<PAGE>
As filed with the Securities and Exchange Commission on September 14, 1999
Registration No. 333-84977
==============================================================================
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
------
CRUSADE MANAGEMENT LIMITED
(ACN 072 715 916)
(Exact name of registrant as specified in its governing instruments)
Level 4
4-16 Montgomery Street
Kogarah NSW 2217
Australia
Telephone: 612 9952 1315
(Address, including zip code/post code, and telephone number, including area
code, of registrant's principal executive offices)
------
agent for service
CT Corporation System
111 Eighth Avenue
13th Floor
New York, NY 10011
Telephone: 212-590-9100
(Name, address, including zip code and telephone number,
including area code, of agent for service)
With a copy to:
<TABLE>
<S> <C> <C>
Paul Gibbeson Diane Citron, Esq. Daniel Rossner, Esq.
Company Secretary Mayer, Brown & Platt Brown & Wood LLP
Crusade Management Limited 1675 Broadway One World Trade Center
Level 4 New York, New York 10019 New York, New York 10048
4-16 Montgomery Street
Kogarah NSW 2217
Australia
</TABLE>
------
Approximate date of commencement of proposed sale to the public: As soon
as practicable 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. / /
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum Amount of
Title of Each Class of Amount to be Offering Price Aggregate Offering Registration
Securities to Be Registered Registered Per Unit Price* Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A-1 Mortgage Backed Floating Rate Notes........... $ 333,333.33 100% $ 333,333.33 $ 92.66
Class A-2 Mortgage Backed Floating Rate Notes........... $ 333,333.33 100% $ 333,333.33 $ 92.66
Class A-3 Mortgage Backed Floating Rate Notes........... $ 333,333.34 100% $ 333,333.34 $ 92.68
- -----------------------------------------------
Total Mortgage Backed Floating Rate Notes............... $1,000,000.00 - $1,000,000.00 $278.00**
- -----------------------------------------------
</TABLE>
* Estimated for the purpose of calculating the registration fee.
** $278.00 previously filed.
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.
==============================================================================
<PAGE>
CROSS REFERENCE SHEET
<TABLE>
<CAPTION>
Name and Caption in Form S-11 Caption in Prospectus
<S> <C> <C>
1. Forepart of Registration Statement and Front Cover of Registration Statement;
Outside Front Cover Page of Prospectus Outside Front Cover Page of Prospectus
2. Inside Front and Outside Back Cover Inside Front Cover Page of Prospectus;
Pages of Prospectus Outside Back Cover Page of Prospectus
3. Summary Information, Risk Factors and Summary; Risk Factors
Ratio of Earnings to Fixed Charges
4. Determination of Offering Price *
5. Dilution *
6. Selling Security Holders *
7. Plan of Distribution Plan of Distribution
8. Use of Proceeds Use of Proceeds
9. Selected Financial Data *
10. Management's Discussion and Analysis Description of the Trust;
of Financial Condition and Results Description of the Assets
of Operations of the Trust
11. General Information as to Registrant The Issuer Trustee, St.George Bank
and the Manager - The Manager
12. Policy with respect to Certain Description of the Class A
Activities Notes
13. Investment Policies of Registrant Description of the Transaction
Documents
14. Description of Real Estate Description of the Assets of the Trust;
St.George Residential Loan Program
15. Operating Data *
16. Tax Treatment of Registrant and United States Federal Income Tax
Its Security Holders Matters, 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 The Issuer Trustee, St.George Bank and the Manager
Beneficial Owners and Management
21. Directors and Executive Officers *
22. Executive Compensation *
23. Certain Relationships and *
Related Transactions
24. Selection, Management and Custody Description of the Class A Notes; Description of the Transaction
of Registrant's Investments Documents; St.George Residential Loan Program
25. Policies with Respect to Certain Description of the Class A Notes
Transactions
26. Limitations of Liability Description of the Transaction Documents
27. Financial Statements and Information *
28. Interests of Named Experts and Counsel *
29. Disclosure of Commission Position on Part II of Registration Statement
Indemnification for Securities Act
Liabilities
30. Quantitative and Qualitative Disclosures
about Market Risk
* Not Applicable
</TABLE>
<PAGE>
SUBJECT TO COMPLETION, DATED SEPTEMBER 14, 1999
US$994,000,000
CRUSADE GLOBAL TRUST NO. 1 OF 1999
[LOGO]
CRUSADE MANAGEMENT LIMITED (ACN 072 715 916)
Manager
ST.GEORGE BANK LIMITED (ACN 055 513 070)
Seller and Servicer
AXA TRUSTEES LIMITED (ACN 004 029 841)
Issuer Trustee
<TABLE>
<CAPTION>
Initial Underwriting Proceeds
Principal Initial Price to Discounts and to Issuer
Balance Interest Rate Public Commissions Trustee
<S> <C> <C> <C> <C> <C>
Class A-1 Notes..... $300,000,000 LIBOR + % % % %
Class A-2 Notes..... $569,000,000 LIBOR + % % % %
Class A-3 Notes..... $125,000,000 LIBOR + % % % %
Total $994,000,000 $ $ $
</TABLE>
St.George Bank will pay fees to the underwriters equal to .
The notes will be collateralized by a pool of housing loans secured by
properties located in Australia. The Crusade Global Trust No. 1 of 1999 will be
governed by the laws of New South Wales, Australia.
Investing in the notes involves risks. See "Risk Factors" on page 17.
The notes are not deposits and neither the notes nor the underlying
housing loans are insured or guaranteed by any governmental agency or
instrumentality. The notes represent obligations of the Crusade Global Trust No.
1 of 1999 only and do not represent obligations of or interests in, and are not
guaranteed by, Crusade Management Limited, St.George Bank Limited or AXA
Trustees Limited.
An application has been made to the London Stock Exchange Limited to
admit the Class A-1, Class A-2 and Class A-3 notes to the Official List.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these notes or determined if this
prospectus is accurate or complete. Any representation to the contrary is a
criminal offense.
Credit Suisse First Boston
Deutsche Banc Alex. Brown
J.P. Morgan & Co.
The date of this prospectus is September __, 1999
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
<PAGE>
You should rely only on the information contained in this prospectus. No
one has been authorized to provide you with any other, or different,
information.
The securities are not being offered in any state where the offer is not
permitted.
The Class A notes will be offered by the underwriters, subject to prior
sale, if and when they are issued to and accepted by them. The underwriters
reserve the right to reject an order in whole or in part and to withdraw,
cancel or modify the offer without notice. Delivery of the Class A notes in
book-entry form only will be made on or about September __, 1999.
<PAGE>
Table of Contents
<TABLE>
<CAPTION>
Page
<S> <C>
Disclaimers with Respect to Sales to Non-U.S. Investors ................. 3
Australian Disclaimers .................................................. 5
Summary ................................................................. 6
Structural Diagram ................................................... 7
Summary of the Notes ................................................. 8
Structural Overview .................................................. 9
Credit Enhancements .................................................. 9
Liquidity Enhancements ............................................... 10
Redraws .............................................................. 10
Limited Substitution ................................................. 11
Hedging Arrangements ................................................. 11
Optional Redemption .................................................. 11
The Housing Loan Pool ................................................ 12
Withholding Tax ...................................................... 13
U.S. Tax Status ...................................................... 13
Legal Investment ..................................................... 13
ERISA Considerations ................................................. 13
Book-Entry Registration .............................................. 13
Collections .......................................................... 13
Interest on the Notes ................................................ 14
Principal on the Notes ............................................... 14
Allocation of Cash Flows ............................................. 14
Distribution of Total Available Funds on a Payment Date .............. 15
Distribution of Principal Collections on a Payment Date .............. 16
Risk Factors ............................................................ 17
Capitalized Terms ....................................................... 26
U.S. Dollar Presentation ................................................ 26
The Issuer Trustee, St.George Bank and the Manager ...................... 26
The Issuer Trustee ................................................... 26
St.George Bank ....................................................... 27
The Manager .......................................................... 27
Description of the Trust ................................................ 28
St.George Bank Securitisation Trust Programme ........................ 28
Crusade Global Trust No. 1 of 1999 ................................... 28
Description of the Assets of the Trust .................................. 28
Assets of the Trust .................................................. 28
The Housing Loans .................................................... 29
Transfer and Assignment of the Housing Loans ......................... 29
Representations, Warranties and Eligibility Criteria ................. 29
Breach of Representations and Warranties ............................. 31
Substitution of Housing Loans ........................................ 31
Other Features of the Housing Loans .................................. 33
Details of the Housing Loan Pool ..................................... 33
Housing Loan Information ............................................. 34
St.George Residential Loan Program ...................................... 39
Origination Process .................................................. 39
Approval and Underwriting Process .................................... 39
St.George Bank's Product Types ....................................... 40
Special Features of the Housing Loans ................................ 41
Additional Features .................................................. 44
The Mortgage Insurance Policies ......................................... 45
General .............................................................. 45
Coverage ............................................................. 45
Timely Payment Cover ................................................. 45
Requirement and Restrictions ......................................... 45
Description of the Mortgage Insurer .................................. 46
Description of the Class A Notes ........................................ 46
General .............................................................. 46
Form of the Class A Notes ............................................ 46
Distributions on the Notes ........................................... 51
Key Dates and Periods ................................................ 51
Calculation of Total Available Funds ................................. 52
Available Income ..................................................... 52
Principal Draws ...................................................... 54
Liquidity Draws ...................................................... 54
Distribution of Total Available Funds ................................ 54
Interest on the Notes ................................................ 56
Excess Available Income .............................................. 57
Gross Principal Collections .......................................... 58
Principal Distributions .............................................. 60
Redraws .............................................................. 62
Application of Principal Charge Offs ................................. 62
Payments into US$ Account ............................................ 64
Payments out of US$ Account .......................................... 64
The Interest Rate Swaps .............................................. 64
The Currency Swap .................................................... 68
Withholding or Tax Deductions ........................................ 74
Redemption of the Notes for Taxation or Other Reasons ................ 74
Redemption of the Notes upon an Event of Default ..................... 75
Optional Redemption of the Notes ..................................... 75
Final Maturity Date .................................................. 75
Final Redemption of the Notes ........................................ 75
Termination of the Trust ............................................. 76
Prescription ........................................................ 77
Voting and Consent of Noteholders ................................... 77
Reports to Noteholders .............................................. 78
Description of the Transaction Documents ............................... 79
Trust Accounts ...................................................... 79
</TABLE>
1
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C>
Liquidity Reserve ................................................... 79
Modifications ....................................................... 79
The Issuer Trustee .................................................. 81
The Manager ......................................................... 84
The Note Trustee .................................................... 85
The Security Trust Deed ............................................. 86
The Redraw Facility ................................................. 94
The Servicing Agreement ............................................. 96
The Custodian Agreement ............................................. 101
The Seller Loan Agreement ........................................... 103
The Servicer ........................................................... 104
Servicing of Housing Loans .......................................... 104
Collection and Enforcement Procedures ............................... 104
Collection and Foreclosure Process .................................. 105
Servicer Delinquency Experience ..................................... 105
St.George Bank Year 2000 Program ....................................... 107
Prepayment and Yield Considerations .................................... 110
General ............................................................. 110
Prepayments ......................................................... 111
Weighted Average Lives .............................................. 112
Use of Proceeds ........................................................ 118
Legal Aspects of the Housing Loans ..................................... 118
General ............................................................. 118
Nature of Housing Loans as Security ................................. 118
Enforcement of Registered Mortgages ................................. 120
Penalties and Prohibited Fees ....................................... 121
Bankruptcy .......................................................... 122
Environmental ....................................................... 122
Insolvency Considerations ........................................... 123
Tax Treatment of Interest on Australian Housing Loans ............... 123
Consumer Credit Legislation ......................................... 123
United States Federal Income Tax Matters ............................... 124
General ............................................................. 125
Sale of Notes ....................................................... 125
Market Discount ..................................................... 125
Premium ............................................................. 126
Backup Withholding .................................................. 127
Australian Tax Matters ................................................. 127
Payments of Principal, Premiums and Interest ........................ 127
Profit on Sale ...................................................... 128
Goods and Services Tax .............................................. 129
Other Taxes ......................................................... 130
Enforcement of Foreign Judgments in Australia .......................... 131
Exchange Controls and Limitations ...................................... 131
ERISA Considerations ................................................... 132
Legal Investment Considerations ........................................ 133
Available Information .................................................. 133
Ratings of the Notes ................................................... 134
Plan of Distribution ................................................... 134
Underwriting ........................................................ 134
Offering Restrictions ............................................... 136
Listing and General Information ........................................ 137
Listing ............................................................. 137
Authorization ....................................................... 137
Litigation .......................................................... 137
Euroclear and Cedelbank ............................................. 137
Transaction Documents Available for Inspection ...................... 137
Consents to Opinions ................................................ 138
Announcement ........................................................... 139
Legal Matters .......................................................... 139
Glossary ............................................................... 140
Appendix I
Terms and Conditions of the Class A Notes ........................... I-1
</TABLE>
2
<PAGE>
Disclaimers with Respect to Sales to Non-U.S. Investors
This section applies only to the offering of the notes in countries other
than the United States of America. In the section of this prospectus entitled
"Disclaimers with Respect to Sales to Non-U.S. Investors", references to AXA
Trustees Limited are to that company in its capacity as trustee of the Crusade
Global Trust No. 1 of 1999, and not its personal capacity. AXA Trustees Limited
is not responsible or liable for this prospectus in the United States of
America. Crusade Management Limited is responsible and liable for this
prospectus in the United States of America.
Other than in the United States of America, no person has taken or will
take any action that would permit a public offer of the notes in any country or
jurisdiction. The notes may be offered non-publicly in other jurisdictions. The
notes may not be offered or sold, directly or indirectly, and neither this
prospectus nor any form of application, advertisement or other offering material
may be issued, distributed or published in any country or jurisdiction, unless
permitted under all applicable laws and regulations. The underwriters have
represented that all offers and sales by them have been in compliance, and will
comply, with all applicable restrictions on offers and sales of the Class A
notes. You should inform yourself about and observe any of these restrictions.
For a description of further restrictions on offers and sales of the notes, see
"Plan of Distribution."
This prospectus does not and is not intended to constitute an offer to sell
or a solicitation of any offer to buy any of the notes by or on behalf of AXA
Trustees Limited in any jurisdiction in which the offer or solicitation is not
authorized or in which the person making the offer or solicitation is not
qualified to do so or to any person to whom it is unlawful to make an offer or
solicitation in such jurisdiction.
For the purposes of the Financial Services Act 1986 of the United Kingdom
and the London Stock Exchange only:
o AXA Trustees Limited accepts responsibility for the
information contained in this prospectus. To the best of the
knowledge and belief of AXA Trustees Limited, which has taken
all reasonable care to ensure that such is the case, the
information contained in this prospectus is in accordance with
the facts and does not omit anything likely to affect the
import of that information.
o St.George Bank Limited accepts responsibility for the
information contained in "Summary - The Housing Loan Pool",
"The Issuer Trustee, St.George Bank and the Manager -
St.George Bank" and "- the Manager", "Description of the
Assets of the Trust", "St.George Residential Loan Program",
"Description of the Class A Notes - Form of the Class A Notes"
and "- The Interest Rate Swaps", except for the description
under the caption "Standby Swap Providers", "The Servicer" and
"St.George Bank Year 2000 Program". To the best of the
knowledge and belief of St.George Bank Limited, which has
taken all reasonable care to ensure that such is the case, the
information contained in those sections is in accordance with
the facts and does not omit anything likely to affect the
import of that information.
o Deutsche Bank AG, Sydney Branch, accepts responsibility for
the information contained in "Description of the Class A Notes
- The Interest Rate Swaps - Standby Swap Providers". To the
best of the knowledge and belief of Deutsche Bank AG, Sydney
Branch, which has taken all reasonable care to ensure that
such is the case, the information contained in that section
3
<PAGE>
is in accordance with the facts and does not omit anything
likely to affect the import of that information.
o Bankers Trust Corporation, New York, accepts responsibility
for the information contained in "Description of the Class A
Notes - The Currency Swap - Currency Swap Provider". To the
best of the knowledge and belief of Bankers Trust Corporation,
which has taken all reasonable care to ensure that such is the
case, the information contained in that section is in
accordance with the facts and does not omit anything likely to
affect the import of that information.
Except as described in the preceding four paragraphs, St.George Bank
Limited, in its individual capacity and as seller, servicer, fixed-floating rate
swap provider and basis swap provider, AXA Trustees Limited, in its personal
capacity, Crusade Management Limited, as manager, National Mutual Life Nominees
Limited, as security trustee, Bankers Trust Company, as note trustee, St.George
Custodial Pty Limited, as custodian, Deutsche Bank AG, Sydney Branch, as standby
fixed-floating rate swap provider and standby basis swap provider, Bankers Trust
Corporation, New York, as currency swap provider, Housing Loans Insurance
Corporation Pty Limited and the underwriters: do not accept any responsibility
for any information contained in this prospectus and have not separately
verified the information contained in this prospectus and make no
representation, warranty or undertaking, express or implied, as to the accuracy
or completeness of any information contained in this prospectus or any other
information supplied in connection with the notes.
Except as described in the preceding five paragraphs, St. George Bank
Limited, in its individual capacity and as seller, servicer, fixed-floating rate
swap provider and basis swap provider, AXA Trustees Limited, in its personal
capacity and as trustee, Crusade Management Limited, as manager, National Mutual
Life Nominees Limited, as security trustee, Bankers Trust Company, as note
trustee, St. George Custodial Pty Limited, as custodian, Deutsche Bank AG,
Sydney Branch, as standby fixed-floating rate swap provider, and standby basis
swap provider, Bankers Trust Corporation, New York, as currency swap provider,
Housing Loans Insurance Corporation pty Limited and the underwriters do not
recommend that any person should purchase any of the notes and do not accept any
responsibility or make any representation as to the tax consequences of
investing in the notes.
Each person receiving this prospectus acknowledges that he or she has not
relied on the entities listed in the preceding paragraph nor on any person
affiliated with any of them in connection with his or her investigation of the
accuracy of the information in this prospectus or his or her investment
decisions; acknowledges that this prospectus and any other information supplied
in connection with the notes is not intended to provide the basis of any credit
or other evaluation; acknowledges that the underwriters have expressly not
undertaken to review the financial condition or affairs of the trust or any
party named in the prospectus during the life of the notes; should make his or
her own independent investigation of the trust and the notes; and should seek
its own tax, accounting and legal advice as to the consequences of investing in
any of the notes.
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 notes. If such information or representation is given
or received, it must not be relied upon as having been authorized by AXA
Trustees Limited or any of the underwriters.
Neither the delivery of this prospectus nor any sale made in connection
with this prospectus shall, under any circumstances, create any implication
that:
4
<PAGE>
o there has been no material change in the affairs of the trust
or any party named in this prospectus since the date of this
prospectus or the date upon which this prospectus has been
most recently amended or supplemented; or
o any other information supplied in connection with the 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.
AXA Trustees Limited's liability to make payments of interest and principal
on the Class A notes is limited to its right of indemnity from the assets of the
trust. All claims against AXA Trustees Limited 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.
None of the rating agencies have been involved in the preparation of this
prospectus.
5
<PAGE>
Australian Disclaimers
o The notes do not represent deposits or other liabilities of
St.George Bank Limited or associates of St.George Bank
Limited.
o The holding of the notes is subject to investment risk,
including possible delays in repayment and loss of income and
principal invested.
o Neither St.George Bank Limited, any associate of St.George
Bank Limited, AXA Trustees Limited, National Mutual Life
Nominees Limited, Bankers Trust Company, as note trustee, nor
any underwriter in any way stands behind the capital value or
the performance of the notes or the assets of the trust except
to the limited extent provided in the transaction documents
for the trust.
o None of St.George Bank Limited, in its individual capacity and
as seller, servicer, basis swap provider and fixed-floating
rate swap provider, AXA Trustees Limited, Crusade Management
Limited, as manager, National Mutual Life Nominees Limited, as
security trustee, Bankers Trust Company, as note trustee,
St.George Custodial Pty Limited, as custodian, Deutsche Bank
AG, Sydney Branch, as standby fixed-floating rate swap
provider and standby basis swap provider, Bankers Trust
Corporation, New York, as currency swap provider or any of the
underwriters guarantees the payment of interest or the
repayment of principal due on the notes.
o None of the obligations of AXA Trustees Limited, in its
capacity as trustee of the trust, or Crusade Management
Limited, as manager, are guaranteed in any way by St.George
Bank Limited or any associate of St.George Bank Limited or by
AXA Trustees Limited or any associate of AXA Trustees Limited.
6
<PAGE>
Summary
This summary highlights selected information from this document and does
not contain all of the information that you need to consider in making your
investment decision. This summary contains an overview of some of the concepts
and other information to aid your understanding. All of the information
contained in this summary is qualified by the more detailed explanations in
other parts of this prospectus.
Parties to the Transaction
Trust:...................... Crusade Global Trust No.1 of 1999 Issuer
Trustee:.................... AXA Trustees Limited (ACN 004 029 841), in its
capacity as trustee of the Trust
Manager:.................... Crusade Management Limited (ACN 072 715 916),
4-16 Montgomery Street, Kogarah NSW 2217
612-9320-5605
Note Trustee:............... Bankers Trust Company Security
Trustee:.................... National Mutual Life Nominees Limited
(ACN 004 387 133)
Seller:..................... St.George Bank Limited (ACN 055 513 070)
Servicer:................... St.George Bank Limited
Custodian:.................. St.George Custodial Pty Limited (ACN 003 017 411)
Principal Paying Agent:..... Midland Bank plc. Midland Bank plc is expected to
change its name to HSBC Bank plc on
September 27, 1999.
Calculation Agent:.......... Midland Bank plc
Residual Beneficiary:....... Crusade Management Limited
Underwriters:............... Credit Suisse First Boston Corporation
Deutsche Bank Securities Inc.
J.P. Morgan Securities Inc.
Listing Agent:.............. Credit Suisse First Boston Limited
Redraw Facility Provider:... St.George Bank Limited
Mortgage Insurer:........... Housing Loans Insurance Corporation
Pty Limited (ACN 071 466 334)
Fixed-Floating Rate Swap
Provider:................... St.George Bank Limited
Standby Fixed-Floating Rate
Swap Provider:.............. Deutsche Bank AG, Sydney Branch
Basis Swap Provider:........ St.George Bank Limited
Standby Basis Swap Provider: Deutsche Bank AG, Sydney Branch
Currency Swap Provider:..... Bankers Trust Corporation, New York
Rating Agencies:............ Fitch IBCA (Australia) Pty Limited
Moody's Investors Service, Inc.
Standard & Poor's Ratings Group
7
<PAGE>
<TABLE>
<S> <C>
Structural Diagram
-----------------
SELLER
St. George Bank
Limited
-----------------
|
Payments from the | Equitable assignment
housing loans | of housing loans
\|/
-------------------------------------
| |
| |
| ISSUER TRUSTEE |
| AXA Trustees Limited |
- -------------------- | |
MANAGER | | ------------------------------- |
Crusade Management |------| | | First ranking ----------------------
Limited | | | | | floating charge \| SECURITY TRUSTEE
- -------------------- | | |-------------------------| National Mutual Life
- -------------------- | | | | over the assets /| Nominees Limited
SERVICER | | | | | of the Trust ----------------------
St. George Bank |------| | |
Limited | | | | | Payments from -----------------------
- -------------------- | | Crusade |/ | Mortgage | MORTGAGE INSURER
- -------------------- | | Global |--------------------------| Housing Loan
CUSTODIAN | | | Trust |\ | Insurance | Insurance Corporation
St. George Custodial|------| No. 1 | | Policies | Pty Limited
Pty Limited | | | of | | -----------------------
- -------------------- | | 1999 | | ---------------------
| | | | | RESIDUAL
- -------------------- | | | | \| BENEFICIARY
REDRAW FACILITY | | | |--------------------------| Crusade
PROVIDER | | | | | /| Management Limited
St. George Bank |------| | | ---------------------
Limited | | | | | ---------------------
- -------------------- | | | | Payments on \|
| | |--------------------------| Class B noteholders
- -------------------- | | | | the Class B notes /|
FIXED-FLOATING | | | | | ---------------------
RATE SWAP | | | | | ------------------
PROVIDER |------| | | | |
St. George Bank | | | |--------------------------| Class A Notes ----
Limited | | ------------------------------- | | | |
- -------------------- --------|--------------------|------- ------------------ |
| | Payments | on the | |
| | Class A | notes | |
| | | | |
| | \|/ | |
- -------------------- ----------------- ----------------- | |
STANDBY FIXED- BASIS SWAP CURRENCY SWAP ------------------ |
FLOATING RATE PROVIDER PROVIDER NOTE TRUSTEE |
SWAP PROVIDER St. George Bank Morgan Guaranty Bankers Trust |
Deutsche Bank AG, Limited Trust Company Company |
Sydney Branch ----------------- of New York ------------------ |
- -------------------- | ---------------- |
| | |
| \|/ |
----------------- --------------------- |
STANDBY BASIS PRINCIPAL PAYING |
SWAP PROVIDER AGENT |
Deutsche Bank AG, Midland Bank plc |
Sydney Branch --------------------- |
----------------- | |
\|/ |
------------------ |
THE DEPOSITARY | |
TRUST COMPANY |-----------------------------------------
CLEARING SYSTEM |
------------------
|
\|/
------------------
Class A
Noteholders
------------------
</TABLE>
8
<PAGE>
Summary of the Notes
The issuer trustee will also issue Class B notes collateralized by the same
pool of housing loans. The Class B notes have not been registered in the United
States and are not being offered by this prospectus. The term "notes" will mean
the Class A notes and the Class B notes when used in this prospectus.
<TABLE>
<CAPTION>
Class A-1 Class A-2 Class A-3 Class B
--------- --------- --------- -------
<S> <C> <C> <C> <C>
A$ Equivalent of
Initial Principal Balance US$300,000,000 US$569,000,000 US$125,000,000 US$6,000,000
% of Total: 30.00% 56.90% 12.50% 0.60%
Anticipated Ratings:
Fitch IBCA
(Australia) Pty
Limited AAA AAA AAA AAA
Moody's Investors
Service, Inc. Aaa Aaa Aaa Aa1
Standard & Poor's
Ratings Group AAA AAA AAA AAA
Interest Rate up to and three-month three-month three-month three-month
including the quarterly LIBOR + % LIBOR + % LIBOR + % Australian bank
payment date in bill rate + %
November, 2006:
Interest Rate after three-month three-month three-month three-month
the quarterly payment LIBOR + % LIBOR + % LIBOR + % Australian bank
date in November, 2006: bill rate + %
Interest Accrual
Method: actual/360 actual/365
<CAPTION>
<S> <C>
Quarterly Payment 15th day or, if the 15th day is not a business day,
Dates: then the next business day, unless that business day
falls in the next calendar month, in which case the
quarterly payment date will be the preceding business
day, of each of November, February, May and August,
beginning in November, 1999
<CAPTION>
<S> <C> <C> <C> <C>
Final Scheduled The quarterly The quarterly The quarterly The quarterly
Quarterly payment date payment date payment date payment date
Payment Date* falling in falling falling in falling in
August, 2009 in May, 2021 February, 2030 February, 2030
Final Maturity Date: The quarterly The quarterly The quarterly The quarterly
payment date payment date payment date payment date
falling in falling in falling in falling in
February, 2030 February, 2030 February, 2030 February, 2030
Clearance/Settlement: DTC/Euroclear/Cedelbank Offered in
Australia only
Cut-Off Date: Close of business, September 9, 1999
Pricing Date: September , 1999
Closing Date: On or about September , 1999
</TABLE>
* Assuming that there are no prepayments on the housing loans, that the issuer
trustee is not directed to exercise its right of optional redemption of the
notes and the other modeling assumptions contained in "Prepayment and Yield
Considerations" occur.
9
<PAGE>
Structural Overview
St.George Bank established the Crusade Global Trust Programme pursuant to a
master trust deed dated March 14, 1998 among St.George Bank, Crusade Management
Limited and the issuer trustee. The master trust deed provides the general terms
and structure for securitizations under the program. A supplementary terms
notice among the issuer trustee, St.George Bank, as seller and servicer, Crusade
Management Limited, as manager, St.George Custodial Pty Limited, as custodian,
Bankers Trust Company, as note trustee, and National Mutual Life Nominees
Limited, as security trustee, will set out the specific details of the Crusade
Global Trust No. 1 of 1999 and the notes, which may vary from the terms set
forth in the master trust deed. Each securitization under the program is a
separate transaction with a separate trust. The assets of the Crusade Global
Trust No. 1 of 1999 will not be available to pay the obligations of any other
trust, and the assets of other trusts will not be available to pay the
obligation of the Crusade Global Trust No. 1 of 1999. See "Description of the
Trust."
The Crusade Global Trust No. 1 of 1999 involves the securitization of
housing loans originated by St.George Bank or its predecessors and secured by
mortgages over residential property located in Australia. St.George Bank will
equitably assign the housing loans to the trust, which will in turn issue the
floating rate notes to fund the acquisition of the housing loans.
The issuer trustee will grant a first ranking floating charge over all of
the assets of the trust under the security trust deed in favor of National
Mutual Life Nominees Limited, as security trustee, to secure the trust's payment
obligations to the noteholders and its other creditors. A first ranking floating
charge is a first priority security interest over a class of assets, but does
not attach to specific assets unless or until it crystalizes, which means it
becomes a fixed charge. The charge will crystalize if, among other events, an
event of default occurs under the security trust deed. Once the floating charge
crystalizes, the issuer trustee will no longer be able to dispose of or create
interests in the assets of the trust without the consent of the security
trustee. For a description of floating charges and crystalization see "The
Security Trust Deed - Nature of the Charge".
Payments of interest and principal on the notes will come only from the
housing loans and other assets of the trust. The assets of the parties to the
transaction are not available to meet the payments of interest and principal on
the notes. If there are losses on the housing loans, the trust may not have
sufficient assets to repay the notes.
Credit Enhancements
Payments of interest and principal on the Class A notes will be supported
by the following forms of credit enhancement:
Subordination and Allocation of Losses
The Class B notes will always be subordinated to the Class A-1, A-2 and A-3
notes in their right to receive interest and principal payments. The Class B
notes will bear all losses on the housing loans before the Class A-1, A-2 and
A-3 notes. Any losses allocated to the Class A notes will be allocated pro rata
between the Class A-1, A-2 and A-3 notes. The support provided by the Class B
notes is
10
<PAGE>
intended to enhance the likelihood that the Class A-1, A-2 and A-3 notes will
receive expected quarterly payments of interest and principal. The following
chart describes the initial support provided by the Class B notes:
Class(es) Credit Initial
Support Support
Percentage
A-1, A-2 and B 0.6%
A-3
The initial support percentage in the preceding table is the initial
balance of the Class B notes, as a percentage of the housing loan pool balance
as of the cut-off date.
Mortgage Insurance Policies
Mortgage insurance policies issued by Housing Loans Insurance Corporation
Pty Limited will provide full coverage for all principal due on each of the
housing loans. The mortgage insurance policies will also guarantee timely
receipt of interest and principal payments for a maximum of twenty-four months
in the aggregate for each of the housing loans.
Excess Interest Collections
Any interest collections on the housing loans remaining after payments of
interest on the notes and the trust's expenses will be available to cover any
losses on the housing loans that are not covered by the mortgage insurance
policies.
Liquidity Enhancements
To cover possible liquidity shortfalls in the payment obligations of the
trust, the issuer trustee will have the following forms of liquidity
enhancements:
Principal Draws
The manager must direct the issuer trustee to allocate principal
collections on the housing loans to cover any shortfalls in the interest payment
obligations of the trust on a payment date.
Liquidity Reserve
At the closing date, A$ , representing 0.25% of the initial outstanding
principal balance of the notes, will be deposited into a liquidity account. The
issuer trustee, if directed by the manager, will use the money in the liquidity
account to cover any shortfalls in its payment obligations on any monthly or
quarterly payment date which are not covered by principal draws. The liquidity
reserve amount will be reduced from time to time so that it will equal 0.25% of
the aggregate principal amount outstanding of the housing loans. Any amounts in
the liquidity account in excess of the liquidity reserve amount will be
withdrawn from the liquidity account and treated as a principal collection.
Timely Payment Cover
The mortgage insurance policies guarantee the timely payment of interest
and principal for a maximum of twenty-four months in the aggregate for each of
the housing loans.
Redraws
Under the terms of each variable rate housing loan, a borrower may, at the
discretion of St.George Bank, redraw previously prepaid principal. A borrower
may redraw an amount equal to the difference between the scheduled principal
balance of his or her loan and the current principal balance of the loan.
St.George Bank will be reimbursed for any redraws it advances to borrowers
11
<PAGE>
from principal collections on the housing loans. Thus, the trust will have less
funds available to pay principal to the notes on the next quarterly payment
date, but will have a corresponding greater amount of assets with which to make
future payments. The amount that St.George Bank may advance in respect of a
particular housing loan from time to time is limited to approximately the amount
of principal that has been prepaid on that loan at that time. See "St.George
Residential Loan Program" and "Description of the Transaction Documents - The
Redraw Facility".
Limited Substitution
At the direction of the manager, the issuer trustee must use the proceeds
from the repurchase of a housing loan by the seller because of a breach of a
representation or warranty to purchase an eligible substitute housing loan for
inclusion in the assets of the trust, if available.
Hedging Arrangements
To hedge its interest rate and currency exposures, the issuer trustee will
enter into the following hedge arrangements:
o a basis swap to hedge the basis risk between the interest rate on the
housing loans which are subject to a discretionary variable rate of
interest and the floating rate obligations of the trust, which
includes the issuer trustee's payments under the currency swap.
o a fixed-floating rate swap to hedge the basis risk between the
interest rate on the housing loans which are subject to a fixed rate
of interest and the floating rate obligations of the trust, which
includes the issuer trustee's payments under the currency swap.
o a currency swap to hedge the currency risk between the collections on
the housing loans and the amounts received by the issuer trustee under
the basis swap and the fixed-floating rate swap, which are denominated
in Australian dollars, and the obligation of the trust to pay interest
and principal on the Class A notes, which are denominated in U.S.
dollars.
Optional Redemption
The issuer trustee will, if the manager directs it to do so, redeem all of
the notes on the earlier of the quarterly payment date falling in November, 2006
or the quarterly payment date when the current total outstanding principal
balance of the notes, as reduced by principal losses allocated against the
notes, is less than 10% of the total initial principal balance of the notes. If
the issuer trustee redeems the notes, the noteholders will receive a payment
equal to the outstanding principal balance of the notes plus accrued interest,
unless the noteholders consent to receiving the outstanding principal balance of
the notes, as reduced by losses allocated against the notes, plus accrued
interest on the outstanding principal balance of the notes.
12
<PAGE>
The Housing Loan Pool
The housing loan pool will consist of fixed rate and variable rate
residential housing loans secured by mortgages on owner occupied and non-owner
occupied one-to-four family residential properties. The housing loans will have
original terms to stated maturity of no more than 30 years. The pool of housing
loans has the following characteristics:
Selected Housing Loan Pool Data as of the
Close of Business on September 9, 1999
Number of Housing Loans...................................................15,433
Housing Loan Pool Size........................................A$1,544,534,170.38
Average Housing Loan Balance........................................A$100,079.97
Maximum Housing Loan Balance........................................A$493,749.82
Minimum Housing Loan Balance.........................................A$12,127.70
Total Valuation of the Properties.............................A$2,937,423,703.00
Maximum Remaining Term to Maturity in months.................................353
Weighted Average Remaining Term to Maturity in months........................257
Weighted Average Seasoning in months..........................................27
Weighted Average Original Loan-to-Value Ratio.............................67.98%
Weighted Average Current Loan-to-Value Ratio..............................60.39%
Maximum Current Loan-to-Value Ratio.......................................90.09%
The original loan-to-value ratio of a housing loan is calculated by
comparing the initial principal amount of the housing loan to the most recent
valuation of the property that is currently securing the housing loan. Thus, if
collateral has been released from the mortgage securing a housing loan or if the
property securing the housing loan has been revalued, the original loan-to-value
ratio may not reflect the actual loan-to-value ratio at the origination of that
housing loan.
Before the issuance of the notes, housing loans may be added to or removed
from the housing loan pool. New housing loans may also be substituted for
housing loans that are removed from the housing loan pool. This addition,
removal or substitution of housing loans may result in changes in the housing
loan pool characteristics shown in the preceeding table and could affect the
weighted average lives and yields of the notes. The seller will not add, remove
or substitute any housing loans prior to the closing date if this would result
in a change of more than 5% in any of the characteristics of the pool of housing
loans described in this prospectus, unless a revised prospectus is delivered to
prospective investors.
13
<PAGE>
Withholding Tax
Payments of principal and interest on the Class A notes will be reduced by
any applicable withholding taxes. The issuer trustee is not obligated to pay any
additional amounts to the Class A noteholders to cover any withholding taxes.
If the Commonwealth of Australia requires the withholding of amounts from
payment of principal or interest to the Class A noteholders or if the issuer
trustee ceases to receive the total amount of interest payable by borrowers on
the housing loans due to taxes, duties, assessments or other governmental
charges the manager may direct the issuer trustee to redeem all of the notes.
However, Class A noteholders owning 75% of the aggregate outstanding principal
balance of the Class A notes may direct the issuer trustee not to redeem the
Class A notes. See "Description of the Class A Notes - Redemption of the Notes
for Taxation or Other Reasons."
U.S. Tax Status
In the opinion of Mayer, Brown & Platt, special tax counsel for the issuer
trustee, 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, agrees
to treat the notes as indebtedness. See "United States Federal Income Tax
Matters."
Legal Investment
The Class A notes will not constitute "mortgage-related securities" for the
purposes of the Secondary Mortgage Market Enhancement Act of 1984. No
representation is made as to whether the 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 regulatory authorities. You are urged to consult with your own legal
advisors concerning the status of the Class A notes as legal investments for
you. See "Legal Investment Considerations".
ERISA Considerations
In general, the Class A notes will be eligible for purchase by retirement
plans subject to the Employee Retirement Income Security Act. Investors should
consult their counsel with respect to the consequences under the Employee
Retirement Income Security Act and the Internal Revenue Code of the plan's
acquisition and ownership of the certificates.
Book-Entry Registration
Persons acquiring beneficial ownership interests in the Class A notes will
hold their Class A notes through the Depository Trust Company in the United
States or Cedelbank or Euroclear outside of the United States. Transfers within
the Depository Trust Company, Cedelbank or Euroclear will be in accordance with
the usual rules and operating procedures of the relevant system. Crossmarket
transfers between persons holding directly or indirectly through the Depository
Trust Company, on the one hand, and persons holding directly or indirectly
through Cedelbank or Euroclear, on the other hand, will take place in the
Depository Trust Company through the relevant depositories of Cedelbank or
Euroclear.
Collections
The issuer trustee will receive for each monthly and quarterly collection
period the following amounts, which are known as collections:
o payments of interest, principal and fees and prepayments of principal
under the housing loans;
o proceeds from the enforcement of the housing loans and registered
mortgages relating to those housing loans;
o amounts received under mortgage insurance policies;
14
<PAGE>
o amounts received from the seller, servicer or custodian for breaches
of representations or undertakings; and
o interest on amounts in the collection account.
Collections will be allocated between income and principal. Collections
attributable to interest, less some amounts, are known as available income. The
collections attributable to principal, less some amounts, are known as gross
principal collections.
Available income is normally used to pay fees, expenses and interest on the
notes. Gross principal collections are normally used to pay principal on the
notes. However, if there is not enough available income to pay fees, expenses
and interest on the notes, gross principal collections will be treated as income
and applied in the income stream to pay unpaid fees, expenses and interest on
the notes. If there is an excess of available income after payment of fees,
expenses and interest on the notes, the excess income will be used to reimburse
any principal charge offs on the notes.
Interest on the Notes
Interest on the notes is payable quarterly in arrears on each quarterly
payment date. Interest will be paid proportionately between the Class A-1, Class
A-2 and Class A-3 notes. Interest will be paid on the Class B notes only after
the payments of interest on the Class A-1, Class A-2 and Class A-3 notes are
made. Interest on each class of notes is calculated for each interest period as
follows:
o at the note's interest rate;
o on the outstanding principal balance of that note at the beginning of
that interest period; and
o on the basis of the actual number of days in that interest period and
a year of 360 days, or 365 days for the Class B notes.
Principal on the Notes
Principal on the notes will be payable on each quarterly payment date.
Principal will be paid sequentially on each class of notes. Thus, principal will
be paid first on the Class A-1 notes. Principal will only be paid on the Class
A-2 notes after the Class A-1 notes have been repaid in full, and will only be
paid on the Class A-3 notes after the Class A-1 and Class A-2 notes have been
repaid in full. The Class B notes will not receive any principal payments until
all of the Class A notes have been repaid in full. On each quarterly payment
date, the outstanding principal balance of each note will be reduced by the
amount of the principal payment made on that date on that note. The outstanding
principal balance of each note will also be reduced by the amount of principal
losses on the housing loans allocated to that note. If the security trust deed
is enforced after an event of default, the proceeds from the enforcement will be
distributed pro rata among all of the Class A notes.
Allocation of Cash Flows
On each quarterly payment date, the issuer trustee will repay principal and
interest to each noteholder to the extent that there are collections received
for those payments on that date. The charts on the next two pages summarize the
flow of payments.
15
<PAGE>
Distribution of Total Available Funds on a Payment Date
Total Available Funds = Available Income + Principal Draws + Liquidity Draws
--------------------------------------------------
On the first payment date only, pay to St.George
Bank the Accrued Interest Adjustment
--------------------------------------------------
(arrow down)
--------------------------------------------------
Repay the mortgage insurer any timely
cover payments relating to interest
--------------------------------------------------
(arrow left) (arrow right)
<TABLE>
<CAPTION>
<S> <C>
On monthly payment dates
(other than quarterly payment dates) On quarterly payment dates
----------------------------- ---------------------------------------------------------------
Pay interest owed under the Pay the fixed-floating rate swap provider any break
redraw facility fees received from borrowers or the mortgage insurer
----------------------------- ---------------------------------------------------------------
(arrow down) (arrow down)
----------------------------- ---------------------------------------------------------------
Repay any outstanding
liquidity draws Pay Trust Expenses
-----------------------------
---------------------------------------------------------------
(arrow down)
---------------------------------------------------------------
Pay pro rata between themselves:
o fees under the redraw facility
o fees under the basis swap
o fees under the fixed-floating rate swap
---------------------------------------------------------------
(arrow down)
---------------------------------------------------------------
Pay any unpaid amounts from previous quarterly payment dates
(other than amounts owed to the currency swap provider)
---------------------------------------------------------------
(arrow down)
---------------------------------------------------------------
Pay pro rata between themselves:
o interest under the redraw facility
o payments under the basis swap or the fixed-
floating rate swap
o any outstanding liquidity draws
o payments under the currency swap relating to interest on
the Class A notes
---------------------------------------------------------------
(arrow down)
---------------------------------------------------------------
Pay any unpaid amounts owing to the currency swap
provider from previous quarterly payment dates
---------------------------------------------------------------
(arrow down)
---------------------------------------------------------------
Pay Interest on the Class B notes
---------------------------------------------------------------
(arrow down)
---------------------------------------------------------------
Apply any Excess Available Income to reimburse in the
following order:
o principal charge offs
o pro rata, Carry Over Class A Charge Offs and Redraw
Charge Offs
o Carry Over Class B Charge Offs
---------------------------------------------------------------
(arrow down)
---------------------------------------------------------------
Distribute any remaining amounts to the residual
beneficiary
---------------------------------------------------------------
</TABLE>
16
<PAGE>
Distribution of Principal Collections on a Payment Date
Principal Collections = Gross Principal Collections -
Reimbursement of Current Period Redraws -
Any Amount Paid by the Issuer Trustee to Purchase a Substitute Housing Loan
Repay the mortgage insurer for any timely cover payments relating to principal
(arrow down)
Allocate any required principal draw to Total Available Funds
(arrow down)
Retain in the collection account funds to cover any anticipated shortfalls
(arrow left) (arrow right)
On monthly payment dates On quarterly payment dates
(other than quarterly
payment dates)
Repay any principal outstanding under the Repay the seller for any redraws
redraw facility it has funded
(arrow down)
Repay any principal outstanding under
the redraw facility
(arrow down)
Retain the Redraw Retention Amount in
the collection account
(arrow down)
Pay to the currency swap provider
principal to be paid on the Class A-1 Notes
(arrow down)
Pay to the currency swap provider
principal to be paid on the Class A-2 Notes
(arrow down)
Pay to the currency swap provider
principal to be paid on the Class A-3 Notes
(arrow down)
Pay principal on the Class B notes
17
<PAGE>
Risk Factors
The Class A notes are complex securities issued by a foreign entity and
secured by property located in a foreign jurisdiction. You should consider the
following risk factors in deciding whether to purchase the Class A notes.
The notes will be paid only from o The notes are debt obligations of the
the assets of the trust issuer trustee only in its capacity as
trustee of the trust. The notes do not
represent an interest in or obligation
of any of the other parties to the
transaction. The assets of the trust
will be the sole source of payments on
the notes. The issuer trustee's other
assets will only be available to make
payments on the notes if the issuer
trustee is negligent, commits fraud or
in some circumstances where the issuer
trustee fails to comply with an
obligation expressly imposed upon it
under the documents or a written
direction from the manager. Therefore,
if the assets of the trust are
insufficient to pay the interest and
principal on your notes when due, there
will be no other source from which to
receive these payments and you may not
get back your entire investment or the
yield you expected to receive.
You face an additional o Although St.George Bank could have
possibility of loss because the legally assigned the title to the
issuer trustee does not hold housing loans to the issuer trustee,
legal title to the housing loans initially it will assign only equitable
title to the housing loans to the issuer
trustee. The housing loans will be
legally assigned to the issuer trustee
only upon the occurrence of a title
perfection event, as described in
"Description of the Assets of the Trust
- Transfer and Assignment of the Housing
Loans." Because the issuer trustee does
not hold legal title to the housing
loans you will be subject to the
following risks, which may lead to a
failure to receive collections on the
housing loans, delays in receiving the
collections or losses to you:
o The issuer trustee's interest in a
housing loan may be impaired by the
creation or existence of an equal
or higher ranking security interest
over the related mortgaged property
created after the creation of the
issuer trustee's equitable interest
but prior to it acquiring a legal
interest in the housing loans.
18
<PAGE>
o Until a borrower has notice of the
assignment, that borrower is not
bound to make payments under its
housing loan to anyone other than
the seller. Until a borrower
receives notice of the assignment,
any payments the borrower makes
under his or her housing loan to
the seller will validly discharge
the borrower's obligations under
the borrower's housing loan even if
the issuer trustee does not receive
the payments from the seller.
Therefore, if the seller does not
deliver collections to the issuer
trustee, for whatever reason,
neither the issuer trustee nor you
will have any recourse against the
related borrowers for such
collections.
o The issuer trustee may not be able
to initiate any legal proceedings
against a borrower to enforce a
housing loan without the
involvement of the seller.
The seller and servicer may o Before the seller or the servicer remits
commingle collections on the collections to the collection account,
housing loans with their assets the collections may be commingled with
the assets of the seller or servicer. If
the seller or the servicer becomes
insolvent, the issuer trustee may only
be able to claim those collections as an
unsecured creditor of the insolvent
company. This could lead to a failure to
receive the collections on the housing
loans, delays in receiving the
collections, or losses to you.
There is no way to predict the o The rate of principal and interest
actual rate and timing of payments on pools of housing loans
payments on the housing loans varies among pools, and is influenced by
a variety of economic, demographic,
social, tax, legal and other factors,
including prevailing market interest
rates for housing loans and the
particular terms of the housing loans.
Australian housing loans have features
and options that are different from
housing loans in the United States, and
thus will have different rates and
timing of payments from housing loans in
the United States. There is no guarantee
as to the actual rate of prepayment on
the housing loans, or that the actual
rate of prepayments will conform to any
model described in this prospectus. The
rate and timing of principal and
interest payments on the housing loans
will
19
<PAGE>
affect the rate and timing of payments
of principal and interest on your notes.
Unexpected prepayment rates could have
the following negative effects:
o If you bought your notes for more
than their face amount, the yield
on your notes will drop if
principal payments occur at a
faster rate than you expect.
o If you bought your notes for less
than their face amount, the yield
on your notes will drop if
principal payments occur at a
slower rate than you expect.
Losses and delinquent payments o If borrowers fail to make payments of
on the housing loans may affect interest and principal under the housing
the return on your notes loans when due and the credit
enhancement described in this prospectus
is not enough to protect your notes from
the borrowers' failure to pay, then the
issuer trustee may not have enough funds
to make full payments of interest and
principal due on your notes.
Consequently, the yield on your notes
could be lower than you expect and you
could suffer losses.
Enforcement of the housing o Substantial delays could be encountered
loans may cause delays in in connection with the liquidation of a
payment and losses housing loan, which may lead to
shortfalls in payments to you to the
extent those shortfalls are not covered
by a mortgage insurance policy.
o If the proceeds of the sale of a
mortgaged property, net of preservation
and liquidation expenses, are less than
the amount due under the related housing
loan, the issuer trustee may not have
enough funds to make full payments of
interest and principal due to you,
unless the difference is covered under a
mortgage insurance policy.
The Class B notes provide only o The amount of credit enhancement
limited protection against losses provided through the subordination of
the Class B notes to the Class A notes
is limited and could be depleted prior
to the payment in full of the Class A
notes. If the principal amount of the
Class B notes is reduced to zero, you
may suffer losses on your notes.
20
<PAGE>
The mortgage insurance policies o The mortgage insurance policies are
may not be available to cover subject to some exclusions from coverage
losses on the housing loans and rights of termination which are
described in "The Mortgage Insurance
Policies - Requirements and
Restrictions". Therefore, a borrower's
payments that are expected to be covered
by the mortgage insurance policies may
not be covered because of these
exclusions, and the issuer trustee may
not have enough money to make timely and
full payments of principal and interest
on your notes.
You may not be able to resell o The underwriters are not required to
your notes assist you in reselling your notes. A
secondary market for your notes may not
develop. If a secondary market does
develop, it might not continue or might
not be sufficiently liquid to allow you
to resell any of your notes readily or
at the price you desire. The market
value of your notes is likely to
fluctuate, which could result in
significant losses to you.
The termination of any of the o The issuer trustee will exchange the
swaps may subject you to losses interest payments from the fixed rate
from interest rate or currency housing loans for variable rate payments
fluctuations based upon the three-month Australian
bank bill rate. If the fixed-floating
rate swap is terminated or the
fixed-floating rate swap provider fails
to perform its obligations, you will be
exposed to the risk that the floating
rate of interest payable on the notes
will be greater than the discretionary
fixed rate set by the servicer on the
fixed rate housing loans, which may lead
to losses to you.
o The issuer trustee
will exchange the interest payments from
the variable rate housing loans for
variable rate payments based upon the
three-month Australian bank bill rate.
If the basis swap is terminated, the
manager will direct the servicer to set
the interest rate on the variable rate
housing loans at a rate high enough to
cover the payments owed by the trust. If
the rates on the variable rate housing
loans are set above the market interest
rate for similar variable rate housing
loans, the affected borrowers will have
an incentive to refinance their loans
with another institution, which may lead
to higher rates of principal prepayment
than you initially expected, which will
affect the yield on your notes.
o The issuer trustee will receive payments
from the borrowers on the housing loans
in
21
<PAGE>
Australian dollars and make payments to
you in U.S. dollars. The currency swap
provider will exchange Australian
dollars for U.S. dollars pursuant to the
currency swap. If the currency swap
provider fails to perform its obligation
or if the currency swap is terminated,
the issuer trustee might have to
exchange its Australian dollars for U.S.
dollars at an exchange rate that does
not provide sufficient U.S. dollars to
make payments to you in full.
Prepayments during a collection o If a prepayment is received on a housing
period may result in you not loan during a collection period,
receiving your full interest interest on the housing loan will cease
payments to accrue on that portion of the housing
loan that has been prepaid, starting on
the date of prepayment. The amount
prepaid will be invested in investments
that may earn a rate of interest lower
than that paid on the housing loan. If
it is less, the issuer trustee may not
have sufficient funds to pay you the
full amount of interest due to you on
the next quarterly payment date.
Payment holidays may result in o If a borrower prepays principal on his
you not receiving your full or her loan, the borrower is not
interest payments required to make any payments, including
interest payments, until the outstanding
principal balance of the housing loan
plus unpaid interest equals the
scheduled principal balance. If a
significant number of borrowers take
advantage of this feature at the same
time and the liquidity reserve and
principal draws do not provide enough
funds to cover the interest payments on
the housing loans that are not received,
the issuer trustee may not have
sufficient funds to pay you the full
amount of interest on the notes on the
next quarterly payment date.
The proceeds from the o If the security trustee enforces the
enforcement of the security trust security interest over the assets of the
deed may be insufficient trust after an event of default under
to pay amounts due to you the security trust deed, there is no
assurance that the market value of the
assets of the trust will be equal to or
greater than the outstanding principal
and interest due on the notes, or that
the security trustee will be able to
realize the full value of the assets of
the trust. The issuer trustee, the
security trustee, the note trustee, the
swap providers and other service
providers will generally be entitled to
receive the proceeds of any sale of the
assets of the trust, to the extent they
are owed fees and expenses, before you.
22
<PAGE>
Consequently, the proceeds from the sale
of the assets of the trust after an
event of default under the security
trust deed may be insufficient to pay
you principal and interest in full.
If the manager directs the issuer o If the manager directs the issuer
trustee to redeem the notes trustee to redeem the notes earlier as
earlier, you could suffer losses described in "Description of the Class A
and the yield on your notes Notes - Optional Redemption of the
could be lower than expected Notes" and principal charge offs have
occurred, noteholders owning at least
75% of the aggregate outstanding amount
of the notes may consent to receiving an
amount equal to the outstanding
principal amount of the notes, less
principal charge offs, plus accrued
interest. As a result, you may not fully
recover your investment. In addition,
the purchase of the housing loans will
result in the early retirement of your
notes, which will shorten their average
lives and potentially lower the yield on
your notes.
Termination payments relating o If the issuer trustee is required to
to the currency swap may make a termination payment to the
reduce payments to you currency swap provider upon the
termination of the currency swap, the
issuer trustee will make the termination
payment from the assets of the trust and
in priority to payments on the notes.
Thus, if the issuer trustee makes a
termination payment, there may not be
sufficient funds remaining to pay
interest on your notes on the next
quarterly payment date, and the
principal on your notes may not be
repaid in full.
The imposition of a withholding o If a withholding tax is imposed on
tax will reduce payments to you payments of interest on your notes, you
and may lead to an early will not be entitled to receive
redemption of the notes grossed-up amounts to compensate for
such withholding tax. Thus, you will
receive less interest than is scheduled
to be paid on your notes.
o If the option to redeem the notes
affected by a withholding tax is
exercised, you may not be able to
reinvest the redemption payments at a
comparable interest rate.
St.George Bank's ability to set o The interest rates on the variable rate
the interest rate on variable rate housing loans are not tied to an
housing loans may lead to objective interest rate index, but are
increased delinquencies or set at the sole discretion of St.George
prepayments Bank. If St.George Bank increases the
interest rates on the variable rate
housing loans, borrowers may be unable
to make their required payments under
the housing loans,
23
<PAGE>
and accordingly, may become delinquent
or may default on their payments. In
addition, if the interest rates are
raised above market interest rates,
borrowers may refinance their loans with
another lender to obtain a lower
interest rate. This could cause higher
rates of principal prepayment than you
expected and affect the yield on your
notes.
The features of the housing o The features of the housing loans,
loans may change, which could including their interest rates, may be
affect the timing and amount of changed by St.George Bank, either on its
payments to you own initiative or at a borrower's
request. Some of these changes may
include the addition of newly developed
features which are not described in this
prospectus. As a result of these changes
and borrower's payments of principal,
the concentration of housing loans with
specific characteristics is likely to
change over time, which may affect the
timing and amount of payments you
receive.
o If St.George Bank changes the features
of the housing loans, borrowers may
elect to refinance their loan with
another lender to obtain more favorable
features. In addition, the housing loans
included in the trust are not permitted
to have some features. If a borrower
opts to add one of these features to his
or her housing loan, the housing loan
will be removed from the trust. The
refinancing or removal of housing loans
could cause you to experience higher
rates of principal prepayment than you
expected, which could affect the yield
on your notes.
There are limits on the amount o If the interest collections during a
of available liquidity to insure collection period are insufficient to
payments of interest to you cover fees, expenses and the interest
payments due on the notes on the next
payment date, principal collections
collected during the collection period
may be used to cover these amounts. If
principal collections are not sufficient
to cover the shortfall, the issuer
trustee will draw funds from the
liquidity account. In the event that
there is not enough money available
under the liquidity account, you may not
receive a full payment of interest on
that payment date, which will reduce the
yield on your notes.
The use of principal collections o If principal collections are drawn upon
to cover liquidity shortfalls may to cover shortfalls in interest
lead to principal losses collections, and there is
24
<PAGE>
insufficient excess interest
collections in succeeding collection
periods to repay those principal draws,
you may not receive full repayment of
principal on your notes.
A decline in Australian o The Australian economy has been
economic conditions may lead to experiencing a prolonged period of
losses on your notes expansion with relatively low and stable
interest rates and steadily increasing
property values. If the Australian
economy were to experience a downturn,
an increase in interest rates, a fall in
property values or any combination of
these factors, delinquencies or losses
on the housing loans may increase, which
may cause losses on your notes.
Consumer protection laws may o Some of the borrowers may attempt to
affect the timing or amount of make a claim to a court requesting
interest or principal payments to changes in the terms and conditions of
you their housing loans or compensation or
penalties from the seller for breaches
of any legislation relating to consumer
credit. Any changes which allow the
borrower to pay less principal or
interest under his or her housing loan
may delay or decrease the amount of
payments to you.
o In addition, if the issuer trustee
obtains legal title to the housing
loans, the issuer trustee will be
subject to the penalties and
compensation provisions of the
applicable consumer protection laws
instead of the seller. To the extent
that the issuer trustee is unable to
recover any such liabilities under the
consumer protection laws from the
seller, the assets of the trust will be
used to indemnify the issuer trustee
prior to payments to you. This may delay
or decrease the amount of collections
available to make payments to you.
The concentration of housing o If the trust contains a high
loans in specific geographic concentration of housing loans secured
areas may increase the by properties located within a single
possibility of loss on your notes state or region within Australia, any
deterioration in the real estate values
or the economy of any of those states or
regions could result in higher rates of
delinquencies, foreclosures and loss
than expected on the housing loans. In
addition, these states or regions may
experience natural disasters, which may
not be fully insured against and which
may result in property damage and losses
on the housing loans. These events may
in turn have a disproportionate impact
on funds available to the trust, which
could cause you to suffer losses.
25
<PAGE>
The failure of St.George, its o St.George Bank has developed a plan,
affiliates or third parties to be which is described in "St.George Bank
year 2000 computer ready could Year 2000 Program", to address the year
disrupt the distributions on your 2000 issue. St.George Bank cannot
notes guarantee, however, that its efforts to
achieve year 2000 readiness will be
fully effective. Moreover, St.George
Bank cannot guarantee that the
borrowers' banks or any of its
third-party service providers, such as
the issuer trustee, the swap providers,
the paying agents and DTC, will be year
2000 ready. St.George Bank also cannot
assure you that any future developments
in connection with its year 2000
readiness or the readiness of third
parties will be those that have been
anticipated.
o The failure of St.George Bank, its
affiliates or third-parties to become
fully year 2000 ready could disrupt, at
least temporarily, the servicer's
ability to carry out the servicing
duties described in this prospectus,
including the calculation of amounts
distributable to you and the timely
transfer of funds to the issuer trustee
for your benefit. Your investment in the
notes could consequently suffer.
The implementation of the new o From July 1, 2000, a goods and services
goods and services tax in tax will be payable by all entities
Australia is likely to decrease which make taxable supplies in
the funds available to the trust Australia. Although legislation has been
to pay you passed to enact the Goods and Services
Tax, it is not yet certain how the
legislation will be applied to
transactions of the type described by
this prospectus. However, to the extent
that the issuer trustee or entities
providing services to the issuer trustee
are subject to the Goods and Services
Tax in relation to the trust, the issuer
trustee will have less funds available
to meet its obligations, and you may
suffer losses.
You will not receive physical o Your ownership of the notes will be
notes representing your notes, registered electronically through DTC,
which can cause delays in Euroclear and Cedelbank. The lack of
receiving distributions and physical certificates could:
hamper your ability to pledge or
resell your notes o cause you to experience delays in
receiving payments on the notes
because the principal paying agent
will be sending distributions on
the notes to DTC instead of
directly to you;
o limit or prevent you from using
your notes as collateral; and
o hinder your ability to resell the
notes or reduce the price that you
receive for them.
26
<PAGE>
Capitalized Terms
The capitalized terms used in this prospectus, unless defined elsewhere in
this prospectus, have the meanings set forth in the Glossary starting on page
141.
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 in this prospectus, any
translations of Australian dollars into U.S. dollars have been made at a rate of
US$0.6573=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 September 13, 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.
The Issuer Trustee, St.George Bank and the Manager
The Issuer Trustee
The issuer trustee was incorporated on July 30, 1887 as National Trustees
Executors and Agency Company Australasia Limited under the Companies Statute
1864 of Victoria as a public company. After name changes in 1987 and 1999, AXA
Trustees Limited now operates as a limited liability public company under the
Corporations Law of Australia, with its registered office at Level 15, 447
Collins Street, Melbourne. AXA Trustees Limited's principal business is the
provision of fiduciary, trustee and other commercial services. AXA Trustees
Limited is an authorized trustee corporation and holds a Securities Dealers
Licence No 16424, both under the Corporations Law of Australia.
AXA Trustees Limited has issued 31,127,695 shares as of the date of this
prospectus. There are 29,072,305 with a paid amount of A$1.00, 1,500,000 shares
with a paid amount of A$0.10 and 555,390 shares with a paid amount of A$0.50,
giving a total share capital of A$29,500,000. The issuer trustee has not agreed
to issue any additional shares. The shares are all held by National Mutual Life
Nominees Limited (ACN 004 387 133), a member of the AXA group.
27
<PAGE>
Directors
The directors of the issuer trustee are as follows:
Name Business Address Principal Activities
- ---- ---------------- --------------------
Gregory Mark Armour 16th Floor, 447 Collins Chief Executive, Funds
Street, Melbourne, Victoria Management
3000, Australia
Alan Cowan Level 3, 4 Bank Place, Director
Melbourne, Victoria 3000,
Australia
Warren John Lee 9th Floor, 447 Collins National Operations
Street, Melbourne, Victoria Manager
3000, Australia
Matthew John Walsh Level 28 Rialto, 525 Solicitor
Collins Street, Melbourne,
Victoria 3000, Australia
Elaine Henry OAM The Smith Family, 16 Director
Larkin Street,
Camperdown, New South
Wales 2050, Australia
Matthew John Walsh is a partner of Mallesons Stephen Jaques, Melbourne
office.
St.George Bank
St.George Bank commenced operations as a group of building societies in
1937, and converted into a bank, becoming a public company registered in New
South Wales on July 1, 1992. Following a merger with Advance Bank Australia
Limited in January 1997, St.George Bank is the fifth largest banking group in
Australia in terms of total assets, which, at March 31, 1999, totaled A$44.7
billion with shareholders' equity of A$3.8 billion. St.George Bank's registered
office is 4-16 Montgomery Street, Kogarah, New South Wales. St.George Bank
maintains a World Wide Web site at the address "http://www.stgeorge.com.au".
St.George Bank's primary business is providing retail banking services,
including residential mortgage loans for owner occupied and investment housing
and retail call and term deposits. The Australian banking activities of
St.George Bank come under the regulatory supervision of the Australian
Prudential Regulation Authority. The Reserve Bank of Australia is responsible
for monetary policy and the maintenance of the overall financial system
stability. For a further description of the business operations of St.George
Bank, see "The Servicer."
The Manager
The manager, Crusade Management Limited, is a wholly owned subsidiary of
St.George Bank. Its principal business activity is the management of
securitization trusts established under St.George Bank's Crusade Trust and
Crusade Euro Trust Programmes. The manager's registered office is Level 4, 4-16
Montgomery Street, Kogarah NSW 2217, Australia.
28
<PAGE>
Description of the Trust
St.George Bank Securitisation Trust Programme
St.George Bank established its Securitisation Trust Programme pursuant to a
master trust deed for the purpose of enabling AXA Trustees Limited, as trustee
of each trust established pursuant to the Securitisation Trust Programme, to
invest in pools of assets originated or purchased from time to time by St.George
Bank. The master trust deed provides for the creation of an unlimited number of
trusts. The master trust deed establishes the general framework under which
trusts may be established from time to time. It does not actually establish any
trusts. The Crusade Global Trust No. 1 of 1999 is separate and distinct from any
other trust established under the master trust deed. The assets of the Crusade
Global Trust No. 1 of 1999 are not available to meet the liabilities of any
other trust and the assets of any other trust are not available to meet the
liabilities of the Crusade Global Trust No. 1 of 1999.
Crusade Global Trust No. 1 of 1999
The detailed terms of the Crusade Global Trust No. 1 of 1999 will be as set
out in the master trust deed and the supplementary terms notice. To establish
the trust, the manager and the issuer trustee will execute a notice of creation
of trust.
The supplementary terms notice, which supplements the general framework
under the master trust deed with respect to the trust, does the following:
o specifies the details of the notes;
o establishes the cash flow allocation;
o sets out the various representations and undertakings of the parties
specific to the housing loans, which supplement those in the master
trust deed; and
o amends the master trust deed to the extent necessary to give effect to
the specific aspects of the trust and the issue of the notes.
Description of the Assets of the Trust
Assets of the Trust
The assets of the trust will include the following:
o the pool of housing loans, including all:
o principal payments paid or payable on the housing loans at any
time from and after the cut-off date; and
o interest payments paid or payable on the housing loans after the
closing date;
o rights under the mortgage insurance policies issued by Housing Loans
Insurance Corporation Pty Limited and the individual property
insurance policies covering the mortgaged properties relating to the
housing loans;
o amounts on deposit in the accounts established in connection with the
creation of the trust and the issuance of the notes, including the
collection account, and any instruments in which these amounts are
invested; and
o the issuer trustee's rights under the transaction documents.
29
<PAGE>
The Housing Loans
The housing loans are secured by registered first ranking mortgages on
properties located in Australia. The housing loans are from St.George Bank's
general residential mortgage product pool and have been originated by St.George
Bank in the ordinary course of its business. Each housing loan will be one of
the types of products described in "St.George Bank Residential Loan Program -
St.George Bank's Product Types." Each housing loan may have some or all of the
features described in the "St.George Bank Residential Loan Program - Special
Features of the Housing Loans." The housing loans are either fixed rate or
variable rate loans. Each housing loan is secured by a registered first ranking
mortgage over the related mortgaged property or, if the relevant mortgage is not
a first ranking mortgage, the seller will equitably assign to the issuer trustee
all other prior ranking registered mortgages relating to that housing loan. The
mortgaged properties consist of one-to-four family owner-occupied properties and
one-to-four family non-owner occupied properties, but do not include mobile
homes which are not permanently affixed to the ground, commercial properties or
unimproved land.
