)(4)
and insert the following words instead:
"if and only if X is Party A and";
<PAGE>
9
(vi) In Section 2(d)(ii) insert the words "(if and only if Y is
Party A)" after the word "then" at the beginning of the last
paragraph.
(vii) add the following new Section 2(f):
(f) PAYMENT INSTRUCTIONS.
(i) Party B authorises and instructs Party A to make
payment of any amount due from Party A to Party B
hereunder by paying that amount direct to the
Principal Paying Agent to the account specified in
writing by the Principal Paying Agent to Party A and
to Party B. On payment of any such amount by Party A
to the Principal Paying Agent, Party A's obligation
shall be fully discharged in respect of that payment.
(ii) Party A authorises and instructs Party B to make
payment of any amount denominated in Australian
dollars due from Party B to Party A to the following
account in Sydney:
Westpac Banking Corporation
Sydney Australia
Account No: MGN 0010979
Name: Morgan Guaranty Trust Company of New York,
London
Further credit to the JPM Swaps Group Account
10004837 (Please send MT100 cover cable to MGT
London)
or such other account in Sydney as is specified by
Party A from time to time.
(2) ADDITIONAL REPRESENTATIONS: In Section 3 add the following immediately
after paragraph (f):
"(g) NON ASSIGNMENT. It has not assigned (whether absolutely, in
equity or otherwise) or declared any trust over (other than,
in respect of Party B, the trusts created under the Master
Trust Deed and the Series Notice) or given any charge over any
of its rights under this Agreement or any Transaction (except
in respect of Party B, for the security interest created under
the Security Trust Deed).
(h) CONTRACTING AS PRINCIPAL. Each existing Transaction has been
entered into by Party A as principal and not otherwise and
each existing Transaction has been entered into by Party B in
its capacity as trustee of the Trust and not otherwise."
(i) Absent a written agreement between the parties that expressly
imposes affirmative obligations to the contrary for that
Transaction:
(A) NON-RELIANCE. It is acting for its own account, and
it has made its own independent decisions to enter
into that Transaction and as to whether that
Transaction is appropriate or proper for it based
upon its own judgment and upon advice from the Trust
Manager and such advisors as it has deemed necessary.
It is not relying on any communication (written or
oral) of the other party as investment advice or as a
recommendation to enter into that Transaction; it
being understood that information and
<PAGE>
10
explanations related to the terms and conditions of a
Transaction shall not be considered investment advice
or a recommendation to enter into that Transaction.
It has not received from the other party any
assurance or guarantee as to the expected results
of that Transaction;
(B) EVALUATION AND UNDERSTANDING. It is capable of
evaluating and understanding (on its own behalf or
through independent professional advice including the
Trust Manager), and understands and accepts the
terms, conditions and risks of that Transaction. It
is also capable of assuming, and assumes, the
financial and other risks of that Transaction;
(C) STATUS OF PARTIES. The other party is not acting as a
fiduciary or an advisor for it in respect of that
Transaction;
(j) Party B represents and warrants on a continuing basis:
(A) TRUST VALIDLY CREATED. The Trust has been validly
created and is in existence.
(B) SOLE TRUSTEE. It has been validly appointed as
trustee of the Trust and is presently the sole
trustee of the Trust.
(C) NO PROCEEDINGS TO REMOVE. No notice has been given to
it and to its knowledge no resolution has been
passed, and no direction or notice has been given,
removing it as trustee of the Trust.
(D) POWER. It has power to enter into this Agreement and
the Credit Support Document in its capacity as
trustee of the Trust.
(E) GOOD TITLE. It is the owner in equity of the assets
of the Trust and has power to mortgage or charge them
in the manner provided in the Credit Support
Document, and, subject only to the Credit Support
Document and any Security Interest permitted under
the Credit Support Document, those assets are free of
all other Security Interests.
(3) ADDITIONAL COVENANT: In Section 4 add a new paragraph as follows:
"(f) CONTRACTING AS PRINCIPAL. Party A will enter into all
Transactions as principal and not otherwise and Party B will
enter into all Transactions in its capacity as trustee of the
Trust and not otherwise".
(4) AMENDMENT TO SECTION 6. In section 6 make the following amendments:
(i) Section 6(a) is amended by deleting the words "all outstanding
Transactions" where they appear and inserting instead the
words "THE RELEVANT SWAP TRANSACTION".
(ii) Add a new section 6(aa):
"(aa) RESTRICTED TERMINATION RIGHTS.
<PAGE>
11
(i) TERMINATION BY PARTY B: Party B must not designate an
Early Termination Date without the prior written
consent of the Note Trustee.
(ii) CONSULTATION REGARDING TIMING: Each Party may only
designate an Early Termination Date following prior
consultation with the other Party as to the timing of
the Early Termination Date. Subject to its duties
under the Master Trust Deed and the Series Notice,
Party B may exercise any rights in its capacity as
holder of the Purchased Receivables only on the
instructions of the Note Trustee and only after
consultation between Party A and Note Trustee. Party
B may only designate an Early Termination Date at the
direction of the Trust Manager.
(iii) PARTY A'S LIMITED RIGHTS IN RELATION TO TAX EVENT:
Notwithstanding Part 1(b)(iv) of this Schedule, Party
A may designate an Early Termination Date if it is an
Affected Party following a Tax Event but only if the
Note Trustee is satisfied that the Noteholders and
Couponholders will be paid in full all principal and
interest outstanding on the Notes.
(iv) ILLEGALITY: The parties agree that imposition by any
Agency of an Australian jurisdiction of any exchange
controls, restrictions or prohibitions will not
constitute an Illegality for the purposes of Section
5(b)(i) and Party A will not be entitled to designate
an Early Termination Date, and in those
circumstances, payment by Party B in accordance with
section 2(f) will continue to be proper performance
of its payment obligation and Party A's obligations
will be unaffected, to the extent of Party B's
payments under section 2(f).
(v) TRANSFER WHERE PARTY B DOES NOT GROSS-UP: If any
payment by Party B to Party A under this Agreement
is, or is likely to be, made subject to any deduction
or withholding on account of Tax, Party B will
endeavour to procure the substitution as principal
obligor under this Agreement in respect of each
Affected Transaction of a Party B incorporated in
another jurisdiction approved by Party A and the Note
Trustee and in respect of which the Designated Rating
Agencies confirm that the substitution will not cause
a reduction or withdrawal of the rating of the Notes.
(iii) In section 6(b)(ii), add the words "so long as the transfer in
respect of that Transaction would not lead to a rating
downgrade of any rated debt of Party B that is secured under
the Security Trust Deed" after the words "ceases to exist" at
the end of the first paragraph.
(iv) In section 6(e), delete the sentence "The amount, if any,
payable in respect of an Early Termination Date and determined
pursuant to this Section will be subject to any Set-off." at
the end of the first paragraph.
(5) In section 9, add the following new paragraphs:
"(h) FURTHER ASSURANCES. Each party shall, upon request by the
other party (the "REQUESTING PARTY") at the expense of the
requesting party, perform all such acts and execute all such
agreements, assurances and other documents and instruments as
the requesting party reasonably requires and which are within
the powers of that party to assure and confirm the rights and
powers afforded,
<PAGE>
12
created or intended to be afforded or created, under or in
relation to this Agreement and each Transaction or other
dealing which occurs under or is contemplated by it.
(i) RECORDED CONVERSATION. Each party:
(A) consents to the recording of the telephone
conversations of trading and marketing personnel of
that party and its Affiliates in connection with this
Agreement or any potential Transaction; and
(B) agrees to obtain any necessary consent of, and give
notice of such recording to, such personnel of it and
its Affiliates.
(j) ISDA DEFINITIONS: This Agreement, each Confirmation and each
Transaction are subject to the 1991 ISDA Definitions (as
supplemented by the 1998 Supplement to the 1991 ISDA
Definitions (each as published by the International Swap and
Derivatives Association, Inc.) (the "ISDA DEFINITIONS"), and
will be governed in all respects by any provisions set forth
in the ISDA Definitions, without regard to any amendments to
the ISDA Definitions made after the date of this Agreement.
The ISDA Definitions are incorporated by reference in, and
shall be deemed to be part of, this Agreement and each
Confirmation.
(k) INCONSISTENCY: In the event of any inconsistency between any
two or more of the following documents, they shall take
precedence over each other in the following descending order:
(i) any Confirmation;
(ii) the Schedule to the Master Agreement and "Paragraph
13 - Elections and Variables" to the ISDA Credit
Support Annex (as applicable);
(iii) the ISDA Definitions;
(iv) the printed form of ISDA Master Agreement and ISDA
Credit Support Annex (as applicable)."
(6) FACSIMILE TRANSMISSIONS: Replace Section 12(a)(iii) with:
"(iii) if sent by facsimile, on production of a transmission report
by the machine from which the facsimile was sent which
indicates that the facsimile was sent in its entirety to the
facsimile number of the recipient notified for the purpose of
this Section unless the recipient notifies the sender within
24 hours of the facsimile being sent that the facsimile was
not received in its entirety in legible form;"
(6A) No trial by jury. A new Section 13(e) is added:
"(e) NO TRIAL BY JURY. Each party waives, to the fullest
extent permitted by applicable law, any right it may have to a
trial by jury in respect of any suit, action or proceeding
relating to this Agreement."
<PAGE>
13
(7) DEFINITIONS: In section 14:
(i) add a new paragraph:
"Unless otherwise defined in this Agreement, terms defined in
the Security Trust Deed (either expressly or by incorporation
by reference) have the same meaning where used in this
Agreement."
(ii) Insert the following definitions in its appropriate
alphabetical places in Section 14:
"'RELEVANT SWAP TRANSACTION' means, in relation to Class A
Notes, each Transaction which is a Currency Swap for Class A
Notes only, and in relation to Class B Notes, each Transaction
which is a Currency Swap for Class B Notes only."
"'SECURITY TRUST DEED' means the Series 1999-1G WST Trust
Security Trust Deed dated on or about the date of this
Agreement between Party B as chargor, Perpetual Trustee
Company Limited as security trustee, the Trust Manager and
Citibank, N.A., London Office as note trustee."
(iii) SWAP TRANSACTION. Any reference to a:
(a) "SWAP TRANSACTION" in the 1991 ISDA Definitions is
deemed to be a reference to a "Transaction" for the
purpose of interpreting this Agreement or any
Confirmation; and
(b) "TRANSACTION" in this Agreement or any Confirmation
is deemed to be a reference to a "Swap Transaction"
for the purpose of interpreting the 1991 ISDA
Definitions.
(iv) In the definition of "Market Quotation", on line 1 on page 16
of this Agreement, replace the words "been required after that
date." with:
"been required after that date and, in respect of each
Terminated Transaction which is a Relevant Swap Transaction,
on the basis that the Housing Loan Principal as defined in
Series Notice referred to in the Terminated Transaction will
thereafter have an amortisation schedule based on a constant
prepayment rate per annum ("CPR") equal to:
(a) [XX.X]%, if the Replacement Transaction is calculated
within one year of the Effective Date of the
Terminated Transaction; or
(b) if the Replacement Transaction is calculated later
than one year after the Effective Date of the
Terminated Transaction, the arithmetic mean of the
following:
(I) the four CPRs most recently published prior
to the relevant quotation on Bloomberg
monitor service in respect of the Class of
Notes applicable to the Terminated
Transaction (based on data provided to
Bloomberg by the Trust Manager);
<PAGE>
14
(II) the forecast CPR provided to the party
making the determination (or its agent) by
Party A for the remaining life of the Class
of Notes applicable to the Terminated
Transaction;
(III) the forecast CPR provided to the party
making the determination (or its agent) by
the Credit Support Provider for the
remaining life of the Class of Notes
applicable to the Terminated Transaction;
(IV) the forecast CPR provided to the party
making the determination (or its agent) by
the Trust Manager for the remaining life of
the Class of Notes applicable to the
Terminated Transaction,
without regard to the CPRs having the highest and
lowest values (unless fewer than three CPRs are
provided under subparagraphs (II), (III) and (IV)
collectively, in which case all CPRs will be taken
into account in the calculation of the arithmetic
mean). For this purpose, if more than one CPR has the
same highest value or lowest value, then one of such
CPRs shall be disregarded.
(8) OTHER PROVISIONS, INCLUDING CREDIT SUPPORT:
Insert the following Sections 15, 16, 17, 18, 19, 20 and 21 after
Section 14:
"15. SEGREGATION:
The liability of Party B under this Agreement is several and
is separate in respect of each Relevant Swap Transaction. The
failure of Party B to perform its obligations in respect of
any Relevant Swap Transaction shall not release Party B from
its obligations under this Agreement or under any other
Relevant Swap Transaction in respect of any other Notes issued
by Party B. Nothing in this Agreement affects the respective
priority rankings of claims against the Mortgaged Property of
Party B under the Security Trust Deed. Without limiting the
generality of the foregoing, the provisions of this Agreement
shall have effect separately and severally in respect of each
Relevant Swap Transaction and shall be enforceable by or
against Party B as though a separate agreement applied between
Party A and Party B for each Relevant Swap Transaction, so
that (among other things):
(i) this Agreement together with each Confirmation
relating to a Relevant Swap Transaction will form a
single separate agreement between Party A and Party B
and references to the respective obligations
(including references to payment obligations
generally and in the context of provisions for the
netting of payments and the calculation of amounts
due on early termination) of Party A and Party B
shall be construed accordingly as a several reference
to each mutual set of obligations arising under each
such separate agreement between Party A and Party B;
(ii) representations made and agreements entered into by
the parties under this Agreement are made and entered
separately and severally by Party B in respect of
each Relevant Swap Transaction and may be enforced by
Party B against Party A separately and severally in
respect of each Relevant Swap Transaction;
<PAGE>
15
(iii) rights of termination, and obligations and
entitlements consequent upon termination, only accrue
to Party A against Party B separately and severally
in respect of each Relevant Swap Transaction, and
only accrue to Party B against Party A separately and
severally in respect of each Relevant Swap
Transaction; and
(iv) the occurrence of an Event of Default or Termination
Event in respect of a Relevant Swap Transaction does
not in itself constitute an Event of Default or
Termination Event in respect of any other Relevant
Swap Transaction."
16. RECOURSE
Party B enters into this Agreement in its capacity as Trustee
of the Trust, and Clause 3.3(b) of the Series Notice applies
to this Agreement as if set out in full. Clause 16 of the
Security Trust Deed shall apply to govern Party A's priority
to moneys received from the sale of Assets or other
enforcement of the Charge under the Security Trust Deed.
This Section 16:
(i) applies even though any other provision of this
Agreement is not made subject to it; and
(ii) overrides any other provision of this Agreement which
is inconsistent with it.
17. THE TRUST MANAGER
Party A acknowledges that the Trust Manager will, at the
request of Party B, perform the day to day management of the
Trust on the terms and conditions of the Master Trust Deed and
Series Notice. Unless expressly advised to the contrary in
writing by Party B from time to time, any rights or
obligations of Party B under this Agreement may be exercised
or satisfied (as the case may be) by the Trust Manager on
behalf of Party B and Party A is not obliged to enquire as to
the authority of the Trust Manager to take such action on
behalf of Party B. Except where the context otherwise
requires, references in this Agreement to a "party" to this
Agreement are to Party A or Party B.
18. TRUST DEED
The parties acknowledge and agree that, for the purposes of
the Master Trust Deed and the Trust Documents, this Agreement
is a "Hedge Agreement" and Party A is a "Swap Provider" and
"Support Facility Provider".
19. REPLACEMENT CURRENCY SWAP
(a) If this Agreement is terminated, Party B may, at the
direction of the Trust Manager, enter into one or
more currency swaps which replace the Transactions
under this Agreement (collectively a "Replacement
Currency Swap") but only on the condition that the
Settlement Amount payable (if any) by Party B to
Party A upon termination of this Agreement will be
paid in full when due in accordance with the Series
Notice and this Agreement.
<PAGE>
16
(b) If the condition in section 19(a) is satisfied, Party
B may enter into the Replacement Currency Swap and if
it does so it must direct the Replacement Currency
Swap provider to pay any upfront premium to enter
into the Replacement Currency Swap due to Party B
directly to Party A in satisfaction of and to the
extent of Party B's obligation to pay the Settlement
Amount to Party A as referred to in section 19(a),
and to the extent that such premium is not greater
than or equal to the Settlement Amount, the balance
may be satisfied by Party B as a Trust Expense (as
defined in the Series Notice).
(c) The obligations of Party B (and the rights of Party
A) under this section 19 constitute separate and
independent obligations of Party B (and rights of
Party A) and shall survive the termination of this
Agreement.
(d) If a Settlement Amount is payable by Party A to Party
B upon termination of this Agreement, Party B may
direct Party A to pay all or part of that amount (but
not any greater amount) to the extent required to the
Replacement Currency Swap provider in satisfaction of
and to the extent of Party B's obligation to pay any
upfront premium to the Replacement Currency Swap
provider to enter into the Replacement Currency Swap.
20. CREDIT SUPPORT
(a) In consideration of Party B entering into an
agreement on the same material terms as this
Agreement with the Credit Support Provider (the
"Other Agreement") and Transactions under the Other
Agreement on the same material economic terms as
Transactions under this Agreement, the Credit Support
Provider hereby unconditionally guarantees to Party B
the payment by Party A of moneys which are payable by
Party A under a Relevant Swap Transaction (on terms
set out in this Agreement and in the Confirmation for
that Relevant Swap Transaction) (the "Payable
Moneys") to Party B in the event that Party A
defaults in the payment of those Payable Moneys.
(b) If Party B has not been, or Party A reasonably
expects that Party B is not going to be, paid all or
any part of the presently payable Payable Moneys by
Party A, then Party A or Party B may by notice to the
Credit Support Provider demand payment of the Payable
Moneys in respect of which demand is being made. The
Credit Support Provider's obligations to pay, within
the applicable grace period, the presently payable
Payable Moneys which have not been paid by Party A
shall not, however, be conditional upon the Credit
Support Provider receiving such notice of demand.
(c) The Credit Support Provider agrees that it will not,
unless and until all the present and prospective
Payable Moneys have been paid, exercise any rights of
subrogation which it may acquire due to its payment
of Payable Moneys under section 20(a).
(d) All payments by the Credit Support Provider shall be
made in the currency in which the Payable Moneys are
denominated.
<PAGE>
17
(e) Party B agrees that, without affecting its rights
under clause 21, to the extent that the Credit
Support Provider pays the Payable Moneys and thereby
avoids or remedies a default by Party A, Party B
shall not be entitled to designate an Early
Termination Date in respect of that default by Party
A, and such a payment by the Credit Support Provider
shall be deemed to be an "actual payment" as referred
to in line 6 of section 2(e) of this Agreement.
(f) The provisions of this section 20 shall constitute
irrevocable obligations of the Credit Support
Provider until a notice of revocation is served by
the Credit Support Provider on Party B, but such a
notice cannot and shall not be served without the
prior written consent of Party A, the Note Trustee
and the Trust Manager in consultation with the
Designated Rating Agencies.
21. CREDIT SUPPORT PROVIDER TRANSACTIONS
(a) The Credit Support Provider may give a Substitution
Notice to Party B specifying a Transaction which
shall be substituted under this Section 21 (a
"Replaced Transaction"), but only on the condition
that a Credit Event has occurred in respect of Party
A.
(b) If the Credit Support Provider gives a Substitution
Notice under paragraph 21(a), then either:
(i) a Substitute Transaction shall become
effective and the Effective Date shall be
the date specified in the Substitution
Notice; or
(ii) both:
(A) Party B, the Credit Support Provider
and the Trust Manager must enter
into an Equivalent Transaction with
a suitably rated counterparty
procured by the Credit Support
Provider and accepted by Party B,
the Trust Manager and the Note
Trustee (the "New Currency Swap
Provider") and the Effective Date
shall be the date specified in the
Substitution Notice as the Effective
Date for the Equivalent-Other
Transaction; and
(B) an Equivalent-Other Transaction
shall become effective and the
Effective Date shall be the date
specified in the Substitution
Notice. The New Currency Swap
Provider must sign, and Party B, the
Credit Support Provider and the
Trust Manager must countersign, an
accession as provided for in the
Confirmation for the
Equivalent-Other Transaction.
For the avoidance of doubt, if the Substitution
Notice specifies that either the Transaction under
paragraph (b)(i) or the Transactions under paragraphs
(b)(ii)(A) and (B) shall become effective as
alternatives, and if a suitably rated counterparty is
not procured by the Credit Support Provider under
paragraph (b)(ii)(A), the Substitute Transaction must
become effective in accordance with paragraph (b)(i).
<PAGE>
18
(c) On the date on which the Transactions become
effective in accordance with a Substitution Notice
under either paragraph (b)(i) or (b)(ii):
(i) the Replaced Transaction shall terminate;
and
(ii) the Other Transaction shall terminate.
(d) No Settlement Amount or other amount under section 6
or section 11 shall be payable by, or to, Party B (as
the case may be) upon the termination of the
Transactions under paragraphs (c)(i) and (ii),
because the Transactions specified in paragraphs
(b)(i), or (b)(ii)(A) and (B), as the case may be,
shall have the effect of preserving for Party B the
economic equivalent of the payments under the
Transactions which are being terminated.
(e) Definitions. For the purposes of this Section 21:
"Credit Event" means, in relation to Party A, the
occurrence at any time of any of the following events
with respect to Party A:
(i)(A) failure by Party A to make, when due, any
payment under the Replaced Transaction
required to be made by it if such failure is
not remedied on or before the tenth local
Business Day after notice of such failure is
given to Party A; and
(B) On any day on which a failure by Party A
under paragraph (e)(i)(A) is subsisting:
(I) the Market Value of a floating rate
Reference Obligation is below the
Initial Price of such by more than the
Price Decline Requirement;
(II) the sum of the Market Value of a fixed
rate Reference Obligation and the
Interest Rate Adjustment Amount of
such is below the Initial Price of
such by more than the Price Decline
Requirement; or
(III) the occurrence with respect to Party A
of an event specified in paragraph
7(i) of the Credit Support Annex
attached to this Agreement.
For the purposes of this paragraph
(e)(i)(B), "Market Value", "Reference
Obligation", "Initial Price", "Price
Decline Requirement" and "Interest
Rate Adjustment Amount" shall have the
meanings given in the Confirmation for
the Replaced Transaction; or
(ii) the occurrence of (A) a default, event of
default or other similar condition or event
(however described) in respect of Party A
under one or more agreements or instruments
relating to Specified Indebtedness of Party
A in an aggregate amount of not less than
the applicable Threshold Amount which has
resulted in the Specified Indebtedness
becoming due and payable under such
<PAGE>
19
agreements or instruments before it would
otherwise have been due and payable, or (B)
a default by Party A in making one or more
payments on the due date thereof in an
aggregate amount of not less than the
applicable Threshold Amount under such
agreements or instruments (after giving
effect to any applicable notice requirement
or grace period).
For the purposes of this paragraph (e)(ii),
"Specified Indebtedness" and "Threshold
Amount" shall have the meanings given in the
Confirmation for the Replaced Transaction;
or
(iii) the occurrence with respect to Party A of an
event specified in Section 5(a)(vii)(1) to
(9) inclusive; or
(iv) the occurrence with respect to Party A of an
event specified in Section 5(b)(i)(1); or
(v) the occurrence with respect to Party A (and
not the Credit Support Provider) of an event
specified in Section 5(a)(viii);
"Equivalent Transaction" means a Transaction governed
by a new agreement on the same material terms as this
Agreement and on the same material economic terms as
the Replaced Transaction, and with the same Trade
Date as the Replaced Transaction, except that:
(i) the New Currency Swap Provider is designated
as "Party A";
(ii) the Credit Support Provider is designated as
the new "Credit Support Provider" in
relation to Party A;
(iii) the "Effective Date" is as specified in the
relevant Confirmation for that Transaction,
being the same date as that specified in the
Substitution Notice as the Effective Date
for the Equivalent-Other Transaction; and
(iv) no Initial Exchanges are payable under the
Transaction.
"Equivalent-Other Transaction" means a Transaction
governed by the Other Agreement and on the same
material economic terms as the Other Transaction and
with the same Trade Date as the Replaced Transaction,
except that:
(i) the Credit Support Provider is designated as
the new Party A;
(ii) the New Currency Swap Provider is designated
as the new "Credit Support Provider" in
relation to Party A;
(iii) the "Effective Date" is as specified in the
relevant Substitution Notice; and
(iv) no Initial Exchanges are payable under the
Transaction.
<PAGE>
20
"New Currency Swap Provider" has the meaning given in
paragraph (b)(ii)(A);
"Other Agreement" has the meaning given in section
20;
"Other Transaction" means the Transaction governed by
the Other Agreement and on the same economic terms as
the Replaced Transaction, with the same Trade Date as
the Replaced Transaction, and as specified as such in
the relevant Substitution Notice;
"Replaced Transaction" means the Transaction governed
by this Agreement, and specified as such in the
relevant Substitution Notice, as referred to in
section 21(a);
"Substitute Transaction" means a Transaction governed
by the Other Agreement, and on the same economic
terms as the Other Transaction and with the same
Trade Date as the Replaced Transaction, except that:
(i) no party is designated as a "Credit Support
Provider";
(ii) the Effective Date is as specified in the
relevant Substitution Notice;
(iii) the Notional Amounts applicable to the
Floating Amounts payable by the respective
parties under the Transaction are the same
as the Notional Amounts applicable to the
Floating Amounts payable by the respective
parties under the Replaced Transaction
except that the references to "fifty (50)
percent" are substituted by references to
"one hundred (100) percent";
(iv) no Initial Exchanges are payable; and
(v) no "Credit Support Provider Provisions"
apply.