Transfer and Assignment of the Housing Loans
On the closing date, the housing loans purchased by the trust will be
specified in a sale notice from St.George Bank, in its capacity as seller of
the housing loans, to the issuer trustee.
The seller will equitably assign the housing loans, the mortgages securing
those housing loans and the mortgage insurance policies and insurance policies
on the mortgaged properties relating to those housing loans to the issuer
trustee pursuant to the sale notice. After this assignment, the issuer trustee
will be entitled to receive collections on the housing loans. If a Title
Perfection Event occurs, the issuer trustee must use the irrevocable power of
attorney granted to it by St.George Bank to take the actions necessary to obtain
legal title to the housing loans.
The seller may in some instances equitably assign a housing loan to the
issuer trustee secured by an "all moneys" mortgage, which may also secure
financial indebtedness that has not been sold to the trust, but is instead
retained by the seller. The issuer trustee will hold the proceeds of enforcement
of the related mortgage, as described in "Legal Aspects of the Housing Loans -
Enforcement of Registered Mortgages", to the extent they exceed the amount
required to repay the housing loan, as bare trustee without any other duties or
obligations, in relation to that other financial indebtedness. The mortgage will
secure the housing loan equitably assigned to the trust in priority to that
other financial indebtedness. If a housing loan is secured on the closing date
by a first mortgage over one property and a second mortgage over a second
property, the seller will assign to the trust both the first and second
mortgages over that second property. The housing loan included in the trust will
then have the benefit of security from both properties ahead of any financial
indebtedness owed to St.George Bank which is secured by the second property.
Representations, Warranties and Eligibility Criteria
The seller will make various representations and warranties to the issuer
trustee as of the closing date, unless another date is specified, with respect
to the housing loans being equitably assigned by it to the issuer trustee,
including that:
o the housing loans are assignable and all consents required for the
assignment have been obtained;
30
<PAGE>
o each housing loan is legally valid, binding and enforceable against
the related borrower(s) in all material respects, except to the extent
that it is affected by laws relating to creditors' rights generally or
doctrines of equity;
o each housing loan is the subject of a mortgage insurance policy;
o each housing loan was originated in the ordinary course of the
seller's business and entered into in compliance in all material
respects with the seller's underwriting and operations procedures, as
agreed upon with the manager;
o at the time each housing loan was entered into and up to and including
the closing date, it complied in all material respects with applicable
laws, including, the Consumer Credit Legislation, if applicable;
o the performance by the seller of its obligations in respect of each
housing loan and related security, including its variation, discharge,
release, administration, servicing and enforcement, up to and
including the closing date, complied in all material respects with
applicable laws including the Consumer Credit Legislation, if
applicable;
o each housing loan is denominated and payable only in Australian
dollars in Australia;
o the loan agreement or terms of the mortgage for each housing loan
includes a clause to the effect that the borrower waives all rights of
set-off as between the borrower and the seller; and
o as of the cut-off date, each housing loan satisfies the following
eligibility criteria:
o it is from the seller's general residential housing loan product
pool;
o it is secured by a mortgage which constitutes a first ranking
mortgage over residential owner-occupied or investment land
situated in capital city metropolitan areas or regional centers
in Australia, which mortgage is or will be registered under the
relevant law relating to the registration, priority or
effectiveness of any mortgage over land in any Australian
jurisdiction. Where a mortgage is not, or will not be when
registered, a first ranking mortgage, the sale notice includes an
offer from the seller to the issuer trustee of all prior ranking
registered mortgages;
o it is secured by a mortgage over a property which has erected on
it a residential dwelling and which is required under the terms
of the mortgage to be covered by general insurance by an insurer
approved in accordance with the transaction documents;
o it has a loan-to-value ratio less than or equal to 95% for owner
occupied properties and 90% for non-owner occupied properties;
o it was not purchased by the seller, but was approved and
originated by the seller in the ordinary course of its business;
o the borrower does not owe more than A$500,000 under the housing
loan;
o the borrower is required to repay such loan within 30 years of
the cut-off date;
31
<PAGE>
o no payment from the borrower is in arrears for more than 30
consecutive days;
o the sale of an equitable interest in the housing loan, or the
sale of an equitable interest in any related mortgage or
guarantee, does not contravene or conflict with any law;
o 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;
o it is on fully amortizing repayment terms;
o it is secured by a mortgage that is covered by the mortgage
insurance policy for 100% of amounts outstanding under such loan,
which policy includes a timely payment cover;
o it is fully drawn;
o it complies in all material respects with applicable laws,
including, if applicable, the Consumer Credit Legislation; and
o it is subject to the terms and conditions of St.George Bank's
Great Australian Home Loan product, its standard variable rate
loan, including loans entitled to a "loyalty" rate due to a home
loan relationship with St.George Bank of 5 years or more, or
loans that bear a fixed rate of interest for up to 5 years as of
the cut-off date.
The issuer trustee has not investigated or made any inquiries regarding the
accuracy of these representations and warranties and has no obligation to do so.
The issuer trustee is entitled to rely entirely upon the representations and
warranties being correct, unless an officer involved in the administration of
the trust has actual notice to the contrary.
Breach of Representations and Warranties
If St.George Bank, the manager or the issuer trustee becomes aware that a
representation or warranty from St.George Bank relating to any housing loan or
mortgage is incorrect within 120 days after the closing date, it must notify the
other parties and the rating agencies within ten business days. If the breach is
not waived or remedied to the satisfaction of the issuer trustee within ten
business days of the notice then, without any action being required by either
party, St.George Bank shall be obligated to repurchase the affected housing loan
and mortgage for an amount equal to its Unpaid Balance.
Upon payment of the Unpaid Balance, the issuer trustee shall cease to have
any interest in the affected housing loan and mortgage and St.George Bank shall
hold both the legal and beneficial interest in such housing loan and mortgage
and be entitled to all interest and fees that are paid in respect of them from,
and including, the date of repurchase.
If the breach of a representation or warranty is discovered later than 120
days from the closing date, the issuer trustee will only have a claim for
damages which will be limited to an amount equal to the Unpaid Balance of that
housing loan at the time St.George Bank pays the damages.
Substitution of Housing Loans
Seller Substitution
The issuer trustee must, at the manager's direction and option, at any time
replace a housing loan which has been repurchased by the seller following a
breach of representation using the funds received from the repurchase to
purchase a substitute
32
<PAGE>
housing loan from the seller. The seller may elect to sell a substitute housing
loan to the issuer trustee, which the issuer trustee shall acquire if the
manager directs it to do so, provided the substitute housing loan satisfies the
following requirements:
o it complies with the eligibility criteria;
o at the time of substitution, the substitute housing loan has a
maturity date no later than the date being 2 years prior to the final
maturity date of the notes;
o the mortgage insurer has confirmed that the substitute housing loan
will be insured under the mortgage insurance policy; and
o the substitution will not adversely affect the rating of the notes.
Other Substitutions
The issuer trustee must, at the manager's direction, at any time:
o replace a housing loan;
o allow a borrower to replace the property securing a housing loan; or
o allow a borrower to refinance a housing loan to purchase a new
property,
provided all of the following conditions are met:
o the same borrower continues to be the borrower under the new housing
loan;
o either the replacement mortgage or the replacement property does not
result in the related housing loan failing to comply with the
eligibility criteria or the refinanced housing loan satisfies the
eligibility criteria, as the case may be;
o any such replacement or refinancing occurs simultaneously with the
release of the previous mortgage, property or housing loan, as the
case may be; and
o the principal outstanding under the related housing loan is, after the
replacement or refinancing, the same as before that replacement or
refinancing.
Selection Criteria
The manager will apply the following criteria, in descending order of
importance, when selecting a substitute housing loan or approving a
substitution:
o the substitute housing loan will have an Unpaid Balance within
A$30,000 of the outgoing housing loan's Unpaid Balance, as determined
at the time of substitution;
o an outgoing housing loan secured by an owner-occupied or non-owner
occupied property will be replaced by another housing loan secured by
an owner-occupied or non-owner occupied property, as the case may be;
o the substitute housing loan will have a current loan-to-value ratio no
more than 5% greater than the outgoing housing loan's current
loan-to-value ratio, as determined at the time of substitution;
o an outgoing housing loan will be replaced by a housing loan with a
mortgage over a property located in the same state or territory;
33
<PAGE>
o an outgoing housing loan will be replaced by an housing loan with a
mortgage over a property with the same or similar postcode; and
o in the case of a selection of substitute housing loan, the substitute
housing loan will have the closest possible original loan amount to
that of the outgoing housing loan.
Other Features of the Housing Loans
The housing loans have the following features.
o Interest is calculated daily and charged in arrears.
o Payments can be on a monthly, bi-weekly or weekly basis. Payments are
made by borrowers using a number of different methods, including cash
payments at branches, checks and in most cases automatic transfer.
o They are governed by the laws of one of the following Australian
States or Territories:
o New South Wales;
o Victoria;
o Western Australia;
o Queensland;
o South Australia;
o Northern Territory;
o Tasmania; or
o the Australian Capital Territory.
Details of the Housing Loan Pool
The information in the following tables set forth in tabular format various
details relating to the housing loans to be sold to the trust on the
closing date. The information is provided as of the close of business on the
cut-off date, September 9, 1999. All amounts have been rounded to the nearest
Australian dollar. The sum in any column may not equal the total indicated due
to rounding.
Note that these details may not reflect the housing loan pool as of the
closing date because the seller may substitute loans proposed for sale with
other eligible housing loans or add additional eligible housing loans. The
seller may do this if, for example, the loans originally selected are repaid
early.
The seller will not add, remove or substitute any housing loans prior to
the closing date if this would result in a change of more than 5% in any of the
characteristics of the pool of housing loans described in this prospectus,
unless a revised prospectus is delivered to prospective investors.
34
<PAGE>
Housing Loan Information
Seasoning Analysis
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------
Range of months of Balance Outstanding % by Number of % by Balance
Seasoning Number of Loans (A$) Average Balance (A$) Loans Outstanding
- -----------------------------------------------------------------------------------------------------------------------
<C> <C> <C> <C> <C> <C>
1 - 12 2,097 252,653,071.16 120,483.10 13.59 16.36
13 - 24 5,317 590,621,509.38 111,081.72 34.45 38.24
25 - 36 3,415 324,357,093.71 94,980.12 22.13 21.00
37 - 48 1,702 149,889,539.28 88,066.71 11.03 9.70
49 - 60 1,501 119,864,801.08 79,856.63 9.73 7.76
61 - 72 1,401 107,148,155.77 76,479.77 9.08 6.94
------ ---------------- ---------- ------ ------
TOTAL 15,433 1,544,534,170.38 100,079.97 100.00 100.00
====== ================ ========== ====== ======
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
Pool Profile by Geographic Distribution
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
Number of % by Number of % by total
Region Properties Total Valuation (A$) properties valuation
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Australian Capital Territory - Inner City 350 53,779,750.00 2.04 1.83
Australian Capital Territory - Metro 273 38,632,625.00 1.59 1.32
--- ------------- ---- ----
623 92,412,375.00 3.63 3.15
=== ============= ==== ====
New South Wales - Inner City 30 8,477,848.00 0.18 0.29
New South Wales - Metro 8,584 1,785,654,372.00 50.09 60.79
New South Wales - Non-Metro 4,295 584,920,483.00 25.06 19.91
----- -------------- ----- -----
12,909 2,379,052,703.00 75.33 80.99
====== ================ ===== =====
Queensland - Inner City 14 2,594,490.00 0.08 0.09
Queensland -Metro 658 88,232,255.00 3.84 3.00
Queensland -Non-Metro 472 69,412,187.00 2.75 2.36
--- ------------- ---- ----
1,144 160,238,932.00 6.67 5.45
===== ============== ==== ====
South Australia - Inner City 1 120,000.00 0.01 0.00
South Australia - Metro 129 17,796,800.00 0.75 0.61
South Australia - Non-Metro 7 636,436.00 0.04 0.02
- ---------- ---- ----
137 18,553,236.00 0.80 0.63
=== ============= ==== ====
Victoria - Inner City 23 6,037,350.00 0.13 0.21
Victoria - Metro 1,301 180,526,956.00 7.59 6.15
Victoria - Non-Metro 873 81,487,151.00 5.09 2.77
--- ------------- ---- ----
2,197 268,051,457.00 12.81 9.13
===== ============== ===== ====
Western Australia - Inner City 4 818,000.00 0.02 0.03
Western Australia - Metro 120 17,819,500.00 0.70 0.61
Western Australia - Non-Metro 4 477,500.00 0.02 0.02
- ---------- ---- ----
128 19,115,000.00 0.74 0.66
------ ---------------- ------ ------
TOTAL 17,138 2,937,423,703.00 100.00 100.00
====== ================ ====== ======
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
The number of properties is greater than the number of housing loans because
some housing loans are secured by more than one property.
35
<PAGE>
Pool Profile by Balance Outstanding
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
Number % by Number of % by Balance
Current Balance (A$) of Loans Balance Outstanding (A$) Average LVR (%) Loans Outstanding
- ----------------------------------------------------------------------------------------------------------------------------
<C> <C> <C> <C> <C> <C>
0.01- 50,000.00 2,469 92,017,349.45 35.31 16.00 5.96
50,000.01- 100,000.00 6,660 499,913,151.02 56.58 43.15 32.37
100,000.01- 150,000.00 4,038 488,928,888.16 64.16 26.16 31.66
150,000.01- 200,000.00 1,339 228,812,933.97 64.00 8.68 14.81
200,000.01- 250,000.00 580 128,655,312.24 65.07 3.76 8.33
250,000.01- 300,000.00 204 55,213,052.48 64.56 1.32 3.57
300,000.01- 350,000.00 81 26,303,720.45 63.31 0.52 1.70
350,000.01- 400,000.00 34 12,640,509.94 62.21 0.22 0.82
400,000.01- 450,000.00 23 9,696,951.34 65.45 0.15 0.63
450,000.01- 500,000.00 5 2,352,301.33 62.81 0.03 0.15
------ ---------------- ----- ------ ------
TOTAL 15,433 1,544,534,170.38 56.29 100.00 100.00
====== ================ ===== ====== ======
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pool Profile by LVR
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
Number Balance Outstanding Average % by Number % by Balance
Current LVR (%) of Loans (A$) LVR (%) % of Loans Outstanding
- ------------------------------------------------------------------------------------------------------------------------
<C> <C> <C> <C> <C> <C>
0.01 - 10.00 7 121,357.05 7.61 0.05 0.01
10.01 - 15.00 36 1,193,105.27 14.14 0.23 0.08
15.01 - 20.00 552 23,793,279.58 17.58 3.58 1.54
20.01 - 25.00 729 39,405,959.69 22.50 4.72 2.55
25.01 - 30.00 764 47,352,321.75 27.55 4.95 3.07
30.01 - 35.00 857 63,376,321.25 32.66 5.55 4.10
35.01 - 40.00 947 76,824,674.86 37.52 6.14 4.97
40.01 - 45.00 1,022 98,945,301.00 42.52 6.62 6.41
45.01 - 50.00 1,140 116,344,214.65 47.53 7.39 7.53
50.01 - 55.00 1,121 121,807,015.47 52.50 7.26 7.89
55.01 - 60.00 1,056 120,242,455.14 57.59 6.84 7.79
60.01 - 65.00 1,008 113,916,092.76 62.49 6.53 7.38
65.01 - 70.00 1,190 139,540,145.85 67.57 7.71 9.03
70.01 - 75.00 1,281 151,732,783.82 72.57 8.30 9.82
75.01 - 80.00 1,489 175,743,563.52 77.29 9.65 11.38
80.01 - 85.00 1,271 144,159,127.80 82.49 8.24 9.33
85.01 - 90.00 960 109,738,795.75 87.14 6.22 7.10
90.01 - 95.00 3 297,655.17 90.06 0.02 0.02
------ ---------------- ----- ------ ------
TOTAL 15,433 1,544,534,170.38 56.29 100.00 100.00
====== ================ ===== ====== ======
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
36
<PAGE>
Pool Profile by Year of Maturity
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------
Number Balance % by Number % by Balance
maturity year of Loans Outstanding (A$) Average LVR (%) of Loans Outstanding
- -----------------------------------------------------------------------------------------------------------------
<C> <C> <C> <C> <C> <C>
2001 1 34,239.78 18.60 0.01 0.00
2002 11 371,651.43 25.49 0.07 0.02
2003 35 1,775,981.78 32.08 0.23 0.11
2004 57 2,305,931.17 29.60 0.37 0.15
2005 80 3,818,578.42 32.11 0.52 0.25
2006 88 4,909,171.51 36.31 0.57 0.32
2007 188 9,748,273.27 36.98 1.22 0.63
2008 227 12,940,187.55 38.10 1.47 0.84
2009 184 10,877,873.32 40.30 1.19 0.70
2010 151 9,884,989.65 42.79 0.98 0.64
2011 181 11,329,553.40 39.24 1.17 0.73
2012 394 26,630,944.63 45.50 2.55 1.72
2013 362 29,143,166.75 51.27 2.35 1.89
2014 310 23,127,246.92 47.79 2.01 1.50
2015 210 17,010,798.19 48.44 1.36 1.10
2016 264 21,678,114.51 49.46 1.71 1.40
2017 566 52,518,541.87 54.99 3.67 3.40
2018 543 54,079,622.96 56.48 3.52 3.50
2019 1,410 115,036,655.59 55.76 9.14 7.45
2020 1,099 95,834,777.39 52.77 7.12 6.20
2021 1,374 135,788,546.36 55.41 8.90 8.79
2022 2,861 306,517,076.82 59.43 18.54 19.85
2023 3,806 472,809,323.73 62.65 24.66 30.61
2024 477 59,126,516.06 65.63 3.09 3.83
2025 84 7,639,078.58 62.06 0.54 0.49
2026 85 8,715,533.52 58.63 0.55 0.56
2027 200 24,747,450.08 61.50 1.30 1.60
2028 176 24,891,404.56 65.06 1.14 1.61
2029 9 1,242,940.58 57.04 0.06 0.08
------ ---------------- ----- ------ ------
TOTAL 15,433 1,544,534,170.38 56.29 100.00 100.00
====== ================ ===== ====== ======
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
37
<PAGE>
Distribution of Current Coupon Rates
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
range of current Number of Balance % by Number
Outstanding (%) Loans Balance outstanding (A$) Average LVR (%) of Loans Outstanding
- -------------------------------------------------------------------------------------------------------------------------
<C> <C> <C> <C> <C> <C>
5.01 - 5.50 4 482,171.40 65.76 0.03 0.03
5.51 - 6.00 2,037 254,562,094.87 59.39 13.20 16.48
6.01 - 6.50 7,308 699,134,206.94 52.71 47.35 45.27
6.51 - 7.00 4,960 485,096,830.90 59.41 32.14 31.41
7.01 - 7.50 492 50,266,652.09 62.07 3.19 3.25
7.51 - 8.00 175 15,719,860.16 56.97 1.13 1.02
8.01 - 8.50 263 23,460,701.65 61.64 1.70 1.52
8.51 - 9.00 143 12,369,257.35 59.40 0.93 0.80
9.01 - 9.50 1 33,476.04 26.35 0.01 0.00
9.51 - 10.00 41 2,859,956.90 46.75 0.27 0.19
10.01 - 10.50 3 203,757.48 49.06 0.02 0.01
10.51 - 11.00 3 225,701.79 61.16 0.02 0.01
11.01 - 11.50 1 48,946.78 81.57 0.01 0.00
11.51 - 12.00 2 70,556.03 36.76 0.01 0.00
------ ---------------- ----- ------ ------
TOTAL 15,433 1,544,534,170.38 56.29 100.00 100.00
====== ================ ===== ====== ======
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
38
<PAGE>
Distribution of Months Remaining to Maturity
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
range of
months
remaining to Number of Balance % by Number of % by Balance
maturity Loans Outstanding (A$) Average LVR (%) Loans Outstanding
- --------------------------------------------------------------------------------------------------------------------------
<C> <C> <C> <C> <C> <C>
25 - 36 10 349,629.14 34,962.91 0.06 0.02
37 - 48 25 1,165,950.04 46,638.00 0.16 0.08
49 - 60 53 2,280,930.45 43,036.42 0.34 0.15
61 - 72 67 3,194,887.56 47,684.89 0.43 0.21
73 - 84 95 5,015,441.19 52,794.12 0.62 0.32
85 - 96 154 7,936,080.88 51,532.99 1.00 0.51
97 - 108 236 13,123,059.33 55,606.18 1.53 0.85
109 - 120 197 11,797,688.30 59,886.74 1.28 0.76
121 - 132 135 8,196,478.29 60,714.65 0.87 0.53
133 - 144 174 11,198,215.37 64,357.56 1.13 0.73
145 - 156 361 23,552,743.44 65,243.06 2.34 1.52
157 - 168 365 29,592,398.65 81,075.06 2.37 1.92
169 - 180 331 24,445,243.51 73,852.70 2.14 1.58
181 - 192 221 17,688,116.78 80,036.73 1.43 1.15
193 - 204 237 19,378,546.06 81,766.02 1.54 1.25
205 - 216 497 43,878,026.68 88,285.77 3.22 2.84
217 - 228 576 57,037,722.54 99,023.82 3.73 3.69
229 - 240 1,235 103,365,799.02 83,697.00 8.00 6.69
241 - 252 1,108 94,879,201.70 85,631.05 7.18 6.14
253 - 264 1,257 120,368,440.22 95,758.50 8.14 7.79
265 - 276 2,422 250,647,895.49 103,487.98 15.69 16.23
277 - 288 3,807 462,744,836.82 121,551.05 24.67 29.96
289 - 300 1,291 163,090,760.27 126,329.02 8.37 10.56
301 - 312 97 8,843,509.44 91,170.20 0.63 0.57
313 - 324 73 7,475,423.33 102,403.06 0.47 0.48
325 - 336 167 19,772,807.28 118,400.04 1.08 1.28
337 - 348 202 27,075,603.20 134,037.64 1.31 1.75
349 - 360 40 6,438,735.40 160,968.39 0.26 0.42
------ ---------------- ---------- ------ ------
TOTAL 15,433 1,544,534,170.38 100,079.97 100.00 100.00
====== ================ ========== ====== ======
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
39
<PAGE>
St.George Residential Loan Program
Origination Process
The housing loans included in the assets of the trust were originated by
St.George Bank from new loan applications and refinancings of acceptable current
St.George Bank housing loans. St.George Bank sources its housing loans through
its national branch network, the national telemarketing center, St.George
Direct, accredited mortgage brokers, mobile lenders and through the internet.
Approval and Underwriting Process
Each lending officer must pass a formal training program conducted by
St.George Bank to obtain an approval authority limit. The lending officer's
performance and approval authority is constantly monitored and reviewed by
St.George Bank. This ensures that loans are approved by a lending officer with
the proper authority level and that the quality of the underwriting process by
each individual lending officer is maintained.
Housing loans being processed through the credit system will either be
approved or declined by a lending officer or referred to a credit specialist. A
loan will generally be referred to a credit specialist where the lending
officer's delegated authority is exceeded.
All housing loan applications, including the applications relating to the
housing loans included in the assets of the trust, must satisfy St.George Bank's
residential housing loan credit and collection policy and procedures described
in this section. St.George Bank, like other lenders in the Australian
residential housing loan market, does not divide its borrowers into groups of
differing credit quality for the purposes of setting standard interest rates for
its residential housing loans, except in limited situations, such as to retain
existing borrowers or to attract high income individuals. All borrowers must
satisfy St.George Bank's underwriting criteria described in this section.
Borrowers are not charged different rates of interest based on their credit
quality.
The approval process consists of determining the valuation of the proposed
security property, verifying the borrower's details and ensuring these details
satisfy St.George Bank's underwriting criteria. This process is conducted by
St.George Bank. Once it is established that the loan application meets St.George
Bank's credit standards, the loan must be approved by an authorized bank
officer.
The property to be secured is required to be appraised by a valuer from
St.George Bank's approved list of registered valuers if the loan-to-value ratio
of the property is above 80% and in the following circumstances:
o newly constructed homes and other dwellings not previously occupied;
o refinancings from other financial institutions;
o the purchase of vacant land with the commitment to build a house
immediately; or
o if the loan amount exceeds A$250,000 if the related mortgaged property
is located in the Sydney metropolitan area, or A$200,000 if located
elsewhere.
In non-valuation cases, St.George Bank requires a copy of the stamped
contract of sale settlement which confirms the value. In addition, St.George
Bank requires
40
<PAGE>
valuers to be members of the Australian Property Institute. A housing loan may
be secured by more than one property, in which case the combined value of the
properties is considered. The loan-to-value ratio may not exceed 95% for owner
occupied properties or 90% for non-owner occupied properties.
Verification of an applicant's information is central to the approval
process. St.George Bank verifies all income on all loan applications by
procedures such as employment checks, including a review of the applicant's last
three years of employment history, and tax returns. It also conducts credit
checks and enquiries through the Credit Reference Association of Australia in
accordance with current credit criteria. A statement of the applicant's current
assets and liabilities is also obtained.
The prospective borrower must have a satisfactory credit history, stable
employment, evidence of a genuine savings pattern and a minimum 5% deposit plus
costs in genuine savings. Gifts, inheritance and money borrowed from other
sources are not genuine savings and are not considered as part of the 5% deposit
plus costs.
St.George Bank requires all borrowers to satisfy a minimum disposable
income level after all commitments, including allowances for living expenses and
the proposed housing loan, with an allowance for interest rate increases. This
is to ensure that the applicant has the capacity to repay loans from his or her
current income over time.
All borrowers in respect of housing loans are natural persons, corporations
or trusts. Housing loans to corporations and trusts may be secured, if deemed
necessary, by guarantees from directors. Guarantees may also be obtained in
other circumstances.
St.George Bank conducts a review of a sample of approved housing loans on a
monthly basis to ensure individual lending officers maintain all policy
standards. Once a verified application is accepted, St.George Bank provides each
loan applicant with a loan agreement comprised of a loan offer document together
with a general terms and conditions booklet. Upon receipt of acceptance of this
offer from all borrowers under the particular loan, the loan will proceed to
execution of the mortgage documentation and certification of title. When
St.George Bank or its solicitors have received these documents, settlement will
occur. Upon settlement, the mortgage is registered and the documents stored at
St.George Bank's Head Office at Kogarah, Sydney or in interstate branch offices.
A condition of settlement is that the mortgagor establish and maintain full
replacement property insurance on the related property.
St.George Bank's credit policies and approval procedures are subject to
constant review. Improvements in procedures are continuous. Credit policy may
change from time to time due to business conditions and legal or regulatory
changes.
St.George Bank's Product Types
Standard Variable Rate Loan
This type of loan is St.George Bank's traditional standard variable rate
product. There is not a stated or defined explicit link to the interest rates in
the financial markets, although, in general, the standard variable rate does
follow movements in the financial markets. Standard variable rate loans are
convertible to a fixed rate mortgage product at the borrower's request.
An additional subproduct of the standard variable rate loan is the
St.George Bank loyalty loan. Existing and previous St.George Bank home loan
customers with a
41
<PAGE>
St.George Bank home loan relationship of 5 years or more are entitled to a
"loyalty" rate whenever their loan is at the standard variable rate. New
St.George Bank customers and Advance Bank home loan customers are not entitled
to the "loyalty" rate. The "loyalty" discount rate is guaranteed to be 0.25
percentage points below the standard variable rate until January 1, 2006.
St.George Great Australian Home Loan
The St.George Great Australian Home Loan product has a low variable
interest rate which is not linked to, and historically has been lower than,
St.George Bank's standard variable rate. Consistent with the standard variable
rate loan the interest rates set under the St.George Great Australian Home Loan
product have no stated or explicit link to interest rates in the financial
markets. Further, the interest rate of the St.George Great Australian Home Loan
could fluctuate independently of standard variable rates.
The St.George Great Australian Home Loan product is not convertible to a
fixed rate mortgage product without the payment of a switch fee. Additionally,
no interest offset account is available under this product and loan payments may
be made monthly, bi-monthly or weekly and must be made by automatic transfer.
Lump sum payments are permitted under the St.George Great Australian Home Loan
Product at any time without penalty and there is no provision to stop automatic
transfers when payments are made in advance.
Fixed Rate Loan
Some of the housing loans bear a fixed rate of interest for up to 5 years
as of the cut-off date. At the end of that fixed rate period, unless the
interest rate is re-fixed at a rate and for a term agreed between the borrower
and St.George Bank, the loans will automatically convert to the standard
variable rate of interest.
Should the interest rate on a fixed rate loan be re-fixed at the end of its
fixed rate term, that loan will only remain in the housing loan pool if it will
not result in a downgrade or withdrawal of the rating of the notes. Otherwise,
the seller will repurchase the housing loan from the issuer trustee.
Special Features of the Housing Loans
Each housing loan may have some or all of the features described in this
section. In addition, during the term of any housing loan, St.George Bank may
agree to change any of the terms of that housing loan from time to time at the
request of the borrower.
Switching Interest Rates
Most housing loans allow the relevant borrower the option to request a
change from a fixed interest rate to a variable interest rate, or vice versa.
Any of these converted loans will remain in the housing loan pool provided that
no downgrade or withdrawal of the rating of the notes will result. Any variable
rate converting to a fixed rate product will automatically be matched by an
increase in the fixed-floating rate swap to hedge the fixed rate exposure.
Increase Loans
A borrower who is not a St.George Great Australian Home Loan borrower may
apply to St.George Bank to borrow additional funds secured by the existing
mortgage. The proceeds from these "increase" loans may be used by the borrower
for any purpose.
42
<PAGE>
Some of the loans in the housing loan pool as of the cut-off date were
originated as these increase loans. All of these increase loans will be assigned
to the trust, together with each related housing loan, and form part of the
assets of the trust.
Where a borrower seeks to obtain an increase loan with respect to a housing
loan after the cut-off date, and the aggregate of the existing housing loan and
the increase loan meets the eligibility criteria, the increase loan will be
approved and settled by St.George Bank. St. George Bank will provide the funding
for the increase loan which will be secured by the existing mortgage. In the
event, however, that it becomes necessary to enforce the loan or the related
mortgage, the master trust deed requires that any proceeds of that enforcement
be applied in satisfaction of all amounts - actual or contingent - owing under
the housing loan included in the assets of the trust, before any amounts may be
applied in satisfaction of the increase loan.
St.George Bank will provide all funding for that increase loan, which will
be secured by the related mortgage. Under the master trust deed, the servicer
will, at the direction of the manager, in the event of enforcement of a housing
loan, distribute the proceeds to the issuer trustee of all housing loans which
are assets of the trust in priority to any increase loan advanced by St.George
Bank after the cut-off date.
Substitution of Security
A borrower may apply to the servicer to achieve the following:
o substitute a different mortgaged property in place of the existing
security property securing a housing loan;
o add a further mortgage as security for a loan; or
o release a mortgaged property from a mortgage.
If the servicer's credit criteria are satisfied and another property is
substituted for the existing security for the housing loan, the mortgage which
secures the existing housing loan may be discharged without the borrower being
required to repay the housing loan.
If all of the following conditions occur, then the housing loan will remain
in the housing loan pool, secured by the new mortgage:
o a new property subject to a mortgage satisfies the eligibility
criteria;
o the principal outstanding under the housing loan does not increase;
o the purchase of the new property by the borrower occurs simultaneously
with the discharge of the original mortgage; and
o the new property is acceptable to the mortgage insurer.
If any of the following conditions occur, then the Unpaid Balance will be
repaid by the seller and the housing loan will cease to be an asset of the
trust:
o the new property does not satisfy the eligibility criteria;
o the principal outstanding under the housing loan will change
(increase); or
o settlement does not occur simultaneously with discharge.
That payment of the Unpaid Balance will form part of the collections for
the relevant collection period.
43
<PAGE>
Redraw
Each of the variable rate housing loans allows the borrower to redraw
principal repayments made in excess of scheduled principal repayments during the
period in which the relevant housing loan is charged a variable rate of
interest. Redraws must be for at least $2,000 per transaction. Borrowers may
request a redraw at any time, but its availability is always at the discretion
of St.George Bank. The borrower is required to pay a fee in connection with a
redraw. Currently, St.George Bank does not permit redraws on fixed rate housing
loans. A redraw will not result in the related housing loan being removed from
the trust.
Payment Holiday
The documentation for a housing loan may allow the borrower a payment
holiday where the borrower has prepaid principal, creating a difference between
the outstanding principal balance of the loan and the scheduled amortized
principal balance of the housing loan. The borrower is not required to make any
payments, including payments of interest, until the outstanding principal
balance of the housing loan plus unpaid interest equals the scheduled amortized
principal balance. The failure by the borrower to make payments during a payment
holiday may not necessarily lead the related housing loan to be considered
delinquent.
Early Repayment
A borrower will not incur break fees if an early repayment or partial
prepayment of principal occurs under a variable rate housing loan contract.
However, a borrower may incur break fees if an early repayment or partial
prepayment of principal occurs on a fixed rate housing loan. Any housing loan
approved before November 1, 1996 has a break fee of up to three months' interest
on the portion of principal prepaid on the housing loan. Any housing loan
approved before May 15, 1999 will be subject to an economic break fee equal to a
maximum of:
o 3 months interest, if the housing loan had an original fixed rate term
of 1 to 3 years;
o 4 months interest, if the housing loan had an original fixed rate term
of 4 years; or
o 5 months interest, if the housing loan had an original fixed rate term
of 5 years.
Any housing loan approved on or after May 16, 1999 will not be subject to
these limits on break fees.
Currently, the servicer's policy is not to charge break fees in respect of
a housing loan if prepayments for that housing loan are less than A$5,000 in any
12 month period while the interest rate is fixed. Where break fees are payable,
payment is required upon receipt of the prepayment or discharge. In some
circumstances, the break fees will be capitalized.
Switching to an Investment or Owner-Occupied Housing Loan
A borrower may elect to switch the use of the mortgaged property from
owner-occupied property to investment or vice versa. The related housing loans
will remain an asset of the trust if it meets the eligibility criteria.
St.George Bank requires notification from the borrower of a switch and reserves
the right to change the interest rate or the fees charged with respect to the
housing loan.
44
<PAGE>
Capitalized Fees
A borrower may request St.George Bank to provide product features under its
housing loan contract without having to pay the usual up-front fee relating to
that product. In those cases, St.George Bank may capitalize the fee, which will
thus constitute part of the principal to be amortized over the life of the
housing loan.
Combination or "Split" Housing Loans
A borrower may elect to split its loan into separate funding portions which
may, among other things, be subject to different types of interest rates. Each
part of the housing loan is effectively a separate loan contract, even though
all the separate loans are all secured by the same mortgage.
If a housing loan is split, each separate loan will remain in the trust as
long as each individual loan matures before the final maturity date of the
notes. If any loan matures after the final maturity date of the notes, that loan
will be removed from the trust and the Unpaid Balance of the loan will be repaid
by St.George Bank. The other segments of the "split" loan which mature before
the final maturity date of the notes will remain in the trust.
Loan Offset
St.George Bank offers borrowers an interest offset product under which the
interest rate accrued on the borrower's deposit account is offset against
interest on the borrower's housing loan on a monthly basis. St.George Bank does
not actually pay interest to the borrower on the loan offset account, but
reduces the amount of interest which is payable by the borrower under its
housing loan. The borrower continues to make its scheduled mortgage payment with
the result that the portion allocated to principal is increased by the amount of
interest offset. St.George Bank will pay to the trust the aggregate of all
interest amounts offset on a monthly basis. These amounts will constitute
Finance Charge Collections and Gross Principal Collections for the relevant
period. The loan offset account must be in the same name as the housing loan.
If at any time there is no basis swap in place, St.George Bank must
ensure that the interest rate applicable to the borrower's deposit account is
such that St.George Bank, as servicer, will not be required, to increase the
threshold rate as described in "Description of the Class A notes - The Interest
Rate Swaps - Threshold Rate".
If, following a Title Perfection Event, the trust obtains legal title to a
housing loan, St.George Bank will no longer be able to offer an interest offset
arrangement for that housing loan. Under the housing loan documentation,
borrowers have waived the right to set off against all deposits held with
St.George Bank.
Additional Features
St.George Bank may from time to time offer additional features in relation
to a housing loan which are not described in the preceding section. However,
before doing so, St.George Bank must satisfy the manager that the additional
features would not affect any mortgage insurance policy covering the housing
loan and would not cause a downgrade or withdrawal of the rating of any notes.
In addition, except for the interest rate and the amount of fees, St.George Bank
cannot change any of the terms of a housing loan without the related borrower's
consent.
45
<PAGE>
The Mortgage Insurance Policies
General
Each housing loan is insured under a mortgage insurance policy by Housing
Loans Insurance Corporation Pty Limited (ACN 071 466 334) of 259 George Street,
Sydney, NSW 2000, Australia. The seller will equitably assign its interest in
each mortgage insurance policy to the issuer trustee on the closing date. The
consent of the mortgage insurer is required for the equitable assignment of the
mortgages and the mortgage insurance policies to the issuer trustee and for the
servicer to service the housing loans. The seller will ensure that this consent
is obtained on or prior to the closing date. This section is a summary of the
general provisions of the mortgage insurance policies.
Coverage
The amount covered by each mortgage insurance policy will be the amount
owed with respect to the related housing loan, including unpaid principal,
accrued interest at any non-default rate up to specified dates, fines, fees,
charges and proper enforcement costs, less all amounts recovered from
enforcement of the mortgage on the related mortgaged property, including sale
proceeds, compensation for compulsory acquisition of the related mortgaged
property and any rents or profits received by the issuer trustee.
Timely Payment Cover
Each mortgage insurance policy also includes a timely payment cover for
losses resulting from the failure of a borrower to pay all or part of a regular
installment payment when due. The loss covered by a timely payment cover is the
amount by which the actual payment, if any, received by the issuer trustee is
less than the amount of the regular payment, calculated at the non-default
interest rate for the housing loan. The timely payment cover on each housing
loan will cover up to an aggregate of 24 monthly payments on that housing loan.
Requirement and Restrictions
There are a number of requirements and restrictions imposed on the insured
under each mortgage insurance policy which may entitle the mortgage insurer to
cancel the mortgage insurance policy or refuse or reduce the amount of a claim
with respect to a housing loan, including:
o the failure to pay any premium when due or within the relevant grace
period;
o the failure to file a claim within time;
o the failure of the servicer to be approved by the mortgage insurer;
o the failure of the housing loan contract to require that the related
mortgaged property to be insured under a general insurance policy;
o an incorrect statement or breach of the duty of disclosure by the
insured in relation to the policy;
o the existence of an encumbrance or other interest which affects or has
priority over the related mortgage;
o the failure to register the related mortgage or to stamp the housing
loan, related mortgage or collateral security;
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o the issuer trustee failing to comply with its reporting obligations;
o the housing loan or related mortgage being materially altered or
modified without the mortgage insurer's consent; and
o the occurrence of other circumstances reducing the insured's rights
under any insured housing loan or related mortgage.
The manager will perform the issuer trustee's obligations under the
mortgage insurance policies on its behalf.
Description of the Mortgage Insurer
The mortgage insurer is owned by GE Capital Australia, which is a wholly
owned subsidiary of GE Capital Services Inc. GE Capital Services Inc, is a
diversified industrial and financial services company with operations in over
100 countries. GE Capital Services Inc, is rated AAA by Fitch IBCA, Aaa by
Moody's and AAA by Standard & Poor's. It has significant lender's mortgage
insurance business around the world, operating in the United States, United
Kingdom, Canada and Australia and has over US$200 billion of loans insured
globally. The mortgage insurer has been given a AAA claims paying rating in its
own right by Fitch IBCA, a Aa1 rating by Moody's and a AAA rating by Standard &
Poor's.
Description of the Class A Notes
General
The issuer trustee will issue the Class A notes on the closing date
pursuant to a direction from the manager to the issuer trustee to issue the
notes and the terms of the master trust deed, the supplementary terms notice and
the note trust deed. The notes will be governed by the laws of New South Wales.
The following summary describes the material terms of the Class A notes. The
summary does not purport to be complete and is subject to the terms and
conditions of the Class A notes, which are attached as appendices to this
prospectus.
Form of the Class A Notes
Book-Entry Registration
The Class A notes will be issued only in permanent book-entry format in
minimum denominations of US$100,000. Unless definitive notes are issued, all
references to actions by the Class A noteholders will refer to actions taken by
DTC upon instructions from its participating organizations and all references in
this prospectus to distributions, notices, reports and statements to Class A
noteholders will refer to distributions, notices, reports and statements to DTC
or its nominee, as the registered noteholder, for distribution to owners of the
Class A notes in accordance with DTC's procedures.
Class A noteholders may hold their interests in the notes through DTC, in
the United States, or Cedelbank or the Euroclear System, in Europe, if they are
participants in those systems, or indirectly through organizations that are
participants in those systems. Cede & Co., as nominee for DTC, will hold the
Class A notes. Cedelbank and Euroclear will hold omnibus positions on behalf of
their respective participants, through customers' securities accounts in Cedel's
and Euroclear's names on the books of their respective depositaries. The
depositaries in turn will hold the positions in customers' securities accounts
in the depositaries' names on the books of DTC.
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DTC has advised the manager and the underwriters that it is:
o a limited-purpose trust company organized under the New York Banking
Law;
o a "banking organization" within the meaning of the New York Banking
Law;
o a member of the Federal Reserve System;
o a "clearing corporation" within the meaning of the New York Uniform
Commercial Code; and
o a "clearing agency" registered under the provisions of Section 17A of
the Exchange Act.
DTC holds securities for its participants and facilitates the clearance and
settlement among its participants of securities transactions, including
transfers and pledges, in deposited securities through electronic book-entry
changes in its participants' accounts. This eliminates the need for physical
movement of securities. DTC participants include securities brokers and dealers,
banks, trust companies, clearing corporations and other organizations. Indirect
access to the DTC system is also available to others including securities
brokers and dealers, banks, and trust companies that clear through or maintain a
custodial relationship with a participant, either directly or indirectly. The
rules applicable to DTC and its participants are on file with the SEC.
Transfers between participants on the DTC system will occur in accordance
with DTC rules. Transfers between participants on the Cedelbank system and
participants on the Euroclear system will occur in accordance with their 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 by DTC in
accordance with DTC rules on behalf of the relevant European international
clearing system by that system's depositary. However, these cross-market
transactions will require delivery of instructions to the relevant European
international clearing system by the counterparty in that 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 its
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 their system's depositary.
Because of time-zone differences, credits of securities in Cedelbank or
Euroclear as a result of a transaction with a DTC participant will be made
during the subsequent securities settlement processing, dated the business day
following the DTC settlement date. The credits for any transactions in these
securities settled during this processing will be reported to the relevant
Cedelbank participant or Euroclear participant on that business day. Cash
received in Cedelbank or Euroclear as a result of sales of securities by or
through a Cedelbank participant or a Euroclear participant to a DTC participant
will be received and available on the DTC settlement date.
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However, it will not be available in the relevant Cedelbank or Euroclear cash
account until the business day following settlement in DTC.
Purchases of Class A notes held through the DTC system must be made by or
through DTC participants, which will receive a credit for the Class A notes on
DTC's records. The ownership interest of each actual Class A noteholder is in
turn to be recorded on the DTC participants' and indirect participants' records.
Class A noteholders will not receive written confirmation from DTC of their
purchase. However, noteholders are expected to receive written confirmations
providing details of the transaction, as well as periodic statements of their
holdings, from the DTC participant or indirect participant through which the
noteholder entered into the transaction. Transfers of ownership interests in the
Class A notes are to be accomplished by entries made on the books of DTC
participants acting on behalf of the Class A noteholders. Class A noteholders
will not receive notes representing their ownership interest in offered notes
unless use of the book-entry system for the Class A notes is discontinued.
To facilitate subsequent transfers, all securities deposited by DTC
participants with DTC are registered in the name of DTC's nominee, Cede & Co.
The deposit of securities with DTC and their registration in the name of Cede &
Co. effects no change in beneficial ownership. DTC has no knowledge of the
actual noteholders of the Class A notes; DTC's records reflect only the identity
of the DTC participants to whose accounts the Class A notes are credited, which
may or may not be the actual beneficial owners of the Class A notes. The DTC
participants will remain responsible for keeping account of their holdings on
behalf of their customers.
Conveyance of notices and other communications by DTC to DTC participants,
by DTC participants to indirect participants, and by DTC participants and
indirect participants to Class A noteholders will be governed by arrangements
among them and by any statutory or regulatory requirements as may be in effect
from time to time.
Neither DTC nor Cede & Co. will consent or vote on behalf of the notes.
Under its usual procedures, DTC mails an omnibus proxy to the issuer trustee as
soon as possible after the record date, which assigns Cede & Co.'s consenting or
voting rights to those DTC participants to whose accounts the Class A notes are
credited on the record date, identified in a listing attached to the proxy.
Principal and interest payments on the Class A notes will be made to DTC.
DTC's practice is to credit its participants' accounts on the applicable
distribution date in accordance with their respective holdings shown on DTC's
records unless DTC has reason to believe that it will not receive payment on
that distribution date. Standing instructions, customary practices, and any
statutory or regulatory requirements as may be in effect from time to time will
govern payments by DTC participants to Class A noteholders. These payments will
be the responsibility of the DTC participant and not of DTC, the issuer trustee,
the note trustee or the principal paying agent. Payment of principal and
interest to DTC is the responsibility of the trustee, disbursement of the
payments to DTC participants is the responsibility of DTC, and disbursement of
the payments to Class A noteholders is the responsibility of DTC participants
and indirect participants.
DTC may discontinue providing its services as securities depository for the
notes at any time by giving reasonable notice to the principal paying agent.
Under these circumstances, if a successor securities depository is not obtained,
definitive notes are required to be printed and delivered.
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DTC management is aware that some computer applications, systems, and the
like for processing data that are dependent upon calendar dates, including dates
before, on, and after January 1, 2000, may encounter Year 2000 problems. DTC has
informed its participants and other members of the financial community that it
has developed and is implementing a program so that its systems continue to
function appropriately, as the same relate to the timely payment of
distributions to securityholders, book-entry deliveries, and settlement of
trades within DTC. This program includes a technical assessment and a
remediation plan, each of which is complete. Additionally, DTC's plan includes a
testing phase, which it expects to complete within appropriate time frames.
However, DTC's ability to perform properly its services is also dependent
upon other parties, including issuers and their agents, DTC's direct and
indirect participants, third party vendors from whom DTC licenses software and
hardware, and third party vendors on whom DTC relies for information or the
provision of services, including telecommunication and electrical utility
service providers. DTC has informed the manager that it is contacting, and will
continue to contact, third party vendors from whom DTC acquires services to
impress upon them the importance of these services being Year 2000 compliant and
determine the extent of their efforts for Year 2000 remediation and testing of
their services. In addition, DTC is in the process of developing contingency
plans as it deems appropriate.
According to DTC, the foregoing information about DTC has been provided for
informational purposes only and is not intended to serve as a representation,
warranty, or contract modification of any kind.
Cedelbank is incorporated under the laws of Luxembourg as a professional
depository. Cedelbank holds securities for its participating organizations 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
notes. Transactions may be settled in Cedelbank in any of 32 currencies,
including U.S. dollars.
Cedelbank participants are financial institutions around the world,
including underwriters, securities brokers and dealers, banks, trust companies,
and clearing corporations. Indirect access to Cedelbank is also available to
others, including banks, brokers, dealers and trust companies that clear through
or maintain a custodial relationship with a Cedelbank participant, either
directly or indirectly.
The Euroclear System was created in 1968 to hold securities for its
participants and to clear and settle transactions between Euroclear participants
through simultaneous electronic book-entry delivery against payment. This
eliminates the need for physical movement of notes. Transactions may be settled
in any of 32 currencies, including U.S. dollars.
The Euroclear System is operated by Morgan Guaranty Trust Company of New
York, Brussels, Belgium office, the Euroclear operator, under contract with
Euroclear Clearance System, Societe Cooperative, a Belgium cooperative
corporation, the Euroclear 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
Euroclear cooperative. The board of the Euroclear cooperative establishes policy
for the Euroclear System.
Euroclear participants include banks, including central banks, securities
brokers and dealers and other professional financial intermediaries. Indirect
access to the
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Euroclear System is also available to other firms that maintain a custodial
relationship with a Euroclear participant, either directly or indirectly.
Securities clearance accounts and cash accounts with the Euroclear operator
are governed by the Terms and Conditions Governing Use of Euroclear and the
related Operating Procedures of the Euroclear System. These terms and conditions
govern transfers of securities and cash within the Euroclear System, withdrawal
of securities and cash from the Euroclear System, and receipts of payments for
securities in the Euroclear System. All securities in the Euroclear System are
held on a fungible basis without attribution of specific notes to specific
securities clearance accounts. The Euroclear operator acts under these 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 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 its depositary. These distributions must be reported for
tax purposes in accordance with United States tax laws and regulations.
Cedelbank or the Euroclear operator, as the case may be, will take any other
action permitted to be taken by a Class A noteholder on behalf of a Cedelbank
participant or Euroclear participant only in accordance with its rules and
procedures, and depending on its depositary's ability to effect these actions on
its behalf through DTC.
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 these procedures and these procedures may be discontinued at
any time.
Definitive Notes
Notes issued in definitive form are referred to in this prospectus as
"definitive notes." A class of Class A notes will be issued as definitive notes,
rather than in book entry form to DTC or its nominees, only if one of the
following events occurs:
o the principal paying agent advises the manager in writing that DTC is
no longer willing or able to discharge properly its responsibilities
as depository for the class of notes, and the manager is not able to
locate a qualified successor;
o the issuer trustee, at the direction of the manager, advises the
principal paying agent in writing that it elects to terminate the
book-entry system through DTC; or
o after the occurrence of an event of default, the note trustee, at the
written direction of noteholders holding a majority of the outstanding
principal balance of a class of notes, advises the issuer trustee and
the principal paying agent, that the continuation of a book-entry
system is no longer in the best interest of the noteholders of that
class.
If any of these events occurs, DTC is required to notify all of its
participants of the availability of definitive notes. Each class of Class A
notes will be serially numbered if issued in definitive form.
Definitive notes will be transferable and exchangeable at the offices of
the note registrar, which is initially the principal paying agent located at
HSBC Bank USA,
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Issuer Services, 140 Broadway, 12th Floor, New York, New York 10005-1180, and at
Midland Bank plc, HSBC Issuer Services, Mariner House, Pepys Street, London EC3N
4DA United Kingdom. The note registrar will not impose a service charge for any
registration of transfer or exchange, but may require payment of an amount
sufficient to cover any tax or other governmental charge. The note registrar
will not be required to register the transfer or exchange of definitive notes
within the thirty days preceding a quarterly distribution date for the
definitive notes. Distributions on the Notes
Collections in respect of interest and principal will be received during
each monthly collection period. Collections include the following:
o interest and principal receipts from the housing loans;
o proceeds from enforcement of the housing loans;
o proceeds from claims under the mortgage insurance policies; and
o payments by the seller, the servicer or the custodian relating to
breaches of their representations or undertakings.
The issuer trustee will make some payments on a monthly basis on each
monthly payment date, which will primarily be to the providers of support
facilities to the trust. The issuer trustee will make the majority of its
payments on a quarterly basis on each quarterly payment date, including payments
to noteholders. On each quarterly payment date, the principal paying agent will
distribute principal and interest, if any, to the registered Class A noteholders
as of the related quarterly determination date if the Class A notes are held in
book-entry form, or, if the Class A notes are held in definitive form, the last
day of the prior calendar month.
Key Dates and Periods
The following are the relevant dates and periods for the allocation of
cashflows and their payments.
Monthly Collection Period............. in relation to a monthly payment date,
means the calendar month which precedes
the calendar month in which the monthly
payment date occurs. However, the first
and last monthly collection periods are
as follows:
o first: period from and including
the cut-off date to and including
November 15, 1999
o last: period from but excluding the
last day of the calendar month
preceding the termination date to
and including the termination date
Monthly Determination Date............ The date which is 2 business days
before a monthly payment date
Monthly Payment Date.................. 15th day of each of January, March,
April, June, July, September, October
and December, or, if 15th day is not a
business day, then the next business
day, unless that business day falls in
the next calendar month, in which case
the monthly payment date will be the
preceding business day, beginning in
December, 1999
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Quarterly Collection Period........... in relation to a quarterly payment date,
means the three monthly collection
periods that precede the calendar month
in which the quarterly payment date
falls. However, the first and last
quarterly collection periods are as
follows:
o first: period from and including
the cut-off date to and including
October 31, 1999.
o last: period from but excluding the
last day of the prior quarterly
collection period to and including
the termination date.
Quarterly Determination Date.......... The date which is 2 business days before
a quarterly payment date
Quarterly Payment Date................ 15th day of each of November, February,
May and August, or, if 15th day is not a
business day, then the next business
day, unless that business day falls in
the next calendar month, in which case
the quarterly payment date will be the
preceding business day, beginning in
November, 1999
Example Calendar
The following example calendar for a quarter assumes that all relevant days
are business days:
Monthly Collection Period............. August 1st to August 31st
Monthly Determination Date............ September 13th
Monthly Payment Date.................. September 15th
Monthly Collection Period............. September 1st to September 30th
Monthly Determination Date............ October 13th
Monthly Payment Date.................. October 15th
Monthly Collection Period............. October 1st to October 31st
Quarterly Collection Period........... August 1st to October 31st
Quarterly Determination Date.......... November 13th
Quarterly Payment Date................ November 15th
Interest Period....................... August 15th to November 14th
Calculation of Total Available Funds
On each determination date, the manager will calculate the Available
Income, principal draws and liquidity draws for the immediately preceding
collection period. The sum of those amounts is the Total Available Funds.
Available Income
Available Income for a monthly collection period means the aggregate of:
o the Finance Charge Collections for that collection period, which are:
o the aggregate of all amounts received by or on behalf of the
issuer trustee during that collection period in respect of
interest, fees and other
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amounts in the nature of income payable under or in respect of
the housing loans and related security and other rights with
respect to the housing loans, including:
o amounts on account of interest recovered from the
enforcement of a housing loan;
o any payments by the seller
to the issuer trustee on the repurchase of a housing loan
during that collection period which are attributable to
interest;
o any break fees paid by borrowers under fixed rate housing
loans received during that collection period; and
o any amount paid to the issuer trustee by the seller equal to
the amount of any interest which would be payable by the
seller to a borrower on amounts standing to the credit of
the borrower's loan offset account if interest was payable
on that account, to the extent attributable to interest on
the housing loan;
o all other 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:
o from the seller, the servicer, the manager, the issuer
trustee in its personal capacity, in respect of a
breach in relation to which it is not entitled to be
indemnified out of the assets of the trust, or the
custodian, in respect of any breach of a
representation, warranty or undertaking contained in
the transaction documents; and
o from the seller, the servicer, the indemnifier, the
manager or the custodian, under any obligation under
the transaction documents, to indemnify or reimburse
the issuer trustee for any amount or from the issuer
trustee in its personal capacity under any obligation
under the transaction documents to indemnify the trust,
in each case which the manager determines to be in respect of
interest, fees and other amounts in the nature of income payable
under the housing loans and related security and other rights
with respect thereto; and
o recoveries in the nature of income received, after a Finance
Charge Loss or Principal Loss has arisen, by or on behalf of the
issuer trustee during that collection period;
less:
o governmental charges collected by or on behalf of the issuer
trustee for that collection period; and
o the aggregate of all bank fees and charges due to the servicer or
the seller from time to time as agreed by them and consented to
by the issuer trustee, that consent not to be unreasonably
withheld, and collected by the seller or the servicer during that
collection period;
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plus:
o to the extent not included in Finance Charge Collections:
o any amount received by or on behalf of the issuer 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 the basis swap or the fixed-floating rate swap;
o any interest income received by or on behalf of the issuer trustee
during that collection period in respect of funds credited to the
collection account;
o amounts in the nature of interest otherwise paid by the seller, the
servicer or the manager to the issuer trustee in respect of
collections held by it;
o all other amounts received by or on behalf of the issuer trustee in
respect of the assets of the trust in the nature of income; and
o all amounts received by or on behalf of the issuer trustee in the
nature of interest during that collection period from any provider of
a support facility, other than the redraw facility, under a support
facility, including any amounts received under a mortgage insurance
policy by way of a timely payment cover, and which the manager
determines should be accounted for in respect of a Finance Charge
Loss;
o but excluding any interest credited to a collateral account of a
support facility.
Available Income for a quarterly collection period will be the sum of the
Available Income for the three monthly collection periods included in that
quarterly collection period.
Principal Draws
If the manager determines on any determination date that the Available
Income of the trust for the collection period ending immediately prior to that
determination date is insufficient to meet Total Payments of the trust for that
collection period, then the manager will direct the issuer trustee to apply
Principal Collections collected during that collection period to cover the
Payment Shortfall to the extent available. These principal draws will be
reimbursed out of any Excess Available Income available for this purpose on
subsequent payment dates.
Liquidity Draws
If the manager determines on any determination date that the related
Payment Shortfall, if any, will not be covered fully by a principal draw, the
manager must direct the issuer trustee to make a liquidity draw on the liquidity
account in an amount equal to the lesser of the amount of the shortfall or the
amount remaining in the liquidity account.
Distribution of Total Available Funds
In relation to a collection period, all amounts payable by the issuer
trustee as described in one of the next two subsections, as applicable, on the
payment date relating to that collection period, constitute Total Payments.
Monthly Total Payments
On each monthly payment date, but not a quarterly payment date, based on
the calculations, instructions and directions provided to it by the manager, the
issuer trustee must pay or cause to be paid out of Total Available Funds, in
relation to the
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monthly collection period ending immediately before that monthly payment date,
the following amounts in the following order of priority:
o first, an amount equal to the Accrued Interest Adjustment to the
seller;
o second, repayment to the mortgage insurer, of any payment in the
nature of income received from a borrower for which the mortgage
insurer previously paid under the related mortgage insurance policy by
way of a timely payment cover;
o third, any interest payable by the issuer trustee under the redraw
facility; and
o fourth, any repayment of a liquidity draw made on or prior to the
previous monthly payment date.
Quarterly Total Payments
On each quarterly payment date, based on the calculations, instructions and
directions provided to it by the manager, the issuer trustee must pay or cause
to be paid out of Total Available Funds, in relation to the quarterly collection
period ending immediately before that quarterly payment date, the following
amounts in the following order of priority:
o first, an amount equal to the Accrued Interest Adjustment to the
seller;
o second, repayment to the mortgage insurer, of any payment in the
nature of income received from a borrower for which the mortgage
insurer previously paid under the related mortgage insurance policy by
way of a timely payment cover;
o third, payment to the fixed-floating rate swap provider under the
fixed-floating rate swap of any break fees received from a borrower or
the mortgage insurer during the quarterly collection period;
o fourth, unless specified later in this paragraph, Trust Expenses which
have been incurred prior to that quarterly payment date and which have
not previously been paid or reimbursed, in the order set out in the
definition of Trust Expenses;
o fifth, pro rata between themselves:
o any fees, including the availability fee, payable by the issuer
trustee under the redraw facility;
o any fees payable by the issuer trustee under the basis swap; and
o any fees payable by the issuer trustee under the fixed-floating
rate swap;
o sixth, any amounts that would have been payable under this paragraph,
other than under the tenth bullet point of this section, on any
previous quarterly payment date, if there had been sufficient Total
Available Funds, which have not been paid by the issuer trustee, in
the order they would have been paid under that prior application of
funds as described in this section;
o seventh, payments to the mortgage insurer of the difference between
any overpayments by the mortgage insurer of amounts in respect of
interest, for which the mortgage insurer has not been previously
reimbursed, and the aggregate of the Excess Distributions paid to
the beneficiary on previous quarterly payment dates.
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o eighth, pro rata between themselves:
o any interest payable by the issuer trustee under the redraw
facility;
o any amounts payable by the issuer trustee under the basis swap or
the fixed-floating rate swap not included in the preceding
clauses;
o any repayment of a liquidity draw made on or prior to the
previous payment date; and
o the payment to the currency swap provider of the A$ Class A
Interest Amount at that date, which is thereafter to be applied
to payments of interest on the Class A notes;
o ninth, any amounts that would have been payable under the next
clause, on any previous quarterly payment date, if there had been
sufficient Total Available Funds, which have not been paid by the
issuer trustee; and
o tenth, the payment of the interest on the Class B notes.
The issuer trustee shall only make a payment described in any of the
preceding clauses 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.
Trust Expenses
Trust Expenses are, in relation to a collection period, in the following
order of priority:
o first, taxes payable in relation to the trust for that collection
period;
o second, any expenses relating to the trust for that collection period
which are not already covered in the following seven clauses;
o third, pro rata, the issuer trustee's fee, the security trustee's fee
and the note trustee's fee for that collection period;
o fourth, the servicer's fee for that collection period;
o fifth, the manager's fee for that collection period;
o sixth, the custodian's fee for that collection period;
o seventh, pro rata, any fee or expenses payable to the principal paying
agent, any other paying agent or the calculation agent under the
agency agreement;
o eighth, any costs, charges or expenses, other than fees, incurred by,
and any liabilities owing under any indemnity granted to, the
underwriters, the manager, the security trustee, the servicer, the
note trustee, a paying agent or the calculation agent in relation to
the trust under the transaction documents, for that collection period;
and
o ninth, any amounts payable by the issuer trustee to the currency swap
provider upon the termination of the currency swap.
Interest on the Notes
Calculation of Interest Payable on the Notes
Up to, and including, the quarterly payment date falling in November, 2006,
the interest rate for the Class A-1 notes for the related Interest Period will
be equal to LIBOR on the quarterly determination date immediately prior to the
start of that
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Interest Period plus %. If the issuer trustee has not redeemed all of the Class
A-1 notes by the quarterly payment date falling in November, 2006, then the
interest rate for each related Interest Period commencing on or after that date
will be equal to LIBOR on the related quarterly determination date plus %. The
interest rate on the Class A-1 notes for the first Interest Period will be
determined on September , 1999.
Up to, and including, the quarterly payment date falling in November, 2006,
the interest rate for the Class A-2 notes for the related Interest Period will
be equal to LIBOR on the quarterly determination date immediately prior to the
start of that Interest Period plus %. If the issuer trustee has not redeemed all
of the Class A-2 notes by the quarterly payment date falling in November, 2006,
then the interest rate for each related Interest Period commencing on or after
that date will be equal to LIBOR on the related quarterly determination date
plus %. The interest rate on the Class A-2 notes for the first Interest Period
will be determined on September , 1999.
Up to, and including, the quarterly payment date falling in November, 2006,
the interest rate for the Class A-3 notes for the related Interest Period will
be equal to LIBOR on the quarterly determination date immediately prior to the
start of that Interest Period plus %. If the issuer trustee has not redeemed all
of the Class A-3 notes by the quarterly payment date falling in November, 2006,
then the interest rate for each related Interest Period commencing on or after
that date will be equal to LIBOR on the related quarterly determination date
plus %. The interest rate on the Class A-3 notes for the first Interest Period
will be determined on September , 1999.
The interest rate for the Class B notes for a particular Interest Period
will be equal to the Three Month Bank Bill Rate on the quarterly determination
date immediately prior to the start of that Interest Period plus %. The
interest rate on the Class B notes for the first Interest Period will be
determined on September , 1999.
With respect to any payment date, interest on the notes will be calculated
as the product of:
o the outstanding principal balance 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;
o the interest rate for such class of notes for that Interest Period;
and
o a fraction, the numerator of which is the actual number of days in
that Interest Period and the denominator of which is 360 days for the
Class A notes, or 365 days for the Class B notes.
A note will stop earning interest on any date on which the Stated Amount of
the note is zero or, if the Stated Amount of the note is not zero on the due
date for redemption of the note, then on the due date for redemption, unless
payment of principal is improperly withheld or refused, following which the note
will continue to earn interest until the later of the date on which the note
trustee or principal paying agent receives the moneys in respect of the notes
and notifies the holders of that receipt or the date on which the Stated Amount
of the note has been reduced to zero.
A note will begin earning interest again from and including any date on
which its Stated Amount becomes greater than zero.
Calculation of LIBOR
On the second banking day in London and New York before the beginning of
each Interest Period, the calculation agent will determine LIBOR for the next
Interest Period.
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Excess Available Income
General
On each quarterly determination date, the manager must determine the
amount, if any, by which the Total Available Funds for the quarterly collection
period ending immediately prior to that quarterly determination date exceed the
Total Payments for that same quarterly collection period.
Distribution of Excess Available Income
On each quarterly determination date, the manager must apply any Excess
Available Income for the related quarterly collection period in the following
order of priority:
o first, to reimburse all Principal Charge Offs for that quarterly
collection period;
o second, pro rata between themselves, based on the Redraw Principal
Outstanding and the A$ Equivalent of the Stated Amount of the Class A
notes;
o to pay the currency swap provider the A$ Equivalent of any
Carryover Class A Charge Offs; and
o to repay the redraw facility, as a reduction of, and to the
extent of, any Carryover Redraw Charge Offs;
o third, to repay all principal draws which have not been repaid as of
that quarterly payment date;
o fourth, as a payment to the Class B noteholders in or towards
reinstating the Stated Amount of the Class B notes to the extent of
any Carryover Class B Charge Offs;
o fifth, at the direction of the manager, to pay the residual
beneficiary any remaining Excess Available Income.
The issuer trustee shall make a payment described in the preceding clauses
only if the manager directs it in writing to do so and only 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.
Any amount applied pursuant to the first five clauses above will be treated
as Principal Collections.
Once distributed to the residual beneficiary, any Excess Available Income
will not be available to the issuer trustee to meet its obligations in respect
of the trust in subsequent periods unless there has been a manifest error in the
relevant calculation of the amount distributed to the residual beneficiary. The
issuer trustee will not be entitled or required to accumulate any surplus funds
as security for any future payments on the notes.