"Substitution Notice" means an irrevocable notice in
writing from the Credit Support Provider to Party B
and the Trust Manager, which may be delivered between
9.00 am and 4.00 pm in Sydney on a Business Day in
accordance with section 12, and which:
(i) describes the occurrence of a Credit Event;
(ii) specifies the Effective Date for an
Equivalent-Other Transaction or for a
Substitute Transaction (or for either
Transactions under Section 21(b)(i) or
21(b)(ii), as alternatives) and specifies
the proposed New Currency Swap Provider and,
if an Equivalent-Other Transaction is
specified, the terms of the Equivalent
Transaction (by attaching a proposed
Confirmation for the Equivalent
Transaction); and
(iii) confirms that the Termination Date for the
Replaced Transaction and the Other
Transaction shall be the Effective Date for
the Transactions in either paragraphs
(b)(i), or (b)(ii)(A) and (B), as the case
may be.
<PAGE>
21
(f) Section 21 and any related provision in a
Confirmation (the "Substitution Provisions") shall
not amend, or affect the operation of, any other
provision in this Agreement, except to the extent, if
any, expressly provided by the Substitution
Provisions. For the avoidance of doubt and without
limitation, the Substitution Provisions shall not
amend, or affect the operation of, the provisions of
the Credit Support Annex, sections 15 to 20
inclusive, and provisions in this Agreement which
specify certain events as Events of Default or
Termination Events.
<PAGE>
(Bilateral Form) (ISDA Agreements Subject to New York Law Only)
ISDA-Registered Trademark-
International Swaps and Derivatives Association, Inc.
CREDIT SUPPORT ANNEX
to the Schedule to the
ISDA MASTER AGREEMENT
---------------------
dated as of
---------------------------
WESTPAC SECURITIES
MORGAN GUARANTY between ADMINISTRATION LIMITED
TRUST COMPANY OF AS TRUSTEE OF THE
NEW YORK and SERIES 1999-1G WST TRUST
- ------------------------------ ----------------------------------
("Party A") ("Party B")
This Annex supplements, forms part of, and is subject to, the
above-referenced Agreement, is part of its Schedule and is a Credit Support
Document under this Agreement with respect to each party.
Accordingly, the parties agree as follows--
PARAGRAPH 1. INTERPRETATION
(a) DEFINITIONS AND INCONSISTENCY. Capitalized terms not otherwise defined
herein or elsewhere in this Agreement have the meanings specified pursuant to
Paragraph 12, and all references in this Annex to Paragraphs are to
Paragraphs of this Annex. In the event of any inconsistency between this
Annex and the other provisions of this Schedule, this Annex will prevail, and
in the event of any inconsistency between Paragraph 13 and the other
provisions of this Annex. Paragraph 13 will prevail.
(b) SECURED PARTY AND PLEDGOR. All references in this Annex to the "Secured
Party" will be to either party when acting in that capacity and all
corresponding references to the "Pledgor" will be to the other party when
acting in that capacity; PROVIDED, HOWEVER, that if Other Posted Support is
held by a party to this Annex, all references herein to that party as the
Secured Party with respect to that Other Posted Support will be to that party
as the beneficiary thereof and will not subject that support of that party as
the beneficiary thereof to provisions of law generally relating to security
interests and secured parties.
PARAGRAPH 2. SECURITY INTEREST
Each party, as the Pledgor, hereby pledges to the other party, as the Secured
Party, as security for its Obligations, and grants to the Secured Party a
first priority continuing security interest in, lien on and right of Set-off
against all Posted Collateral Transferred to or received by the Secured Party
hereunder. Upon the Transfer by the Secured Party to the Pledgor of Posted
Collateral, the security interest and lien granted hereunder on that Posted
Collateral will be released immediately and, to the extent possible, without
any further action by either party.
Copyright-C- 1994 by International Swaps and Derivatives Association, Inc.
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PARAGRAPH 3. CREDIT SUPPORT OBLIGATIONS
(a) DELIVERY AMOUNT. Subject to Paragraphs 4 and 5, upon a demand made by
the Secured Party on or promptly following a Valuation Date, if the Delivery
Amount for that Valuation Date equals or exceeds the Pledgor's Minimum
Transfer Amount, then the Pledgor will Transfer to the Secured Party Eligible
Credit Support having a Value as of the date of Transfer at least equal to
the applicable Delivery Amount (rounded pursuant to Paragraph 13). Unless
otherwise specified in Paragraph 13, the "DELIVERY AMOUNT" applicable to the
Pledgor for any Valuation Date will equal the amount by which:
(i) the Credit Support Amount
exceeds
(ii) the Value as of that Valuation Date of all Posted Credit Support held
by the Secured Party.
(b) RETURN AMOUNT. Subject to Paragraphs 4 and 5, upon a demand made by the
Pledgor on or promptly following a Valuation Date, if the Return Amount for
that Valuation Date equals or exceeds the Secured Party's Minimum Transfer
Amount, then the Secured Party will Transfer to the Pledgor Posted Credit
Support specified by the Pledgor in that demand having a Value as of the date
of Transfer as close as practicable to the applicable Return Amount (rounded
pursuant to Paragraph 13). Unless otherwise specified in Paragraph 13, the
"RETURN AMOUNT" applicable to the Secured Party for any Valuation Date will
equal the amount by which:
(i) the Value as of that Valuation Date of all Posted Credit Support held
by the Secured Party
exceeds
(ii) the Credit Support Amount.
"CREDIT SUPPORT AMOUNT" means, unless otherwise specified in Paragraph 13,
for any Valuation Date (i) the Secured Party's Exposure for that Valuation
Date plus (ii) the aggregate of all Independent Amounts applicable to the
Pledgor, if any, minus (iii) all Independent Amounts applicable to the
Secured Party, if any, minus (iv) the Pledgor's Threshold; PROVIDED, HOWEVER,
that the Credit Support Amount will be deemed to be zero whenever the
calculation of Credit Support Amount yields a number less than zero.
PARAGRAPH 4. CONDITIONS PRECEDENT, TRANSFER TIMING, CALCULATIONS AND
SUBSTITUTIONS
(a) CONDITIONS PRECEDENT. Each Transfer obligation of the Pledgor under
Paragraphs 3 and 5 and of the Secured Party under Paragraphs 3.4(d)(ii), 5
and 6(d) is subject to the conditions precedent that:
(i) no Event of Default, Potential Event of Default or Specified Condition
has occurred and is continuing with respect to the other party; and
(ii) no Early Termination Date for which any unsatisfied payment
obligations exist has occurred or been designated as the result of an
Event of Default or Specified Condition with respect to the other party.
(b) TRANSFER TIMING. Subject to Paragraphs 4(a) and 5 and unless otherwise
specified, if a demand for the Transfer of Eligible Credit Support or Posted
Credit Support is made by the Notification Time, then the relevant Transfer
will be made not later than the close of business on the next Local Business
Day; if a demand is made after the Notification Time, then the relevant
Transfer will be made not later than the close of business on the second
Local Business Day thereafter.
(c) CALCULATIONS. All calculations of Value and Exposure for purposes of
Paragraphs 3 and 6(d) will be made by the Valuation Agent as of the Valuation
Time. The Valuation Agent will notify each party (or the other party, if the
Valuation Agent is a party of its calculations not later than the
Notification Time on the Local Business Day following the applicable
Valuation Date (or in the case of Paragraph 6(d), following the date of
calculation).
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(d) SUBSTITUTIONS.
(i) Unless otherwise specified in Paragraph 13, upon notice to the
Secured Party specifying the items of Posted Credit Support to be
exchanged, the Pledgor may, on any Local Business Day, Transfer to the
Secured Party substitute Eligible Credit Support (the "Substitute
Credit Support"); and
(ii) subject to Paragraph 4(a), the Secured Party will Transfer to the
Pledgor the items of Posted Credit Support specified by the Pledgor in its
notice not later than the Local Business Day following the date on which
the Secured Party receives the Substitute Credit Support, unless otherwise
specified in Paragraph 13 (the "Substitution Date"); PROVIDED that the
Secured Party will only be obligated to Transfer Posted Credit Support
with a Value as of the date of Transfer of that Posted Credit Support equal
to the Value as of that date of the Substitute Credit Support.
PARAGRAPH 5. DISPUTE RESOLUTION
If a party (a "Disputing Party") disputes (1) the Valuation Agent's
calculation of a Delivery Amount or a Return Amount or (II) the Value of any
Transfer of Eligible Credit Support or Posted Credit Support, then (1) the
Disputing Party will notify the other party and the Valuation Agent (if the
Valuation Agent is not the other party) not later than the close of business
on the Local Business Day following (X) the date that the demand is made
under Paragraph 3 in the case of (I) above or (Y) the date of Transfer in the
case of (II) above, (2) subject to Paragraph 4(a), the appropriate party will
Transfer the undisputed amount to the other party not later than the close of
business on the Local Business Day following (X) the date that the demand is
made under Paragraph 3 in the case of (I) above or (Y) the date of Transfer
in the case of (II) above, (3) the parties will consult with each other in
an attempt to resolve the dispute and (4) if they fail to resolve the dispute
by the Resolution Time, then:
(i) In the case of a dispute involving a Delivery Amount or Return
Amount, unless otherwise specified in Paragraph 13, the Valuation Agent
will recalculate the Exposure and the Value as of the Recalculation Date
by:
(A) utilizing any calculations of Exposure for the Transactions
(or Swap Transactions) that the parties have agreed are not in dispute;
(B) calculating the Exposure for the Transactions (or Swap
Transactions) in dispute by seeking four actual quotations at
mid-market from Reference Market-makers for purposes of calculating
Market Quotation, and taking the arithmetic average of those obtained:
PROVIDED that if four quotations are not available for a particular
Transaction (or Swap Transaction), then fewer than four quotations
may be used for that Transaction (or Swap Transaction); and if no
quotations are available for a particular Transaction (or Swap
Transaction), then the Valuation Agent's original calculations will
be used for that Transaction (or Swap Transaction); and
(C) utilizing the procedures specified in Paragraph 13 for calculating
the Value, if disputed, of Posted Credit Support.
(ii) In the case of a dispute involving the Value of any Transfer of
Eligible Credit Support or Posted Credit Support, the Valuation Agent will
recalculate the Value as of the date of Transfer pursuant to Paragraph 13.
Following a recalculation pursuant to this Paragraph, the Valuation Agent
will notify each party (or the other party, if the Valuation Agent is a
party) not later than the Notification Time on the Local Business Day
following the Resolution Time. The appropriate party will, upon demand
following that notice by the Valuation Agent or a resolution pursuant to (3)
above and subject to Paragraphs 4(a) and 4(b), make the appropriate Transfer.
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PARAGRAPH 6. HOLDING AND USING POSTED COLLATERAL
(a) CARE OF POSTED COLLATERAL. Without limiting the Secured Party's rights
under Paragraph 6(c), the Secured Party will exercise reasonable care to
assure the safe custody of all Posted Collateral to the extent required by
applicable law, and in any event the Secured Party will be deemed to have
exercised reasonable care if it exercises at least the same degree of care
as it would exercise with respect to its own property. Except as specified
in the preceding sentence, the Secured Party will have no duty with respect to
Posted Collateral, including, without limitation, any duty to collect any
Distributions, or enforce or preserve any rights persisting thereto.
(b) ELIGIBILITY TO HOLD POSTED COLLATERAL; CUSTODIANS.
(i) GENERAL. Subject to the satisfaction of any conditions specified in
Paragraph 13 for holding Posted Collateral, the Secured Party will
be entitled to hold Posted Collateral or to appoint an agent (a
"Custodian") to hold Posted Collateral for the Secured Party. Upon
notice by the Secured Party to the Pledgor of the appointment of a
Custodian, the Pledgor's obligations to make any Transfer will be
discharged by making the Transfer to that Custodian. The holding of
Posted Collateral by a Custodian will be deemed to be the holding of
that Posted Collateral by the Secured Party for which the Custodian is
acting.
(ii) FAILURE TO SATISFY CONDITIONS. If the Secured Party or its Custodian
fails to satisfy any conditions for holding Posted Collateral, then upon a
demand made by the Pledgor, the Secured Party will, not later than five
Local Business Days after the demand, Transfer or cause its Custodian to
Transfer all Posted Collateral held by it to a Custodian that satisfies
those conditions or to the Secured Party if it satisfies those conditions.
(iii) LIABILITY. The Secured Party will be liable for the acts or
omissions of its Custodian to the same extent that the Secured Party
would be liable hereunder for its own acts or omissions.
(c) USE OF POSTED COLLATERAL. Unless otherwise specified in Paragraph 13 and
without limiting the rights and obligations of the parties under Paragraphs
3, 4(d)(ii), 5, 6(d) and 8, if the Secured Party is not a Defaulting Party
or an Affected Party with respect to a Specified Condition and no Early
Termination Date has occurred or been designated as the result of an Event of
Default or Specified Condition with respect to the Secured Party, then the
Secured Party will, notwithstanding Section 9-207 of the New York Uniform
Commercial Code, have the right to:
(i) sell, pledge, rehypothecate, assign, invest, use, commingle or
otherwise dispose of, or otherwise use in its business any Posted
Collateral it holds, free from any claim or right of any nature whatsoever
of the Pledgor, including any equity or right of redemption by the Pledgor;
and
(ii) register any Posted Collateral in the name of the Secured Party, its
Custodian or a nominee of either.
For purposes of the obligation to Transfer Eligible Credit Support or Posted
Credit Support pursuant to Paragraphs 3 and 5 and any rights or remedies
authorized under this Agreement, the Secured Party will be deemed to continue
to hold all Posted Collateral and to receive Distributions made thereon,
regardless of whether the Secured Party has exercised any rights with respect
to any Posted Collateral pursuant to (i) or (ii) above.
(d) DISTRIBUTIONS AND INTEREST AMOUNT.
(i) DISTRIBUTIONS. Subject to Paragraph 4(a), if the Secured Party
receives or is deemed to receive Distributions on a Local Business Day, it
will Transfer to the Pledgor not later than the following Local Business Day
any Distributions it receives or is deemed to receive to the extent that a
Delivery Amount would not be created or increased by that Transfer, as
calculated by the Valuation Agent (and the date of calculation will be deemed
to be a Valuation Date for this purpose).
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(ii) INTEREST AMOUNT. Unless otherwise specified in Paragraph 13 and
subject to Paragraph 4(a), in lieu of any interest, dividends or other
amounts paid or deemed to have been paid with respect to Posted
Collateral in the form of Cash (all of which may be retained by the
Secured Party), the Secured Party will Transfer to the Pledgor at the
times specified in Paragraph 13 the Interest Amount to the extent that a
Delivery Amount would not be created or increased by that Transfer, as
calculated by the Valuation Agent (and the date of calculation will be
deemed to be a Valuation Date for this purpose). The Interest Amount or
portion thereof not Transferred pursuant to this Paragraph will
constitute Posted Collateral in the form of Cash and will be subject to
the security interest granted under Paragraph 2.
PARAGRAPH 7. EVENTS OF DEFAULT
For purposes of Section 5(a)(iii)(1) of this Agreement, an Event of Default
will exist with respect to a party if:
(i) that party fails (or fails to cause its Custodian) to make, when
due, any Transfer of Eligible Collateral, Posted Collateral or the
Interest Amount, as applicable, required to be made by it and that
failure continues for two Local Business Days after notice of that
failure is given to that party;
(ii) that party fails to comply with any restriction or prohibition
specified in this Annex with respect to any of the rights specified in
Paragraph 6(c) and that failure continues for five Local Business Days
after notice of that failure is given to that party; or
(iii) that party fails to comply with or perform any agreement or
obligation other than those specified in Paragraphs 7(i) and 7(ii) and
that failure continues for 30 days after notice of that failure is given
to that party.
PARAGRAPH 8. CERTAIN RIGHTS AND REMEDIES
(a) SECURED PARTY'S RIGHTS AND REMEDIES. If at any time (1) an Event of
Default or Specified Condition with respect to the Pledgor has occurred and
is continuing or (2) an Early Termination Date has occurred or been
designated as the result of an Event of Default or Specified Condition with
respect to the Pledgor, then, unless the Pledgor has paid in full all of its
Obligations that are then due, the Secured Party may exercise one or more of
the following rights and remedies:
(i) all rights and remedies available to a secured party under
applicable law with respect to Posted Collateral held by the Secured
Party;
(ii) any other rights and remedies available to the Secured Party under
the terms of Other Posted Support, if any;
(iii) the right to Set-off any amounts payable by the Pledgor with
respect to any Obligations against any Posted Collateral or the Cash
equivalent of any Posted Collateral held by the Secured Party (or any
obligation of the Secured Party to Transfer that Posted Collateral); and
(iv) the right to liquidate any Posted Collateral held by the Secured
Party through one or more public or private sales or other dispositions
with such notice, if any, as may be required under applicable law, free
from any claim or right of any nature whatsoever of the Pledgor, including
any equity or right of redemption by the Pledgor (with the Secured Party
having the right to purchase any or all of the Posted Collateral to be
sold) and to apply the proceeds (or the Cash equivalent thereof) from
the liquidation of the Posted Collateral to any amounts payable by the
Pledgor with respect to any Obligations in that order as the Secured
Party may elect.
Each party acknowledges and agrees that Posted Collateral in the form of
securities may decline speedily in value and is of a type customarily sold on
a recognized market, and, accordingly, the Pledgor is not entitled to prior
notice of any sale of that Posted Collateral by the Secured Party, except any
notice that is required under applicable law and cannot be waived.
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(b) PLEDGOR'S RIGHTS AND REMEDIES. If at any time an Early Termination Date
has occurred or been designated as the result of an Event of Default or
Specified Condition with respect to the Secured Party, then (except in the
case of an Early Termination Date relating to less than all Transactions (or
Swap Transactions) where the Secured Party has paid in full all of its
obligations that are then due under Section 6(c) of this Agreement):
(i) the Pledgor may exercise all rights and remedies available to a
pledgor under applicable law with respect to Posted Collateral held by
the Secured Party;
(ii) the Pledgor may exercise any other rights and remedies available to
the Pledgor under the terms of Other Posted Support, if any;
(iii) the Secured Party will be obligated immediately to Transfer all
Posted Collateral and the Interest Amount to the Pledgor; and
(iv) to the extent that Posted Collateral or the Interest Amount is not
so Transferred pursuant to (iii) above, the Pledgor may:
(A) Set-off any amounts payable by the Pledgor with respect to any
Obligations against any Posted Collateral or the Cash equivalent of
any Posted Collateral held by the Secured Party (or any obligation of
the Secured Party to Transfer that Posted Collateral); and
(B) to the extent that the Pledgor does not Set-off under (iv)(A)
above, withhold payments of any remaining amounts payable by the
Pledgor with respect to any Obligations up to the Value of any
remaining Posted Collateral held by the Secured Party, until that
Posted Collateral is Transferred to the Pledgor.
(c) DEFICIENCIES AND EXCESS PROCEEDS. The Secured Party will Transfer to the
Pledgor any proceeds and Posted Credit Support remaining after liquidation.
Set-off and or application under Paragraphs 8(a) and 8(b) after satisfaction
in full of all amounts payable by the Pledgor with respect to any
Obligations; the Pledgor in all events will remain liable for any amounts
remaining unpaid after any liquidation. Set-off and/or application under
Paragraphs 8(a) and 8(b).
(d) FINAL RETURNS. When no amounts are or thereafter may become payable by
the Pledgor with respect to any Obligations (except for any potential
liability under Section 2(d) of this Agreement), the Secured Party will
Transfer to the Pledgor all Posted Credit Support and the Interest Amount, if
any.
PARAGRAPH 9. REPRESENTATIONS
Each party represents to the other party (which representations will be
deemed to be repeated as of each date on which it, as the Pledgor, Transfers
Eligible Collateral) that:
(i) it has the power to grant a security interest in and lien on any
Eligible Collateral it Transfers as the Pledgor and has taken all necessary
actions to authorize the granting of that security interest and lien.
(ii) it is the sole owner of or otherwise has the right to Transfer all
Eligible Collateral it Transfers to the Secured Party hereunder, free and
clear of any security interest, lien, encumbrance or other restrictions
other than the security interest and lien granted under Paragraph 2;
(iii) upon the Transfer of any Eligible Collateral to the Secured Party
under the terms of this Annex, the Secured Party will have a valid and
perfected first priority security interest therein (assuming that any
central clearing corporation or any third-party financial intermediary or
other entity not within the control of the Pledgor involved in the Transfer
of that Eligible Collateral gives the notices and takes the action required
of it under applicable law for perfection of that interest); and
(iv) the performance by its other obligations under this Annex will not
result in the creation of any security interest, lien or other encumbrance
on any Posted Collateral other than the security interest and lien granted
under Paragraph 2.
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PARAGRAPH 10. EXPENSES
(a) GENERAL. Except as otherwise provided in Paragraphs 10(b) and 10(c),
each party will pay its own costs and expenses in connection with performing
its obligations under this Annex and neither party will be liable for any
costs and expenses incurred by the other party in connection herewith.
(b) POSTED CREDIT SUPPORT. The Pledgor will promptly pay when due all taxes,
assessments or charges of any nature that are imposed with respect to Posted
Credit Support held by the Secured Party upon becoming aware of the same,
regardless of whether any portion of that Posted Credit Support is
subsequently disposed of under Paragraph 6(c), except for those taxes,
assessments and charges that result from the exercise of the Secured Party's
rights under Paragraph 6(c).
(c) LIQUIDATION/APPLICATION OF POSTED CREDIT SUPPORT. All reasonable costs
and expenses incurred by or on behalf of the Secured Party or the Pledgor in
connection with the liquidation and/or application of any Posted Credit
Support under Paragraph 8 will be payable, on demand and pursuant to the
Expenses Section of this Agreement, by the Defaulting Party or, if there is
no Defaulting Party, equally by the parties.
PARAGRAPH 11. MISCELLANEOUS
(a) DEFAULT INTEREST. A Secured Party that fails to make, when due, any
Transfer of Posted Collateral or the Interest Amount will be obligated to pay
the Pledgor (to the extent permitted under applicable law) an amount equal to
interest at the Default Rate multiplied by the Value of the items of property
that were required to be Transferred, from (and including) the date that
Posted Collateral or Interest Amount was required to be Transferred to (but
excluding) the date of Transfer of that Posted Collateral or Interest Amount.
This interest will be calculated on the basis of daily compounding and the
actual number of days elapsed.
(b) FURTHER ASSURANCES. Promptly following a demand made by a party, the
other party will execute, deliver, file and record any financing statement,
specific assignment or other document and take any other action that may be
necessary or desirable and reasonably requested by that party to create,
preserve, perfect or validate any security interest or lien granted under
Paragraph 2, to enable that party to exercise or enforce its rights under this
Annex, with respect to Posted Credit Support or an Interest Amount or to
effect or document a release of a security interest on Posted Collateral or
an Interest Amount.
(c) FURTHER PROTECTION. The Pledgor will promptly give notice to the Secured
Party of, and defend against, any suit, action, proceeding or lien that
involves Posted Credit Support Transferred by the Pledgor or that could
adversely affect the security interest and lien granted by it under
Paragraph 2, unless that suit, action, proceeding or lien results from the
exercise of the Secured Party's rights under Paragraph 6(c).
(d) GOOD FAITH AND COMMERCIALLY REASONABLE MANNER. Performance of all
obligations under this Annex, including, but not limited to, all
calculations, valuations and determinations made by either party, will be
made in good faith and in a commercially reasonable manner.
(e) DEMANDS AND NOTICES. All demands and notices made by a party under this
Annex will be made as specified in the Notices Section of this Agreement,
except as otherwise provided in Paragraph 13.
(f) SPECIFICATIONS OF CERTAIN MATTERS. Anything referred to in this Annex as
being specified in Paragraph 13 also may be specified in one or more
Confirmations or other documents and this Annex will be construed accordingly.
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PARAGRAPH 12. DEFINITIONS
As used in this Annex:--
"CASH" means the lawful currency of the United States of America.
"CREDIT SUPPORT AMOUNT" has the meaning specified in Paragraph 3.
"CUSTODIAN" has the meaning specified in Paragraphs 6(b))i) and 13.
"DELIVERY AMOUNT" has the meaning specified in Paragraph 3(a).
"DISPUTING PARTY" has the meaning specified in Paragraph 5.
"DISTRIBUTIONS" means with respect to Posted Collateral other than Cash, all
principal, interest and other payments and distributions of cash or other
property with respect hereto, regardless of whether the Secured Party has
disposed of that Posted Collateral under Paragraph 6(c). Distributions will
not include any item of property acquired by the Secured Party upon any
disposition or liquidation of Posted Collateral or, with respect to any Posted
Collateral in the form of Cash, any distributions on that collateral, unless
otherwise specified herein.
"ELIGIBLE COLLATERAL" means, with respect to a party, the items, if any,
specified as such for that party in Paragraph 13.
"ELIGIBLE CREDIT SUPPORT" means Eligible Collateral and Other Eligible
Support.
"EXPOSURE" means for any Valuation Date or other date for which Exposure is
calculated and subject to Paragraph 5 in the case of a dispute, the amount,
if any, that would be payable to a party that is the Secured Party by the
other party (expressed as a positive number) or by a party that is the
Secured Party to the other party (expressed as a negative number) pursuant to
Section 6(e)(ii)(2)(A) of this Agreement as if all Transactions (or Swap
Transactions) were being terminated as of the relevant Valuation Time;
PROVIDED that Market Quotation will be determined by the Valuation Agent
using its estimates at mid-market of the amounts that would be paid for
Replacement Transactions (as that term is defined in the definition of
"Market Quotation").
"INDEPENDENT AMOUNT" means, with respect to a party, the amount specified as
such for that party in Paragraph 13; if no amount is specified, zero.