Gross Principal Collections
On each determination date, the manager must determine Gross Principal
Collections for the collection period ending immediately prior to that
determination date. Gross Principal Collections are the sum of:
o all amounts received by or on behalf of the issuer trustee from or on
behalf of borrowers under the housing loans in accordance with the
terms of the
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housing loans during that collection period in respect of principal,
including principal prepayments;
o all other amounts received by or on behalf of the issuer trustee under
or in respect of principal under the housing loans and related
security and other rights with respect thereto during that collection
period, including:
o amounts on account of principal recovered from the enforcement of
a housing loan, other than under a mortgage insurance policy; and
o any payments by the seller to the issuer trustee on the
repurchase of a housing loan under the master trust deed during
that collection period which are attributable to principal;
o any amount paid to the issuer trustee by the seller equal to the
amount of any interest which would be payable by the seller to a
borrower on a housing loan on amounts standing to the credit of
the borrower's loan offset account if interest was payable on
that account to the extent attributable to principal on the
housing loan.
o all amounts received by or on behalf of the issuer trustee during that
collection period from the mortgage insurer, pursuant to a mortgage
insurance policy, or any provider of a support facility, other than
the currency swap, under the related support facility and which the
manager determines should be accounted for in respect of a Principal
Loss;
o all amounts received by or on behalf of the issuer trustee during that
collection period:
o from the seller, the servicer, the manager, AXA Trustees Limited,
in its personal capacity, or the custodian in respect of any
breach of a representation, warranty or undertaking contained in
the transaction documents, and in the case of AXA Trustees
Limited and the manager, in respect of a breach of which it is
not entitled to be indemnified out of the assets of the trust;
and
o from the seller, the servicer, the indemnifier, the manager or
the custodian under any obligation under the transaction
documents to indemnify or reimburse the issuer trustee for any
amount or from AXA Trustees Limited, in its personal capacity,
under any obligation under the transaction documents to indemnify
the trust,
in each case, which the manager determines to be in respect of
principal payable under the housing loans and related mortgages;
o 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 assets of the trust, including the A$ Equivalent of any amount
received by the issuer trustee on the issue of the notes which was not
used to purchase a housing loan, and which the manager determines is
surplus to the requirements of the trust;
o any amount of Excess Available Income to be applied to pay a Principal
Charge Off or a carryover charge off on a note;
o any amount of Excess Available Income to be applied to repay Principal
Draws made on a previous payment date; and
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o any amount released from the liquidity account because of a reduction
in the liquidity reserve amount.
On the closing date, the sum of the A$ Equivalent of the total initial
outstanding principal amount of the Class A notes and the total initial
outstanding principal 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 quarterly payment date.
Principal Collections for a collection period means:
o the Gross Principal Collections for that collection period; less
o any amounts deducted by or paid to the seller in that collection
period to reimburse redraws funded by the seller for which the seller
has not previously been reimbursed; less
o any amounts paid by the issuer trustee to replace a housing loan.
Principal Distributions
Monthly
On any monthly payment date in accordance with the calculations,
instructions and directions provided to it by the manager, the issuer trustee
must distribute or cause to be distributed out of Principal Collections, in
relation to the monthly collection period ending immediately before that monthly
payment date, the following amounts in the following order of priority:
o first, repayment to the mortgage insurer of any payment in the nature
of principal received from a borrower for which the mortgage insurer
previously paid under the relevant mortgage insurance policy by way of
a timely payment cover;
o second, to allocate to Total Available Funds any principal draw;
o third, to retain in the collection account as a provision such amount
as the manager determines is appropriate to make for any anticipated
shortfalls in Total Payments on the following monthly payment date or
quarterly payment date; and
o fourth, subject to the limits described under "Description of the
Transaction Documents - The Redraw Facility", to repay all Redraw
Principal Outstanding under the redraw facility on the payment date.
Quarterly
On each quarterly payment date, and in accordance with the calculations,
instructions and directions provided to it by the manager, the issuer trustee
must distribute or cause to be distributed out of Principal Collections, in
relation to the quarterly collection period ending immediately before that
quarterly payment date, the following amounts in the following order of
priority:
o first, repayment to the mortgage insurer of any payment in the nature
of principal received from a borrower for which the mortgage insurer
previously paid under the relevant mortgage insurance policy by way of
a timely payment cover;
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o second, to allocate to Total Available Funds any principal
draws;
o third, to retain in the collection account as a provision,
such amount as the manager determines is appropriate to make
up for any anticipated shortfalls in Total Payments on the
following monthly payment date or quarterly payment date;
o fourth, subject to the limits described under "Description of
the Transaction Documents - The Redraw Facility", to repay any
redraws provided by the seller in relation to housing loans to
the extent that it has not previously been reimbursed in
relation to those redraws;
o fifth, to repay all Redraw Principal Outstanding under the
redraw facility on that payment date;
o sixth, to retain in the collection account as a provision to
reimburse further redraws an amount equal to the Redraw
Retention Amount for the next quarterly collection period;
o seventh, as a payment to the currency swap provider under the
confirmation relating to the Class A-1 notes, an amount equal
to the lesser of:
o the remaining amount available for distribution; and
o the A$ Equivalent of outstanding principal balance of
all Class A-1 notes,
which is thereafter to be applied as payments of principal
on the Class A-1 notes;
o eighth, as a payment, to the currency swap provider under the
confirmation relating to the Class A-2 notes, of an amount
equal to the lesser of:
o the remaining amount available for distribution; and
o the A$ Equivalent of outstanding principal balance of
all Class A-2 notes, and
which is thereafter to be applied as payments of principal
on the Class A-2 notes;
o ninth, as a payment, to the currency swap provider under the
confirmation relating to the Class A-3 notes, of an amount
equal to the lesser of:
o the remaining amount available for distribution; and
o the A$ Equivalent of outstanding principal balance of all
Class A-3 notes,
which is thereafter applied as payments of principal on the
Class A-3 notes; and
the Class B, an amount equal to the lesser of:
o the remaining amount available for distribution; and
o the outstanding principal balance of all Class B notes,
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o eleventh, on the business day immediately following the date
on which all Secured Moneys are fully and finally repaid, and
only after payment of all amounts referred to in the preceding
clauses, the issuer trustee must pay remaining Principal
Collections to the seller in reduction of the principal
outstanding under the loan from the seller to the issuer
trustee, for the purchase of the housing loans, as a full and
final settlement of the obligations of the issuer trustee
under that loan.
The issuer trustee shall only make a payment under any of the first ten
bullet points above if the manager directs it in writing to do so and only to
the extent that any Principal Collections remain from which to make the payment
after amounts with priority to that payment have been distributed.
Redraws
The seller, after receiving confirmation that it may do so from the
manager, may make redraws to borrowers under the housing loans. The issuer
trustee and the manager irrevocably authorize the seller to deduct from Gross
Principal Collections to reimburse itself for any redraw for which it has not
previously been reimbursed.
On each quarterly determination date the manager shall determine an
amount, not to exceed 2% of the outstanding principal balance of the notes,
which it reasonably anticipates will be required in the following quarterly
collection period to fund further redraws under housing loans in addition to any
prepayments of principal that it anticipates will be received from borrowers
during that quarterly collection period. The manager shall on the day of such
determination advise the issuer trustee of the amount so determined.
In addition to the seller's right of reimbursement, the issuer trustee
shall, on each business day it receives a direction from the manager to do so,
reimburse the seller for redraws made on or before that business day for which
it has not yet received reimbursements but only to the extent of the aggregate
of:
o the Redraw Retention Amount for that quarterly collection
period to the extent it has been funded; and
o any amount which the manager is entitled to direct the issuer
trustee to draw under the redraw facility at that time.
If the manager determines on any business day that there is a Redraw
Shortfall, the manager may on that date direct the issuer trustee in writing to
make a drawing under the redraw facility on that business day or any other
business day equal to the amount which the issuer trustee is permitted to draw
under the terms of the redraw facility at that time.
Application of Principal
Charge Offs Allocating Liquidation Loss
On each quarterly determination date, the manager must determine the
following, in relation to the aggregate of all Liquidation Losses arising during
the related quarterly collection period:
o the amount of those Liquidation Losses which are Finance
Charge Losses; and
o the amount of those Liquidation Losses which are Principal
Losses.
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The characterization of Liquidation Losses will be made on the basis that all
amounts recovered from the enforcement of housing loans actually received by or
on behalf of the issuer trustee are applied first against interest, fees and
other enforcement expenses, other than expenses related to property restoration,
relating to that housing loan, and then against the principal outstanding on the
housing loan and expenses related to property restoration relating to that
housing loan.
Insurance Claims
If, on any monthly determination date, the manager determines that
there has been a Liquidation Loss in relation to a housing loan during the
immediately preceding monthly collection period, the manager shall direct the
servicer, promptly, and in any event so that the claim is made within the time
limit specified in the relevant mortgage insurance policy without the amount of
the claim becoming liable to be reduced by reason of delay, to make a claim
under that mortgage insurance policy if it has not already done so. The manager
will use its best efforts to ensure that the servicer promptly makes any claims
required by way of a timely payment cover in accordance with the terms of the
servicing agreement.
Upon receipt of any amount under a claim, the 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 the amount is attributable to principal.
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 the
following:
o the maximum amount available under the mortgage insurance
policy has been exhausted;
o the mortgage insurance policy has been terminated in respect
of that housing loan;
o the mortgage insurer is entitled to reduce the amount of the
claim;
o or the mortgage insurer defaults in payment of a claim;
then a Mortgage Shortfall will arise if:
o the total amount recovered and recoverable under the mortgage
insurance policy attributable to principal; plus
o any damages or other amounts payable by the seller or the
servicer under or in respect of the master trust deed, the
supplementary terms notice or the servicing agreement relating
to the housing loan which the manager determines to be on
account of principal;
is insufficient to meet the full amount of the Principal Loss.
The aggregate amount of all Mortgage Shortfalls for a collection
period will be applied to reduce the Stated Amounts of the notes as described in
the following subsection. Principal Charge Offs
If the Principal Charge Offs for any quarterly collection period exceed
the Excess Available Income calculated on the quarterly determination date for
that quarterly collection period, the manager must do the following, on and with
effect from the quarterly payment date immediately following the end of the
quarterly collection period:
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o reduce pro rata as between themselves the Stated Amount of the
Class B notes by the amount of that excess until the Stated
Amount of the Class B notes is zero; and
o if the Stated Amount of the Class B notes is zero and any
amount of that excess has not been applied under the preceding
paragraph, reduce pro rata as between the Class A notes and
the redraw facility with respect to the balance of that
excess:
o pro rata as between each of the Class A notes, the
Stated Amount of each of the Class A notes, until the
Stated Amount of that Class A note is zero; and
o the Redraw Principal Outstanding under the redraw
facility, applied against draws under the redraw
facility in reverse chronological order of their
drawdown dates, until the Redraw Principal
Outstanding is zero.
Payments into US$ Account
The principal paying agent shall open and maintain a US$ account into
which the currency swap provider shall deposit amounts denominated in US$. The
issuer trustee shall direct the currency swap provider to pay all amounts
denominated in US$ payable to the issuer trustee by the currency swap provider
under the currency swap into the US$ account or to the principal paying agent on
behalf of the issuer trustee. If any of the issuer trustee, the manager or the
servicer receives any amount denominated in US$ from the currency swap provider
under the currency swap, they will also promptly pay that amount to the credit
of the US$ account. Payments out of US$ Account
Payments out of US$ Account
The principal paying agent, on behalf of the issuer trustee and acting
at the direction of the manager, will distribute the following amounts from the
US$ account in accordance with the note trust deed and the agency agreement on
each payment date pro rata between the relevant notes and to the extent payments
relating to the following amounts were made to the currency swap provider:
o interest on the Class A-1 notes, the Class A-2 notes and the
Class A-3 notes;
extent of Carryover Class A Charge Offs;
o principal on the Class A-1 notes, until their outstanding
principal balance is reduced to zero;
o principal on the Class A-2 notes, until their outstanding
principal balance is reduced to zero; and
o principal on the Class A-3 notes, until their outstanding
principal balance is reduced to zero.
The Interest Rate Swaps Fixed-Floating Rate Swap
The issuer trustee will enter into a swap governed by an ISDA Master
Agreement, as amended by a supplementary schedule and confirmed by two written
confirmations, with the fixed-floating
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rate swap provider and the standby fixed-floating rate swap provider to hedge
the basis risk between the interest rate on the fixed rate housing loans and the
floating rate obligations of the trust, including the interest due on the notes.
The fixed-floating rate swap will cover the housing loans which bear a fixed
rate of interest as of the cut-off date and those variable rate housing loans
which at a later date convert to a fixed rate of interest. The obligations of
the fixed-floating rate swap provider are supported by the standby
fixed-floating rate swap provider.
The issuer trustee will pay the fixed-floating rate swap provider on
each quarterly payment date an amount equal to the sum of the principal balance
of each of the housing loans, including housing loans that are delinquent, which
is subject to a fixed rate of interest at the beginning of the quarterly
collection period immediately preceding that quarterly payment date, multiplied
by the weighted average of those fixed rates of interest at the beginning of
that quarterly collection period times the actual number of days in the
quarterly collection period divided by 365. The issuer trustee will also pay the
fixed-floating rate swap provider all break fees from borrowers with fixed rate
loans received during the related quarterly collection period.
The issuer trustee will receive from the fixed-floating rate swap
provider an amount equal to the principal balance of each of the housing loans
which is subject to a fixed rate of interest at the beginning of the quarterly
collection period immediately preceding that quarterly payment date multiplied
by the Three Month Bank Bill Rate plus a fixed margin. The margin is fixed for
the term of the swap and will be set based on the obligations of the trust. The
terms of the fixed-floating rate swap allow for netting of swap payments for
transactions under the one confirmation. If on any quarterly payment date, the
issuer trustee does not or is unable to make the full payment due to the
fixed-floating rate swap provider, the payment to be made by the fixed-floating
rate swap provider on such quarterly payment date will be reduced by the same
proportion as the reduction in the payment from the issuer trustee.
The fixed-floating rate swap, including the obligations of the standby
fixed-floating rate swap provider, commences on the date specified in the
relevant confirmation and terminates on the final maturity date of the notes,
unless terminated earlier in accordance with the fixed-floating rate swap.
Basis Swap
The issuer trustee will enter into a swap governed by an ISDA Master
Agreement, as amended by a supplementary schedule and confirmed by a written
confirmation, with the basis swap provider and the standby basis swap provider
to hedge the basis risk between the discretionary interest rate applicable on
the variable rate housing loans and the floating rate obligations of the trust
to the currency swap provider. The basis swap will cover the housing loans which
bear a variable rate of interest as of the cut-off date and those fixed rate
housing loans which at a later date convert to a variable rate of interest.
The issuer trustee will pay the basis swap provider on each quarterly
payment date an amount based on the applicable daily weighted average of the
variable rate on those housing loans which are subject to a variable rate of
interest and receive from the basis swap provider the applicable Three Month
Bank Bill Rate plus a fixed margin. The margin is fixed for the term of the swap
and will be set based on the obligations of the trust. The terms of the basis
swap allow for netting of swap payments for transactions under the one
confirmation. If on any quarterly payment date, the issuer trustee does not or
is unable to make the full payment due to the basis swap provider, the payment
to be made by the basis swap provider on such
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quarterly payment date will be reduced by the same proportion as the reduction
in the payment from the issuer trustee.
The basis swap commences on the date specified in the relevant
confirmation and terminates on the date 364 days later unless the basis swap
provider extends the swap in accordance with the terms of the basis swap. The
obligations of the standby basis swap provider commence on the same day as the
basis swap and terminate 364 days later, unless extended by the standby basis
swap provider in accordance with the basis swap, with the consent of the basis
rate swap provider.
Application of Increased Interest
After the interest rates on the notes increase after the quarterly
payment date in November, 2006, the manager must not direct the issuer trustee
to enter into or extend a swap confirmation unless the manager is of the opinion
that the amounts payable by the relevant swap provider to the issuer trustee in
relation to that confirmation are calculated with reference to that increased
interest rate.
Standby Arrangement
If a swap provider is obligated to make a payment under a swap and the
relevant standby swap provider receives notice from the manager requiring the
standby swap provider to make the required payment, the standby swap provider
will make the standby payment specified in the notice.
The standby basis swap provider is only obligated to make one payment
relating to the basis swap. After that payment, the basis swap will be
terminated. The standby fixed-floating rate swap provider is obligated to make
all the remaining payments under the fixed-floating rate swap that the
fixed-floating rate swap provider fails to make.
Threshold Rate
If at any time the basis swap is terminated, the manager must, on the
earlier of three business days after the termination and the determination date
immediately following the termination, calculate the threshold rate as of that
date and notify the issuer trustee, the servicer and the seller of the threshold
rate on the relevant payment date. The threshold rate means, at any time, 0.25%
per annum plus the minimum rate of interest that must be set on all of the
housing loans, where permitted under the related loan agreements, which will be
sufficient, assuming that all of the parties to the transaction documents and
the housing loans comply with their obligations under the transaction documents
and the housing loans, when aggregated with the income produced by the rate of
interest on all other housing loans, to ensure that the issuer trustee will have
sufficient collections to enable it to meet all of the obligations of the trust,
including the repayment of any principal draws. The manager must also set the
rate on the housing loans, where permitted under the related loan agreement, at
the threshold rate for each successive determination date for so long as the
basis swap has not been replaced by a similar interest hedge, or until the
issuer trustee and manager agree that the interest rate on the variable rate
housing loans no longer needs to be set at the threshold rate, and that does not
result in a downgrading of the notes.
If the servicer is notified by the manager of the threshold rate, it
will, not more than seven business days after termination of the basis swap,
ensure that the interest rate payable on each variable rate housing loan is set
at a rate not less than the threshold rate, and will promptly notify the
relevant borrowers of the change in accordance with the housing loans.
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Downgrades
If the standby swap provider's rating is withdrawn or downgraded and as
a result, the standby swap provider has:
o a long term credit rating of less than A- and a short term credit
rating of less than A-1 by Standard & Poor's, a long term credit rating
by Moody's of less than A3 or a short term credit rating by Fitch IBCA
of less than F1, then within 5 business days or any longer period
agreed by the relevant rating agency; or
o a long term credit rating of A- or higher and a short term credit
rating of A-1 or higher by Standard & Poor's, a long term credit rating
by Moody's of A3 or higher and a short term credit rating by Fitch IBCA
of F1 or higher, then within 30 days or any greater period agreed by
the relevant rating agency,
the swap provider must:
o provide cash collateral; or
o replace the standby swap provider with a party that has a rating
greater than or equal to A-1+ by Standard & Poor's, F1+ by Fitch IBCA
and who is suitably rated so that its appointment will not result in a
downgrade of the notes by Moody's and which each rating agency confirms
will not result in a downgrade or withdrawal of its rating of the
notes; or
o enter into other arrangements which each rating agency confirms in
writing will avoid or reverse any note downgrade.
If the standby swap provider's obligations under a swap are terminated or the
swap provider receives notice from the manager of an actual or proposed
withdrawal or downgrade of the rating of the notes below a AAA long term rating
by Standard & Poor's, Aaa long term rating by Moody's and AAA long term rating
by Fitch IBCA, then:
o within 30 business days if the swap provider's long term rating is not
below A- and its short term rating is not below A-1 by Standard &
Poor's; or
o within 5 business days if the swap provider's long term rating is below
A- and its short term rating is below A-1 by Standard & Poor's,
the swap provider must:
o provide cash collateral; or
o replace the standby swap provider with a party that has a rating
greater than or equal to A-1+ by Standard & Poor's, F1+ by Fitch IBCA
and who is suitably rated so that its appointment will not result in a
downgrade of the notes by Moody's and which each rating agency confirms
will not result in a downgrade or withdrawal of its rating of the
notes; or
o enter into other arrangements which each rating agency confirms in
writing will avoid or reverse any note downgrade.
Swap Collateral Account
If a swap provider or standby swap provider provides cash collateral
to the issuer trustee, the manager must direct the issuer trustee, and the
issuer trustee must, as soon as is practicable:
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o establish and maintain in the name of the issuer trustee a
swap collateral account with an Approved Bank having a
short-term credit rating of A-1+ from Standard & Poor's
and Fl+ from Fitch IBCA and who is suitably rated by Moody's
such that the deposit does not cause a downgrade or
withdrawal of the rating of any notes, or which otherwise
satisfies the requirements of the rating agencies; and
o the swap provider on the standby swap provider must deposit
the cash collateral in the swap collateral account.
The issuer trustee may only make withdrawals from the swap collateral
account upon the direction of the manager and only for the purpose of:
o entering into a substitute swap;
o refunding to that swap provider the amount of any reduction in
the swap collateral amount, but only if the ratings of the
notes are not thereby withdrawn or reduced;
o withdrawing any amount which has been incorrectly deposited
into the swap collateral account;
o paying financial institutions duty, bank accounts debit tax or
equivalent taxes payable in respect of the swap collateral
account; or
o funding the amount of any payment due to be made by that swap
provider under the relevant swap following the failure by that
swap provider to make that payment.
Standby Swap Fees
The standby swap providers will receive a standby swap fee. These fees
accrue from day to day and are payable quarterly in arrears on each quarterly
payment date.
Indemnity
Each swap provider agrees to indemnify the standby swap providers
against any loss, charge, liability or expense that the standby swap providers
may sustain or incur as a direct or indirect consequence of the relevant swap
provider's failure to comply with its obligations under a swap, or the manager
requiring that standby swap provider to make a payment under the swap.
Standby Swap Providers
The standby fixed-floating rate swap provider and standby basis swap
provider will be Deutsche Bank AG, Sydney Branch. In Australia, Deutsche Bank
AG, Sydney Branch, is registered as a foreign company with Australian Registered
Body Number 064 165 162. Deutsche Bank AG has had a presence in Australia since
1973 and was granted an Australian banking license under the Banking Act 1959 in
1986 through its subsidiary, Deutsche Bank Australia Limited. Deutsche Bank AG
was granted an Authority to Carry on Banking Business in Australia under the
Banking Act 1959 and commenced operations in Sydney and Melbourne on July 1,
1994. Simultaneously, Deutsche Bank Australia Limited relinquished its banking
licence, with operations continuing through the new branch and various non-bank
subsidiaries. Deutsche Bank AG, Sydney Branch, is a full branch of Deutsche Bank
AG and not a separate legal entity. The branch has full access to the capital of
Deutsche Bank AG. The long term unsecured senior debt of Deutsche Bank AG has
been assigned a rating of AA by Fitch IBCA, AA by Standard & Poor's and Aa3 by
Moody's.
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The Currency Swap
Collections on the housing loans and under the basis swap and the
fixed-floating rate swap will be denominated in Australian dollars. However, the
payment obligations of the issuer trustee on the notes are denominated in United
States dollars. To hedge its currency exposure, the issuer trustee will enter
into a swap agreement with the currency swap provider.
The currency swap comprises three distinct swap transactions, relating
to the Class A-1 notes, the Class A-2 notes and the Class A-3 notes,
respectively. The three swap transactions are separate and several, which means,
for example, that any termination of one of them does not necessarily give rise
to a right to terminate the other. The currency swap will be governed by a
standard form ISDA Master Agreement, as amended by a supplementary schedule and
confirmed by three written confirmations, one relating to each class of Class A
notes.
Under the currency swap, the issuer trustee will pay to the currency
swap provider on each quarterly payment date an amount in Australian dollars
equal to that portion of Principal Collections and Excess Available Income, if
any, to be paid to the noteholders as a payment of principal on the Class A
notes as described in "Description of the Class A Notes - Payments of Principal
on the Notes," and the currency swap provider is required to pay to, or at the
direction of, the issuer trustee an amount denominated in United States dollars
which is equivalent to such Australian dollar payment. The equivalent United
States dollar payment will be calculated using an exchange rate of , which is
fixed for the term of the currency swap.
In addition, under the currency swap on each quarterly payment date the
issuer trustee will pay to the currency swap provider the A$ Class A Interest
Amount and the currency swap provider will pay to the principal paying agent an
amount equal to the interest payable in US$ to the Class A noteholders.
If on any quarterly payment date, the issuer trustee does not or is
unable to make the full floating rate payment, the US$ floating rate payment to
be made by the currency swap provider on such quarterly payment date will be
reduced by the same proportion as the reduction in the payment from the issuer
trustee.
The purchase price for the notes will be paid by investors in United
States dollars, but the consideration for the purchase by the issuer trustee of
equitable title
to the housing loans will be in Australian dollars. On the closing date, the
issuer trustee will pay to the currency swap provider the net proceeds of the
issue of the notes in United States dollars. In return the issuer trustee will
be paid by the currency swap provider the A$ Equivalent of that United States
dollar amount.
Termination by the Currency Swap Provider
The currency swap provider shall have the right to terminate the
currency swap in the following circumstances:
o If the issuer trustee fails to make a payment under the
currency swap within ten business days of its due date;
o An Insolvency Event with respect to the issuer trustee occurs
or the issuer trustee merges into another entity without that
entity properly assuming responsibility for the obligations of
the issuer trustee under the currency swap;
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o If due to a change in law it becomes illegal for the issuer
trustee or the currency swap provider to make or receive
payments or comply with any other material provision of the
currency swap, the currency swap requires such party to make
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 or withdrawal
of the rating of the notes. If those efforts are not
successful, then the currency swap provider will have the
right to terminate the currency swap. 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;
or
o The currency swap provider has the limited right to terminate
where, due to an action of a taxing authority or a change in
tax law, it is required to gross-up payments or receive
payments from which amounts have been withheld, but only if
all of the notes will be redeemed at their outstanding
principal balance or, if the noteholders have so agreed, at
their Stated Amount, plus, in each case, accrued interest.
Termination by the Issuer Trustee
There are a number of circumstances in which the issuer trustee has the
right to terminate the currency swap. In each of these cases it is only
permitted to exercise that right with the prior written consent of the note
trustee:
o Where the currency swap provider fails to make a payment under
the currency swap within ten business days of its due date or
the currency swap provider becomes insolvent or merges into
another entity without that entity properly assuming
responsibility for the obligation of the currency swap
provider under the currency swap or without the benefits of
the security trust deed extending to cover the performance
by that entity of its obligations under the currency swap;
o If due to a change in law it becomes illegal for the
currency swap provider to make or receive payments or comply
with any other material provision of the currency swap, the
currency swap requires such party to make 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 or withdrawal of
the rating of the notes. If those efforts are not successful,
then the issuer trustee 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;
o If the issuer trustee becomes obligated to make a withholding
or deduction in respect of the Class A notes and the Class A
notes are redeemed as a result; or
o If the currency swap provider breaches any obligation to
deposit cash collateral with the issuer trustee or novate or
enter into some other arrangement acceptable to the rating
agencies in the event it is downgraded.
The issuer trustee may only terminate the currency swap with the prior
written consent of the note trustee. Each party may terminate the currency swap
only after consulting with the other party as to the timing of the termination.
The issuer trustee
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will exercise such right to terminate at the direction of the manager. The
currency swap provider acknowledges that the issuer trustee has appointed the
manager as manager of the trust and may exercise or satisfy any of the issuer
trustee's rights or obligations under the currency swap including entering into
and monitoring transactions and executing confirmations.
Downgrade of the Currency Swap Provider
If the currency swap provider's credit rating is downgraded or withdrawn below a
long term rating of AA- or a short term rating of A-1+ by Standard & Poor's, a
long term rating of A3 by Moody's or a long term rating of AA- by Fitch IBCA,
and such a downgrade would adversely affect the rating of the notes given by
Moody's or Fitch IBCA then:
o within 30 business days of a downgrade of its long term credit rating
by Standard & Poor's to not lower than A- together with a downgrade of
its short term rating by Standard & Poor's to not lower than A-1, or
the downgrade of its long term rating by Moody's to not less than [ ]
and its long term rating by Fitch IBCA to not lower than A-; or
o within five business days of any other withdrawal of downgrade,
or such longer period as agreed in writing by the relevant rating agency, the
currency swap provider must:
o provide cash collateral; or
o replace the currency swap provider with a party that each rating agency
confirms will not result in a downgrade or withdrawal of its rating of
the notes; or
o enter into other arrangements which each rating agency confirms will
not result in a downgrade or withdrawal of its rating of the notes.
Termination Payments
On the date of termination of the currency swap, a termination payment
will be due from the issuer trustee to the currency swap provider or from the
currency swap provider to the issuer trustee. The termination of a currency swap
is an event of default under the security trust deed unless the currency swap is
terminated by the currency swap provider under a call exercised by the issuer
trustee.
The termination payment in respect of a currency swap will be
determined on the basis of quotations from four leading dealers in the relevant
market selected by the currency swap provider to enter into a replacement
transaction that would have the effect of preserving the economic equivalent of
any payment that would, but for the early termination, have been required under
the terms of the currency swap.
Replacement of the Currency Swap
If the currency swap is terminated, the issuer trustee must, at the
direction of the manager, enter into one or more replacement currency swaps
which replace the currency swap, but only on the condition that:
o the termination payment, if any, which is payable by the
issuer trustee to the currency swap provider on termination of
the currency swap will be paid in full when due in accordance
with the supplementary terms notice and the currency swap;
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o the ratings assigned to the Class A notes are not adversely
affected; and
o the liability of the issuer trustee under that replacement
currency swap is limited to at least the same extent that its
liability is limited under the currency swap.
If the preceding conditions are satisfied, the issuer trustee must, at
the direction of the manager, enter into the replacement currency swap, and if
it does so it must direct the provider of the replacement currency swap to pay
any up-front premium to enter into the replacement currency swap due to the
issuer trustee directly to the currency swap provider in satisfaction of and to
the extent of the issuer trustee's obligation to pay the termination payment to
the currency swap provider. To the extent that such premium is not greater than
or equal to the termination payment, the balance must be paid by the issuer
trustee as a Trust Expense.
Currency Swap Provider
The currency swap provider will be Bankers Trust Corporation, unless
Bankers Trust Corporation elects to novate the currency swap as described in
"Novation of the Currency Swap" below. Bankers Trust Corporation is a bank
holding company, incorporated under the laws of the State of New York in 1965.
Bankers Trust Corporation's principal executive offices are located at 130
Liberty Street, New York, New York 10006 and its telephone number is
(212)250-2500. Bankers Trust Corporation has a long term rating of AA- from
Fitch IBCA, A1 from Moody's and AA- from Standard & Poor's, and a short term
rating of A-1+ from Standard & Poor's.
On June 4, 1999, Deutsche Bank AG acquired all of the outstanding
shares of common stock of Bankers Trust Corporation from its shareholders at a
price of U.S.$93.00 per share. Bankers Trust Corporation was merged with a
wholly-owned subsidiary of Deutsche Bank AG, with Bankers Trust Corporation as
the surviving entity.
In connection with the acquisition, Bankers Trust Corporation has
substantially changed the scope and nature of its business activities to conform
to Deutsche Bank AG's management structure. As part of this process, Bankers
Trust Corporation has transferred and will continue to transfer certain
entities and financial assets and liabilities to Deutsche Bank AG and its
affiliates. The consideration received and to be received for these transactions
was and will be the fair market value of the financial assets and liabilities at
and on the date of transfer.
The following table sets forth certain unaudited selected financial
data for Bankers Trust Corporation and its consolidated subsidiaries for the
periods and as of the dates indicated:
Unaudited Consolidated Income Statement Data (in U.S.$ millions)
<TABLE>
<CAPTION>
Six months ended June 30,
-------------------------
1999 1998
---- ----
<S> <C> <C>
Net interest revenue................................ 497 768
Total non-interest revenue.......................... 1,257 2,413
Net income (loss)................................... (1,808) 386
</TABLE>
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Unaudited Consolidated Balance Sheet Data (in U.S. $ millions)
<TABLE>
<CAPTION>
As of June 30, 1999
-------------------
<S> <C>
Total assets*...................................... 91,953
Total long-term debt and mandatorily redeemable
capital securities................................. 15,225
Total stockholders' equity......................... 4,003
</TABLE>
* Total assets includes $57,685 million of cash and due from banks,
interest-bearing deposits with banks, federal funds sold, securities purchased
under resale agreements, securities borrowed, trading assets and securities
available for sale.
Bankers Trust Corporation currently files periodic reports with the
Securities and Exchange Commission pursuant to the Exchange Act. The summary
selected financial data and other information regarding Bankers Trust
Corporation in the preceding table has been drawn from the unaudited
consolidated financial statements of Bankers Trust Corporation at and for the
three and six month periods ended June 30, 1999, set forth on pages 2 through 7
of Bankers Trust Corporation's Quarterly Report of Form 10-Q for the quarterly
period ended June 30, 1999, as filed with the Securities and Exchange
Commission. This limited information does not provide a complete picture of the
financial condition of Bankers Trust Corporation. For additional material
financial and other information with respect to Bankers Trust Corporation,
please refer to the Form 10-Q. Due to the significant ongoing structural
changes being made at Bankers Trust Corporation, including the sale or transfer
of substantial financial assets, the data presented in the preceding table will
not be indicative of the results of operations or financial condition of Bankers
Trust Corporation for any period or dates subsequent to June 30, 1999.
On June 18, 1999, Deutsche Bank AG announced that it had agreed to sell
Bankers Trust Australia Limited, a wholly-owned subsidiary of Bankers Trust
Corporation, for a price of approximately U.S.$1.4 billion. This closing of the
sale occurred on August 31, 1999, and is not reflected in the numbers presented
in the preceding table. As of June 30, 1999, Bankers Trust Australia Limited
had total assets of approximately U.S.$10.6 billion.
Novation of the Currency Swap
Bankers Trust Corporation may at any time novate (a form of legal
transfer) its rights and obligations under the currency swap, without the prior
consent of any other party, to any affiliate of Deutsche Bank AG, provided
that:
(a) the new currency swap provider is obligated to file periodic
reports with the Securities and Exchange Commission pursuant to the Exchange
Act;
(b) the new currency swap provided provides a legal opinion to the
issuer trustee that the currency swap, as novated, is valid, binding and
enforceable, subject to equitable doctrines and creditor's rights generally; and
(c) the rating agencies confirm that the novation will not cause a
reduction or withdrawal of the ratings of the Class A notes.
The manager will, if required pursuant to the Exchange Act, file a copy
of any amended currency swap or replacement currency swap agreement with the
Securities and Exchange Commission.
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Withholding or Tax Deductions
All payments in respect of the notes will be made without withholding
or tax deduction for, or on account of, any present or future taxes, duties or
charges of whatever nature unless the issuer trustee or any paying agent is
required by applicable law to make any such payment in respect of the 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 agents, 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 obligated to make any
additional payments to holders of the notes with respect to that withholding or
deduction.
Redemption of the Notes for Taxation or Other Reasons
If the manager satisfies the issuer trustee and the note trustee,
immediately prior to giving the notice to the noteholders as described in this
section, that either:
o on the next quarterly payment date the issuer trustee would be
required to deduct or withhold from any payment of principal
or interest in respect of the notes or the currency swap 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
o 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;
then the issuer trustee must, when so directed by the manager, at the manager's
option, provided that the issuer trustee will be in a position on such payment
date to discharge, and the manager will so certify to the issuer trustee and the
note trustee, all its liabilities in respect of such class and any amounts
required under the security trust deed to be paid in priority to or equal with
such class, redeem all, but not some, of such class at their outstanding
principal balance, or at the option of the holders of 75% of the aggregate
outstanding principal balance of such class, at their Stated Amount, together,
in each case, with accrued interest to the date of redemption on any subsequent
quarterly payment date. Noteholders must be given notice of a redemption not
more than 60 nor less than 45 days prior to the date of redemption. The holders
of 75% of the aggregate outstanding principal balance of a class of notes may
elect, in accordance with the terms of the note trust deed, and the note trustee
shall notify the issuer trustee and the manager, that they do not require the
issuer trustee to redeem their class of notes in the circumstances described in
this section. All amounts ranking prior to or equal with respect to a class of
notes must be redeemed concurrently with such class.
Redemption of the Notes upon an Event of Default
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 some 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
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security trust deed. That enforcement can include the sale of some or all of the
housing loans. If the trust terminates while notes are outstanding, St.George
Bank has a right of first refusal to acquire the housing loans. 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
"Description of the Transaction Documents - The Security Trust Deed."
Optional Redemption of the Notes
At the manager's direction, the issuer trustee must purchase or redeem
all of the notes by repaying the outstanding principal balance, or, if the
noteholders owning at least 75% of the aggregate outstanding amount of the notes
so agree, the Stated Amount, of the notes, together, in each case, with accrued
interest to, but excluding, the date of repurchase or redemption, on any
quarterly payment date falling on or after the earlier of:
o the quarterly payment date on which the total Stated Amount of
all notes is equal to or less than 10% of the total initial
outstanding principal balance of the notes; and
o the quarterly payment date falling in November, 2006;
provided that the manager certifies to the issuer trustee and the note trustee
that the issuer trustee will be in a position on this quarterly payment date to
discharge all its liabilities in respect of the notes, at their outstanding
principal balance or their Stated Amount if so agreed by the specified
percentage of noteholders, and any amounts which would be required under the
Security Trust Deed to be paid in priority to or equal with the notes if the
security for the notes were being enforced. The manager, on behalf of the issuer
trustee, will give not more than 60 nor less than 45 days' notice to noteholders
of this redemption in accordance with the applicable conditions of the notes.
Final Maturity Date
The issuer trustee must pay the Stated Amount in relation to each note
on or by the final maturity date relating to that note. The failure of the
issuer trustee to pay the Stated Amount within ten business days of the due date
for payment, or within any other applicable grace period agreed upon with the
Mortgages, will be an event of default under the security trust deed.
Final Redemption of the Notes
Each note will be finally redeemed, and the obligations of the issuer
trustee with respect to the payment of the principal amount of that note will be
finally discharged, upon the first to occur of:
o the date on which the outstanding principal balance of the
note is reduced to zero;
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o the date upon which the relevant noteholder renounces in
writing all of its rights to any amounts payable under or in
respect of that note;
o the date on which all amounts received by the note trustee
with respect to the enforcement of the security trust deed are
paid to the principal paying agent;
o the payment date immediately following the date on which the
issuer trustee completes a sale and realization of all of
the assets of the trust in accordance with the master trust
deed and the supplementary terms notice; and
o the final maturity date of the notes.
Termination of the Trust
Termination Events
The trust shall continue until, and shall terminate on the later of: o
its Termination Date;
o the date on which the assets of the trust have been sold or
realized upon, which shall be within 180 days after the
Termination Date so far as reasonably practicable and
reasonably commercially viable; and
o the date on which the issuer trustee ceases to hold any
housing loans or mortgages in relation to the trust.
Realization of Trust Assets
On the occurrence of a Termination Date, subject to St.George Bank's
right of first refusal, the issuer trustee, in consultation with the manager or
the beneficiary, to the extent that either has title to the assets of the
trust, must sell and realize the assets of the trust within 180 days. During the
180-day period, performing housing loans may not be sold for less than their
Unpaid Balance, and non-performing housing loans may not be sold for less than
the fair market value of such housing loans and their related security, as
agreed upon by the issuer trustee, based on appropriate expert advice, and the
seller; provided that 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 outstanding principal amount of
the notes. The servicer will determine whether a housing loan is performing or
non-performing.
Seller's Right of First Refusal
As soon as practical after the Termination Date of the trust, the
manager will direct the issuer trustee to offer, by written notice to St.George
Bank, irrevocably to extinguish in favor of St.George Bank, or if the issuer
trustee has perfected its title, to equitably assign to St.George Bank, its
entire right, title and interest in and to the housing loans for their Unpaid
Balance, for performing housing loans, and their fair market value, for
non-performing housing loans; provided that, if the fair market value of a
housing loan is less than its Unpaid Balance, the sale requires the consent of
the holders of 75% of the aggregate outstanding principal amount of the notes.
The issuer trustee is not entitled to sell any housing loans unless
St.George Bank has failed to accept the offer within 180 days after the
occurrence of the Termination Date by paying to the issuer trustee the purchase
price. St.George Bank must pay all
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costs and expenses relating to the repurchase of any housing loans. If St.George
Bank does not accept the offer within 180 days, the costs and expenses relating
to the sale of the housing loans will be a Trust Expense. Distribution of
Proceeds from Realization of Trust Assets
After deducting expenses, the 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 in "Distribution of
Total Available Funds" and "Principal Distributions", and in accordance with any
directions given to it by the manager. If all of the notes have been fully
redeemed and the trust's other creditors have been paid in full, the issuer
trustee shall distribute the assets of the trust to the residual beneficiary.
Prescription
A note will be void in its entirety if not surrendered for payment
within ten years of the relevant date in respect of any payment on the note, the
effect of which would be to reduce the Stated Amount of such note to zero. The
relevant date is 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 and
notice to that effect is duly given in accordance with the terms of the relevant
note. After the date on which a note becomes void in its entirety, no claim may
be made in respect of it.
Voting and Consent of Noteholders
The note trust deed contains provisions for each class of noteholders
to consider any matter affecting their interests. In general, the holders of a
majority of the aggregate outstanding principal balance of a class of notes may
take or consent to any action permitted to be taken by such class of noteholders
under the note trust deed. Notwithstanding the foregoing, the consent of holders
of 75% of the aggregate outstanding principal balance of a class of notes shall
be required to accomplish the following:
o direct the note trustee to direct the security trustee to
enforce the security under the security trust deed;
o override any waiver by the note trustee of a breach of any
provisions of the transaction documents or an event of default
under the security trust deed;
o removal of the current note trustee or appointment of a new
note trustee; and
o approve the costs and expenses of the note trustee incurred in
enforcing rights under, or prosecuting lawsuits related to,
the transaction documents for which the note trustee is
entitled to be indemnified.
The Class A-1 noteholders, the Class A-2 noteholders and the Class A-3
noteholders will be treated as a single class for voting.
The note trust deed contains provisions limiting the powers of the
Class B noteholders. For example, the document limits their ability to request
or direct the note trustee to take any action that would be materially
prejudicial to the interests of the Class A noteholders. In most circumstances,
the note trust deed imposes no such
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limitations on the powers of the Class A noteholders, the exercise of which will
be binding on the Class B noteholders, irrespective of the effect on the Class B
noteholders' interests. Any action taken by the requisite percentage of the
outstanding principal balance of a class of noteholders shall be binding on all
noteholders of such class, both present and future.
Reports to Noteholders
On each quarterly determination date, the manager will, in respect of
the collection period ending before that determination date, deliver to the
principal paying agent, the note trustee and the issuer trustee, a noteholder's
report containing the following information:
o the outstanding principal balance and the Stated Amount of
each class of notes;
o the interest payments and principal distributions on each
class of notes;
o the Available Income;
o the Total Available Funds;
o the aggregate of all redraws made during that quarterly
collection period;
o the Redraw Shortfall, if any;
o the Payment Shortfall, if any;
o the principal draw, if any, for that quarterly collection
period, together with all principal draws made before the
start of that quarterly collection period and not repaid;
o the liquidity draw, if any, for that quarterly collection
period, together with all liquidity draws made before the
start of that quarterly collection period and not repaid;
o the Gross Principal Collections;
o the Principal Collections;
o the Liquidity Shortfall, if any;
o the remaining Liquidity Shortfall, if any;
o the Principal Charge Off, if any;
o the bond factor for each class of notes, which with respect to
a class of notes, means the aggregate of the outstanding
principal balance of the class of notes less all principal
payments on that class of notes to be made on the next
quarterly payment date, divided by the aggregate initial
outstanding principal balance for all of that class of notes;
o the Class A Charge Offs, the Class B Charge Offs and the
Redraw Charge Offs, if any;
o all carryover charge offs on the redraw facility on the notes,
if any;
o if required, the threshold rate at that quarterly
determination date;
o the interest rates on the notes for the related Interest
Period;
o scheduled and unscheduled payments of principal on the housing
loans;
o aggregate outstanding principal balance of the fixed rate
housing loans and the aggregate principal balance of the
variable rate housing loans; and
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o delinquency and loss statistics with respect to the housing
loans.
Unless and until definitive notes are issued, 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.
Unless and until definitive notes are issued, periodic and annual
unaudited reports containing information concerning the trust and the Class A
notes will be prepared by the manager and sent to DTC. DTC and its participants
will make such reports available to holders of interests in the 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 notes are in book-entry form. Upon the issuance of fully registered,
certificated 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 manager will file with the SEC
such periodic reports as are required under the Exchange Act, and the rules and
regulations of the SEC thereunder. However, in accordance with the Exchange Act
and the rules and regulations of the SEC thereunder, the manager expects that
the obligation to file such reports will be terminated following the end of
September 2000.
Description of the Transaction Documents
The following summary describes the material terms of the transaction
documents. The summary does not purport to be complete and is subject to the
provisions of the transaction documents. All of the transaction documents,
except for the currency swap and the note trust deed, are governed by the laws
of New South Wales, Australia. The currency swap is governed by the laws of the
State of New York. The note trust deed is governed by the laws of New South
Wales, Australia and the administration of the trust is governed by English law.
A copy of the master trust deed and the servicing agreement and a form of each
of the other transaction documents have been filed as exhibits to the
registration statement of which this prospectus is a part.
Trust Accounts
The issuer trustee will establish and maintain the collection account
and the liquidity account with an Approved Bank. The collection account and
liquidity account will initially be established with Australia & New Zealand
Banking Group Limited, which has a short term rating of F1+ from Fitch IBCA, P-1
from Moody's and A-1+ from Standard & Poor's at its office at Level 2, 570
Church Street, Richmond, Victoria 3121. Each bank account shall be opened by the
issuer trustee in its name and in its capacity as trustee of the trust. These
accounts will not be used for any purpose other than for the trust. These
accounts will be interest bearing accounts.
The manager shall have the discretion and duty to recommend to the
issuer trustee, in writing, 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 assets of the
trust shall be effected and when and how the same should be effected. Each
investment of moneys on deposit in the trust's accounts shall be in Authorized
Investments that will mature not later than the business day preceding the
applicable payment date.
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Liquidity Reserve
Liquidity Reserve Amount
On the closing date, the issuer trustee, at the direction of the
manager, will establish the liquidity reserve in an amount equal to A$ in the
liquidity account. The amount of the liquidity reserve will be reduced each
quarterly determination date to an amount equal to 0.25% of the aggregate Unpaid
Balance of the housing loans as the manager determines from time to time. To the
extent that the liquidity reserve amount decreases as a consequence of a
decrease in the aggregate Unpaid Balance of the housing loans, the manager may
direct the issuer trustee to withdraw from the liquidity account an amount not
exceeding the excess of the credit balance of the liquidity account over the
liquidity reserve. Any funds withdrawn from the liquidity account in these
circumstances will be treated as a Gross Principal Collection.
Liquidity Account
The manager shall not direct the issuer trustee to, and the issuer
trustee shall not, make any withdrawal from the liquidity account except for the
following purposes:
o to make or fund a liquidity draw as described in "Description
of the Class A Notes - Liquidity Draws";
o to transfer the credit balance of the liquidity account in
accordance with the master trust deed if the account is held
by a bank which ceases to be an Approved Bank;
o to pay financial institutions duty, bank accounts debit tax or
equivalent taxes payable in respect of the liquidity account;
o to the extent that the credit balance of the liquidity account
exceeds the liquidity reserve, to distribute that excess as a
Gross Principal Collection; and
o to distribute on the final maturity date of the notes or on
the date on which the notes are fully and finally redeemed or
repurchased the credit balance of the liquidity account as a
Principal Collection.
Liquidity Draws
If on any monthly determination date the manager determines that there
is a Liquidity Shortfall, the manager must direct the issuer trustee to make a
draw on the liquidity reserve on or before the relevant monthly payment date
equal to the lesser of the Liquidity Shortfall and the balance of the liquidity
account.
The issuer trustee must, if so directed by the manager, make that
liquidity draw and cause the proceeds of such liquidity draw to be deposited or
transferred into the collection account on or before the relevant monthly
payment date. This amount will be distributed in the manner described in
"Description of the Class A Notes - Liquidity Draws."
The issuer trustee must repay outstanding liquidity draws on each
monthly payment date and quarterly payment date out of Total Available Funds, to
the extent they are available, as described in "Description of the Class A Notes
Distribution of Total Available Funds."
Modifications
The issuer trustee, the manager and the servicer, with respect to the
master trust deed and the supplementary terms notice, or the note trustee, with
respect to the note trust deed or any other transaction document, may by way of
supplemental deed alter,
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add to or modify the master trust deed, the supplementary terms notice, the note
trust deed or any other transaction document so long as such alteration,
addition or modification was effected upon consent of the noteholders or
residual beneficiary as described in the following paragraph in the case of the
master trust deed or supplementary terms notice or is:
o to correct a manifest error or ambiguity or is of a formal,
technical or administrative nature only;
o necessary to comply with the provisions of any law or
regulation or with the requirements of any Australian
governmental agency;
o appropriate or expedient as a consequence of an amendment to
any law or regulation or altered requirements of the
government of any jurisdiction, any department, commission,
office of any government or any corporation owned or
controlled by any government, 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 Crusade Securitisation Programme trusts;
o any modification, except a basic terms modification of, or
waiver or authorization of any breach or proposed breach of
the Class A notes or any of the transaction documents which is
not, in the opinion of the note trustee, materially
prejudicial to the interests of the Class A noteholders. A
"basic terms modification" is any modification which serves to
alter, add, or modify the terms and conditions of such class
of 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 noteholders as a
whole or the class of noteholders, which shall include any
modification to the date of maturity of the class of notes, or
a modification which would have the effect of postponing any
day for payment of interest in respect of the class of notes,
reducing or canceling the amount of principal payable in
respect of the class of notes or the rate of interest
applicable to the class of notes or altering the percentage of
the aggregate outstanding principal balance required to
consent to any action or altering the currency of payment of
the class of notes or an alteration of the date or priority of
redemption of the class of notes; or
o 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 manager's reasonable opinion, to an allocation of
expenses.
Except for an alteration, addition or modification as described in the
preceding section, where in the reasonable opinion of the issuer trustee a
proposed alteration, addition or modification to the master trust deed, the
supplementary terms notice and the note trust deed is prejudicial or likely to
be prejudicial to the interests of the noteholders or a class of noteholders or
the residual beneficiary, such alteration, addition or modification may only be
effected by the issuer trustee with the prior
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consent of the holders of 75% of the aggregate outstanding principal balance of
the relevant class or classes of notes or with the prior written consent of the
residual beneficiary, as the case may be.
The Issuer Trustee
The issuer trustee is appointed as trustee of the trust on the terms
set out in the master trust deed and the supplementary terms notice.
The issuer trustee has all the rights, powers and discretions over and
in respect of the assets of the trust in accordance with the transaction
documents provided that it will take no action or omit to take an action without
the direction of the manager, that could reasonably be expected to adversely
affect the ratings of the notes. The manager is required to give to the issuer
trustee all directions necessary to give effect to its recommendations and
proposals, and the issuer trustee is not required to take any action unless it
receives a direction from the manager.
The issuer trustee must act honestly and in good faith and comply with
all relevant material laws in performance of its duties and in exercising its
discretions under the master trust deed, 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 and to 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.
Under the master trust deed, each noteholder and the residual
beneficiary acknowledges that:
o the noteholder cannot require the issuer trustee to owe to the
noteholder, or to act in a manner consistent with, any
fiduciary obligation in any capacity;
o the issuer trustee has no duty, and is under no obligation, to
investigate whether a Manager's Default, a Servicer Transfer
Event or a Title Perfection Event has occurred in relation to
the trust other than where it has actual notice;
o the issuer trustee is required to provide the notices referred
to in the master trust deed in respect of a determination of a
Material Adverse Effect only if it is actually aware of the
facts giving rise to the Material Adverse Effect; and
o in making any such determination, the issuer trustee will seek
and rely on advice given to it by its advisers in a manner
contemplated by the master trust deed;
o in the absence of actual knowledge to the contrary, the issuer
trustee is entitled to rely conclusively on, and is not
required to investigate any notice, report, certificate,
calculation or representation of or by the seller, servicer or
manager.
The issuer trustee will be considered to have knowledge or notice of or
be aware of any matter or thing if the issuer 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 issuer trustee who have day-to-day
responsibility for the administration of the trust.
Annual Compliance Statement
The manager, on behalf of the issuer trustee, will deliver to the note
trustee annually a written statement as to the fulfillment of the issuer
trustee's obligations under the transaction documents.
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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
manager, delegate any or all of the duties, powers, discretion or other
functions of the issuer trustee under the master trust deed or otherwise in
relation to the trust, to a related company of the issuer trustee which is a
trustee company or trustee corporation for the purposes of any State or
Territory legislation governing the operation of trustee companies.
Issuer Trustee Fees and Expenses
The issuer trustee is entitled to a quarterly fee equal to 0.032% per
annum of the aggregate outstanding principal balance of the housing loans on the
first day of each quarterly collection period, payable in arrears on the related
quarterly payment date.
If the issuer trustee is required at any time to undertake duties which
relate to the enforcement of the terms of any transaction document by the issuer
trustee upon a default by any other party under the terms of that transaction
document, the issuer trustee is entitled to such additional remuneration as may
be agreed between the issuer trustee and the manager or, failing agreement, such
amount as is determined by a merchant bank (acting as an expert and not as an
arbitrator) selected by the issuer trustee. The determination of such merchant
bank shall be conclusive and binding on the manager and the issuer trustee so
far as the law allows.
The issuer trustee will 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, but not general overhead costs and expenses. These
expenses will be Trust Expenses.
Removal of the Issuer Trustee
The issuer trustee is required to retire as trustee after a direction
from the manager in writing following an Issuer Trustee's Default.
A direction given by the manager requiring the issuer trustee to retire
must specify a date for the retirement of the issuer trustee which is no less
than six months from the date of the direction. Alternatively, the manager may
pay to the issuer trustee an amount equal to the fees that the issuer trustee
would earn for that 6 month period in lieu of that notice. The costs of the
issuer trustee, to the extent that they are properly and reasonably incurred,
will be paid out of the assets of the trust as a Trust Expense.
The issuer trustee will bear the reasonable costs of its removal if the
issuer trustee does not resign as directed and the manager is required to remove
it following an event under the first four bullet points in the definition of
Issuer Trustee's Default. The issuer trustee will indemnify the manager and the
trust for these costs. These costs are not payable out of the assets of the
trust.
The manager, subject to giving prior notice to the rating agencies, is
entitled to appoint a replacement statutory trustee on removal or retirement of
the issuer trustee if that appointment will not in the reasonable opinion of the
manager materially prejudice the interests of noteholders. Until the appointment
is completed the manager must act as issuer trustee and will be entitled to the
issuer trustee's fee for the period it so acts as issuer trustee.
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Voluntary Retirement of the Issuer Trustee
The issuer trustee may resign on giving to the manager, with a copy to
the rating agencies, not less than three months' notice in writing, or such
other period as the 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 manager, or who may be the 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 three months' notice period,
the manager shall act as trustee until a successor trustee is appointed.
Limitation of the Issuer Trustee's Liability
The issuer trustee will not be liable personally for any losses, costs,
liabilities or claims arising from the failure to pay moneys on the due date for
payment to any noteholders, the residual beneficiary, the manager or any other
person or for any loss howsoever caused in respect of the trust or to any
noteholder, the residual beneficiary, the manager or any other person, except to
the extent caused by the fraud, negligence or Default on the issuer trustee's
part, or on the part of the officers and employees of the issuer trustee or any
of its agents or delegates in respect of whom the issuer trustee is liable.
The issuer trustee acts as trustee and issues the notes only in its
capacity as trustee of the trust and in no other capacity. A liability arising
under or in connection with the transaction documents or the trust can be
enforced against the issuer trustee only to the extent to which it can be
satisfied out of the assets of the trust which are available to satisfy the
right of the issuer trustee to be exonerated or indemnified for the liability.
Subject to the following sentence, 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 master trust deed, the notes, the conditions or the
trust. The limitation will 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 there is a reduction in the extent
of the issuer trustee's exoneration or indemnification out of the assets of the
trust as a result of the issuer trustee's fraud, negligence or Default.
The master trust deed also contains other provisions which regulate the
issuer trustee's liability to noteholders, other creditors and the residual
beneficiary. These include, but are not limited to, the following:
o Subject to the master trust deed, 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 manager of its discretions, or for
acting on any instructions or directions given to it.
o The issuer trustee is not liable for any event associated with
the retirement of the manager, a Servicer Transfer Event or a
Title Perfection Event.
o The issuer trustee is not liable for any act, omission or
default of the manager, the servicer, the currency swap
provider, the custodian, the note trustee, the principal
paying agent or any of their successors or assigns, in
relation to their respective duties or obligations under the
transaction documents, or any other person's failure to carry
out an agreement with the issuer trustee with respect to the
trust.
The foregoing provisions do not apply to the extent that the relevant
act is caused by the issuer trustee's fraud, negligence or Default.
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Rights of Indemnity of Issuer Trustee
The issuer trustee will be indemnified out of the assets of the trust
against all losses and liabilities properly incurred by the issuer trustee in
performing any of its duties or exercising any of its powers under the
transaction documents in relation to the trust except for fraud, negligence or
Default.
The issuer trustee is indemnified out of the assets of the trust
against certain payments it may be liable to make under any Consumer Credit
Legislation. The servicer also indemnifies the issuer trustee in relation to
such payments and the issuer trustee is required to first call on the indemnity
from the servicer before calling on the indemnity from the assets of the trust.
The issuer trustee is also indemnified by St.George Bank under a deed of
indemnity against any action, loss, cost, damage or expense arising out of any
actions relating to any incorrect, misleading or deceptive statements in this
prospectus, the offer of the notes so far as it relates to any incorrect,
misleading or deceptive statements in the prospectus or a failure by St.George
Bank in relation to the due diligence procedures agreed with the issuer trustee.
The Manager
Powers
The manager will have full and complete powers of management of the
trust, including the administration and servicing of the assets which are not
serviced by the servicer, borrowings and other liabilities of the trust and the
operation of the trust.
The issuer trustee has no duty to supervise the manager in the
performance of its functions and duties, or the exercise of its discretions.
The manager has the absolute discretion to recommend Authorized
Investments to the issuer trustee and direct the issuer trustee in relation to
those Authorized Investments.
Delegation
The manager may, in carrying out and performing its duties and
obligations contained in the master trust deed, delegate to any of the manager's
officers and employees, all acts, matters and things, whether or not requiring
or involving the 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 manager thinks fit.
Manager's Fees, Expenses and Indemnification
The manager is entitled to a quarterly fee for each quarterly
collection period equal to 0.09% per annum of the aggregate outstanding
principal balance of housing loans on the first day of each quarterly collection
period payable in arrears on the related quarterly payment date.
The manager will be indemnified out of the assets of the trust for any
liability, cost or expense properly incurred by it in its capacity as manager of
the trust other than general overhead costs and expenses.
Removal or Retirement of the Manager
The manager shall retire as trust manager if the issuer trustee so
directs in writing following a Manager's Default. The manager shall bear the
costs of its removal after a Manager's Default. The manager has agreed to
indemnify the issuer trustee and the trust for those costs.
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The manager may resign on giving to the issuer trustee and the note
trustee, with a copy to the rating agencies, not less than 120 days, or another
period as the manager and the issuer trustee may agree, notice in writing of its
intention to do so.
On retirement or removal of the manager, the issuer trustee may appoint
another manager on such terms as the issuer trustee sees fit, including the
amount of the manager's fee, provided the appointment will not have an adverse
effect on the rating of the notes. Until a replacement manager is appointed, the
manager must continue as manager. If a replacement manager is not appointed
within 120 days of the issuer trustee electing to appoint a new manager, the
issuer trustee will be the new manager.
Limitation of Manager's Liability
The principal limitations on the manager's liability are set out in
full in the master trust deed. These include the following limitations:
o the manager will be indemnified out of the trust in respect of
any liability, cost or expense properly incurred by it in its
capacity as manager of the trust; and
o subject to the master trust deed, the 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 manager or on
whom the 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 manager, except to the extent of
losses, costs, claims or damages caused or contributed to by
the breach of its obligations under any transaction documents.
The Note Trustee
Bankers Trust Company will serve as the note trustee. Bankers Trust
Company is a New York State chartered bank and an indirect wholly owned
subsidiary of Deutsche Bank AG. The corporate trust office of the note trustee
responsible for the administration of the trust is located at 1 Appold Street,
Broadgate, London EC2A 2HE, United Kingdom. The note trustee will be entitled to
execute any of its trusts or powers under the note trust deed either directly or
through agents or attorneys providing that the use of such agent does not have
an adverse effect on the ratings of the Class A notes. The note trustee and
every other person properly appointed by it under the note trust deed will be
entitled to indemnification from the assets of the trust against all loss,
liability, expense, costs, damages, actions, proceedings, claims and demands
incurred by, or made against, the note trustee in connection with its execution
of the trusts under the note trust deed, provided that the indemnification will
not extend to any loss, liability or expense arising from any fraud, negligence,
default or breach of trust by the note trustee or any other person properly
appointed by the note trustee.
The note trustee will at all times be a corporation or association,
organized and doing business under the laws of the United States of America, any
individual state or the District of Columbia, authorized under those laws to
exercise corporate trust powers, having a combined capital of U.S.$50,000,000,
as set forth in its most recent published annual report of condition, and
subject to supervision or examination by federal or state authority. The note
trustee may also, if permitted by the Securities and Exchange Commission, be
organized under the laws of a jurisdiction other than
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the United States, provided that it is authorized under such laws to exercise
corporate trust powers and is subject to examination by authority of such
jurisdictions substantially equivalent to the supervision or examination
applicable to a trustee in the United States.
The note trustee may resign after giving three months' written notice
to the issuer trustee, the manager, the security trustee and each rating agency.
The issuer trustee may also remove the note trustee in the following
circumstances:
o if the note trustee becomes insolvent;
o if the note trustee ceases its business;
o if the note trustee fails to comply with any of its
obligations under any transaction document and the issuer
trustee determines that this failure has had, or if continued,
will have, a Material Adverse Effect, and if capable of
remedy, the note trustee does not remedy this failure within
14 days after the earlier of the following:
o the note trustee becoming aware of this failure; and
o receipt by the note trustee of written notice with
respect to this failure from either the issuer
trustee or the manager; or
o if the note trustee fails to satisfy any obligation imposed on
it under the Trust Indenture Act of 1939 with respect to the
trust or the note trust deed.
The note trustee is an affiliate of the standby basis swap provider,
the standby fixed-floating rate swap provider, the currency swap provider and
one of the underwriters. If there is an event of default under the Class A
notes, the note trustee may be required to resign by virtue of its obligations
under the Trust Indenture Act. In addition, holders of 75% of the aggregate
outstanding principal balance of the Class A notes may require the issuer
trustee to remove the 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 notes.
The Security Trust Deed General
National Mutual Life Nominees Limited of Level 2, 65 Southbank
Boulevard, South Melbourne, Victoria, Australia will be the security trustee.
National Mutual Life Nominees Limited's principal activities are the provision
of services as trustee, executors, administrators, attorneys and agents and
other fiduciary services. The issuer trustee will grant a first ranking floating
charge, registered with the Australian Securities and Investments Commission,
over all of the trust assets in favor of the security trustee. The floating
charge will secure the issuer trustee's obligations to the noteholders, the
manager, the security trustee, the servicer, the note trustee, the underwriters,
each paying agent, the seller with respect to the Accrued Interest Adjustment
and redraws, and each provider of a support facility, but with respect to the
mortgage insurer, only in respect of all payments by way of a timely payment
cover under the mortgage insurance policies. These secured parties are
collectively known as the Mortgagees.
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Nature of the Charge
A company may not deal with its assets over which it has granted a
fixed charge without the consent of the relevant mortgagee. Fixed charges are
usually given over real property, marketable securities and other assets which
will not be dealt with by the company.
A floating charge, like that created by the security trust deed, does
not attach to specific assets but instead "floats" over a class of assets which
may change from time to time. The company granting the floating charge may deal
with those assets and 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 company's business. The issuer trustee has agreed not to dispose
of or create interests in the assets of the trust subject to the floating charge
except in the ordinary course of its business and the manager has agreed not to
direct the issuer trustee to take any such actions. If the issuer trustee
disposes of any of the trust assets, including any housing loan, in the ordinary
course of its business, the person acquiring the property will take it free of
the floating charge. The floating charge granted over the trust assets will
crystallize, which means it becomes a fixed charge, upon the occurrence of
specific events set out in the security trust deed, including notice to the
issuer trustee following an event of default under the security trust deed. On
crystallization of the floating charge, the issuer trustee may not deal with the
assets of the trust without the consent of the security trustee.
The Security Trustee
The security trustee is appointed to act as trustee on behalf of the
Mortgagees and holds the benefit of the charge over the trust assets in trust
for each Mortgagee on the terms and conditions of the security trust deed. If
there is a conflict between the duties owed by the security trustee to any
Mortgagees or class of Mortgagees, the security trustee must give priority to
the interests of the noteholders, as determined by the noteholders or the note
trustee acting on their behalf. In addition, the security trustee must give
priority to the interests of the Class A noteholders if, in the security
trustee's opinion, there is a conflict between the interests of Class A
noteholders and the interests of the Class B noteholders or other Mortgagees.
Duties and Liabilities of the Security Trustee
The security trust deed contains a range of provisions regulating the
scope of the security trustee's duties and liabilities. These include the
following: o The security trustee is not responsible for the adequacy or
enforceability of the security trust deed or other transaction documents.
o The security trustee is not required to monitor compliance by
the issuer trustee or manager with the transaction documents
or their other activities.
o Unless required by a transaction document, the security
trustee need not give Mortgagees information concerning the
issuer trustee which comes into the possession of the security
trustee.
o The security trustee has no duties or responsibilities except
those expressly set out in the security trust deed or any
collateral security.
o Any action taken by the security trustee under the security
trust deed or any collateral security binds all the
Mortgagees.
o 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
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associates may engage in any kind of business with the issuer
trustee, the manager, Mortgagees and others as if it were not
security trustee and may receive consideration for services in
connection with any transaction document or otherwise without
having to account to the Mortgagees.
Events of Default
Each of the following is an event of default under the security trust deed:
o the issuer trustee fails to pay:
o any interest within ten business days of the
quarterly payment date on which the interest was due
to be paid to noteholders; or
o any other amount owing to a Mortgagee 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;
o the issuer trustee fails to perform or observe any other
provisions, other than the obligations already referred to in
this section, of a transaction document where such failure
will have a material and adverse effect on the amount or
timing of any payment to be made to any noteholder, and that
default is not remedied within 30 days after written notice
from the security trustee requiring the failure to be
remedied;
o an Insolvency Event occurs relating to the issuer trustee, in
its capacity as trustee of the trust;
o the charge created by the security trust deed is not or ceases
to be a first ranking charge over the assets of the trust, or
any other obligation of the issuer trustee, other than as
mandatorily preferred by law, ranks ahead of or equal with any
of the moneys secured by the security trust deed;
o any security interest over the trust assets is enforced;
o all or any part of any transaction document, other than the
basis swap, the redraw facility or the currency swap, in
respect of a termination because of an action of a taxing
authority or a change in tax law, 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 basis swap, the standby basis swap, the redraw
facility or the currency swap; or
o without the prior consent of the security trustee, that
consent being subject in accordance with the terms of the
security trust deed to the prior written consent of the
Noteholder Mortgagees,
o 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;
o the trust is held or is conceded by the issuer
trustee not to have been constituted or to have been
imperfectly constituted; or
o 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.
Where the security trustee has notified the rating agencies, obtained the
written consent of the relevant Noteholder Mortgagees and, in its reasonable
opinion,
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considers that it would not be materially prejudicial to the interests of the
Mortgagees, it may elect not to treat an event that would otherwise be an event
of default as not being an event of default for the purpose of the security
trust deed. Unless the security trustee has made such an election and providing
that the security trustee is actually aware of the occurrence of an event of
default, the security trustee must promptly convene a meeting of the Voting
Mortgagees which it shall seek at directions from the Voting Mortgagees by way
of extraordinary resolution of Voting Mortgages regarding the action it should
take as a result of that event of default.
Meetings of Voting Mortgagees
The security trust deed contains provisions for convening meetings of
the Voting Mortgagees to enable the Voting Mortgagees to direct or consent to
the security trustee taking or not taking certain actions under the security
trust deed, including directing the security trustee to enforce the security
trust deed. Voting Mortgagees are:
o the Noteholder Mortgagees alone for as long as amounts
outstanding under the notes are 75% or more of the Secured
Moneys, and
o otherwise, the note trustee, acting on behalf of the Class A
noteholders, and each other Mortgagee.