"INTEREST AMOUNT" means, with respect to an Interest Period, the aggregate
sum of the amounts of interest calculated for each day in that Interest
Period on the principal amount of Posted Collateral in the form of Cash held
by the Secured Party on that day, determined by the Secured Party for each
such day as follows:
(x) the amount of that Cash on that day; multiplied by
(y) the Interest Rate in effect for that day; divided by
(z) 360.
"INTEREST PERIOD" means the period from (and including) the last Local
Business Day on which an Interest Amount was Transferred (or, if no Interest
Amount has yet been Transferred, the Local Business Day on which Posted
Collateral in the form of Cash was Transferred to or received by the Secured
Party) to (but excluding) the Local Business Day on which the current
Interest Amount is to be Transferred.
"INTEREST RATE" means the rate specified in Paragraph 13.
"LOCAL BUSINESS DAY" unless otherwise specified in Paragraph 13, has the
meaning specified in the Definitions Section of this Agreement, except that
references to a payment in clause (b) thereof will be deemed to include a
Transfer under the Annex.
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"MINIMUM TRANSFER AMOUNT" means, with respect to a party, the amount specified
as much for that party in Paragraph 13: if no amount is specified, zero.
"NOTIFICATION TIME" has the meaning specified in Paragraph 13.
"OBLIGATIONS" means, with respect to a party, all present and future
obligations of that party under this Agreement and any additional obligations
specified for that party in Paragraph 13.
"OTHER ELIGIBLE SUPPORT" means, with respect to a party, the items, if any,
specified as such for that party in Paragraph 13.
"OTHER POSTED SUPPORT" means all Other Eligible Support Transferred to the
Secured Party that remains in effect for the benefit of that Secured Party.
"PLEDGOR" means either party, when that party (i) receives a demand for or is
required to Transfer Eligible Credit Support under Paragraph 3(a) or (ii) has
Transferred Eligible Credit Support under Paragraph 3(a).
"POSTED COLLATERAL" means all Eligible Collateral, other property,
Distributions, and all proceeds thereof that have been Transferred to or
received by the Secured Party under this Annex and not Transferred to the
Pledgor pursuant to Paragraph 3(b), 4(d)(ii) or 6(d)(i) or released by the
Secured Party under Paragraph 8. Any Interest Amount or portion thereof not
Transferred pursuant to Paragraph 6(d)(ii) will constitute Posted Collateral
in the form of Cash.
"POSTED CREDIT SUPPORT" means Posted Collateral and Other Posted Support.
"RECALCULATION DATE" means the Valuation Date that gives rise to the dispute
under Paragraph 5; PROVIDED, HOWEVER, that if a subsequent Valuation Date
occurs under Paragraph 3 prior to the resolution of the dispute, then the
"Recalculation Date" means the most recent Valuation Date under Paragraph 3.
"RESOLUTION TIME" has the meaning specified in Paragraph 13.
"RETURN AMOUNT" has the meaning specified in Paragraph 3(b).
"SECURED PARTY" means either party, when that party (i) makes a demand for or
is entitled to receive Eligible Credit Support under Paragraph 3(a) or (ii)
holds or is deemed to hold Posted Credit Support.
"SPECIFIED CONDITION" means, with respect to a party, any event specified as
such for the party in Paragraph 13.
"SUBSTITUTE CREDIT SUPPORT" has the meaning specified in Paragraph 4(d)(i).
"SUBSTITUTION DATE" has the meanings specified in Paragraph 4(d)(ii).
"THRESHOLD" means, with respect to a party, the amount specified as such for
that party in Paragraph 13; if no amount is specified, zero.
"TRANSFER" means, with respect to any Eligible Credit Support, Posted Credit
Support or Interest Amount, and in accordance with the instructions of the
Secured Party, Pledgor or Custodian, as applicable:
(i) in the case of Cash, payment or delivery by wire transfer into one
or more bank accounts specified by the recipient;
(ii) in the case of certificated securities that cannot be paid or
delivered by book-entry, payment or delivery in appropriate physical form
to the recipient or its account accompanied by any duly executed
instruments of transfer, assignments in blank, transfer tax stamps and any
other documents necessary to constitute a legally valid transfer to the
recipient;
(iii) in the case of securities that can be paid or delivered by
book-entry, the giving of written instructions to the relevant depository,
institution or other entity specified by the recipient, together with a
written copy thereof to the recipient, sufficient if complied with to
result in a legally effective transfer of the relevant interest to the
recipient; and
(iv) in the case of Other Eligible Support or Other Posted Support, as
specified in Paragraph 13.
9
<PAGE>
"VALUATION AGENT" has the meaning specified in Paragraph 13.
"VALUATION DUE" means each date specified in or otherwise determined pursuant
to Paragraph 13.
"VALUATION PERCENTAGE" means, for any item of Eligible Collateral, the
percentage specified in Paragraph 13.
"VALUATION TIME" has the meaning specified in Paragraph 13.
"VALUE" means for any Valuation Date or other date for which Value is
calculated and subject to Paragraph 5 in the case of dispute, with respect
to:
(i) Eligible Collateral or Posted Collateral that is:
(A) Cash, the amount thereof; and
(B) a security, the bid price obtained by the Valuation Agent
multiplied by the applicable Valuation Percentage, if any;
(ii) Posted Collateral that consists of items that are not specified as
Eligible Collateral, zero; and
(iii) Other Eligible Support and Other Posted Support, as specified in
Paragraph 13.
10
<PAGE>
13. Elections and Variables
(a) SECURITY INTEREST FOR "OBLIGATIONS"
The term "Obligations" as used in this Annex does not include any
additional obligations. For the avoidance of doubt, in respect of the
Obligations which are specified in the Relevant Swap Transactions,
any assumptions made for the purposes of calculating the Peak
Exposure in Paragraph 13(b)(i) or the Benefit Exposure in Paragraph
13(b)(iv)(A) must not be applied or otherwise taken into account for
the purpose of calculating the Obligations, since those assumptions
are theoretical only and do not accurately reflect any actual
Obligations.
(b) CREDIT SUPPORT OBLIGATIONS
(i) DELIVERY AMOUNT, RETURN AMOUNT AND CREDIT SUPPORT AMOUNT
"DELIVERY AMOUNT" and "RETURN AMOUNT" each has the meaning
specified in Paragraph 3.
"CREDIT SUPPORT AMOUNT" means, for any Valuation Date:
(A) (I) with respect to Party A as the Secured Party,
Party A's Exposure for that Valuation Date; or
(II) with respect to Party B as the Secured Party, the
Peak Exposure for that Valuation Date; plus
(B) the aggregate of all Independent Amounts applicable to
the Pledgor, if any; minus
(C) all Independent Amounts applicable to the Secured
Party, if any; minus
(D) the Pledgor's Threshold,
provided, however, that the Credit Support Amount will be
deemed to be zero whenever the calculation of Credit Support
Amount yields a number less than zero.
"PEAK EXPOSURE" means the amount equal to Party B's maximum
credit exposure in respect of a Replacement Transaction entered
into on a date one month after the Valuation Date, calculated
by the Valuation Agent using its swap credit exposure
methodology to the Confidence Interval, as that methodology is
updated to reflect, without limitation, the levels of
volatility current as at the Valuation Time for the
differential between USD-LIBOR-BBA and AUD-BBR-BBSW (each rate
with a Designated Maturity of three months) and the A$-US$
forward exchange rates, and assuming that from that Valuation
Date:
(I) the remaining term of the Relevant Swap
Transaction is calculated on the basis that the
Termination Date is a date, no later than 31
years after the Effective Date of the first
<PAGE>
Transaction in respect of the Notes, calculated
by applying the assumptions specified in
subparagraph (II) below;
(II) the Floating Rate Payer Amounts and Exchange
Amounts are calculated on the basis that the
Housing Loan Principal has an amortisation
schedule based on a constant prepayment rate of
10% per annum thereafter,
as each of those terms are defined for the Relevant
Swap Transaction or in the Series Notice applicable to
the Relevant Swap Transaction.
"CONFIDENCE INTERVAL" shall be calculated on the
relevant Valuation Date according to the Joint Rating
(as defined below) as the case may be, as follows:
JOINT RATING Confidence
Interval
A1 (Moody's) and 95%
A+ (S&P) and
A+ (Fitch)
A2 (Moody's) and 97%
A (S&P) and
A (Fitch)
A3 (Moody's) and 99%
A- (S&P) and
A- (Fitch)
(ii) ELIGIBLE COLLATERAL. The following items will qualify as
"Eligible Collateral" for Party A:
<TABLE>
<CAPTION>
Valuation
Percentage
<S> <C> <C>
(A) negotiable debt obligations issued by the
U.S. Treasury Department having a remaining
maturity of not more than one year
("Treasury Bills") 98%
(B) negotiable debt obligations issued by the
U.S. Treasury Department having a remaining
maturity of more than one year but not more
than five years
("Treasury Notes") 95%
(C) negotiable debt obligations issued by the
U.S. Treasury Department having a remaining
maturity of more than five years
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
but not more than ten years ("Treasury Notes") 93%
(D) negotiable debt obligations issued by the
U.S. Treasury Department having a remaining
maturity of more than ten years ("Treasury
Bonds") 90%
(E) Other: Agency Securities having a remaining
maturity of not more than one year 97%
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
Agency Securities having a remaining
maturity of more than one year but not
more than five years 94%
Agency Securities having a remaining
maturity of more than five years but not
more than ten years 92%
Agency Securities having a remaining
maturity of more than ten years. 89%
</TABLE>
"AGENCY SECURITIES" means negotiable debt obligations which are fully
guaranteed as to both principal and interest by the Federal
National Mortgage Association, the Government National Mortgage
Corporation or the Federal Home Loan Mortgage Corporation, but
exclude: (i) interest only and principal only securities; and
(ii) Collateralized Mortgage Obligations, Real Estate Mortgage
Investment Conduits and similar derivative securities.
(iii) OTHER ELIGIBLE SUPPORT
Not applicable.
(iv) THRESHOLDS
(A) "INDEPENDENT AMOUNT" means with respect to Party A, the
Additional Spread.
"ADDITIONAL SPREAD" represents the excess of Party B's
Benefit Exposure over Party B's Exposure, as calculated on
the same Valuation Date according to the Joint Rating (as
defined below) as the case may be, as follows:
<TABLE>
<CAPTION>
Joint Rating Additional
Spread
<S> <C>
A1 (Moody's) and 0.15%
A+ (S&P) and
A+ (Fitch)
A2 (Moody's) and 0.20%
A (S&P) and
A (Fitch)
A3 (Moody's) and 0.25%
A- (S&P) and
A- (Fitch)
</TABLE>
"BENEFIT EXPOSURE" means the amount equal to Party B's
Exposure, except calculated on the basis that:
(I) the Additional Spread is added to the spread on the
US$ side of the Replacement Transaction; and
<PAGE>
(II) the remaining term and the Floating Rate Payer
Amounts and Exchange Amounts for the Replacement
Transaction are calculated by applying the
assumptions specified in subparagraphs (I) and (II)
of the definition of Peak Exposure in paragraph
13(b)(i) above.
For the avoidance of doubt, the Additional Spread is
intended to represent a maximum additional bid/offer spread
of 15, 20 or 25 swap points (as the case may be) running
payable if the bid/offer swap rates quoted to the Secured
Party were adjusted from market rates to the benefit of the
Reference Market-makers.
"INDEPENDENT AMOUNT" means with respect to Party B: Zero.
(B) "THRESHOLD"
With respect to Party A:
(I) if the highest possible jointly supported credit
rating that can be assigned to senior long term debt
jointly supported by Party A and the Credit Support
Provider by Moody's Investors Service Inc ("MOODY'S")
Standard & Poor's Ratings Group ("S&P") and Fitch
IBCA Inc. ("FITCH") in accordance with Moody's ,
S&P's and Fitch's respective approaches to jointly
supported obligations and after taking into
consideration the nature of the Replacement
Transaction (the "JOINT RATING"), is lower than Aa3
(Moody's), AA-(S&P) or AA-(Fitch) (or, in the case of
no Credit Support Provider providing any credit
support obligations, if the credit rating assigned to
Party A's senior long term debt is lower than Aa3
(Moody's), AA-(S&P) or AA-(Fitch) ) and any Notes
rated Aaa by Moody's, AAA by S&P and AAA by Fitch are
outstanding at that Valuation Date, then zero; or
(II) in all other cases, infinity.
With respect to Party B: infinity.
If either Moody's, S&P or Fitch ceases to be in the business
of rating debt securities and such business is not continued
by a successor or assign of such entity (the "DISCONTINUED
AGENCY"), the parties may jointly select a nationally
recognised credit rating agency in substitution thereof and
agree on the rating level issued by such substitute agency
that is equivalent to the ratings specified herein of the
Discontinued Agency, whereupon such substitute agency and
equivalent rating shall replace the Discontinued Agency and
the rating level thereof for purposes of this Agreement.
(C) "MINIMUM TRANSFER AMOUNT" means with respect to both Party A
and Party B: US$100,000.
<PAGE>
(D) ROUNDING. The Delivery Amount and the Return Amount will be
rounded to the nearest integral multiple of US$10,000.
(c) VALUATION AND TIMING
(i) "VALUATION AGENT" means
(A) both Party A and the Credit Support Provider, and the higher
of the valuation amounts of the two parties shall apply. The
valuation amount calculated by Party A and the Credit
Support Provider shall be audited by the parties' respective
internal auditors on a monthly basis for three months after
the inaugural Posted Collateral, and on an annual basis
thereafter; or
(B) if there is no Credit Support Provider, two independent
parties appointed by Party A, and the average of the
valuation amounts calculated by the two independent parties
shall apply.
(ii) "VALUATION DATE" means the last Local Business Day of each week.:
(iii) "VALUATION TIME" means the close of business on the Local
Business Day before the Valuation Date; PROVIDED that the
calculations of Value and Exposure will be made as of
approximately the same time on the same date.
(iv) "NOTIFICATION TIME" means 11:00 am on a Local Business Day.
(d) CONDITIONS PRECEDENT AND SECURED PARTY'S RIGHTS AND REMEDIES
There are no "SPECIFIED CONDITIONS" applicable to Party A and Party B.
(e) SUBSTITUTION
(i) "SUBSTITUTION DATE" has the meaning specified in paragraph
4(d)(ii).
(ii) CONSENT. Not applicable.
(f) DISPUTE RESOLUTION
(i) "RESOLUTION TIME"" means 11:00 am on the Local Business Day
following the date on which the notice is given that gives rise
to a dispute under paragraph 5.
(ii) "VALUE". Not applicable.
(iii) "ALTERNATIVE". The provisions of Paragraph 5 will apply.
(g) HOLDING AND USING POSTED COLLATERAL
(i) ELIGIBILITY TO HOLD POSTED COLLATERAL; CUSTODIANS.
Party A: Not Applicable.
Party B is not entitled to hold Posted Collateral; it must
appoint a Custodian to hold Posted Collateral on its behalf,
pursuant to paragraph
<PAGE>
6(b); PROVIDED that the following conditions applicable to
Party B are satisfied:
(A) Party B is not a Defaulting Party;
(B) Party B's Custodian will always be the Principal Paying
Agent of the Notes (in respect of the Relevant Swap
Transaction), unless that party is Party A; and
(C) if the Principal Paying Agent of the Notes (in respect of
the Relevant Swap Transaction) is Party A, then Party B
must appoint a Custodian which is a Bank (as defined in the
Federal Deposit Insurance Act, as amended) outside
Australia, whose rating (with respect to its long term
unsecured, unsubordinated indebtedness) is at all times at
least Aa2 by Moody's, and Party B must notify Party A in
writing of this appointment and of the relevant account for
Paragraph 13(l).
(D) Posted Collateral may only be held in one or more accounts
in the United States and any account established by Party
B's Custodian to hold Posted Collateral shall be
established and maintained for the sole purpose of
receiving deliveries of and holding Posted Collateral.
Separate accounts must be established and maintained in
respect of Posted Collateral transferred to Party B's
Custodian by Party A and the Credit Support Provider
respectively.
(ii) USE OF POSTED COLLATERAL. The provisions of paragraph 6(c) will
not apply to Party B and its Custodian. Party B's Custodian
will permit Party B to secure Party B's obligations under the
relevant Notes by granting to the Security Trustee (as defined
in the Schedule to this Agreement) a mortgage or other security
over Party B's rights in relation to the Posted Collateral, but
subject to Paragraph 11(m)(viii) of this Annex.
(h) DISTRIBUTIONS AND INTEREST AMOUNT
"INTEREST RATE", TRANSFER OF INTEREST AMOUNT, and ALTERNATIVE TO
INTEREST AMOUNT are not applicable.
(i) ADDITIONAL REPRESENTATION(S). NONE.
(j) OTHER ELIGIBLE SUPPORT AND OTHER POSTED SUPPORT
"VALUE" and "TRANSFER" with respect to Other Eligible Support and
Other Posted Support means: not applicable.
(k) DEMANDS AND NOTICES
All demands, specifications and notices under this Annex will be made
pursuant to the Notices Section of this Agreement; PROVIDED, that any
such demand, specification or notice may be made by telephone
("TELEPHONE NOTICE") between duly authorised employees of each party
if such Telephone Notice is confirmed by a subsequent written
instruction (which may be delivered via facsimile) by the close of
business of the same day that such Telephone Notice is given.
<PAGE>
(l) ADDRESSES FOR TRANSFERS
Party A: Party A to specify account for returns of collateral,
subject to paragraph 13(x) below.
Party B: Party B must notify Party A of its Custodian's account.
(m) OTHER PROVISIONS
(i) Paragraph 4(b) of the Annex is replaced by the following:
"(b) TRANSFER TIMING. Subject to Paragraph 4(a) and 5 and
unless otherwise specified, if a demand for the Transfer of
Eligible Credit Support or Posted Credit Support is made by the
Notification Time, then the relevant Transfer will be made
within one Local Business Day of receipt of the demand; if a
demand is made after the Notification Time, then the relevant
Transfer will be made within two Local Business Days of receipt
of the demand.
(ii) LOCAL BUSINESS DAY
Unless otherwise specified in the Schedule, the place is
London, New York and Sydney.
(iii) PARTY B'S EXPOSURE
In calculating the amounts of Party B's Exposure, Peak Exposure
and Benefit Exposure under Paragraphs 12, and 13(b)(i) and
13(b)(iv)(A) respectively, the Valuation Agent must:
(A) include all Transactions (or any cashflows under any
Transaction) which correspond with amounts payable on
the Relevant Reset Date by Party B's Principal Paying
Agent in respect of Class A Notes which are then rated
by Moody's, S&P and/or Fitch with a higher rating than
the then Joint Rating (or in the case of no Credit
Support Provider having any credit support obligations,
the then rating of Party A's senior long term debt); and
(B) exclude all Transactions (or any cashflows under any
Transaction) which do not correspond with amounts
payable on the Relevant Reset Date by Party B's
Principal Paying Agent in respect of Class A Notes which
are then rated by Moody's, S&P and/or Fitch with the
same or lower rating than the then Joint Rating (or in
the case of no Credit Support Provider having any credit
support obligations, the then rating of Party A's senior
long term debt); and
(C) calculate the Peak Exposure such that it shall not be
less than the Party B's Exposure plus the US$ Equivalent
of 2.5% of the most recently applicable Housing Loan
Principal as at the relevant Valuation Date. The "US$
Equivalent" has the meaning given in the Series Notice
applicable to the Class A Notes.
For the purposes of this Paragraph (m)(iii), "Relevant Reset
Date" means:
<PAGE>
(C) if a Reset Date occurs on the relevant Valuation Date,
then that Valuation Date; or
(D) if a Reset Date does not occur on the relevant Valuation
Date, then the next Reset Date.
(iv) EVENT OF DEFAULT, NOT POTENTIAL EVENT OF DEFAULT OR SPECIFIED
CONDITION AND NEW PARAGRAPH 3(C)
A new Paragraph 3(c) of the Annex is added as follows:
"(c) JOINT RATINGS BELOW SPECIFIED LEVELS. If at any time the
Joint Rating is lower than A-(S&P) and A-(Fitch) (or, in the
case of no Credit Support Provider providing any credit
support obligations, if the credit rating assigned to Party
A's senior long term debt is lower than A-(S&P) and A-(Fitch)
) or the short term rating-equivalent of the Joint Rating is
lower than A-1 (S&P) and F-1 (Fitch), then Party A and the
Credit Support Provider must replace the Currency Swap
Provider or take measures which are acceptable to the relevant
rating agency at the time.
Paragraph 4(a)(i) and 4(a)(ii) of the Annex are amended by
deleting the words "Potential Event of Default or Specified
Condition" and "or Specified Condition" respectively.
Paragraph 6(c) of the Annex is amended by deleting the words
"or an Affected Party with respect to a Specified Condition"
on lines 3 and 4 and "or Specified Condition" on lines 5 and
6.
Paragraph 7(i) of the Annex is amended, on line 3, by
replacing "two Local Business Days" with "three Local Business
Days".
Paragraph 8(a)(1) and 8(a)(2) of the Annex are amended by
deleting the words "or Specified Condition".
(v) PARTY B'S EXPENSES
Party A acknowledges that, pursuant to Section 17 of the
Agreement, Party B will pay its own costs and expenses under
Paragraph 10(a) from proceeds distributed as Trustee's
expenses, in accordance with instructions from the Trustee.
<PAGE>
(vi) GOVERNING LAW NOTWITHSTANDING
This Annex shall be governed by and construed in accordance
with the laws of the state of New York without giving effect
to choice of law doctrine and parties hereto agree that
proceedings relating to any dispute arising out of or in
connection with this Annex shall be subject to the
non-exclusive jurisdiction of the federal or state courts of
competent jurisdiction in the Borough of Manhattan in New York
City, State of New York.
(vii) NO TRIAL BY JURY
Each party waives, to the fullest extent permitted by
applicable law, any right it may have to a trial by jury in
respect of any suit, action or proceeding relating to this
Annex.
(viii) NO POOLING OF COLLATERAL WITH OTHER SECURITY TRUST SECURITY
Notwithstanding any provision in any Trust Document (as
defined in the Security Trust Deed), but without prejudice to
Party B's rights under Paragraph 8(a) of this Annex, no party
shall be entitled to deal with the Posted Collateral in any
manner inconsistent with the rights of the Pledgor and the
Credit Support Provider under Paragraphs 8(b)(iii) and 13(x)
of this Annex, and each party covenants to the other that it
shall not permit any other person to gain any rights in
relation to the Posted Collateral that are inconsistent with
the rights of the Pledgor and the Credit Support Provider.
(ix) CREDIT SUPPORT PROVIDER
For valuable consideration which is hereby acknowledged by the
Credit Support Provider as having been received, the Credit
Support Provider hereby unconditionally guarantees the
obligations of Party A under this Annex, on the following
terms:
(A) If Party A shall in any respect fail to perform its
obligations as Pledgor under this Annex and the breach
is not remedied within any applicable grace period set
out in paragraph 7 of this Annex, the Credit Support
Provider shall perform the obligations of Party A as
Pledgor under and in accordance with this Annex;
(B) Subject to paragraph 13(m)(ix)(E) Party B must return
to the Credit Support Provider any Posted Collateral
which the Credit Support Provider has transferred to
Party B pursuant to paragraph 13(m)(ix)(A),
notwithstanding that any such Posted Collateral was
transferred by the Credit Support Provider to Party B
to secure the Obligations of Party A. The Credit
Support Provider shall be the "Pledgor" for the
purposes of Party B returning Posted Collateral in
accordance with this sub-paragraph and the provisions
in this Annex for the return of Posted Collateral shall
otherwise apply for returns of Posted Collateral by
Party B to the Credit Support Provider;
(C) The provisions of this paragraph 13(m)(ix) shall
constitute irrevocable obligations of the Credit
Support Provider until a notice
<PAGE>
of revocation is served by the Credit Support Provider
on Party B. Such a notice shall not be served without
the prior written consent of Party A and the Manager in
consultation with the Designated Rating Agencies; and
(D) The Credit Support Provider shall not be discharged or
released from its obligations under this Annex and this
Agreement (including, without limitation, the
obligations under Section 20) by any agreement,
conduct, omission, breach or repudiation by Party A or
Party B, or any other act, event or circumstance which
but for this clause would or might operate as a matter
of law to discharge, impair or otherwise affect any of
the obligations of the Credit Support Provider under
this Annex or this Agreement.
(E) If the Credit Support Provider transfers Eligible
Collateral to Party B under paragraph 13(m)(ix)(A) (the
"CSP POSTED COLLATERAL") and Transactions are
terminated in accordance with Section 21 of the Other
Agreement (as defined in Section 20 of this Agreement),
then Party B will transfer the CSP Posted Collateral to
Party A (or its Custodian). Party A (or its Custodian)
shall hold CSP Posted Collateral as security for
obligations owed by the Credit Support Provider to
Party A in connection with any such terminated
Transactions, including, without limitation, any mark
to market amounts payable in respect thereof.
(x) PARTY A'S COLLATERAL AND THE CREDIT SUPPORT PROVIDER
(A) If Party A transfers Eligible Collateral to Party B
under this Annex (the "Party A Posted Collateral") and
then a Substitution Notice is given by the Credit
Support Provider and the Replaced Transaction is
terminated in accordance with section 21 of the
Agreement, then Party B will transfer the Party A
Posted Collateral to a Custodian as specified by Party
A in accordance with paragraph (x)(B) below.
(B) If a Substitution Notice is given in accordance with
section 21 of this Agreement, Party B shall transfer
the Party A Posted Collateral (if any) to the Credit
Support Provider (or its Custodian) as if the Credit
Support Provider (or its Custodian) were the "Pledgor"
for the purposes of returning Posted Collateral under
paragraph 3(b), and otherwise in accordance with
paragraph 3(b). Party B must transfer the Party A
Posted Collateral on or by the Effective Date of the
Substitute Transaction or the Equivalent-Other
Transaction (as specified under section 21 of this
Agreement).
(C) The Credit Support Provider (or its Custodian) shall
hold the Party A Posted Collateral as security for
obligations owed by Party A to the Credit Support
Provider in connection with the terminated Transactions
including without limitation any mark to market amounts
payable in respect thereof.
(D) The Transfer of the Party A Posted Collateral by Party
B in accordance with paragraph (x)(B) shall constitute
performance by Party B of its obligations under
paragraph 3(b) in respect of the
<PAGE>
Party A Posted Collateral, and Party A's rights in
respect of the Party A Posted Collateral under
paragraph 8 (b)(iii) shall be deemed to be modified by
the provisions of this paragraph 13(x).
<PAGE>
[13 May 1999]
Westpac Securities Administration Limited in its capacity as trustee of the
Series 1999-1G WST Trust Level 10, 130 Pitt Street Sydney
cc: Westpac Securitisation Management Pty Limited
Level 25, 60 Martin Place
Sydney
Westpac Banking Corporation
255 Elizabeth Street
Sydney
Dear Sir
CURRENCY SWAP TRANSACTIONS - SERIES 1999-1G WST TRUST
CLASS A MORTGAGE BACKED FLOATING RATE NOTES
The purpose of this letter is to confirm the terms and conditions of the swap
transactions entered into between us on the Trade Dates specified below (the
"TRANSACTIONS"). This letter constitutes a "Confirmation" as referred to in the
Master Agreement specified below.
1. This Confirmation supplements, forms part of, and is subject to, the
Master Agreement dated [10 May 1999], as amended and supplemented from
time to time (the "AGREEMENT") between you and us. All provisions
contained in the Agreement govern this Confirmation except as expressly
modified below. Without limitation, Section 21 of the Agreement shall
apply to this Confirmation and the Transactions under it, as further
specified below.
2. Terms defined in the Conditions dated [10 May 1999] in respect of the
issue of US$[XXX] in Class A Mortgage-Backed Floating Rate Notes due
2030 have the same meanings when used in this Confirmation.
3. The terms of the particular Transaction to which this Confirmation
relate are as specified in the Annexures 1, 2 and 3 to this
Confirmation, in respect of Class A Notes, Class A Notes - "Substitute
Transaction" and Class A Notes - "Equivalent-Other Transaction"
respectively.
4. For the purposes of this Confirmation, Morgan Guaranty Trust Company of
New York, London Office, is known as "MORGAN", Westpac Securities
Administration Limited in its capacity as trustee of the Series 1999-1G
WST Trust is known as "TRUSTEE", Westpac Securitisation Management Pty
Limited is known as "MANAGER" and Westpac Banking Corporation is known
as "CREDIT SUPPORT PROVIDER".
5. Account Details
Page 1
<PAGE>
Payments to Morgan: to be advised
Payments to Trustee: to be advised
6. Offices
(a) The Office of Morgan for the Swap Transactions is LONDON; and
(b) The Office of the Trustee for the Swap Transactions is SYDNEY.
Yours sincerely,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By:
Name:
Title:
Confirmed as of the date above first written:
WESTPAC SECURITIES ADMINISTRATION LIMITED(ACN 000 049 472)
in its capacity as trustee of the Series 1999-1G WST Trust
By:______________________________
Name:
Title:
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED (ACN 081 709 211)
in its capacity as Trust Manager
By:______________________________
Name:
Title:
WESTPAC BANKING CORPORATION (ARBN 007 457 141)
in its capacity as Credit Support Provider to Morgan
Page 2
<PAGE>
By:______________________________
Name:
Title:
Page 3
<PAGE>
ANNEXURE 1 - CLASS A NOTES
Morgan Deal Number
Trade Date: [13 May 1999]
Effective Date: Closing Date
Termination Date: Final Maturity Date (adjusted in accordance with
the [Modified] Following Business Day Convention)
FLOATING INTEREST AMOUNTS
FLOATING AMOUNTS PAYABLE BY MORGAN:
These Floating Amounts are payable by Morgan unless there is, on any Floating
Rate Payer Payment Date, any reduction in Class A Interest resulting from a
reduction in A$ Class A Interest Amount pursuant to clause 6.17(a)(ii)(A) of the
Series Notice (as specified in a notice to Morgan by the Determination Time), in
which case the Floating Amount shall be reduced by the same proportion as the
reduction in the A$ Class A Interest Amount.
<TABLE>
<S> <C>
Floating Rate Payer: Morgan
Notional Amount: An amount equal to fifty (50) percent of the
total Invested Amount of all Class A Notes as at
the first day of the Interest Period ending on
but excluding the relevant Floating Rate Payer
Payment Date
Floating Rate Payer Payment Dates: Each Payment Date up toand including the last
Payment Date prior to the Maturity Date, and the
Termination Date
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: Three months
Spread: Plus [0.XXXX] percent
Floating Rate Day Count Fraction: Actual/360
Reset Dates: The first day of each Interest Period
Compounding: Inapplicable
</TABLE>
Page 4
<PAGE>
Page 5
<PAGE>
FLOATING AMOUNTS PAYABLE BY THE TRUSTEE:
These Floating Amounts are payable by the Trustee unless there is, on any
Floating Rate Payer Payment Date, any reduction in A$ Class A Interest Amount
pursuant to clause 6.17(a)(ii)(A) of the Series Notice (as specified in a notice
by the Trustee or Trust Manager to Morgan by the Determination Time), in which
case, instead of the Floating Amount, the Trustee shall pay an amount equal to
the lesser A$ amount specified in that notice on that Floating Rate Payer
Payment Date.
<TABLE>
<S> <C>
Floating Rate Payer: Trustee
Notional Amount: An amount equal to fifty (50) percent of the A$
Equivalent (applying USD 0.XXXXXX) of the total
Invested Amount of all Class A Notes as at the
first day of the Interest Period ending on but
excluding the relevant Floating Rate Payer
Payment Date
Floating Rate Payer Payment Dates: Each Payment Date up to and including the last
Payment Date prior to the Maturity Date, and the
Termination Date
Floating Rate Option: AUD-BBR-BBSW
Designated Maturity: 90 days
Spread: Plus 0.XXXX percent
Floating Rate Day Count Fraction: Actual/365 (Fixed)
Reset Dates: The first day of each Interest Period
Compounding: Inapplicable
</TABLE>
Page 6
<PAGE>
EXCHANGES
<TABLE>
<S> <C>
INITIAL EXCHANGE:
Initial Exchange Date: Closing Date
Morgan Pays Initial Exchange: An amount equal to fifty (50) percent of the
total Class A Initial Invested Amount of all
Class A Notes on the Closing Date divided by the
exchange rate of USD 0.XXXXXX
being (AUD [XXX])
Trustee Pays Initial Exchange: An amount equal to fifty (50) percent of the
total of the Class A Initial Invested Amount of
all of the Class A Notes on the Closing Date
being USD [XXX]
INSTALMENT EXCHANGE
Instalment Exchange Date Each Payment Date (other than a Final Exchange
Date)
Morgan Pays Instalment Exchange: An amount equal to fifty (50) percent of the
Class A Principal Payment paid on the relevant
Instalment Exchange Date towards a reduction of
the Principal Amount of Class A Notes, as
calculated by multiplying the Trustee Instalment
Exchange Payment on the relevant Instalment
Exchange Date by the exchange rate of USD 0.XXXXXX
Trustee Pays Instalment Exchange: An amount equal to fifty (50) percent of the
amount expressed under clause 6.14, 6.15 or 6.16
(as applicable) of the Series Notice as being
payable under a Confirmation relating to Class A
Notes plus any amount payable under clause
6.11(a)(ii)(C) of the Series Notice (together,
the "TRUSTEE INSTALMENT EXCHANGE PAYMENT") as
specified in the notice issued by the Trustee (or
the Trust Manager) to Morgan by the Determination
Time in respect of that Instalment Exchange Date
</TABLE>
Page 7
<PAGE>
<TABLE>
<S> <C>
FINAL EXCHANGE:
Final Exchange Date: The earlier of the Termination Date and the Date
of the 10% Clean Up under clause 8.9(d) of the
Master Trust Deed as amended by the Series Notice
and the date of redemption of all the Class A
Notes for taxation or other reasons, adjusted in
accordance with the [Modified] Following Business
Day Convention
Morgan Pays Final Exchange: An amount equal to fifty (50) percent of the
aggregate Final Exchange payable by the Trustee
under this Confirmation, multiplied by the
exchange rate of USD 0. XXXXXX
Trustee Pays Final Exchange: An amount equal to fifty (50) percent of the
aggregate amount expressed under clause 6.14,
6.15 or 6.16 (as applicable) of the Series Notice
as being payable under a Confirmation relating to
Class A Notes plus any amount payable under
clause 6.11(a)(ii)(C) of the Series Notice as
specified in the Notice issued by the Trustee (or
the Trust Manager) to Morgan by the Determination
Time in respect of that Final Exchange Date
Business Day Locations for Trustee: Sydney
Business Day Locations for Morgan: New York, London
Payments will be: Gross
</TABLE>
Page 8
<PAGE>
GLOSSARY
1. Terms defined in the Series Notice:
A$ Equivalent Invested Amount
Class A Initial Invested Amount Maturity Date
Class A Notes Payment Date
Closing Date Principal Payment
Interest Period Trust Manager
2. Terms defined in the Agreement (including 1991 ISDA Definitions) are:
Actual/360
Actual/365 (Fixed)
AUD-BBR-BBSW
[Modified] Following Business Day Convention
Replaced Transaction
USD-LIBOR-BBA
3. Terms defined in this Confirmation:
Agreement
Trustee
"Determination Time" means 5.00 pm Sydney time 4 Sydney
Business Days prior to the relevant Payment Date or other applicable
exchange date. Morgan
CREDIT SUPPORT PROVIDER PROVISIONS
This Transaction shall be capable of being specified as a Replaced Transaction
in accordance with Section 21 of the Agreement. Those provisions shall apply as
further specified below.
1. Definitions for Credit Events
"CALCULATION AGENT" means the Credit Support Provider or such other
party designated as such for the Transaction. The Calculation Agent's
calculations and determinations shall be made in good faith, in a
commercially reasonable manner and be binding in the absence of
manifest error;
Page 9
<PAGE>
"INITIAL PRICE" means, with respect to any Reference Obligation, the
percentage listed with respect thereto in the definition of Reference
Obligation herein as the Initial Price;
"INTEREST RATE ADJUSTMENT AMOUNT" means, with respect to any Reference
Obligation, the difference between (i) the Mark to Market Value and
(ii) 100% minus the Initial Price;
"MARK TO MARKET RATE" means the Mark to Market Rate specified in
respect of the Reference Obligation;
"MARK TO MARKET VALUE" means, in the determination of the Calculation
Agent, with respect to any Reference Obligation, on any day, the mark
to market value payable on that day (expressed as a percentage of the
notional amount thereof), of a hypothetical interest rate swap
commencing on the Effective Date between a hypothetical party ("Party
X") and a counterparty with the highest long term senior debt rating of
each Rating Agency, which swap has a notional amount equal to
US$100,000,000 and under which Party X (i) receives the Mark to Market
Rate plus the Initial Spread and (ii) pays a fixed interest amount
equal in amount and timing to the coupons on the Reference Obligation
(except a notional amount of $100,000,000 shall be applied). If, under
such swap, Party X would be due to pay such mark to market value, Mark
to Market Value will be negative and, if Party X would be due to
receive such mark to market value, the Mark to Market Value will be
positive.
"MARKET VALUE" means, in accordance with the Quotation Method, the
percentage equal to the arithmetic mean of quotations (exclusive of
accrued but unpaid interest and expressed as a percentage) obtained
from Dealers with respect to a Valuation Date in the manner provided
below. In obtaining such price quotations from Dealers, the Calculation
Agent will request each Dealer to provide firm bid and offer quotations
for an aggregate amount of the Reference Obligation equal to the
Quotation Amount to the extent reasonably practicable as of the
Valuation Time on such Valuation Date. If more than three quotations
are provided on such date, the Market Value shall be the arithmetic
mean of such quotations without regard to the quotations having the
highest and lowest values. If exactly three quotations are provided,
the Market Value shall be the quotation remaining after disregarding
the highest and lowest quotations. For this purpose, if more than one
quotation has the same highest value or lowest value, then one of such
quotations shall be disregarded. If exactly two quotations are
provided, the Market Value shall be the arithmetic mean of such
quotations. If fewer than two quotations are provided, then the Market
Value shall be an amount as determined by the Calculation Agent on the
next Business Day on which at least two quotations are provided by
Dealers. If the Calculation Agent is unable to calculate the Market
Value prior to the fifth Business Day following the applicable
Valuation Date, then the Calculation Agent shall determine the Market
Value for such Valuation Date in its reasonable discretion;
Page 10
<PAGE>
"PRICE DECLINE REQUIREMENT" means the product of 1.5% and the
modified duration of the Reference Obligation at the time of
calculation;
"QUOTATION METHOD":
Mid-market means that only the arithmetic mean of the bid and
offer quotations provided by Dealers that have provided both
bid and offer quotations shall be used in the calculation of
Market Value;
"REFERENCE OBLIGATION" means the obligation(s) as follows:
<TABLE>
<S> <C>
Issuer/Borrower: Morgan Guaranty Trust Company of New York
Maturity: [Specify]
X
Coupon: XX%
CUSIP/ISIN: CUSIP TT X/ ISIN XS X
Original Issue Amount: USDXXX
Initial Price: X%
X
Initial Spread: XX% U.S.Treasury Notes due XX/XX/XXXX plus X%;
X
Mark to Market Rate Yield to maturity of XX% U.S.Treasury Notes due XX/XX/XXXX
</TABLE>
CHANGES WITH RESPECT TO ANY REFERENCE OBLIGATION. In the event that the
aggregate outstanding principal amount of any Reference Obligation has,
in the opinion of the Calculation Agent, been materially reduced by
redemption or otherwise (other than due to any regularly scheduled
amortization or prepayments), then the Calculation Agent, after
consultation with the parties, shall identify a substitute obligation
which ranks equal in priority of payment with such Reference Obligation
and is issued or guaranteed (as to both principal and interest) by the
same issuer and/or guarantor to replace the Reference Obligation. Upon
notice to the parties of a substitute obligation having been identified
by the Calculation Agent, such substitute obligation shall without
further action replace the Reference Obligation.
"SPECIFIED INDEBTEDNESS" means any obligation (whether present or
future, contingent or otherwise, as principal or surety or otherwise)
in respect of money borrowed or raised or under any finance lease,
redeemable preference share, letter of credit, futures contract,
guarantee, indemnity or a transaction of a type described in the last 6
lines of the definition of Specified Transaction.
"THRESHOLD AMOUNT" means US$50,000,000
"VALUATION TIME" means 10.00am New York Time
2. The parties acknowledge that on the Effective Date of the Substitute
Page 11
<PAGE>
Transaction or the Equivalent Transaction, Party A shall pay to the
Credit Support Provider (in the case of the Substitute Transaction) or
to the new Currency Swap Provider (in the case of the Equivalent
Transaction) the amount equal to the amount (if a positive number) that
hypothetically would have been payable by Party A to Party B under
Section 6(e)(i)(3) if:
(a) the Transaction had been terminated;
(b) an Early Termination Date had occurred on the Effective Date;
and
(c) Section 21 had not applied in respect of the Transaction.
Any such amount shall be payable by Party A to, as the case may be,
either the Credit Support Provider in accordance with the provisions of
the side agreement between them dated on or about the Trade Date of
this Transaction (in the case of the Substitute Transaction), or the
New Currency Swap Provider in accordance with the relevant Master
Agreement between Party A and the New Currency Swap Provider (in the
case of the Equivalent Transaction).
Page 12
<PAGE>
ANNEXURE 2 - CLASS A NOTES - "SUBSTITUTE TRANSACTION"
Morgan Deal Number
<TABLE>
<S> <C>
Trade Date: [13 May 1999]
Effective Date: The Effective Date
shall be the date
specified in a
Substitution Notice given
by Morgan as Credit
Support Provider under and
in accordance with Section
21 of the Other Agreement.
The Effective Date shall
not occur if the
conditions in respect of
the Substitution Notice
have not been satisfied in
full in accordance with
the Other Agreement.
Termination Date: Final Maturity Date
(adjusted in accordance
with the [Modified]
Following Business Day
Convention)
</TABLE>
FLOATING INTEREST AMOUNTS
FLOATING AMOUNTS PAYABLE BY MORGAN:
These Floating Amounts are payable by Morgan unless there is, on any Floating
Rate Payer Payment Date, any reduction in Class A Interest resulting from a
reduction in A$ Class A Interest Amount pursuant to clause 6.17(a)(ii)(A) of the
Series Notice (as specified in a notice to Morgan by the Determination Time), in
which case the Floating Amount shall be reduced by the same proportion as the
reduction in the A$ Class A Interest Amount.
<TABLE>
<S> <C>
Floating Rate Payer: Morgan
Notional Amount: An amount equal to the total Invested Amount of
all Class A Notes as at
the first day of the
Interest Period ending on
but excluding the relevant
Floating Rate Payer
Payment Date
Floating Rate Payer Payment Dates: Each Payment Date on or after the Effective Date
up toand including the last Payment Date prior to
the Maturity Date, and the Termination Date
Floating Rate Option: USD-LIBOR-BBA
</TABLE>
Page 1
<PAGE>
<TABLE>
<S> <C>
Designated Maturity: Three months
Spread: Plus 0.XXXX percent
Floating Rate Day Count Fraction: Actual/360
Reset Dates: The first day of each Interest Period
Compounding: Inapplicable
</TABLE>
FLOATING AMOUNTS PAYABLE BY THE TRUSTEE:
These Floating Amounts are payable by the Trustee unless there is, on any
Floating Rate Payer Payment Date, any reduction in A$ Class A Interest Amount
pursuant to clause 6.17(a)(ii)(A) of the Series Notice (as specified in a notice
by the Trustee or the Trust Manager to Morgan by the Determination Time), in
which case, instead of the Floating Amount, the Trustee shall pay an amount
equal to the lesser A$ amount specified in that notice on that Floating Rate
Payer Payment Date.
<TABLE>
<S> <C>
Floating Rate Payer: Trustee
Notional Amount: An amount equal to the A$ Equivalent (applying
USD 0.XXXXXX) of the total Invested Amount of all
Class A Notes as at the first day of the Interest
Period ending on but excluding the relevant
Floating Rate Payer Payment Date
Floating Rate Payer Payment Dates: Each Payment Date on or after the Effective Date
up to and including the last Payment Date prior
to the Maturity Date, and the Termination Date
Floating Rate Option: AUD-BBR-BBSW
Designated Maturity: 90 days
Spread: Plus 0.XXXX percent
Floating Rate Day Count Fraction: Actual/365 (Fixed)
Reset Dates: The first day of each Interest Period
Compounding: Inapplicable
</TABLE>
Page 2
<PAGE>
EXCHANGES
INSTALMENT EXCHANGE
<TABLE>
<S> <C>
Instalment Exchange Date Each Payment Date on or after the Effective Date
(other than a Final Exchange Date)
Morgan Pays Instalment Exchange: An amount equal to the Class A Principal Payment
paid on the relevant Instalment Exchange Date
towards a reduction of the Principal Amount of
Class A Notes, as calculated by multiplying the
Trustee Instalment Exchange Payment on the
relevant Instalment Exchange Date by the exchange
rate of USD 0.XXXXXX
Trustee Pays Instalment Exchange: An amount equal to the amount expressed under
clause 6.14, 6.15 or 6.16 (as applicable) of the
Series Notice as being payable under a
Confirmation relating to Class A Notes plus any
amount payable under clause 6.11(a)(ii)(C) of the
Series Notice (together, the "Trustee Instalment
Exchange Payment") as specified in the notice
issued by the Trustee (or the Trust Manager) to
Morgan by the Determination Time in respect of
that Instalment Exchange Date
FINAL EXCHANGE:
Final Exchange Date: The earlier of the Termination Date and the Date
of the 10% Clean Up under clause 8.9(d) of the
Master Trust Deed as amended by the Series Notice
and the date of redemption of all the Class A
Notes for taxation or other reasons, adjusted in
accordance with the [Modified] Following Business
Day Convention
Morgan Pays Final Exchange: An amount equal to the aggregate Final Exchange
payable by the Trustee under this Confirmation,
multiplied by the exchange rate of USD 0.XXXXXX
</TABLE>
Page 3
<PAGE>
<TABLE>
<S> <C>
Trustee Pays Final Exchange: An amount equal to the aggregate amount expressed
under clause 6.14, 6.15 or 6.16 (as applicable)
of the Series Notice as being payable under a
Confirmation relating to Class A Notes plus any
amount payable under clause 6.11(a)(ii)(C) of the
Series Notice as specified in the Notice issued
by the Trustee (or the Trust Manager) to Morgan
by the Determination Time in respect of that
Final Exchange Date
Business Day Locations for Trustee: Sydney
Business Day Locations for Morgan: New York, London
Payments will be: Gross
</TABLE>
Page 4
<PAGE>
GLOSSARY
1. Terms defined in the Series Notice:
A$ Equivalent Invested Amount
Class A Initial Invested Amount Maturity Date
Class A Notes Payment Date
Closing Date Principal Payment
Interest Period Trust Manager
2. Terms defined in the Agreement (including 1991 ISDA Definitions) are:
Actual/360
Actual/365 (Fixed)
AUD-BBR-BBSW
[Modified] Following Business Day Convention
Other Agreement. For the avoidance of doubt, the Other Agreement is
the agreement between Westpac Banking Corporation as Party A, the
Trustee as Party B, Morgan as the Credit Support Provider to Party A and
the Manager, dated on or about the date of the Agreement, on the same
material terms as the Agreement.
Substitution Notice
USD-LIBOR-BBA
3. Terms defined in this Confirmation:
Agreement
Trustee
"Determination Time" means 5.00 pm Sydney time 4 Sydney
Business Days prior to the relevant Payment Date or other applicable
exchange date.
Morgan
Page 5
<PAGE>
ANNEXURE 3 - CLASS A NOTES -"EQUIVALENT-OTHER TRANSACTION"
Morgan Deal Number
<TABLE>
<S> <C>
Trade Date: [13 May 1999]
Effective Date: The Effective Date
shall be the date
specified in a
Substitution Notice given
by Morgan as Credit
Support Provider under and
in accordance with Section
21 of the Other Agreement.
The Effective Date shall
not occur if the
conditions in respect of
the Substitution Notice
have not been satisfied in
full in accordance with
the Other Agreement.
Termination Date: Final Maturity Date
(adjusted in accordance
with the [Modified]
Following Business Day
Convention)
</TABLE>
FLOATING INTEREST AMOUNTS
FLOATING AMOUNTS PAYABLE BY MORGAN:
These Floating Amounts are payable by Morgan unless there is, on any Floating
Rate Payer Payment Date, any reduction in Class A Interest resulting from a
reduction in A$ Class A Interest Amount pursuant to clause 6.17(a)(ii)(A) of the
Series Notice (as specified in a notice to Morgan by the Determination Time), in
which case the Floating Amount shall be reduced by the same proportion as the
reduction in the A$ Class A Interest Amount.
<TABLE>
<S> <C>
Floating Rate Payer: Morgan
Notional Amount: An amount equal to fifty (50) percent of the
total Invested Amount of all Class A Notes as at
the first day of the Interest Period ending on
but excluding the relevant Floating Rate Payer
Payment Date
Floating Rate Payer Payment Dates: Each Payment Date on or after the Effective Date
up toand including the last Payment Date prior to
Maturity Date, and the Termination Date
Floating Rate Option: USD-LIBOR-BBA
Page 1
<PAGE>
Designated Maturity: Three months
Spread: Plus O.XXXX percent
Floating Rate Day Count Fraction: Actual/360
Reset Dates: The first day of each Interest Period
Compounding: Inapplicable
</TABLE>
FLOATING AMOUNTS PAYABLE BY THE TRUSTEE:
These Floating Amounts are payable by the Trustee unless there is, on any
Floating Rate Payer Payment Date, any reduction in A$ Class A Interest Amount
pursuant to clause 6.17(a)(ii)(A) of the Series Notice (as specified in a notice
by the Trustee or Trust Manager to Morgan by the Determination Time), in which
case, instead of the Floating Amount, the Trustee shall pay an amount equal to
the lesser A$ amount specified in that notice on that Floating Rate Payer
Payment Date.