Neither the security trustee nor the manager may call a meeting of
Voting Mortgagees while the Noteholder Mortgagees are the only Voting Mortgagees
unless the Noteholder Mortgagees otherwise consent.
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 under the security trust deed.
Voting Procedures
Every question submitted to a meeting of Voting Mortgagees shall be
decided in the first instance by a show of hands. If a show of hands results in
a tie, 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. A representative is, in the case of any
noteholder, a person or body corporate appointed as a proxy for that noteholder.
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 every US$100 or its
equivalent, but not part thereof, of the Secured Moneys that he holds or in
which he is a representative.
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. Enforcement of the Charge
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 a written resolution signed by all of the
Voting Mortgagees is required to direct the security trustee to do any or all of
the following:
o declare the charge to be enforceable;
o declare all Secured Moneys immediately due and payable;
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o convert the floating charge to a fixed charge over any or all
of the trust assets; or
o appoint a receiver over the trust assets or itself exercise
the powers that a receiver would otherwise have under the
security trust deed.
If 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, including enforcing the charge.
Any consent or direction of the note trustee and the Class B
noteholders, when they are the only Voting Mortgagees, requires the approval of
noteholders representing greater than 50% of the outstanding principal balance
of the 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, otherwise than in accordance with the security
trust deed.
The Note Trustee as Voting Mortgagee
The note trustee may, without the consent of the noteholders, determine
that any condition, event or act which with the giving of notice, lapse of time
or the issue of a certificate would constitute an event of default under the
security trust deed shall not, or shall not subject to specified conditions, be
treated as such. The note trustee shall not exercise any of these powers in
contravention of any express direction given in writing by holders representing
at least 75% of the aggregate outstanding principal balance of the Class A
notes. 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 by the manager on behalf of
the issuer trustee to the noteholders as specified in the transaction documents
as soon as practicable thereafter.
If an event of default under the security trust deed 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 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 relevant class of Class A noteholders.
The rights, remedies and discretion of the Class A noteholders under
the security trust deed, 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.
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 notes unless directed or requested to do so in writing by the holders of
at least 75% of the aggregate outstanding principal balance 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.
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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:
o 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 equal with the Class A notes; or
o 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 the preceding paragraph.
Limitations of Actions by the Security 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.
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.
If 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 is put in funds to the extent to
which it may become liable, including costs and expenses, and the Voting
Mortgagees refuse to grant the requested indemnity, and put the issuer trustee
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.
The security trustee will not 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 secured moneys or relating in any way to the mortgaged
property or 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, except
for the fraud, negligence or breach of trust of the security trustee.
Priorities under the Security Trust Deed
The proceeds from the enforcement of the security trust deed are to be
applied in the order of priority set forth in this subsection, subject to any
other priority which may be required by statute or law. Certain federal taxes,
unpaid wages, long service
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leave, annual leave and similar employee benefits and certain auditor's fees, if
any, will be paid prior to the Mortgagees. Subject to the foregoing, the
proceeds from enforcement of the security trust deed will be distributed as
follows:
o first, to pay pro rata:
o any fees and other expenses due to the security
trustee, the note trustee or the principal paying
agent;
o any unpaid fees and paid expenses incurred in
relation to the operation and administration of the
trust, including the issuer trustee's fees and
expenses; and
o the receiver's remuneration;
o second, 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;
o third, to pay unpaid Accrued Interest Adjustment due to the
seller;
o fourth, repayment to the mortgage insurer of money previously
paid under a mortgage insurance policy by way of a timely
payment cover, but only to the extent that funds are received
from the related borrower;
o fifth, to pay to the fixed-floating rate swap provider under
the fixed-floating rate swap any break fees received by or on
behalf of the issuer trustee from a borrower or the mortgage
insurer and which have not previously been paid to the
fixed-floating rate swap provider;
o sixth, to pay, pro rata:
o monetary liabilities of the issuer trustee to all
providers of support facilities, other than the
currency swap provider;
o monetary liabilities of the issuer trustee to the
Class A noteholders;
o unreimbursed redraws, to the seller; and
o all monetary liabilities of the issuer trustee to the
currency swap provider under a confirmation relating
to Class A notes, but without double-counting above;
o seventh, any monetary liabilities of the issuer trustee to
Class B noteholders;
o eighth, to pay pro rata any amounts not covered in this
section owing to any Mortgagee under any transaction document;
o ninth, to pay all monies owing to the mortgage insurer and not
paid above;
o tenth, 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
o eleventh, 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
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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.
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. Any claims of the noteholders remaining after
realization of the security and application of the proceeds as aforesaid shall,
except in limited circumstances, be extinguished.
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 receive a quarterly fee in the amount agreed
from time to time by the issuer trustee, the security trustee and the manager.
Indemnification
The issuer trustee has agreed to indemnify the security trustee from
and against all losses, costs, liabilities, expenses and damages arising out of
or in connection with the transaction documents, except to the extent that they
result from the fraud, negligence or breach of trust on the part of the security
trustee.
Retirement and Removal of the Security Trustee
The security trustee may retire on three months' notice in writing to
the issuer trustee, the manager, the note trustee and the rating agencies if a
successor security trustee is appointed.
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 remove the security trustee at any time and the
manager may remove the security trustee if:
o an Insolvency Event occurs in relation to the security trustee
in its personal capacity;
o the security trustee ceases business;
o the security trustee fails to comply with any of its
obligations under any transaction document and such action has
had, or, if continued will have, a Material Adverse Effect,
and, if capable of remedy, that failure is not remedied within
14 days after the earlier of:
o the security trustee's having become actually aware,
by virtue of the actual awareness of the officers or
employees of the security trustee who have day-to-day
responsibility for the administration of the security
trust, of that failure; and
o the security trustee's having received written notice
with respect thereto from the manager; or
o there occurs a change in the control of the security trustee
from that existing on the date of the security trust deed,
unless approved by the manager.
Upon notice of resignation or removal of the security trustee, the
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
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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 St.George Bank or its affiliates. If no
person can be found to act as security trustee, the Voting Mortgagees may elect
a Voting Mortgagee to act as security trustee.
Any resignation or removal of the security trustee and appointment of a
successor will not become effective until the rating agencies approve the
appointment and confirm that it will not cause a downgrade, qualification or
withdrawal of the ratings of the notes.
Amendment
The issuer trustee and the security trustee may, following at least ten
business days written notice to the rating agencies and with the written
approval of the manager and the Noteholder Mortgagees, amend the security trust
deed to, among other things, correct a manifest error or ambiguity or which in
the opinion of the security trustee is necessary to comply with the provisions
of any law or regulation. If the amendment is prejudicial or likely to be
prejudicial to the interests of the Mortgagees or a class of Mortgagees, an
Extraordinary Resolution of the Voting Mortgagees is required.
The Redraw Facility
Redraws
If the seller consents to a redraw, it will transmit funds in the
amount of the redraw to the borrower. The seller is entitled to be reimbursed
for the amount of any redraws on any of the housing loans which it pays to
borrowers:
o first, from Gross Principal Collections available at the time
the redraw is made;
o second, from any available Redraw Retention Amount; and
o third, from drawings under the redraw facility agreement, to
the extent that it is available.
The seller will be reimbursed for redraws from Gross Principal
Collections in priority to principal payments on the notes.
The Redraw Facility Agreement
Under the redraw facility agreement, the redraw facility provider
agrees to make advances to the issuer trustee for the purpose of reimbursing
redraws made by the seller to the extent that Gross Principal Collections and
the available Redraw Retention Amount are insufficient to fund redraws. Under
the redraw facility, the redraw facility provider agrees to make advances to the
issuer trustee up to the redraw limit. The redraw limit is equal to 2% of the
aggregate Stated Amount of the notes, as adjusted by the manager on each
anniversary of the redraw facility agreement or any other amount as agreed
between the redraw facility provider, the issuer trustee and the manager. At the
closing date, the redraw limit is expected to be A$31,725,420. 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. The initial term of the redraw facility is 364 days.
The redraw facility provider may cancel all or part of the redraw limit at any
time immediately on giving notice to the issuer trustee and the manager.
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Drawing on the Redraw Facility
A drawing may be made under the redraw facility only for the purpose of
funding a Redraw Shortfall or to repay a previous draw under the redraw
facility. If at any time during the term of the redraw facility, the manager
determines that there is a Redraw Shortfall, it may direct the issuer trustee to
draw down on the redraw facility for an amount equal to the lesser of:
o the Redraw Shortfall; and
o the redraw limit less the greater of zero and the total
principal amount of all outstanding draws under the redraw
facility, less the total Carryover Redraw
Charge Offs, provided that for the purpose of this
calculation, it is assumed that all draws under the redraw
facility due to be repaid on or before the date of the
drawdown have been repaid.
Conditions Precedent to Drawing
The obligations of the redraw facility provider to make available each
draw under the redraw facility are subject to the conditions precedent that:
o there is currently no event of default under the redraw
facility; and
o the representations and warranties by the issuer trustee in
the redraw facility agreement are true as of 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
current facts and circumstances.
Availability Fee
An availability fee accrues daily from the date of the redraw facility
agreement at a rate of 0.10% per annum on an amount equal to the redraw limit,
less outstanding Redraw Advances, less Carryover Redraw Charge Offs. The
availability fee is payable on each quarterly 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.
Interest
With respect to any draws under the redraw facility made by the redraw
facility provider, interest 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 One
Month Bank Bill Rate plus a margin, calculated on the basis of the actual number
of days elapsed since the advance and a year of 365 days. The margin will be
0.30% per annum, unless the draw has been outstanding for more than twelve
months, at which time the margin will be 0.40% per annum for that draw. The
interest shall be payable on each payment date and on termination of the redraw
facility. To the extent any interest is not paid on a payment date, the amount
of the unpaid interest will be capitalized and interest will accrue on any such
unpaid interest from that payment date.
Repayment of Draws on the Redraw Facility
The issuer trustee shall, at the direction of the manager, repay
unreimbursed draws under the redraw facility 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 draw on the following payment date.
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Events of Default under the Redraw Facility Agreement
It is an event of default under the redraw facility agreement if:
o an amount is available for payment to the redraw facility
provider under the redraw facility agreement, and the issuer
trustee does not pay that amount within 10 business days of
its due date;
o an Insolvency Event occurs in relation to the trust;
o 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;
o the Termination Date occurs in relation to the trust; or
o an event of default under 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.
Consequences of an Event of Default
At any time after an event of default under the redraw facility
agreement, the redraw facility provider may do all or any of the following:
o declare all moneys actually or contingently owing under the
redraw facility agreement immediately due and payable; and
o cancel the redraw limit.
Termination
The redraw facility will terminate on the earliest of the following:
o the date on which the notes are redeemed in full;
o the date on which the redraw facility provider declares the
redraw facility agreement terminated following an event of
default under the redraw facility agreement;
o the date on which the issuer trustee enters into a replacement
redraw facility;
o the date on which Crusade Management Limited retires or is
removed as manager;
o the date on which the issuer trustee has canceled all of the
redraw limit;
o the date which is one year after the final maturity date of
the notes;
o the date on which the redraw limit is canceled in full by the
redraw facility provider; and
o 364 days from the date of the redraw facility agreement,
unless the redraw facility provider has agreed to extend the
term of the redraw facility in accordance with the terms of
the redraw facility.
The Servicing Agreement
Servicing of Housing Loans
The servicer is required to administer the housing loans in the
following manner:
o in accordance with the servicing agreement;
o in accordance with St.George Bank's procedures manual and
policies as they apply to those housing loans from time to
time; and
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o with the same degree of diligence and care expected of an
appropriately qualified servicer of similar financial
products.
In performing any services under the servicing agreement the servicer
shall take into account whether its performance of such services does or does
not have any Material Adverse Effect. The servicer's actions in servicing the
housing loans in accordance with the relevant procedures manual are binding on
the issuer trustee. 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.
Powers
Subject to the standards for servicing set forth in the preceding
section, the servicer has the express power, among other things:
o 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;
o to waive any right in respect of the housing loans and
mortgages in the ordinary course of servicing the housing
loans and mortgages; and
o to extend the maturity date of a housing loan beyond 30 years
from the date of origination when required to do so by law or
a government agency. These extensions are not subject to the
requirement that the action not have a Material Adverse
Effect.
Undertakings by the Servicer
The servicer has undertaken, among other things, the following:
o 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 borrowers of the issuer trustee's interests,
registering transfers, delivering documents to the issuer
trustee and taking other action required to perfect title or
which the issuer trustee requires it to do.
o To collect all moneys due under those housing loans and
related mortgages and pay them into the collection account not
later than the time St.George Bank would be required to do so.
o 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.
o To 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 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 manager when each such claim is made.
o 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
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rank before or equal with the related 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 related 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
servicer's procedures manual or its ordinary course of
business.
o 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 a Material Adverse Effect.
o It will set the interest rate on the housing loans in
accordance with the requirements of the supplementary terms
notice.
o It will give notice in writing to the issuer trustee and the
rating agencies if it becomes aware of the occurrence of any
Servicer Transfer Event.
o 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.
o It will notify the issuer trustee and the manager of any event
which it reasonably believes is likely to have a Material
Adverse Effect promptly after becoming aware of such event;
and the manager of anything else which the manager reasonably
requires regarding any proposed modification to any housing
loan or related mortgage.
o It will provide information reasonably requested by the issuer
trustee or the manager, with respect to all matters relating
to the trust and the assets of the trust, and the issuer
trustee or the 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 housing loan
agreements, mortgages, certificates of title and other
documents related to the housing loans.
Undertakings by the Seller
The St.George Bank, in its capacity as seller, has undertaken, among
other things, the following under the servicing agreement:
o 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 in
order to perform or comply with its obligations under the
servicing agreement; and will comply with all laws in
connection with its ownership of any housing loans and
mortgages where failure to do so would have a Material Adverse
Effect.
o 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
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of a mortgage insurance policy to the extent those rights
relate to a housing loan and the mortgage.
o 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 equal 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 seller's procedures manual or its ordinary
course of business.
o 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 a Material Adverse Effect.
o 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 the servicer. If the order is due to the servicer
breaching any applicable law, then the servicer 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 the servicer's external auditors.
Collections
The servicer will receive collections on the housing loans from
borrowers in its general collection account. The servicer shall deposit any
collections in its possession or control into the collection account within two
business days following its receipt of the collections, less any amount for
taxes payable in relation to the collections or any amount the servicer may
retain under the supplementary terms notice.
Servicing Compensation and Expenses
The servicer will receive a fee for servicing the housing loans equal
to the product of 0.40% per annum and the aggregate outstanding principal of the
housing loans on the first day of each quarterly collection period. This fee
will be payable in arrears on the quarterly payment date following the end of
the quarterly collection period.
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 a housing loan or its related mortgaged property 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.
Liability of the Servicer
The servicer fully indemnifies the issuer trustee against all losses,
liabilities, costs and expenses incurred as a result of the failure by the
servicer to perform its duties under the servicing agreement or any action or
conduct undertaken or not taken by
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the servicer, including as a consequence of a Servicer Transfer Event. The
servicer may rely upon any statement by the issuer trustee or the manager that
any action or inaction on its part is reasonably likely to, or will, have a
Material 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
manager that the action or inaction is not reasonably likely to, or will not
have, a Material Adverse Effect.
Removal, Resignation and Replacement of the Servicer
The issuer trustee must terminate the servicer's appointment if the
issuer trustee determines that any of the following Servicer Transfer Events
occurs:
o the servicer suffers an Insolvency Event;
o the servicer fails to pay any amount within ten business days
of receipt of a notice to do so;
o 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, a Material Adverse Effect, as determined
by the issuer trustee and that failure is not remedied within
the earlier of 30 days after the servicer becomes aware of
that failure and receipt of a notice from either the issuer
trustee or the manager;
o 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 45 days after notice from the issuer
trustee, and the issuer trustee determines that breach would
have a Material Adverse Effect; or
o it becomes unlawful for the servicer to perform the services
under the servicing agreement.
The servicer will indemnify the issuer trustee against any losses, liabilities,
costs and expenses resulting from a Servicer Transfer Event.
Resignation
The servicer may voluntarily resign after giving 120 days' notice to
the rating agencies, the manager and the issuer trustee.
Replacement of the Servicer
The manager and the issuer trustee shall use reasonable efforts to find
an eligible successor servicer. Until a successor servicer is appointed, the
servicer must continue to act as the servicer and will be paid the servicing
fee. If an eligible successor servicer is not appointed by the expiration of the
120-day notice period, the issuer trustee itself will act as servicer and be
entitled to the servicing fee.
Termination of Servicing Agreement
The servicing agreement will terminate on the earlier of:
o the date on which the servicing agreement is terminated
pursuant to a Servicer Transfer Event;
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o 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;
o the date on which the issuer trustee replaces the servicer
with a successor servicer; and
o the date on which the servicer is replaced after resigning.
Amendment
The servicer and the issuer trustee may amend the servicing agreement
in writing after giving prior notice of the proposed amendment to the rating
agencies and the rating agencies have confirmed that the amendment will not
result in an adverse effect on the rating of any notes.
The Custodian Agreement
Document Custody
The custodian is responsible for custody of the title documents for
each mortgaged property, including the loan agreement, mortgage document and
certificate of title for the housing loans on behalf of the issuer trustee,
exercising the degree of diligence and care expected of an appropriately
qualified custodian of documents and in accordance with the custodial procedures
approved in advance by the issuer trustee, the manager and the rating agencies.
The custodian's duties and responsibilities include:
o holding each title document in accordance with the custodial
procedures as if the title documents were beneficially owned
by the custodian;
o ensuring that each title document is capable of identification
and kept in a security packet in a security vault separate
from other documents held by the custodian for other persons;
and
o maintaining in safe custody a record of the physical movement
of the title documents.
In performing its services, the custodian must consider if its acts or
omissions will have any Material Adverse Effect.
The custodian undertakes, among other things:
o to comply with applicable laws where the failure to do so
would have a Material Adverse Effect;
o comply with the mortgage insurance policies;
o provide information and access relating to its custodial
services if required by the issuer trustee, the manager or the
servicer; and ensure that the premises holding the documents
are appropriately insured for fire and public risks.
Audit
The custodian will be audited by an independent auditor 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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Compensation of the Custodian
The custodian will receive a fee based on the aggregate outstanding
principal of the housing loans on the first day of each quarterly collection
period. This fee will be payable in arrears on the quarterly payment date
following the end of the quarterly collection period.
Indemnity
The custodian also indemnifies the issuer trustee against all losses,
liabilities, costs and expenses incurred by the issuer trustee as a result of a
breach by the custodian of its obligations under the custodian agreement. This
indemnity is limited to the extent further described in the custodian agreement.
Under the deed of indemnity, St.George Bank also indemnifies the issuer trustee
in respect of all liability arising as a result of a breach by the custodian of
its obligations under the custodian agreement and any money payable under the
custodian agreement which is not recoverable from the custodian.
Removal and Retirement of the Custodian
The issuer trustee may terminate the custodian's appointment if the
issuer trustee determines that:
o the custodian has suffered an Insolvency Event;
o if the custodian is a related company of the seller, either
o the long-term rating of the seller falls below:
o BBB from Fitch IBCA; or
o Baa2 from Moody's, or
o BBB from Standard & Poor's; or
o a Title Perfection Event has occurred;
o the custodian has failed to comply with the custodial
procedures or any of its other obligations under any other
transaction document and such action has had, or if continued
will have, a Material Adverse Effect and, if capable of
remedy, the custodian does not remedy that failure within 30
days after the earlier of the custodian becoming aware of that
failure and receipt of a notice from either the issuer trustee
or the manager;
o any representation, warranty or certification made by the
custodian is incorrect when made and is not waived by the
issuer trustee, or if capable of remedy, is not remedied to
the issuer trustee's reasonable satisfaction within 45 days
after notice from the issuer trustee, and the issuer trustee
determines that breach will or may have a Material Adverse
Effect;
o it has become unlawful for the custodian to perform its
custodial services;
o a Servicer Transfer Event has occurred; or
o the custodian has not complied with the requirements of the
custodian agreement to the satisfaction of its auditor and a
further audit also results in an adverse finding by the
auditor.
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The custodian will indemnify the issuer trustee against any losses,
liabilities, costs and expenses resulting from its termination. If the custodian
is removed, it must deliver at its expense the title documents and all other
documents and records relating to the housing loans to, or at the direction of
the issuer trustee. If the custodian has not done so within ten business days of
the date of termination or such longer period as the issuer trustee in its
reasonable discretion permits, the issuer trustee must, with the assistance of
the manager, enter the premises where the title documents are kept, take
possession of and remove the title documents. The issuer trustee may, to the
extent that it has information available to it to do so, lodge caveats in
respect of the housing loans and related mortgages for which it does not hold
the title documents. A caveat is a notice which is put on the relevant land
title register to provide notice of a party's interest in the property.
The Seller Loan Agreement
The value of the housing loan pool as of the cut-off date, and the
consideration payable by the issuer trustee to the seller for the housing loans,
is A$ . However, the net proceeds received by the issuer trustee from the
issuance of the notes is only A$ .
Therefore, the seller will lend the balance of the consideration to the
issuer trustee. This loan will not bear interest and will not have the benefit
of the security trust deed. The issuer trustee will be required to repay any
outstanding principal under the loan after the Secured Moneys have been fully
and finally paid, to the extent that moneys are available to pay that principal,
as a full and final settlement of the obligations of the issuer trustee under
the loan.
The Servicer
Servicing of Housing Loans
Under the servicing agreement, St.George Bank will be appointed as the
initial servicer of the housing loans. The day to day servicing of the housing
loans will be performed by the servicer at St.George Bank's head office in
Kogarah and at St.George Bank's retail branches and telephone banking and
marketing centers. Servicing procedures include managing customer inquiries,
monitoring compliance with the loan features and rights applicable to these
loans, and the arrears management of overdue loans. 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. See "Description of the Transaction Documents - The Servicing
Agreement."
Collection and Enforcement Procedures
Pursuant to the terms of the housing loans, borrowers must make the
minimum repayment due under the terms and conditions of the housing loans, on or
before each monthly installment due date. St.George Bank credits repayments to
an individual housing loan on the date of its receipt. Interest is accrued daily
on the balance outstanding after close of business and charged monthly to each
relevant loan account.
When a housing loan is 15 days delinquent, it is identified in the
mortgage service system and transferred to the collection system. The collection
system identifies all accounts which are overdue and provides detailed lists of
those loans for action and follow-up.
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The collection system allocates overdue loans to designated collection
officers within St.George Bank. The loans that have been delinquent longer are
allocated to the more experienced collection officers.
Actions taken by the bank in relation to delinquent accounts will vary
depending on the following elements and, if applicable, with the input of the
mortgage insurer:
o arrears history;
o equity in the property; and
o arrangements made with the borrower to meet overdue payments.
If satisfactory arrangements cannot be made to rectify a delinquent
housing loan, St.George Bank will issue legal notices and institute recovery
action by enforcing the mortgage security. Collection officers, under legal
assistance, manage this process and pursue many sources of recovery including
the following:
o guarantees;
o government assistance schemes;
o mortgagee sale; and
o claims on mortgage insurance.
It should be noted that St.George Bank reports all actions that it
takes on overdue housing loans to the mortgage insurer in accordance with the
terms of the mortgage insurance policies.
Collection and Foreclosure Process
When a loan is 15 days delinquent, a computer generated letter is sent
to the borrower advising of the situation and requesting that payment be made to
rectify the situation. When an account reaches 30 days delinquent, a second
letter is sent to the borrower. After a housing loan is 30 days delinquent, any
written contact is also followed up by a telephone call.
When a loan reaches 60 days delinquent, a default notice is sent
advising the borrower if the matter is not rectified within a period of 31 days,
the bank is entitled to commence enforcement proceedings without further notice.
Usually a statement of claim will be issued to a borrower on an account which is
91 days delinquent. At 120 days delinquent, the bank applies for judgement in a
Supreme Court. Generally at 150 days delinquent, the bank applies for a writ of
possession and by 170 days the sheriff sets an eviction date. Appraisals and
valuations are ordered and a reserve price is set for sale via auction or
private treaty. In most instances if the account continues to be in arrears, an
offer on the property would be sought and accepted and the property settled.
These time frames assume that the borrower has either taken no action or has not
honored any commitments made in relation to the delinquency.
It should also be noted that the mortgagee's ability to exercise its
power of sale on the mortgaged property is dependent upon the statutory
restrictions of the relevant state or territory as to notice requirements. In
addition, there may be factors outside the control of the mortgagee such as
whether the mortgagor contests the sale and the market conditions at the time of
sale. These issues may affect the length of time between the decision of the
mortgagee to exercise its power of sale and final completion of the sale.
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Under St.George Bank's housing loan product specifications, variable
rate of interest loans enable a borrower to have a payment holiday where the
borrower has made excess payments. The excess payments are the difference
between the total amount paid by the borrower and the amount of the minimum
payments required. In accordance with the product specification, if a borrower
with excess payments fails to make some or all of a minimum payment, the
servicer will apply the excess payments against that missed payment. As such,
the relevant housing loan will not be considered delinquent until such time as
when the amount of missed payments is greater than the excess payments.
The arrears and security enforcement procedures may change over time as
a result of business change, or legislative and regulatory changes.
Servicer Delinquency Experience
In January 1997, St.George Bank merged with the Advance Bank Group to
form the fifth largest banking group in Australia. Prior to this time,
delinquency data was separately reported by each banking organization.
Consequently, the following tables summarize delinquency and foreclosure
experience, respectively, for loans serviced by St.George Bank prior to and
after the merger. All loans in the securitised pool that were settled prior to
September 1997 were originated by St.George Bank.
Table 1 summarizes the delinquency and foreclosure experience of loans
originated by St.George Bank. Table 2 summarizes the combined experience of
St.George Bank loans and loans acquired in the merger with Advance Bank. Both
tables express the number of delinquent loans at period end as a percentage of
the total number of loans serviced.
Table 1: St.George Bank One-to-Four-Family Residential Loans
<TABLE>
<CAPTION>
March September March September March September March
31, 1994 30, 1994 31, 1995 30, 1995 31, 1996 30, 1996 31, 1997
---------- ---------- ---------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Portfolio At:
Outstanding Balance (A$000's) $9,226,192 $9,630,713 $9,981,940 $10,442,786 $10,695,313 $11,131,152 $11,690,990
---------- ---------- ---------- ----------- ----------- ----------- -----------
Number of Loans Outstanding 147,104 151,488 156,258 165,301 168,417 170,980 175,368
---------- ---------- ---------- ----------- ----------- ----------- -----------
Percentage of Delinquent Loans:
30 to 59 days 1.15% 0.81% 0.92% 0.91% 1.14% 1.34% 1.20%
60 to 89 days 0.46% 0.34% 0.31% 0.34% 0.41% 0.53% 0.49%
90 to 119 days 0.20% 0.15% 0.13% 0.14% 0.21% 0.18% 0.24%
120 days or more 0.28% 0.21% 0.23% 0.24% 0.33% 0.33% 0.45%
---------- ---------- ---------- ----------- ----------- ----------- -----------
Total Delinquencies 2.09% 1.51% 1.59% 1.63% 2.09% 2.38% 2.38%
Foreclosures 0.03% 0.04% 0.03% 0.03% 0.05% 0.06% 0.04%
---------- ---------- ---------- ----------- ----------- ----------- -----------
Total Delinquencies and
Foreclosures 2.12% 1.55% 1.62% 1.66% 2.14% 2.44% 2.42%
---------- ---------- ---------- ----------- ----------- ----------- -----------
Period Ending:
Loan Losses as a % of Total
Outstanding Balance* N/A** N/A** N/A** N/A** 0.000% 0.004% 0.001%
---------- ---------- ---------- ----------- ----------- ----------- -----------
---------- ---------- ---------- ----------- ----------- ----------- -----------
</TABLE>
*Loan losses for each period were annualized and are expressed as a percentage
of the average outstanding balance for the period.
**Loan loss information is not available prior to the 6 month period ending
March 1996.
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Table 2: St.George Bank One-to-Four-Family Residential Loans
<TABLE>
<CAPTION>
September March September March June
30, 1997 31, 1998 30, 1998 31, 1999 30, 1999
----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Portfolio At:
Outstanding Balance (A$000's) $25,718,747 $26,092,849 $27,166,041 $27,220,578 $27,700,955
----------- ----------- ----------- ----------- -----------
Number of Loans Outstanding 361,621 363,694 368,913 366,810 365,513
% of Loans Delinquent:
30 to 59 days 1.12% 1.26% 1.01% 1.31% 1.10%
60 to 89 days 0.31% 0.37% 0.27% 0.33% 0.36%
90 to 119 days 0.21% 0.23% 0.21% 0.17% 0.20%
120 days or more 0.27% 0.29% 0.19% 0.19% 0.19%
----------- ----------- ----------- ----------- -----------
Total Delinquencies 1.91% 2.15% 1.68% 2.00% 1.85%
Foreclosures 0.05% 0.05% 0.06% 0.04% 0.03%
----------- ----------- ----------- ----------- -----------
Total Delinquencies and
Foreclosures 1.96% 2.20% 1.74% 2.04% 1.88%
----------- ----------- ----------- ----------- -----------
Period Ending:
Loan Losses as a % of Total
Outstanding Balance* 0.006% 0.006% 0.006% 0.003% 0.003%
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
</TABLE>
*Loan losses for each period were annualized and are expressed as a percentage
of the average outstanding balance for the period.
There can be no assurance that the delinquency and foreclosure
experience with respect to the housing loans comprising the housing loan pool
will correspond to the delinquency and foreclosure experience of the servicer's
mortgage portfolio set forth in the foregoing table. Indeed, the statistics
shown in the preceding table represent the delinquency and foreclosure
experience for the total one-to-four-family residential mortgage portfolios for
each of the years presented, whereas the aggregate delinquency and foreclosure
experience on the housing loans will depend on the results obtained over the
life of the housing loan pool. In addition, the foregoing statistics include
mortgage loans with a variety of payment and other characteristics that may not
correspond to those of the housing loans. Moreover, if the one-to-four-family
real estate market should experience an overall decline in property values such
that the principal balances of the housing loans comprising the housing loan
pool become equal to or greater than the value of the related mortgaged
properties, the actual rates of delinquencies and foreclosures could be
significantly higher than those previously experienced by the servicer. In
addition, adverse economic conditions, which may or may not affect real property
values, may affect the timely payment by borrowers of scheduled payments of
principal and interest on the housing loans and, accordingly, the rates of
delinquencies, foreclosures, bankruptcies and losses with respect to the housing
loan pool. You should note that Australia experienced a period of relatively low
and stable interest rates during the period covered in the preceding tables. If
interest rates were to rise, it is likely that the rate of delinquencies and
foreclosures would increase.
St.George Bank Year 2000 Program
St.George Bank's Year 2000 Efforts
St.George Bank, as well as all the parties to the transaction
documents, are faced with the task of addressing the Year 2000 issue. The Year
2000 issue is the result of computer programs being written using two digits
rather than four to define the
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applicable year and other programming techniques which limit date calculations
or assign special meanings to some dates. Any of St.George Bank's computer
systems or any computer systems of the other parties to the transaction
documents that have date sensitive software or microprocessors may recognize a
date using "00" as the year 1900 rather than the year 2000. This could result in
a system failure or miscalculations causing disruptions of operations,
including, among other things, a temporary inability to account for payments on
the housing loans, process transactions, send bills or operate servicing or
collection facilities. In addition, the Year 2000 issue could affect the ability
of borrowers to receive bills for payments on the housing loans sent by
St.George Bank or make payments on these bills. In addition, if the issuer
trustee or those vendors on whom it relies does not have a computer system that
is Year 2000 compliant by the year 2000, the issuer trustee's ability to make
distributions on the notes may be materially and adversely affected. In
addition, a substantial part of St.George Bank's operations and service delivery
to partners and customers could be rendered inoperable if public utility
services fail.
Under the direction of St.George Bank's Chief Executive Officer, with
sponsorship by the Chief General Manager Information Technology, an initial
assessment of Year 2000 compliance of St.George Bank's systems commenced in the
middle of 1996. Following a report to St.George Bank's board of directors, the
directors requested that a formal program structure be formed and overseen by a
Year 2000 Steering Committee, chaired by St.George Bank's Chief Executive
Officer. A Year 2000 program office has been established to centrally drive and
guide all projects within the Year 2000 program across the full breadth of the
St.George Bank group. The program office monitors progress of Year 2000
initiatives and reports monthly to the Year 2000 Steering Committee.
The Chief Executive Officer is kept informed of project progress and
updates are provided, on a regular basis, to St.George Bank's Board and
St.George Bank's Audit Committee.
The Year 2000 Program is divided into five key areas:
1. Critical Applications;
2. IT Infrastructure;
3. Business Units;
4. Property; and
5. Contingency Planning.
The internal audit of St.George Bank's program is complemented by
St.George Bank's external auditors as well as independent consultants to ensure
both the timeliness and the quality of work. St.George Bank provides regular
updates to regulatory authorities such as the Australian Stock Exchange and the
Australian Prudential Regulation Authority.
St.George Bank's approach to achieving compliance of its systems and
services is to take reasonable steps to satisfy itself that its systems and
services will not be materially affected by the year 2000 date change. This
includes pursuing from third parties on whom St.George Bank is critically
dependent, statements of compliance relating to their systems and services.
The St.George Bank Year 2000 Program has approximately 210 personnel
employed either as full-time employees or contractors. More staff from other
divisions of St.George Bank are also involved in Year 2000 work as commissioned
by the Program.
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State of Readiness
The three preliminary phases, assessment, audit and inventory, were
completed during 1997 and 1998. Remediation of critical St.George Bank
applications was largely completed in October 1998 and finalized during March
1999. This included preliminary testing with a variety of year 2000 dates which
were inserted into St.George Bank's IT systems and software. Compliance testing
in a year 2000 environment was completed on schedule on July 31, 1999.
Regression testing to take account of further changes introduced by the
integration resulting from the merger of St.George Bank with Advance Bank and
Bank SA is scheduled for completion by September 30, 1999.
As of August 25, 1999, progress in each of the five key areas is as
follows:
1. Critical Applications.
All target critical applications have achieved compliance.
2. IT Infrastructure, including all mainframe, networking, internal
telecommunications, server and desktop based systems:
o all mainframe and associated components have achieved
compliance;
o all communications management equipment has achieved
compliance;
o all network services have achieved compliance;
o roll out of a standard operating environment desktop is in
progress, scheduled for completion by the third quarter of
1999; and
o systems platform testing has been completed as part of the
compliance testing of applications.
3. Business Units.
Within St.George Bank's business units, the Year 2000 Program
investigated the following major categories of inventory:
o Business services supplied by external vendors:
The process for obtaining compliance statements from all
vendors providing critical external services was completed in
January 1999. Service vendors who have not been able to
provide acceptable evidence of compliance are being monitored
and pursued. St.George Bank is either replacing service
vendors who continue to provide unsatisfactory responses or
developing appropriate contingency plans for such service
vendors where suitable alternate service suppliers are not
available.
o Major Customers:
All commercial exposures greater than A$1,000,000 and Treasury
customers have been surveyed to determine their level of Year
2000 readiness. To date, 98% of these customers have provided
a response that is satisfactory to St.George Bank.
Customers that have not satisfied St.George Bank of their
compliance status will be contacted and reviewed. Should the
client not have satisfied St.George Bank of its compliance
status, action will be commenced to limit activity or remove
the company from the customer list until an acceptable level
of risk can be attained.
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References to St.George Bank being "satisfied" as regards
customer compliance are based wholly on a review of answers to
questionnaires or materials published by that party. St.George
Bank has not conducted a Year 2000 audit of such parties and
is not certifying their preparedness.
4. Property.
St.George Bank currently occupies leased and owned premises in each
Australian state and territory. Remediation and testing work on these buildings
is complete.
5. Contingency Planning.
Critical business processes were identified and impact assessed in
terms of business closure, liquidity, external factors, occupational health and
safety, operations, customers, counterparties, litigation, reputation and
regulation categories. Contingency plans are completed for critical processes
with high risk of failure.
Contingency plans are completed for buildings over 5,000 square meters
in size with complex building systems, which are critical to the continuity of
St.George Bank's operations, such as those which house core computer systems,
and building services where major tenants are located. The plans take into
account building systems and utilities dependencies.
Contingency plans are completed for IT infrastructure and applications.
Contingency strategies include:
o Full test of disaster recovery test;
o Operating branches off line;
o Retain batch file inputs; and
o Ensure suitable disaster recovery and development testing
environments are available.
The following additional activities are scheduled for the second half
of 1999:
o Ongoing maintenance of contingency planning activities in
conjunction with changing risk assessment; and
o Appropriate rehearsal of contingency plans.
Development of Year 2000 transition management plan including:
o Establishment of command centre;
o Integration of contingency plans with ongoing risk mitigation
work; and
o Testing systems over the date change weekend.
IT Moratorium
A freeze on changes to St.George Bank's IT environments, such as
software, hardware and networks, has been imposed from October 1, 1999 to
January 15, 2000. In addition, clearing systems are subject to an Australian
Payments Clearing Association mandated freeze. Both these actions are intended
to minimize and manage the risk of Year 2000 errors being re-introduced to the
IT environment.
Interbank Testing
St.George Bank participated in the testing of electronic payments
clearing systems with nominated external testing partners as requested by the
Australian Payments Clearing Association on behalf of the Australian Prudential
Regulatory Authority.
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St.George Bank has successfully completed the five designated "test streams"
with nominated industry partners. A further period of "Preservation Testing" has
been scheduled for August and September 1999 by the Australian Payments Clearing
Association.
Purchasing Policy and New Systems Development
All activities relating to the acquisition or construction of new IT
systems are governed by corporate policy requiring that any such new items are
Year 2000 compliant at the time of their deployment into production.
Year 2000 Information and Readiness Disclosure Act
The information in this section is intended to be a "Year 2000
Readiness Disclosure" as that term is defined in the Year 2000 Information and
Readiness Disclosure Act.
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 notes under
the stated assumptions and is not a prediction of the prepayment rate that might
actually be experienced.
General
The rate of principal payments and aggregate amount of distributions on
the notes and the yield to maturity of the notes will relate 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 the seller. Subject, in the case of fixed rate housing loans, to the payment
of applicable fees, the housing loans may be prepaid by the mortgagors at any
time.
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 early distributions of principal
amounts on the notes. Prepayments of principal may occur in the following
situations:
o refinancing by mortgagors with other financiers;
o receipt by the issuer trustee of enforcement proceeds due to a
mortgagor having defaulted on its housing loan;
o receipt by the issuer trustee of insurance proceeds in
relation to a claim under a mortgage insurance policy in
respect of a housing loan;
o repurchase by the seller as a result of a breach by it of
certain representations, less the principal balance of any
related substituted loan, if any;
o receipt by the trust of any net amount attributable to
principal from another trust established under the master
trust deed with respect to the substitution of a housing loan;
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o repurchase of the housing loans as a result of an optional
termination or a redemption for taxation or other reasons;
o receipt of proceeds of enforcement of the security trust deed
prior to the final maturity date of the notes; or
o receipt of proceeds of the sale of housing loans if the trust
is terminated while notes are outstanding, for example, if
required by law, and the housing loans are then either
o repurchased by St.George Bank under its right of
first refusal; or
o sold to a third party.
The prepayment amounts described above are reduced by:
o principal draws;
o repayment of redraw advances; and
o the Redraw Retention Amount retained in the
collection account.
Since the rate of payment of principal of the housing loans cannot be
predicted and will depend on future events and a variety of factors, no
assurance can be given to you as to this rate of payment or the rate of
principal prepayments. The extent to which the yield to maturity of any note may
vary from the anticipated yield will depend upon the following factors:
o the degree to which a note is purchased at a discount or
premium; and
o the degree to which the timing of payments on the note is
sensitive to prepayments, liquidations and purchases of the
housing loans.
A wide variety of factors, including economic conditions, the
availability of alternative financing and homeowner mobility may affect the
trust's prepayment experience with respect to the housing loans. In particular,
under Australian law, unlike the law of the United States, interest on loans
used to purchase a principal place of residence is not ordinarily deductible for
taxation purposes.
Weighted Average Lives
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 the note is reduced to zero.
Usually, greater than anticipated principal prepayments will increase
the yield on notes purchased at a discount and will decrease the yield on notes
purchased at a premium. The effect on your yield due to principal prepayments
occurring at a rate that is faster or slower than the rate you anticipated will
not be entirely offset by a subsequent similar reduction or increase,
respectively, in the rate of principal payments. The amount and timing of
delinquencies and defaults on the housing loans and the recoveries, if any, on
defaulted housing loans and foreclosed properties will also affect the weighted
average life of the notes.
The following tables are based on a constant prepayment rate model.
Constant prepayment rate represents an assumed constant rate of prepayment each
month, expressed as a per annum percentage of the principal balance of the pool
of mortgage
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loans for that month. Constant prepayment rate 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 in your pool. Neither of the seller nor the manager believes that
any existing statistics of which it is aware provide a reliable basis for
noteholders to predict the amount or timing of receipt of housing loan
prepayments.
The following tables are based upon the assumptions in the following
paragraph, and not upon the actual characteristics of the housing loans. Any
discrepancies between characteristics of the actual housing loans and the
assumed housing loans may have an effect upon the percentages of the principal
balances outstanding and weighted average lives of the notes set forth in the
tables. Furthermore, since these discrepancies exist, principal payments on the
notes may be made earlier or later than the tables indicate.
For the purpose of the following tables, it is assumed that:
o the housing loan pool consists of fully-amortizing housing
loans having the following approximate characteristics:
<TABLE>
<CAPTION>
Initial Remaining
Principal Interest Original Term Term to
Pool Amount Rate to Maturity Maturity
Number A$ % in Months in Months
------ -------------- -------- ------------- ----------
<S> <C> <C> <C> <C>
1 44,352,472.23 6.70 125 95
2 98,608,564.04 6.49 187 158
3 243,131,649.09 6.50 259 222
4 287,825,862.90 6.54 299 258
5 840,438,858.22 6.42 301 284
6 71,913,953.65 6.49 360 334
Total 1,586,271,360.13
</TABLE>
o the cut-off date is the close of business on August 17, 1999;
o the closing date for the notes is September 22, 1999;
o payments on the notes are made on the quarterly payment date,
regardless of the day on which payment actually occurs,
commencing in November 1999 and are made in accordance with
the priorities described in this prospectus;
o the housing loans' prepayment rates are equal to the
respective percentages of constant prepayment rate indicated
in the tables;
o the scheduled monthly payments of principal and interest on
the housing loans will be timely delivered on the first day of
each month, except in the month of August, in which case,
payments are calculated based on a pro rata share of one
month's collections, assuming a start date of the close of
business August 17, 1999, with no defaults;
o there are no redraws, substitutions or payment holidays with
respect to the housing loans;
o all prepayments are prepayments in full received on the last
day of each month and include 30 days' interest on the
prepayment;
o principal collections are distributed according to the rules
of distribution set forth in this prospectus;
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o all payments under the swaps are made as scheduled;
o the manager does not direct the issuer trustee to exercise its
right of optional redemption of the notes, except with respect
to the line titled "Weighted Average Life - To Call (Years)";
and
o the exchange rate is US$0.6304=A$1.00.
It is not likely that the housing loans will pay at any assumed
constant prepayment rate to maturity or that all housing loans will prepay at
the same rate. In addition, the diverse remaining terms to maturity of the
housing loans could produce slower or faster distributions of principal than
indicated in the tables at the assumed constant prepayment rate 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 in this section. You are urged to make your investment decisions on a
basis that includes your determination as to anticipated prepayment rates under
a variety of the assumptions discussed in this prospectus as well as other
relevant assumptions.
In the following tables, the percentages have been rounded to the
nearest whole number and the weighted average life of a class of notes is
determined by the following three step process:
o multiplying the amount of each payment of principal thereof by
the number of years from the date of issuance to the related
payment date,
o summing the results, and
o dividing the sum by the aggregate distributions of principal
referred to in the first clause above and rounding to two
decimal places.
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Percent of Initial Principal Outstanding at the Following Percentages
of Constant Prepayment Rate
Class A-1 Notes
<TABLE>
<CAPTION>
Date 0% 20% 22% 25% 30% 35%
------ ------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C>
Initial Percent....... 100 100 100 100 100 100
11/15/99............... 98 84 82 80 75 71
11/15/00............... 90 14 6 0 0 0
11/15/01............... 81 0 0 0 0 0
11/15/02............... 71 0 0 0 0 0
11/15/03............... 61 0 0 0 0 0
11/15/04............... 50 0 0 0 0 0
11/15/05............... 39 0 0 0 0 0
11/15/06............... 26 0 0 0 0 0
11/15/07............... 14 0 0 0 0 0
11/15/08............... 1 0 0 0 0 0
11/15/09............... 0 0 0 0 0 0
11/15/10............... 0 0 0 0 0 0
11/15/11............... 0 0 0 0 0 0
11/15/12............... 0 0 0 0 0 0
11/15/13............... 0 0 0 0 0 0
11/15/14............... 0 0 0 0 0 0
11/15/15............... 0 0 0 0 0 0
11/15/16............... 0 0 0 0 0 0
11/15/17............... 0 0 0 0 0 0
11/15/18............... 0 0 0 0 0 0
11/15/19............... 0 0 0 0 0 0
11/15/20............... 0 0 0 0 0 0
11/15/21............... 0 0 0 0 0 0
11/15/22............... 0 0 0 0 0 0
11/15/23............... 0 0 0 0 0 0
11/15/24............... 0 0 0 0 0 0
11/15/25............... 0 0 0 0 0 0
11/15/26............... 0 0 0 0 0 0
Weighted Average Life--
To Call (Years) 4.79 0.74 0.68 0.61 0.51 0.44
To Maturity (Years) 5.10 0.74 0.68 0.61 0.51 0.44
</TABLE>
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<PAGE>
Percent of Initial Principal Outstanding at the Following Percentages
of Constant Prepayment Rate
Class A-2 Notes
<TABLE>
<CAPTION>
Date 0% 20% 22% 25% 30% 35%
------ ------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C>
Initial Percent........ 100 100 100 100 100 100
11/15/99............... 100 100 100 100 100 100
11/15/00............... 100 100 100 98 88 79
11/15/01............... 100 78 73 65 53 41
11/15/02............... 100 56 49 41 28 17
11/15/03............... 100 38 32 23 12 2
11/15/04............... 100 24 18 10 0 0
11/15/05............... 100 13 8 1 0 0
11/15/06............... 100 4 0 0 0 0
11/15/07............... 100 0 0 0 0 0
11/15/08............... 100 0 0 0 0 0
11/15/09............... 94 0 0 0 0 0
11/15/10............... 86 0 0 0 0 0
11/15/11............... 78 0 0 0 0 0
11/15/12............... 70 0 0 0 0 0
11/15/13............... 62 0 0 0 0 0
11/15/14............... 54 0 0 0 0 0
11/15/15............... 45 0 0 0 0 0
11/15/16............... 35 0 0 0 0 0
11/15/17............... 25 0 0 0 0 0
11/15/18............... 16 0 0 0 0 0
11/15/19............... 7 0 0 0 0 0
11/15/20............... 0 0 0 0 0 0
11/15/21............... 0 0 0 0 0 0
11/15/22............... 0 0 0 0 0 0
11/15/23............... 0 0 0 0 0 0
11/15/24............... 0 0 0 0 0 0
11/15/25............... 0 0 0 0 0 0
11/15/26............... 0 0 0 0 0 0
Weighted Average Life--
To Call (Years) 7.15 3.88 3.56 3.14 2.60 2.19
To Maturity (Years) 15.49 3.90 3.56 3.14 2.60 2.19
</TABLE>
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<PAGE>
Percent of Initial Principal Outstanding at the Following Percentages
of Constant Prepayment Rate
Class A-3 Notes
<TABLE>
<CAPTION>
Date 0% 20% 22% 25% 30% 35%
------ ------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C>
Initial Percent....... 100 100 100 100 100 100
11/15/99............... 100 100 100 100 100 100
11/15/00............... 100 100 100 100 100 100
11/15/01............... 100 100 100 100 100 100
11/15/02............... 100 100 100 100 100 100
11/15/03............... 100 100 100 100 100 100
11/15/04............... 100 100 100 100 100 68
11/15/05............... 100 100 100 100 67 40
11/15/06............... 100 100 99 74 43 23
11/15/07............... 100 90 72 51 27 13
11/15/08............... 100 67 52 35 16 6
11/15/09............... 100 50 37 23 9 2
11/15/10............... 100 36 26 15 4 0
11/15/11............... 100 25 17 9 1 0
11/15/12............... 100 17 11 5 0 0
11/15/13............... 100 11 7 2 0 0
11/15/14............... 100 7 3 0 0 0
11/15/15............... 100 3 1 0 0 0
11/15/16............... 100 1 0 0 0 0
11/15/17............... 100 0 0 0 0 0
11/15/18............... 100 0 0 0 0 0
11/15/19............... 100 0 0 0 0 0
11/15/20............... 91 0 0 0 0 0
11/15/21............... 56 0 0 0 0 0
11/15/22............... 21 0 0 0 0 0
11/15/23............... 4 0 0 0 0 0
11/15/24............... 2 0 0 0 0 0
11/15/25............... 0 0 0 0 0 0
11/15/26............... 0 0 0 0 0 0
Weighted Average Life--
To Call (Years) 7.15 7.15 7.15 7.06 6.59 5.95
To Maturity (Years) 22.49 10.87 10.01 8.90 7.42 6.28
</TABLE>
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Use of Proceeds
The net proceeds from the sale of the Class A notes, after being
exchanged pursuant to the currency swap, will amount to A$ and will be used by
the issuer trustee to acquire from the seller equitable title to the housing
loans and related mortgages.
Legal Aspects of the Housing Loans
The following discussion is a summary of the material legal aspects of
Australian retail housing loans and mortgages. It is not an exhaustive analysis
of the relevant law. Some of the legal aspects are governed by the law of the
applicable State or Territory. Laws may differ between States and Territories.
The summary does not reflect the laws of any particular jurisdiction or cover
all relevant laws of all jurisdictions in which a mortgaged property may be
situated, although it reflects the material aspects of the laws of New South
Wales, without referring to any specific legislation of that state.
General
There are two parties to a mortgage. The first party is the mortgagor,
who is either the borrower and homeowner or, where the relevant loan is
guaranteed and the guarantee is secured by a mortgage, the guarantor. The
mortgagor grants the mortgage over their property. The second party is the
mortgagee, who is the lender. 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. If the housing loan is not secured by a first
ranking mortgage the seller will equitably assign to the issuer trustee all
prior ranking registered mortgages in relation to that housing loan. Each
borrower under the housing loans is prohibited under its loan documents from
creating another mortgage or other security interest over the relevant mortgaged
property without the consent of St.George Bank.
Nature of Housing Loans as Security
There are a number of different forms of title to land in Australia.
The most common form of title in Australia is "Torrens title." Only land which
is Torrens title land may be used to secure housing loans, and thus constitute
mortgaged property.
"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.
Some Torrens title property securing housing loans and thus comprised
in the mortgaged property, will be "strata title" or "urban leasehold."
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Strata title
"Strata title" was developed to enable 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 apartment unit. 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 a "body corporate" for
the benefit of the individual proprietors. All proprietors are members of the
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.
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 an apartment 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 title
known as urban leasehold. 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:
o 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
o where it involves residential property, is 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.
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 would 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.
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 some issues involved in taking
security over land.
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Under Torrens title, registration of a mortgage using the prescribed
form executed by the mortgagor is required in order for the mortgagee to obtain
both 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 or registered title. However, registration does not transfer title in the
property and 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 creditor or proposed creditor 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 his or her 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.
St.George Bank as Mortgagee
St.George Bank is, and until a Title Perfection Event occurs intends to
remain, the registered mortgagee of all the mortgages. The 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 St.George Bank, as servicer, 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 St.George
Bank, to be registered as mortgagee of the mortgages. Until that registration is
achieved, the issuer trustee or the manager is entitled, but not obligated, to
lodge caveats on the register publicly to notify its interest in the mortgages.
Enforcement of Registered Mortgages
Subject to the discussion in this section, if a borrower defaults under
a housing loan the loan documents provide that all moneys under the housing 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:
o 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.
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o The mortgagee may, in limited circumstances, lease the property to
third parties.
o The mortgagee may foreclose on the property. Under foreclosure
procedures, the mortgage extinguishes 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.
o The mortgagee may appoint a receiver to deal with income from the
property or exercise other rights delegated to the receiver by the
mortgagee. A receiver is the agent of the mortgagor and so, unlike
when the mortgagee enters possession of property, in theory the
mortgagee is not liable for the receiver's acts or as occupier of the
property. In practice, however, the receiver will require indemnities
from the mortgagee that appoints it.
o 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 in registered mortgages under
the relevant Torrens title legislation. The Torrens title legislation
prescribes certain 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 in 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 payments if the court determines that the
relevant default interest rate is a penalty. Certain jurisdictions prescribe a
maximum recoverable interest rate, although in most jurisdictions there is no
specified threshold rate to determine what is a penalty. In those circumstances,
whether a rate is a penalty or not will be determined by reference to such
factors as the prevailing market interest rates. The Consumer Credit Legislation
does not impose a limit on the rate of default interest, but a rate which is too
high may entitle the borrower to have the loan agreement re-opened on the ground
that it is unjust. Under the Corporations Law, the liquidator of a company may
avoid a loan under which an extortionate interest rate is levied.
The Consumer Credit Legislation requires that any fee or charge to be
levied by the lender must be provided for in the contract, otherwise it cannot
be levied. The regulations under the Consumer Credit Legislation may also from
time to time prohibit certain fees and charges. The Consumer Credit Legislation
also requires that establishment fees, termination fees and prepayment fees must
be reasonable otherwise they may be reduced or set aside.
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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, or file a
claim, 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:
o the disposition was made to defraud creditors; or
o the disposition was made by an insolvent debtor within 6 months of the
petition for bankruptcy and that disposition 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:
o 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;
o within a prescribed period prior to the commencement of the winding up
of the company; and
o when 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 takes 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
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pre-existing mortgages. To the extent that the issuer trustee or a receiver
appointed on its behalf incurs any such liabilities, it will be entitled to be
indemnified out of the assets of the trust.
Insolvency Considerations
The current transaction is designed to mitigate insolvency risk. For
example, the equitable assignment of the housing loans by St.George Bank to the
issuer trustee should ensure that the housing loans are not assets available to
the liquidator or creditors of St.George Bank in the event of an insolvency of
St.George Bank. 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 "Description of the Transaction Documents - Security
Trust Deed - Enforcement of the Charge". 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. The proceeds of enforcement of the security trust
deed are to be applied by the security trustee as set out in "Description of the
Transaction Documents - The Security Trust Deed - Priorities under the Security
Trust Deed." If the proceeds from enforcement of the security trust deed are not
sufficient to redeem the Class A notes in full, some or all of the Class A
noteholders will incur a loss.
Tax Treatment of Interest on 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 loans and other non-capital expenditures
relating to non-owner occupied properties that generate taxable income are
generally allowable as tax deductions.
Consumer Credit Legislation
Under the Consumer Credit Legislation a borrower has the right to apply to
a court to do the following, among other things:
o vary the terms of a housing loan on the grounds of hardship or that it
is an unjust contract or that its material terms were not disclosed;
o reduce or cancel any interest rate payable on a housing loan if the
interest rate is changed in a way which is unconscionable;
o have certain provisions of a housing loan which are in breach of the
legislation declared unenforceable;
o obtain an order for a civil penalty against the seller, the amount of
which may be set off against any amount payable by the borrower under
the applicable housing loan; or
o obtain restitution or compensation from the seller in relation to
breaches of the Consumer Credit Legislation in relation to a housing
loan.
The issuer trustee will become liable for compliance with the Consumer
Credit Legislation if it acquires legal title to the housing loans. It will take
this legal title
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subject to any breaches of the Consumer Credit Legislation by the seller. In
particular, once the issuer trustee acquires legal title it may become liable to
orders of the type referred to in the last two bullet points listed above in
relation to breaches of the Consumer Credit Legislation. Any order under the
Consumer Credit Legislation 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
to you under the notes. The seller has indemnified the issuer trustee against
any loss the issuer trustee may incur as a result of a failure by the seller to
comply with the Consumer Credit Legislation in respect of a mortgage.
United States Federal Income Tax Matters
Overview
The following is a summary of all material United States federal income tax
consequences of the purchase, ownership and disposition of the Class A notes by
investors who are subject to United States federal income tax. This summary is
based upon current provisions of the Internal Revenue Code of 1986, as amended,
proposed, temporary and final Treasury regulations under the Code, and published
rulings and court decisions, all of which are subject to change, possibly
retroactively, or to a different interpretation at a later date by a court or by
the IRS. The parts of this summary which relate to matters of law or legal
conclusions represent the opinion of Mayer, Brown & Platt, special United States
federal tax counsel for the seller, and are as qualified in this summary. We
have not sought and will not seek any rulings from the IRS about any of the
United States federal income tax consequences we discuss, and we cannot assure
you that the IRS will not take contrary positions.
Mayer, Brown & Platt has prepared or reviewed the statements under the
heading "United States Federal Income Tax Matters" and is of the opinion that
these statements discuss all material United States federal income tax
consequences to investors generally of the purchase, ownership and disposition
of the Class A notes. However, the following discussion does not discuss and
Mayer, Brown & Platt is unable to opine as to the unique tax consequences of the
purchase, ownership and disposition of the Class A notes by investors that are
given special treatment under the United States federal income tax laws,
including:
o banks and thrifts;
o insurance companies;
o regulated investment companies;
o dealers in securities;
o investors that will hold the notes as a position in a "straddle" for
tax purposes or as a part of a "synthetic security," "conversion
transaction" or other integrated investment comprised of the notes and
one or more other investments;
o foreign investors;
o trusts and estates; and
o pass-through entities, the equity holders of which are any of the
foregoing.
Additionally, the discussion regarding the Class A notes is limited to the
United States federal income tax consequences to the initial investors and not
to a purchaser
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in the secondary market and to investors who will hold the Class A notes as
"capital assets" within the meaning of Section 1221 of the Code.
It is suggested that prospective investors consult their own tax advisors
about the United States federal, state, local, foreign and any other tax
consequences to them of the purchase, ownership and disposition of the Class A
notes, including the advisability of making any election discussed under "Market
Discount".
The issuer trustee will be indemnified for any United States federal income
taxes imposed on it in its capacity as trustee of the trust. Also, based on the
representation of the manager that the trust does not and will not have an
office in the United States, and that the trust is not conducting, and will not
conduct any activities in the United States, other than in connection with its
issuance of the Class A notes, in the opinion of Mayer, Brown & Platt, the
issuer trustee will not be subject to United States federal income tax.
General
Mayer, Brown & Platt is of the opinion that you will be required to report
interest income on the Class A notes you hold in accord with your method of
accounting.
Sale of Notes
Mayer, Brown & Platt is of the opinion that if you sell a Class A note, you
will recognize gain or loss equal to the difference between the amount realized
on the sale, other than amounts attributable to, and taxable as, accrued
interest, and your adjusted tax basis in the Class A note. Your adjusted tax
basis in a note will equal your cost for the Class A note, decreased by any
amortized premium and any payments other than interest made on the Class A note
and increased by any market discount or original issue discount included in your
income. Any gain or loss will generally be a capital gain or loss, other than
amounts representing accrued interest or market discount, and will be long-term
capital gain or loss if the Class A note was held as a capital asset for more
than one year. In the case of an individual taxpayer, the maximum long-term
capital gains tax rate is lower than the maximum ordinary income tax rate. Any
capital losses realized may be deducted by a corporate taxpayer only to the
extent of capital gains and by an individual taxpayer only to the extent of
capital gains plus $3,000 of other U.S. income.
Market Discount
In the opinion of Mayer, Brown & Platt, you will be considered to have
acquired a Class A note at a "market discount" to the extent the remaining
principal amount of the note exceeds your tax basis in the note, unless the
excess does not exceed a prescribed de minimis amount. If the excess exceeds the
de minimis amount, you will be subject to the market discount rules of Sections
1276 and 1278 of the Code with regard to the 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
the sale or disposition be treated as ordinary income to the extent the gain
represents market discount accrued during the period the note was held by you,
reduced by the amount of accrued market discount previously included in income.
In the case of a partial principal payment of a Class A note subject to the
market discount rules, Section 1276 of the Code requires that the payment be
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included in ordinary income to the extent the payment does not exceed the
market discount accrued during the period the note was held by you, 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 with principal payable 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 not yet issued. Until these Treasury
regulations are issued, you should follow the explanatory conference committee
Report to the Tax Reform Act of 1986 for your accrual of market discount. This
Conference Committee Report indicates that holders of these obligations may
elect to accrue market discount either on the basis of a constant interest rate
or as follows:
o for those obligations that have original issue discount, market
discount shall be deemed to accrue in proportion to the accrual of
original issue discount for any accrual period; and
o for those obligations which do not have original issue discount, 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 at the beginning of the accrual
period.
Under Section 1277 of the Code, if you incur or continue debt that is used
to purchase a Class A note subject to the market discount rules, and the
interest paid or accrued on this debt in any taxable year exceeds the interest
and original issue discount currently includible in income on the note,
deduction of this excess interest must be deferred to the extent of the market
discount allocable to the taxable year. The deferred portion of any interest
expense will generally be deductible when the market discount is included in
income upon the sale, repayment, or other disposition of the indebtedness.
Section 1278 of the Code allows a taxpayer to make an election to include
market discount in gross income currently. If an election is made, the
previously described rules of Sections 1276 and 1277 of the Code will not apply
to the taxpayer.
Due to the complexity of the market discount rules, we suggest that you
consult your tax advisors as to the applicability and operation of these rules.
Premium
In the opinion of Mayer, Brown & Platt, you will generally be considered to
have acquired a Class A note at a premium if your tax basis in the note exceeds
the remaining principal amount of the note. In that event, if you hold a Class A
note as a capital asset, you may amortize the premium as an offset to interest
income under Section 171 of the Code, with corresponding reductions in your tax
basis in the note if you have made an election under Section 171 of the Code.
Generally, any amortization is on a constant yield basis. However, in the case
of bonds with principal payable in two or more installments, like the Class A
notes, the previously discussed conference report, which indicates a
Congressional intent that amortization be in accordance with the rules that will
apply to the accrual of market discount on these obligations.
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Backup Withholding
Mayer, Brown & Platt is of the opinion that, backup withholding taxes will
be imposed on payments to you at the rate of 31% on interest paid, and original
issue discount accrued, if any, on the Class A notes if, upon issuance, you fail
to supply the manager or its broker with a certified statement, under penalties
of perjury, containing your name, address, correct taxpayer identification
number, and a statement that you are not required to pay backup withholding.
Exempt investors, such as corporations, tax-exempt organizations, qualified
pension and profit sharing trusts, individual retirement accounts or
non-resident aliens who provide certification of their status as non-resident
are not subject to backup withholding. Information returns will be sent annually
to the IRS by the manager and to you stating the amount of interest paid,
original issue discount accrued, if any, and the amount of tax withheld from
payments on the Class A notes. We suggest that you consult your tax advisors
about your eligibility for, and the procedure for obtaining, exemption from
backup withholding.
Recently, the Treasury Department issued new regulations which modify the
backup withholding and information reporting rules described in this section.
The new regulations will generally be effective for payments made after December
31, 2000, subject to transition rules. We suggest that you consult your own tax
advisors regarding these new regulations.
Australian Tax Matters
The following statements with respect to Australian taxation are the
material tax consequences to the United States Class A noteholders of holding
Class A notes and are based on advice received by the manager. It is suggested
that 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 notes.
Payments of Principal, Premiums and Interest
Under existing Australian tax law, non-resident holders of notes or
interests in any global note, other than persons holding such securities or
interest as part of a business carried on, at or through a permanent
establishment in Australia, are not subject to Australian income tax on payments
of interest or amounts in the nature of interest, other than interest
withholding tax, which is currently 10%, on interest or amounts in the nature of
interest paid on the notes. A premium on redemption would generally be treated
as an amount in the nature of interest for this purpose.
Pursuant to section 128F of the Income Tax Assessment Act 1936 of the
Commonwealth of Australia, an exemption from Australian interest withholding tax
applies provided all prescribed conditions are met.
These conditions are:
o the issuer trustee is a company that is a resident of Australia when
it issues the notes and when interest, as defined in section 128A
(1AB) of the Income Tax Assessment Act, is paid; and
o the notes, or a global bond or note or interests in such a global bond
or note, were issued in a manner which satisfied the public offer test
as prescribed under section 128F of the Income Tax Assessment Act.
The issuer trustee will seek to issue the Class A notes and interests in
any global Class A note in a way that will satisfy the public offer test and
otherwise meet the
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requirements of section 128F of the Income Tax Assessment Act including by
listing the Class A notes.
The public offer 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 directly or indirectly by an associate of the issuer trustee
within the meaning of that section, other than in the capacity of a dealer,
manager or underwriter in relation to the placement of a note. "Associate" for
these purposes is widely defined and means, generally speaking, in relation to
an issuer acting in the capacity of a trustee, the beneficiaries of the trust.
Thus the relevant associates of the issuer trustee in the present case will be
the manager as the residual beneficiary of the trust and the associates of the
manager and the other beneficiaries of the trust, if any, from time to time.
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 of the Income Tax Assessment Act, which, as
discussed, would be an associate of the residual beneficiary, if, at the time of
the payment, the issuer trustee knows, or has reasonable grounds to suspect,
that the person is an associate.
If, for any reason, the interest paid by the issuer trustee is not exempt
from interest withholding tax, the treaty titled "Convention for the Avoidance
of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on
Income" between the United States and Australia may apply. This treaty provides
that interest which has its source in Australia, and to which a United States
resident, as defined in the treaty and who is entitled to the benefit of the
treaty, is beneficially entitled, may be taxed in Australia, but that any tax
charged shall not exceed 10% of the gross amount of interest. However, this
provision will not apply where the indebtedness giving rise to the interest
entitlement is effectively connected with:
o the United States resident beneficial owner's permanent establishment,
at or through which it carries on business in Australia; or
o the United States resident beneficial owner's fixed base, situated in
Australia, from which it performs personal services.
Profit on Sale
Under existing Australian law, non-resident holders of notes will not be
subject to Australian income tax on profits derived from the sale or disposal of
the notes provided that:
o the notes are not held as part of a business carried on, at or through
a permanent establishment in Australia; and
o the profits do not have an Australian source.
The source of any profit on the disposal of notes will depend on the
factual circumstances of the actual disposal. Where the 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 a business carried on, at or through a permanent
establishment in Australia, the profit should not have an Australian source.
There are, however, specific withholding tax rules that can apply to treat
a portion of the sale price of notes as interest for withholding tax purposes
and which
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amounts are not covered by the exemption conditions in section 128F of the
Income Tax Assessment Act. These rules can apply when:
o notes are sold for any amount in excess of their issue price prior to
maturity to a purchaser who is either a resident who does not acquire
the notes in the course of carrying on business in the country outside
Australia at or through a permanent establishment in that country or a
non-resident that acquires the notes in the course of carrying on a
business in Australia at or through a permanent establishment in
Australia; or
o notes are sold to an Australian resident in connection with a "washing
arrangement" as defined in the Income Tax Assessment Act.