<TABLE>
<S> <C>
Floating Rate Payer: Trustee
Notional Amount: An amount equal to fifty (50) percent of the A$
Equivalent (applying USD 0.XXXXXX) of the total
Invested Amount of all Class A Notes as at the
first day of the Interest Period ending on but
excluding the relevant Floating Rate Payer
Payment Date
Floating Rate Payer Payment Dates: Each Payment Date on or after the Effective Date
up to and including the last Payment Date prior
to the Maturity Date, and the Termination Date
Floating Rate Option: AUD-BBR-BBSW
Designated Maturity: 90 days
Spread: Plus 0.XXXX percent
Floating Rate Day Count Fraction: Actual/365 (Fixed)
Reset Dates: The first day of each Interest Period
Compounding: Inapplicable
</TABLE>
Page 2
<PAGE>
Page 3
<PAGE>
EXCHANGES
Instalment Exchange
<TABLE>
<S> <C>
Instalment Exchange Date Each Payment Date on or after the Effective Date
(other than a Final Exchange Date)
Morgan Pays Instalment Exchange: An amount equal to fifty (50) percent of the
Class A Principal Payment paid on the relevant
Instalment Exchange Date towards a reduction of
the Principal Amount of Class A Notes, as
calculated by multiplying the Trustee Instalment
Exchange Payment on the relevant Instalment
Exchange Date by the exchange rate of USD 0.XXXXXX
Trustee Pays Instalment Exchange: An amount equal to fifty (50) percent of the
amount expressed under clause 6.14, 6.15 or 6.16
(as applicable) of the Series Notice as being
payable under a Confirmation relating to Class A
Notes plus any amount payable under clause
6.11(a)(ii)(C) of the Series Notice (together,
the "Trustee Instalment Exchange Payment") as
specified in the notice issued by the Trustee (or
the Trust Manager) to Morgan by the Determination
Time in respect of that Instalment Exchange Date
</TABLE>
Page 4
<PAGE>
<TABLE>
<S> <C>
FINAL EXCHANGE:
Final Exchange Date: The earlier of the Termination Date and the Date
of the 10% Clean Up under clause 8.9(d) of the
Master Trust Deed as amended by the Series Notice
and the date of redemption of all the Class A
Notes for taxation or other reasons, adjusted in
accordance with the [Modified] Following Business
Day Convention
Morgan Pays Final Exchange: An amount equal to fifty (50) percent of the
aggregate Final Exchange payable by the Trustee
under this Confirmation, multiplied by the
exchange rate of USD 0.XXXXXX
Trustee Pays Final Exchange: An amount equal to fifty (50) percent of the
aggregate amount expressed under clause 6.14,
6.15 or 6.16 (as applicable) of the Series Notice
as being payable under a Confirmation relating to
Class A Notes plus any amount payable under
clause 6.11(a)(ii)(C) of the Series Notice as
specified in the Notice issued by the Trustee (or
the Trust Manager) to Morgan by the Determination
Time in respect of that Final Exchange Date
Business Day Locations for Trustee: Sydney
Business Day Locations for Morgan: New York, London
Payments will be: Gross
</TABLE>
Page 5
<PAGE>
GLOSSARY
1. Terms defined in the Series Notice:
A$ Equivalent Invested Amount
Class A Initial Invested Amount Maturity Date
Class A Notes Payment Date
Closing Date Principal Payment
Interest Period Trust Manager
2. Terms defined in the Agreement (including 1991 ISDA Definitions) are:
Actual/360
Actual/365 (Fixed)
AUD-BBR-BBSW
[Modified] Following Business Day Convention
Other Agreement. For the avoidance of doubt, the Other
Agreement is the agreement between Westpac Banking Corporation as Party A,
the Trustee as Party B, Morgan as the Credit Support Provider to Party A and
the Manager, dated on or about the date of the Agreement, on the same
material terms as the Agreement.
Replaced Transaction
USD-LIBOR-BBA
3. Terms defined in this Confirmation:
Agreement
Trustee
"Determination Time" means 5.00 pm Sydney time 4 Sydney
Business Days prior to the relevant Payment Date or other applicable
exchange date.
Morgan
CREDIT SUPPORT PROVIDER PROVISIONS
Each Transaction under this Confirmation shall be capable of being specified as
a Replaced Transaction in accordance with the provisions of Section 21 of the
Agreement. Those provisions shall apply as further specified below.
1. Definitions for Credit Events
Page 6
<PAGE>
"CALCULATION AGENT" means the Credit Support Provider or such other party
designated as such for the Transaction. The Calculation Agent's calculations and
determinations shall be made in good faith, in a commercially reasonable manner
and be binding in the absence of manifest error;
"INITIAL PRICE" means, with respect to any Reference Obligation, the percentage
listed with respect thereto in the definition of Reference Obligation herein as
the Initial Price;
"INTEREST RATE ADJUSTMENT AMOUNT" means, with respect to any Reference
Obligation, the difference between (i) the Mark to Market Value and (ii) 100%
minus the Initial Price;
"MARK TO MARKET RATE" means the Mark to Market Rate specified in respect of
the Reference Obligation;
"MARK TO MARKET VALUE" means, in the determination of the Calculation Agent,
with respect to any Reference Obligation, on any day, the mark to market value
payable on that day (expressed as a percentage of the notional amount thereof),
of a hypothetical interest rate swap commencing on the Effective Date between a
hypothetical party ("Party X") and a counterparty with the highest long term
senior debt rating of each Rating Agency, which swap has a notional amount equal
to US$100,000,000 and under which Party X (i) receives the Mark to Market Rate
plus the Initial Spread and (ii) pays a fixed interest amount equal in amount
and timing to the coupons on the Reference Obligation (except a notional amount
of $100,000,000 shall be applied). If, under such swap, Party X would be due to
pay such mark to market value, Mark to Market Value will be negative and, if
Party X would be due to receive such mark to market value, the Mark to Market
Value will be positive.
"MARKET VALUE" means, in accordance with the Quotation Method, the percentage
equal to the arithmetic mean of quotations (exclusive of accrued but unpaid
interest and expressed as a percentage) obtained from Dealers with respect to a
Valuation Date in the manner provided below. In obtaining such price quotations
from Dealers, the Calculation Agent will request each Dealer to provide firm bid
and offer quotations for an aggregate amount of the Reference Obligation equal
to the Quotation Amount to the extent reasonably practicable as of the Valuation
Time on such Valuation Date. If more than three quotations are provided on such
date, the Market Value shall be the arithmetic mean of such quotations without
regard to the quotations having the highest and lowest values. If exactly three
quotations are provided, the Market Value shall be the quotation remaining after
disregarding the highest and lowest quotations. For this purpose, if more than
one quotation has the same highest value or lowest value, then one of such
quotations shall be disregarded. If exactly two quotations are provided, the
Market Value shall be the arithmetic mean of such quotations. If fewer than two
quotations are provided, then the Market Value shall be an amount as determined
by the Calculation Agent on the next Business Day on which at least two
quotations are provided by Dealers. If the Calculation Agent is unable to
calculate the Market Value prior to the fifth Business Day following the
applicable Valuation Date, then the Calculation Agent shall
Page 7
<PAGE>
determine the Market Value for such Valuation Date in its reasonable
discretion;
"PRICE DECLINE REQUIREMENT" means the product of 1.5% and the modified
duration of the Reference Obligation at the time of calculation;
"QUOTATION METHOD":
Mid-market means that only the arithmetic mean of the bid and offer quotations
provided by Dealers that have provided both bid and offer quotations shall be
used in the calculation of Market Value;
"REFERENCE OBLIGATION" means the obligation(s) as follows:
<TABLE>
<S> <C>
Issuer/Borrower: Morgan Guaranty Trust Company of New York
Maturity: [Specify]
X
Coupon: XX%
CUSIP/ISIN: CUSIP TT XX/ ISIN XS XX
Original Issue Amount: USDXX
Initial Price: X%
X
Initial Spread: X[OBJECT OMITTED]% U.S.Treasury Notes due XX/XX/XXXX plus X%;
X
Mark to Market Rate Yield to maturity of XX% U.S.Treasury Notes due XX/XX/XXXX
</TABLE>
Changes with respect to any Reference Obligation. In the event that the
aggregate outstanding principal amount of any Reference Obligation has, in the
opinion of the Calculation Agent, been materially reduced by redemption or
otherwise (other than due to any regularly scheduled amortization or
prepayments), then the Calculation Agent, after consultation with the parties,
shall identify a substitute obligation which ranks equal in priority of payment
with such Reference Obligation and is issued or guaranteed (as to both principal
and interest) by the same issuer and/or guarantor to replace the Reference
Obligation. Upon notice to the parties of a substitute obligation having been
identified by the Calculation Agent, such substitute obligation shall without
further action replace the Reference Obligation.
"SPECIFIED INDEBTEDNESS" means any obligation (whether present or future,
contingent or otherwise, as principal or surety or otherwise) in respect of
money borrowed or raised or under any finance lease, redeemable preference
share, letter of credit, futures contract, guarantee, indemnity or a transaction
of a type described in the last 6 lines of the definition of Specified
Transaction.
"THRESHOLD AMOUNT" means US$50,000,000
"VALUATION TIME" means 10.00am New York Time
Page 8
<PAGE>
2. The parties acknowledge that on the Effective Date of the Substitute
Transaction or the Equivalent Transaction, Party A shall pay to the Credit
Support Provider (in the case of the Substitute Transaction) or to the new
Currency Swap Provider (in the case of the Equivalent Transaction) the amount
equal to the amount (if a positive number) that hypothetically would have been
payable by Party A to Party B under Section 6(e)(i)(3) if:
(a) the Transaction had been terminated;
(b) an Early Termination Date had occurred on the Effective Date; and
(c) Section 21 had not applied in respect of the Transaction.
Any such amount shall be payable by Party A to, as the case may be, either the
Credit Support Provider in accordance with the provisions of the side agreement
between them dated on or about the Trade Date of this Transaction (in the case
of the Substitute Transaction), or the New Currency Swap Provider in accordance
with the relevant Master Agreement between Party A and the New Currency Swap
Provider (in the case of the Equivalent Transaction).
Page 9
<PAGE>
ACCESSION BY NEW CURRENCY SWAP PROVIDER
As specified in the Substitution Notice given by Morgan under the Other
Agreement, we agree to be the Credit Support Provider in relation to Morgan as
governed by the terms of the Agreement, in respect of the Transaction specified
by this Annexure 3, and we agree that all references in the Agreement and this
Transaction to "Credit Support Provider" shall be to us, and for consideration
which we acknowledge as having been received, we hereby agree to assume all the
rights and obligations as Credit Support Provider as and from the Effective Date
of this Transaction. The Agreement is attached as annexure A to this Accession
and the confirmation for the Transaction is attached as annexure B to this
Accession.
Agreed and accepted as the new Credit Support Provider:
By:
Name:
Title:
Agreed and confirmed as of the Effective Date of the Transaction specified in
this Annexure 3:
WESTPAC SECURITIES ADMINISTRATION LIMITED(ACN 000 049 472)
in its capacity as Party B
By:______________________________
Name:
Title:
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED (ACN 081 709 211)
in its capacity as Trust Manager
By:______________________________
Name:
Title:
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
in its capacity as Party A
By:______________________________
Name:
Title:
Page 10
<PAGE>
Exhibit 10.7
(Multicurrency--Cross Border) [LOGO]
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of __________ 1998
Westpac Banking Corporation Westpac Securities Administration Limited
(ARBN 007 457 141) (ACN 000 049 472) in its capacity as
- ------------------------------ and ---------------------------------------------
trustee of the Series 1999-1G WST Trust
and Westpac Securitisation Management Pty
Limited
have entered and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other confirming
evidence (each a "Confirmation") exchanged between the parties confirming those
Transactions.
Accordingly, the parties agree as follows: --
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions of
the Schedule and the other provisions of this Master Agreement, the Schedule
will prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purpose of the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the fact
that this Master Agreement and all Confirmations form a single agreement between
the parties (collectively referred to as this "Agreement"), and the parties
would not otherwise enter into any Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of this
Agreement.
(ii) Payments under this Agreement will be made on the due date for value
on that date in the place of the account specified in the relevant
Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the
required currency. Where settlement is by delivery (that is, other than by
payment), such delivery will be made for receipt on the due date in the
manner customary for the relevant obligation unless otherwise specified in
the relevant Confirmation or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to
(1) the condition precedent that no Event of Default or Potential Event of
Default with respect to the other party has occurred and is continuing,
(2) the condition precedent that no Early Termination Date in respect of
the relevant Transaction has occurred or been effectively designated and
(3) each other applicable condition precedent specified in this Agreement.
<PAGE>
(b) Change of Account. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a reasonable
objection to such change.
(c) Netting. If on any date amounts would otherwise be payable: --
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to make
payment or any such amount will be automatically satisfied and discharged and,
if the aggregate amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been payable by the other
party, replaced by an obligation upon the party by whom the larger aggregate
amount would have been payable to pay to the other party the excess of the
larger aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount
will be determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be made
in the Schedule or a Confirmation by specifying that subparagraph (ii) above
will not apply to the Transactions identified as being subject to the election,
together with the starting date (in which case subparagraph (ii) above will not,
or will cease to, apply to such Transactions from such date). This election may
be made separately for different groups of Transactions and will apply
separately to each pairing of Offices through which the parties make and receive
payments or deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless such
deduction or withholding is required by any applicable law, as modified by
the practice of any relevant governmental revenue authority, then in
effect. If a party is so required to deduct or withhold, then that party
("X") will: --
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to be
deducted or withheld (including the full amount required to be
deducted or withheld from any additional amount paid by X to Y under
this Section 2(d)) promptly upon the earlier of determining that
such deduction or withholding is required or receiving notice that
such amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified copy),
or other documentation reasonably acceptable to Y, evidencing such
payment to such authorities; and
(4) if such Tax is an Identifiable Tax, pay to Y, in addition to the
payment to which Y is otherwise entitled under this Agreement, such
additional amount as is necessary to ensure that the net amount
actually received by Y (free and clear of Indemnifiable Taxes,
whether assessed against X or Y) will equal the full amount Y would
have received had no such deduction or withholding been required.
However, X will not be required to pay any additional amount to Y to
the extent that it would not be required to be paid but for: --
(A) the failure by Y to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4(d); or
(B) the failure of a representation made by Y pursuant to
Section 3(f) to be accurate and true unless such failure would
not have occurred but for (I) any action taken by a taxing
authority, or brought in a court of competent jurisdiction, on
or after the date on which a Transaction is entered into
(regardless of whether such action is taken or brought with
respect to a party to this Agreement) or (II) a Change in Tax
Law.
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<PAGE>
(ii) Liability. if: --
(1) X is required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, to make any
deduction or withholding in respect of which X would not be required
to pay an additional amount to Y under Section 2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly against
X,
then, except to the extent Y has satisfied or then satisfies the liability
resulting from such Tax, Y will promptly pay to X the amount of such
liability (including any related liability for interest, but including any
related liability for penalties only if Y has failed to comply with or
perform any agreement contained in Section 4(a)(i), 4(a)(iii) or 4(d)).
(e) Default Interest; Other Amounts. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant Transaction,
a party that defaults in the performance of any payment obligation will, to the
extent permitted by law and subject to Section 6(c), be required to pay interest
(before as well as after judgement) on the overdue amount to the other party on
demand in the same currency as such overdue amount, for the period from (and
including) the original due date for payment to (but excluding) the date of
actual payment, at the Default Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed. If, prior to
the occurrence or effective designation of an Early Termination Date in respect
of the relevant Transaction, a party defaults in the performance of any
obligation required to be settled by delivery, it will compensate the other
party on demand if and to the extent provided for in the relevant Confirmation
or elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be deemed
to be repeated by each party on each date on which a Transaction is entered into
and, in the case of the representations in Section 3(f), at all times until the
termination of this Agreement) that: --
(a) Basic Representations.
(i) Status. It is duly organised and validly existing under the laws of
the jurisdiction of its organsiation or incorporation and, if relevant
under such laws, in good standing;
(ii) Powers. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party, to
deliver this Agreement and any other documentation relating to this
Agreement that it is required by this Agreement to deliver and to perform
its obligations under this Agreement and any obligations it has under any
Credit Support Document to which it is a party and has taken all necessary
action to authorise such execution, delivery and performance;
(iii) No Violation or Conflict. Such execution, delivery and performance
do not violate or conflict with any law applicable to it, any provision of
its constitutional documents, any order or judgement of any court or other
agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets;
(iv) Consents. All governmental and other consents that are required to
have been obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party have been obtained and are in full
force and effect and all conditions of any such consents have been
complied with; and
(v) Obligations Binding. Its obligations under this Agreement and any
Credit Support Document to which it is a party constitute its legal, valid
and binding obligations, enforceable in accordance with their respective
terms (subject to applicable bankruptcy, reorganisation, insolvency,
moratorium or similar laws affecting creditors' rights generally and
subject, as to enforceability, to equitable principles of general
application (regardless of whether enforcement is sought in a proceeding
in equity or at law)).
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<PAGE>
(b) Absence of Certain Events. No Event of Default or Potential Event of Default
or, to its knowledge, Termination Event with respect to it has occurred and is
continuing and no such event or circumstance would occur as a result of its
entering into or performing its obligations under this Agreement or any Credit
Support Document to which it is a party.
(c) Absence of Litigation. There is not pending, to its knowledge, threatened
against it or any of its Affiliates any action, suit or proceeding at law or in
equity or before any court, tribunal, governmental body, agency or official or
any arbitrator that is likely to affect the legality, validity or enforceability
against it of this Agreement or any Credit Support Document to which it is a
party or its ability to perform its obligations under this Agreement or such
Credit Support Document.
(d) Accuracy of Specified Information. All applicable information that is
furnished in writing by or on behalf of it to the other party and is identified
for the purpose of this Section 3(d) in the Schedule is, as of the date of the
information, true, accurate and complete in every material respect.
(e) Payer Tax Representation. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(e) is accurate and true.
(f) Payee Tax Representations. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(f) is accurate and true.
4. Agreements
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party: --
(a) Furnish Specified Information. It will deliver to the other party or, in
certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs: --
(i) any forms, documents or certificates relating to taxation specified in
the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation;
and
(iii) upon reasonable demand by such other party, any form or document
that may be required or reasonably requested in writing in order to allow
such other party or its Credit Support Provider to make a payment under
this Agreement or any applicable Credit Support Document without any
deduction or withholding for or on account of any Tax or with such
deduction or withholding at a reduced rate (so long as the completion,
execution or submission of such form or document would not materially
prejudice the legal or commercial position of the party in receipt of such
demand), with any such form or document to be accurate and completed in a
manner reasonably satisfactory to such other party and to be executed and
to be delivered with any reasonably required certification,
in each case by the date specified in the Schedule or such Confirmation or, if
none is specified, as soon as reasonably practicable.
(b) Maintain Authorisations. It will use all reasonable efforts to maintain in
full force and effect all consents of any governmental or other authority that
are required to be obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party and will use all reasonable efforts to
obtain any that may become necessary in the future.
(c) Comply with Laws. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to comply
would materially impair its ability to perform its obligations under this
Agreement or any Credit Support Document to which it is a party.
(d) Tax Agreement. It will give notice of any failure of a representation made
by it under Section 3(f) to be accurate and true promptly upon learning of such
failure.
(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax
levied or imposed upon it or in respect of its execution or performance of this
Agreement by a jurisdiction in which it is incorporated,
4
<PAGE>
organised, managed and controlled, or considered to have its seat, or in which a
branch or office through which it is acting for the purpose of this Agreement is
located ("Stamp Tax Jurisdiction") and will indemnify the other party against
any Stamp Tax levied or imposed upon the other part or in respect of the other
party's execution or performance of this Agreement by any such Stamp Tax
Jurisdiction which is not also a Stamp Tax Jurisdiction with respect to the
other party.
5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a party or, if
applicable, any Credit Support Provider of such party or any Specified Entity of
such party of any of the following events constitutes an event of default (an
"Event of Default") with respect to such party: --
(i) Failure to Pay or Deliver. Failure by the party to make, when due, any
payment under this Agreement or delivery under Section 2(a)(i) or 2(e)
required to be made by it if such failure is not remedied on or before the
third Local Business Day after notice of such failure is given to the
party;
(ii) Breach of Agreement. Failure by the party to comply with or perform
any agreement or obligation (other than an obligation to make any payment
under this Agreement or delivery under Section 2(a)(i) or 2(e) or to give
notice of a Termination Event or any agreement or obligation under Section
4(a)(i), 4(a)(iii) or 4(d)) to be complied with or performed by the party
in accordance with this Agreement if such failure is not remedied on or
before the thirtieth day after notice of such failure is given to the
party;
(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of such
party to comply with or perform any agreement or obligation to be
complied with or performed by it in accordance with any Credit
Support Document if such failure is continuing after any applicable
grace period has elapsed;
(2) the expiration or termination of such Credit Support Document or
the failing or ceasing of such Credit Support Document to be in full
force and effect for the purpose of this Agreement (in either case
other than in accordance with its terms) prior to the satisfaction
of all obligations of such party under each Transaction to which
such Credit Support Document relates without the written consent of
the other party; or
(3) the party or such Credit Support Provider disaffirms, disclaims,
repudiates or rejects, in whole or in part, or challenges the
validity of, such Credit Support Document;
(iv) Misrepresentation. A representation (other than a representation
under Section 3(e) or (f)) made or repeated or deemed to have been made or
repeated by the party or any Credit Support Provider of such party in this
Agreement or any Credit Support Document proves to have been incorrect or
misleading in any material respect when made or repeated or deemed to have
been made or repeated;
(v) Default under Specified Transaction. The party, any Credit Support
Provider of such party or any applicable Specified Entity of such party
(1) defaults under a Specified Transaction and, after giving effect to any
applicable notice requirement or grace period, there occurs a liquidation
of, an acceleration of obligations under, or an early termination of, that
Specified Transaction, (2) defaults, after giving effect to any applicable
notice requirement or grace period, in making any payment or delivery due
on the last payment delivery or exchange date of, or any payment on early
termination of, a Specified Transaction (or such default continues for at
least three Local Business Days if there is no applicable notice
requirement or grace period) or (3) disaffirms, disclaims, repudiates or
rejects, in whole or in part, a Specified Transaction (or such action is
taken by any person or entity appointed or empowered to operate it or act
on its behalf);
(vi) Cross Default. If "Cross Default" is specified in the Schedule as
applying to the party, the occurrence or existence of (1) a default, event
of default or other similar condition or event (however
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<PAGE>
described) in respect of such party, any Credit Support Provider of such
party or any applicable Specified Entity of such party under one or more
agreements or instruments relating to Specified Indebtedness of any of
them (individually or collectively) in an aggregate amount of not less
than the applicable Threshold Amount (as specified in the Schedule) which
has resulted in such Specified Indebtedness becoming, or becoming capable
at such time of being declared, due and payable under such agreements or
instruments, before it would otherwise have been due and payable or (2) a
default by such party, such Credit Support Provider or such Specified
Entity (individually or collectively) in making one or more payments on
the due date thereof in an aggregate amount of not less than the
applicable Threshold Amount under such agreements or instruments (after
giving effect to any applicable notice requirement or grace period);
(vii) Bankruptcy. The party, any Credit Support Provider of such party or
any applicable Specified Entity of such party: --
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger); (2) becomes insolvent or is unable to pay
its debts or fails or admits in writing its inability generally to
pay its debts as they become due; (3) makes a general assignment,
arrangement or composition with or for the benefit of its creditors;
(4) institutes or has instituted against it a proceeding seeking a
judgement of insolvency or bankruptcy or any other relief under any
bankruptcy or insolvency law or other similar law affecting
creditors' rights, or a petition is presented for its winding-up or
liquidation, and, in the case of any such proceeding or petition
instituted or presented against it, such proceeding or petition (A)
results in a judgement of insolvency or bankruptcy or the entry of
an order for relief or the making of an order for its winding-up or
liquidation or (B) is not dismissed, discharged, stayed or
restrained in each case within 30 days of the institution or
presentation thereof; (5) has a resolution passed for its
winding-up, official management or liquidation (other than pursuant
to a consolidation, amalgamation or merger); (6) seeks or becomes
subject to the appointment of an administrator, provisional
liquidator, conservator, receiver, trustee, custodian or other
similar official for it or for all or substantially all its assets;
(7) has a secured party take possession of all or substantially all
its assets or has a distress, execution, attachment, sequestration
or other legal process levied, enforced or sued on or against all or
substantially all its assets and such secured party maintains
possession, or any such process is not dismissed, discharged, stayed
or restrained, in each case within 30 days thereafter; (8) causes or
is subject to any event with respect to it which, under the
applicable laws of any jurisdiction, has an analogous effect to any
of the events specified in clauses (1) to (7) (inclusive); or (9)
takes any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the foregoing acts; or
(viii) Merger Without Assumption. The party or any Credit Support Provider
of such party consolidates or amalgamates with, or merges with or into, or
transfers all or substantially all its assets to, another entity and, at
the time of such consolidation, amalgamation, merger or transfer: --
(1) the resulting, surviving or transferee entity fails to assume
all the obligations of such party or such Credit Support Provider
under this Agreement or any Credit Support Document to which it or
its predecessor was a party by operation of law or pursuant to an
agreement reasonably satisfactory to the other party to this
Agreement; or
(2) the benefits of any Credit Support Document fail to extend
(without the consent of the other party) to the performance by such
resulting, surviving or transferee entity of its obligations under
this Agreement.
(b) Termination Events. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified Entity
of such party of any event specified below constitutes an Illegality if the
event is specified in (i) below, a Tax Event if the event is specified in (ii)
below or a Tax Event Upon Merger if the event is specified in (iii) below, and,
if specified to be applicable, a Credit Event
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Upon Merger if the event is specified pursuant to (iv) below or an Additional
Termination Event if the event is specified pursuant to (v) below: --
(i) Illegality. Due to the adoption of, or any change in, any applicable
law after the date on which a Transaction is entered into, or due to the
promulgation of, or any change in, the interpretation by any court,
tribunal or regulatory authority with competent jurisdiction of any
applicable law after such date, it becomes unlawful (other than as a
result of a breach by the party of Section 4(b)) for such party (which
will be the Affected Party): --
(1) to perform any absolute or contingent obligation to make a
payment or delivery or to receive a payment or delivery in respect
of such Transaction or to comply with any other material provision
of this Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of such party to
perform, any contingent or other obligation which the party (or such
Credit Support Provider) has under any Credit Support Document
relating to such Transaction;
(ii) Tax Event. Due to (x) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the date on
which a Transaction is entered into (regardless of whether such action is
taken or brought with respect to a party to this Agreement) or (y) a
Change in Tax Law, the party (which will be the Affected Party) will, or
there is a substantial likelihood that it will, on the next succeeding
Scheduled Payment Date (1) be required to pay to the other party an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount is required to be
deducted or withheld for or on account of a Tax (except in respect of
interest under Section 2(e), 6(d)(ii) or 6(e)) and no additional amount is
required to be paid in respect of such Tax under Section 2(d)(i)(4) (other
than by reason of Section 2(d)(i)(4)(A) or (B));
(iii) Tax Event Upon Merger. The party (the "Burdened Party") on the next
succeeding Scheduled Payment Date will either (1) be required to pay an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount has been deducted or
withheld for or on account of any Indemnifiable Tax in respect of which
the other party is not required to pay an additional amount (other than by
reason of Section 2(d)(i)(4)(A) or (B)), in either case as a result of a
party consolidating or amalgamating with, or merging with or into, or
transferring all or substantially all its assets to, another entity (which
will be the Affected Party) where such action does not constitute an event
described in Section 5(a)(viii);
(iv) Credit Event Upon Merger. If "Credit Event Upon Merger" is specified
in the Schedule as applying to the party, such party ("X"), any Credit
Support Provider of X or any applicable Specified Entity of X consolidates
or amalgamates with, or merges with or into, or transfers all or
substantially all its assets to, another entity and such action does not
constitute an event described in Section 5(a)(viii) but the
creditworthiness of the resulting, surviving or transferee entity is
materially weaker than that of X, such Credit Support Provider or such
Specified Entity, as the case may be, immediately prior to such action
(and, in such event, X or its successor or transferee, as appropriate,
will be the Affected Party); or
(v) Additional Termination Event. If any "Additional Termination Event" is
specified in the Schedule or any Confirmation as applying, the occurrence
of such event (and, in such event, the Affected Party or Affected Parties
shall be as specified for such Additional Termination Event in the
Schedule or such Confirmation).
(c) Event of Default and Illegality. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes an
Illegality, it will be treated as an Illegality and will not constitute an Event
of Default.
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6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an Event of
Default with respect to a party (the "Defaulting Party") has occurred and is
then continuing, the other party (the "Non-defaulting Party") may, by not more
than 20 days notice to the Defaulting Party specifying the relevant Event of
Default designate a day not earlier than the day such notice is effective as an
Early Termination Date in respect of all outstanding Transactions. If, however,
"Automatic Early Termination" is specified in the Schedule as applying to a
party, then an Early Termination Date in respect of all outstanding Transactions
will occur immediately upon the occurrence with respect to such party of an
Event of Default specified in Section 5(a)(vii)(1), (3), (5), (6) or, to the
extent analogous thereto, (8), and as of the time immediately preceding the
institution of the relevant proceeding or the presentation of the relevant
petition upon the occurrence with respect to such party of an Event of Default
specified in Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party, specifying the
nature of that Termination Event and each Affected Transaction and will
also give such other information about that Termination Event as the other
party may reasonably require.
(ii) Transfer to Avoid Termination Event. If either an Illegality under
Section 5(b)(i)(1) or a Tax Event occurs and there is only one Affected
Party, or if a Tax Event Upon Merger occurs and the Burdened Party is the
Affected Party, the Affected Party will, as a condition to its right to
designate an Early Termination Date under Section 6(b)(iv), use all
reasonable efforts (which will not require such party to incur a loss,
excluding immaterial, incidental expenses) to transfer within 20 days
after it gives notice under Section 6(b)(i) all its rights and obligations
under this Agreement in respect of the Affected Transactions to another of
its Offices or Affiliates so that such Termination Event ceases to exist.
If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period,
whereupon the other party may effect such a transfer within 30 days after
the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be subject
to and conditional upon the prior written consent of the other party,
which consent will not be withheld if such other party's policies in
effect at such time would permit it to enter into transactions with the
transferee on the terms proposed.
(iii) Two Affected Parties. If an Illegality under Section 5(b)(i)(1) or a
Tax Event occurs and there are two Affected Parties, each party will use
all reasonable efforts to reach agreement within 30 days after notice
thereof is given under Section 6(b)(i) on action to avoid that Termination
Event.
(iv) Right to Terminate. If: --
(1) a transfer under Section 6(b)(ii) or an agreement under Section
6(b)(iii), as the case may be, has not been effected with respect to
all Affected Transactions within 30 days after an Affected Party
gives notice under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon
Merger or an Additional Termination Event occurs, or a Tax Event
Upon Merger occurs and the Burdened Party is not the Affected Party,
either party in the case of an Illegality, the Burdened Party in the case
of a Tax Event Upon Merger, any Affected Party in the case of a Tax Event
or an Additional Termination Event if there is more than one Affected
Party, or the party which is not the Affected Party in the case of a
Credit Event Upon Merger or an Additional Termination Event if there is
only one Affected Party may, by not more than 20 days notice to the other
party and provided that the relevant Termination Event is then
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<PAGE>
continuing, designate a day not earlier than the day such notice is
effective as an Early Termination Date in respect of all Affected
Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given under Section
6(a) or (b), the Early Termination Date will occur on the date so
designated, whether or not the relevant Event of Default or Termination
Event is then continuing.
(ii) Upon the occurrence of effective designation of an Early Termination
Date, no further payments or deliveries under Section 2(a)(i) or 2(e) in
respect of the Terminated Transactions will be required to be made, but
without prejudice to the other provisions of this Agreement. The amount,
if any, payable in respect of an Early Termination Date shall be
determined pursuant to Section 6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and will
provide to the other party a statement (1) showing, in reasonable detail,
such calculations (including all relevant quotations and specifying any
amount payable under Section 6(e)) and (2) giving details of the relevant
account to which any amount payable to it is to be paid. In the absence of
written confirmation from the source of a quotation obtained in
determining a Market Quotation, the records of the party obtaining such
quotation will be conclusive evidence of the existence and accuracy of
such quotation.
(ii) Payment Date. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day that
notice of the amount payable is effective (in the case of an Early
Termination Date which is designated or occurs as a result of an Event of
Default) and on the day which is two Local Business Days after the day on
which notice of the amount payable is effective (in the case of an Early
Termination Date which is designated as a result of a Termination Event).
Such amount will be paid together with (to the extent permitted under
applicable law) interest thereon (before as well as after judgment) in
the Termination Currency, from (and including) the relevant Early
Termination Date to (but excluding) the date such amount is paid, at the
Applicable Rate. Such interest will be calculated on the basis of daily
compounding and the actual number of days elapsed.
(e) Payments on Early Termination. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the Schedule
of a payment measure, either "Market Quotation" or "Loss", and a payment method,
either the "First Method" or the "Second Method". If the parties fail to
designate a payment measure or payment method in the Schedule, it will be deemed
that "Market Quotation" or the "Second Method", as the case may be, shall apply.
The amount, if any, payable in respect of an Early Termination Date and
determined pursuant to this Section will be subject to any Set-off.
(i) Events of Default. If the Early Termination Date results from an Event
of Default: --
(1) First Method and Market Quotation. If the First Method and
Market Quotation apply, the Defaulting Party will pay to the
Non-defaulting Party the excess, if a positive number, of (A) the
sum of the Settlement Amount (determined by the Non-defaulting
Party) in respect of the Terminated Transactions and the Termination
Currency Equivalent of the Unpaid Amounts owing to the
Non-defaulting Party over (B) the Termination Currency Equivalent of
the Unpaid Amounts owing to the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply, the
Defaulting Party will pay to the Non-defaulting Party, if a positive
number, the Non-defaulting Party's Loss in respect of this
Agreement.
(3) Second Method and Market Quotation. If the Second Method and
Market Quotation apply, an amount will be payable equal to (A) the
sum of the Settlement Amount (determined by the
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Non-defaulting Party) in respect of the Terminated Transactions and
the Termination Currency Equivalent of the Unpaid Amounts owing to
the Non-defaulting Party less (B) the Termination Currency
Equivalent of the Unpaid Amounts owing to the Defaulting Party. If
that amount is a positive number, the Defaulting Party will pay it
to the Non-defaulting Party; if it is a negative number, the
Non-defaulting Party will pay the absolute value of that amount to
the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss apply, an
amount will be payable equal to the Non-defaulting Party's Loss in
respect of this Agreement. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting Party; if it is a
negative number, the Non-defaulting Party will pay the absolute
value of that amount to the Defaulting Party.
(iii) Termination Events. If the Early Termination Date results from a
Termination Event: --
(1) One Affected Party. If there is one Affected Party, the amount
payable will be determined in accordance with Section 6(e)(i)(3), if
Market Quotation applies, or Section 6(e)(i)(4), if Loss applies,
except that, in either case, references to the Defaulting Party and
to the Non-defaulting Party will be deemed to be references to the
Affected Party and the party which is not the Affected Party,
respectively, and, if Loss applies and fewer than all the
Transactions are being terminated, Loss shall be calculated in
respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties: --
(A) if Market Quotation applies, each party will determine a
Settlement Amount in respect of the Terminated Transactions,
and an amount will be payable equal to (I) the sum of (a)
one-half of the difference between the Settlement Amount of
the party with the higher Settlement Amount ("X") and the
Settlement Amount of the party with the lower Settlement
Amount ("Y") and (b) the Termination Currency Equivalent of
the Unpaid Amounts owing to X less (II) the Termination
Currency Equivalent of the Unpaid Amounts owing to Y; and
(B) if Loss applies, each party will determine its Loss in
respect of this Agreement (or, if fewer than all the
Transactions are being terminated, in respect of all
Terminated Transactions) and an amount will be payable equal
to one-half of the difference between the Loss of the party
with the higher Loss ("X") and the Loss of the party with the
lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X; if
it is a negative number, X will pay the absolute value of that
amount to Y.
(iii) Adjustment for Bankruptcy. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination" applies in
respect of a party, the amount determined under this Section 6(e) will be
subject to such adjustments as are appropriate and permitted by law to
reflect any payments or deliveries made by one party to the other under
this Agreement (and retained by such other party) during the period from
the relevant Early Termination Date to the date for payment determined
under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation applies an
amount recoverable under this Section 6(e) is a reasonable pre-estimate of
loss and not a penalty. Such amount is payable for the loss of bargain and
the loss of protection against future risks and except as otherwise
provided in this Agreement neither party will be entitled to recover any
additional damages as a consequence of such losses.
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7. Transfer
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of the
other party, except that: --
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all its assets to, another entity (but without prejudice to any
other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in any
amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be void.
8. Contractual Currency
(a) Payment in the Contractual Currency. Each payment under this Agreement will
be made in the relevant currency specified in this Agreement for that payment
(the "Contractual Currency"). To the extent permitted by applicable law, any
obligation to make payments under this Agreement in the Contractual Currency
will not be discharged or satisfied by any tender in any currency other than the
Contractual Currency, except to the extent such tender results in the actual
receipt by the party to which payment is owed, acting in a reasonable manner and
in good faith in converting the currency so tendered into the Contractual
Currency, of the full amount in the Contractual Currency of all amounts payable
in respect of this Agreement. If for any reason the amount in the Contractual
Currency so received falls short of the amount in the Contractual Currency
payable in respect of this Agreement, the party required to make the payment
will, to the extent permitted by applicable law, immediately pay such additional
amount in the Contractual Currency as may be necessary to compensate for the
shortfall. If for any reason the amount in the Contractual Currency so received
exceeds the amount in the Contractual Currency payable in respect of this
Agreement, the party receiving the payment will refund promptly the amount of
such excess.
(b) Judgments. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is rendered
(i) for the payment of any amount owing in respect of this Agreement, (ii) for
the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party is
entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the Contractual
Currency received by such party as a consequence of sums paid in such other
currency and will refund promptly to the other party any excess of the
Contractual Currency received by such party as a consequence of sums paid in
such other currency if such shortfall or such excess arises or results from any
variation between the rate of exchange at which the Contractual Currency is
converted into the currency of the judgment or order for the purposes of such
judgment or order and the rate of exchange at which such party is able, acting
in a reasonable manner and in good faith in converting the currency received
into the Contractual Currency, to purchase the Contractual Currency with the
amount of the currency of the judgment or order actually received by such party.
The term "rate of exchange" includes, without limitation, any premiums and costs
of exchange payable in connection with the purchase of or conversion into the
Contractual Currency.
(c) Separate Indemnities. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and independent
causes of action, will apply notwithstanding any indulgence granted by the party
to which any payment is owed and will not be affected by judgment being obtained
or claim or proof being made for any other sums payable in respect of this
Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it will be sufficient
for a party to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
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9. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communication and prior writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing evidenced by
a facsimile transmission) and executed by each of the parties or confirmed by an
exchange of telexes or electronic messages on an electronic messaging system.
(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive the
termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative and
not exclusive of any rights, powers, remedies and privileges provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in respect
of it) may be executed and delivered in counterparts (including by
facsimile transmission), each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of each
Transaction from the moment they agree to those terms (whether orally or
otherwise). A Confirmation shall be entered into as soon as practicable
and may be executed and delivered in counterparts (including by facsimile
transmission) or be created by an exchange of telexes or by an exchange of
electronic messages on an electronic messaging system, which in each case
will be sufficient for all purposes to evidence a binding supplement to
this Agreement. The parties will specify therein or through another
effective means that any such counterpart, telex or electronic message
constitutes a Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power or
privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege will
not be presumed to preclude any subsequent or further exercise of that right,
power or privilege or the exercise of any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
10. Offices; Multibranch Parties
(a) If Section 10(a) is specified in the Schedule as applying, each party that
enters into a Transaction through an Office other than its head or home office
represents to the other party that, notwithstanding the place of booking office
or jurisdiction of incorporation or organisation of such party, the obligations
of such party are the same as if it had entered into the Transaction through its
head or home office. This representation will be deemed to be repeated by such
party on each date on which a Transaction is entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of Transaction without prior written
consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office through
which it makes and receives payments or deliveries with respect to a Transaction
will be specified in the relevant Confirmation.
11. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including legal fees and
Stamp Tax, incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement or any Credit Support Document
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to which the Defaulting Party is a party or by reason of the early termination
of any Transaction, including, but not limited to, costs of collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice or
other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated: --
(i) if in writing and delivered in person or by courier, on the date it is
delivered;
(ii) if sent by telex, on the date the recipient's answerback is received;
(iii) if sent by facsimile transmission, on the date that transmission is
received by a responsible employee of the recipient in legible form (it
being agreed that the burden of proving receipt will be on the sender and
will not be met by a transmission report generated by the sender's
facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or the
equivalent (return receipt requested), on the date that mail is delivered
or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that electronic
message is received,
unless the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered (or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed in
accordance with the law specified an the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings relating to
this Agreement ("Proceedings"), each party irrevocably: --
(i) submits to the jurisdiction of the English courts, if this Agreement
is expressed to be governed by English law, or to the non-exclusive
jurisdiction of the courts of the State of New York and the United States
District Court located in the Borough of Manhattan an New York City, if
this Agreement is expressed to be governed by the laws of the State of New
York; and
(ii) waives any objection which it may have at any time to the laying of
venue of any Proceedings brought in any such court, waives any claim that
such Proceedings have been brought in an inconvenient forum and further
waives the right to object, with respect to such Proceedings, that such
court does not have any jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be governed
by English law, the Contracting States, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments Act 1982 or any modification, extension or
re-enactment thereof for the time being in force) nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) Service of Process. Each party irrevocably appoints the Process Agent (if
any) specified opposite its name in the Schedule to receive, for it and on its
behalf, service of process in any Proceedings. If for any
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reason any party's Process Agent is unable to act as such, such party will
promptly notify the other party and within 30 days appoint a substitute process
agent acceptable to the other party. The parties irrevocably consent to service
of process given in the manner provided for notices in Section 12. Nothing in
this Agreement will affect the right of either party to serve process in any
other manner permitted by law.
(d) Waiver of immunities. Each party irrevocably waives, to the fullest extent
permitted by applicable law, with respect to itself and its revenues and assets
(irrespective of their use or intended use), all immunity on the grounds of
sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any
court, (iii) relief by way of injunction, order for specific performance or for
recovery of property, (iv) attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment to which it or its
revenues or assets might otherwise be entitled in any Proceedings in the courts
of any jurisdiction and irrevocably agrees, to the extent permitted by
applicable law, that it will not claim any such immunity in any Proceedings.
14. Definitions
As used in this Agreement: --
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control" of
any entity or person means ownership of a majority of the voting power of the
entity or person.
"Applicable Rate" means: --
(a) in respect of obligations payable or deliverable (or which would have been
but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of either
party from and after the date (determined in accordance with Section 6(d)(ii))
on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which would
have been but for Section 2(a)(iii)) by a Non-defaulting Party, the Non-default
Rate; and
(d) in all other cases, the Termination Rate.
"Burdened Party" has the meaning specified in Section 5(b).
"Change in Tax Law" means the enactment, promulgation, execution or ratification
of, or any change in or amendment to, any law (or in the application or official
interpretation of any law) that occurs on or after the date on which the
relevant Transaction is entered into.
"consent" includes a consent, approval, action, authorisation, exemption,
notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is specified as
such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of funding the relevant amount plus 1% per annum.
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"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with Section
6(a) or 6(b)(iv).
"Event of Default" has the meaning specified in Section 5(a) and, if applicable,
in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"Indemnifiable Tax" means any Tax other than a Tax that would not be imposed in
respect of a payment under this Agreement but for a present or former connection
between the jurisdiction of the government or taxation authority imposing such
Tax and the recipient of such payment or a person related to such recipient
(including, without limitation, a connection arising from such recipient or
related person being or having been a citizen or resident of such jurisdiction,
or being or having been organised, present or engaged in a trade or business in
such jurisdiction, or having or having had a permanent establishment or fixed
place of business in such jurisdiction, but excluding a connection arising
solely from such recipient or related person having executed, delivered,
performed its obligations or received a payment under, or enforced, this
Agreement or a Credit Support Document).
"law" includes any treaty, law, rule or regulation (as modified, in the case of
tax matters, by the practice of any relevant governmental revenue authority) and
"lawful" and "unlawful" will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which commercial
banks are open for business (including dealings in foreign exchange and foreign
currency deposits) (a) in relation to any obligation under Section 2(a)(i), in
the place(s) specified in the relevant Confirmation or, if not so specified, as
otherwise agreed by the parties in writing or determined pursuant to provisions
contained, or incorporated by reference, in this Agreement, (b) in relation to
any other payment, in the place where the relevant account is located and, if
different, in the principal financial centre, if any, of the currency of such
payment, (c) in relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), in the city specified in the address for
notice provided by the recipient and, in the case of a notice contemplated by
Section 2(b), in the place where the relevant new account is to be located and
(d) in relation to Section 5(a)(v)(2), in the relevant locations for performance
with respect to such Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be its
total losses and costs (or gain, in which case expressed as a negative number)
in connection with this Agreement or that Terminated Transaction or group of
Terminated Transactions, as the case may be, including any loss of bargain, cost
of funding or, at the election of such party but without duplication, loss or
cost incurred as a result of its terminating, liquidating, obtaining or
reestablishing any hedge or related trading position (or any gain resulting from
any of them). Loss includes losses and costs (or gains) in respect of any
payment or delivery required to have been made (assuming satisfaction of each
applicable condition precedent) on or before the relevant Early Termination Date
and not made, except, so as to avoid duplication, if Section 6(e)(i)(1) or (3)
or 6(e)(ii)(2)(A) applies. Loss does not include a party's legal fees and
out-of-pocket expenses referred to under Section 11. A party will determine its
Loss as of the relevant Early Termination Date, or, if that is not reasonably
practicable, as of the earliest date thereafter as is reasonably practicable. A
party may (but need not) determine its Loss by reference to quotations of
relevant rates or prices from one or more leading dealers in the relevant
markets.
"Market Quotation" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an amount,
if any, that would be paid to such party (expressed as a negative number) or by
such party (expressed as a positive number) in consideration of an agreement
between such party (taking into account any existing Credit Support Document
with respect to the obligations of such party) and the quoting Reference
Market-maker to enter into a transaction (the "Replacement Transaction") that
would have the effect of preserving for such party the economic equivalent of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
by the parties under Section 2(a)(i) in respect of such Terminated Transaction
or group of Terminated Transactions that would, but for the occurrence of the
relevant Early Termination Date, have
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been required after that date. For this purpose, Unpaid Amounts in respect of
the Terminated Transaction or group or Terminated Transactions are to be
excluded but, without limitation, any payment or delivery that would, but for
the relevant Early Termination Date, have been required (assuming satisfaction
of each applicable condition precedent) after that Early Termination Date is to
be included. The Replacement Transaction would be subject to such documentation
as such party and the Reference Market-maker may, in good faith, agree. The
party making the determination (or its agent) will request each Reference
Market-maker to provide its quotation to the extent reasonably practicable as of
the same day and time (without regard to different time zones) on or as soon as
reasonably practicable after the relevant Early Termination Date. The day and
time as of which those quotations are to be obtained will be selected in good
faith by the party obliged to make a determination under Section 6(e), and, if
each party is so obliged, after consultation with the other. If more than three
quotations are provided, the Market Quotation will be the arithmetic mean of the
quotations, without regard to the quotations having the highest and lowest
values. If exactly three such quotations are provided, the Market Quotation will
be the quotation remaining after disregarding the highest and lowest quotations.
For this purpose, if more than one quotation has the same highest value or
lowest value, then one of such quotations shall be disregarded. If fewer than
three quotations are provided, it will be deemed that the Market Quotation in
respect of such Terminated Transaction or group of Terminated Transactions
cannot be determined.
"Non-default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the Non-defaulting Party (as certified by it) if
it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Office" means a branch or office of a party, which may be such party's head or
home office.
"Potential Event of Default" means any event which, with the giving of notice or
the lapse of time or both, would constitute an Event of Default.
"Reference Market-makers" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria that
such party applies generally at the time in deciding whether to offer or to make
an extension of credit and (b) to the extent practicable, from among such
dealers having an office in the same city.
"Relevant Jurisdiction" means, with respect to a party, the jurisdictions (a) in
which the party is incorporated, organised, managed and controlled or considered
to have its seat, (b) where an Office through which the party is acting for
purposes of this Agreement is located, (c) in which the party executes this
Agreement and (d) in relation to any payment, from or through which such payment
is made.
"Scheduled Payment Date" means a date on which a payment or delivery is to be
made under Section 2(a)(i) with respect to a Transaction.
"Set-off" means set-off, offset, combination of accounts, right of retention or
withholding or similar right or requirement to which the payer of an amount
under Section 6 is entitled or subject (whether arising under this Agreement,
another contract, applicable law or otherwise) that is exercised by, or imposed
on, such payer.
"Settlement Amount" means, with respect to a party and any Early Termination
Date, the sum of: --
(a) the Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without reference to any
Unpaid Amounts) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation cannot be determined or would not (in
the reasonable belief of the party making the determination) produce a
commercially reasonable result.
"Specified Entity" has the meaning specified in the Schedule.
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"Specified Indebtedness" means, subject to the Schedule, any obligation (whether
present or future, contingent or otherwise, as principal or surety or otherwise)
in respect of borrowed money.
"Specified Transaction" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into between one party to this Agreement (or any Credit Support Provider of such
party or any applicable Specified Entity of such party) and the other party to
this Agreement (or any Credit Support Provider of such other party or any
applicable Specified Entity of such other party) which is a rate swap
transaction, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions), (b) any combination of
these transactions and (c) any other transaction identified as a Specified
Transaction in this Agreement or the relevant confirmation.
"Stamp Tax" means any stamp, registration, documentation or similar tax.
"Tax" means any present or future tax, levy, impost, duty, charge, assessment or
fee of any nature (including interest, penalties and additions thereto) that is
imposed by any government or other taxing authority in respect of any payment
under this Agreement other than a stamp, registration, documentation or similar
tax.
"Tax Event" has the meaning specified in Section 5(b).
"Tax Event Upon Merger" has the meaning specified in Section 5(b).
"Terminated Transactions" means with respect to any Early Termination Date (a)
if resulting from a Termination Event, all Affected Transactions and (b) if
resulting from an Event of Default, all Transactions (in either case) in effect
immediately before the effectiveness of the notice designating that Early
Termination Date (or, if "Automatic Early Termination" applies, immediately
before that Early Termination Date).
"Termination Currency" has the meaning specified in the Schedule.
"Termination Currency Equivalent" means, in respect of any amount denominated in
the Termination Currency, such Termination Currency amount and, in respect of
any amount denominated in a currency other than the Termination Currency (the
"Other Currency"), the amount in the Termination Currency determined by the
party making the relevant determination as being required to purchase such
amount of such Other Currency as at the relevant Early Termination Date, or, if
the relevant Market Quotation or Loss (as the case may be), is determined as of
a later date, that later date, with the Termination Currency at the rate equal
to the spot exchange rate of the foreign exchange agent (selected as provided
below) for the purchase of such Other Currency with the Termination Currency at
or about 11:00 a.m. (in the city in which such foreign exchange agent is
located) on such date as would be customary for the determination of such a rate
for the purchase of such Other Currency for value on the relevant Early
Termination Date or that later date. The foreign exchange agent will, if only
one party is obliged to make a determination under Section 6(e), be selected in
good faith by that party and otherwise will be agreed by the parties.
"Termination Event" means an Illegality, a Tax Event or a Tax Event Upon Merger
or, if specified to be applicable, a Credit Event Upon Merger or an Additional
Termination Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean of the
cost (without proof or evidence of any actual cost) to each party (as certified
by such party) if it were to fund or of funding such amounts.