Goods and Services Tax
From July 1, 2000, a goods and services tax will be payable by all entities
which make taxable supplies in Australia. If an entity, such as the issuer
trustee, makes any taxable supplies on or after July 1, 2000, it will have to
pay goods and services tax equal to 1/11th of the total amount received for the
supply. However, on the basis of the current goods and services tax legislation,
it is likely that the issue of the Class A notes and the payment of interest or
principal on the Class A notes to you will not be taxable supplies.
If the supply is
o "goods and services tax free," the issuer trustee does not pay a goods
and services tax on the supply and can obtain goods and services tax
credits for goods and services taxes paid on things acquired to make
the supply; or
o "input taxed," which includes financial supplies, the issuer trustee
does not pay a goods and services tax on the supply, but is not
entitled to goods and services tax credits for goods and services tax
paid on things acquired to make the supply.
Services provided to the issuer trustee will be a mixture of taxable and
input taxed supplies for goods and services tax purposes. If a supply is
taxable, the supplier has the primary obligation to account for goods and
services tax in respect of that supply and must rely on a contractual provision
to recoup that goods and services tax from the issuer trustee. It is not
possible at this stage to identify which services supplied to the issuer trustee
will be taxable supplies. However, under the supplementary terms notice, certain
fees paid by the issuer trustee, namely the manager's fee, the issuer trustee's
fee, the security trustee's fee and the servicer's fee, will only be able to be
increased by reference to the supplier's goods and services tax liability, if
any, if:
o the issuer trustee, the manager and the recipient of the relevant fee
agree, which agreement shall not be unreasonably withheld; and
o 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 goods and services tax legislation
or otherwise may be increased by reference to the relevant supplier's goods and
services tax 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
decrease in the funds available to the trust to pay you.
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The goods and services tax may increase the cost of repairing or replacing
damaged properties offered as security for housing loans. However, it is a
condition of St.George Bank's loan contract and mortgage documentation that the
borrower must maintain full replacement value property insurance at all times
during the loan term.
The goods and services tax legislation, in certain circumstances, treats
the issuer trustee as making a taxable supply if it enforces security by selling
the mortgaged property and applying the proceeds of sale to satisfy the housing
loan. The issuer trustee will have to account for goods and services tax 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
general position is that a sale of residential property is an input taxed supply
for goods and services tax purposes and so the enforced sale of property which
secures the housing loans will generally not be treated as a taxable supply
under these provisions. As an exception, the issuer trustee may still have to
account for goods and services tax out of the proceeds of sale recovered when a
housing loan is enforced where the borrower is an enterprise which is registered
for goods and services tax purposes, uses the mortgaged property as an asset of
its enterprise and any of the following are relevant:
o the property is no longer being used as a residence; or
o the property is used as commercial residential premises such as a
hostel or boarding house; or
o the borrower is the first vendor of the property - the borrower built
the property; or
o the mortgaged property has not been used predominantly as a residence.
Because the issuer trustee is an insured party under the mortgage insurance
policies, it may have to account for goods and services tax in respect of any
claim payment received. However, under the current draft of the goods and
services tax legislation, where the claim payment is made in respect of an
insurance policy on which the insured was not entitled to a goods and services
tax credit on the premium payable, the insured does not have to account for
goods and services tax in respect of the claim payment.
Any reduction as a result of goods and services tax in the amount recovered
by the issuer trustee when enforcing the housing loans will decrease the funds
available to the trust to pay you to the extent not covered by the mortgage
insurance policies. The extent to which the issuer trustee is able to recover an
amount on account of the goods and services tax, if any, payable on the proceeds
of sale in the circumstances described in this section, will depend on the terms
of the related mortgage insurance policy.
Other Taxes
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, notes executed outside of Australia will not be subject
to Australian stamp duty.
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Enforcement of Foreign Judgments in Australia
Crusade Management Limited 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 Crusade Management Limited in respect of 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 Crusade Management Limited 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:
o the proceedings in New York State or United States Federal Court, as
applicable, involved a denial of the principles of natural justice;
o the judgment is contrary to the public policy of the relevant
Australian jurisdiction;
o the judgment was obtained by fraud or duress or was based on a clear
mistake of fact;
o the judgment is a penal or revenue judgment; or
o 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. Crusade Management Limited 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 proceeding
arising out of this offering. Crusade Management Limited has appointed CT
Corporation System, 1633 Broadway, New York, New York 10019, as its agent upon
whom process may be served in any such action.
All of the directors and executive officers of Crusade Management Limited,
and certain experts named in this prospectus, 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 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. Crusade Management
Limited has been advised by its Australian counsel Allen Allen & Hemsley, that,
based on the restrictions discussed in this section, 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, which may change in
the future, payments by an Australian resident to, or on behalf of the following
payees may only be made with Reserve Bank of Australia approval:
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o the Government of Iraq or its agencies or nationals;
o the authorities of the Federal Republic of Yugoslavia (Serbia and
Montenegro); or
o the Government of Libya or any public authority or controlled entity
of the Government of Libya.
ERISA Considerations
Subject to the considerations discussed in this section, the notes are
eligible for purchase by employee benefit plans.
Section 406 of the Employee Retirement Income Security Act and Section 4975
of the Code prohibit a pension, profit-sharing or other employee benefit plan,
as well as individual retirement accounts and certain types of Keogh Plans from
engaging in certain transactions with persons that are "parties in interest"
under ERISA or "disqualified persons" under the Code with respect to these
Benefit Plans. A violation of these "prohibited transaction" rules may result in
an excise tax or other penalties and liabilities under ERISA and the Code for
these 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.
Some transactions involving the purchase, holding or transfer of the notes
might be deemed to constitute prohibited transactions under ERISA and the Code
if assets of the trust were deemed to be assets of a Benefit Plan. Under a
regulation issued by the United States Department of Labor, 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 none of the exceptions contained in the regulation is applicable. An
equity interest is defined under the 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 notes should be treated as debt without substantial equity features for
purposes of the regulation and that the notes do not constitute equity interests
in the trust for purposes of the regulation. The debt characterization of the
notes could change after their initial issuance if the trust incurs losses.
However, without regard to whether the notes are treated as an equity
interest for these purposes, the acquisition or holding of the 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 manager, the
note trustee, the seller or the security trustee is or becomes a party in
interest or a disqualified person with respect to these Benefit Plans. In such
case, certain exemptions from the prohibited transaction rules could be
applicable depending on the type and circumstances of the plan fiduciary making
the decision to acquire a note. Included among these exemptions are:
o Prohibited Transaction Class Exemption 96-23, regarding transactions
effected by "in-house asset managers";
o Prohibited Transaction Class Exemption 90-1, regarding investments by
insurance company pooled separate accounts;
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o Prohibited Transaction Class Exemption 95-60, regarding transactions
effected by "insurance company general accounts";
o Prohibited Transaction Class Exemption 91-38, regarding investments by
bank collective investment funds; and
o Prohibited Transaction Class Exemption 84-14, regarding transactions
effected by "qualified professional asset managers."
By your acquisition of a note, you shall be deemed to represent and warrant
that your purchase and holding of the note will not result in a non-exempt
prohibited transaction under ERISA or the Code.
Employee benefit plans that are governmental plans, as defined in Section
3(32) of ERISA, and certain church plans, as defined in Section 3(33) of ERISA,
are not subject to ERISA requirements.
If you are a plan fiduciary considering the purchase of any of the notes,
you should consult your tax and 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.
Legal Investment Considerations
The Class A notes will not constitute "mortgage related securities" for
purposes of the Secondary Mortgage Market Enhancement Act of 1984, because the
originator of the housing loans was not subject to United States state or
federal regulatory authority. Accordingly, some U.S. institutions with legal
authority to invest in comparably rated securities based on such housing loans
may not be legally authorized to invest in the Class A notes. No representation
is made as to whether the 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 any regulatory authorities. You are urged to consult with your counsel
concerning the status of the Class A notes as legal investments for you.
Available Information
Crusade Management Limited, as manager, has filed with the SEC a
registration statement under the Securities Act with respect to the Class A
notes offered pursuant to this prospectus. For further information, reference
should be 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 SEC at 450 Fifth Street, N.W.,
Washington, D.C. 20549; and at the SEC'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, including any amendments or exhibits, may be obtained from the Public
Reference Section of the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549,
at prescribed rates. The SEC 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 SEC at the
address "http://www.sec.gov."
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Ratings of the Notes
The issuance of the Class A-1, Class A-2 and Class A-3 notes will be
conditioned on obtaining a rating of "AAA" by Standard & Poor's, "Aaa" by
Moody's and "AAA" by Fitch IBCA. The issuance of the Class B notes will be
conditioned on obtaining a rating of "AAA" by Standard & Poor's, "Aa1" by
Moody's and "AAA" by Fitch IBCA. You should independently evaluate the security
ratings of each class of notes from similar ratings on other types of
securities. A security rating is not a recommendation to buy, sell or hold
securities. A rating does not address the market price or suitability of the
notes for you. A rating may be subject to revision or withdrawal at any time by
the rating agencies. 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 of the notes. 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 interest collections after payment of interest on the
notes and the trust's expenses, the mortgage insurance policies, the
availability of the Liquidity Facility, the creditworthiness of the swap
providers and the mortgage insurer and the foreign currency rating of Australia.
The Commonwealth of Australia's current local currency long term debt rating is
"AAA" by Standard & Poor's, "Aaa" by Moody's and "AAA" by Fitch IBCA. 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. None of the rating agencies have been involved in the preparation
of this prospectus.
Plan of Distribution
Underwriting
Under the terms and subject to the conditions contained in the underwriting
agreement among St.George Bank, the issuer trustee and the manager, the issuer
trustee has agreed to sell to the underwriters, for whom Credit Suisse First
Boston Corporation is acting as representative, the following respective
principal amounts of the Class A notes:
<TABLE>
<CAPTION>
Principal Principal Principal
Amount of Amount of Amount of
Class A-1 Class A-2 Class A-3
Notes Notes Notes
Underwriter (US$) (US$) (US$)
----------- ----------- ----------- -----------
<S> <C> <C> <C>
Credit Suisse First Boston Corporation .... $ $ $
Deutsche Bank Securities Inc............... $ $ $
J.P. Morgan Securities Inc................. $ $ $
----------- ----------- -----------
Total...................................... $ $ $
----------- ----------- -----------
</TABLE>
The underwriting agreement provides that the underwriters are obligated to
purchase all of the Class A notes if any are purchased.
The underwriters propose to offer the Class A notes initially at the public
offering prices on the cover page of this prospectus and to selling group
members at
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the price less a concession not in excess of the respective amounts set forth in
the following table, expressed as a percentage of the relative principal
balance. The underwriters and selling group members may reallow a discount not
in excess of the respective amounts set forth in the following table to other
broker/dealers. After the initial public offering, the public offering price and
concessions and discounts to broker/dealers may be changed by the representative
of the underwriters.
Selling Reallowance
Class Concessions Discount
- ----- ----------- ----------
A-1............... % %
A-2............... % %
A-3............... % %
---------- ---------
St.George Bank estimates that its out-of-pocket expenses for this offering
will be approximately $ .
Credit Suisse First Boston Corporation has informed St.George Bank and the
manager that the underwriters do not expect discretionary sales by them to
exceed 5% of the principal balance of the Class A notes.
St.George Bank and the manager have agreed to indemnify the underwriters
against civil liabilities under the Securities Act, or contribute to payments
which the underwriters may be required to make in that respect.
The representative, on behalf of the underwriters, may engage in
over-allotment, stabilizing transactions, syndicate covering transactions and
penalty bids in accordance with Regulation M under the Exchange Act.
o Over-allotment involves syndicate sales in excess of the offering
size, which creates a syndicate short position;
o Stabilizing transactions permit bids to purchase the underlying
security so long as the stabilizing bids do not exceed a specified
maximum;
o Syndicate covering transactions involve purchases of the Class A notes
in the open market after the distribution has been completed in order
to cover syndicate short positions;
o Penalty bids permit the underwriters to reclaim a selling concession
from a syndicate member when the Class A notes originally sold by a
syndicate member are purchased in a syndicate covering transaction to
cover syndicate short positions.
Stabilizing transactions, syndicate covering transactions and penalty bids
may cause the price of the Class A notes to be higher than it would otherwise be
in the absence of these transactions. These transactions, if commenced, may be
discontinued at any time.
In the ordinary course of its business, some of the underwriters and some
of their affiliates have in the past and may in the future engage in commercial
and investment banking activities with St.George Bank and its affiliates. In
addition, one
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of the underwriters, Deutsche Bank Securities Inc., is affiliated with the note
trustee, Bankers Trust Company, and the currency swap provider, Bankers Trust
Corporation, New York.
Offering Restrictions
United Kingdom
Each underwriter has severally represented and agreed with the issuer
trustee that:
o 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, 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 business 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;
o 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
o 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
issue 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, 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:
o 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;
o 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
o 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 any of the
following:
o actually known by the underwriters, without an obligation on the
underwriters to make any inquiry, to be a resident of Australia for
the purposes of section 128F of the Tax Act; or
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o an associate of St.George Bank within the meaning of that section,
other than in the capacity of a dealer or underwriter in relation to a
placement of the notes, as identified on a list provided by St.George
Bank.
Listing and General Information
Listing
An application has been made to the London Stock Exchange Limited to admit
the Class A-1, Class A-2 and Class A-3 notes to the Official List. This
prospectus, including Appendix I, constitutes listing particulars with regard to
the issuer trustee and the Class A-1, Class A-2 and Class A-3 notes, in
accordance with the listing rules made under Part IV of the Financial Services
Act. Copies of the prospectus have been delivered to the Registrar of Companies
in England and Wales for registration in accordance with Section 149 of the
Financial Services Act.
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 September, 1999, subject to the issuance of
the Class A notes. The Class A notes will be issued in the form of one or more
book-entry notes.
Authorization
The issuer trustee has obtained all necessary consents, approvals and
authorizations in connection with the issue and performance of the Class A
notes. The issue of the Class A notes has been authorized by the resolutions of
the board of directors of AXA Trustees Limited passed on September 13, 1999.
Litigation
The issuer trustee is not, and has not been, involved in any litigation
or arbitration proceedings that may have, or have had during the twelve months
preceding the date of this prospectus, a significant effect on its financial
position nor, so far as it 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 the following CUSIP numbers, common codes and ISINs for each
class of notes:
Common
CUSIP Code ISIN
-------- -------- ------
Class A-1...............
Class A-2...............
Class A-3...............
Transaction Documents Available for Inspection
You may inspect copies of the following transaction documents during normal
business hours on any weekday, excluding Saturdays, Sundays and public holidays,
at the offices of Midland Bank plc, HSBC Issuer Services, Mariner House, Pepys
Street, London EC3N 4DA United Kingdom, during the period of fourteen days from
the date of this prospectus:
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o the Constitution of the issuer trustee;
o the Master Trust Deed among St.George Bank, the issuer trustee and the
manager, dated March 14, 1998;
o the Servicing Agreement among the issuer trustee, the manager and the
servicer, dated March 19, 1998;
o the Custodian Agreement among the issuer trustee, the manager and the
custodian, dated March 19, 1998;
o the Deed of Indemnity between St.George Bank, the issuer trustee, the
manager and the custodian, dated March 19, 1998;
o the following, which, prior to the closing date, will be in draft
form:
o the Supplementary Terms Notice among the issuer trustee, the
manager, the security trustee, the note trustee, the seller, the
servicer and the custodian, dated on or about September __, 1999;
o the Security Trust Deed among the issuer trustee, the manager,
the security trustee and the note trustee, dated on or about
September __, 1999;
o the Note Trust Deed among the issuer trustee, the manager and the
note trustee, dated on or about September __, 1999;
o the Agency Agreement among the issuer trustee, the manager the
note trustee, the principal paying agent and the calculation
agent, dated on or about September __, 1999;
o the Redraw Facility Agreement among the issuer trustee, the
manager and the redraw facility provider, dated on or about
September __, 1999;
o the basis swap among the issuer trustee, the manager, the basis
swap provider and the standby basis swap provider, together with
the related schedule and confirmation, dated on or about
September __, 1999;
o the fixed-floating rate swap among the issuer trustee, the
manager, the fixed-floating rate swap provider and the standby
fixed-floating rate swap provider, together with the related
schedule and confirmations dated on or about September __, 1999;
o the currency swap between the issuer trustee and the currency
swap provider, together with the related schedule and
confirmations, dated on or about September __, 1999;
o the mortgage insurance policy among St.George Bank, the issuer
trustee and Housing Loans Insurance Corporation Pty Limited,
dated on or about September __, 1999;
o the powers of attorney from St.George Bank, dated on or about
September __, 1999;
o the Seller Loan Agreement among the issuer trustee, the manager
and the seller, dated on or about September __, 1999;
o the Underwriting Agreement among St.George Bank, the manager, the
issuer trustee and the underwriters, dated on or about
September __, 1999.
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Consents to Opinions
Mayer, Brown & Platt has given and not withdrawn its written consent to the
inclusion in this prospectus of its opinion in the form and context in which it
is included on pages and and has authorized the content of its opinion for the
purposes of section 152(1)(e) of the Financial Services Act.
Allen Allen & Hemsley has given and not withdrawn its written consent to
the inclusion in the prospectus of its opinion in the form and context in which
it is included on pages ___, ___, and ___ and has authorized the content of its
opinion for the purposes of section 152(1)(e) of the Financial Services Act.
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:
o the Class A notes will initially be issued in the form of
book-entry notes and will be held by Cede & Co., as nominee of
DTC;
o in connection with the issue, DTC will confer rights in the Class
A notes to the noteholders and will record the existence of those
rights; and
o as a result of the issue of the Class A notes in this manner,
these rights will be created.
Legal Matters
Mayer, Brown & Platt, New York, New York, will pass upon some legal matters
with respect to the Class A notes, including the material U.S. federal income
tax matters, for St.George Bank and Crusade Management Limited. Allen Allen &
Hemsley, Sydney, Australia, will pass upon some legal matters, including the
material Australian tax matters, with respect to the Class A notes for St.George
Bank and Crusade Management Limited. Brown & Wood LLP will pass upon some legal
matters with respect to the Class A notes for the underwriters.
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Glossary
A$ Class A Interest Amount........ means, for any quarterly payment date, the
aggregate sum of the amount for each class of
Class A notes in Australian dollars, which
is calculated for each class of Class A
notes:
o on a daily basis at the applicable rate
set out in the currency swap relating to
that class of Class A notes, which
shall be AUD-BBR-BBSW, as defined in the
Definitions of the International Swaps
and Derivatives Association, Inc., as of
the first day of the Interest Period
ending on, but excluding, that payment
date with a designated maturity of 90
days, or, in the case of the first
Interest Period, 60 days, plus a margin;
o on the A$ Equivalent of the aggregate of
the outstanding principal balances of
that class of Class A notes as of the
first day of the Interest Period ending
on, but excluding, that payment date;
and
o on the basis of the actual number of
days in that Interest Period and a year
of 365 days.
A$ Equivalent..................... means, in relation to an amount denominated
or to be denominated in US$, the amount
converted to and denominated in A$ at the
rate of exchange set forth in the currency
swap for the exchange of United States
dollars for Australian dollars.
Accrued Interest Adjustment....... means the amount equal to any interest and
fees accrued on the housing loans up to, but
excluding, the closing date and which were
unpaid as of the close of business on the
closing date.
Approved Bank..................... means:
o a bank, including St.George Bank, which
has a short-term rating of at least F1+
from Fitch IBCA, P-1 from Moody's, and
A-1+ from Standard & Poor's; or
o a bank, including St.George Bank, which
has a short-term rating of at least F1+
from Fitch IBCA, P-1 from Moody's and
A-1 from Standard & Poor's, provided
that the total value of deposits held by
the bank in relation to a trust does not
exceed twenty percent of the sum of the
aggregate of the Stated Amounts of the
notes.
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Authorized Investments...............consist of the following:
o cash on hand or at an Approved Bank;
o bonds, debentures, stock or treasury
bills of any government of an Australian
jurisdiction;
o debentures or stock of any public
statutory body constituted under the law
of any Australian jurisdiction where the
repayment of the principal is secured
and the interest payable on the security
is guaranteed by the government of an
Australian jurisdiction;
o notes or other securities of any
government of an Australian
jurisdiction;
o deposits with, or certificates of
deposit, whether negotiable, convertible
or otherwise, of, an Approved Bank;
o 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 an Approved
Bank;
o securities which are "mortgage-backed
securities" within the meaning of both
the Duties Act, 1997 of New South Wales
and the Truster Act, 1958 of Victoria;
o any other assets of a class of assets
that are both:
o prescribed for the purposes of
sub-paragraph (d) of the definition
of a "prescribed property" in the
Duties Act, 1997 of New South Wales
or are otherwise included within
the definition of "pool of
mortgages" in that act, and
o 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.
As used in this definition, expressions will
be construed and, if necessary, read down so
that the notes in relation to the trust
constitute "mortgage-backed securities" for
the purposes of both the Duties Act, 1997 of
New South Wales and the Stamps Act, 1958 of
Victoria.
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Each of the investments in the first, third,
fourth, fifth, sixth, seventh and eighth
bullet points outlined above must have a long
term rating of AAA or a short term rating of
A-1+, as the case may be, from Standard &
Poor's, a long term rating of Aaa or a short
term rating of P-1, as the case may be, from
Moody's and a long term rating of AAA or a
short term rating of F1+, as the case may be,
from Fitch IBCA. Each of the investments must
mature no later than the next quarterly
payment date following its acquisition. Each
investment must be denominated in Australian
dollars. Each investment must be of a type
which does not adversely affect the risk
weighting expected to be attributed to the
notes by the Bank of England and must be held
by, or in the name of, the issuer trustee or
its nominee.
Available Income.................. see page 52.
Benefit Plan...................... means a pension, profit-sharing or other
employee benefit plan, as well as individual
retirement accounts and certain types of
Keogh Plans.
Business Day...................... in relation to the note trust deed, the
agency agreement, any Class A note and any
US$ payments under the currency swap, means:
o any day, other than a Saturday, Sunday
or public holiday, on which banks are
open for business in London, New York
City and Sydney; and
in relation to any other transaction
documents and A$ payments under the currency
swap, means:
o any day, other than a Saturday, Sunday
or public holiday, on which banks are
open for business in Sydney.
Carryover Class A Charge Offs..... means, on any quarterly 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 quarterly determination
date which have not been reinstated as
described in this prospectus.
Carryover Class B Charge Offs..... means, on any quarterly 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 quarterly determination
date which have not been reinstated as
described in this prospectus.
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Carryover Redraw Charge Offs...... means, on any quarterly determination date in
relation to the redraw facility, the
aggregate of Redraw Charge Offs prior to that
quarterly determination date which have not
been reinstated as described in this
prospectus.
Class A Charge Off................ means a Principal Charge Off allocated
against the Class A notes.
Class B Charge Off................ means a Principal Charge Off allocated
against the Class B notes.
Consumer Credit Legislation....... means any legislation relating to consumer
credit, including the Credit Act of any
Australian jurisdiction, the Consumer Credit
Code (NSW) 1996 and any other equivalent
legislation of any Australian jurisdiction.
Default........................... means a failure by the issuer trustee to
comply with:
o an obligation which is expressly imposed
on it by the terms of a transaction
document; or
o a written direction given by the manager
in accordance with a transaction
document and in terms which are
consistent with the requirements of the
transaction documents in circumstances
where the transaction documents require
or contemplate that the issuer trustee
will comply with that direction;
in each case within any period of time
specified in, or contemplated by, the
relevant transaction document for such
compliance. However, it will not be a Default
if the issuer trustee does not comply with an
obligation or direction where the note
trustee or the security trustee directs the
issuer trustee not to comply with that
obligation or direction.
Excess Available Income........... see page 58.
Extraordinary Resolution.......... means 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 a written resolution signed by all
of the Voting Mortgagees.
Finance Charge Collections........ see page 52.
Finance Charge Loss............... means, with respect to any housing loan,
Liquidation Losses which are attributable to
interest, fees and expenses in relation to
the housing loan.
Gross Principal Collections....... see page 58.
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Insolvency Event.................. means with respect to the issuer trustee, in
its personal capacity and as trustee of the
trust, the manager, the servicer, St.George
Bank or the custodian, the happening of any
of the following events:
o except for the purpose of a solvent
reconstruction or amalgamation:
o 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:
o the winding up, dissolution or
administration of the relevant
corporation; or
o 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;
o and is not dismissed, ceased
or withdrawn within 15
business days;
o 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;
o 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;
o 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
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o anything analogous to an event referred
to in the four preceding paragraphs or
having a substantially similar effect
occurs with respect to the relevant
corporation.
Interest Period................... in relation to a quarterly payment date,
means the period from and including the
preceding quarterly payment date to but
excluding the applicable quarterly payment
date. However, the first and last interest
periods are as follows:
o first: the period from and including the
closing date to but excluding the first
quarterly payment date;
o last: if the notes are fully retired
upon redemption in full, the period from
and including the quarterly payment date
preceding the date on which the notes
are redeemed in full to but excluding
the day on which the notes are redeemed
in full. If the notes are not fully
retired upon redemption in full and
payment of principal is improperly
refused, the last interest period will
end on the date on which the note
trustee or principal paying agent
receives the moneys in
respect of the notes and notifies the
holders of that receipt or the date on
which the outstanding principal balance
of the note, less charge offs, has been
reduced to zero; provided that interest
on that note shall thereafter begin to
accrue from and including any date on
which the outstanding principal balance
of that note, less charge offs, becomes
greater than zero.
Issuer Trustee's Default.......... means:
o an Insolvency Event has occurred and is
continuing in relation to the issuer
trustee in its personal capacity;
o any action is taken in relation to the
issuer trustee in its personal capacity
which causes the rating of any notes to
be downgraded or withdrawn;
o the issuer trustee, or any employee or
officer of the issuer trustee, breaches
any obligation or duty imposed on the
issuer trustee under any transaction
document in relation to the trust where
the manager reasonably believes it may
have a Material Adverse Effect and the
issuer trustee fails or neglects after
30 days' notice from the manager to
remedy that breach;
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<PAGE>
o the issuer trustee merges or
consolidates with another entity without
ensuring that the resulting merged or
consolidated entity assumes the issuer
trustee's obligations under the
transaction documents; or
o there is a change in effective control
of the issuer trustee from that existing
on the date of the master trust deed to
a competitor unless approved by the
manager. A competitor is a bank or
financial institution that carries on
certain businesses that are the same as,
or substantially similar to or in
competition with, a business conducted
by the seller.
LIBOR............................. means:
o the rate applicable to any Interest
Period for three-month or, in the case
of the first Interest Period, two-month,
deposits in U.S. dollars which appears
on the Telerate Page 3750 as of 11:00
a.m., London time, on the determination
date; or
o 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 calculation
agent had specified "USD-LIBOR-Reference
Banks" as the applicable Floating Rate
Option under the Definitions of the
International Swaps and Derivatives
Association, Inc.
Liquidation Losses............... means, with respect to any housing loan for a
collection period, the amount, if any, by
which the Unpaid Balance of a liquidated
housing loan, together with the enforcement
expenses relating to the housing loan,
exceeds all amounts recovered from the
enforcement of the housing loan and the
related mortgage, excluding proceeds of a
mortgage insurance policy.
Liquidity Shortfall............... means, for any determination date, the excess
of the Payment Shortfall over the amount
available for a principal draw.
Manager's Default................. means:
o the 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;
o an Insolvency Event has occurred and is
continuing in relation to the manager;
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<PAGE>
o the manager breaches any obligation or
duty imposed on the manager under the
master trust deed, any other transaction
document or any other deed, agreement or
arrangement entered into by the manager
under the master trust deed in relation
to the trust, the issuer trustee
reasonably believes that such breach has
a Material Adverse Effect and the breach
is not remedied within 30 days' notice
being given by the issuer trustee to the
manager, except in the case of reliance
by the manager on the information
provided by, or action taken by, the
servicer, or if the manager has not
received information from the servicer
which the manager requires to comply
with the obligation or duty; or
o a representation, warranty or statement
by or on behalf of the 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 a Material
Adverse Effect.
Material Adverse Effect........... means an event which will materially and
adversely affect the amount or the timing of
a payment to a noteholder.
Mortgage Shortfall................ see page 63.
Mortgagees........................ see page 86.
Noteholder Mortgagees............. means the Class B noteholders and the note
trustee, on behalf of the Class A
noteholders.
One Month Bank Bill Rate.......... on any date means the rate:
o calculated by taking the simple average
of the rates quoted on the Reuters
Screen BBSW Page at approximately 10:00
a.m., Sydney time, on each of that date
and the preceding two business days for
each BBSW 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 30 days;
o eliminating the highest and lowest mean
rates;
o taking the average of the remaining mean
rates; and
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o if necessary, rounding the resultant
figure upwards to four decimal places.
If on any day fewer than five BBSW Reference
Banks have quoted rates on the Reuters Screen
BBSW Page, the rate for that day shall be
calculated as above by taking the rates
otherwise quoted by five of the BBSW
Reference Banks on application by the parties
for such a bill of the same tenor. If in
respect of any day the rate for that day
cannot be determined in accordance with the
foregoing procedures, then the rate for that
day shall mean such rate as is agreed between
the manager and the issuer trustee with
regard to comparable indices then available,
except that, on the first reset date, as
defined in the redraw facility, of any draw
under the redraw facility and the two
business days preceding that reset date the
One Month Bank Bill Rate shall be an
interpolated rate calculated with reference
to the tenor of the relevant period from that
reset date to, but not including, the next
reset date.
Payment Shortfall................. means, for any determination date, the excess
of Total Payments over Available Income.
Principal Charge Off.............. means, with respect to a collection period,
the aggregate amount of Mortgage Shortfalls
for that collection period.
Principal Collections............. see page 60.
Principal Loss.................... for a collection period means, with respect
to any housing loan, Liquidation Losses which
are attributable to principal in relation to
the housing loan.
Redraw Charge Off................. means a Principal Charge Off allocated
against the Redraw Principal Outstanding.
Redraw 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 Retention Amount........... means, for any quarterly collection period,
the amount determined by the manager on the
preceding quarterly determination date, as
described in "Description of the Class A
Notes - Redraws", on page 62.
Redraw Shortfall.................. means the amount by which Gross Principal
Collections and the available Redraw
Retention Amount are insufficient to fund
redraws.
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Secured Moneys.................... means all money which the issuer trustee is
or at any time may become actually or
contingently liable to pay to or for the
account of any Mortgagee for any reason
whatever under or in connection with a
transaction document.
Servicer Transfer Event........... see page 99.
Stated Amount..................... means for any note on a quarterly payment
date:
o the initial outstanding principal
balance of the note; less;
o the aggregate of all principal payments
previously made on the note; less
o any carryover charge offs on the note;
less
o principal to be paid on the note on the
next quarterly payment date; less
o Principal Charge Offs to be applied
against the note on the next quarterly
payment date; plus
o any Excess Available Income to be
applied to reinstating any carryover
charge offs on the note.
Termination Date.................. with respect to the trust shall be the
earlier to occur of:
o the date which is 80 years after the
date of creation of the trust;
o the termination of the trust under
statute or general law;
o full and final enforcement by the
security trustee of its rights under the
security trust deed after the occurrence
of an event of default under the
security trust deed; or
o at any time after all creditors of the
trust have been repaid in full, the
business day immediately following that
date.
Three Month Bank Bill Rate........ on any date means the rate:
o calculated by taking the simple average
of the rates quoted on the Reuters
Screen BBSW Page at approximately 10:00
a.m., Sydney time, on each of that date
and the preceding two business days for
each BBSW 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
tenor of 90 days
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<PAGE>
or, where the relevant date is the
first day of the first Interest Period,
60 days;
o eliminating the highest and lowest mean
rates;
o taking the average of the remaining mean
rates; and
o if necessary, rounding the resultant
figure upwards to four decimal places.
If on any of the days fewer than five BBSW
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
BBSW Reference Banks on application by the
parties for such a bill of the same tenor. If
in respect of any day the rate for that date
cannot be determined in accordance with the
foregoing procedures, then the rate for that
day shall mean such rate as is agreed between
the manager and St.George Bank having regard
to comparable indices then available.
Title Perfection Event ........... means any of the following:
o the seller ceases to have a long term
credit rating of at least "BBB" from
Fitch IBCA, "Baa2" from Moody's, or
"BBB" from Standard & Poor's;
o an Insolvency Event occurs with respect
to the seller;
o St.George Bank fails to transfer
collections to the issuer trustee within
the time required under the servicing
agreement;
o if the seller is also the servicer, a
Servicer Transfer Event occurs;
o if the seller is also the redraw
facility provider, a breach of its
obligations, undertakings or
representations under the redraw
facility if such breach will have a
Material Adverse Effect; or
o the seller breaches any representation,
warranty, covenant or undertaking in any
transaction document which is not
remedied within thirty days of the
earlier of the seller becoming aware of
or receiving notice of the breach.
Total Available Funds............. means the sum of Available Income, principal
draws and liquidity draws.
Total Payments.................... means all amounts payable by the issuer
trustee on a payment date, as described on
page 54.
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Trust Expenses.................... see page 56.
Unpaid Balance.................... means the unpaid principal amount of the
housing loan plus the unpaid amount of all
finance charges, interest payments and other
amounts accrued on or payable under or in
connection with the housing loan or the
related mortgage.
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 agreed
to by the calculation agent and the currency
swap provider - at approximately 11:00 a.m.,
London time, on the quarterly determination
date to prime banks in the London interbank
market for a period of three months or, in
the case of the first Interest Period, two
months, commencing on the first day of the
Interest Period and in a Representative
Amount, as defined in the Definitions of the
International Swaps and Derivatives
Association, Inc. The calculation agent 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 calculation agent
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and the currency swap provider, at
approximately 11:00 a.m., New York City time,
on that quarterly determination date for
loans in U.S. dollars to leading European
banks for a period of three months or, in the
case of the first Interest Period, two
months, commencing on the first day of the
Interest Period and in a Representative
Amount. If no such rates are available in New
York City, then the rate for such Interest
Period shall be the most recently determined
rate in accordance with this paragraph.
Voting Mortgagees................. see page 89.
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APPENDIX I
Terms and Conditions of the Class A Notes
This Appendix I constitutes an integral part of this prospectus.
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 in definitive form. 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.
Paragraphs in italics are included by way of explanation only, and do not
constitute part of the terms and conditions of the Class A Notes.
The issue of US$994,000,000 Class A Mortgage Backed Pass Through Floating
Rate Notes (comprising US$300,000,000 Class A-1 Notes due 2030 (the "Class A-1
Notes"), US$569,000,000 Class A-2 Notes due 2030 (the "Class A-2 Notes") and
US$125,000,000 Class A-3 Notes due 2030 (the "Class A-3 Notes") (each a "Class"
and together, the "Class A Notes") and A$[*] Class B Mortgage Backed Pass
Through Floating Rate Notes due 2030 (the "Class B Notes" and, together with the
Class A Notes, the "Notes")) by AXA Trustees Limited, in its capacity as trustee
of the Crusade Global Trust No. 1 of 1999 (the "Trust") (in such capacity, the
"Issuer"), was authorised by a resolution of the Board of Directors of the
Issuer passed on 13 September 1999. These Notes are (a) issued subject to a
Master Trust Deed (the "Master Trust Deed") dated 14 March 1998 between the
Issuer, Crusade Management Limited (in such capacity, the "Manager" and, in the
capacity of residual beneficiary under the Trust, the "Residual Beneficiary")
and St.George Bank Limited ("St.George"), a Supplementary Terms Notice (the
"Supplementary Terms Notice") dated [*] September 1999 between (among others)
the Issuer, Bankers Trust Company (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 Manager, and these terms and conditions (the "Conditions"); (b)
constituted by a note trust deed dated the Closing Date (as defined in Condition
4(a) below) (the "Note Trust Deed") between the Issuer, the Manager and the Note
Trustee; and (c) secured by a Security Trust Deed (the "Security Trust Deed")
dated [*] September 1999 between the Issuer, the Manager, the Note Trustee and
National Mutual Life Nominees Limited (ACN 004 387 133) (the security trustee
for the time being referred to as the "Security Trustee").
The statements set out below include summaries of, and are subject to the
detailed provisions of, the Master Trust Deed, the Supplementary Terms 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 the Closing Date between the
Issuer, the Manager, the Note Trustee and Midland Bank plc as Principal Paying
Agent (the "Principal Paying Agent", which expression includes its successors as
Principal Paying Agent under the Agency Agreement) and Midland Bank plc, as
calculation agent (the "Calculation Agent", which expression includes its
successors as Calculation Agent under the Agency Agreement), and under which
further paying agents may be
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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 Calculation Agent
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 Supplementary Terms Notice, the Security Trust Deed, the Note
Trust Deed, the Agency Agreement, the Servicing Agreement dated 19 March 1998
and made between the Issuer, the Manager and St.George as servicer (together
with any substitute or successor, the "Servicer"), the Custodian Agreement (the
"Custodian Agreement") dated 19 March 1998 and made between the Issuer, the
Manager and St.George Custodial Pty Ltd as custodian (together with any
substitute or successor, the "Custodian") and the Indemnity (the "Indemnity")
dated 19 March 1998 between St.George as indemnifier (in such capacity, the
"Indemnifier"), the Manager, the Custodian and the Issuer (together with the
agreements with respect to the Basis Swap, the Fixed-Floating Rate Swap and the
Currency Swap (as each such term is defined below), those documents the
"Relevant Documents" and certain other transaction documents defined as such in
the Supplementary Terms 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 Midland Bank plc, HSBC
Issuer Services, Mariner House, Pepys Street, London EC3N 4DA United Kingdom.
In connection with the issue of the Class A Notes, the Issuer has entered
into an ISDA (defined below) master interest rate exchange agreement dated the
Closing Date with St.George (the "Basis Swap Provider") and Deutsche Bank AG,
Sydney Branch, as standby basis swap provider (the "Standby Basis Swap
Provider") together with a confirmation relating thereto dated the Closing Date
(the "Basis Swap"). The Issuer has also entered into an ISDA master interest
rate exchange agreement dated the Closing Date with St.George (the
"Fixed-Floating Rate Swap Provider") and Deutsche Bank AG, Sydney Branch, as
standby fixed-floating rate swap provider (the "Standby Fixed-Floating Rate Swap
Provider") together with two confirmations relating thereto dated the Closing
Date (the "Fixed-Floating Rate Swap"). The Issuer has also entered into an ISDA
master currency exchange agreement dated the Closing Date with Bankers Trust
Corporation, New York (the "Currency Swap Provider" and, together with the Basis
Swap Provider, the Standby Basis Swap Provider, the Fixed-Floating Rate Swap
Provider and the Standby Fixed-Floating Rate Swap Provider, the "Swap
Providers") together with three confirmations relating thereto dated the Closing
Date in respect of three distinct swap transactions relating to each of the
Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes (each a "Currency
Swap" and together the "Currency Swaps").
Class A Book-entry Notes will also bear the following legend: "This
book-entry note is a global note for the purposes of section 128F(10) of the
Income Tax Assessment Act 1936 of the Commonwealth of Australia".
Summary of Priorities
This section contains a summary of the effect of the main provisions of
Conditions 4 and 5 and should not be relied upon as a substitute for a detailed
reading of Conditions 4 and 5. In particular, any category of payment or
payments listed below at a certain level of priority may also have an internal
order of priorities. Capitalised
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terms in this section have the same meaning given in the Supplementary Terms
Notice (unless otherwise defined in these Conditions).
Total Available Funds are distributed on a monthly basis to pay the Accrued
Interest Adjustment, to make certain repayments to the Mortgage Insurer, to pay
interest on the Redraw Facility and to pay certain amounts with respect to
drawings made under liquidity facilities (including Liquidity Draws from the
Liquidity Account) available to the Issuer. On a quarterly basis, Total
Available Funds is distributed first, to pay the Accrued Interest Adjustment;
second, to make certain payments to the Mortgage Insurer; third to make payments
of recovered break costs to the Swap Provider under the Fixed-Floating Rate
Swap; fourth, to cover certain fees and expenses of the Trust; fifth, to pay
fees due under the Redraw Facility, the Basis Swap and the Fixed-Floating Rate
Swap; sixth, to pay such fees and expenses, and certain other amounts (including
interest on the Class A Notes), that are overdue; seventh, to pay interest under
the Redraw Facility and the Class A Notes, to pay certain amounts due under the
Basis Swap and the Fixed-Floating Rate Swap and to repay any outstanding
Liquidity Draws; and eighth, to pay interest due under the Class B Notes. After
these quarterly distributions, the remaining available income is used to cover
any current principal shortfalls on the Purchased Receivables, followed by
principal amounts overdue with respect to the Class A Notes and amounts overdue
with respect to the Redraw Facility. Any outstanding Principal Draws are then
repaid and then any principal overdue on the Class B Notes. Finally, any income
remaining after all prior distributions is distributed to the Beneficiary.
Available principal is distributed on a monthly basis, first, to make
certain payments to the Mortgage Insurer; second, to cover any shortfalls in
available income (by means of a Principal Draw); third, to provide for any
anticipated shortfalls in available income on the next Payment Date; and fourth,
to repay principal under the Redraw Facility. On a quarterly basis, available
principal is distributed first, to make certain payments to the Mortgage
Insurer; second, to make Principal Draws; third, to provide for any anticipated
shortfalls in available income on the next Payment Date; fourth, to pay certain
amounts in relation to Redraws; fifth, to provide for any anticipated Redraws
during the next Quarterly Collection Period; sixth, to pay principal under the
Class A Notes; and seventh, to pay principal under the Class B Notes.
In all circumstances, the Noteholders take priority to the Beneficiary.
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.
Each Class of 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.
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If the Issuer 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 and Midland Bank plc,
acting as note registrar (the "Note Registrar") may require to complete, execute
and deliver such Definitive Notes. In such circumstances, the Issuer 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 and the Class B
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 will rank pari passu
and rateably without any preference or priority among themselves.
The Class A Notes are issued subject to the Master Trust Deed and the
Supplementary Terms 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
both before and after enforcement of the security and in respect of principal
and interest (as set out in Conditions 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 to purchase an equitable interest in certain housing loans
(the "Loans") and certain related mortgages (the "Mortgages") from St.George as
an approved seller (the "Approved 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 (including
following enforcement of the Security Trust Deed) may be insufficient to pay all
amounts due to the Noteholders. Save in certain limited circumstances the other
assets of the Issuer will not be available for payment of any shortfall arising
and all claims in respect of such shortfall shall be extinguished (see further
Condition 15). None of the Servicer, the Manager, St.George, the Note Trustee,
the Security Trustee, the Swap Providers or the Note Managers (as defined in the
Supplementary Terms Notice) has any obligation to any Noteholder for payment of
any amount by the Issuer in respect of the Notes.
The Note Trust Deed contains provisions requiring the Note Trustee to have
regard to the interests of 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,
subject to the other provisions of the Security Trust Deed, to give priority to
the interests of the Class A Noteholders, if there is a conflict between the
interest of such Noteholders and any other Voting Mortgagee (as defined below).
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3. Covenants of the Issuer
So long as any of the Class A Notes remains outstanding, the Issuer has
made certain covenants for the benefit of the Class A Noteholders which are set
out in the Master Trust Deed.
These covenants include the following.
(a) The Issuer shall act continuously as trustee of the Trust until the
Trust is terminated as provided by the Master Trust Deed or the Issuer
has retired or been removed from office in the manner provided under
the Master Trust Deed.
(b) The Issuer shall:
(i) act honestly and in good faith and comply with all relevant
material laws 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, the Class B Noteholders,
the Beneficiary and other Creditors of the Trust in accordance
with its obligations under the relevant Transaction Documents;
(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 Manager keeps, accounting records which
correctly record and explain all amounts paid and received by the
Issuer;
(v) keep the Trust separate from each other trust which is
constituted under the Master Trust Deed and from its own assets
and account for assets and liabilities of the Trust separately
from those of other trusts constituted under the Master Trust
Deed and from its own assets and liabilities;
(vi) do everything and take all such actions which are necessary
(including obtaining all appropriate Authorisations which relate
to it as trustee of the Trust and taking all actions necessary to
assist the Manager to obtain all other appropriate
Authorisations) to ensure that it is able to exercise all its
powers and remedies and perform all its obligations under the
Master Trust Deed, the Transaction Documents and all other deeds,
agreements and other arrangements entered into by the Issuer
under the Master Trust Deed;
(vii) not, as Issuer, engage in any business or activity in respect of
the Trust except as contemplated or required by the Transaction
Documents;
(viii) except as contemplated or required by the Transaction
Documents, maintain an independent and arm's length relationship
with its related bodies corporate in relation to dealings
affecting the Trust;
(ix) except as contemplated or required by the Transaction Documents,
not, in respect of the Trust, guarantee or become obligated for
the debts of
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any other entity or hold out its credit as being available to
settle the obligations of others;
(x) comply with the rules and regulations of the London Stock
Exchange Limited (the "London Stock Exchange"); and
(xi) within 45 days of notice from the Manager to do so, remove any of
its agents or delegates that breaches any obligation imposed on
the Issuer under the Master Trust Deed or any other Transaction
Document where the Manager believes it will have a Material
Adverse Effect.
(c) Except as provided in any Transaction Document (and other than the
charge given to the Security Trustee), the Issuer shall not, nor shall
it permit any of its officers to, sell, mortgage, charge or otherwise
encumber or part with possession of any assets of the Trust (the
"Trust Assets").
(d) The Issuer shall duly observe and perform the covenants and
obligations of the Master Trust Deed and will be personally liable to
the Servicer, the Noteholders, the Beneficiary, the Note Managers or
any other Creditors only if it is guilty of negligence, fraud or
Default (as defined in Condition 15). The Issuer is not responsible
for the acts or omissions of its agents or delegates (including
persons referred to in clause 17.6 of the Master Trust Deed) selected
by the Issuer in good faith using reasonable care except where the
Issuer expressly instructs the agent or delegate to do or omit to do
the relevant act, if the Issuer is aware of the default and does not
take the action available to it under the Transaction Documents to
address the act or omission or where the Transaction Documents
expressly provide that the Issuer is so liable.
(e) The Issuer will open and operate certain bank accounts in accordance
with the Master Trust Deed and the Supplementary Terms Notice.
(f) Subject to the Master Trust Deed and any Transaction Document to which
it is a party, the Issuer shall act on all directions given to it by
the Manager in accordance with the terms of the Master Trust Deed.
(g) The Issuer 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 [*] September 1999 or such later date as may be agreed
between the Issuer and the Note 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 15th day of November in respect of the
period from (and including) the Closing Date and ending on (but excluding)
15 November 1999 (the "first Quarterly Payment Date") and thereafter on
each 15 February, 15 May, 15 August and 15 November (each such date a
"Quarterly Payment Date"). 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, unless it would thereby fall into
the next calendar month, in which case the due date shall be brought
forward to the immediately preceding Business Day. The
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final Quarterly Payment Date for a Class of Notes will be the earlier of
the Final Maturity Date for that Class of Notes and the Payment Date on
which the Notes are redeemed in full.
"Business Day" in this Condition 4 and in Conditions 5 and 9 below means
any day other than a Saturday, Sunday or public holiday on which banks are
open for business in London, New York City and Sydney.
The period beginning on (and including) the Closing Date and ending on (but
excluding) the first Quarterly Payment Date, and each successive period
beginning on (and including) a Quarterly Payment Date and ending on (but
excluding) the next Quarterly 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
in that Interest Period and a 360 day year.
Interest shall cease to accrue on any Class A Note for the period from (and
including):
(i) the date on which the Stated Amount (as defined in Condition 5(a)) of
that Class A Note is reduced to zero (provided that interest shall
thereafter begin to accrue from (and including) any date on which the
Stated Amount of the Class A Note becomes greater than zero); or
(ii) 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 Notes until the
later of:
(A) the date on which 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
Condition 12; and
(B) the Stated Amount of that Class A Note has been reduced to zero,
providing that interest shall thereafter begin to accrue from
(and including) any date on which the Stated Amount of that
Class A Note becomes greater than zero.
(b) Interest Rate The rate of interest applicable from time to time to a Class
(the "Interest Rate") will be determined by the Calculation Agent on the
basis of the following paragraphs.
On the second Business Day before the beginning of each Interest Period
(each an "Interest Determination Date"), the Calculation Agent will
determine the rate "USD-LIBOR-BBA" as the applicable Floating Rate Option
under the Definitions of the International Swaps and Derivatives
Association, Inc. ("ISDA") (the "ISDA Definitions") being the rate
applicable to any Interest Period for three-month (or, in the case of the
first Interest Period two-month) deposits in US dollars which appears on
the Telerate Page 3750 as of 11.00 am, 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
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Issuer and Calculation Agent 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 agreed to by the Calculation Agent and the Currency Swap
Provider) at approximately 11.00 am, London time, on the Interest
Determination Date to prime banks in the London interbank market for a
period of three months (or, in the case of the first Interest Period, two
months) commencing on the first day of the Interest Period and in a
Representative Amount (as defined in the ISDA Definitions). The Calculation
Agent 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 two major banks in New York City, selected by the Calculation
Agent and the Currency Swap Provider, at approximately 11.00 am, New York
City time, on that Interest Determination Date for loans in US dollars to
leading European banks for a period of three months (or in the case of the
first Interest Period two months) commencing on the first day of the
Interest Period and in a Representative Amount. If no such rates are
available in New York City, then the rate for such Interest Period shall be
the most recently determined rate in accordance with this paragraph.
Where used in this Condition 4(b), Business Day means any day on which
commercial banks are open for business (including dealings in foreign
exchange and foreign currency deposits) in London and New York City.
The Interest Rate applicable to the Class A Notes for such Interest Period
shall be the aggregate of (i) the interest rate or arithmetic mean as
determined by the Calculation Agent; and (ii) the margin of [*]% (the
"Class A-1 Margin") in relation to the Class A-1 Notes, [*]% (the "Class
A-2 Margin") in relation to the Class A-2 Notes and [*]% (the "Class A-3
Margin") in relation to the Class A-3 Notes.
If the Issuer has not redeemed all of:
(i) the Class A-1 Notes on or before the Quarterly Payment Date falling
in November, 2006, the Class A-1 Margin will increase to [*]% for
the period from (and including) that date until (but excluding) the
date on which the Class A-1 Notes are redeemed in full in accordance
with these conditions;
(ii) the Class A-2 Notes on or before the Quarterly Payment Dated falling
in November, 2006, the Class A-2 Margin will increase to [*]% for the
period from (and including) that date until (but excluding) the date
on which the Class A-2 Notes are redeemed in full in accordance with
these conditions; or
(iii) the Class A-3 Notes on or before the Quarterly Payment Date falling
in November, 2006, the Class A-3 Margin will increase to [*] % for
the period from (and including) that date until (but excluding) the
date on which the Class A-3 Notes are redeemed in full in accordance
with these conditions.
There is no maximum or minimum Interest Rate.
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(c) Determination of Interest Rate and Calculation of Interest
The Calculation Agent 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 relevant Class of Class A Notes to the Invested
Amount (as defined in Condition 5(a)) of that 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
Calculation Agent shall (in the absence of manifest error) be final and
binding upon all parties.
(d) Notification and Publication of Interest Rate and Interest The Calculation
Agent will cause the Interest Rate and the Interest applicable to each
Class A Note for each Interest Period and the relevant Quarterly Payment
Date to be notified to the Issuer, the Manager, the Note Trustee and the
Paying Agents and, for so long as the Class A Notes are listed on the
Official List of the London Stock Exchange, the London Stock Exchange will
cause the same to be published in accordance with Condition 12 on or as
soon as possible after the date of commencement of the relevant Interest
Period. The Interest, Interest Rate and the relevant Quarterly 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 Manager
If the Calculation Agent at any time for any reason does not determine the
relevant Interest Rate or calculate the Interest for a Class A Note, the
Manager shall do so and each such determination or calculation shall be
deemed to have been made by the Calculation Agent. In doing so, the Manager
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 reasonably
considers to be fair and reasonable in all the circumstances.
(f) Calculation Agent
The Issuer will procure that, so long as any of the Class A Notes remains
outstanding, there will, at all times, be a Calculation Agent. The Issuer,
or the Manager with the consent of the Issuer (such consent not to be
unreasonably withheld), reserves the right at any time to terminate the
appointment of the Calculation Agent. 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 Calculation Agent, or if the appointment of the
Calculation Agent is terminated, the Issuer will, with the approval of the
Note Trustee, appoint a successor Calculation Agent to act as such in its
place, provided that neither the resignation nor removal of the Calculation
Agent shall take effect until a successor approved by the Note Trustee has
been appointed.
(g) Income distribution
On each Quarterly Payment Date, and based on the calculations, instructions
and directions provided to it by the Manager, the Issuer must pay or cause
to be paid out of Total Available Funds, in relation to the Quarterly
Collection Period
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(defined below) ending immediately before that Quarterly Payment Date,
the following amounts in the following order of priority:
(i) first, an amount equal to any Accrued Interest Adjustment required
to be paid to the Approved Seller;
(ii) second, repayment to the Mortgage Insurer, of any payment in the
nature of income received from a Borrower under a Loan for which
that Mortgage Insurer previously paid under the relevant Mortgage
Insurance Policy by way of Timely Payment Cover;
(iii) third, payment to the Fixed-Floating Swap Provider under the Fixed-
Floating Rate Swap of any Break Payments received by or on behalf of
the Issuer from a Borrower or Mortgage Insurer during the Quarterly
Collection Period;
(iv) fourth (unless specified later in this paragraph (g)), Trust
Expenses which have been incurred prior to that Quarterly Payment
Date and which have not previously been paid or reimbursed under an
application of this paragraph (g) (in the order of priority set out
in the definition of "Trust Expenses" as more fully described in the
Supplementary Terms Notice);
(v) fifth, pari passu and ratably as between themselves:
(A) any fees payable by the Issuer under the Redraw Facility dated
the Closing Date between the Issuer, the Manager and St.George
(the "Redraw Facility"); and
(B) any fees payable by the Issuer under the Basis Swap and the
Fixed-Floating Rate Swap;
(vi) sixth, without duplication, any amount that would have been payable
under this paragraph (other than under sub-paragraph (ix)) on any
previous Quarterly Payment Date, if there had been sufficient Total
Available Funds, which have not been paid by the Issuer and in the
order they would have been paid under that prior application of
this clause;
(vii) seventh, pari passu and ratably as between themselves:
(A) any interest payable by the Issuer under the Redraw Facility;
(B) any amounts payable by the Issuer under the Basis Swap and the
Fixed-Floating Rate Swap not included in (iii) or (v) above;
(C) any repayment of a Liquidity Draw made on or prior to the
previous Monthly Payment Date; and
(D) the payment to the Currency Swap Provider under a Confirmation
relating to the Class A Notes of the A$ Class A Interest
Amount at that date (which is thereafter to be applied to
payments of Interest on the Class A Notes);
(viii) eighth, any amounts that would have been payable under sub-paragraph
(g)(ix) on any previous Quarterly Payment Date, if there had been
sufficient Total Available Funds, which have not been paid by the
Issuer; and
(ix) ninth, payment to the Class B Noteholders of the Class B Interest
amount as at the date on the Class B Notes.
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The Issuer shall only make a payment under any of the above sub-paragraphs
if it is directed in writing by the Manager to do so and only 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.
The Issuer is also required to make certain payments out of Total Available
Funds on each Monthly Payment Date (as defined below) as more fully
described in the Supplementary Terms Notice.
Capitalised terms in this paragraph (g) have the same meaning given in the
Supplementary Terms Notice unless otherwise defined in this document.
5. Redemption and Purchase
Capitalised terms in this Condition 5 have the same meaning given in the
Supplementary Terms Notice unless otherwise defined in this document.
(a) Mandatory Redemption in part from Principal Collections and apportionment
of Principal Collections between the Class A Notes and the Class B Notes
The Class A Notes shall be subject to mandatory redemption in part on any
Quarterly 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 Quarterly Payment Date shall be the amount available for
payment as set out in Condition 5(b) on the day which is two Business Days
prior to the Quarterly Payment Date (the "Quarterly Determination Date")
divided by the aggregate Invested Amount of all Class A Notes, multiplied
by the Invested Amount of that Note, 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 and not to be reinstated on the next Quarterly Payment
Date, or to be charged off on the Quarterly Payment Date, as described in
Condition 5(c) (that reduced amount being the "Stated Amount" of that Class
A Note).
Notice of amounts to be redeemed will be provided by the Manager to the
Issuer, the Calculation Agent, the Principal Paying Agent and the Note
Trustee.
Following notification of the amount to be redeemed for each Quarterly
Payment Date, the Manager will determine the Bond Factor for each Class of
the Class A Notes as of such Quarterly Payment Date and will notify the
Issuer, the Calculation Agent, the Principal Paying Agent and the Note
Trustee of this amount and shall cause the Bond Factor to be published
pursuant to Condition 12.
The "Bond Factor" for any Class of the Class A Notes as of any Quarterly
Payment Date will be equal to the ratio, expressed as a percentage (rounded
to six decimal places), equal to the aggregate Invested Amounts of the
Class A Notes of that Class as of the preceding Quarterly Determination
Date, divided by the aggregate Initial Invested Amount of the Class A Notes
of that Class.
The "Class A Invested Amount" of a Class A Note on any Quarterly
Determination Date is equal to its Initial Invested Amount minus the
aggregate of the Principal Payments made in respect of that Class A Note on
or before that Quarterly Determination Date.
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"Cut-Off Date" means, in respect of all Loans and Mortgages, [*] 1999.
"Initial Invested Amount" means, in relation to a Class A Note, its initial
Invested Amount.
"Monthly Collection Period" means, in relation to a Monthly Payment Date,
the calendar month which precedes the month in which the Monthly Payment
Date occurs. The first Monthly Collection Period is the period from (but
including) the Cut-Off Date to (and including) 15 November 1999. The last
Monthly Collection Period is the period from (but excluding) the last day
of the calendar month that precedes the date on which the Trust is
terminated under clause 3.5 of the Master Trust Deed to (and including)
that date.
"Monthly Payment Date" means, in relation to a Monthly Collection Period,
the 15th day of the calendar month that follows that Monthly Collection
Period, provided that, if any such date would otherwise fall on a day which
is not a Business Day, it shall be postponed to the next day which is a
Business Day, unless that day falls in the next calendar month, in which
case the Monthly Payment Date will be the preceding Business Day.
"Principal Collections" means, in respect of a Collection Period (as
defined below) and as applicable on any Determination Date, the aggregate
of:
(i) all amounts received by or on behalf of the Issuer from or on behalf
of the borrowers under each Loan purchased by the Issuer and in
which the Issuer has an interest (a "Purchased Receivable") during
that Collection Period in respect of principal, in accordance with
the terms of the Purchased Receivables, including principal
prepayments;
(ii) all other amounts received by or on behalf of the Issuer under or
in respect of principal under the Purchased Receivables and the
related Receivable Rights during that Collection Period including:
(A) any Liquidation Proceeds on account of principal;
(B) any payments by the Approved Seller to the Issuer on the
repurchase of a Purchased Receivable as more fully described
in the Master Trust Deed during that Monthly Collection Period
which are attributable to principal; and
(C) any amount received by the Issuer from the Approved Seller as
more fully described in clause 5.21 of the Supplementary Terms
Notice with respect to that Monthly Collection Period
attributable to principal;
(iii) all amounts received by or on behalf of the Issuer during that
Collection Period from any provider of a Support Facility (other
than the Currency Swap but including the Mortgage Insurance Policy)
as more fully described in that Support Facility and which the
Manager determines should be accounted for in respect of a
Liquidation Loss for that Collection Period;
(iv) all amounts received by or on behalf of the Issuer during that
Collection Period:
(A) from the Approved Seller, in respect of any breach of a
representation, warranty or undertaking of the Approved Seller
contained in the Master Trust Deed or this Supplementary Terms
Notice;
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(B) from the Approved Seller under any obligation of the Approved Seller
as more fully described in the Master Trust Deed or this
Supplementary Terms Notice to indemnify or reimburse the Issuer for
any amount;
(C) from the Servicer, in respect of any breach of any representation,
warranty or undertaking of the Servicer contained in the Servicing
Agreement;
(D) from the Servicer under any obligation of the Servicer as more fully
described in the Servicing Agreement to indemnify or reimburse the
Issuer for any amount;
(E) from the Custodian in respect of any breach of a representation,
warranty or undertaking of the Custodian contained in the Custodian
Agreement;
(F) from the Custodian under any obligation of the Custodian as more
fully described in the Custodian Agreement to indemnify or reimburse
the Issuer for any amount;
(G) from the Indemnifier as more fully described in the Indemnity in
respect of any losses arising from a breach by the Custodian of its
obligations contained in the Custodian Agreement;
(H) from the Issuer in its personal capacity in respect of any breach
of a representation, warranty or undertaking of the Issuer in
respect of which it is not entitled to be indemnified out of the
Assets of the Trust;
(I) from the Issuer in its personal capacity under any obligation of
the Issuer as more fully described in the Transaction Documents to
indemnify or reimburse the Trust for any amount;
(J) from the Manager in respect of any breach of a representation,
warranty or undertaking of the Manager contained in the Transaction
Documents of which it is not entitled to be indemnified out of the
Assets of the Trust; and
(K) from the Manager under any obligation of the Manager as more fully
described in the Transaction Documents to indemnify or reimburse the
Trust for any amount,
in each case, which are determined by the Manager to be in respect of
principal payable under the Purchased Receivables and the related
Receivable Rights;
(v) any amounts in the nature of principal received by or on behalf of
the Issuer during that Collection Period pursuant to the sale of any
Asset (including the A$ Equivalent of any amount received by the
Issuer on the issue of the Notes which was not used to purchase a
Purchased Receivable or Purchased Receivable Security, and which the
Manager determines is surplus to the requirements of the Trust);
(vi) any amount of Excess Available Income to be applied to pay a
Principal Charge Off or a Carryover Charge Off;
(vii) any Excess Available Income to be applied as more fully described
in clause 5.2 of the Supplementary Terms Notice to Principal
Draws made on a previous Payment Date; and
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(viii) any funds withdrawn, by the Issuer from the Liquidity Account in
accordance with clause 5.7(c)(iv) of the Supplementary Terms Notice,
less any amounts deducted by or paid to the Approved Seller to reimburse
Redraws funded by the Approved Seller for which the Approved Seller has not
previously been reimbursed and any amounts paid by the Issuer to replace a
Receivable of the Trust as further described in section 8 of the
Supplementary Terms Notice.
"Quarterly Collection Period" means, in relation to a Quarterly Payment
Date, the 3 Monthly Collection Periods that precede the calendar month in
which the Quarterly Payment Date occurs, save that the first Quarterly
Collection Period is the period from (and including) the Cut-Off Date to
(and including) 15 November 1999. The last Quarterly Collection Period ends
on (and includes) the date on which the Trust is terminated.
(b) Principal Distributions on Notes
On each Quarterly Payment Date, and in accordance with the calculations,
instructions and directions provided to it by the Manager, the Issuer must
distribute or cause to be distributed out of Principal Collections, in
relation to the Quarterly Collection Period ending immediately before that
Quarterly Payment Date, the following amounts in the following order of
priority:
(i) first, repayment to the Mortgage Insurer, of any payment in the
nature of principal received from an Obligor for which the Mortgage
Insurer previously paid under the Mortgage Insurance Policy by
way of timely payment cover;
(ii) second, to allocate to Total Available Funds any Principal Draws
calculated as more fully described in clause 5.6 of the
Supplementary Terms Notice;
(iii) third, to retain in the Collection Account as a provision such
amount as the Manager determines is appropriate to make for any
anticipated shortfalls in payments as more fully described in clause
5.1 of the Supplementary Terms Notice on the following Monthly
Payment Date or Quarterly Payment Date;
(iv) fourth, to repay any Redraws provided by the Approved Seller in
relation to Loans as more fully described in clause 5.5 of the
Supplementary Terms Notice to the extent that it has not previously
been reimbursed in relation to those Redraws;
(v) fifth, to repay all Redraw Principal Outstanding under the Redraw
Facility Agreement on that Quarterly Payment Date;
(vi) sixth, to retain in the Collection Account as a provision to
reimburse further Redraws an amount equal to the Redraw Retention
Amount for the next Quarterly Collection Period;
(vii) seventh, as a payment to the Currency Swap Provider under the
Confirmation relating to the Class A-1 Notes, of an amount equal
to the lesser of:
(A) the amount available for distribution under this sub-paragraph
(vii) after all payments which have priority under this
paragraph (b); and
(B) the A$ Equivalent of the Class A Invested Amounts for all
Class A-1 Notes (which is thereafter to be applied to payments
of principal on the Class A-1 Notes);
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(viii) eighth, as a payment to the Currency Swap Provider under the
Confirmation relating to the Class A-2 Notes, of an amount equal to
the lesser of:
(A) the amount available for distribution under this sub-paragraph
(viii) after all payments which have priority under this
paragraph (b); and
(B) the A$ Equivalent of the Class A Invested Amounts for all Class
A-2 Notes (which is thereafter to be applied to payments of
principal on the Class A-2 Notes);
(ix) ninth, as a payment to the Currency Swap Provider under the
Confirmation relating to the Class A-3 Notes, of an amount equal to
the lesser of:
(A) the amount available for distribution under this sub-paragraph
(ix) after all payments which have priority under this
paragraph (b); and
(B) the A$ Equivalent of the Class A Invested Amounts for all
Class A-3 Notes (which is thereafter to be applied to payments
of principal on the Class A-3 Notes); and
(x) tenth, only if the Class A Invested Amount for all Class A Notes has
been reduced to zero, 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
(o) after all payments which have priority under this paragraph
(b); and
(B) the Class B Invested Amounts in respect of all Class B Notes;
(which is thereafter to be applied to payments of principal on the
Class B Notes).
The Issuer shall only make a payment under any of sub-paragraphs (i) to (o)
above inclusive if it is directed in writing to do so by the Manager and
only to the extent that any Principal Collections remain from which to make
the payment after amounts with priority to that payment have been
distributed.
The Issuer is also required to make certain payments out of Principal
Collections (including allocating Principal Draws to Total Available Funds)
on each Monthly Payment Date in accordance with the Supplementary Terms
Notice.
(c) General
No amount of principal will be paid to a Noteholder in excess of the
Invested Amount applicable to the Notes held by that Noteholder.
(d) Excess Available Income - Reimbursement of Charge Offs and Principal
Draw
(i) General
On each Quarterly Determination Date, the Manager must determine,
for a Quarterly Collection Period, the amount (if any) by which the
Total Available Funds for the Quarterly Collection Period exceeds
the Total Payments for the Quarterly Collection Period ("Excess
Available Income").
(ii) Distribution of Excess Available Income
(A) On each Quarterly Determination Date, the Manager must apply
any Excess Available Income for the Quarterly Collection
Period relating to that Quarterly Determination Date in the
following order of priority:
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(1) first, the Excess Available Income must be applied in
payment of all Principal Charge Offs for that Quarterly
Collection Period;
(2) second, the balance of the Excess Available Income (after
application under sub-paragraph (1) above) must be applied
pari passu and rateably between themselves (based on the
Principal Outstanding and the A$ Equivalent of the Stated
Amount of the Class A Notes):
(a) as a payment to the Currency Swap Provider under a
Confirmation relating to the Class A Notes, of the
A$ Equivalent of any Carryover Class A Charge Offs;
and
(b) as a repayment under the Redraw Facility, as a
reduction of, and to the extent of, the Carryover
Redraw Charge Offs;
(3) third, the balance of the Excess Available Income (after
application under sub-paragraphs (1) and (2)) must be
applied to all Principal Draws which have not been repaid
as at that Quarterly Payment Date; and
(4) fourth, the balance of the Excess Available Income (after
application under sub-paragraphs (1) to (3) (inclusive))
must be applied in or towards reinstating the Stated
Amount of the Class B Notes to the extent of any Carryover
Class B Charge Offs.
Any amount applied pursuant to sub-paragraphs (1) to (4)
(inclusive) above will be treated as Principal Collections
to the extent of that application and in the case of
amounts paid under sub-paragraph (2) or (4) will be paid
on the Quarterly Payment Date following that Quarterly
Determination Date. The Issuer shall only make a payment
under paragraph (A) above if it is directed to do so by
the Manager and only 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.
(e) Excess Distribution
The Issuer must at the written direction of the Manager pay any
Excess Distribution for a Quarterly Collection Period to the
Beneficiary on the relevant Quarterly Payment Date. The Issuer may
not recover any Excess Distributions from the Beneficiary once they
are paid to the Beneficiary except where there has been a manifest
error in the relevant calculation of the Excess Distributions.
(f) US$ Account
The Issuer shall direct the Currency Swap Provider to pay all
amounts denominated in US$ payable to the Issuer by the Currency
Swap Provider under the Currency Swap into the US$ Account or to the
Principal Paying Agent under the Agency Agreement on behalf of the
Issuer.
The Issuer shall, on the direction of the Manager, or shall require
that the Paying Agent on its behalf, pay all amounts credited to the
US$ Account by the Currency Swap Provider as follows, and in
accordance with the Note Trust Deed and the Agency Agreement:
(i) amounts credited under Conditions 4(h)(vi) and 4(h)(vii)(D),
pari passu in relation to Class A Notes as payments of Interest
on those Class A Notes;
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(ii) amounts credited under Condition 5(d)(ii)(A)(2)(a), 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) amounts credited under Condition 5(b)(vii), pari passu to Class
A-1 Noteholders as Class A Principal Payments on the Class A-1
Notes until the Class A Invested Amounts of the Class A-1 Notes
have been reduced to zero;
(iv) amounts credited under Condition 5(b)(viii), pari passu to Class
A-2 Noteholders as Class A Principal payments on the Class A-2
Notes until the Class A Invested Amounts of the Class A-2 Notes
have been reduced to zero; and
(v) amounts credited under Condition 5(b)(ix), pari passu to Class
A-3 Noteholders as Class A Principal payments on the Class A-3
Notes until the Class A Invested Amounts of the Class A-3 Notes
have been reduced to zero.
(g) Charge Offs
If the Principal Charge Offs for any Quarterly Collection Period exceed the
Excess Available Income calculated on the Quarterly Determination Date for
that Quarterly Collection Period, the Manager must, on and with effect from
the Quarterly Payment Date immediately following the end of the Quarterly
Collection Period:
(i) reduce pari passu and rateably as between themselves 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 the Class A Notes and the Redraw Facility with respect to
the balance of that excess
(A) rateably as between each of the Class A Notes, the Class A Stated
Amount on each of the Class A Notes until the Class A Stated
Amount of that Class A Note is zero; and
(B) the Redraw Principal Outstanding under the Redraw Facility,
applied to Redraw Advances (as defined in the Redraw Facility) in
reverse chronological order of their Drawdown dates, until the
Redraw Principal Outstanding (as defined in the Redraw Facility
Agreement) is zero.
(h) Calculation of Principal Payments and Stated Amount On (or as soon as
practicable after) each Quarterly Determination Date, the Manager shall
calculate the amount of principal to be repaid in respect of each Class A
Note, as the case may be, due on the Payment Date next following that
Quarterly Determination Date; (B) the Stated Amount and Invested Amount of
each Note on the first day of the next following Interest Period (after
deducting any principal due to be made on the next Quarterly Payment Date);
and (C) the Bond Factor for each Class on each Quarterly Determination Date
in respect of the Collection Period ending before that Quarterly
Determination Date.
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The Manager will notify the Issuer, the Note Trustee, the Principal Paying
Agent and the Calculation Agent and (for so long as the Notes are listed on
the London Stock Exchange) the London Stock Exchange by not later than (or
as soon as practicable after) the Quarterly Determination Date immediately
preceding the relevant Quarterly Payment Date of each such determination
and will immediately cause details of each of those determinations to be
published in accordance with Condition 12 by one Business Day before the
relevant Payment Date. 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 Condition 12.
If the Manager does not at any time for any reason determine a Principal
Payment, the Invested Amount or the Stated Amount applicable to Class A
Notes in accordance with this paragraph, the Principal Payment, Invested
Amount and the Stated Amount shall be determined by the Calculation Agent
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 Manager.
(i) Call
The Issuer must, when so directed by the Manager (at the Manager's option),
purchase or redeem all, but not some only, of the Class A Notes by repaying
the Invested Amount, or, if the Class A Noteholders by Extraordinary
Resolution so agree, the Stated Amount, of the Class A Notes, together with
accrued interest to (but excluding) the date of repurchase or redemption,
on any Quarterly Payment Date falling on or after the earlier of:
(i) the Quarterly Payment Date on which the Total Stated Amount of all
Notes is equal to or less than 10% of the total Initial Invested
Amount of all Notes; and
(ii) in the case of:
(A) Class A-1 Notes, the Quarterly Payment Date falling in November,
2006;
(B) Class A-2 Notes, the Quarterly Payment Date falling in November,
2006; or
(C) Class A-3 Notes, the Quarterly Payment Date falling in November,
2006,
provided that the Issuer will be in a position on such Quarterly Payment
Date to discharge (and the Manager so certifies to the Issuer and the Note
Trustee upon which the Issuer and the Note Trustee will rely conclusively)
all its liabilities in respect of the Class A Notes (at their Invested
Amount or their Stated Amount if so agreed by the Noteholders) and any
amounts which would be required under the Security Trust Deed to be paid in
priority or pari passu with the Class A Notes if the security for the Notes
were being enforced.
The Issuer will give not more than 60 nor less than 45 days' notice to the
Class A Noteholders of a repurchase under this Condition in accordance with
Condition 12.
(j) Redemption for Taxation or Other Reasons
If the Manager satisfies the Issuer and the Note Trustee immediately prior
to giving the notice referred to below that either (i) on the next
Quarterly Payment Date the Issuer would be required to deduct or withhold
from any payment of
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principal or interest in respect of the Class A Notes or the Currency Swap
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 any of the Loans for a
Collection Period ceases to be receivable (whether or not actually
received) by the Issuer during such Collection Period, the Issuer must,
when so directed by the Manager, at the Manager's option (provided that the
Issuer will be in a position on such Quarterly Payment Date to discharge
(and the Manager will so certify to the Issuer and the Note Trustee) all
its liabilities in respect of the Class A Notes (at their Invested Amount
or if the Noteholders will have agreed by Extraordinary Resolution and will
have so notified the Issuer and the Manager not less than 21 days before
such Quarterly Payment Date, at their Stated Amount) and any amounts which
would be required under the Security Trust Deed to be paid in priority or
pari passu with the Class A Notes if the security for the Class A Notes
were being enforced), having given not more than 60 nor less than 45 days'
notice to the Class A Noteholders in accordance with Condition 12, redeem
all, but not some only, of the Class A Notes at their Invested Amount (or,
if the Class A Noteholders by Extraordinary Resolution have so agreed, at
their Stated Amount) together with accrued interest to (but excluding) the
date of redemption on any subsequent Payment Date, provided that the Class
A Noteholders may by Extraordinary Resolution elect, and shall notify the
Issuer and the Manager not less than 21 days before the next Quarterly
Payment Date following the receipt of notice of such proposed redemption,
that they do not require the Issuer to redeem the Class A Notes.
(k) Redemption on Final Maturity
If not otherwise redeemed, the Class A Notes will be redeemed at their
Stated Amount on the Quarterly Payment Date falling in February, 2030.
(l) Cancellation
All Class A Notes redeemed in full pursuant to the above provisions will be
cancelled forthwith, and may not be resold or reissued.
(m) 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 Manager on behalf of the Issuer 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 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, the Note Trustee and the holders of those Class A Notes.
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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 to the Paying Agent
on the applicable Payment Date or Final 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 Clearing Agency to be DTC and 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.
(b) Initial Principal Paying Agent
The initial Principal Paying Agent is Midland Bank PLC at its office at
Mariner House, Pepys Street, London EC3N 4DA United Kingdom.
(c) Paying Agents
The Issuer (or the Manager on its behalf with the consent of the Issuer,
such consent not to be unreasonably withheld), 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 the City of London and 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 Condition
12.
(d) Payment 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 unless that day falls in the
next calendar month, in which case the due date will be the preceding
Business Day and the holder of that Class A Note 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 at which the
Class A Note is presented for payment is situated and, in the case of
payment by transfer to a US dollar account, in New York City and prior to
the 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.
(e) 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 Condition 12.
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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 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 whatever nature. In that event the Issuer
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 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 on it
the effect of which would be to reduce the Stated Amount (in the case of final
maturity, if applicable) or the Invested 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 by the Principal Paying Agent
in accordance with Condition 12.
9. Events of Default
Each of the following is an Event of Default (whether or not it is within
the control of the Issuer).
(a) The Issuer fails to pay any Interest Entitlement within 10 Business
Days of the Quarterly Payment Date on which the Interest Entitlement
was due to be paid, together with all interest accrued and payable on
that Interest Entitlement or any other Secured Moneys, within 10
Business Days of the due date for payment (or within any applicable
grace period agreed with the Mortgagees, or where the Mortgagee is a
Noteholder, with the Note Trustee, to whom the Secured Moneys relate).
(b) The Issuer 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 a Material Adverse Effect
and that default (if in the opinion of the Security Trustee capable of
remedy) is not remedied within 30 days after written notice (or such
longer period as may be specified in the notice) from the Security
Trustee requiring the failure to be remedied.
(c) Any of the following events occur in relation to the Issuer:
(i) 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
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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; or
(2) entering into an arrangement, compromise or composition
with or assignment for the benefit of its creditors or
a class of them, and is not dismissed, ceased or
withdrawn within 15 Business Days; or
(B) The Issuer 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
(ii) the Issuer 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 only in relation to
another trust of which it is the trustee);
(iii) a receiver, receiver and manager or administrator is appointed
(by the relevant corporation or by any other person) to all or
substantially all of the assets and undertaking of the relevant
corporation or any part thereof (except in the case of the
Trustee where this occurs in relation to another trust of which
the Issuer is the trustee);
(iv) anything analogous to an event referred to in paragraphs (i) to
(iii) (inclusive) or having substantially similar effect occurs
with respect to the Issuer.
(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 (other than as mandatorily preferred by law) ranks ahead of
or pari passu with any of the Secured Moneys.
(e) Any Security Interest over the Trust Assets is enforced.
(f) All or any part of any Trust Document (other than the Basis Swap, the
Redraw Facility Agreement or, where the Currency Swap is terminated by
the provider of the Currency Swap as a result of a call exercised by
the Trustee under Condition 5(j), the Currency Swap) 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 Trust Document (other than the Basis Swap,
the Redraw Facility or, where the Currency Swap is terminated by the
provider of the Currency Swap as a result of a call exercised by the
Trustee under Condition 5(j), the Currency Swap) where that event has
or will have a Material Adverse Effect.
(g) Without the prior consent of the Security Trustee (such consent being
subject to the Note Trustee's prior written consent):
(i) the Trust is wound up, or the Issuer 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 not to have been
constituted or to have been imperfectly constituted; or
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(iii) unless another trustee is contemporaneously and immediately
appointed to the Trust under the Trust Documents, the Issuer
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.
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 realisation of such security shall be applied in
accordance with the order of priority of payments as stated in the Security
Trust Deed.
10. Enforcement
At any time after an Event of Default occurs, the Security Trustee shall
(subject to being appropriately indemnified), if so directed by (a) the
Noteholder Mortgagees (as defined in the Security Trust Deed) alone, where the
Noteholder Mortgagees are the only Voting Mortgagees, or otherwise (b) an
"Extraordinary Resolution of the Voting Mortgagees" (being 75% of votes capable
of being cast by Voting Mortgagees present 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 Class A Noteholders,
but not, unless the Note Trustee has become bound to take steps and/or proceed
under the Security Trust Deed and fails to do so within a reasonable period of
time and such failure is continuing, the Class A Noteholders themselves),
declare the Class A Notes immediately due and payable and declare the security
to be enforceable. If an Extraordinary Resolution of Voting Mortgagees referred
to above elects not to direct the Security Trustee to enforce the Security Trust
Deed, in circumstances where the Security Trustee could enforce, the Noteholder
Mortgagee may nevertheless and the Note Trustee as 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 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).
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
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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.
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:
o 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 ranking in priority to or pari passu with the Class A Notes; or
o 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 (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 to discharge in
full in due course all the amounts referred to in paragraph (i).
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 or any third party in respect of
the Issuer 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.
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.
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 to enforce the performance of any of the
provisions of the Security Trust Deed, the Class A Notes (including these Class
A Conditions).
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
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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 of enforcement 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, 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 the Noteholders
remaining after realisation 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 Issuer 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
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Stated Amount or a Bond Factor shall be deemed 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.
All consents and approvals in these Conditions are to be given in writing.
13. Meetings of Voting Mortgagees and Meetings of Class A Noteholders;
Modifications; Consents; Waiver
The Security Trust Deed contains provisions for convening meetings of the
Voting Mortgagees to, among other things, 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.
The Note Trust Deed contains provisions for convening meetings of Class A
Noteholders to consider any matter affecting their interests, including the
directing of the Note Trustee to direct the Security Trustee to enforce the
security under the Security Trust Deed, or the sanctioning by Extraordinary
Resolution of the Class A Noteholders of a modification of the Class A Notes
(including these Class A Conditions) or the provisions of any of the Transaction
Documents, provided that no modification of certain terms including, among other
things, the date of maturity of the Class A Notes, or a modification which would
have the effect of altering the amount of interest payable in respect of a Class
A Note or modification of the method of calculation of the interest payable or
of the date 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
altering the majority required to pass an Extraordinary Resolution or altering
the currency of payment of any Class A Notes or an alteration of the date or
priority of payment of interest on, or redemption of, the Class A Notes or an
election to receive the Stated Amount of the Notes instead of the Invested
Amount in the event of a call under Condition 5(i) or 5(j) (any such
modification being referred to below as a "Basic Terms Modification") shall be
effective except that, if the Note Trustee is of the opinion that such a Basic
Terms Modification is being proposed by the Issuer as a result of, or in order
to avoid, an Event of Default, such Basic Terms Modification may be sanctioned
by Extraordinary Resolution of the Class A Noteholders as described below. An
Extraordinary Resolution passed by the Class A Noteholders shall be binding on
all Class A Noteholders. The vote required for an Extraordinary Resolution shall
be Class A Noteholders holding notes which represent 75% of outstanding
principal balance of the Class A Notes.
The Note Trust Deed permits the Note Trustee, the Manager and the Issuer
to, following the giving of not less than 10 Business Days' notice to each
Designated Rating Agency, alter, add to or modify, by way of supplemental deed,
the Note Trust Deed (including the meeting and amendment provisions), the
Conditions (subject to
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the proviso more fully described in clause 37.2 of the Note Trust Deed or any
other terms of that deed or the Conditions to which it refers) or any
Transaction Document so long as that alteration, addition or modification is:
o to correct a manifest error or ambiguity or is of a formal, technical
or administrative nature only;
o 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 Agency;
o in the opinion of the Note Trustee appropriate or expedient as a
consequence of a change to any law or regulation or a change in the
requirements of any Government Agency (including, but not limited to,
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
o in the opinion of the Note Trustee not materially prejudicial to the
interests of the Class A Noteholders as a whole,
and is undertaken in a manner and to the extent, permitted by the
Transaction Documents.
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 above, is materially prejudicial or likely to be materially
prejudicial to the interests of Class A Noteholders as a whole or any Class of
Class A Noteholders, the Note Trustee, the Manager and the Issuer may make that
alteration, addition or modification only if sanctioned in writing by holders of
at least 75% of the aggregate Invested Amount of the Class A Notes.
The Note Trustee may also, in accordance with the Note Trust Deed and
without the consent of the Class A Noteholders (but not in contravention of an
Extraordinary Resolution), waive or authorise any breach or proposed breach of
the Class A Notes (including these Class A Conditions) or any Transaction
Document or 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,
authorisation or determination shall be binding on the Class A Noteholders and,
if, but only if, the Note Trustee so requires, any such modification shall be
notified to the Class A Noteholders in accordance with Condition 12 as soon as
practicable.
The Manager shall distribute to all Class A Noteholders and the Designated
Rating Agencies a copy of any amendments made in accordance with the procedure
described in that clause 19 of the Note Trust Deed and under the relevant
Condition 12 as soon as reasonably practicable after the amendment has been
made.
Any amendment made will be binding on Noteholders and shall conform to the
requirements of the TIA as then in effect so long as the Note Trust Deed shall
be qualified under the TIA.
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14. Indemnification and Exoneration of the Note Trustee and the Security
Trustee
(a) The Note Trust Deed and the Security Trust Deed contain provisions for
the indemnification of the Note Trustee and the Security Trustee
(respectively) and for their relief from responsibility, including
provisions relieving them from taking proceedings to realise the
security and to obtain repayment of the Class A Notes unless
indemnified to their satisfaction. Each of the Note Trustee and the
Security Trustee is entitled to enter into business transactions with
the Issuer and/or any other party to the Transaction Documents without
accounting for any profit resulting from such transactions. Except in
the case of negligence, fraud or breach of trust (in the case of the
Security Trustee) or negligence, fraud, default or breach of trust (in
the case of the Note Trustee), 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 if prudently chosen in accordance with the
Transaction Documents.
(b) Where the Note Trustee is required to express an opinion or make a
determination or calculation under the Transaction Documents, the Note
Trustee may appoint or engage such independent advisers as the Note
Trustee reasonably requires to assist in the giving of that opinion or
the making of that determination or calculation and any reasonable
costs and expenses payable to those advisers will be reimbursed to the
Note Trustee by the Issuer or if another person is expressly stated in
the relevant provision in a Transaction Document, that person.
15. Limitation of Liability of the Issuer
(a) General
Clause 30 of the Master Trust Deed applies to the obligations and
liabilities of the Issuer in relation to the Class A Notes.
(b) Liability of Issuer limited to its right of indemnity
(i) The Issuer enters into the Transaction Documents and issues the Notes
only in its capacity as trustee of the Trust and in no other capacity
(except where the Transaction Documents provide otherwise). Subject to
paragraph (iii) below, a liability arising under or in connection with
the Transaction Documents or the Trust can be enforced against the
Issuer only to the extent to which it can be satisfied out of the
assets and property of the Trust which are available to satisfy the
right of the Issuer to be exonerated or indemnified for the liability.
This limitation of the Issuer's liability applies despite any other
provision of the Transaction Documents and extends to all liabilities
and obligations of the Issuer in any way connected with any
representation, warranty, conduct, omission, agreement or transaction
related to the Transaction Documents or the Trust.
(ii) Subject to paragraph (iii) below, no person (including any Relevant
Party) may take action against the Issuer in any capacity other than
as trustee of the Trust or seek the appointment of a receiver (except
under the Security
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Trust Deed), or a liquidator, an administrator or any similar person
to the Issuer or prove in any liquidation, administration or
arrangements of or affecting the Issuer.
(iii) The provisions of this Condition 15 shall not apply to any obligation
or liability of the Issuer 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 Issuer's indemnification or exoneration
out of the assets of the Trust as a result of the Issuer's fraud,
negligence or Default.
(iv) It is acknowledged that the Relevant Parties are responsible under the
Transaction Documents for performing a variety of obligations relating
to the Trust. No act or omission of the Issuer (including any related
failure to satisfy its obligations under the Transaction Documents)
will be considered fraud, negligence or Default of the Issuer for the
purpose of 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 person who has been delegated or appointed by
the Issuer in accordance with the Transaction Documents to fulfil its
obligations relating to the Trust or by any other act or omission of a
Relevant Party or any such person.
(v) In exercising their powers under the Transaction Documents, each of
the Issuer, the Security Trustee and the Noteholders must ensure that
no attorney, agent, delegate, receiver or receiver and manager
appointed by it in accordance with a Transaction Document has
authority to act on behalf of the Issuer in a way which exposes the
Issuer to any personal liability and no act or omission of any such
person will be considered fraud, negligence or Default of the Issuer
for the purpose of paragraph (iii).
(vi) In this Condition 15, "Relevant Parties" means each of the Manager,
the Servicer, the Calculation Agent, each Paying Agent, the Note
Trustee, the Custodian, the Basis Swap Provider, the Standby Basis
Swap Provider, the Fixed-Floating Rate Swap Provider, the Standby
Fixed-Floating Rate Swap Provider and the Currency Swap Provider.
(vii)In this Condition 15, "Default" means a failure by the Issuer to
comply with an obligation which is expressly imposed on it by the
terms of a Transaction Document or a written direction given by the
Manager in accordance with a Transaction Document (and in terms which
are consistent with the requirements of the Transaction Documents) in
circumstances where the Transaction Documents require or contemplate
that the Issuer will comply with that direction; in each case within
any period of time specified in, or contemplated by, the relevant
Transaction Document for such compliance. However, it will not be the
Default of the Issuer if the Issuer does not comply with an obligation
or direction where the Note Trustee or the Security Trustee directs
the Issuer not to comply with that obligation or direction.
(viii) Nothing in this clause limits the obligations expressly imposed on
the Issuer under the Transaction Documents.
16. Governing Law
The Class A Notes and the Relevant Documents are governed by, and shall be
construed in accordance with, the laws of New South Wales, Australia
(except for the Currency Swap which is governed by New York law and the
Note Trust
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Deed). The Note Trust Deed is governed by the laws of New South Wales,
Australia, and the administration of the trust constituted thereunder is
governed by English law.
Summary of Provisions Relating to the Class A Notes While in Book Entry Form
Each Class of 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$994,000,000 (comprising US$300,000,000 in the case
of Class A-1 Notes, US$569,000,000 in the case of Class A-2 Notes, and
US$125,000,000 in the case of Class A-3 Notes). 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
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 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 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 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 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 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:
(i) the Principal Paying Agent advises the Manager in writing that the
Clearing Agency is no longer willing or able properly to discharge its
responsibilities
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with respect to the Class A Notes or the Clearing Agency ceases to
carry on business, and the Trust Manager is unable to locate a
qualified successor;
(ii) the Issuer, at the direction of the Manager (at the 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
(iii) 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
Principal Paying Agent and Issuer 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 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 by the Clearing Agency, and the delivery by the
Clearing Agency of the relevant registration instructions to the Issuer, the
Issuer shall execute and procure the Principal Paying Agent to authenticate the
Definitive Notes in accordance with the instructions of the Clearing Agency.
(b) 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.
(c) 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.
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CRUSADE GLOBAL TRUST NO. 1 OF 1999
[GRAPHIC]
Until _____, all dealers that effect transactions in these securities,
whether or not participating in this offering, may be required to deliver a
prospectus. This is in addition to the dealer's obligation to deliver a
prospectus when acting as an underwriter and with respect to unsold allotments
or subscriptions.
<PAGE>
PART II
Information Not Required in Prospectus
Item 13. Other Expenses of Issuance and Distribution*
The following table sets forth the estimated expenses (expressed in U.S.
dollars based on an exchange rate of US$0.65 = A$1.00)) in connection with
the issuance and distribution of the notes being registered under this
registration statement, other than underwriting discounts and commissions:
SEC Registration Fee..................................... $276,332
Printing and Engraving................................... $125,000
Legal Fees and Expenses.................................. $442,500
Trustee Fees and Expenses................................ $153,000
Rating Agency Fees....................................... $285,000
Accounting Fees & Expenses............................... $128,000
Miscellaneous............................................ $ 82,500
----------
Total.................................................... $1,492,332
==========
- ---------
* 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 Articles of Association 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
II-1
<PAGE>
(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 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 manager with respect to,
that were not registered under the Securities Act:
1. The registrant was incorporated on February 2, 1996. Five fully paid
shares of A$1.00 each were allotted to St.George Bank on February 21,
1996.
2. The registrant acted as manager with respect to the following:
<TABLE>
<CAPTION>
Crusade Trust Crusade Euro Trust Crusade Euro Trust Crusade Auto Trust
No 1 of 1997 No 1 of 1998 No 2 of 1998 No 1 of 1999
------------------------ ------------------------ ------------------------ ------------------------
<S> <C> <C> <C> <C>
Date.............. August 1, 1997 March 19, 1998 September 29, 1998 August 27, 1999
Amount............ A$500 million US$500 million US$325 million A$571 million
Type.............. Mortgage Backed Mortgage Backed Mortgage Backed Auto Receivable Backed
Floating Rate Notes Floating Rate Notes Floating Rate Notes Floating Rate Notes
Class A Notes $A500m Class A Notes US$496m Class A Notes US$314m Class A1 A$128.45m
Class B Notes US$4m Class B Notes US$11m Class A2 A$200m
Class A3 A$196.81m
Class B A$20.4m
Class C A$12.42m
Exemption 100% domestic issue, not 100% European issue, not 100% European issue, 100% domestic issue, not
from offered in the USA. offered in the USA. not offered in the USA. offered in the USA
Registration......
Principal Bankers Trust Australia Deutsche Morgan Deutsche Bank, BT Alex Macquarie Bank Limited
Underwriters...... Limited Grenfell, BT Alex Brown Brown International, Deutsche Bank AG,
International, UBS Warburg Dillon Read Sydney Branch,
Limited St.George Bank Limited
Underwriting A$1,500,000 US$741,000 US$619,000 A$856,505
Fees.............
Offering BBSW + 23 basis points Class A: LIBOR + 18 Class A: LIBOR + 20 Class A1 BBSW + 17
Price............. basis points basis points basis points
Class B: LIBOR + 30 Class B: LIBOR + 45 Class A2 BBSW + 26
basis points basis points basis points
Class A3 BBSW + 36
basis points
Class B (subject to
Confidentiality
Agreement)
Class C (subject to
Confidentiality
Agreement)
Weighted 3.85 years 3.5 years 3.6 years Class A1 0.47 years
Average Life Class A2 1.28 years
to Call.......... Class A3 2.56 years
Class B 3.25 years
Class C 3.25 years
</TABLE>
II-2
<PAGE>
Item 16. Exhibits and Financial Statement Schedules.
<TABLE>
<CAPTION>
<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 Supplementary Terms Notice.
4.3 Form of the Security Trust Deed.
4.4 Form of the Note Trust Deed.
4.5 Form of Agency Agreement.
5.1 Opinion of Mayer, Brown & Platt as to legality of the notes.
8.1 Opinion of Mayer, Brown & Platt as to certain tax matters
(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 Custodian Agreement.*
10.3 Deed of Indemnity.*
10.4 Form of the Redraw Facility Agreement.**
10.5 Form of the Basis Swap.**
10.6 Form of the Fixed-Floating Rate Swap.**
10.7 Form of the Cross Currency Swap.**
10.8 Form of Seller Loan Agreement.
10.9 Form of the Mortgage Insurance Policy.*
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 Note Trustee.
99.1 Opinion of Allen Allen & Hemsley as to Enforceability of U.S.
Judgments under Australian Law.
</TABLE>
- ----------
* Previously filed.
** To be filed by amendment.
II-3
<PAGE>
Item 17. Undertakings.
The undersigned registrant hereby undertakes that 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
of 1933 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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 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 Securities Act
of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
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 10th day of
September 1999.
Crusade Management Limited
By: /s/ Paul Leslie Gibbeson
------------------------
Name: Paul Leslie Gibbeson
Title: Secretary
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
--------- ----- ----
<S> <C> <C>
* /s/ Gregory Michael Bartlett
- ------------------------------
Gregory Michael Bartlett Principal Executive Officer September 10, 1999
/s/ Steven George McKerihan
- ------------------------------
Steven George McKerihan Principal Financial Officer September 10, 1999
/s/ Steven George McKerihan
- ------------------------------
Steven George McKerihan Principal Accounting Officer September 10, 1999
* /s/ Gregory Michael Bartlett
- ------------------------------
Gregory Michael Bartlett Director September 10, 1999
/s/ Steven George McKerihan
- -----------------------------
Steven George McKerihan Director September 10, 1999
/s/ Keith Andrew Ward
- ------------------------------
Keith Andrew Ward Director September 10, 1999
*/s/ Michael Bowan
- ------------------------------
By: Michael Bowan
Attorney-in-fact
</TABLE>
II-5
<PAGE>
Signature of Authorized Representative
Pursuant to the requirements of the Securities Act of 1933, the undersigned
hereby certifies that it is the agent for service of process in the United
States of the registrant with respect to the Registration Statement and signs
this Amendment No. 2 to the Registration Statement solely in such capacity.
/s/ Stefanie McDonald
-----------------------------------
Name: Stefanie McDonald
Address: CT Corporation System
111 Eighth Avenue
13th Floor
New York, New York 10011
Telephone: (212) 590-9100
II-6
<PAGE>
Exhibits Index
<TABLE>
<CAPTION>
Sequential
Exhibit Page
No. Description of Exhibit Number
- ------- ------------------------------------------------------------- -------
<S> <C> <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 Supplementary Terms Notice. -----
4.3 Form of the Security Trust Deed. -----
4.4 Form of the Note Trust Deed. -----
4.5 Form of Agency Agreement. -----
5.1 Opinion of Mayer, Brown & Platt as to legality of the notes. -----
8.1 Opinion of Mayer, Brown & Platt as to certain tax matters -----
(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 Custodian Agreement.* -----
10.3 Deed of Indemnity.* -----
10.4 Form of the Redraw Facility Agreement.** -----
10.5 Form of the Basis Swap.** -----
10.6 Form of Fixed-Floating Rate Swap.** -----
10.7 Form of the Cross Currency Swap.** -----
10.8 Form of Seller Loan Agreement. -----
10.9 Form of the Mortgage Insurance Policy.* -----
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 Note Trustee. -----
99.1 Opinion of Allen Allen & Hemsley as to Enforceability of
U.S. Judgments under Australian Law. -----
</TABLE>
- ----------
* Previously filed.
** To be filed by amendment.
<PAGE>
Supplementary Terms
Notice
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AXA Trustees Limited
(Trustee)
Crusade Management Limited
(Manager)
St.George Bank Limited
(Approved Seller)
St.George Bank Limited
(Servicer)
St.George Bank Limited
(Indemnifier)
St.George Custodial Pty Limited
(Custodian)
National Mutual Life Nominees Limited
(Security Trustee)
Bankers Trust Company
(Note Trustee)
Crusade Global Trust No. 1 of 1999
Allen & Hemsley
The Chifley Tower
2 Chifley Square
Sydney NSW 2000
Australia
Tell 61 2 9230 4000
Fax 61 2 9230 5333
(Copyright) Copyright Allen Allen & Hemsley 1999
<PAGE>
Supplementary Terms Notice Allen Allen & Hemsley
- --------------------------------------------------------------------------------
Table of Contents
1. Introduction 1
2. Definitions and Interpretation 2
2.1 Definitions 2
2.2 Interpretation 23
2.3 Limitation of liability 23
2.4 Knowledge of Trustee 25
3. Direction and Trust Back 25
4. Notes 25
4.1 Conditions of Notes 25
4.2 Summary of conditions of Notes 25
4.3 Issue of Notes 28
4.4 Trustee's Covenant to Noteholders and the Note Trustee 28
4.5 Repayment of Notes on Payment Dates 28
4.6 Final Redemption 29
4.7 Period During Which Interest Accrues 29
4.8 Calculation of Interest 29
4.9 Step-Up Margin 30
4.10 Aggregate receipts 30
5. Cashflow Allocation Methodology 31
5.1 Total Available Funds 31
5.2 Excess Available Income - Reimbursement of Charge Offs and
Principal Draws 33
5.3 Excess Distribution 34
5.4 Principal Distributions 34
5.5 Redraws 36
5.6 Determination Date - Payment Shortfall 37
5.7 Monthly Determination Date - Liquidity Shortfall 38
5.8 Allocating Liquidation Losses 38
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Supplementary Terms Notice Allen Allen & Hemsley
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5.9 Insurance claims 39
5.10 Payments before Payment Date 39
5.11 Charge Offs 40
5.12 Payments into US$ Account 40
5.13 Payments out of US$ Account 40
5.14 Rounding of amounts 41
5.15 Manager's Report 41
5.16 Payment Priorities Following an Event of Default:
Security Trust Deed 41
5.17 Prescription 41
5.18 Accounting Procedures: Principal & Interest 42
5.19 Replacement of Currency Swap 42
5.20 Notice of calculations 43
5.21 Bond Factors 43
5.22 Loan Offset Interest 43
6. Master Trust Deed and Servicing Agreement 44
6.1 Completion of details in relation to Master Trust Deed 44
6.2 Amendments to Master Trust Deed 46
6.3 Amendments to the Servicing Agreement 79
7. Call and Tax Redemption 80
7.1 Call 80
7.2 Tax Event 80
8. Substitution of Purchased Receivables 81
8.1 Approved Seller substitution 81
8.2 Other substitutions 81
8.3 Selection criteria 82
9. Application of Threshold Rate 83
9.1 Calculation of Threshold Rate 83
9.2 Setting Threshold Rate 83
9.3 Loan Offset Deposit Accounts 83
10. Title Perfection Events 83
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Page (ii)
<PAGE>
Supplementary Terms Notice Allen Allen & Hemsley
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11. Beneficiary 84
12. Note Trustee 85
12.1 Capacity 85
12.2 Exercise of rights 85
12.3 Representation and warranty 85
12.4 Payments 85
12.5 Payment to be made on Business Day 85
13. Security Trust Deed 85
14. Custodian Agreement 86
15. Manager's Directions to be in Writing 86
Schedule 1 90
Schedule 2 92
Application for Instruments 92
Crusade Trust No. X of Y 92
Schedule 3 95
Instrument Acknowledgment 95
Crusade Trust No. [*] 95
Schedule 4 97
Instrument Transfer and Acceptance 97
Crusade Trust No. X of Y 97
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Page (iii)
<PAGE>
Supplementary Terms Notice Allen Allen & Hemsley
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1. Introduction
- ------------------------------------------------------------------------------
This Supplementary Terms Notice is issued on 1999 pursuant and subject
to the Master Trust Deed dated 14 March 1998 (the Master Trust Deed)
between:
AXA Trustees Limited (ACN 004 029 841) of Level 2, 65 Southbank
Boulevard, South Melbourne, Victoria, 3205 in its capacity as trustee
of Crusade Global Trust No. 1 of 1999 (the Trustee);
Crusade Management Limited (ACN 072 715 916) of 4-16 Montgomery
Street, Kogarah, New South Wales 2217 as Manager (the Manager);
St.George Bank Limited (ACN 055 513 070) of 4-16 Montgomery Street,
Kogarah, New South Wales 2217 in its capacity as Servicer, Approved
Seller and Indemnifier (St.George);
St.George Custodial Pty Limited (ACN 003 347 411) of 4-16 Montgomery
Street, Kogarah, New South Wales 2217 (the Custodian);
National Mutual Life Nominees Limited (ACN 004 387 133) of 44 Market
Street, Sydney, New South Wales 2000 (the Security Trustee); and
Bankers Trust Company of 1 Appold Street, Broadgate, London EC2A 2HE,
United Kingdom (the Note Trustee) which 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 Supplementary Terms Notice.
This Supplementary Terms Notice is issued by the Manager and applies
in respect of Crusade Global Trust No. 1 of 1999.
Each party to this Supplementary Terms Notice agrees to be bound by
the Transaction Documents as amended by this Supplementary Terms
Notice in the capacity set out with respect to them in this
Supplementary Terms Notice or the Master Trust Deed.
The parties agree that the Approved Seller is to be an Approved Seller
for the purposes of the Master Trust Deed, this Supplementary Terms
Notice and the other Transaction Documents for the Trust.
The parties agree that the Servicer is to be a Servicer for the
purposes of the Master Trust Deed, this Supplementary Terms Notice and
the other Transaction Documents for the Trust.
The parties agree that the Custodian is to be a Custodian for the
purposes of the Master Trust Deed, this Supplementary Terms Notice and
the other Transaction Documents for the Trust.
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<PAGE>
Supplementary Terms Notice Allen Allen & Hemsley
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2. Definitions and Interpretation
- --------------------------------------------------------------------------------
2.1 Definitions
Unless otherwise defined in this Supplementary Terms Notice, words and
phrases defined in the Master Trust Deed have the same meaning where
used in this Supplementary Terms Notice.
In this Supplementary Terms 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 Crusade Global Trust No. 1
of 1999, and do not apply to any other Trust (as defined in the Master
Trust Deed).
A$ Class A Interest Amount means, for any Quarterly Payment Date in
relation to a Confirmation for Class A Notes, the amount in Australian
dollars which is calculated:
(a) on a daily basis at the applicable rate set out in that
Confirmation (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 (or, in the case of the first Interest Period, 60 days)
plus the relevant Spread);
(b) on the A$ Equivalent of the aggregate of the Invested Amount of
those Class A Notes as at the first day of the Interest Period
ending on (but excluding) that Payment Date; and
(c) on the basis of the actual number of days in that Interest Period
and a year of 365 days.
A$ Equivalent means:
(a) 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
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.
Accrued Interest Adjustment means, in relation to the Approved Seller,
all interest and fees accrued on the Purchased Receivables purchased
from the Approved Seller up to (but excluding) the Closing Date which
are unpaid as at the close of business on the Closing Date.
Agency Agreement means the Agency Agreement dated on or about the date
of this Deed between the Trustee, the Manager, the Note Trustee, the
Principal Paying Agent, the other Paying Agents and the Calculation
Agent.
Arrears subsist in relation to a Receivable at any time if, at that
time, the principal outstanding under that Receivable is greater than
the scheduled principal balance for that Receivable.
Asset has the meaning in the Master Trust Deed and includes any Loan
or any Mortgage specified in a Sale Notice or any Mortgage, Related
Security or
- --------------------------------------------------------------------------------
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<PAGE>
Supplementary Terms Notice Allen Allen & Hemsley
- --------------------------------------------------------------------------------
other rights with respect thereto which is acquired by the Trustee for
the Trust, or any Authorised Investment acquired by the Trustee.
Authorised Signatory means:
(a) in relation to the Note Trustee, any duly authorised officer of
the Note Trustee and any other duly authorised person of the Note
Trustee;
(b) in relation to the Principal Paying Agent, any duly authorised
officer of the Principal Paying Agent and any other duly
authorised person of the Principal Paying Agent; and
(c) in relation to the Calculation Agent, any duly authorised officer
of the Calculation Agent and any other duly authorised person of
the Calculation Agent.
Available Income means, in relation to the Trust for any Monthly
Collection Period, the total of the following:
(a) the Finance Charge Collections for the Trust for that Monthly
Collection Period; plus
(b) to the extent not included in paragraph (a):
(i) any amount received by or on behalf of the Trustee in
relation to that Monthly Collection Period on or by the
Monthly Payment Date immediately following the end of that
Monthly Collection Period with respect to net receipts under
any Interest Hedge;
(ii) any interest income received by or on behalf of the Trustee
during that Monthly 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 the
Approved Seller, the Servicer or the 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; and
(v) all amounts received by or on behalf of the Trustee in the
nature of income during that Monthly Collection Period from
any provider of a Support Facility (other than a Redraw
Facility Agreement) under that Support Facility (including
any amounts received under the terms of any Mortgage
Insurance Policy by way of timely payment cover) and which
the Manager determines should be accounted for in respect of
a Finance Charge Loss,
but excluding interest credited to a Support Facility Collateral
Account.
Available Income, for any Quarterly Collection Period, means the total
of the above amounts for the three Monthly Collection Periods that
comprise that Quarterly Collection Period.
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<PAGE>
Supplementary Terms Notice Allen Allen & Hemsley
- --------------------------------------------------------------------------------
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 of America or any of its states; 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.
Basis Swap means, in relation to the master interest rate swap
agreement dated on or about the date of this Supplementary Terms
Notice made between the Trustee in its capacity as trustee of the
Trust, the Manager, St.George as principal floating rate payer and
Deutsche Bank AG, Sydney Branch as standby floating rate payer, 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 Floating Rate Loan.
BBSW Reference Bank means any financial institution authorised to
quote on the Reuters Screen BBSW Page.
Beneficiary means, in relation to the Trust, the Manager.
Bond Factor means a Class A Bond Factor or the Class B 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-1 Notes, Class A-2 Notes or Class A-3 Notes
substantially in the form of schedule 1 to the Note Trust Deed.
Break Payment means any amount owed by an Obligor under a Fixed Rate
Loan and which amount is owed following payment by that Obligor of any
principal before the due date for that principal, in accordance with
the terms of the relevant Receivable Agreement (and includes an amount
owed by the Mortgage Insurer with respect to the obligation of an
Obligor to pay any such amount).
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
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<PAGE>
Supplementary Terms Notice Allen Allen & Hemsley
- --------------------------------------------------------------------------------
public holiday, on which Banks are open for business in London,
Sydney and New York, or as otherwise specified in the relevant
Condition; and
(b) in relation to any Class B Notes, any other Transaction Document
and any payments of A$, any day, other than a Saturday, Sunday or
public holiday, on which Banks are open for business in Sydney.
Calculation Agent means Midland Bank plc.
Carryover Charge Off means, in relation to the Trust at any time, a
Carryover Class A Charge Off or a Carryover Class B Charge Off or a
Carryover Redraw Charge Off.
Carryover Class A Charge Off means, on any Quarterly 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 Quarterly
Determination Date and which have not been reinstated under clause
5.2(a)(ii)(A).
Carryover Class B Charge Off means, on any Quarterly Determination
Date, in relation to a Class B Note, the aggregate of Class B Charge
Offs prior to that Quarterly Determination Date and which have not
been reinstated under clause 5.2(a)(iv).
Carryover Redraw Charge Off means, on any Quarterly Determination
Date, the aggregate of Redraw Charge Offs prior to that Quarterly
Determination Date and which have not been repaid under clause
5.2(a)(ii)(B).
Class includes each class constituted by the Class A-1 Notes, the
Class A-2 Notes, the Class A-3 Notes and the Class B Notes.
Class A Bond Factor means, in relation to a Quarterly Determination
Date for a Class of Class A Notes, the aggregate of the Invested
Amounts for that Class of Class A Notes for that Quarterly
Determination Date, less all Class A Principal Payments to be made on
the next Quarterly Payment Date divided by the aggregate Class A
Initial Invested Amounts for that Class of Class A 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
5.11(b)(i).
Class A Initial Invested Amount means, in relation to any Class A
Note, the Initial Invested Amount of that Class A Note.
Class A Interest means all interest accrued on the Class A Notes in
respect of an Interest Period in accordance with clause 4.8.
Class A Note means a Class A-1 Note, Class A-2 Note or Class A-3 Note.
Class A-1 Note means a Note issued as a Class A-1 Note by the Trustee
with the characteristics of a Class A-1 Note under this Supplementary
Terms Notice and includes any relevant Book-Entry Note (or any part or
interest in) and any relevant Definitive Note.
Class A-2 Note means a Note issued as a Class A-2 Note by the Trustee
with the characteristics of a Class A-2 Note under this Supplementary
Terms
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<PAGE>
Supplementary Terms Notice Allen Allen & Hemsley
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Notice and includes any relevant Book-Entry Note (or any part or
interest in) and any relevant Definitive Note.
Class A-3 Note means a Note issued as a Class A-3 Note by the Trustee
with the characteristics of a Class A-3 Note under this Supplementary
Terms Notice and includes any relevant Book-Entry Note (or any part or
interest in) and any relevant Definitive Note.
Class A Noteholder means a Noteholder of a Class A Note.
Class A Principal Payment means each payment to the Class A
Noteholders under clause 5.13, following a payment under clauses
5.4(c)(vii)(B), 5.4(c)(viii)(B) or 5.4(c)(ix)(B).
Class A Stated Amount means, on a Quarterly 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; 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
5.2(a)(ii)(A) on that Determination Date.
Class B Bond Factor means, on a Quarterly Determination Date, the
aggregate of the Invested Amounts for all Class B Notes for that
Quarterly Determination Date less all Class B Principal Payments to be
made on the next Quarterly Payment Date divided by the aggregate Class
B Initial Invested Amounts for all Class B Notes expressed to seven
decimal places.
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
5.11(a).
Class B Initial Invested Amount means, in relation to any Class B
Note, the Initial Invested Amount of that Class B Note.
Class B Interest means all interest accrued on the Class B Notes in
respect of an Interest Period in accordance with clause 4.8.
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 Supplementary Terms
Notice.
Class B Noteholder means a Noteholder of a Class B Note.
Class B Principal Payment means each payment to the Class B
Noteholders under clause 5.13 following a payment under clause
5.4(c)(x).
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Class B Stated Amount means, on a Quarterly 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
(c) Carryover Class B Charge Offs (if any) made in relation to that
Class B Note; 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
5.2(a)(iv) 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 Manager
and the Trustee to hold Notes (directly or through a Common
Depository), and initially means DTC.
Closing Date means, in relation to the Trust, 23 September 1999 or
such later date as may be agreed between the Trustee and the Note
Manager.
Collection Account means, in relation to the Trust, the Australian
dollar account number [*] with Australia & New Zealand Banking Group
Limited (ACN 005 357 522), at its office at Level 2, 570 Church Street
Richmond Victoria, Australia, or any other account opened under clause
13 of this Supplementary Terms Notice or clause 21 of the Master Trust
Deed and maintained by the Trustee with an Approved Bank, under clause
21 of the Master Trust Deed.
Collection Period means a Monthly Collection Period or a Quarterly
Collection Period.
Collections means, in relation to the Trust for a period, Finance
Charge Collections and Gross Principal Collections for that period.
Common Depository means Cede & Co, as depository for DTC, or any other
common depository for DTC or any 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 1 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
Supplementary Terms Notice and the Note Trust Deed. Any reference in
this Supplementary Terms Notice to a particular numbered Condition
shall be construed accordingly.
Confirmation means, in respect of the Currency Swap, any Confirmation
(as defined in the Currency Swap).
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CSFB means Credit Suisse First Boston Corporation (ARBN 061 700 712).
Currency Swap means, in relation to the master interest rate and
currency exchange agreement dated on or about the date of this
Supplementary Terms Notice between the Trustee in its capacity as
trustee of the Trust, the Manager and the 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 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 which, if
entered into, will not result in the downgrading of, or withdrawal of
the ratings for, any Notes.
Currency Swap Provider means, initially, Bankers Trust Corporation,
New York and thereafter any other approved person who is or becomes a
party to a Currency Swap.
Custodian Agreement means the agreement so entitled dated 19 March
1998 between the Trustee, the Manager and the Custodian.
Custodian Fee means the fee payable under clause 6.1(d) of this
Supplementary Terms Notice and clause 6.1 of the Custodian Agreement.
Cut-Off Date means, in respect of each Receivable and Receivable
Security, close of business, September [*] 1999.
Definitive Note means a note in definitive form (whether bearer or
registered) issued or to be issued in respect of any Class A Note
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 Rating Agency means S&P, Moody's or Fitch IBCA.
Determination Date means a Monthly Determination Date or a Quarterly
Determination Date.
DTC means the Depository Trust Company.
Eligibility Criteria means the criteria set out in the schedule to
this Supplementary Terms Notice, subject to the Trustee and Manager
receiving confirmation from the Designated Rating Agencies that the
criteria will not adversely affect the Rating.
Enforcement Expenses means the costs and expenses incurred by the
Approved Seller or the Servicer in connection with the enforcement of
any Purchased Receivables or the related Receivable Rights referred to
in clause 6.2(a) of the Servicing Agreement.
Excess Available Income means, for a Quarterly Collection Period, the
amount (if any) by which the Total Available Funds for the Quarterly
Collection Period exceeds the Total Payments for the Quarterly
Collection Period.
Excess Distribution means, in relation to a Quarterly Collection
Period, the amount (if any) by which the Excess Available Income for
that Quarterly Collection Period exceeds the amounts applied under
clause 5.2 on each Determination Date relating to that Quarterly
Collection Period.
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Exchange Act means the United States Securities Exchange Act of 1934.
Final Maturity Date means the date specified in clause 4.2(i).
Finance Charge Collections means, for a Monthly Collection Period, the
aggregate of:
(a) the aggregate of all amounts received by or on behalf of the
Trustee during that Monthly Collection Period in respect of
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 on account of interest;
(ii) any payments by the Approved Seller to the Trustee on the
repurchase of a Purchased Receivable under the Master Trust
Deed during that Monthly Collection Period which are
attributable to interest;
(iii) any Break Payments received during that Monthly Collection
Period;
(iv) any amount received by the Trustee from the Approved Seller
under clause 5.22 with respect to that Monthly Collection
Period attributable to interest; and
(v) any interest on Collections payable by the Approved Seller
under clause 5.2(b)(ii) of the Servicing Agreement (as
amended by this Supplementary Terms Notice).
(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 Monthly Collection Period including:
(i) from the Approved Seller, in respect of any breach of a
representation, warranty or undertaking contained in the
Master Trust Deed or this Supplementary Terms Notice;
(ii) from the Approved Seller under any obligation under the
Master Trust Deed or this Supplementary Terms Notice to
indemnify or reimburse 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;
(iv) from the Servicer under any obligation under the Servicing
Agreement to indemnify or reimburse the Trustee for any
amount;
(v) from the Custodian in respect of any breach of a
representation, warranty or undertaking contained in the
Custodian Agreement;
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(vi) from the Custodian under any obligation under the Custodian
Agreement to indemnify or reimburse the Trustee for any
amount;
(vii) from the Indemnifier under the Indemnity in respect of any
losses arising from a breach by the Custodian of its
obligations under the Custodian Agreement;
(viii) from the Trustee in its personal capacity in respect of
any breach of a representation, warranty or undertaking in
respect of which it is not entitled to be indemnified out of
the Assets of the Trust, or any indemnity from the Trustee
in its personal capacity contained in the Transaction
Documents; and (ix) from the Manager in respect of any
breach of a representation, warranty or undertaking of the
Manager in respect of a breach of which it is not entitled
to be indemnified out of the Assets of the Trust, or any
indemnity from the Manager, contained in the Transaction
Documents,
in each case which are determined by the Manager to be in respect
of interest, fees and other amounts in the nature of income
payable under the Purchased Receivables and the related
Receivable Rights; and
(c) Recoveries in the nature of income received by or on behalf of
the Trustee during that Monthly Collection Period;
less:
(d) the Government Charges collected by or on behalf of the Trustee
for that Monthly Collection Period; and
(e) the aggregate of all bank fees and charges due to the Servicer or
the Approved Seller as agreed by them and consented to by the
Trustee (that consent not to be unreasonably withheld) from time
to time and collected by the Approved Seller or the Servicer
during that Monthly Collection Period.
For a Quarterly Collection Period, it means the aggregate of those
amounts relating to the three Monthly Collection Periods that comprise
that Quarterly Collection Period.
Finance Charge Loss means, for a Quarterly Collection Period, the
amount of any Liquidation Loss referred to in clause 5.8(a).
Fixed Rate Loan means, at any time, any Purchased Receivable which
bears a fixed rate of interest at that time.
Floating Rate Loan means, at any time, any Purchased Receivable which
bears a variable rate set, as permitted by the relevant Receivable
Agreement, at the discretion of the Approved Seller.
Government Charges means, for any Collection Period, the aggregate of
all amounts collected by the Servicer or the Approved Seller in that
Collection Period in respect of the Purchased Receivables and the
related Receivable
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Rights representing financial institutions duty, bank accounts debit
tax or similar Taxes.
Gross Principal Collections means, for a Monthly 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 that
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 on account of principal;
(ii) any payments by the Approved Seller to the Trustee on the
repurchase of a Purchased Receivable under the Master Trust
Deed during that Monthly Collection Period which are
attributable to principal; and
(iii) any amount received by the Trustee from the Approved Seller
under clause 5.22 with respect to that Monthly Collection
Period attributable to principal.
(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 but including any Mortgage Insurance
Policy) under that Support Facility and which the Manager
determines should be accounted for in respect of a Principal
Loss;
(d) all amounts received by or on behalf of the Trustee during that
Collection Period:
(i) from the Approved Seller, in respect of any breach of a
representation, warranty or undertaking of the Approved
Seller contained in the Master Trust Deed or this
Supplementary Terms Notice;
(ii) from the Approved Seller under any obligation of the
Approved Seller under the Master Trust Deed or this
Supplementary Terms Notice to indemnify or reimburse the
Trustee for any amount;
(iii) from the Servicer, in respect of any breach of any
representation, warranty or undertaking of the Servicer
contained in the Servicing Agreement;
(iv) from the Servicer under any obligation of the Servicer under
the Servicing Agreement to indemnify or reimburse the
Trustee for any amount;
(v) from the Custodian in respect of any breach of a
representation, warranty or undertaking of the Custodian
contained in the Custodian Agreement;
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(vi) from the Custodian under any obligation of the Custodian
under the Custodian Agreement to indemnify or reimburse the
Trustee for any amount;
(vii) from the Indemnifier under the Indemnity in respect of any
losses arising from a breach by the Custodian of its
obligations contained in the Custodian Agreement;
(viii) from the Trustee in its personal capacity in respect of
any breach of a representation, warranty or undertaking of
the Trustee in respect of which it is not entitled to be
indemnified out of the Assets of the Trust;
(ix) from the Trustee in its personal capacity under any
obligation of the Trustee under the Transaction Documents to
indemnify or reimburse the Trust for any amount;
(x) from the Manager in respect of any breach of a
representation, warranty or undertaking of the Manager
contained in the Transaction Documents of which it is not
entitled to be indemnified out of the Assets of the Trust;
and
(xi) from the Manager under any obligation of the Manager under
the Transaction Documents to indemnify or reimburse the
Trust for any amount,
in each case, which are determined by the 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 the A$ Equivalent of any amount received
by the Trustee on the issue of the Notes which was not used to
purchase a Purchased Receivable or Purchased Receivable Security,
and which the Manager determines is surplus to the requirements
of the Trust);
(f) any amount of Excess Available Income to be applied to pay a
Principal Charge Off or a Carryover Charge Off;
(g) any Excess Available Income to be applied under clause 5.2 to
Principal Draws made on a previous Payment Date; and
(h) any funds withdrawn, by the Trustee from the Liquidity Account in
accordance with clause 5.7(c)(iv).
Hedge Agreement in relation to the Trust includes any Interest Hedge
and 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 Distribution Date means, for the purposes of the Master Trust
Deed, each Payment Date.
Indemnifier means St.George.
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Indemnity means the deed of indemnity between the Trustee, the
Indemnifier, the Manager and the Custodian dated * 1999.
Information Memorandum means the Prospectus dated [*] September 1999
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).
Interest means Class A Interest or Class B Interest.
Interest Hedge means the Basis Swap or an Interest Rate Swap.
Interest Payment Date means, for the purposes of the Master Trust
Deed, each Quarterly Payment Date.
Interest Period means:
(a) in relation to the first Interest Period of a Note, the period
commencing on (and including) the Closing Date and ending on (but
excluding) the first Quarterly Payment Date;
(b) in relation to the final Interest Period, the period commencing
on (and including) the Quarterly Payment Date prior to the day on
which all amounts due on such Notes are redeemed in full in
accordance with the Transaction Documents and ending on (but
excluding) such day; provided that if the Stated Amount of any
Note on the due date for redemption is not zero and payment of
principal due is improperly withheld or refused, the final
Interest Period shall end on the day on which:
(i) the monies in respect of that Note have been received by the
Note Trustee or the Principal Paying Agent and notice to
that effect has been given in accordance with the relevant
Condition; or
(ii) the Stated Amount of that Note has been reduced to zero
provided that Interest shall thereafter begin to accrue from
(and including) any date on which the Stated Amount of that
Note becomes greater than zero; and
(c) in relation to each other Interest Period, each period commencing
on (and including) a Quarterly Payment Date and ending on (but
excluding) the next Quarterly Payment Date.
Interest Rate means, in relation to:
(a) a Class A Note and an Interest Period, LIBOR in relation to that
Interest Period; and
(b) a Class B Note and an Interest Period, the Three Month Bank Bill
Rate on the first day of that Interest Period,
plus, in all cases, the relevant Margin for the relevant Note.
Interest Rate Swap means, in relation to the master agreement dated on
or about the date of this Supplementary Terms Notice made between the
Trustee as trustee of the Trust, the Manager, St.George as principal
floating rate payer and Deutsche Bank AG, Sydney Branch as standby
floating rate
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payer, 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 Rate Loan.
Invested Amount means, on a Determination Date in relation to a Note,
the Initial Invested Amount of that Note minus the aggregate of
Principal Payments made in respect of the Note on or before that
Determination Date.
ISDA means the International Swaps and Derivatives Association, Inc.
(Formally the International Swaps Dealers Association Inc).
ISDA Definitions means the 1991 Definitions (as supplemented by the
1998 Supplement) published by ISDA under its then name, the
International Swaps Dealers Association Inc.
ISDA Master Agreement means the June 1992 Multicurrency-Cross border
edition of the Master Agreement published by ISDA, any schedule
forming part of that Agreement and the relevant addenda to it.
Lead Manager means CSFB.
LIBOR means, in relation to any Interest Period, the rate of interest
determined by the Calculation Agent as follows.
(a) On the second Business Day before the beginning of each Interest
Period (each an Interest Determination Date), the rate
"USD-LIBOR-BBA" as the applicable Floating Rate Option under the
ISDA Definitions being the rate applicable to any Interest Period
for three-month (or, in the case of the first Interest Period,
two-month) deposits in US Dollars which appears on the Telerate
Page 3750 as of 11.00am, London time, determined on the Interest
Determination Date by the Calculation Agent.
(b) If such rate does not appear on the Telerate Page 3750, the rate
for that Interest Period will be determined as if the Trustee and
the Calculation Agent 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
agreed to by the Calculation Agent and the Currency Swap
Provider) at approximately 11.00am, London time, on the Interest
Determination Date to prime banks in the London interbank market
for a period of three months (or, in the case of the first
Interest Period, 2 months) commencing on the first day of the
Interest Period and in a Representative Amount (as defined in the
ISDA Definitions). The Calculation Agent 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 not less than two
major banks in New York City,
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selected by the Calculation Agent and the Currency Swap Provider,
at approximately 11.00am, New York City time, on that Interest
Determination Date for loans in US Dollars to leading European
banks for a period of three months (or, in the case of the first
Interest Period, 2 months) commencing on the first day of the
Interest Period and in a Representative Amount.
(c) If no such rates are available in New York City, then the rate
for such Interest Period shall be the most recently determined
rate in accordance with this paragraph.
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 and New York City.
Liquidation Loss means, for a Collection Period, the amount (if any)
by which the Unpaid Balance of a 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 for that Collection Period.
Liquidation Proceeds means, in relation to a Purchased Receivable and
the related Receivable Rights which have been or are being enforced,
all amounts recovered in respect of the enforcement of the Purchased
Receivable and the related Receivable Rights (but does not include the
proceeds of any Mortgage Insurance Policy).
Liquidity Account means the account held by the Trustee on behalf of
the Trust with an Approved Bank into which will be or is deposited the
amount of the Liquidity Reserve.
Liquidity Draw means a draw made by the Trustee on the Liquidity
Reserve to fund Liquidity Shortfalls in accordance with clause 5.7.
Liquidity Reserve means:
(a) in relation to the period from the Closing Date to (and
including) the first Quarterly Determination Date, the A$
Equivalent of 0.25% of the aggregate of Initial Invested Amounts
of all Class A Notes and all Class B Notes determined on that
day; and
(b) in relation to the period following the first Quarterly
Determination Date, an amount equivalent to 0.25% of the total
Unpaid Balance for all Receivables as determined on each
Quarterly Determination Date,
deposited by the Trustee, at the direction of the Manager, in the
Liquidity Account for the purpose of funding Liquidity Shortfalls.
Liquidity Shortfall means, in relation to a Collection Period, the
amount (if any) by which the Total Payments for that Collection Period
exceed the aggregate of the Available Income and any Principal Draws
for that Collection Period.
Loan Offset Deposit Account means any deposit account maintained by an
Obligor under a Purchased Receivable with the Approved Seller where an
amount equal to the interest which would otherwise accrue on that
account is
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offset against moneys owed by that Obligor under that Purchased
Receivable, in accordance with the relevant Receivable Agreement.
Loan Offset Interest Amount means, in relation to any Obligor under a
Purchased Receivable, the amount of any interest which would be
payable by the Approved Seller to that Obligor on amounts standing to
the credit of the Obligor's Loan Offset Deposit Account, if interest
was payable on that account.
LVR means in relation to a Loan, the outstanding amount of that 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
(determined at the time the Mortgage was granted) of the Mortgaged
Property subject to the related Mortgage for that Loan, expressed as a
percentage.
Margin means, in relation to any Note, the Margin for that Note agreed
between the Manager and the Lead Manager, and notified by the Manager
to the Trustee under clause 4.2(d) in relation to that Note, as it may
be modified under clause 4.9.
Modified Following Business Day Convention has the meaning given to it
in the ISDA Definitions.
Monthly Collection Period means, in relation to a Monthly Payment
Date, the calendar month which precedes the calendar month in which
the Monthly Payment Date occurs. The first Monthly Collection Period
is the period from (but including) the Cut-Off Date to (and including)
15 November 1999. The last Monthly Collection Period is the period
from (but excluding) the last day of the calendar month that precedes
the date on which the Trust is terminated under clause 3.5 of the
Master Trust Deed to (and including) that date.
Monthly Determination Date means, in relation to the Trust for a
Monthly Collection Period, the date which is 2 Business Days prior to
the Monthly Payment Date following the end of that Monthly Collection
Period.
Monthly Payment Date means, in relation to a Monthly Collection
Period, the 15th day of the calendar month that follows that Monthly
Collection Period, subject to adjustment in accordance with the
Modified Following Business Day Convention.
Mortgage Insurer means Housing Loans Insurance Corporation Pty
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 relevant Mortgage Insurance
Policy, determined to be attributable to principal; and
(b) the total amount recovered and recoverable by the Trustee from
the Approved Seller 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
Supplementary Terms Notice
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or the Servicing Agreement (as the case may be), determined by
the Manager to be attributable to principal.
For the purposes of this definition,
(c) 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 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 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 5.8; and
(d) 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 or a Class B Note referred to in clause 4,
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.
Noteholder means, at any time, the person who:
(a) in relation to a Class B 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,
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 Supplementary Terms Notice and
the Note Trust Deed. The words holder and holders shall (where
appropriate) be construed accordingly.
Note Manager means the Lead Manager.
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.
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Note Registrar means Midland Bank Plc or any successor note registrar
approved in writing by the Note Trustee and appointed under the Agency
Agreement.
Note Trust Deed means the deed so entitled dated on or about the date
of this Supplementary Terms Notice between the Note Trustee, the
Trustee and the Manager.
Notice of Creation of Trust means the Notice of Creation of Trust
dated on or about the date of this Supplementary Terms Notice issued
under the Master Trust Deed in relation to the Trust.
Payment Date means a Monthly Payment Date or a Quarterly Payment Date.
Payment Shortfall means, in relation to any Collection Period, the
amount (if any) by which Total Payments for that Collection Period
exceed the Available Income for that Collection Period.
Premises means the area labelled "Crusade Global Trust No. 1 of 1999"
located in Bays [ ] in a secure area on Lower Ground Floor, St.George
House, 4-16 Montgomery Street, Kogarah, New South Wales 2217 (or such
other premises as the Custodian proposes, and the Trustee agrees to in
writing).
Principal Amortisation Date means, in relation to a Note for the
purposes of the Master Trust Deed, each Quarterly Payment Date.
Principal Charge Off means, in relation to any Quarterly Collection
Period, the aggregate of all Mortgage Shortfalls for that Quarterly
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 the Approved Seller under
clause 5.5(b) in that Collection Period to reimburse Redraws
funded by the Approved Seller for which the Approved Seller has
not previously been reimbursed; less
(c) any amounts paid by the Trustee to replace a Receivable of the
Trust in accordance with clause 8.
Principal Draw means, for a Monthly Collection Period, the amount
calculated under clause 5.6 in relation to that Monthly Collection
Period.
Principal Entitlement means, in relation to a Note for the purposes of
the Master Trust Deed, at any time prior to the Final Maturity Date,
the Invested Amount of such Note at such time and, on the Final
Maturity Date or the date on which the Note is fully redeemed under
the Transaction Documents, the Stated Amount of such Note at such
date.
Principal Loss means, for a Quarterly Collection Period, the amount of
any Liquidation Loss for that Quarterly Collection Period referred to
in clause 5.8(b).
Principal Paying Agent means Midland Bank plc or any successor as
Principal Paying Agent under the Agency Agreement.
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Principal Payment means a Class A Principal Payment or a Class B
Principal Payment.
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 relevant Purchased
Receivable and Relevant Documents.
Purchased Receivable means each Loan specified in a Sale Notice and
purchased by the Trustee, unless the Trustee has ceased to have an
interest in that Loan.
Purchased Receivable Security means each Mortgage specified in a Sale
Notice and acquired by the Trustee, unless the Trustee has ceased to
have an interest in that Mortgage.
Quarterly Collection Period means in relation to a Quarterly Payment
Date, the 3 Monthly Collection Periods that precede the calendar month
in which the Quarterly Payment Date falls. The First Quarterly
Collection Period is the period from (and including) the Cut-Off Date,
to but including 15 November 1999. The last Quarterly Collection
Period ends on (and includes) the date on which the Trust is
terminated under clause 3.5 of the Master Trust Deed.
Quarterly Determination Date means, in relation to the Trust for a
Quarterly Collection Period, the date which is 2 Business Days prior
to the Quarterly Payment Date following the end of that Quarterly
Collection Period.
Quarterly Payment Date has the meaning given in clause 4.2(h).
Rating means the rating specified in clause 4.2(f).
Receivable means, in relation to the Trust, the rights of the Approved
Seller or the Trustee (as the case may require) under or in respect of
Loans constituted upon acceptance of the Approved Seller's standard
loan offer for any of its mortgage loan products (or any variation of
those products after a Sale Notice is or was given) as varied by the
Approved Seller's standard letter of variation if any (unless that
variation would make that Receivable cease to comply with the
Eligibility Criteria).