"Unpaid Amounts" owing to any party means, with respect to an Early Termination
Date, the aggregate of (a) in respect of all Terminated Transactions, the
amounts that became payable (or that would have become payable but for Section
2(a)(iii)) to such party under Section 2(a)(i) on or prior to such Early
Termination Date and which remain unpaid as at such Early Termination Date and
(b) in respect of each Terminated Transaction, for each obligation under Section
2(a)(i) which was (or would have been but for Section 2(a)(iii)) required to be
settled by delivery to such party on or prior to such Early Termination Date and
which has not been so settled as at such Early Termination Date, an amount equal
to the fair market
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<PAGE>
value of that which was (or would have been) required to be delivered as of the
originally scheduled date for delivery, in each case together with (to the
extent permitted under applicable law) interest, in the currency of such
amounts, from (and including) the date such amounts or obligations were or would
have been required to have been paid or performed to (but excluding) such Early
Termination Date, at the Applicable Rate. Such amounts of interest will be
calculated on the basis of daily compounding and the actual number of days
elapsed. The fair market value of any obligation referred to in clause (b) above
shall be reasonably determined by the party obliged to make the determination
under Section 6(e) or, if each party is so obliged, it shall be the average of
the Termination Currency Equivalents of the fair market values reasonably
determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
Westpac Securities Administration
Limited
Westpac Banking Corporation (ACN 000 049 472) in its capacity as
ARBN 007 457 141 trustee of the Series 1999-1G WST Trust
- ----------------------------- -----------------------------------------
(Name of Party) (Name of Party)
By: By:
------------------------- -------------------------
Name: Name:
Title: Title:
Date: Date:
Westpac Securitisation
Management Pty Limited
(ACN 081 709 211)
- -----------------------------
(Name of Party)
By:
-------------------------
Name:
Title:
Date:
18
<PAGE>
SCHEDULE
TO THE
ISDA MASTER AGREEMENT
DATED AS OF 13 MAY 1999
BETWEEN WESTPAC BANKING CORPORATION ("Party A")
WESTPAC SECURITIES ADMINISTRATION LIMITED AS TRUSTEE OF THE
SERIES 1999-1G WST TRUST ("PARTY B")
AND
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED ("TRUST MANAGER")
PART 1
TERMINATION PROVISIONS
In this Agreement:-
(a) "SPECIFIED ENTITY" is NOT applicable in relation to Party A and
Party B.
(b) The "BREACH OF AGREEMENT", CREDIT SUPPORT DEFAULT" and
"MISREPRESENTATION" provisions of Section 5(a)(ii), (iii) and (iv) will
NOT apply to Party A and Party B.
(c) The "DEFAULT UNDER SPECIFIED TRANSACTION" and "CROSS DEFAULT"
provisions of Section 5(a)(v) and (vi) will NOT apply to Party A and
Party B.
(d) "TERMINATION CURRENCY" means Australian Dollars.
(e) The "`BANKRUPTCY" provisions of Section 5(a)(vii) are replaced by "An
Insolvency Event has occurred in respect of the party". The occurrence
of an Insolvency Event in respect of Party B in its personal capacity
will not constitute an Event of Default PROVIDED THAT within thirty
Business Days of that occurrence, Party A and Party B are able to
procure the novation of this Agreement and all Transactions to a third
party in respect of which the Designated Rating Agencies confirm that
the novation will not cause a reduction or withdrawal of the rating of
the Notes.
(f) Section 5(a)(i) is amended to replace "third" with "tenth".
(g) The "MERGER WITHOUT ASSUMPTION" provisions of Section 5(a)(viii) will
NOT apply to Party A and Party B. The provisions of Sections
5(b)(ii)("TAX EVENT") and 5(b)(iii)("TAX EVENT UPON MERGER") will NOT
apply to Party A and Party B. The "CREDIT EVENT UPON MERGER" provisions
of Section 5(b)(iv) will NOT apply to Party A and Party B.
(h) An "ADDITIONAL TERMINATION EVENT" , set out in Part 5(i)(a) and (d) of
this Schedule, will apply.
(i) THE "AUTOMATIC EARLY TERMINATION" provision of Section 6(a) will NOT
apply to Party A and Party B. Any event which, upon its occurrence,
constitutes an Event of Default, is deemed NOT to be an essential term
of the Transaction so that the occurrence of any Event of Default shall
NOT be implied to constitute a repudiation of the Agreement. This does
not in any way restrict or limit the right of a Non-Defaulting Party
under section 6(a) to terminate following an Event of Default.
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(j) In the "TRANSFER TO AVOID TERMINATION EVENT" provision of Section
6(b)(ii), after the words "another of its Offices or Affiliates" on the
seventh line add "(in respect of which the Designated Rating Agencies
confirm that the transfer will not cause a reduction or withdrawal of
the rating of the Notes)".
(k) PAYMENTS ON EARLY TERMINATION For the purpose of Section 6(e) of this
Agreement:-
(i) Subject to paragraphs a) and b) below, Loss will
apply
(ii) The Second Method will apply
a) In respect of any Transaction that is described in its
Confirmation as a "Variable Rate Basis Swap", the Loss of each
party entitled to make a determination of its Loss under
Section 6(e) will be deemed to be zero; and
b) In respect of any Transaction that is, described in its
Confirmation as a "Fixed Rate Basis Swap", the Loss of each
party entitled to make a determination of its Loss under
Section 6(e) will be deemed to be that amount that would
result from the application of the "Market Quotation" payment
measure to the Transaction.
(l) In the "TRANSFER" provision of Section 7, add at the end of paragraph
(a) after the closing parenthesis following the word "Agreement";
"provided, in respect of Party A, that such other entity is an
entity in respect of which the Designated Rating Agencies
confirm that the transfer will not cause a reduction or
withdrawal of the rating of the Notes";
and add a new paragraph (c);
"(c) Party B may transfer to a Successor Trustee (as defined below)
or to avoid an Illegality as specified in Section 5(b)(i)".
(m) Add a new paragraph to Section 7, immediately below paragraph (c):
In the event that a trustee is appointed as a successor to Party B
under the Trust Deed ("SUCCESSOR TRUSTEE"), Party A undertakes that it
shall (unless, at the time the Successor Trustee is so appointed, Party
A is entitled to terminate the Transaction under Section 6, in which
case it may) novate to the Successor Trustee the Transaction on the
same terms or on other terms to be agreed between Party A, Party B and
the Successor Trustee, and give written notice to the Designated Rating
Agencies of such novation.
(n) Add a new Section 2(f) TRUSTEE PROVISIONS:
Party B enters into this Agreement in its capacity as Trustee of the
Trust. Clause 33.16 of the Trust Deed applies to this Agreement as if
set out in full. Clause 15 of the Security Trust Deed shall apply to
govern Party A's priority to moneys received from the sale of Assets or
other enforcement of the Charge under the Security Trust Deed (each as
defined in the Security Trust Deed).
(o) In the "AMENDMENTS" provision of Section 9(b) add at the end ",and
notified in writing to the Designated Rating Agencies ".
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<PAGE>
PART 2
TAX REPRESENTATIONS
(a) DEDUCTION OR WITHHOLDING FOR TAX. Section 2(d) is replaced with the
following section:
"All payments under this Agreement will be made subject to deduction or
withholding for or on account of any Tax. If a party is so required to
deduct or withhold, then that party ("X") will:
(i) promptly notify the other party ("Y") of such requirement;
(ii) pay to the relevant authorities the full amount required to be
deducted or withheld promptly upon the earlier of determining
that such deduction or withholding is required or receiving
notice that such amount has been assessed against Y;
(iii) promptly forward to Y an official (or a certified copy), or
other documentation reasonably acceptable to Y, evidencing
such payment to such authorities;
(iv) pay to Y the amount Y would have received had no deduction or
withholding been required less the amount of the deduction or
withholding paid by X under Section 2(d)(ii).
(b) PAYER TAX REPRESENTATION. For the purpose of Section 3(e), Party A and
Party B make the following representation:-
It is not required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, of any Relevant
Jurisdiction to make any deduction or withholding for or on account of
any Tax from any payment (other than interest under Section 2(e),
6(d)(ii) or 6(e) of this Agreement) to be made by it to the other party
under this Agreement. In making this representation, it may rely on:-
(i) the accuracy of any representations made by the other party
pursuant to Section 3(f);
(ii) the satisfaction of the agreement of the other party contained
in Section 4(a)(i) or 4(a)(iii) of this Agreement and the
accuracy and effectiveness of any document provided by the
other party pursuant to Section 4(a)(i) or 4(a)(iii); and
(iii) the satisfaction of the agreement of the other party contained
in Section 4(d),
PROVIDED that it shall not be a breach of this representation where
reliance is placed on clause (ii) and the other party does not deliver
a form or document under Section 4(a)(iii) by reason of material
prejudice to its legal or commercial position.
(c) PAYEE TAX REPRESENTATION. For the purpose of Section 3(f), Party A and
Party B make the representation specified below:-
"It is an Australian resident and does not derive the payments under
this Agreement in part or whole in carrying on business in a country
outside Australia at or through a permanent establishment of itself in
that country".
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<PAGE>
PART 3
DOCUMENTS TO BE DELIVERED
For the purpose of Section 4(a)(i) and (ii) of this Agreement, each party agrees
to deliver to the other as soon as reasonably practicable following a request by
the other party, any document or certificate reasonably required by a party in
connection with its obligations to make a payment under this Agreement which
would enable that party to make the payment free from any deduction or
withholding for or on account of Tax or as would reduce the rate at which the
deduction or withholding for or on account of Tax is applied to that payment.
PART 4
MISCELLANEOUS
(a) ADDRESS FOR NOTICES. For the purpose of Section 12(a):-
Address for notices or communications to Party A to each of the
following for all purposes::-
Address : Financial Markets Operations
Level 3, 255 Elizabeth Street
Sydney, NSW 2000
Attention : Manager, Global Derivative Operations
Fax No : (02) 9283 1724
Address for notices or communications to the Trust Manager:-
Address : Group Securitisation
Level 6, 60 Martin Place
Sydney, NSW 2000
Attention : Lucy Beretin
Fax No : (02) 9226 1732
Address for notices or communications to Party B:-
Address : Westpac Securities Administration Limited
5th Floor, 50 Pitt Street
Attention : Bob Hamilton
Fax No : (02) 9220 4113
For all purposes
(b) PROCESS AGENT. Party A and Party B do NOT appoint any Process Agents.
4
<PAGE>
(c) OFFICES. The provisions of Section 10(a) will NOT apply to this
Agreement.
(d) MULTIBRANCH PARTY. Party A is not a Multibranch Party and Party B is
not a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent is the Trust Manager, unless
specified in a relevant Confirmation.
(f) CREDIT SUPPORT DOCUMENT. - Details of any Credit Support Document:-
In relation to Party A: Nil
In relation to Party B: Security Trust Deed
(g) CREDIT SUPPORT PROVIDER. - Nil.
(h) GOVERNING LAW. This Agreement is governed by and construed in
accordance with the laws of the State of New South Wales, and Section
13(b)(i) is deleted and replaced with the following: "submits to the
non-exclusive jurisdiction of the courts of New South Wales and courts
of appeal from them."
(i) NETTING OF PAYMENTS. Section 2(c)(ii) of this Agreement WILL apply to
net Transactions specified in the same Confirmation, and will NOT apply
to net Transactions specified in different Confirmations.
(j) "AFFILIATE" will have the meaning specified in Section 14. For the
purpose of Section 3(c), Party A is DEEMED NOT to have any Affiliates.
PART 5
OTHER PROVISIONS
(a) The following definitions are incorporated into this Master Agreement
and any Confirmation:
- the 1991 ISDA Definitions (as published by the International
Swaps and Derivatives Association, Inc.) (as amended and
supplemented from time to time)
(known as the "ISDA Definitions").
(b) In the event of any inconsistency between any two or more of the
following documents, they shall take precedence over each other in the
following descending order:
(i) any Confirmation;
(ii) the Schedule to the Master Agreement;
(iii) the other provisions of the Master Agreement;
(iv) the ISDA Definitions.
(c) The parties acknowledge that telephone conversations between them may
be recorded and each party consents to such recordings being used as
evidence in court proceedings.
(d) In Section 2(a)(i) add the following sentence:
"Each payment will be by way of exchange for the corresponding
payment or payments payable by the other party".
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<PAGE>
(e) A new Section 2(a)(iv) is inserted as follows:
"(iv) The condition precedent in Section 2(a)(iii)(1) does not apply
to a payment due to be made to a party if it has satisfied all
its payment and delivery obligations under Section 2(a)(i) and
has no future payment or delivery obligations, whether
absolute or contingent under Section 2(a)(i)."
(f) The parties hereto agree that, for the purpose of Section 2(b) of the
Agreement, "CHANGE OF ACCOUNT", any new account so designated shall be
in the same tax jurisdiction as the original account.
(g) ADDITIONAL REPRESENTATIONS: In Section 3 add the following immediately
after paragraph (f):
"(g) NON ASSIGNMENT. It has not assigned (whether absolutely, in
equity or otherwise) or declared any trust over any of its
rights under any Transaction (other than, in respect of Party
B, the trusts created pursuant to the Trust Deed) and has not
given any charge over its assets, in the case of Party A, or
the assets of the Trust (other than as provided in the
Security Trust Deed), in the case of Party B.
(h) CONTRACTING AS PRINCIPAL. Each existing Transaction has been
entered into by Party A as principal and not otherwise and
each existing Transaction has been entered into by Party B in
its capacity as trustee of the Trust and not otherwise.
Party B also represents to Party A (which representations will be
deemed to be repeated by Party B on each date on which a Transaction is
entered into) that:
(i) TRUST VALIDLY CREATED. The Trust has been validly created and
is in existence at the date of this Agreement.
(ii) SOLE TRUSTEE. Party B has been validly appointed as trustee of
the Trust and is presently the sole trustee of the Trust.
(iii) NO PROCEEDINGS TO REMOVE. No notice has been given to Party B
and to Party B's knowledge no resolution has been passed, or
direction or notice has been given, removing Party B as
trustee of the Trust.
(iv) POWER. Party B has power under the Trust Deed to enter into
this Agreement and the Security Trust Deed in its capacity as
trustee of the Trust.
(v) GOOD TITLE. Party B is the owner of the assets of the Trust
and has power under the Trust Deed to mortgage or charge them
in the manner provided in the Security Trust Deed, and,
subject only to the Trust Deed, the Security Trust Deed and
any Security Interest (as defined in the Security Trust Deed)
permitted under the Security Trust Deed, those assets are free
from all other Security Interests."
(h) ADDITIONAL COVENANT: In Section 4 add a new paragraph as follows:
"(f) CONTRACTING AS PRINCIPAL. Party A will enter into all
Transactions as principal and not otherwise and Party B will
enter into Transaction in its capacity as trustee of the Trust
and not otherwise."
(i) (a) In respect of any Transaction that is described in its
Confirmation as a "Variable Rate Basis Swap", if at any time
Party A's short-term credit rating is downgraded below A-1+ in
the case of Standard & Poor's , A2 in the case of Moody's
Investors Service Inc. or F-1+ in the case of Fitch IBCA, it
must, within 3 days of such downgrading (at its cost alone)
either;
i) establish such collateralisation arrangements in
support of its obligations as are sufficient to allow
the Designated Rating Agencies to confirm that the
downgrade will not cause a reduction, withdrawal or
qualification of the rating of the Notes; or
ii) procure the novation of this Agreement to a
replacement Swap Provider acceptable to the
Designated Rating Agencies.
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The failure by Party A to establish the collateral arrangements
described in i) above, or to procure the novation of this Agreement as
described in ii) above will constitute an Additional Termination Event.
For the purposes of this Additional Termination Event, Party A will be
the Affected Party.
(b) In respect of any Transaction that is described in its Confirmation as
a "Fixed Rate Basis Swap", if at any time Party A's short-term credit
rating is downgraded below A-1+ in the case of Standard & Poor's, A2 in
the case of Moody's Investors Service Inc. or F-1+ in the case of Fitch
IBCA, Party A must, within 3 days of such downgrading, pay to Party B
the Swap Collateral Amount (determined from time to time in accordance
with paragraph c) below), which amount Party B must lodge in Authorised
Investments. For this purpose "Authorised Investments" are cash, bank
accepted bills of exchange rated A-1+ by Standard & Poor's, P1 by
Moody's Investors Service Inc. and F-1+ from Fitch IBCA, or other forms
of securities acceptable to the Designated Rating Agencies. Following
the initial payment of a Swap Collateral Amount within 3 days of its
downgrade, Party A will be obliged to pay any subsequent Swap
Collateral Amount by each Payment Date in respect of which, on the
relevant Determination Date, a Swap Collateral Amount is calculated as
being payable in accordance with paragraph (c) below.
If Party B determines that it will lodge the Swap Collateral Amount in
a cash account, Party B must as soon as is practicable establish and
maintain in the name of Party B an account with a Bank having a
short-term credit rating of A-1+ from Standard & Poor's, P-1 from
Moody's and F-1+ from Fitch IBCA or which otherwise satisfies the
requirements of those Designated Rating Agencies (the "Swap Collateral
Account").
Party B may only make withdrawals from the Swap Collateral Account or
liquidate the Authorised Investments if directed to do so by the Trust
Manager and then only for the purpose of:
i) entering into a substitute swap;
ii) refunding to Party A the amount of any reduction in the Swap
Collateral Amount as required to be held under the calculation
in paragraph (c) below;
iii) withdrawing any amount which has been incorrectly deposited
into the Collateral Account;
iv) paying financial institutions duty, bank accounts debit tax or
their equivalent payable in respect of the Collateral Account;
or
v) funding the amount of any payment due to be made by Party A
under this Agreement following the failure by Party A to make
that payment.
(c) For any Business Day, the "Swap Collateral Amount" in respect of a
Transaction will be either (1) the amount calculated by Party A in
accordance with sub-paragraphs i) - vi) below, or (2) such other higher
amount as is required by Standard & Poor's and Fitch IBCA to affirm the
rating on the Notes.
For the purposes of alternative (1) above, the Swap Collateral Amount
will be calculated as follows:
i) A repricing profile of the loans to which the Transaction
relates will be run as at the close of business on the
previous Business Day.
ii) The repricing duration (weighted average repricing term) of
the profile will be calculated using a 5% constant prepayment
rate and the spot mid-market zero coupon yield curve, which is
derived from the average of the four major banks' mid-market
inter-bank swap curves.
iii) The implied volatility for the term derived in ii) above will
be calculated using the Sydney Futures Exchange futures strip.
iv) The forward one month mid-market zero curve plus 5 basis
points will be derived.
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<PAGE>
v) A 99% degree of confidence will be applied to the
zero curve derived in iv) above (i.e 2.33 x
volatility).
vi) The profile run under i) above will be
marked-to-market using the curve described in v)
above.
The difference between the market value of the outcome of step
vi) and the Notional Value of the Transaction will represent
the Swap Collateral Amount. Step vi) will be repeated on a
monthly basis (on each Determination Date for the Transaction)
following the first determination of the Swap Collateral
Amount.
(d) The failure by Party A to establish the collateral
arrangements described in b) above will, at the discretion of
Party B, constitute an Additional Termination Event. For the
purposes of this Additional Termination Event, Party A will be
the Affected Party.
(e) If Party A has paid a Swap Collateral Amount to Party B in
accordance with paragraph (b) above and an Early Termination
Date is designated in respect of the Transaction to which that
Swap Collateral Amount relates, then notwithstanding any other
provision of this Agreement Party B will, as soon as is
practicable, repay that Swap Collateral Amount to Party A.
(j) CONFIRMATIONS. Notwithstanding the provisions of Section 9(e)(ii), each
Confirmation in respect of a Swap Transaction which is confirmed by
electronic messaging system, an exchange of telexes or an exchange of
facsimiles will be further evidenced by an original Confirmation signed
by the parties, however any failure to sign an original Confirmation
will not affect the validity or enforceability of any Swap Transaction.
(k) Section 12 is amended as follows:-
(i) In Section 12(a), insert "and settlement instructions
requiring payment to an entity other than the original
counterparty" after "Section 5 or 6" in line 2.
(ii) Section 12(a)(iii) is replaced with:
"(iii) if sent by facsimile transmission, on the date a
transmission report is produced by the machine from
which the facsimile was sent which indicates that the
facsimile was sent in its entirety to the facsimile
number of the recipient notified for the purpose of
this Section, unless the recipient notifies the
sender within one Local Business Day of the facsimile
being sent that the facsimile was not received in its
entirety and in legible form."
(l) In Section 14, the definition of "Market Quotation" is replaced with:
""MARKET QUOTATION" means, with respect to one or more
Terminated Transactions and a party making the determination,
an amount determined on the basis of quotations from Reference
Market-makers. Each quotation will take into account any
existing Credit Support Document with respect to the
obligations of such party.
Each quotation will be determined as the amount, if any, that
would be paid to such party (expressed as a negative number)
or by such party (expressed as a positive number) in
consideration of an agreement between such party and the
quoting Reference Market-maker to enter into a transaction
(the "Replacement Transaction") that would have the effect of
preserving for such party the economic equivalent of the
Future Obligations of both parties.
The Replacement Transaction would be subject to such
documentation as such party and the Reference Market-maker
may, in good faith, agree. The party making the determination
(or its agent) will request each Reference Market-maker to
provide its quotation to the extent reasonably practicable as
of the same day and time (without regard to different time
zones) on or as soon as reasonably practicable after the
relevant Early Termination Date. The day and time as of which
the quotation or quotations are to be obtained will be
selected in good faith by the party obliged to make a
determination under Section 6(e), and, if each party is so
obliged, after consultation with
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<PAGE>
the other.
If more than three quotations are provided, the Market
Quotation will be the arithmetic mean of the quotations,
without regard to the quotations having the highest and lowest
values. If exactly three such quotations are provided, the
Market Quotation will be the quotation remaining after
disregarding the highest and lowest quotations. For this
purpose, if more than one quotation has the same highest value
or lowest value, then one of such quotations shall be
disregarded. If fewer than three quotations are provided, it
will be deemed that the Market Quotation in respect of such
Terminated Transaction or group of Terminated Transactions
cannot be determined."
(m) In Section 14, add new definitions:
""FUTURE OBLIGATIONS" means in respect of a Terminated
Transaction, all payment or delivery obligations (whether the
underlying obligation was absolute or contingent and assuming
the satisfaction of each applicable condition precedent) of a
party under Section 2(a)(i) in respect of a Terminated
Transaction or group of Terminated Transactions, that would,
but for the occurrence of the relevant Early Termination Date,
have been required after that date. (For this purpose, Unpaid
Amounts in respect of the Terminated Transaction or group of
Terminated Transactions are to be excluded but, without
limitation, any payment or delivery that would, but for the
relevant Early Termination Date, have been required (assuming
satisfaction of each applicable condition precedent) after
that Early Termination Date is to be included)."
"TRUST DEED" means the Master Trust Deed dated 14 February 1997 and the
Series 1999- 1G WST Trust Notice dated 13 May, 1999 between Party B,
Party A and the Trust Manager, and each of the following expressions
shall have the meanings given to them in the Trust Deed:
"DESIGNATED RATING AGENCY"
"INSOLVENCY EVENT"
"NOTE"
"SECURITY TRUST DEED"
"SWAP PROVIDER"
"TRUST"
(n) Any reference to a:
(i) "Swap Transaction" in the 1991 ISDA Definitions is deemed to
be a reference to a "Transaction" for the purpose of
interpreting this Agreement or any Confirmation; and
(ii) "Transaction" in this Agreement or any Confirmation is deemed
to be a reference to a "Swap Transaction" for the purpose of
interpreting the 1991 ISDA Definitions.
(o) The "September 1992 Australian Addendum No. 10 - (as amended in March
1994) Netting of Schedule to Master Agreement of International Swaps
and Derivatives Association, Inc." is deemed to be incorporated in this
Agreement, except that in the event of any inconsistency between that
addendum and this Schedule or any Confirmation, the Confirmation or
this Schedule shall take precedence.
(p) TRUST DEED: The Parties acknowledge and agree that for the purposes of
the Trust Deed, this Agreement is a "Hedge Agreement" and Party A is a
"Swap Provider" and "Support Facility Provider".
(q) Restricted Remedies
Party A shall not, in connection with this Agreement:
(a) (judgment) obtain a judgement for the payment of money or
damages by Party B;
(b) (statutory demand) issue any demand under s459E(1) of the
Corporations Law (or any analogous provision under any other
law) against Party B;
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<PAGE>
(c) (winding up) apply for the winding up or dissolution of Party
B;
(d) (execution) levy or enforce any distress or other execution
to, on, or against any assets of Party B;
(e) (court appointed receiver) apply for the appointment by a
court of a receiver to any of the assets of Party B;
(f) (set-off or counterclaim) exercise or seek to exercise any
set-off or counterclaim against Party B;
(g) (administrator) appoint, or agree to the appointment, of any
administrator to Party B;
or take proceedings for any of the above and Party A waives
its right to make those application and take those
proceedings.
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SWAP CONFIRMATION
1. THE AGREEMENT, 1991 DEFINITIONS AND SERVICING AGREEMENT
This letter is a confirmation evidencing a complete and binding agreement
between Westpac Banking Corporation ("Party A") and Westpac Securities
Administration Limited ("Party B") as trustee of the Series 1999-1G WST Trust to
the terms of the Existing Business Fixed Rate Basis Swap below until the
Termination Date.
This Confirmation supplements, forms part of, and is subject to a Master
Agreement in the form published by ISDA between Party A and Party B dated 13 May
1999 (the "Agreement") as modified by the Schedule of the same date (the
"Schedule") and this Confirmation.
All other terms used and not defined in this Confirmation have the meaning given
in the Master Trust Deed ("Trust Deed") between Party B, Party A and The
Mortgage Company Pty Limited or the Series 1999-1G WST Trust Series Notice (the
"Series Notice") between Party B, Party A and Westpac Securitisation Management
Pty Limited.