Record Date means:
(a) with respect to a Payment Date for any Class B Note, 4.00pm
(Sydney time) on the second Business Day before that Payment
Date;
(b) with respect to the Payment Date for any Book-Entry Note, close
of business on the second Business Day before that Payment Date;
and
(c) with respect to the Payment Date for any Definitive Class A Note,
the last day of the calendar month before that Payment Date.
Recovery means any amount received by 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
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Receivable, provided that amount is not otherwise payable to the
Mortgage Insurer under a Mortgage Insurance Policy.
Redraw means, in relation to any Collection Period, an amount provided
to an Obligor by the Approved Seller under a Purchased Receivable in
that Collection Period 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 Redraw
Principal Outstanding under the Redraw Facility Agreement under clause
5.11.
Redraw Facility Agreement means, in relation to the Trust, the
agreement so entitled dated on or about the date of this Supplementary
Terms Notice between the Trustee, the Manager and the Redraw Facility
Provider.
Redraw Facility Provider means, in relation to the Trust, St.George.
Redraw Principal Outstanding has the meaning given in the Redraw
Facility Agreement.
Redraw Retention Amount has the meaning given in clause 5.5(c).
Redraw Shortfall means the total amount (if any) of Redraws made by
the Approved Seller for which it has not been reimbursed which remain
outstanding after:
(a) applying Gross Principal Collections towards reimbursement of
those Redraws under clause 5.5(b) or 5.5(d); and
(b) without duplication, drawing on the Redraw Retention Amount (if
any).
Remittance Date means the day which is two (2) Business Days before a
Payment Date.
Sale Notice means any Sale Notice (as defined in the Master Trust
Deed) which may be given by the Approved Seller to the Trustee as
trustee of the Trust after the date of execution of this Supplementary
Terms Notice and which is subsequently accepted by the Trustee.
Security Trust Deed means the agreement so entitled dated on or before
the date of this Supplementary Terms Notice between the Trustee, the
Manager, the Note Trustee and the Security Trustee.
Security Trustee's Fee means the fee payable under clause 11.2 of the
Security Trust Deed.
Seller Loan Agreement means the agreement so entitled dated on or
about the date of this Supplementary Terms Notice between the Approved
Seller, the Trustee and the Manager.
Servicing Agreement means the agreement so entitled dated 19 March
1998 between the Trustee, the Manager and the Servicer.
Servicing Fee means the fee payable under clause 6.1(c) of this
Supplementary Terms Notice and clause 6.1 of the Servicing Agreement.
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Spread has the meaning given in the Currency Swap in respect of
payments by the Trustee under the Currency Swap.
Step-Up Margin has the meaning given in clause 4.9.
Stock Exchange means the London Stock Exchange Limited.
Subscription Agreement means the Underwriting Agreement dated [ ]
September 1999 between the Trustee, the Manager, St. George Bank
Limited, CSFB, Deutsche Bank Securities Inc. and J.P. Morgan
Securities Inc. in relation to subscription for the Notes.
Support Facility means each Support Facility (as defined in the Master
Trust Deed) which relates to the Trust and includes the Indemnity.
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.
Three Month Bank Bill Rate on any date means the rate calculated by
taking the simple average of the rates quoted on the Reuters Screen
BBSW Page at approximately 10.00am, Sydney time, on each of that date
and the preceding two Business Days (each a Calculation Day) for each
BBSW 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 (or, where the relevant date is the first day of the first
Interest Period, 60 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 Calculation Day fewer than five BBSW 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 BBSW Reference Banks on application by the parties for
such a bill of the same tenor. If in respect of any Calculation Day
the rate for that date cannot be determined in accordance with the
foregoing procedures then the rate for that Calculation Day shall mean
such rate as is agreed between the Manager and St.George having regard
to comparable indices then available.
Threshold Rate means, at any time, 0.25% per annum plus 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 and other Authorised Investments, 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 Final Maturity
Date of all Notes).
Title Perfection Event means, in relation to the Trust, the events set
out in clause 10.
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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 5.6 on or before the Payment Date for that
Collection Period; and
(c) any Liquidity Draw which the Trustee is required to make under
clause 5.7 on or before the Payment Date for that Collection
Period.
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 Class B Notes,
at that time.
Total Payments means, in relation to a Collection Period, all amounts
paid by the Trustee under clause 5.1 on the Payment Date 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.
Transaction has the meaning given to it under the relevant ISDA Master
Agreement.
Transaction Document means each Transaction Document (as defined in
the Master Trust Deed) to the extent that it relates to the Trust, the
Notes or the Seller Loan Agreement.
Trust means the Crusade Global Trust No. 1 of 1999 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, any other Expenses relating to the Trust for that
Collection Period which are not covered by (c) to (i) (inclusive)
below;
(c) third, pari passu the Trustee's Fee for that Collection Period,
the Security Trustee's Fee for that Collection Period and any fee
payable to the Note Trustee under the Note Trust Deed for that
Collection Period;
(d) fourth, the Servicing Fee for that Collection Period;
(e) fifth, the Manager's Fee for that Collection Period;
(f) sixth, the Custodian Fee for that Collection Period;
(g) seventh, pari passu any fee or expenses payable to the Principal
Paying Agent, any other Paying Agent or the Calculation Agent
under the Agency Agreement;
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(h) eighth, any costs, charges or expenses (other than fees) incurred
by, and any liabilities owing under any indemnity granted to, any
Note Manager, the Manager, the Security Trustee, the Servicer,
the Note Trustee, a Paying Agent or the Calculation Agent in
relation to the Trust under the Transaction Documents, for that
Collection Period; and
(i) ninth, any amounts payable to the Currency Swap Provider under
clause 5.19(b),
all of the amounts in paragraphs (a) to (i) (inclusive) being Expenses
for the purposes of the Master Trust Deed.
US$ Account means, in relation to the Trust, the US$ account opened
with the Principal Paying Agent or any other account opened and
maintained outside Australia, with the Principal Paying Agent so long
as the Principal Paying Agent is an Approved Bank.
US$ Equivalent means:
(a) 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
(b) in relation to an amount denominated in US$ the amount of US$.
US$ Exchange Rate means, on any date, the rate of exchange (set as at
the commencement of the Currency Swap) applicable under the Currency
Swap for the exchange of Australian dollars for United States dollars.
2.2 Interpretation
Clause 1.2 of the Master Trust Deed is incorporated into this
Supplementary Terms Notice as if set out in full, except that any
reference to Deed is replaced by a reference to Supplementary Terms
Notice and any reference to United States dollars, USD and US$ is to
currency of the United States of America.
2.3 Limitation of liability
(a) General
Clause 30 of the Master Trust Deed applies to the obligations and
liabilities of the Trustee and the Manager under this
Supplementary Terms Notice.
(b) Liability of Trustee limited to its right of indemnity
(i) The Trustee enters into this Supplementary Terms Notice only
in its capacity as trustee of the Trust and in no other
capacity (except where the Transaction Documents provide
otherwise). Subject to paragraph (iii) below, a liability
arising under or in connection with this Supplementary Terms
Notice or the Trust can be enforced against the Trustee only
to the extent to which it can be satisfied out of the assets
and property of the Trust which are available to satisfy the
right of
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the Trustee to be exonerated or indemnified for the
liability. This limitation of the Trustee's liability
applies despite any other provision of this Supplementary
Terms 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 Supplementary Terms Notice or the Trust.
(ii) Subject to paragraph (iii) below, no person (including any
Relevant Party) may take action against 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 2.3 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 or exoneration out of the Assets
of the Trust as a result of the Trustee's fraud, negligence,
or Default.
(iv) It is acknowledged that the Relevant Parties are responsible
under this Deed or 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 Default of the Trustee for
the purpose of paragraph (iii) above to the extent to which
the act or omission was caused or contributed to by any
failure by any Relevant Party or any person who has been
delegated or appointed by the Trustee in accordance with the
Transaction Documents to fulfil its obligations relating to
the Trust or by any other act or omission of a Relevant
Party or any such person.
(v) In exercising their powers under the Transaction Documents,
each of the Trustee, the Security Trustee and the
Noteholders must ensure that no attorney, agent, delegate,
receiver or receiver and manager appointed by it in
accordance with this Supplementary Terms Notice or any other
Transaction Documents 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 Default of the Trustee for
the purpose of paragraph (iii) above.
(vi) In this clause, Relevant Parties means each of the Manager,
the Servicer, the Custodian, the Calculation Agent, each
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Paying Agent, the Note Trustee and the provider of any
Support Facility.
(vii) Nothing in this clause limits the obligations expressly
imposed on the Trustee under the Transaction Documents.
2.4 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.
3. Direction and Trust Back
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(a) A Trust Back, entitled Crusade Global Trust Back No. 1 of 1999,
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.
4. Notes
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4.1 Conditions of Notes
(a) The conditions of the Class B Notes will be as set out in the
Master Trust Deed, as supplemented and amended by the provisions
set out in this Supplementary Terms Notice.
(b) The conditions of the Class A Notes will be as set out in the
Master Trust Deed, the Conditions, the Note Trust Deed and this
Supplementary Terms Notice.
4.2 Summary of conditions of Notes
Under clause 6.3 of the Master Trust Deed, the Manager provides the
following information in respect of the Notes.
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(a) Class of Note: There will be the following Classes of
Notes. Under the Transaction document
each shall be treated as a separate Class
of Notes:
(i) Class A-1 Notes
(ii) Class A-2 Notes
(iii) Class A-3 Notes
(iv) Class B Notes.
(b) Total Initial Invested (i) Class A-1 Notes - US$300,000,000
Amount of each Class of
Notes: (ii) Class A-2 Notes - US$569,000,000
(iii) Class A-3 Notes - US$125,000,000
(iv) Class B Notes - A$[ ]
(c) Manner and order in As set out in clause 5
which principal and
interest is to be paid
on Notes:
(d) Margin: Up to, but excluding, the Quarterly
Payment Date falling in November 2006,
the following percentages per annum in
respect of each Class:
Class A-1 Notes [ ]% per annum
Class A-2 Notes [ ]% per annum
Class A-3 Notes [ ]% per annum
Class B Notes [ ]% per annum,
and for each Interest Period following
the Quarterly Payment Date in November
2006, the Step-Up Margin in respect of
that Class.
(e) Initial Invested Class A-1 Notes: US$100,000 per Note.
Amount:
Class A-2 Notes: US$100,000 per Note.
Class A-3 Notes: US$100,000 per Note.
Class B Notes: A$[*] per Note.
(f) Rating: (i) Class A Notes - AAA long term
credit rating from S&P, Aa1 long
term credit rating from Moody's
and AAA long term credit rating
from Fitch IBCA.
(ii) Class B Notes - AAA- long term
credit rating from S&P, Aa1 long
term credit rating from Moody's
and AAA- long term credit rating
from Fitch IBCA.
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(g) Issue Price: (i) Class A-1 Notes - issued at 100
per cent.
(ii) Class A-2 Notes - issued at 100
per cent.
(iii) Class A-3 Notes - issued at 100
per cent.
(iv) Class B Notes - issued at 100 per
cent.
(h) Quarterly Payment (i) Class A Notes - the 15th day of
Dates: November, February, May and August
in each year (New York time)
(ii) Class B Notes - the 15th day of
November, February, May and August
(Sydney time)
(iii) If, in either case, that day is
not a Business Day, the Quarterly
Payment Date shall be adjusted in
accordance with the Modified
Following Business Day Convention.
The first Quarterly Payment Date
for the Class A Notes will be 15
November 1999 (New York time) and
the first Quarterly Payment Date
for the Class B Notes will be 15
November 1999 (Sydney time). In
each case, the final Quarterly
Payment Date is the earlier of the
applicable Final Maturity Date and
the Payment Date on which the
Notes are redeemed in full or, in
the case of the Class A Notes,
repurchased under the Conditions.
(i) Final Maturity Date: (i) Class A-1 Notes - the Quarterly
Payment Date falling in August
2009
(ii) Class A-2 Notes - the Quarterly
Payment Date falling in May 2021
(iii) Class A-3 Notes - the Quarterly
Payment Date falling in February
2030
(iv) Class B Notes - the Quarterly
Payment Date falling in February
2030
(v) In each case, the date specified
shall be subject to adjustment in
accordance with the Modified
Following Business Day Convention.
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4.3 Issue of Notes
(a) Class A Notes must be issued in amounts, or on terms, such 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 Exchange Act,
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.
(b) Class B Notes must be issued in minimum parcels or subscriptions
which have an aggregate Initial Investment Amount of A$500,000 or
must otherwise be issued on terms that they will constitute an
excluded issue of securities for the purpose of the Corporations
Law.
4.4 Trustee's Covenant to Noteholders and the Note Trustee
Subject to the terms of the Master Trust Deed and this Supplementary
Terms Notice, the Trustee:
(a) acknowledges its indebtedness in respect of the Invested Amount
of each Note and interest thereon;
(b) covenants for the benefit of each Noteholder and the Note Trustee
that it will (subject to receiving any directions required under
and given in accordance with the Transaction Documents):
(i) make all payments on or in respect of the Notes held by that
Noteholder on the due date for payment;
(ii) comply with the terms of this Supplementary Terms Notice and
the Transaction Documents to which it is a party; and
(iii) pay the Stated Amount in relation to the Notes held by that
Noteholder on the Final Maturity Date and accrued and unpaid
interest thereon.
4.5 Repayment of Notes on Payment Dates
(a) On each Quarterly 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 Quarterly
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 Class B Notes will be made in
Australian Dollars.
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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) the date upon which the relevant Noteholder renounces in writing
all of its rights to any amounts payable under or in respect of
that Note;
(c) the date on which all amounts received by the Note Trustee with
respect to the enforcement of the Security Trust Deed are paid to
the Principal Paying Agent;
(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 and this
Supplementary Terms Notice; and
(e) the Final Maturity Date.
4.7 Period During Which Interest Accrues
Each Note bears interest calculated and payable in arrears in
accordance with this Supplementary Terms Notice from the Closing Date
to the date upon which that Note is finally redeemed under clause 4.6.
4.8 Calculation of Interest
(a) Subject to paragraph (b) and (d), interest payable on each Note
in respect of each Interest Period is calculated:
(i) on a daily basis at the applicable Interest Rate;
(ii) on the Invested Amount of that Note as at the first day of
that Interest Period; and
(iii) on the basis of the actual number of days in that Interest
Period and a year of 365 days (in the case of Class B 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 (provided that interest shall thereafter begin to
accrue from (and including) any date on which the Stated
Amount of that Note becomes greater than zero); or
(ii) if the Stated Amount of the Note on the due date for
redemption in full of the Note is not zero, the due date for
redemption of the Note, unless after the due date for
redemption, payment of principal due is improperly withheld
or refused, following which interest shall continue to
accrue
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on the Invested Amount of the Note at the rate from time to
time applicable to the Note until the later of:
(A) the date on which the moneys in respect of that 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; and
(B) the Stated Amount of that Note has been reduced to
zero, provided that interest shall thereafter begin to
accrue from (and including) any date on which the
Stated Amount of that Note becomes greater than zero.
(c) All payments of interest on Class A Notes will be made in United
States dollars.
(d) All payments of interest on Class B Notes will be made in
Australian dollars.
(e) If Interest is not paid in respect of 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 on that Note until the
unpaid Interest, and interest on it, is available for payment
and:
(i) in the case of the Class A Notes, notice of that
availability has been duly given in accordance with
Condition 12; or
(ii) in the case of the Class B Notes, there is full satisfaction
of those amounts, to be determined in accordance with clause
32.4 of the Master Trust Deed (as amended in accordance with
this Supplementary Terms Notice).
4.9 Step-Up Margin
If the Trustee has not repurchased or redeemed all of a Class of the
Class A Notes on or before:
(a) in the case of the Class A-1 Notes, November 2006;
(b) in the case of the Class A-2 Notes, November 2006;
(c) in the case of the Class A-3 Notes, November 2006;
the Margin for that Class on and from that date will be the following
percentages per annum (each a Step-Up Margin):
(i) in the case of the Class A-1 Notes, [*]%;
(ii) in the case of the Class A-2 Notes, [*]%; and
(iii) in the case of the Class A-3 Notes, [*]%.
4.10 Aggregate receipts
Notwithstanding anything in clauses 5.4 and 5.5, no Noteholder will be
entitled to receive aggregate principal under any of those clauses on
any Note at any time in excess of the Invested Amount for that Note at
that time.
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The Trustee, the Manager, the Note Trustee, the Security Trustee and
the Paying Agents may treat the Noteholder as the absolute owner of
that Note (whether or not that Note is overdue and despite any
notation or notice to the contrary or writing on it or any notice of
previous loss or theft of it or of trust or other interest in it) for
the purpose of making payment and for all other purposes.
5. Cashflow Allocation Methodology
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5.1 Total Available Funds
(a) (Monthly) Subject to paragraph (b), on each Monthly Payment Date
(other than a Quarterly Payment Date) and based on the
calculations, instructions and directions provided to it by the
Manager, the Trustee must pay out of Total Available Funds, in
relation to the Monthly Collection Period ending immediately
before that Monthly Payment Date, the following amounts in the
following order of priority:
(i) first, an amount equal to any Accrued Interest Adjustment
required to be paid to the Approved Seller (and each of the
Trustee, the Noteholders and the other Creditors that have
the benefit of the Security Trust Deed acknowledges and
agrees that it has no entitlement to the moneys comprising
the Accrued Interest Adjustment) provided that the total
amount of Accrued Interest Adjustments with respect to any
Quarterly Collection Period (other than the Quarterly
Collection Period ending on 15 November 2000) shall not
exceed an amount equal to 0.15% multiplied by the aggregate
Housing Loan Principal of the Purchased Receivables on the
first day of that Quarterly Collection Period multiplied by
the actual number of days in that Quarterly Collection
Period divided by 365;
(ii) second, repayment to the Mortgage Insurer of any payment in
the nature of income received from an Obligor for which the
Mortgage Insurer previously paid under the relevant Mortgage
Insurance Policy by way of timely payment cover;
(iii) third, any interest payable by the Trustee under the Redraw
Facility Agreement; and
(iv) fourth, any repayment of a Liquidity Draw made on or prior
to the previous Monthly Payment Date.
(b) (Limit) The Trustee shall only make a payment under any of
sub-paragraphs (a)(i) to (a)(iv) inclusive if it is directed in
writing to do so by the Manager and only 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) (Quarterly) Subject to paragraph (d), on each Quarterly Payment
Date, and based on the calculations, instructions and directions
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provided to it by the Manager, the Trustee must pay or cause to
be paid out of Total Available Funds, in relation to the
Quarterly Collection Period ending immediately before that
Quarterly Payment Date, the following amounts in the following
order of priority:
(i) first, subject to clause 5.1(a)(i), an amount equal to any
Accrued Interest Adjustment required to be paid to the
Approved Seller (and each of the Trustee, the Noteholders
and the other Creditors that have the benefit of the
Security Trust Deed acknowledges and agrees that it has no
entitlement to the moneys comprising the Accrued Interest
Adjustment);
(ii) second, repayment to the Mortgage Insurer of any payment in
the nature of income received from an Obligor for which the
Mortgage Insurer previously paid under the relevant Mortgage
Insurance Policy by way of timely payment cover;
(iii) third, payment to the Swap Provider under the Interest Rate
Swap of any Break Payments received by or on behalf of the
Trustee from an Obligor or the Mortgage Insurer during the
Quarterly Collection Period;
(iv) fourth, (unless specified later in this clause 5.1(c)),
Trust Expenses which have been incurred prior to that
Quarterly Payment Date and which have not previously been
paid or reimbursed under an application of this clause 5.1
(in the order of priority set out in the definition of Trust
Expenses);
(v) fifth, pari passu and rateably as between themselves:
(A) any fees payable by the Trustee under the Redraw
Facility Agreement; and
(B) any fees payable by the Trustee under an Interest
Hedge;
(vi) sixth, without duplication, any amounts that would have been
payable under this clause 5.1(c) (other than under
sub-paragraph (x)) on any previous Quarterly Payment Date,
if there had been sufficient Total Available Funds, which
have not been paid by the Trustee and in the order they
would have been paid under that prior application of this
clause 5;
(vii) seventh, payment to the Mortgage Insurer of an amount equal
to the greater of the following:
(A) zero; and
(B) the difference between any overpayment by the Mortgage
Insurer of amounts in respect of income (for which the
Mortgage Insurer has not previously been reimbursed)
and the aggregate of the Excess Distributions paid to
the Beneficiary on previous Quarterly Payment Dates
under clause 5.3(a);
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\ (viii) eighth, pari passu and rateably as between themselves:
(A) any interest payable by the Trustee under the Redraw
Facility Agreement;
(B) any amounts payable by the Trustee under an Interest
Hedge not included in (iii) or (v) above;
(C) any repayment of a Liquidity Draw made on or prior to
the previous Monthly Payment Date; and
(D) the payment to the Currency Swap Provider under each
Confirmation relating to Class A Notes of the A$ Class
A Interest Amount payable under that Confirmation at
that date;
(ix) ninth, any amounts that would have been payable under
sub-paragraph (x) on any previous Quarterly Payment Date, if
there had been sufficient Total Available Funds, which have
not been paid by the Trustee;
(x) tenth, the payment to the Class B Noteholders of the Class B
Interest amount as at that date; and
(xi) eleventh, payment to the Mortgage Insurer of an amount equal
to any overpayment by the Mortgage Insurer of amounts in
respect of income (for which the Mortgage Insurer has not
previously been reimbursed).
(d) The Trustee shall only make a payment under any of sub-paragraphs
(c)(i) to (c)(xi) inclusive if it is directed in writing to do so
by the Manager and only 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.
5.2 Excess Available Income - Reimbursement of Charge Offs and Principal
Draws
(a) Subject to paragraph (b), on each Quarterly Determination Date,
the Manager must apply any Excess Available Income for the
Quarterly Collection Period relating to that Quarterly
Determination Date in the following order of priority:
(i) first, the Excess Available Income must be applied in
reimbursement of all Principal Charge Offs for that
Quarterly 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 Redraw
Principal Outstanding and the A$ Equivalent of the Stated
Amount of the Class A Notes, as the case may be):
(A) as a payment, to the Currency Swap Provider under a
Confirmation relating to the Class A Notes, of the A$
Equivalent of any Carryover Class A Charge Offs; and
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(B) as a repayment under the Redraw Facility Agreement, as
a reduction of, and to the extent of, the Carryover
Redraw Charge Offs;
(iii) third, the balance of the Excess Available Income (after
application under paragraphs (i) and (ii)) must be applied
to all Principal Draws which have not been repaid as at that
Quarterly Payment Date; and
(iv) fourth, the balance of the Excess Available Income (after
application under paragraphs (i) to (iii) (inclusive)) must
be applied in or towards reinstating the Stated Amount of
the Class B Notes to the extent of any Carryover Class B
Charge Offs.
Any amount applied pursuant to sub-paragraphs (i) to (iv)
(inclusive) above will be treated as Principal Collections to the
extent of that application and in the case of amounts paid under
sub-paragraph (ii) or (iv) 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 if it is directed in writing to do so
by the Manager and only 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.
5.3 Excess Distribution
(a) The Trustee must at the written direction of the Manager pay any
Excess Distribution for a Quarterly Collection Period to the
Beneficiary on the relevant Quarterly Payment Date.
(b) The Trustee may not recover any Excess Distributions from the
Beneficiary once they are paid to the Beneficiary except where
there has been a manifest error in the relevant calculation of
the Excess Distributions.
5.4 Principal Distributions
(a) (Monthly) Subject to paragraph (b), on each Monthly Payment Date
(other than a Quarterly Payment Date) and based on the
calculations, instructions and directions provided to it by the
Manager, the Trustee must distribute or cause to be distributed
out of Principal Collections, in relation to the Monthly
Collection Period ending immediately before that Monthly Payment
Date, the following amounts in the following order of priority:
(i) first, repayment to the Mortgage Insurer of any payment in
the nature of principal received from an Obligor for which
the Mortgage Insurer previously paid under the relevant
Mortgage Insurance Policy by way of timely payment cover;
(ii) second, to allocate to Total Available Funds any Principal
Draw calculated in accordance with clause 5.6;
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(iii) third, to retain in the Collection Account as a provision
such amount as the Manager determines is appropriate to make
for any anticipated shortfalls in payments under clause 5.1
on the following Monthly Payment Date or Quarterly Payment
Date; and
(iv) fourth, subject to clause 5.5(d), to repay all Redraw
Principal Outstanding under the Redraw Facility Agreement on
that Payment Date.
(b) (Monthly Limit) The Trustee shall only make a payment under any
of sub-paragraphs (a)(i) to (a)(iv) inclusive if it is directed
in writing to do so by the Manager and only to the extent that
any Principal Collections remain from which to make the payment
after amounts with priority to that payment have been
distributed.
(c) (Quarterly) Subject to paragraph (d), on each Quarterly Payment
Date, and based on the calculations, instructions and directions
provided to it by the Manager, the Trustee must distribute or
cause to be distributed out of Principal Collections, in relation
to the Quarterly Collection Period ending immediately before that
Quarterly Payment Date, the following amounts in the following
order of priority:
(i) first, repayment to the Mortgage Insurer of any payment in
the nature of principal received from an Obligor for which
the Mortgage Insurer previously paid under the relevant
Mortgage Insurance Policy by way of timely payment cover;
(ii) second, to allocate to Total Available Funds any Principal
Draws calculated in accordance with clause 5.6;
(iii) third, to retain in the Collection Account as a provision
such amount as the Manager determines is appropriate to make
for any anticipated shortfalls in payments under clause 5.1
on the following Monthly Payment Date or Quarterly Payment
Date;
(iv) fourth, subject to clause 5.5(d), to repay any Redraws
provided by the Approved Seller in relation to Purchased
Receivables in accordance with clause 5.5 to the extent that
it has not previously been reimbursed in relation to those
Redraws;
(v) fifth, to repay all Redraw Principal Outstanding under the
Redraw Facility Agreement on that Quarterly Payment Date;
(vi) sixth, to retain in the Collection Account as a provision to
reimburse further Redraws an amount equal to the Redraw
Retention Amount for the next Quarterly Collection Period;
(vii) seventh, as a payment to the Currency Swap Provider under a
Confirmation relating to the Class A-1 Notes, of an amount
equal to the lesser of:
(A) the amount available for distribution under this
sub-paragraph (vii) after all payments which have
priority under this paragraph (c); and
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(B) the A$ equivalent of the Class A Invested Amounts for
all Class A-1 Notes
(viii) eighth, as a payment to the Currency Swap Provider under a
Confirmation relating to the Class A-2 Notes, of an amount
equal to the lesser of:
(A) the amount available for distribution under this
sub-paragraph (viii) after all payments which have
priority under this paragraph (c); and
(B) the A$ Equivalent of the Class A Invested Amounts for
all Class A-2 Notes.
(ix) ninth, as a payment to the Currency Swap Provider under a
Confirmation relating to the Class A-3 Notes, of an amount
equal to the lesser of:
(A) the amount available for distribution under this
sub-paragraph (ix) after all payments which have
priority under this paragraph (c); and
(B) the A$ Equivalent of the Class A Invested Amounts for
all Class A-3 Notes.
(x) tenth, as payment to the Class B Noteholders, of an amount
equal to the lesser of:
(A) the amount available for distribution under this
sub-paragraph (x) after all payments which have
priority under this clause 5.4; and
(B) the Invested Amounts in respect of all Class B Notes.
(d) (Quarterly Limit) The Trustee shall only make a payment under any
of sub-paragraphs (c)(i) to (c)(x) inclusive if it is directed in
writing to do so by the Manager and only to the extent that any
Principal Collections remain from which to make the payment after
amounts with priority to that payment have been distributed.
(e) (Final Maturity Date) On the Business Day immediately following
the date on which all Secured Moneys (as defined in the Security
Trust Deed) are fully and finally repaid, and only after payment
of all amounts referred to in paragraphs (a) and (c), the Trustee
must pay any Principal Collections which remain available to the
Approved Seller in reduction of the Principal Outstanding (as
defined in the Seller Loan Agreement) as a full and final
settlement of the obligations of the Trustee under the Seller
Loan Agreement.
5.5 Redraws
(a) The Approved Seller, after receiving confirmation that it may do
so from the Manager, may make Redraws to Obligors under Purchased
Receivables so that the then scheduled principal balance of those
Purchased Receivables is not exceeded.
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(b) The Trustee and the Manager irrevocably authorise the Approved
Seller to deduct from Gross Principal Collections to reimburse
itself in relation to any Redraw for which it has not previously
been reimbursed under this clause 5.5(b) or clause 5.5(d).
(c) On each Quarterly Determination Date the Manager shall determine
an amount, not exceeding 2% of the total Invested Amount of all
Notes, which it reasonably anticipates will be required in the
Quarterly Collection Period in which that Quarterly Determination
Date occurs to fund further Redraws under Purchased Receivables
in addition to any prepayments of principal that it anticipates
will be received from Obligors during that Quarterly Collection
Period. That amount, from time to time, less amounts withdrawn or
deposited as described in this clause 5.5, is called the Redraw
Retention Amount. The Manager shall on the day of such
determination advise the Trustee of the amount so determined.
(d) In addition to the Approved Seller's right of reimbursement under
clause 5.5(b), the Trustee shall on each Business Day it receives
a direction from the Manager to do so, reimburse the Approved
Seller for Redraws made on or before that Business Day for which
it has not received reimbursement but only to the extent of the
aggregate of:
(i) the Redraw Retention Amount for that Quarterly Collection
Period to the extent it has been funded under clause
5.4(c)(vi); and
(ii) any amount which the Manager is entitled to direct the
Trustee to draw under the Redraw Facility Agreement at that
time.
(e) If the Manager determines on any Business Day that there is a
Redraw Shortfall, the Manager may on that date direct in writing
the Trustee to make a drawing under the Redraw Facility Agreement
on that or any other Business Day equal to the amount which the
Trustee is permitted to draw under clause 3.1(c) of the Redraw
Facility Agreement at that time.
5.6 Determination Date - Payment Shortfall
If the Manager determines on any Monthly Determination Date that there
is a Payment Shortfall for the relevant Monthly Collection Period the
Manager must direct the Trustee to pay out of Principal Collections,
as a principal distribution under clause 5.4, 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 Monthly Payment Date following that Monthly Determination
Date.
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5.7 Monthly Determination Date - Liquidity Shortfall
(a) If the Manager determines on any Monthly Determination Date that
there is a Liquidity Shortfall for the relevant Monthly
Collection Period the Manager must on that date direct the
Trustee to make a Liquidity Draw on or before the Monthly Payment
Date following that Monthly Determination Date equal to the
Liquidity Shortfall provided that if the balance of the Liquidity
Account at the time of the direction by the Manager is less than
the Liquidity Shortfall, the Liquidity Draw referred to in the
direction shall be in respect only of the balance of the
Liquidity Account.
(b) The Trustee must, if so directed by the Manager make that
Liquidity Draw and have the proceeds of the Liquidity Draw
deposited or transferred into the Collection Account on or before
such Monthly Payment Date. The Manager must deal with the amount
so deposited in accordance with this clause 5.
(c) The Trustee shall maintain the Liquidity Account as an interest
bearing account in accordance with the Transaction Documents
(including clause 21 of the Master Trust Deed). The Manager shall
not direct the Trustee to, and the Trustee shall not make any
withdrawal from the Liquidity Account except for the following
purposes:
(i) to make or fund a Liquidity Draw in accordance with this
clause 5;
(ii) to transfer the credit balance of the Liquidity Account in
accordance with clause 21.1(d) of the Master Trust Deed;
(iii) to pay financial institutions duty, bank accounts debit tax
or equivalent Taxes payable in respect of the Liquidity
Account;
(iv) to the extent that the credit balance of the Liquidity
Account exceeds the Liquidity Reserve, to distribute that
excess as a Gross Principal Collection in accordance with
this clause 5; and
(v) to distribute on the Final Maturity Date or on the date the
Notes are fully and finally redeemed the credit balance of
the Liquidity Account as a Gross Principal Collection in
accordance with this clause 5.
5.8 Allocating Liquidation Losses
On each Quarterly Determination Date, the Manager must determine, in
relation to the aggregate of all Liquidation Losses arising during
that Quarterly 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
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(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.
5.9 Insurance claims
(a) If, on any Monthly Determination Date, the Manager determines
that there has been a Liquidation Loss in relation to a Purchased
Receivable during the immediately preceding Monthly Collection
Period, the Manager shall direct the Servicer (if the Servicer
has not already done so), promptly, and in any event so that the
claim is made within the time limit specified in the relevant
Mortgage Insurance Policy for that Purchased Receivable without
the amount of the claim becoming liable to be reduced by reason
of delay, to make a claim under the relevant Mortgage Insurance
Policy.
(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 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.
(c) The Manager shall use best endeavours to ensure that the Servicer
promptly makes any claims required by way of timely payment cover
under a Mortgage Insurance Policy in accordance with clause
3.1(f) of the Servicing Agreement.
5.10 Payments before Payment Date
(a) Subject to the Transaction Documents, by no later than 4.00 pm
(Sydney time) on the Remittance Date for a Collection Period, the
Manager must deposit or use its best endeavours to procure that
the Servicer deposits, in the Collection Account all Available
Income and Principal Collections for that Collection Period to
the extent received on or before that date.
(b) The Manager must direct the Trustee to:
(i) apply amounts credited to the Collection Account in making
payments in discharge of the Trustee's obligations under
this clause 5; and
(ii) make the applications and reinstatements required or
contemplated by this clause 5,
in each case, under and in accordance with this clause 5.
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5.11 Charge Offs
If the Principal Charge Offs for any Quarterly Collection Period
exceeds the Excess Available Income calculated on the Quarterly
Determination Date for that Quarterly Collection Period, the Manager
must, on and with effect from the Quarterly Payment Date immediately
following the end of the Quarterly Collection Period:
(a) reduce pari passu and rateably as between themselves 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 the Class A Notes and the Redraw
Facility Agreement with respect to the balance of that excess:
(i) rateably as between each of the Class A Notes, the Class A
Stated Amount on each of the Class A Notes until the Class A
Stated Amount of that Class A Note is zero (Class A Charge
Offs); and
(ii) the Redraw Principal Outstanding under the Redraw Facility
Agreement applied against Redraw Advances (as defined in the
Redraw Facility Agreement) in reverse chronological order of
their Drawdown Dates (as defined in the Redraw Facility
Agreement), until the Redraw Principal Outstanding is zero
(Redraw Charge Offs).
5.12 Payments into US$ Account
(a) The Trustee shall direct the Currency Swap Provider to pay all
amounts denominated in US$ payable to the Trustee by the Currency
Swap Provider under the Currency Swap into the US$ Account or to
the Principal Paying Agent under the Agency Agreement on behalf
of the Trustee.
(b) If any of the Trustee, the Manager or the Servicer receives any
amount denominated in US$ from the Currency Swap Provider under
the Currency Swap they will promptly pay that amount to the
credit of the US$ Account.
5.13 Payments out of US$ Account
(a) The Trustee shall, on the direction of the Manager, or shall
require that the Principal Paying Agent 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.
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(b) All amounts credited to the US$ Account by the Currency Swap
Provider in relation to a payment by the Trustee in no order of
priority:
(i) under clause 5.1(c)(vi) and (c)(viii)(D), will be paid pari
passu in relation to Class A Notes as payments of Class A
Interest on those Class A Notes;
(ii) under clause 5.2(a)(ii)(A), 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) amounts credited under clause 5.4(c)(vii), pari passu to
Class A-1 Noteholders as Class A Principal Payments on the
Class A-1 Notes until the Class A Invested Amounts of the
Class A-1 Notes have been reduced to zero;
(iv) amounts credited under clause 5.4 (c)(viii) pari passu to
Class A-2 Noteholders as Class A Principal payments on the
Class A-2 Notes until the Class A Invested Amounts of the
Class A-2 Notes have been reduces to zero; and
(v) amounts credited under clause 5.4(c) (ix) pari passu to
Class A-3 Noteholders as Class A Principal payments on the
Class A-3 Notes until the Class A Invested Amounts of the
Class A-3 Notes have been reduced to zero.
5.14 Rounding of amounts
In making the calculations required or contemplated by this clause 5,
the Manager shall round calculations to four decimal places, except
that all monetary amounts shall be rounded down to the nearest cent or
as otherwise required in this Supplementary Terms Notice.
5.15 Manager's Report
The Manager will provide to the Trustee, the Note Trustee and the
Designated Ratings Agencies, the Manager's Report for a Collection
Period no later than 4.00pm (Sydney time) on the Remittance Date
following that Collection Period.
5.16 Payment Priorities Following an Event of Default: Security Trust Deed
Following an Event of Default as defined in the Security Trust Deed,
the priority of payments with respect to the Trust will be governed by
the Security Trust Deed.
5.17 Prescription
Despite any other provision of this Supplementary Terms 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.
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5.18 Accounting Procedures: Principal & Interest
To facilitate the implementation of this Cashflow Allocation
Methodology, the Manager will keep accounting records in accordance
with the Transaction Documents and will keep separate ledgers,
including a "Principal Account", "Income Account" and "Cash Account",
into which credit and debit entries will be made to record receipts
and payments of principal, income or amounts unallocated at the
relevant time.
5.19 Replacement of Currency Swap
(a) If the Currency Swap is terminated, the Trustee must at the
direction of the Manager enter into one or more currency swaps
which replace the Currency Swap (other than by way of transfer
under section 6(b) of the Currency Swap) (collectively a
Replacement Currency Swap) but only on the condition:
(i) that the Settlement Amount (as defined in the Currency
Swap), if any, which is payable by the Trustee to the
Currency Swap Provider on termination of the Currency Swap
will be paid in full when due in accordance with this
Supplementary Terms Notice and the Currency Swap;
(ii) the ratings assigned to the Notes are not adversely
affected; and
(iii) the liability of the Trustee under that Replacement
Currency Swap is limited to at least the same extent that
its liability is limited under the Currency Swap.
(b) If the condition in paragraph (a) is satisfied, the Trustee must
at the direction of the Manager enter into the Replacement
Currency Swap and if it does so it must direct the provider of
the Replacement Currency Swap to pay any upfront premium to enter
into the Replacement Currency Swap due to the Trustee directly to
the Currency Swap Provider in satisfaction of and to the extent
of the Trustee's obligation to pay the Settlement Amount to the
Currency Swap Provider as referred to in paragraph (a). If the
Settlement Amount (if any) is payable by the Currency Swap
Provider to the Trustee, the Manager shall direct the Currency
Swap Provider to pay such amount direct to the Replacement
Currency Swap Provider in satisfaction of any upfront premium to
enter into the Replacement Currency Swap. Where the upfront
premium payable upon entry into the Replacement Currency Swap is:
(i) payable by the Trustee to the Replacement Swap Provider,
then the:
(A) excess of the Settlement Amount over the upfront
premium will be included as Available Income for the
relevant Collection Period; and
(B) excess of the upfront premium payable over the
Settlement Amount will be satisfied by the Trustee as a
Trust Expense; and
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(ii) payable by the Replacement Swap Provider to the
Trustee, then the:
(A) excess of the Settlement Amount over the upfront
premium will be satisfied by the Trustee as a
Trust Expense; and
(B) excess of the upfront premium over the Settlement
Amount will be included as Available Income for
the relevant Collection Period.
5.20 Notice of calculations
The calculations outlined in this clause 5, or required to be made by
the Manager under any Condition, must be made by the Manager and
notified to the Trustee on each Determination Date. The Manager must
also notify the Trustee of all details of payments which are to be
made by or on behalf of the Trustee on each Payment Date. The Manager
must also notify the Currency Swap Provider of all payments which are
to be made by or on behalf of the Trustee on each Quarterly Payment
Date under clauses 5.1(c)(vi), 5.1(c)(viii)(D), 5.2(a)(ii)(A),
5.4(c)(vii), 5.4(c)(viii) and 5.4(c)(ix) on each relevant Quarterly
Determination Date. In the absence of manifest error, each of the
Trustee and the Currency Swap Provider is entitled to rely
conclusively on (and will rely on) the Manager's calculations and
notifications and is not required to (and it will not) investigate the
accuracy of them.
5.21 Bond Factors
(a) On each Quarterly Determination Date, the Manager will, in
respect of the Collection Period ending before that Quarterly
Determination Date, calculate or otherwise ascertain the Class A
Bond Factors and the Class B Bond Factor.
(b) The Manager shall notify all Class B Noteholders, the Principal
Paying Agent, the Note Trustee and the Calculation Agent as soon
as practicable after (and in any event by not later than the
Quarterly Payment Date immediately following) the relevant
Quarterly Determination Date of the relevant Class A Bond Factors
and the Class B Bond Factor.
5.22 Loan Offset Interest
On each Monthly Determination Date, the Approved Seller shall pay to
the Trustee an amount equal to all Loan Offset Interest Amounts for
the Monthly Collection Period immediately preceding that Monthly
Determination Date.
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6. Master Trust Deed and Servicing Agreement
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6.1 Completion of details in relation to Master Trust Deed
(a) (Manager fee)
For the purpose of clause 15 of the Master Trust Deed, the fee
payable to the Manager in respect of the Trust for each Quarterly
Collection Period will be an amount calculated:
(i) on the aggregate Housing Loan Principal of the Purchased
Receivables on the first day of that Quarterly Collection
Period;
(ii) at the rate of [0.09%] per annum or as otherwise agreed by
the Manager and the Trustee from time to time; and
(iii) on the actual number of days in the Quarterly Collection
Period divided by 365 days,
and shall accrue due from day to day. That fee is payable in
Australian dollars.
(b) (Trustee's Fee and Security Trustee's Fee)
(i) For the purpose of clause 19.1 of the Master Trust Deed and
11.2 of the Security Trust Deed, the combined fee payable to
the Trustee and the Security Trustee in respect of the Trust
for each Quarterly Collection Period will be an amount
calculated:
(A) on the aggregate Housing Loan Principal of the
Purchased Receivables on the first day of that
Quarterly Collection Period;
(B) at the rate of 0.032% per annum or as otherwise agreed
by the Manager, the Trustee and the Security Trustee
from time to time; and
(C) on the actual number of days in the Quarterly
Collection Period divided by 365 days,
and shall accrue due from day to day. That fee is payable in
Australian dollars.
(ii) If the Trustee or the Security Trustee (as the case may
be) is required at any time to undertake duties which
relate to the enforcement of the terms of any
Transaction Document by the Trustee or Security Trustee
(as the case may be) upon a default by any other party
under the terms of that Transaction Document, the
Trustee or Security Trustee (as the case may be) is
entitled to such additional remuneration as may be
agreed between the Trustee or the Security Trustee (as
the case may be) and the Manager or, failing agreement,
such amount as is determined by a merchant bank (acting
as an expert and not as an arbitrator) selected by the
Trustee or the
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Security Trustee (as the case may be). The
determination of such merchant bank shall be
conclusive and binding on the Manager and the Trustee
or the Security Trustee (as the case may be) so far as
the law allows.
(c) (Servicing fee)
For the purpose of clause 6.1 of the Servicing Agreement, the fee
payable to the Servicer in respect of the Trust for each
Quarterly Collection Period will be an amount calculated:
(i) on the aggregate Housing Loan Principal of the Purchased
Receivables on the first day of that Quarterly Collection
Period;
(ii) at the rate of [0.40%] per annum or as otherwise agreed by
the Manager, the Trustee and the Servicer from time to time;
and
(iii) on the actual number of days in the Quarterly Collection
Period divided by 365 days,
or as otherwise agreed by the Trustee, the Manager and the
Servicer. That fee shall accrue due from day to day. That fee is
payable in Australian dollars.
(d) (Custodian fee)
For the purpose of clause 6.1 of the Custodian Agreement, the fee
payable to the Custodian in respect of the Trust for each
Quarterly Collection Period will be an amount calculated:
(i) on the aggregate Housing Loan Principal of the Purchased
Receivables on the first day of that Quarterly Collection
Period;
(ii) at the rate of [0.015%] per annum or as otherwise agreed by
the Manager, the Trustee and the Custodian from time to
time; and
(iii) on the actual number of days in the Quarterly Collection
Period divided by 365 days,
or as otherwise agreed by the Trustee, the Manager and the
Custodian. That fee shall accrue due from day to day. That fee is
payable in Australian dollars.
(e) (Fee changes to take account of GST)
None of the above fees in this clause 6.1 are to be increased by
reference to any applicable goods and services tax unless:
(i) the Trustee, the 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.
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6.2 Amendments to Master Trust Deed
The Master Trust Deed is amended for the purpose of the Trust as
follows:
(a) Clause 1.1 - Authorised Investment
For the purposes of the definition of Authorised Investment in
clause 1.1 of the Master Trust Deed:
(i) each of the investments in paragraphs (b), (d), (e), (f),
(g), (h), (i) and (j) of that definition must have a rating
of AAA (long term) or A-1+ (short term) (as the case may be)
from S&P, 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 F1+ (short term) (as the case may be) from Fitch
IBCA to be an Authorised Investment for the Trust;
(ii) each of the investments in paragraphs (b) and (d)-(j)
inclusive of that definition must mature no later than the
next Quarterly Payment Date following its acquisition;
(iii) each investment must be denominated in Australian Dollars;
(iv) each investment must be of a type which does not adversely
affect the 50% risk weighting attributed to the Notes by the
Bank of England (as to which the Trustee may rely on
external advice);
(v) each investment must be held by, or in the name of the
Trustee or its nominee; (vi) sub-paragraph (i) is deleted
and replaced with the following:
securities which are "mortgage-backed
securities" within the meaning of both the
Duties Act, 1997 of New South Wales and
the Trustee Act, 1958 of Victoria.
(vii) sub-paragraph (j)(1) is deleted and replaced with the
following:
prescribed for the purposes of
sub-paragraph (d) of the definition of a
"prescribed property" in the Duties Act,
1997 of New South Wales, or are otherwise
included within the definition of "pool of
mortgages" in that Act; and
(viii) the reference to Stamp Duties Act, 1920 in the last
paragraph of that definition is deleted and replaced with
Duties Act, 1997.
(b) Clause 1.1 - Expenses
For the purposes of the definition of Expenses in clause 1.1 of
the Master Trust Deed, a new paragraph (w) is inserted as follows
and the existing paragraph (w) becomes paragraph (x).
"(w) any fees and expenses payable to any Stock
Exchange or DTC from time to time by the
Trustee;"
(c) Clause 1.1 - Extraordinary Resolution
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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" means, in relation to:
(a) the Class B Noteholders, subject to the
provisions of the Security Trust Deed:
(i) a resolution passed at a meeting of
the Class B Noteholders duly
convened and held in accordance
with the provisions contained in
clause 29 of this Master Trust Deed
by a majority consisting of not
less than 75% of the votes able to
be cast by the Class B Noteholders
(cast by show of hands or poll, as
the case may be); or
(ii) a resolution in writing under
clause 29 of this Master Trust Deed
signed by all the Class B
Noteholders;
(b) all Noteholders means, subject to the
provisions of the Security Trust Deed a
resolution passed by Class B Noteholders
duly convened and held in accordance with
the provisions contained in clause 29 of
this Master Trust Deed and by Class A
Noteholders in accordance with the Note
Trust Deed, by majority consisting of not
less than 75% calculated as follows:
(A x I) + U
-----------
T
Where: A = the percentage of Class
B Noteholders voting in
favour of the
resolution;
I = the US$ Equivalent of
the Invested Amount of
all Class B Notes;
U = the aggregate Invested
Amount of the Class A
Noteholders who voted in
favour of the resolution
T = the Total Invested Amount.
(d) Clause 1.1 - Definitions
For the purpose of the Trust, the following new
definitions are inserted, in alphabetical order, in
clause 1.1 of the Master Trust Deed:
Application for Notes means an application
for Class B Notes in the form of schedule 2
to the Supplementary Terms Notice or in such
other form as may from time to time be
agreed between the Trustee and the Manager.
Austraclear means Austraclear Limited.
Austraclear Regulations means the
regulations published by Austraclear.
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Austraclear System means the System as defined in the
Austraclear Regulations.
Marked Note Transfer means a Note Transfer marked
as in accordance with clause 7.15 of this Master
Trust Deed.
Note Acknowledgement means an acknowledgement of
the registration of a person as the holder of a
Class B Note in the form set out in schedule 3 to
this Supplementary Terms Notice or in such other
form as may from time to time be agreed between the
Trustee and the Manager.
Note Transfer means a transfer and acceptance of
Class B Notes materially in the form of schedule 4
to this Supplementary Terms Notice or in such other
form as may from time to time be agreed between the
Trustee and the Manager.
Register means in relation to a Trust, the register
required to be maintained in accordance with clause
28 of this Master Trust Deed.
Representative means:
(i) in the case of any Noteholder, a person
appointed as a proxy for that Noteholder
under clause 29.9; and
(ii) without limiting the generality of paragraph
(a), in the case of a Noteholder which is a
body corporate, a person appointed under
clause 29.10 by the Noteholder."
(e) Clause 1.1 - Guaranteed Investment Contract
For the purposes of the definition of Guaranteed Investment
Contract in clause 1.1 of the Master Trust Deed, the words
"or any equivalent regulations issued under the Duties Act
1997" are inserted at the end of that definition.
(f) 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 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.
(g) Clause 4 - Notes
For the purposes of the Trust, clause 4 in the Master Trust
Deed is deleted and the following new clause 4 is inserted
as follows.
4. Notes
4.1 Acknowledgement of indebtedness
Subject to the terms of this Master Trust Deed and
the Supplementary Terms Notice:
(a) each entry in the Register for a Trust in
respect of a Class B Note relating to the
Trust; and
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(b) in relation to each Class A Note relating to
a Trust, that Class A Note,
constitutes an independent and separate
acknowledgement to the relevant Noteholder by the
Trustee of its indebtedness as trustee of the Trust
for the Invested Amount of that Note together with
the other rights given to Noteholders under this
Master Trust Deed, the Supplementary Terms Notice and
the Security Trust Deed, and (in relation to an Class
A Note) the Note Trust Deed and the relevant
Conditions.
4.2 Legal nature of Notes
(a) Class B Notes will be in the form of
inscribed stock, and the Trustee's
obligations in relation to the Notes and
under this Master Trust and this
Supplementary Terms 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 this Master Trust and this
Supplementary Terms 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.
4.3 Terms of Notes
(a) All Notes issued by the Trustee as trustee
of a Trust shall be issued with the benefit
of, and subject to, this Master Trust Deed,
the relevant Supplementary Terms Notice and
the relevant Security Trust Deed and, in
relation to Class A Notes, the relevant Note
Trust Deed and the relevant Conditions.
(b) The documents referred to in paragraph (a)
are binding on the Manager, the Trustee, the
Note Trustee, the Security Trustee and the
Noteholders.
4.4 Interest and Principal Entitlement of Noteholders
Subject to this Master Trust Deed, the relevant
Supplementary Terms Notice and the relevant
Security Trust Deed and, in relation to Class A
Notes, the relevant 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 a 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) Interest on each Interest Payment
Date; and
(b) (principal) their Principal Entitlement on
each Principal Repayment Date.
4.5 Notes not invalid if issued in breach
No Note shall be invalid or unenforceable on the
ground that it was issued in breach of this Master
Trust Deed, the relevant Supplementary Terms Notice
or any other Transaction Document.
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4.6 Location of Class B Notes
The property in Class B Notes shall for all
purposes be regarded as situated at the place where
the Register on which those Class B Notes are
recorded is located.
4.7 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 Supplementary
Terms Notice relating to the Notes the terms of the
Security Trust Deed (if any) relating to the Trust
and the Note Trust Deed in relation to the Class A
Notes.
4.8 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 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.
(h) Clause 5.3 - Ranking of interest of Beneficiary
For the purposes of clause 5.3 of the Master Trust Deed, the
Trustee may seek and rely upon a direction from the Note
Trustee as to the interests of the Class A Noteholders.
(i) Clauses 6.1 and 6.6(a) - Note Issue Direction
(i) For the purposes of clause 6.1 of the Master Trust
Deed, the Note Issue Direction for the Notes may be
issued by the Manager on or at any time prior to the
Note Issue Date for the Notes.
(ii) For the purposes of clause 6.6(a) of the Master Trust
Deed, the certification by the Manager may occur on
or at any time prior to the Note Issue Date for the
Notes.
(j) Clause 6.7 - Subscription Agreement
(i) Clause 6.7(c) of the Master Trust Deed is amended by
replacing paragraph (i) with the following
(i) (Transaction Documents) entered into the
Transaction Documents to which it is a party
in its capacity as trustee of the Trust.
(ii) For the purposes of clause 6.7(a)(iii), the Trustee
will enter into the Subscription Agreements.
(k) Clause 6.8 - Action Following Note Issue
For the purposes of the Trust, clause 6.8 of the Master
Trust Deed is deleted and the following new clause 6.8 is
inserted:
6.8 Action Following Note Issue
As soon as practicable after a Note Issue
Date for a Trust:
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(a) in relation to Class B Notes only:
(i) (enter details in the
Register) the Trustee
shall enter into the
Register for that Trust
in accordance with clause
28 the information
required under clause
28.1;
(ii) (issue Note
Acknowledgement) the
Trustee shall issue a
Note Acknowledgement to
each Class B Noteholder
in respect of its holding
of Class B Notes; and
(iii) (issue Marked Note
Transfers) if requested
by a Class B Noteholder
in its Application for
Notes, the Trustee shall
issue a Marked Note
Transfer to the Class B
Noteholder; and
(b) in relation to Class A Notes only,
the Trustee shall issue those
Class A Notes in accordance with
the relevant Note Trust Deed and
the relevant Supplementary Terms
Notice.
(l) Clause 7 - Transfer of Notes
For the purpose of this Trust, Clause 7 of the Master Trust
Deed is deleted and the following new clause 7 is inserted:
7. Transfer of Notes
7.1 No restrictions on transfer of Notes
Subject to this Master Trust Deed and the relevant
Supplementary Terms Notice, there shall be no
restriction on the transfer of Notes.
7.2 Minimum transfer
(a) A Class B Noteholder must not transfer any
Class B Notes held by it unless:
(i) the amount payable by the
transferee for those Class B Notes
is not less than A$500,000; or
(ii) the offer or invitation to the
transferee by the Class B
Noteholder in relation to the Class
B Notes is an excluded offer or an
excluded invitation for the
purposes of the Corporations Law.
(b) A Class 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 Manager, the
Servicer, any Note Manager, the Note
Trustee, the Security Trustee or an
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Approved Seller is liable to any Noteholder
in relation to a breach by that Noteholder
of paragraph (b).
7.3 Form of transfer
Every transfer of Class B Notes shall be effected by
a Note Transfer.
7.4 Execution of Note Transfer
Every Note Transfer shall be duly completed and
executed by the transferor and transferee.
7.5 Stamping of Note Transfer
Every Note Transfer lodged with the Trustee shall be
duly stamped (if applicable).
7.6 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.
7.7 Registration of Transferee as Class B Noteholder
Subject to this clause 7, the Trustee shall, on
receipt of a Note Transfer, enter the transferee in
the Register as the holder of the Class B Notes
which are the subject of the Note Transfer.
7.8 Trustee entitled to refuse to register Class B
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
this Master Trust Deed;
(ii) (Supplementary Terms Notice) the
Supplementary Terms 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.
7.9 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.
7.10 No fee for registration of a Note Transfer
No fee shall be charged for the registration of any
Note Transfer.
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7.11 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 Class B Notes
which are the subject of the Note Transfer,
the transferor shall remain the holder of
those Class B 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.
7.12 Rights and obligations of transferee
Subject to this Master Trust Deed and the relevant
Supplementary Terms Notice, a transferee of Class B
Notes on being noted in the Register as the holder
of the Class B 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 this Master Trust Deed and the
relevant Supplementary Terms Notice as if
the transferee was originally a party to
this Master Trust Deed and that
Supplementary Terms Notice.
7.13 Payments to transferee
Subject to this Master Trust Deed (including clause
32.1 of the Master Trust Deed), on the entry of a
transferee of Class B 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 Class B 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).
7.14 Transmission of entitlements
(a) (Election) Any person becoming entitled to
Class B Notes as a result of the death,
mental incapacity or bankruptcy of a Class
B Noteholder may, on producing such
evidence as the Trustee requires of their
entitlement, elect to be either registered
as the Class B Noteholder or to transfer
the Class B Notes in the manner specified
in this clause.
(b) (Method of election) If an entitled person
elects to be registered as the Class B
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 Class B Notes in favour of that person.
All the provisions of this Master
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Trust Deed and the relevant Supplementary
Terms Notice relating to the transfer of
Class B 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 Class
B Noteholder had not occurred and the notice
or Note Transfer was a Note Transfer
executed by the Class B Noteholder.
(c) (Discharge) A person entitled to Class B
Notes under this clause shall be entitled to
receive and may give a good discharge for
all moneys payable in respect of such Class
B Notes but, except as otherwise provided by
this Master Trust Deed and the relevant
Supplementary Terms Notice, shall not be
entitled to any of the rights or privileges
of a Class B Noteholder unless and until the
person is entered in the Register as the
holder of those Class B Notes.
7.15 Marked Note Transfer
(a) (Entitlement to marking) A Class B
Noteholder may from time to time request the
Trustee to provide the Class B Noteholder
with a Marked Note Transfer.
(b) (Marking) The Class B 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 Manager and issue the
same to the Class B Noteholder.
(c) (Trustee will not register transfer) Until
the expiry of 90 days (or any substitute
period as the Trustee and Manager agree from
time to time and as advised to Class B
Noteholders) from the date on which the Note
Transfer was marked, the Trustee shall not
register any transfer of Class B 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 Class B Noteholder by personal
delivery at the time the Class B 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.
7.16 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
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Trustee had actual notice of such forgery or defect
at the time of registration of such Note Transfer.
7.17 Specimen signatures
The Trustee may (but need not) require each Class B
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 Class B Noteholder) of persons
authorised to execute Note Transfers on behalf of
such Class B Noteholder and shall be entitled to
assume (until notified to the contrary) that such
authority has not been revoked.
7.18 Notes lodged with Austraclear
If Class B Notes are lodged into the Austraclear
System, the Trustee shall enter Austraclear in the
Register as the holder of those Class B Notes.
While those Class B Notes remain in the Austraclear
System:
(a) all payments and notices required of the
Trustee and the Manager in relation to those
Class B Notes will be directed to
Austraclear; and
(b) all dealings (including transfers) and
payments in relation to those Class B Notes
within the Austraclear System will be
governed by the Austraclear Regulations and
need not comply with this clause 7 to the
extent of any inconsistency.
(m) Clause 7A - Note Acknowledgement
For the purposes of the Trust a new clause 7A is inserted in
the Master Trust Deed as follows:
7A. Note Acknowledgement
7A.1 Issue of Note Acknowledgement
When a person has been entered in the
Register as the holder of Class B Notes,
as soon as practicable (and in any event
no later than 5 Business Days or such
shorter period specified in the relevant
Supplementary Terms Notice or as otherwise
agreed by the Trustee with the person or
the Manager) thereafter, the Trustee shall
issue a Note Acknowledgement to that
person in respect of those Class B Notes.
If the person has been entered into the
Register under a Note Transfer and the
transferor continues to retain a holding
of Class B Notes, the Trustee shall,
within the same period stated above, issue
to the transferor a Note Acknowledgement
in respect of that retained holding of
Class B Notes. No certificates will be
issued in respect of Class B Notes.
7A.2 Note Acknowledgement not certificate of
title
A Note Acknowledgement shall not be a
certificate of title as to Class B Notes
and the Register shall be the only
conclusive evidence of the ownership of
Class B Notes and the entitlements under
them. A Note Acknowledgement cannot be
pledged or
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deposited as security nor can a Class B Note
be transferred by delivery of only a Note
Acknowledgement.
7A.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.
7A.4 More than one Note Acknowledgement
If a Class B 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 4.5, 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
Class B Noteholder to the Trustee.
7A.5 Worn out, defaced or lost Note
Acknowledgement
If any Note Acknowledgement is worn out or
defaced then, on production to the
Trustee, the Trustee 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.
7A.6 Joint holdings
If a single parcel of Class B Notes is held
by more than one person, only the person
whose name stands first in the Register in
relation to that parcel of Class B 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 Class B Notes.
7A.7 Delivery of Note Acknowledgement
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A Note Acknowledgement may be sent to the
relevant Class B Noteholder by mail or by
personal delivery to the Class B
Noteholder's address appearing in the
Register and the Note Acknowledgement so
sent shall be at the risk of that Class B
Noteholder.
(n) Clause 8.5 - Authorised Investment
For the purposes of Clause 8.5 of the Master Trust
Deed, but subject always to the right of substitution
under clause 8, Authorised Investments shall not
include those investments specified in paragraphs (a)
and (c) of the definition of Authorised Investments
in the Master Trust Deed, namely: (i) Loans secured
by Mortgages, those Mortgages, other Related
Securities and Receivable Rights; and
(ii) other Receivables, Receivable Securities and
Receivable Rights approved by the Manager.
(o) Clause 12.3(b) Sale Notice
For the purposes of clause 12.3(b) of the Master
Trust Deed, a Sale Notice may be delivered to the
Trustee by the Approved Seller on or at any time
prior to the Expiry Time.
(p) Clause 12.5(a)(iii) - Conditions precedent to
purchase
For the purposes of clause 12.5(a)(iii) of the Master
Trust Deed, the following is a condition precedent to
the giving of a Sale Notice:
(i) (Certified copies) Certified copies of the
forms of each Mortgage Insurance Policy, and
the forms of the Receivable Agreements,
relating to the Purchased Receivables.
(q) Clause 12.6(a)(vii) Representations and warranties
For the purposes of clause 12.6(a)(vii) of the Master
Trust Deed, the Approved Seller makes the following
further representations and warranties in relation to
each Sale Notice.
(i) (Assignability) All consents required in
relation to the assignment of the
Receivables specified in the Sale Notice and
the related Receivable Rights have been
obtained. Those Receivables and Receivable
Rights are assignable.
(ii) (Quality of Title) It is the sole, legal and
beneficial owner of the Receivables
specified in the Sale Notice and the related
Receivable Rights. Those Receivables and the
related Receivable Rights, together with the
interest of the Approved Seller 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 in
connection with the Trust).
(iii) (Eligible Receivable) As at the relevant
Cut-Off Date, each Receivable which is
specified in the Sale Notice is an Eligible
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Receivable. In relation to any related Receivable
Security that is required to be registered with any
Government Agency and which is not registered at its
Cut-Off Date, it will be registered.
(iv) (Receivable Securities) Each Receivable and
Receivable Security which is specified in
the Sale Notice and each Related Security is
legally 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.
(v) (Set Off) Once equitably assigned to the
Trustee, no Receivable which is specified in
the Sale Notice or Receivable Right will be
subject to any right of rescission, set off,
counterclaim or similar defence.
(vi) (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 and up to
and including the Closing Date, it complied
in all material respects with applicable
laws, including, without limitation, where
the Consumer Credit Legislation applies, the
Consumer Credit Legislation and the
performance by the Approved Seller of its
obligations in respect of each such
Receivable, Receivable Security and Related
Security (including without limitation, its
variation, discharge, release,
administration, servicing and enforcement)
up to and including the Closing Date
complied in all material respects with
applicable laws including, without
limitation, where the Consumer Credit
Legislation applied, the Consumer Credit
Legislation.
(vii) (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.
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(viii) (Insurance) Each Receivable which is
specified in the Sale Notice is the subject
of a Mortgage Insurance Policy from the
Mortgage Insurer for the scheduled term of
that Receivable for the amount of that
Receivable. The sale of each such Receivable
to the Trustee is not contrary to the
relevant Mortgage Insurance Policy. The
Approved Seller 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 (including the payment of
any premiums due under that Mortgage
Insurance Policy) to the extent that those
rights relate to that Receivable or the
related Receivable Rights. On transfer to
the Trustee of equitable title to a
Purchased Receivable:
(A) the Trustee will have the benefit
of the relevant Mortgage Insurance
Policy for that Receivable; and
(B) the Approved Seller will procure
that the Trustee receives evidence
of the Mortgage Insurer's
acknowledgement of the transfer.
(ix) (Solvency of Mortgage Insurer) The Approved
Seller does not have actual notice that the
Mortgage Insurer under a Mortgage Insurance
Policy in relation to a Receivable is
insolvent or will be unable to pay a valid
claim.
(x) (Solvency of other insurers) The officers of
the Approved Seller who have responsibility
for the transactions contemplated by the
Transaction Documents do not have actual
notice that any insurer under any insurance
policy (other than the Mortgage Insurer
under a Mortgage Insurance Policy) in
relation to a Receivable is insolvent or
will be unable to pay a valid claim.
(xi) (Selection process) There is no fraud,
dishonesty, material misrepresentation or
negligence on the part of the Approved
Seller in connection with the selection and
offer to the Trustee of any Receivables or
related Receivable Securities which is
specified in the Sale Notice.
(xii) (No void transactions) The assignment of the
Receivables which are specified in the Sale
Notice and Receivable Rights 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.
(xiii) (Security Interest) The sale, transfer and
assignment of the Approved Seller's interest
in the Receivables which are specified in
the Sale Notice and the related Receivable
Rights, will not constitute a breach of any
Relevant Document or the Approved Seller's
obligations or a default by the Approved
Seller under any Security Interest.
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(xiv) (Relevant Documents) The Approved Seller
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
Notice necessary to register and enforce the
provisions of and the security created by
the relevant Receivable Securities.
(xv) (Solvency) The Approved Seller is solvent,
is able to pay its debts as and when they
become due and payable and has no notice of,
nor taken any steps in relation to, any
application or order for its winding up or
the appointment of a receiver or liquidator
to it or any of its assets.
(xvi) (No rescission, etc) As at the Cut-Off Date,
none of the Receivables or none of the
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.
(xvii) (Interest rate) Except as specified in a
Receivable Agreement, a Receivable Security
or 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
that Obligor in accordance with the terms of
the relevant Receivable or Receivable
Security.
(xviii) (compliance with procedures) At the time
each Receivable and each Receivable Security
which is specified in the Sale Notice and
each Related Security was entered into it
complied in all material respects with the
Approved Seller's underwriting and
operations procedures, as agreed with the
Manager.
(xix) (good faith) Each Receivable and Receivable
Security which is specified in the Sale
Notice and each Related Security was entered
into by the Approved Seller in good faith.
(xx) (ordinary course of business) At the time
each Receivable and each Receivable Security
which is specified in the Sale Notice and
each Related Security was entered into, it
was not purchased by the Approved Seller but
was originated in the ordinary course of the
Approved Seller's business.
(xxi) (first ranking security) In respect of each
Receivable and each Receivable Security
which is specified in the Sale Notice and
each Related Security, the Approved Seller
has taken all reasonably necessary steps to
ensure that each related Mortgage complies
with the applicable legal requirements to
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be a first ranking Mortgage secured over
land, subject to registration in due course.
(xxii) (no notice of bankruptcy or winding up) At
the time each Receivable and each Receivable
Security which is specified in the Sale
Notice and each Related Security was entered
into at any time prior to the Closing Date,
the Approved Seller had not received any
notice of any insolvency, bankruptcy or
liquidation of the Obligor(s) or any
guarantors or security providers (except
that if a Receivable is in Arrears but
complies with the Eligibility Criteria, the
fact that it is in Arrears is not in and of
itself notice of insolvency) or any notice
that any such person did not have the legal
capacity to enter into the relevant
Mortgage.