2. THE EXISTING BUSINESS FIXED RATE BASIS SWAP
The terms of the Existing Business Fixed Rate Basis Swap are as follows:
2.1 AMOUNTS PAYABLE
A. PARTY A AGREES TO PAY PARTY B (the "Party A Swap Payment")
quarterly in arrears on each Payment Date in respect of the most
recently completed Collection Period, an amount equal to [(1) X (2) X
[(3)/365]], being
(1) Existing Business Fixed Home Loan Amount calculated on
each Determination Date,
(2) Existing Business Fixed Rate Basis Swap Rate calculated on
each Determination Date,
(3) the number of days in the most recently completed
Collection Period,
as each term is defined below.
B. PARTY B AGREES TO PAY PARTY A (the "Party B Swap Payment")
quarterly in arrears on each Payment Date in respect of the most
recently completed Collection Period, an amount equal to [(1) X (2) X
[(3)/365]], being
(1) Existing Business Fixed Home Loan Amount calculated on
each Determination Date,
1
<PAGE>
(2) the Weighted Average Customer Rate on each Determination
Date,
(3) the number of days in the most recently completed
Collection Period
as each term is defined below.
The Party A Swap Payment and the Party B Swap Payment are netted as specified in
the Schedule.
2.2 TERMS OF THE EXISTING BUSINESS FIXED RATE BASIS SWAPS
A. DEFINITIONS USED FOR PARTY A PAYMENTS
EXISTING BUSINESS FIXED RATE BASIS SWAP RATE
BBR+122 bp
where BBR* = Bank Bill Rate as at the Payment Date occurring in the
Collection Period to which that swap payment relates
122 bp = The margin fixed for the full term of the Existing
Business Fixed Rate Basis Swap
*EXCEPT for the initial Existing Business Fixed Rate Basis Swap rate calculated
on the first Determination Date, when
BBR = Bank Bill Rate on the Closing Date.
BANK BILL RATE
has the meaning given in the Series Notice
B. DEFINITIONS USED FOR PARTY B PAYMENTS
WEIGHTED AVERAGE CUSTOMER RATE
means E N (VOLI X CRI)
E n (AVOL)
where E = the sum of
VOLi = the Housing Loan Principal balance of
each Existing Business Fixed Rate Home Loan
on each day of the Collection Period ending
immediately prior to that Determination Date
CRi = the interest rate applied to each
Existing Business Fixed Rate Home Loan on
each day (n) during the Collection Period
ending immediately prior to that
Determination Date
AVOL = the aggregate Existing Business Fixed
Rate Home Loan balance as at each day (n)
during the Collection Period ending
immediately prior to that
2
<PAGE>
Determination Date n = each day in the
Collection Period.
C. DEFINITIONS USED GENERALLY
COLLECTION PERIOD
The Collection Period is the same as in the Series Notice, except for the First
Collection Period which commences on and includes the Closing Date.
EXISTING BUSINESS FIXED HOME LOAN AMOUNT
Is equal to the aggregate Housing Loan Principal balance of all Existing
Business Fixed Rate Home Loans as at the first day of the Collection Period
ending immediately prior to that Determination Date.
EXISTING BUSINESS FIXED RATE HOME LOAN
A Housing Loan which was earning a fixed rate of interest (excluding a
concessionary fixed rate of interest for 12 month or less) as at Cut Off Date
and is, on the first day of that Collection Period, a Housing Loan subject to a
fixed rate of interest (other than a loan subject to a concessional introductory
fixed rate of interest for 12 months or less) with a fixed rate period
commencing on or prior to Cut Off Date.
TERMINATION DATE means the earlier of:
(a) the date which is one month after the Notes have been redeemed in full
in accordance with the Series Notice; or
(b) the date on which Party B enters into a swap transaction, as previously
notified to the Designated Ratings Agency, and which the Designated
Ratings Agency has confirmed will not cause a reduction in or
withdrawal of the rating of the Notes, to replace this Swap
Transaction.
2.3 TRUSTEE PROVISIONS
(a) Subject to paragraph 2.3(b), but despite any other provision of this
Agreement, the liability of Party B to Party A under or in connection
with any Party B Swap Payment or any other unpaid amount of any
previous Party B Swap Payment is limited to the total amount available
for distribution to Party A under clause 6 of the Series Notice.
(b) (i) Nothing in paragraph 2.3(a) limits the liability of Party
B for any loss, cost or expense suffered or incurred by Party
A arising from Party B's fraud or gross negligence under or in
connection with this Agreement.
(ii) Failure by Party B to make all or any part of any Party B
Swap Payment does not of itself constitute fraud or gross
negligence on its part.
3
<PAGE>
2.4 OTHER
Payments to Party B: Electronic Transfer/ Bank Cheque
Payments to Party A: Electronic Transfer/ Bank Cheque
BANK CHARGES AND OTHER COSTS
Please note that all proceeds payable by either party during the term of this
Swap Transaction shall be free and clear of all bank charges and other costs in
the hand of the recipient.
Please confirm your acceptance of this Swap Transaction by signing and returning
this Confirmation to us by facsimile.
Executed documents will follow by mail.
Yours sincerely
Authorised signatory for Authorised signatory for
Westpac Banking Corporation Westpac Securities Administration Limited
Authorised signatory for
Westpac Banking Corporation
4
<PAGE>
SWAP CONFIRMATION
1. THE AGREEMENT, 1991 DEFINITIONS AND SERVICING AGREEMENT
This letter is a confirmation evidencing a complete and binding agreement
between Westpac Banking Corporation ("Party A") and Westpac Securities
Administration Limited ("Party B") as trustee of the WST Series 1999-1G WST
Trust to the terms of the New Business Fixed Rate Basis Swap below until the
Termination Date.
This Confirmation supplements, forms part of, and is subject to a Master
Agreement in the form published by ISDA between Party A and Party B dated 13 May
1999 (the "Agreement") as modified by the Schedule of the same date (the
"Schedule") and this Confirmation.
All other terms used and not defined in this Confirmation have the meaning given
in the Master Trust Deed ("Trust Deed") between Party B, Party A and The
Mortgage Company Pty Limited or the Series 1999-1G WST Trust Series Notice (the
"Series Notice") between Party B, Party A and Westpac Securitisation Management
Pty Limited.
2. THE NEW BUSINESS FIXED RATE BASIS SWAP
The terms of the New Business Fixed Rate Basis Swap are as follows:
2.1 AMOUNTS PAYABLE
A. PARTY A AGREES TO PAY PARTY B (the "Party A Swap Payment") quarterly in
arrears on each Payment Date in respect of the most recently completed
Collection Period, an amount equal to [(1) X (2) X [(3)/365]], being
(1) New Business Fixed Home Loan Amount calculated on each
Determination Date,
(2) New Business Fixed Rate Basis Swap Rate calculated on each
Determination Date,
(3) the number of days in the most recently completed
Collection Period,
as each term is defined below.
B. PARTY B AGREES TO PAY PARTY A (the "Party B Swap Payment")
quarterly in arrears on each Payment Date in respect of the most
recently completed Collection Period, an amount equal to [(1) X (2) X
[(3)/365]], being
(1) New Business Fixed Home Loan Amount calculated on each
Determination Date,
1
<PAGE>
(2) the Weighted Average Customer Rate on each Determination
Date,
(3) the number of days in the most recently completed
Collection Period,
as each term is defined below.
The Party A Swap Payment and the Party B Swap Payment are netted as specified in
the Schedule.
2.2 TERMS OF THE NEW BUSINESS FIXED RATE BASIS SWAPS
A. DEFINITIONS USED FOR PARTY A PAYMENTS
NEW BUSINESS FIXED RATE BASIS SWAP RATE
BBR+115 bp
where BBR* = Bank Bill Rate as at the Payment Date occurring in
the Collection Period to which that swap payment relates
115 bp = The margin fixed for the full term of the New Business Fixed
Rate Basis Swap
* EXCEPT for the initial New Business Fixed Rate Basis Swap rate calculated on
the first Determination Date, when
BBR = Bank Bill Rate on the Closing Date
BANK BILL RATE
has the meaning given in the Series Notice
B. DEFINITIONS USED FOR PARTY B PAYMENTS
WEIGHTED AVERAGE CUSTOMER RATE
means E N (VOLI X CRI)
E n (AVOL)
where E = the sum of
VOLi = the Housing Loan Principal balance of
each New Business Fixed Rate Home Loan on
each day of the Collection Period ending
immediately prior to that Determination Date
CRi = the interest rate applied to each New
Business Fixed Rate Home Loan on each day
(n) during the Collection Period ending
immediately prior to that Determination Date
AVOL = the aggregate New Business Fixed Rate
Home Loan balance as at each day (n) during
the Collection Period ending immediately
prior to that Determination Date. n = each
day in the Collection Period.
2
<PAGE>
C. DEFINITIONS USED GENERALLY
COLLECTION PERIOD
The Collection Period is the same as in the Series Notice, except for the First
Collection Period which commences on and includes the Closing Date.
NEW BUSINESS FIXED HOME LOAN AMOUNT
Is equal to the aggregate Housing Loan Principal balance of all New Business
Fixed Rate Home Loans as at the first day of the Collection Period ending
immediately prior to that Determination Date.
NEW BUSINESS FIXED RATE HOME LOAN
A Housing Loan which was (a) earning a variable rate of interest or a
concessionary fixed rate of interest for 12 months or less as at Cut Off Date
and is, on the first day of that Collection Period, a Housing Loan subject to
a fixed rate of interest (other than a loan subject to a concessional
introductory fixed rate of interest for 12 months or less) with a fixed rate
period commencing after the Cut Off Date or (b) earning a fixed rate of
interest (other than a loan subject to a concessionary fixed rate of interest
for 12 months or less) as at Cutoff and is, on the first day of that
Collection Period, a Housing Loan Subject to a new fixed rate of interest
(other than a loan subject to a concessional introductory fixed rate of
interest for twelve months or less) with a fixed rate period commencing after
the Cutoff Date.
TERMINATION DATE means the earlier of:
(a) the date which is one month after the Notes have been redeemed in full
in accordance with the Series Notice; or
(b) the date on which Party B enters into a swap transaction, as previously
notified to the Designated Ratings Agency, and which the Designated
Ratings Agency has confirmed will not cause a reduction in or
withdrawal of the rating of the Notes, to replace this Swap
Transaction.
2.3 TRUSTEE PROVISIONS
(a) Subject to paragraph 2.3(b), but despite any other provision of this
Agreement, the liability of Party B to Party A under or in connection
with any Party B Swap Payment or any other unpaid amount of any
previous Party B Swap Payment is limited to the total amount available
for distribution to Party A under clause 6 of the Series Notice.
(b) (i) Nothing in paragraph 2.3(a) limits the liability of Party
B for any loss, cost or expense suffered or incurred by Party
A arising from Party B's fraud or gross negligence under or in
connection with this Agreement.
(ii) Failure by Party B to make all or any part of any Party B Swap
Payment does not of itself constitute fraud or gross
negligence on its part.
3
<PAGE>
2.4 OTHER
Payments to Party B: Electronic Transfer/ Bank Cheque
Payments to Party A: Electronic Transfer/ Bank Cheque
BANK CHARGES AND OTHER COSTS
Please note that all proceeds payable by either party during the term of this
Swap Transaction shall be free and clear of all bank charges and other costs in
the hand of the recipient.
Please confirm your acceptance of this Swap Transaction by signing and returning
this Confirmation to us by facsimile.
Executed documents will follow by mail.
Yours sincerely
Authorised signatory for Authorised signatory for
Westpac Banking Corporation Westpac Securities Administration Limited
Authorised signatory for
Westpac Banking Corporation
4
<PAGE>
SWAP CONFIRMATION
1. THE AGREEMENT, 1991 DEFINITIONS AND SERVICING AGREEMENT
This letter is a confirmation evidencing a complete and binding agreement
between Westpac Banking Corporation ("Party A") and Westpac Securities
Administration Limited ("Party B") as trustee of the Series 1999-1G WST Trust to
the terms of the Variable Rate Basis Swap below until the Termination Date.
This Confirmation supplements, forms part of, and is subject to a Master
Agreement in the form published by ISDA between Party A and Party B dated 13
May, 1999 (the "Agreement") as modified by the Schedule of the same date (the
"Schedule") and this Confirmation.
All other terms used and not defined in this Confirmation have the meaning given
in the Master Trust Deed ("Trust Deed") between Party B, Party A and The
Mortgage Company Pty Limited or the Series 1999-1G WST Trust Series Notice (the
"Series Notice") between Party B, Party A and Westpac Securitisation Management
Pty Limited.
2. THE VARIABLE RATE BASIS SWAP
The terms of the Variable Rate Basis Swap are as follows:
2.1 AMOUNTS PAYABLE
A. PARTY A AGREES TO PAY PARTY B (the "Party A Swap Payment")
quarterly in arrears on each Payment Date in respect of the most
recently completed Collection Period, an amount equal to (1) X (2) X
[(3)/365], being
(1) the Variable Rate Home Loan Amount calculated on each
Determination Date,
(2) the Variable Rate Basis Swap Rate calculated on each
Determination Date,
(3) the number of days in the most recently completed
Collection Period,
as each term is defined below.
B. PARTY B AGREES TO PAY PARTY A (the "Party B Swap Payment")
quarterly in arrears on each Payment Date in respect of the most
recently completed Collection Period, an amount equal to [(1) X (2)] X
[(3)/365], being
(1) the Variable Rate Home Loan Amount calculated on each
Determination Date,
(2) the Weighted Average Variable Housing Rate on each
Determination Date,
1
<PAGE>
(3) the number of days in the most recently completed
Collection Period,
as each term is defined below.
The Party A Swap Payment and the Party B Swap Payment are netted as specified in
the Schedule.
2.2 TERMS OF THE VARIABLE RATE BASIS SWAP
A. DEFINITIONS USED FOR PARTY A PAYMENTS
VARIABLE RATE BASIS SWAP RATE
BBR + 120 bp
where BBR* = Bank Bill Rate as at the Payment Date occurring
in the Collection Period to which that swap payment relates
120 bp = The margin fixed for the full term of the Variable Rate
Basis Swap.
*EXCEPT for the initial Variable Rate Basis Swap rate calculated on the first
Determination Date, when BBR = Bank Bill Rate on the Closing Date.
BANK BILL RATE
has the meaning given in the Series Notice
B. DEFINITIONS USED FOR PARTY B PAYMENTS
WEIGHTED AVERAGE VARIABLE HOUSING RATE
means E N (VOLI X VHRI)
E n (AVOL)
where E = the sum of
VOLi = the Housing Loan Principal balance of
each Variable Rate Home Loan on each day (n)
during the Collection Period ending
immediately prior to that Determination Date
VHRi = the interest rate applied to each
Variable Rate Home Loan as at each day (n)
during the Collection Period ending
immediately prior to that Determination Date
AVOL = the aggregate Variable Rate Home Loan
balance as at each day (n) during the
Collection Period ending immediately prior
to that Determination Date n = each day in
the Collection Period.
2
<PAGE>
C. DEFINITIONS USED GENERALLY
VARIABLE RATE HOME LOAN AMOUNT
is equal to the aggregate Housing Loan Principal balance of all Variable Rate
Home Loans as at the first day of the Collection Period ending immediately prior
to that Determination Date.
VARIABLE RATE HOME LOAN
A Variable Rate Home loan which is, on the first day of that Collection Period,
a Housing Loan subject to a variable rate of interest or is otherwise subject to
a concessional introductory fixed rate of interest for 12 months or less set at
the discretion of Party A.
TERMINATION DATE means the earlier of:
(a) the date which is one month after the Notes have been redeemed in full
in accordance with the Series Notice; or
(b) the date on which Party B enters into a swap transaction, as previously
notified to the Designated Ratings Agency, and which the Designated
Ratings Agency has confirmed will not cause a reduction in or
withdrawal of the rating of the Notes, to replace this Swap
Transaction.
COLLECTION PERIOD
The Collection Period is the same as in the Series Notice, except for the First
Collection Period which commences on and includes the Closing Date.
2.3 TRUSTEE PROVISIONS
(a) Subject to paragraph 2.3(b), but despite any other provision of this
Agreement, the liability of Party B to Party A under or in connection
with any Party B Swap Payment or any other unpaid amount of any
previous Party B Swap Payment is limited to the total amount available
for distribution to Party A under clause 6 of the Series Notice.
(b) (i) Nothing in paragraph 2.3(a) limits the liability of Party
B for any loss, cost or expense suffered or incurred by Party
A arising from Party B's fraud or gross negligence under or in
connection with this Agreement.
(ii) Failure by Party B to make all or any part of any Party B
Swap Payment does not of itself constitute fraud or gross
negligence on its part.
3
<PAGE>
2.4 OTHER
Payments to Party B: Electronic Transfer/ Bank Cheque
Payments to Party A: Electronic Transfer/ Bank Cheque
BANK CHARGES AND OTHER COSTS
Please note that all proceeds payable by either party during the term of this
Swap Transaction shall be free and clear of all bank charges and other costs in
the hand of the recipient.
Please confirm your acceptance of this Swap Transaction by signing and returning
this Confirmation to us by facsimile.
Executed documents will follow by mail.
Yours sincerely
Authorised signatory for Authorised signatory for
Westpac Banking Corporation Westpac Securities Administration Limited
Authorised signatory for
Westpac Banking Corporation
4
<PAGE>
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a Trustee
pursuant to Section 305 (b)(2) ____
------------------------
CITIBANK, N.A.
(Exact name of trustee as specified in its charter)
13-5266470
(I.R.S. employer
identification no.)
399 Park Avenue, New York, New York 10043
(Address of principal executive office) (Zip Code)
-----------------------
Westpac Securities Administration
Limited in its capacity as
Trustee of the Series 1999-1G WST Trust
(Exact name of obligor as specified in its charter)
Australia
(State or other jurisdiction of
incorporation or organization)
c/o Citibank, N.A., London office
11 Old Jewry
London, EC2R 8DU, England
(Address of principal executive offices)
-------------------------
Class A Mortgage Backed Floating Rate Notes
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
NAME ADDRESS
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank of New York New York, NY
33 Liberty Street
New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. List of Exhibits.
List below all exhibits filed as a part of this Statement of
Eligibility.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as exhibits hereto.
Exhibit 1 - Copy of Articles of Association of the Trustee, as now in
effect. (Exhibit 1 to T-1 to Registration Statement No. 2-79983)
Exhibit 2 - Copy of certificate of authority of the Trustee to commence
business. (Exhibit 2 to T-1 to Registration Statement No. 2-29577).
Exhibit 3 - Copy of authorization of the Trustee to exercise corporate
trust powers. (Exhibit 3 to T-1 to Registration Statement No. 2-55519)
Exhibit 4 - Copy of existing By-Laws of the Trustee. (Exhibit 4 to T-1 to
Registration Statement No. 33-34988)
Exhibit 5 - Not applicable.
<PAGE>
Exhibit 6 - The consent of the Trustee required by Section 321(b) of the
Trust Indenture Act of 1939. (Exhibit 6 to T-1 to Registration Statement
No. 33-19227.)
Exhibit 7 - Copy of the latest Report of Condition of Citibank, N.A. (as of
March 31, 1998 - attached)
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
------------------
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Citibank, N.A., a national banking association organized and existing
under the laws of the United States of America, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York and State of New York, on the 30th day
of April, 1999.
CITIBANK, N.A.
By /s/ Marne Lidster
---------------------
Title: Vice President
<PAGE>
EXHIBIT 7
Charter No. 1461
Comptroller of the Currency
Northeastern District
REPORT OF CONDITION
CONSOLIDATING
DOMESTIC AND FOREIGN
SUBSIDIARIES OF
Citibank, N.A.
of New York in the State of New York, at the close of business on December 31,
1998, published in response to call made by Comptroller of the Currency, under
Title 12, United States Code, Section 161. Charter Number 1461 Comptroller of
the Currency Northeastern District.
ASSETS
Thousands
of dollars
Cash and balances due from de-
pository institutions:
Noninterest-bearing balances
and currency and coin $ 8,052,000
Interest-bearing balances 15,782,000
Held-to-maturity securities 0
Available-for-sale securities 37,330,000
Federal funds sold and
securities purchased under
agreements to resell 8,039,000
Loans and lease financing receivables:
Loans and Leases, net of un-
earned income $182,508,000
LESS: Allowance for loan
and lease losses 4,709,000
Loans and leases, net of un-
earned income, allowance,
and reserve $177,799,000
Trading assets 31,683,000
Premises and fixed assets (includ-
ing capitalized leases) 4,022,000
Other real estate owned 458,000
Investments in unconsolidated
subsidiaries and associated com-
panies 1,154,000
CustomersO liability to this bank
on acceptances outstanding 1,281,000
Intangible assets 3,504,000
Other assets 11,791,000
TOTAL ASSETS $300,895,000
LIABILITIES
Deposits:
In domestic offices $ 39,355,000
Noninterest-
bearing $ 13,199,000
Interest-
bearing 26,156,000
In foreign offices, Edge and
Agreement subsidiaries, and
IBFs 163,573,000
Noninterest-
bearing 10,803,000
Interest-
bearing 152,770,000
Federal funds purchased and
securities sold under agree-
ments to repurchase 9,752,000
Trading liabilities 30,753,000
Other borrowed money (includes mortgage
indebtedness and obligations under capitalized leases):
With a remaining maturity of one
year or less 13,308,000
With a remaining maturity of more
than one year through three years 1,528,000
With a remaining maturity of more
than three years 2,110,000
BankOs liability on acceptances ex-
ecuted and outstanding 1,382,000
Subordinated notes and
debentures 6,600,000
Other liabilities 12,802,000
TOTAL LIABILITIES $281,163,000
EQUITY CAPITAL
Perpetual preferred stock
and related surplus 0
Common stock $ 751,000
Surplus 9,397,000
Undivided profits and capital re-
serves 10,356,000
Net unrealized holding gains (losses)
on available-for-sale securities (113,000)
Cumulative foreign currency
translation adjustments (659,000)
TOTAL EQUITY CAPITAL $ 19,732,000
TOTAL LIABILITIES, LIMITED-
LIFE PREFERRED STOCK, AND
EQUITY CAPITAL $300,895,000
I, Roger W. Trupin, Controller of the above-
named bank do hereby declare that this
Report of Condition is true and correct to the
best of my knowledge and belief.
ROGER W. TRUPIN
CONTROLLER
We, the undersigned directors, attest to
the correctness of this Report of Condition.
We declare that it has been examined by us,
and to the best of our knowledge and belief
has been prepared in conformance with the
instructions and is true and correct.
PAUL J. COLLINS
JOHN S. REED
WILLIAM R. RHODES
DIRECTORS
<PAGE>
Exhibit 99.1
[LETTERHEAD OF ALLEN ALLEN & HEMSLEY]
29 April 1999
Westpac Securitisation Management Pty Limited
Level 25
60 Martin Plaza
Sydney NSW 2000
Dear Sirs:
WESTPAC SECURITISATION TRUST
SERIES 1999-1G WST TRUST
We have acted for Westpac Securitisation Management Pty Limited (WSM) in
connection with the Series 1999-1G WST Trust (the TRUST) constituted under the
Master Trust Deed dated 14 February 1997 between Westpac Securities
Administration Limited and the Mortgage Company Pty Limited, to which WSM has
acceded as trust manager with respect to the Trust.
Definitions in the Prospectus as filed with the Securities and Exchange
Commission under the US Securities Act of 1933 (the PROSPECTUS) apply in this
opinion. RELEVANT JURISDICTION means the Commonwealth of Australia or New South
Wales. No assumption or qualification in this opinion limits any other
assumption or qualification in it.
1. DOCUMENTS
We have examined a copy of the Prospectus.
2. ASSUMPTION
For the purposes of giving this opinion we have assumed that where a
document has been submitted to us in draft form it will be executed in
the form of that draft.
3. QUALIFICATIONS
Our opinion is subject to the qualification that we express no opinion
as to any laws other than the laws of each Relevant Jurisdiction as in
force at the
<PAGE>
ALLEN ALLEN
29 April 1999 & HEMSLEY
- --------------------------------------------------------------------------------
date of this opinion and, in particular we express no opinion as to the
Laws of England or the United States.
4. OPINION
Based on the assumptions and subject to the qualifications set out
above (which, except where expressly stated, apply equally to each of
the opinions below) we are of the following opinion:
(a) Any final and conclusive judgment of a court of the State of
New York, USA, or the United States Federal Court having
jurisdiction recognised by the Relevant Jurisdiction, in
respect of an obligation under a Class A Note, which is for a
fixed sum of money, would be enforceable by action in the
courts of each Relevant Jurisdiction without a re-examination
of the merits of the issues determined by the proceedings in
the New York court unless:
(i) the proceedings in the New York State court or the
United States Federal Court, as applicable, involved
a denial of the principles or natural justice;
(ii) the judgment is contrary to the public policy of the
Relevant Jurisdiction;
(iii) the judgment was obtained by fraud or duress or was
based on a clear mistake of fact;
(iv) the judgment is a penal or revenue judgment; or
(v) there has been a prior judgment in another court
between the same parties concerning the same issues
as are dealt with in the judgment or the New York
State Court or the United States Federal Court (as
applicable).
In particular, actions in a Relevant Jurisdiction (including
as original actions or as actions to enforce judgments of a
United States court) relating to civil liabilities predicated
on Federal securities laws of the United States may not be
enforceable in a Relevant Jurisdiction.
(b) A judgment by a court in a Relevant Jurisdiction may be given
in some cases only in Australian dollars.
We consent to the filing of this letter as an exhibit to the Registration
Statement on From S-11 filed with the Prospectus, without admitting that we are
"experts" within the meaning of the Securities Act of 1933 or the rules and
regulations of the commission issued under that Act with respect to any part of
the Registration Statement, including this exhibit.
Yours faithfully,
/s/ Allen Allen & Hemsley
- ------------------------------
ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
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