(xxiii) (no waiver, etc) As at the Cut-Off Date,
none of the Receivables and none of the
Receivable Securities which is specified in
the Sale Notice and no Related Security had
been waived or altered, except in writing
and as part of the Relevant Documents.
(xxiv) (information on Receivables) All information
provided by the Approved Seller to the
Trustee in connection with the Receivables,
the Receivable Securities and the Related
Securities was, when given, true and
accurate in all material respects and not
misleading or deceptive and did not omit to
state a material fact necessary in order to
make the statements therein in light of the
circumstances in which they were made not
misleading or deceptive.
(xxv) (no knowledge of adverse event) As at the
Cut-Off Date, the Approved Seller was not
aware of any circumstance or event that may
materially and adversely affect:
(A) the value or enforceability of any
Receivable, Receivable Security or
Related Security; or
(B) the ability of the Approved Seller
to perform its obligations under
the Transaction Documents. (xxvi)
(fair consideration) The Approved
Seller regards the consideration
paid for the Receivables specified
in the Sale Notice as fair and
equals the outstanding principal of
the Receivables on the Closing Date
(plus or minus $1,000).
(xxvii) (no breach of obligations) The Approved
Seller is not in breach of any obligation or
agreement which has had or may have a
Material Adverse Effect.
(xxviii) (deposit account) If the Approved Seller has
required an Obligor to establish a deposit
account with it in relation to a Receivable,
the Approved Seller has done so for
administrative convenience only.
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(xxix) (waiver of set-off) The Approved Seller's
standard form of Receivable Agreement
includes a clause to the effect that the
relevant Obligor waives all rights of
set-off as between the Obligor and the
Approved Seller.
(xxx) (Australian dollars) Each Receivable is, at
the Closing Date, denominated and payable
only in Australian dollars in Australia.
(r) Clause 12.6(d)(ii) - Offer and acceptance
Clause 12.6(d)(ii) of the Master Trust Deed is
amended by:
(i) deleting to the satisfaction of the Manager
and the Trustee and inserting (if capable of
remedy to the satisfaction of the Manager
and the Trustee);
(ii) replacing "." at the end of sub-clause (G)
with "; and"; and (iii) inserting a new
sub-clause (H) as follows:
(H) the Approved Seller shall indemnify
the Trustee from and against any
and all damages, losses, claims,
liabilities and related costs and
expenses including legal costs and
expenses on a full indemnity basis
that the Trustee may sustain or
incur under the Consumer Credit
Legislation as a direct or indirect
consequence of a breach of the
Approved Seller's representation
and warranty under clause
6.2(h)(vi) of the Supplementary
Terms Notice, together with any
relevant break costs for which the
Trustee is liable in relation to
the prepayment of any Hedge
Agreement for the Trust.
(s) Clause 12.6(d)(v) - Limit on damages
Clause 12.6(d)(v) of the Master Trust Deed is amended
by adding the following after the word "damages" in
the last line:
except for a breach of the Approved Seller's
representation and warranty under clause 6.2(h)(vi)
of the Supplementary Terms Notice where, in
addition, the Approved Seller will indemnify the
Trustee from and against any and all damages,
losses, claims, liabilities and related costs and
expenses including legal costs and expenses on a
full indemnity basis the Trustee may sustain or
incur under the Consumer Credit Legislation as a
direct or indirect consequence of that breach.
(t) Clause 12.7(a)(i) - Approved Seller Undertakings
For the purposes of clause 12.7(a)(i) of the Master
Trust Deed, the Approved Seller provides the
following further undertaking:
(i) (Mortgage Insurance Policy requirements) it
will do, or refrain from doing, at the
direction of the Trustee or the Manager,
such acts and things as may be required
under each Mortgage Insurance Policy which
may only be done or not done (as the case
may be) by a credit provider for the
purposes of the Consumer Credit Legislation.
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(u) Clause 14.9 - Accounting for moneys received
Clause 14.9(a) of the Master Trust Deed shall be
replaced by the following:
The Manager will pay to, or to an account of the
Trustee, within 2 Business Days of receipt, all
moneys coming into its hands belonging to the Trust
or payable to the Trust.
(v) Clause 14.10 - Reuters
The Manager may prepare and arrange for the
publication by Reuters (or another customary
electronic medium) of summary pool performance data
for the Trust in a format similar to that used by
other mortgage-backed securities or asset-backed
securities (as the case may be) in the Australian
market. If it does, the Manager shall provide a copy
of the report as soon as practicable after
preparation to the Designated Rating Agencies. The
report shall include a statement agreed between the
Manager and the Trustee summarising the extent of the
Trustee's liability under the Trust.
(w) Clause 14.20 - Additional Covenants by Manager
For the purposes of clause 14.20 of the Master Trust
Deed, the Manager shall also:
(i) (Stock Exchange) comply with the rules and
regulations of the Stock Exchange;
(ii) (Filing) make all filings which the Manager
is actually aware are required in connection
with the Trust or the Assets of the Trust
with any Governmental Agency in any
jurisdiction;
(iii) (Comply with obligations and laws) promptly
comply with all other duties and obligations
imposed on the Manager by the Transaction
Documents in relation to the Trust and
comply with all relevant material laws in
the relevant jurisdiction in carrying out
such duties and obligations;
(iv) (Notification to Designated Rating Agencies)
notify the Designated Rating Agencies that a
Class of Notes has been fully and finally
redeemed when the Invested Amount of that
Class of Notes has been reduced to zero; and
(v) (Step-Up Margin) if a Step-Up Margin applies
to any Note under clause 4.9, not direct the
Trustee to enter into or extend a
Transaction under an Interest Hedge (as
defined in the relevant Interest Hedge)
unless the Manager is of the opinion that
the amounts payable by the provider of that
Interest Hedge to the Trustee in relation to
the Transaction are calculated with
reference to that Step-Up Margin.
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(x) Clause 16.1(c) - Retirement by Manager
Clause 16.1(c) of the Master Trust Deed shall be
amended by replacing the words fraud, negligence or
wilful default in the second last and last lines with
the words breach of contract.
(y) Clause 16.6 - Trustee to act as Manager if no
successor appointed
Clause 16.6 of the Master Trust Deed shall be
replaced with the following:
(a) When a notice is given under clause 16.4 of
this Master Trust Deed, the Trustee shall be
entitled to appoint some other corporation
to be the Manager of the Trust on any terms
the Trustee sees fit (including the amount
of Manager's Fee that would be payable to
the replacement Manager at market rates)
provided that the terms of that appointment
will not have an adverse affect on the
ratings of the Notes.
(b) Subject to paragraph (c) below, until a
replacement Manager is appointed under
paragraph (a) above, the Manager must
continue to act as Manager and be entitled
to the Manager's Fee while so acting.
(c) If a replacement Manager is not appointed at
the end of the period of notice specified in
a notice given under clause 16.4 of this
Master Trust Deed:
(i) the Trustee must itself perform the
obligations and functions which
this Deed contemplates being
performed by the Manager, until a
successor Manager is appointed in
accordance with this Deed and be
entitled to the Manager's Fee while
so acting; and
(ii) the resignation of the Manager will
become effective.
(z) Clause 17.2
For the purposes of this Trust clause 17.2 of the
Master Trust Deed, the following new paragraph (z) is
inserted and the existing paragraph (z) becomes
paragraph (aa).
(clearing systems) to lodge Notes, or
arrange for Notes to be lodged, with DTC, or
a depository for DTC; and
(aa) Clause 18.3 - To act honestly, diligently and
prudently
Clause 18.3 of the Master Trust Deed is amended by:
(i) replacing "." at the end of paragraph (j)
with "; and"; and
(ii) inserting a new sub-clause (k) as follows:
(removal of the Trustee's agents
or delegates) remove any agent or
delegate of the Trustee that
breaches any obligation or duty
imposed on the Trustee under this
Deed or any other Transaction
Document in relation to the Trust
where the Manager reasonably
believes it will have a Material
Adverse Effect within 45 days'
notice from the Manager to the
Trustee to remove that agent or
delegate.
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(bb) Clause 21.1 - Opening of bank accounts
For the purposes of this Trust, clause 21.1(d) of the
Master Trust Deed is amended by: (i) adding the words
(other than a Collection Account) after the words if
an Account in line 1 of that clause; and
(ii) adding the following new clause 21.1(e):
(e) (Change Bank Accounts) If a
Collection Account is held with a
Bank which ceases to be an Approved
Bank then the Manager must direct
the Trustee to, and the Trustee
shall, as soon as practicable, and
in any event, within 2 days of
receipt of actual notice of that
cessation;
(i) commence opening an
account with an Approved
Bank (the New Collection
Account); and
(ii) commence transferring
funds standing to the
credit of the Collection
Account to the New
Collection Account,
and as soon as practicable (and in
any event within 5 Business Days of
receipt of actual notice of that
cessation) ensure that all funds
standing to the credit of the
Collection Account have been
transferred to the New Collection
Account.
(f) The Servicer shall do all things
necessary to assist the Manager and
the Trustee to comply with their
obligations under this clause 21.1.
(cc) Clause 23.9 - No responsibility for Servicer
Clause 23.9 of the Master Trust Deed shall be amended
by replacing the words the fraud, negligence or
wilful default of in the second last line with the
words a breach of contract by.
(dd) Clause 28 - Asset Register
For the purposes of this Trust clause 28 of the
Master Trust Deed is deleted and a new clause 28
inserted as follows:
28. The Register
28.1 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;
(b) (creation) the date of
the creation of the
Trust;
(c) (Note Issue Dates) the
Note Issue Date for Class
B Notes issued in
relation to the Trust;
(d) (Initial Invested Amount)
the total Initial
Invested Amount of Class
B Notes issued on the
Note Issue Date;
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(e) (Invested Amount) the
Invested Amount of each
Class B Note from time to
time;
(f) (Stated Amount) the Class
B Stated Amount from time
to time;
(g) (Supplementary Terms)
details of the Class B
Notes;
(h) (details of Class B
Noteholders) the name and
address of each Class B
Noteholder;
(i) (number of Class B Notes)
the number of Class B
Notes held by each Class
B Noteholder;
(j) (Note Acknowledgement)
the serial number of each
Note Acknowledgement
issued to each Class B
Noteholder;
(k) (date of entry) the date
on which a person was
entered as the holder of
Class B Notes;
(l) (date of cessation) the
date on which a person
ceased to be a Class B
Noteholder;
(m) (account) the account to
which any payments due to
a Class B Noteholder are
to be made (if
applicable);
(n) (details) where
applicable, Payment
Dates, Principal
Repayment Dates, Maturity
Dates and Margin on the
Notes;
(o) (payments) a record of
each payment in respect
of the Class B Notes in
relation to the Trust;
and
(p) (tax file number) a
record that the Trustee
has (or has not) received
the tax file number for
each Class B Noteholder;
and
(q) (additional information)
such other information
as:
(i) is required by
this
Supplementary
Terms Notice;
(ii) the Trustee
considers
necessary or
desirable; or
(iii) the Manager
reasonably
requires.
28.2 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 related
Receivable Rights) entered into the
relevant asset register on an
individual basis.
28.3 Place of keeping Register, copies
and access
The Register shall be:
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(a) (place kept) kept at the
Trustee's principal
office in Sydney or at
such place as the Trustee
and the Manager may
agree;
(b) (access to Manager and
Auditor) open to the
Manager and the Auditor
of the Trust to which it
relates to inspect during
normal business hours;
(c) (inspection by Class B
Noteholders) open for
inspection by a Class B
Noteholder during normal
business hours but only
in respect of information
relating to that Class B
Noteholder; and
(d) (not for copying) not
available to be copied by
any person (other than
the Manager) except in
compliance with such
terms and conditions (if
any) as the Manager and
Trustee in their absolute
discretion nominate from
time to time.
28.4 Details on Register conclusive
(a) (Reliance on Register)
The Trustee shall be
entitled to rely on the
Register in clause 28.1
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 Class B Notes and the
Trustee shall be entitled
to recognise a Class B
Noteholder as the
absolute owner of Class B
Notes and the Trustee
shall not be bound or
affected by any trust
affecting the ownership
of any Class B 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.
28.5 Closing of Register
The Trustee may:
(a) without prior notice to
the Noteholders close the
Register in clause 28.1:
(i) in relation to
all Notes, each
period from the
close of
business (Sydney
time) on the
Business Day
preceding each
Payment Date to
close of
business on that
Payment Date; or
(ii) when required
for the Auditor
to conduct any
audit in
relation to the
Trust; or
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(b) with prior notice to each Noteholder who
holds a Class B Note, close the Register for
other periods not exceeding 30 days (or such
other period of time as agreed between the
Trustee and the Manager, with the approval
of an Extraordinary Resolution of Class B
Noteholders) in aggregate in any calendar
year.
28.6 Alteration of details on Register
On the Trustee being notified of any change
of name or address or payment or other
details of a Class B Noteholder by the Class
B 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).
28.7 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
Supplementary Terms 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 Class B
Notes,
the Trustee shall rectify the same upon
becoming aware of it.
28.8 Correctness of Register
Neither the 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.
28.9 Manager must provide information
The Manager must provide the Trustee and any
person appointed in accordance with clause
28.10 with such information as the Trustee
may reasonably require to maintain the
Register.
28.10 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 Supplementary Terms Notice in
relation to the Register.
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(ee) Clause 29 - Meetings of Noteholders
For the purposes of the Trust, clause 29 of the Master Trust
Deed is deleted and a new clause 29 inserted as follows:
29.1 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 29,
other than this clause 29.1, shall
not apply to Class A Notes.
29.2 Convening of meetings by Trustee and Manager
(a) The Trustee or the Manager may at
any time convene a meeting of the
Class B Noteholders or Class of
Class B Noteholders.
(b) Class B Noteholders or a Class of
Class B Noteholders holding in
aggregate not less than 20% of the
Invested Amounts of all Class B
Notes or in that Class, may at any
time convene a meeting of the Class
B Noteholders or Class, as the case
may be.
29.3 Notice of meetings
(a) (Period of notice) Subject to
clause 29.3(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 Class B
Noteholders or any Class of Class B
Noteholders of a Trust shall be
given to the relevant Class B
Noteholders of the Trust.
(b) (Short notice) Notwithstanding
clause 29.3(a), if it is so agreed
by a majority in number of the
Class B 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 Class B 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 Class B Noteholder shall not
invalidate the proceedings at any
meeting.
(d) (Copies) A copy of a notice
convening a meeting shall be given
by the Trustee or the 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.
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(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 Class B 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
Class B 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
(i) (additional information)
such additional information
as the person giving the
notice thinks fit.
29.4 Chairman
The Trustee may nominate a person to be
chairman of a meeting which has been
convened by the Trustee or the Manager.
The chairman need not be a Class B
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 Class B Noteholders present
may choose a Noteholder to be the
chairman.
29.5 Quorum
At any meeting any two or more persons
present in person being Class B
Noteholders holding, or Representatives
holding or representing, in the aggregate
not less than 75% of the Invested Amounts
of all Class B 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 any meeting unless
the requisite quorum is present at the
commencement of business.
29.6 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
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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
Class B Noteholders holding, or being
Representatives holding or representing, in
the aggregate not less than 50% of the
Invested Amounts of all Class B Notes or
constituting the Class (as the case may be)
and then outstanding (whatever the Class B
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.
29.7 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 Class B 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 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 Manager or by one or
more persons being Class B
Noteholders holding, or
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being Representatives holding or
representing, in aggregate not less
than 2% of the Class B 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 29.7(a),
at any meeting:
(i) on a show of hands, every
person present being a
Class B Noteholder holding,
or being a Representative
holding or representing,
then outstanding Class B
Notes shall have one vote;
and
(ii) on a poll, every person
present shall have one
vote for each Class B
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
Class B 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.
29.8 Right to attend and speak
The Trustee, the 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 Class B Noteholders or any
Class (as the case may be). No person
shall otherwise be entitled to attend or
vote at any meeting of the Class B
Noteholders or any Class (as the case may
be) unless he or she holds outstanding
Class B Notes or is a Representative
holding or representing such Class B
Notes.
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29.9 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 Class B
Noteholder.
(b) (Proxy remains valid) Any vote
given in accordance with the terms
of an instrument of proxy
conforming with clause 29.9(a)
shall be valid notwithstanding the
previous death or insanity of the
principal, revocation or amendment
of the proxy or of any of the Class
B 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.
29.10 Corporate representatives
A person authorised under section 250D of
the Corporations Law by a Class B
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 Class B
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.
29.11 Rights of Representatives
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A Representative of a Class B 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 Class B Noteholder.
The Trustee, the Manager and any officer
of the Trustee and the Manager may be
appointed a Representative.
29.12 Powers of a meeting of Class B Noteholders
(a) (Powers) Subject to the Security
Trust Deed (and in particular any
power of the Note Trustee of Class
A Noteholders to override the
decisions of Class B Noteholders),
a meeting of the Class B
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
Manager or the relevant
Servicer proposes to take
to enforce the provisions
of any Transaction
Document;
(ii) to sanction any proposal
by the Manager, the
Trustee or the relevant
Servicer for any
modification, abrogation,
variation or compromise
of, or arrangement in
respect of, the rights of
the Class B Noteholders
against the Trustee, the
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 Class
B Notes for, or the
conversion of Class B
Notes into, other
obligations or securities
of the Trustee or any
other body corporate
formed or to be formed;
(iv) under clause 33.2 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
Manager;
(v) to discharge or exonerate
the Trustee, the 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 Manager, the relevant
Servicer or any other
person to concur
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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 the Supplementary
Terms Notice.
(b) (No power) A meeting of the Class B
Noteholders shall not have power
to, nor shall any resolution
submitted to the meeting propose or
have the effect of:
(i) removing the Servicer or
the Manager from office;
(ii) interfering with the
management of the Trust;
(iii) winding up or terminating
the Trust (except as
contemplated by clause
29.12(a)(vii));
(iv) altering the Authorised
Investments of the Trust;
(v) amending any Transaction
Document (except as
contemplated by clause
29.12(a)); or
(vi) altering the Interest
Payment Dates, Principal
Payment Dates, Interest,
Principal Entitlements or
the other terms of the
Supplementary Terms
Notice (subject to clause
29.12(a)(iii)).
29.13 Extraordinary Resolution binding on Class B
Noteholders
An Extraordinary Resolution passed at a
meeting of the Class B Noteholders or of
any Class duly convened and held in
accordance with this deed shall be binding
on all the Class B Noteholders or of the
Class whether or not present at such
meeting. Each of the Class B Noteholders
or of the Class (as the case may be), the
Trustee and the Manager shall be bound to
give effect to that resolution
accordingly.
29.14 Minutes and records
Minutes of all resolutions and proceedings
at every meeting of the Class B
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
Class B 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
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have been duly convened and held and all
resolutions passed or proceedings transacted
at such meeting to have been duly passed and
transacted.
29.15 Written resolutions
Notwithstanding the preceding provisions of
this clause 29, a resolution of the Class B
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 Class B
Noteholders or any Class, been
signed by all Class B Noteholders
or the Class (as the case may be);
and
(b) any such instrument shall be
effective on presentation to the
Trustee for entry in the records
referred to in clause 29.14.
29.16 Further procedures for meetings
Subject to all other provisions contained in
this deed, the Trustee may without the
consent of the Class B Noteholders or any
Class prescribe such further regulations
regarding the holding of meetings of the
Class B Noteholders or any Class of Class B
Noteholders and attendance and voting at
such meetings as the Trustee may with the
agreement of the 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 Class B Noteholders
or any Class of Class B 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 Class B Noteholders required
to pass an Extraordinary Resolution or an
ordinary resolution.
(ff) Clause 32 - Payments Generally
For the purpose of the Trust clause 32 is amended as follows:
(i) Clause 32.1 of the Master Trust Deed is deleted and replaced with the
following.
32.1 Payments to Noteholders
(a) Any payment made by or on behalf of the
Trustee in respect of any Class A Note shall
be made in accordance with the relevant
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Supplementary Terms Notice, the relevant
Note Trust Deed and the relevant Agency
Agreement;
(b) Any payment made by or on behalf of the
Trustee in respect of any Class B Note shall
be made to the person whose name is, on the
Record Date, entered in the Register as the
Class B owner of the relevant Class B Note
(or in the case of joint Class B
Noteholders, to the person whose name first
appears in the Register).
(ii) Clause 32.2 of the Master Trust Deed is deleted and
replaced with the following.
32.2 Manager to arrange payments
The Trustee will:
(a) prepare or cause to be prepared all
cheques which are to be issued to
Class B Noteholders and to
Beneficiaries and stamp the same as
required by law; or
(b) otherwise arrange payments under
clause 32.7.
The Trustee will sign (by autographical,
mechanical or other means) cheques for
despatch on the day on which they ought to
be despatched.
(iii) Clause 32.4 of the Master Trust Deed is deleted and
replaced with the following.
32.4 Payment good discharge
There is a full satisfaction of the moneys
payable under a Class B Note, and a good
discharge to the Trustee, the Manager or the
Servicer (as the case may be) in relation to
that Class B Note, when the cheque is
despatched by post in accordance with clause
32.2(a) or, if not posted, delivered to the
Class B Noteholder or as directed by the
Class B Noteholder. None of the Trustee, the
Manager or the Servicer shall be responsible
for any moneys which are not credited to the
bank account of a Class B Noteholder or a
Beneficiary if the Trustee's bank has been
instructed to effect the direct transfer
referred to in clause 32.7(c).
There is a full satisfaction of the moneys
payable under a Class A Note, and a good
discharge to the Trustee, the Manager or the
Servicer (as the case may be) in relation to
that Class A Note, when so provided under
the Note Trust Deed.
(iv) Clause 32.6 of the Master Trust Deed is deleted and
replaced with the following.
32.6 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
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future Taxes of any Australian
Jurisdiction unless required by
law.
(b) (Interest Withholding Tax - Class B
Notes) The Trustee or any person
making payments on behalf of the
Trustee will be obliged to deduct
interest withholding tax imposed by
the Commonwealth of Australia from
payments of interest in respect of
the Class B 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 Class B 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 Class B
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 Class B
Noteholder the Tax File Number of
that Class B Noteholder or evidence
of any exemption the Class B
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 Class
B Notes at that highest personal
marginal tax rate if no Tax File
Number is provided.
(v) A new Clause 32.7 is inserted into the Master Trust
Deed as follows.
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32.7 Payment Methods - Class B Notes
Any moneys payable by the Trustee, the
Manager or the Servicer to a Class B
Noteholder or to a Beneficiary under this
Master Trust Deed and the relevant
Supplementary Terms 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 Class B
Noteholder or the Beneficiary (as
the case may be) and despatched by
post to the address of the Class B
Noteholder shown in the Register on
the Record Date or to the address
of the Beneficiary for the purposes
of clause 31;
(b) (electronic transfer) electronic
transfer through Austraclear;
(c) (direct payment) by direct transfer
to a designated account of the
Class B 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 Class B
Noteholder or the Beneficiary (as
the case may be) and agreed to by
the Manager and the Trustee.
(gg) Clause 33.14
For the purposes of clause 30.12 of the Master Trust Deed,
insert a new paragraph (j) as follows and renumber the
existing paragraph (j) as paragraph (k):
(j) (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.
6.3 Amendments to the Servicing Agreement
The Servicing Agreement is amended for the purpose of the trust as
follows:
(a) Clause 5.2(a) is amended by replacing words on the Remittance
Date for that Collection Period with the words on or before
the expiration of five (5) Business Days from receipt by the
Servicer.
(b) Clause 5.2(b)(ii) is amended by replacing the words five
Business Days following receipt by the Servicer with the words
immediately upon receipt by the Servicer.
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7. Call and Tax Redemption
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7.1 Call
The Trustee must, when so directed by the Manager (at the Manager's
option), having given not more than 60 nor less than 45 days' notice
to the Noteholders in accordance with Condition 12, purchase or
redeem all, but not some only, of the Notes by repaying the Invested
Amount, or, if the Noteholders, by Extraordinary Resolution of the
Noteholders so agree, the Stated Amount, of those Notes, together
with accrued interest to (but excluding) the date of repurchase or
redemption on any Quarterly Payment Date falling on or after the
earlier of:
(a) the Quarterly Payment Date on which the Total Stated Amount of
all Notes is equal to or less than 10% of the aggregate of the
Initial Invested Amount of all Notes; and
(i) in the case of Class A-1 Notes, the Quarterly Payment
Date falling in August 2009;
(ii) in the case of Class A-2 Notes, the Quarterly Payment
Date falling in May 2021; or
(iii) in the case of Class A-3 Notes, the Quarterly Payment
Date falling in February 2030,
provided that the Trustee will be in a position on such Quarterly
Payment Date to discharge (and the Manager so certifies to the
Trustee and the Note Trustee upon which the Trustee and the Note
Trustee will rely conclusively) all its liabilities in respect of the
Notes (at their Invested Amount or their Stated Amount if so agreed
by the Noteholders) and any amounts which would be required under the
Security Trust Deed to be paid in priority or pari passu with the
Notes if the security for the Notes were being enforced.
7.2 Tax Event
If the Manager satisfies the Trustee and the Note Trustee immediately
prior to giving the notice referred to below that either:
(a) on the next Quarterly Payment Date the Trustee would be
required to deduct or withhold from any payment of principal
or interest in respect of the Notes or the Currency Swap 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
(b) the total amount payable in respect of interest in relation to
any of the Purchased Receivables for a Collection Period
ceases to be receivable (whether or not actually received) by
the Trustee during such Collection Period,
the Trustee must, when so directed by the Manager, at the Manager's
option (provided that the Trustee will be in a position on such
Quarterly Payment Date to discharge (and the Manager will so certify to
the Trustee and the
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Note Trustee) all its liabilities in respect of the Notes (at their
Invested Amount or if the Noteholders will have agreed by Extraordinary
Resolution and will have so notified the Trustee and the Manager not
less than 21 days before such Quarterly Payment Date, at their Stated
Amount) and any amounts which would be required under the Security
Trust Deed to be paid in priority or pari passu with the Notes if the
security for the Notes were being enforced), having given not more than
60 nor less than 45 days' notice to the Noteholders in accordance with
Condition 12 redeem all, but not some only, of the Notes at their
Invested Amount (or, if the Noteholders by Extraordinary Resolution
have so agreed, at their Stated Amount) together with accrued interest
to (but excluding) the date of redemption on any subsequent Quarterly
Payment Date, provided that the Noteholders may by Extraordinary
Resolution elect, and shall notify the Trustee and the Manager not less
than 21 days before the next Quarterly Payment Date following the
receipt of notice of such proposed redemption, that they do not require
the Trustee to redeem the Notes.
8. Substitution of Purchased Receivables
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8.1 Approved Seller substitution
(a) The Trustee must, at the direction of the Manager (at the
Manager's option), at any time replace a Receivable of the
Trust which has been repurchased by the Approved Seller under
clause 12.6(d) of the Master Trust Deed using the funds
received from the repurchase to purchase a substitute Eligible
Receivable from the Approved Seller, if available.
(b) The Approved Seller may elect to sell a substitute Receivable
to the Trustee (which the Trustee shall acquire if it is
directed by the Manager to do so), provided the substitute
Receivable satisfies the following requirements:
(i) it complies with the Eligibility Criteria;
(ii) at the time of substitution, the substitute
Receivable has a maturity date no later than the date
being 2 years prior to the Final Maturity Date;
(iii) the substitution will not adversely affect the
Rating;
(iv) the Mortgage Insurer has confirmed that the
substitute Receivable is covered by the relevant
Mortgage Insurance Policy; and
(v) it is selected by the Manager in accordance with
clause 8.3.
8.2 Other substitutions
The Trustee must, at the direction of the Manager (at the Manager's
option), at any time:
(a) replace a Mortgage relating to a Purchased
Receivable;
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(b) allow an Obligor to replace the Mortgaged Property secured by
such a Mortgage; or
(c) allow an Obligor to refinance a Purchased Receivable to
purchase a new Mortgaged Property,
provided that all of the following conditions are met:
(i) the same Obligor or Obligors continue to be the Obligor or
Obligors under the replacement Mortgage and that Purchased
Receivable or refinanced Receivable (as the case may be);
(ii) either the replacement Mortgage, or the replacement Mortgaged
Property, do not result in the relevant Purchased Receivable
failing to comply with the Eligibility Criteria or the
refinanced Receivable satisfies the Eligibility Criteria (as
the case may be);
(iii) any such replacement or refinancing occurs simultaneously with
the release of the previous Mortgage, Mortgaged Property or
Receivable (as the case may be);
(iv) the principal outstanding under the relevant Receivable is,
after the replacement or refinancing, the same as before that
replacement or refinancing; and
(v) clause 8.3 applies.
8.3 Selection criteria
The Manager will apply the following criteria (in descending order of
importance) when selecting a substitute Eligible Receivable under
clause 8.1 or approving a substitution under clause 8.2:
(i) the substitute Eligible Receivable will have an Unpaid Balance
within A$30,000 of the outgoing Eligible Receivable's Unpaid
Balance, as determined at the time of substitution;
(ii) an outgoing owner-occupied or investment Mortgage will be
replaced by another owner-occupied or investment Mortgage (as
the case may be);
(iii) the substitute Eligible Receivable will have a then current
LVR no more than five per centum (5%) greater than the
outgoing Eligible Receivables then current LVR, as determined
at the time of substitution;
(iv) an outgoing Eligible Receivable will be substituted by another
Eligible Receivable with a security property located in the
same State or Territory;
(v) an outgoing Eligible Receivable will be substituted by another
Eligible Receivable with a security property with the same or
similar postcode; and
(vi) in the case of substitution under clause 8.1, the substitute
Eligible Receivable will have the closest original loan amount
to that of the outgoing Eligible Receivable.
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The Trustee is entitled to rely on the information provided by the
Manager in this regard.
9. Application of Threshold Rate
- ------------------------------------------------------------------------------
9.1 Calculation of Threshold Rate
If at any time the Basis Swap is terminated, the Manager must, 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
(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 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 the Approved Seller of that Threshold Rate on the
relevant Payment Date.
9.2 Setting Threshold Rate
If the Servicer is notified of a Threshold Rate under clause 9.1, 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 is set
not less than the Threshold Rate and shall promptly notify the
relevant Obligors of the change in accordance with the Receivable
Agreements.
9.3 Loan Offset Deposit Accounts
If at any time there is no current Basis Swap in place, the Servicer
and the Approved Seller must ensure that the interest rates
applicable to the Loan Offset Deposit Accounts are such that, if the
Approved Seller does not meet any of its obligations under clause
5.22, the Servicer will not be required, as a direct result of that
non-payment, to increase the Threshold Rate under clause 9.
10. Title Perfection Events
- ------------------------------------------------------------------------------
Each of the following is a Title Perfection Event.
(a) (Downgrade) The Approved Seller ceases to have a long term
rating of at least BBB from S&P, Baa-2 from Moody's or BBB
from Fitch IBCA.
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(b) (Event of Insolvency) An Insolvency Event occurs with respect
to the Approved Seller.
(c) (Non Compliance) The Servicer as Approved Seller fails to pay
any Collections (as defined in the Servicing Agreement) within
the time required under the Servicing Agreement.
(d) (Servicer Transfer Event) For so long as the Servicer is also
an Approved Seller to the Trust, a Servicer Transfer Event
occurs.
(e) (Breach of Redraw Facility Agreement) For so long as the
Approved Seller is also the Redraw Facility Provider, the
Redraw Facility Provider breaches its obligations,
undertakings or representations under the Redraw Facility
Agreement and such breach has had, or if continued will have,
a Material Adverse Effect (as determined by the Trustee after
taking appropriate expert advice).
(f) (Breach of representations) The Approved Seller breaches any
representation, warranty, covenant or undertaking made by it
in a Transaction Document, which breach, if capable of remedy,
is not remedied within 30 days of the earlier of:
(i) the Approved Seller becoming aware of the breach; and
(ii) the Approved Seller being notified of the breach by
the Trustee, Manager or Servicer.
11. Beneficiary
- ------------------------------------------------------------------------------
(a) The Beneficiary holds the beneficial interest in the Trust in
accordance with the Master Trust Deed and this Supplementary
Terms Notice.
(b) The beneficial interest held by the Beneficiary is limited to
the Trust and each Asset of the Trust subject to and in
accordance with the Master Trust Deed and this Supplementary
Terms Notice.
(c) The Beneficiary has no right to receive distributions in
respect of the Trust other than:
(i) the right to receive on the termination of the Trust
the entire beneficial interest of the Trust; and
(ii) the right to receive distributions in respect of the
Trust under the Master Trust Deed and this
Supplementary Terms Notice to the extent that
Distributable Income is available for distribution
under the Master Trust Deed and this Supplementary
Terms Notice.
(d) The Beneficiary may not assign, or create or allow to exist
any Security Interest over, its rights or interests in respect
of the Trust if to do so would have a Material Adverse Effect
or might have an adverse tax consequence in respect of the
Trust.
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12. Note Trustee
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12.1 Capacity
The Note Trustee is a party to this Supplementary Terms Notice in its
capacity as trustee for the Class A Noteholders from time to time
under the Note Trust Deed.
12.2 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, except as otherwise provided in the
Note Trust Deed or the Security Trust 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, except as otherwise provided in the
Note Trust Deed or the Security Trust Deed, may only exercise
enforcement rights in respect of the Mortgaged Property
through the Note Trustee and only in accordance with the
Transaction Documents.
12.3 Representation and warranty
The Note Trustee represents and warrants to each other party to this
Supplementary Terms Notice that it has the power under the Note Trust
Deed to enter into the Transaction Documents to which it is a party
and to exercise the rights, remedies and discretions of, and to vote
on behalf of the Class A Noteholders.
12.4 Payments
Any payment to be made to the Noteholders under the Transaction
Documents may be made to the Principal Paying Agent or the Note
Trustee (as the case may be) in accordance with the Agency Agreement
and the Note Trust Deed.
12.5 Payment to be made on Business Day
If any payment is due under a Transaction Document on a day which is
not a Business Day the due date will be the next Business Day unless
that day falls in the next calendar month, in which case the due date
will be the preceding Business Day.
13. Security Trust Deed
- ------------------------------------------------------------------------------
The parties to this Deed agree to comply with clause 16.9 of the
Security Trust Deed.
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Supplementary Terms Notice
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14. Custodian Agreement
- ------------------------------------------------------------------------------
The Custodian Agreement is amended for the purpose of the Trust by
deleting the words and between each Relevant Trust from the
second/third line of clause 3.1(c).
15. Manager's Directions to be in Writing
- ------------------------------------------------------------------------------
Any direction given to the Trustee by the Manager under a Transaction
Document must be in writing.
EXECUTED as a deed.
Each attorney executing this deed states that he or she has no notice of
alteration to, or revocation or suspension of, his or her power of attorney.
TRUSTEE
SIGNED SEALED and DELIVERED )
on behalf of )
AXA TRUSTEES LIMITED )
(ACN 004 029 841) )
by its attorney under Power of Attorney )
dated )
in the presence of: )
---------------------------
Signature
- ------------------------------------ ---------------------------
Witness Print name
- ------------------------------------
Print name
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Supplementary Terms Notice
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MANAGER
SIGNED SEALED and DELIVERED )
on behalf of )
CRUSADE MANAGEMENT )
LIMITED )
by its attorney under Power of Attorney )
dated )
in the presence of: )
---------------------------
Signature
- ------------------------------------ --------------------------
Witness Print name
- ------------------------------------
Print name
APPROVED SELLER/SERVICER
SIGNED SEALED and DELIVERED )
on behalf of )
ST.GEORGE BANK LIMITED )
by its attorney under Power of Attorney )
dated )
in the presence of: )
---------------------------
Signature
- ------------------------------------ ---------------------------
Witness Print name
- ------------------------------------
Print name
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Supplementary Terms Notice
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CUSTODIAN
SIGNED SEALED and DELIVERED )
on behalf of )
ST.GEORGE CUSTODIAL PTY )
LIMITED )
by its attorney under Power of Attorney )
dated )
in the presence of: )
---------------------------
Signature
- ------------------------------------ ---------------------------
Witness Print name
- ------------------------------------
Print name
SECURITY TRUSTEE
SIGNED SEALED and DELIVERED )
on behalf of )
NATIONAL MUTUAL LIFE )
NOMINEES LIMITED )
(ACN 004 029 841) )
by its attorney under Power of Attorney )
dated ) )
them in the presence of:
---------------------------
Signature
- ------------------------------------ ---------------------------
Witness Print name
- ------------------------------------
Print name
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Supplementary Terms Notice
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NOTE TRUSTEE
SIGNED SEALED and DELIVERED )
on behalf of )
BANKERS TRUST COMPANY )
by its attorney under Power of Attorney )
dated )
in the presence of: )
---------------------------
Signature
- ------------------------------------ ---------------------------
Witness Print name
- ------------------------------------
Print name
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Schedule 1
An Eligible Receivable means a Loan which, as at the Cut-Off Date for that
Loan:
(a) it is sourced from the Approved Seller's general portfolio of
residential mortgage loans or its Great Australian Home Loan
portfolio of residential mortgage loans;
(b) is secured by a Receivable Security that constitutes a first ranking
mortgage over residential (owner-occupied or investment) land
situated in capital city metropolitan areas or regional centres 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 be, 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 and which is required by the
Receivable Agreement to be covered by general insurance by insurers
approved in accordance with the Transaction Documents;
(d) has an LVR less than or equal to 95% for owner occupiers and 90% for
investment properties;
(e) was not purchased by the Approved Seller but was approved and
originated by the Approved Seller in the ordinary course of its
business;
(f) under which the relevant Obligor does not owe more than A$500,000;
(g) the relevant Obligor in respect of which was required to repay the
Receivable within 30 years of the Cut-Off Date;
(h) no payment from the Obligor is 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 on fully amortising repayment terms;
(l) is secured by a Receivable Security that is covered by mortgage
insurance from the Mortgage Insurer for 100% of amounts outstanding
under the relevant loans under the relevant Mortgage Insurance Policy
(including timely payment cover);
(m) complies in all material respects with applicable laws, including the
Consumer Credit Legislation;
(n) is fully drawn;
(o) is subject to the terms and conditions of the Approved Seller's Great
Australian Home Loan product, its Standard Variable Rate Loan,
including
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loans entitled to a "Loyalty" rate, due to a home loan relationship
with the Approved Seller of 5 years or more, or loans that bear a fixed
rate of interest for up to 5 years; and
(p) which has a maturity date at least one (1) year before the maturity
date of the Notes.
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Schedule 2
Application for Instruments
- ------------------------------------------------------------------------------
Crusade Global Trust No. 1 of 1999
To: AXA Trustees Limited as trustee of the Crusade Global Trust No. 1 of
1999 (the Trustee)
From: (ACN [*])
---------------------------------------------------------
(Name)
of (the Applicant).
------------------------------------------
(Address)
Application
- --------------------------------------------------------------------------------
The Applicant applies for the following Instruments (the Instruments) to be
issued by the Trustee as trustee of the Crusade Global Trust No. 1 of 1999
(the Trust) under the Master Trust Deed dated 14 March 1998 (as amended from
time to time) establishing the Crusade Trusts (the Master Trust Deed):
1. The Instruments applied for are:
2. The amount of Instruments applied for is:
Applicant bound
- ------------------------------------------------------------------------------
The Applicant agrees that the Instruments will be issued subject to, and
agrees to be bound by, the provisions of the Master Trust Deed, the
Supplementary Terms Notice in relation to the Instruments and the Security
Trust Deed dated [*] in relation to the Trust.
Acknowledgment by Applicant
- ------------------------------------------------------------------------------
The Applicant acknowledges that the liability of the Trustee to make payments
in respect of the Instruments is limited to its right of indemnity from the
assets of the Trust from time to time available to make such payments under
the Master Trust Deed.
The Application further acknowledges that:
(a) it has independently and without reliance on the St.George Bank
Limited (St.George), the Trustee, the Manager or any other person
(including without
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reliance on any materials prepared or distributed by any of the above)
made its won assessment and investigations regarding its investment in
the Instruments; and
(b) It understands that the Instruments do not represent deposits or
other liabilities of St.George or Associates of St.George;
(c) the Applicant's holding of the Instruments is subject to investment
risk, including possible delays in repayment and loss of income and
principal invested; and
(d) neither St.George nor any Associate of St.George in any way stands
behind the capital value and/or performance of the Instruments of the
Assets of the Trust except to the limited extent provided in the
Transaction Documents for the Trust.
General
- ------------------------------------------------------------------------------
Payments due under the Instruments may be made:
o by cheque posted to the above address
o to the credit of the following account:
Name of Bank:
Address of Bank:
Account Details:
Account No.:
Name of Account:
A Marked Instrument Transfer of the abovementioned Instruments is required:
Yes/No.
Applicant's Tax File Number:
Interpretation
- ------------------------------------------------------------------------------
Each expression used in this Application for Instruments that is not defined
has the same meaning as in the Master Trust Deed.
Dated:
SIGNED:
* This Application for Instruments together with a cheque for the
amount of the Instruments applied for should be sent to the
Trustee at the address above.
* Where the Applicant is a trustee, this Application for
Instruments must be completed in the name of the trustee and
signed by the trustee without reference to the trust.
* Where this Application for Instruments is executed by a
corporation, it must be executed either under common seal or
under a power of attorney.
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* If this Application for Instruments is signed under a power of
attorney, the attorney certifies that it has not receive notice
of revocation of that power of attorney. A certified copy of the
power of attorney must be lodged with this Application for
Instruments.
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Supplementary Terms Notice
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Schedule 3
Instrument Acknowledgment
- ------------------------------------------------------------------------------
Crusade Global Trust No.1 of 1999
Name:
[Class]:
Initial Invested Amount:
Interest Rate:
Interest Payment Dates:
[Principal Payment Dates]:
Final Maturity Date:
This confirms that:
Instrument Holders:
ACN (if applicable):
Address:
appears in the Register as the holder of the abovementioned Instruments (the
Instruments).
The Instruments are issued by AXA Trustees Limited (the Trustee) in its
capacity as trustee of the abovementioned Trust (the Trust) under a Master
Trust Deed dated 14 March 1998 (as amended from time to time) establishing the
Crusade Trusts (the Master Trust Deed).
The Instruments are issued subject to the provisions of the Master Trust Deed,
the Supplementary Terms Notice in relation to the Instruments and the Security
Trust Deed dated. A copy of the Trust Deed, the Supplementary Terms Notice and
the Security Trust Deed are available for inspection by Instrument Holders at
the offices of Crusade Management Limited (ACN 072 715 916) at Level 18, 182
George Street, Sydney, New South Wales 2000.
The Trustee's liability to make payments in respect of the Instruments is
limited to is right of indemnity from the Assets of the Trust from time to
time available to make such payments under the Master Trust Deed and
Supplementary Terms Notice. All claims against the Trustee in relation to the
Instruments may only be satisfied out of the assets of the Trust except in the
case of (and to the extent of) any fraud, negligence or wilful default on the
part of the Trustee or its officers, employees, any agent or delegate employed
by the Trustee other than in accordance with Section 53 of the Trustee Act to
carry out any transactions contemplated by this Deed.
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Notice
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The Instrument Holder 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 Trustee shall not be liable to satisfy any obligations or liabilities from
its personal assets except (and to the extent) of any fraud, negligence or
wilful default on the part other Trustee or its officers, employees or an
agent or delegate employed by the Trustee tother than in accordance with
Section 53 of the Trustee Act to carry out any transactions contemplated by
this Deed. Neither the Trustee nor the Manager guarantees the payment of
interest or the repayment of principal due on the Instruments.
This Instrument Acknowledgment is not a certificate of title and the Register
is the only conclusive evidence of the abovementioned Instrument Holder's
entitlement to Instruments.
Transfers of Instruments must be under an Instrument Transfer in the form
contained in Schedule 4 to the Master Trust Deed (copies of which are
available from then Trustee at its abovementioned address). Executed
Instrument Transfers must be submitted to the Trustee.
Each expression used in this Instrument Acknowledgment that is not defined has
the same meaning as in the Master Trust Deed.
This Instrument Acknowledgment and the Instruments to which it relates will be
governed by the laws of the Australian Capital Territory.
Dated:
Executed in [the Australia Capital Territory/New South Wales] for and on
behalf of the AXA Trustees Limited
- ----------------------------
Authorised Signatory
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Schedule 4
Instrument Transfer and Acceptance
- ------------------------------------------------------------------------------
Crusade Global Trust No.1 of 1999
To: AXA Trustees Limited Date Lodged [*]
as trustee of the Registry Use Only
Crusade Trust No. 1 of 1999 (the Trustee)
Transferor
(Full name, ACN (if applicable) and address):
(please print)
Applies to assign and transfer to
Transferee
(Full name, ACN (if applicable) and address):
(please print)
and its/their executors, administrators or assigns
The following Instruments in the Crusade Global Trust No. 1 of 1999
Number of Instruments:
Name:
[Class]:
Initial Invested Amount:
Interest Payment Dates:
[Principal Amortisation Dates]:
Final Maturity Date:
Consideration Payable: $[*]
and all my/our/its property and interests in rights to those Instruments and
to the interest accrued on them.
TRANSFEROR
--------------------------------------------------------------------`
(Signature: see Instruments)
WITNESS Date:
---------------------------------------------------
TRANSFEREE
-------------------------------------------------------------------`
(Signature: see Instruments)
WITNESS Date:
---------------------------------------------------
PAYMENTS (Tick where appropriate)
* In accordance with existing instructions (existing holders only)
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* By cheque posted to the above address
* By credit to the following account in Australia in the name of the
Transferee only
Tax File Number (if applicable):
Authorised signature of Transferee
--------------------------------------------
Date:
INSTRUMENTS:
1. The Transferor and the Transferee acknowledge that the transfer of
the Instruments specified in this Transfer and Acceptance (the
Instruments) shall only take effect on the entry of the Transferee's
name in the Register as the registered owner of the Instruments.
2. The Transferee agrees to accept the Instruments subject to the
provisions of the Master Trust Deed dated 14 March 1998 (as amended
from time to time) establishing the Crusade Trusts (the Trust Deed),
the Supplementary Terms Notice in relation to the Instruments and the
related Security Trust Deed dated [*].
3. The Transferee acknowledges that it has independently and without
reliance on St.George Bank Limited (ACN 055 513 070), the Trustee,
Crusade Management Limited (ACN 072 715 916) (the Manager) or any
other person (including without reliance on any materials prepared or
distributed by any of the above) made its own assessment and
investigations regarding its investment in the Instruments.
4. The Trustee's liability to make payments in respect of the
Instruments is limited to its right of indemnity from the assets of
the abovementioned Trust from time to time available to make such
payments under the Trust Deed.
5. Where the Transferor and/or the Transferee is a trustee, this
Instrument Transfer must be completed in the name of the trustee and
signed by the trustee without reference to the trust.
6. Where this Instrument Transfer is executed by a corporation, it must
be executed either under common seal or under a power of attorney.
7. If this Transfer and Acceptance is signed under a power of attorney,
the attorney certifies that it has not received notice of revocation
of that power of attorney. A certified copy of the power of attorney
must be lodged with this Instrument Transfer.
8. This Instrument Transfer must be lodged with the Trustee for
registration.
9. The Trustee may, in the manner and for the period specified in the
Trust Deed and any relevant Supplementary Terms Notice, close the
Register. The total period that the Register may be closed will not
exceed 30 days (or such other period agreed to by the Manager) in
aggregate in any calendar year. No Instrument Transfer received after
4:00pm Sydney time on the day of closure of the Register or whilst the
Register is closed will be registered until the Register is re-opened.
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10. If the Transferee is a non-resident for Australian taxation purposes,
withholding tax will be deducted from all interest payments unless an
exemption is provided to the Trustee or withholding tax is no longer
payable as a result of any change in the relevant Australian laws.
11. [Insert any restrictions on the transfer of Instruments.]
[Marking where clause 8.15 applies]
12. The Trustee certifies that the Transferor is inscribed in the
Register as the holder of the Instruments specified in this
Instrument Transfer and that it will not register any transfer of
such Instruments other than under this Instrument Transfer before
[insert date].
Dated:
For and on behalf of [*] Limited
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page 99
<PAGE>
[LOGO]
Security Trust Deed
_________________________________________
AXA Trustees Limited
(Chargor)
National Mutual Life Nominees Limited
(Security Trustee)
Bankers Trust Company
(Note Trustee)
Crusade Management Limited
(Manager)
Crusade Global Trust No. 1 of 1999
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
Allen Allen & Hemsley
Allens
Arthur Robinson
Group
<PAGE>
Security Trust Deed Allen Allen & Hemsley
- --------------------------------------------------------------------------------
Table of Contents
1. Definitions and Interpretation 1
1.1 Definitions 1
1.2 Master Trust Deed definitions and Trust Document amendments 5
1.3 Interpretation 6
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 Chargor as trustee 7
1.9 Knowledge of the Chargor 7
1.10 Knowledge of Security Trustee 7
2. Appointment of Security Trustee 7
2.1 The Security Trustee 7
2.2 Resolution of Conflicts 8
2.3 Duration of Trust 8
2.4 Covenant 8
3. Charge 9
3.1 Charge 9
3.2 Security 9
3.3 Prospective liability 9
4. Nature of Charge 9
4.1 Priority 9
4.2 Nature of Charge 9
4.3 Dealing with Mortgaged Property 9
4.4 Crystallisation 10
4.5 De-crystallisation 11
5. Covenants and Warranties 11
5.1 Covenant 11
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Page (i)
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Security Trust Deed Allen Allen & Hemsley
- --------------------------------------------------------------------------------
5.2 Negative covenants 11
5.3 Warranty 12
5.4 Manager's undertakings 13
6. Further Assurances 13
6.1 Further assurances 13
7. Note Trustee 13
7.1 Capacity 13
7.2 Exercise of rights 14
7.3 Instructions or directions 14
7.4 Payments 14
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 16
8.3 Notify Events of Default 16
9. Enforcement 16
9.1 Power to enforce 16
9.2 No obligation to enforce 16
9.3 Obligation to convene meeting 17
9.4 Security Trustee to act in accordance with directions 17
9.5 Security Trustee must receive indemnity 18
9.6 Limitation on rights of Mortgagees 18
9.7 Immaterial waivers 18
9.8 Acts pursuant to resolutions 19
9.9 Overriding provision 19
10. Appointment of Receiver 19
10.1 Appointment 19
10.2 Agent of Chargor 20
10.3 Receiver's powers 20
10.4 Receiver appointed after commencement of winding up 22
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Page (ii)
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Security Trust Deed Allen Allen & Hemsley
- --------------------------------------------------------------------------------
10.5 Powers exercisable by the Security Trustee 22
10.6 Withdrawal 23
11. Remuneration of Security Trustee 23
11.1 Costs 23
11.2 Fee 23
11.3 Cessation of Fee 23
12. Power of Attorney 24
13. Completion of Blank Securities 24
14. Performance of Chargor's Obligations 24
15. Statutory Powers 25
15.1 Powers in augmentation 25
15.2 Notice not required 25
16. Application of Moneys Received 25
16.1 Priorities 25
16.2 Moneys actually received 27
16.3 Amounts contingently due 27
16.4 Notice of subsequent Security Interests 27
16.5 Satisfaction of debts 27
16.6 Payments into US$ Account 28
16.7 Payments out of US$ Account 28
16.8 Excluded amounts 28
16.9 Proportionate Sharing 28
17. Other Security Interests Over Mortgaged Property 29
18. Protection of Mortgagees, Receiver and Attorney 30
19. Protection of Third Parties 30
19.1 No enquiry 30
19.2 Receipt 31
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20. Expenses, Indemnity 31
20.1 Expenses 31
20.2 Indemnity 31
21. Currency Indemnity 32
22. Stamp Duties 32
23. Interest on Overdue Amounts 32
23.1 Accrual 32
23.2 Payment 33
23.3 Rate 33
24. Certificate as to Amount of Secured Moneys, etc. 33
25. Survival of Representations 33
26. Indemnity and Reimbursement Obligations 33
27. Continuing Security 34
28. Other Securities 34
29. Discharge of the Charge 34
29.1 Release 34
29.2 Contingent liabilities 34
29.3 Charge reinstated 34
30. Amendment 35
30.1 Approval of Manager 35
30.2 Extraordinary Resolution of Voting Mortgagees 35
30.3 Distribution of amendments 36
31. Chargor's Liability 36
31.1 Limitation of liability 36
31.2 Rights against Mortgaged Property preserved 37
31.3 Obligation Express 37
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32. Waivers, Remedies Cumulative 38
33. Consents and Opinion 38
34. Severability of Provisions 38
35. Moratorium Legislation 38
36. Assignments 39
37. Notices 39
38. Relationship of Mortgagees to Security trustee 39
38.1 Instructions; extent of discretion 39
38.2 No obligation to investigate authority 40
38.3 Delegation 40
38.4 Reliance on documents and experts 40
38.5 Notice of transfer 41
38.6 Notice of default 41
38.7 Security Trustee as Mortgagee 41
38.8 Indemnity to Security Trustee 41
38.9 Independent investigation 43
38.10 No monitoring 43
38.11 Information 43
38.12 Conflicts 44
38.13 No Liability 44
39. Retirement and Removal of Security Trustee 45
39.1 Retirement 45
39.2 Removal 45
39.3 Replacement 45
39.4 Rating Agencies Approval 46
40. Meetings of Mortgagees 46
40.1 Limitation on Security Trustee's powers 46
40.2 Convening of meetings 46
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40.3 Notice of meetings 47
40.4 Chairman 48
40.5 Quorum 48
40.6 Adjournment 48
40.7 Voting procedure 49
40.8 Right to attend and speak 50
40.9 Appointment of Proxies 50
40.10 Corporate Representatives 51
40.11 Rights of Representatives 51
40.12 Extraordinary Resolutions 51
40.13 Extraordinary Resolution binding on Mortgagees 52
40.14 Minutes and records 53
40.15 Written resolutions 53
40.16 Further procedures for meetings 53
40.17 Note Trustee rights 53
41. Authorised Signatories 54
42. Governing Law and Jurisdiction 55
43. Counterparts 55
44. Set-Off 55
45. Acknowledgement by Chargor 55
46. Information Memorandum 55
47. Security Trustee's Limited Liability 56
47.1 Reliance on certificate 56
47.2 Security Trustee's reliance on Manager, Note Trustee or Servicer 56
47.3 Compliance with laws 56
47.4 Reliance on experts 57
47.5 Oversights of others 57
47.6 Powers, authorities and discretions 57
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47.7 Impossibility or impracticability 57
47.8 Legal and other proceedings 58
47.9 No liability except for negligence etc. 58
47.10 Further limitations on Security Trustee's liability 59
47.11 Conflicts 60
47.12 Information 60
47.13 Investigation by Security Trustee 61
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Security Trust Deed Allen Allen & Hemsley
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Date 1998
________
Parties
________
1. AXA Trustees Limited (ACN 004 029 841) of Level 2, 65 Southbank
Boulevard, Southbank, Victoria, 3205 in its capacity as trustee
of the Crusade Global Trust No. 1 of 1999 (the Chargor);
2. National Mutual Life Nominees Limited (ACN 004 387 133) of 44 Market
Street, Sydney, New South Wales 2000 (the Security Trustee);
3. Crusade Management Limited (ACN 072 715 916) of 4-16 Montgomery
Street, Kogarah, New South Wales 2217 (the Manager); and
4. Bankers Trust Company acting through its office at 1 Appold
Street, Broadgate, London EC2A 2HE, United Kingdom (the 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 Manager is the manager, of the
Trust.
B Under the terms of the Master Trust Deed, the Chargor is
authorised to enter into this deed to charge the Trust Assets to
secure the due and punctual performance of the obligations of
the Chargor under the Trust Documents and the payment in full of
the Secured Moneys to the Mortgagees.
C The Security Trustee enters into this deed for itself and as
trustee for each other Mortgagee.
D The Note Trustee enters into this deed for itself and as trustee
for each Noteholder.
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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.
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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 under the Master Trust Deed
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 means in relation to the Voting Mortgagees:
(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.
Guarantee means any guarantee, indemnity, letter of credit, legally
binding letter of comfort or suretyship, or any other obligation or
irrevocable offer (whatever called and of whatever nature):
(a) to pay or to purchase;
(b) to provide funds (whether by the advance of money, the
purchase of or subscription for shares or other securities,
the purchase of assets, rights or services, or otherwise) for
the payment or discharge of;
(c) to indemnify against the consequences of default in the payment of; or
(d) to be responsible otherwise for,
an obligation or indebtedness of another person, a dividend,
distribution, capital or premium on shares, stock or other interests,
or the insolvency or financial condition of another person.
Liquidation includes receivership, compromise, arrangement, amalgamation,
administration, reconstruction, winding up, dissolution, assignment for
the benefit of creditors, bankruptcy or death.
Master Trust Deed means the Master Trust Deed dated 14 March 1998 between
the Chargor as Trustee, the Manager and St. George.
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Mortgaged Property means the property and rights 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 Class B Noteholder in relation to its rights under the
Class B Notes held by it;
(d) any Approved Seller in relation to any relevant Accrued Interest
Adjustment and Redraws;
(e) the Manager in relation to its rights as Manager under the Trust
Documents for the Trust;
(f) the Servicer in relation to its rights as Servicer 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;
(i) each Paying Agent in relation to its rights under the Transaction
Documents;
(j) each Mortgage Insurer in relation to any payment by way of timely
payment cover under the relevant Mortgage Insurance Policy; or
(k) each Note Manager in relation to its rights under the Trust Documents.
Noteholder Mortgagees means, together:
(c) the Note Trustee on behalf of the Class A Noteholders save that
where the Note Trustee has become bound to take steps and/or proceed
hereunder and fails to do so within a reasonable time and such
failure is continuing, the Class A Noteholders and then only if and
to the extent permitted by Australian law; and
(d) each Class B Noteholder.
Notice of Creation of Trust means the Notice of Creation of Trust dated
on or about the date of this deed issued under the Master Trust Deed in
relation to the Trust.
Power means a power, right, authority, discretion or remedy which is
conferred on the Security Trustee, a Mortgagee or a Receiver or Attorney:
(a) by this deed or any Collateral Security; or
(b) by law in relation to this deed or any Collateral Security.
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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 and the Supplementary Terms Notice for the Trust,
of which the Chargor is a trustee.
Representative means:
(a) in the case of a Class A Noteholder, the Note Trustee (as its
representative or any other person appointed as a proxy for
the Noteholders in accordance within this deed);
(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. Additionally:
(a) 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; and
(b) where the Chargor would have been liable but for its Liquidation, it
will be taken still to be liable.
Settlor means [lb]*].
St. George means St. George Bank Limited (ACN 055 513 070) of 4-16
Montgomery Street, Kogarah, New South Wales 2000.
Supplementary Terms Notice means the Supplementary Terms Notice dated
on or after the date of this deed relating to the Trust.
Trust means the trust known as the Crusade Global Trust No. 1 of 1999
established under the Notice of Creation of Trust, the Master Trust
Deed and the Supplementary Terms 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 Chargor under
the Trust Documents in respect of the Trust and under the Collection
Account, the Liquidity Account and the US$ Account.
Trust Document means each of:
(a) this deed;
(b) the Master Trust Deed;
(c) the Supplementary Terms Notice;
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(d) the Notice of Creation of Trust;
(e) the Servicing Agreement in respect of the Trust;
(f) the Custodian Agreement in respect of the Trust;
(g) each Note;
(h) each Support Facility for the Trust;
(i) the Agency Agreement;
(j) the Note Trust Deed; or
(k) the Subscription Agreements.
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) with respect only to the enforcement of the security under this deed,
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, if the Note Trustee
has become bound to take steps and/or to proceed hereunder and
fails to do so within a reasonable time and such failure is
continuing, the Noteholders and then only if and to the extent
the Noteholders are able to do so under Australian law; 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 Supplementary Terms Notice) and the Supplementary Terms
Notice (including in each case by reference to another agreement)
have the same meanings when used in this deed unless the context
otherwise requires or unless otherwise defined in this deed.
(b) Subject to Clause 30, no change to the Master Trust Deed or any other
document (including the order of payment set out in the Supplementary
Terms 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
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(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 provided that no such waiver will be capable of
taking effect unless the Security Trustee has first, subject to
clause 40.17(d), obtained the prior written consent of the
Noteholder Mortgages; 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 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 in
the absence of manifest error or proof to the contrary.
1.5 Document or agreement
A reference to:
(a) an agreement includes a Security Interest, Guarantee, undertaking,
deed, agreement or legally enforceable arrangement whether or not in
writing; and
(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) Subject to Clause 9.5, 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.
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(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 Chargor 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.
1.9 Knowledge of the Chargor
In relation to the Trust, the Chargor will be considered to have
knowledge or notice of or be aware of any matter or thing if the Chargor
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
Chargor who have day to day responsibility for the administration of the
Trust.
1.10 Knowledge of Security Trustee
For the purposes of this deed, the Security Trustee will only be
considered to have knowledge, notice of or to be aware of any thing if
the Security Trustee has knowledge, notice or awareness of that thing by
virtue of the actual knowledge, notice or awareness of the officers or
employees of the Security Trustee who have day to day responsibility
for the administration of the security trust established by this deed.
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 A$10.00 received on the date of this deed from
the Settlor; and
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(ii) will hold the benefit of the Charge, the Mortgaged Property and
the benefit of each of the Trust Documents to which the Security
Trustee 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) The Security Trustee shall, as regards the exercise of all
discretions vested in it by this deed and all other Transaction
Documents, except where expressly provided otherwise, have regard to
the interest of the Mortgagees.
(b) Subject to the provisions of this deed, if there is at any time, with
respect to enforcement, a conflict between a duty owed by the Security
Trustee to any Mortgagee or class of Mortgagees, and a duty owed by
it to another Mortgagee or class of Mortgagees, the Security Trustee
must give priority to the interests of the Noteholders (which in the
case of Class A Noteholders shall be determined by the Note
Trustee acting on their behalf (as provided in clause 40.17) or the
Class A Noteholders, as provided herein and in the Note Trust Deed
and which, in the case of Class B Noteholders shall be determined
by the Class B Noteholders as provided herein).
(c) Subject to the provisions of this deed (other than paragraph (b)),
the Security Trustee must give priority to the interests only of the
Class A Noteholders if, in the Security Trustee's opinion (in
relation to which in determining the interests of the Class A
Noteholders, the Security Trustee may rely on a determination of the
Note Trustee) there is a conflict between the interests of
the Class A Noteholders and the interests of the Class B Noteholders
or other Mortgagees.
(d) Provided that the Security Trustee acts in accordance with a
determination of the Note Trustee and in good faith, it shall not
incur any liability to any Mortgagee for giving effect to paragraph
(b) or (c).
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 the Approved Seller
that it will comply with clause 12.4(l)(i) of the Master Trust Deed in
relation to any Receivable Security or Related Security which the
Chargor or the Approved Seller has notified in writing to the Security
Trustee is affected by a Trust Back.
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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 into 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$2,000,000,000,000 and the total amount recoverable under
this deed is limited to A$2,000,000,000,000 or its equivalent in
another currency.
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 as expressly permitted in any Trust Document, the Chargor
shall not, and the 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
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(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 the occurrence of an Event of Default;
(ii) if the Chargor:
(A) creates or allows any Security Interest over;
(B) sells, leases or otherwise disposes of;
(C) creates or allows any interest in; or
(D) parts with possession of,
that asset in breach of a Trust Document, or agrees or attempts
to do so or takes any step towards doing so;
(iii) on the Commissioner of Taxation or his delegate or successor
signing a notice under:
(A) s218 or s255 of the Income Tax Assessment Act 1936;
(B) s74 of the Sales Tax Assessment Act 1992; or
(C) any similar legislation,
which will affect that asset; or
(iv) on a Government Agency taking any step which may result in an
amount of Tax or an amount owing to a Government Agency ranking
ahead of the floating charge with respect to that asset; or
(b) in respect of all the Mortgaged Property:
(i) if an Insolvency Event occurs with respect to the Chargor;
(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.
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4.5 De-crystallisation
The Security Trustee must, at the direction of the Manager, 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 when due in accordance
with the Transaction Documents, including in accordance with
Clause 8.2.
(b) Subject to the limitations on the obligations and liability of
the Chargor under the Master Trust Deed and the other Transaction
Documents, the Chargor shall use its reasonable endeavours to ensure
that no Event of Default occurs.
(c) The Chargor will ensure that it complies with its obligations
under the Trust Documents.
(d) The Chargor will give to the Note Trustee a copy of the Register,
and to the Security Trustee any information in the power or possession
of the Chargor relating to the Trust that the Security Trustee
reasonably requests in connection with the exercise and performance
of its powers and obligations under this deed, including without
limitation:
(i) the identity, and notice details of, each Mortgagee
and Beneficiary; and
(ii) the Secured Moneys owing to each Mortgagee.
(e) The Chargor shall cause this deed to be duly stamped and 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 Manager direct or cause 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 for each class of Notes of the rating assigned to the
Notes except as permitted by this deed, the Master Trust Deed or the
Supplementary Terms Notice for the Trust:
(a) (no Financial Indebtedness) create, incur, assume, permit or suffer
to exist any Financial Indebtedness except for:
(i) the Notes;
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(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 Agencies for each
Class of Notes that it will not result in any reduction or
withdrawal of the ratings 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 permitted by the Trust Documents;
(c) (bank accounts) not open any bank account not permitted in the
Trust Documents; and
(d) (Security Interest) not create or permit or suffer to exist 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
as far as the Chargor is aware.
(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, the Notice of Creation of Trust and the Supplementary
Terms Notice.
(f) (Right of indemnity) As far as the Chargor is aware, except as
expressly provided in the Master Trust Deed or the Supplementary
Terms Notice or statute the Chargor has not limited in any way, and
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the Chargor has no liability which may be set off against, the
Chargor's Indemnity.
(g) (No proceedings to remove) As far as the Chargor is aware, 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 Manager's undertakings
The Manager undertakes to the Security Trustee when requested promptly
to give to the Security Trustee:
(a) a copy of each custody audit relating to the Trust given under the
Custodian Agreement;
(b) a copy of each Manager's Report given in relation to the Trust;
(c) each audit report issued by the Auditor in relation to the Trust; and
(d) a copy of each Trust Document and details and information relating to:
(i) the identity, and notice details of, each Support Facility
Provider; and
(ii) the Secured Moneys owing to each Support Facility Provider.
6. Further Assurances
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6.1 Further assurances
Whenever the Security Trustee reasonably requests the Chargor to do
anything:
(a) more satisfactorily mortgaging, assuring or securing 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) aiding in the execution or exercise of any Power,
the Chargor shall do it immediately, subject to any liability it incurs
other than from its own negligence, fraud or Default 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.
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7.2 Exercise of rights
Except as otherwise provided in this deed and in the Note Trust Deed:
(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; and
(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 and the Note Trust 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
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 Noteholder.
7.5 Notices
Any notice to be given to a Class A Noteholder under this deed may be
given to the Note Trustee on behalf of that Class A Noteholder. Any
costs to the Note Trustee of publishing such notice to the Noteholders
will be reimbursed by the Chargor to the Note Trustee.
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 Interest Entitlement within 10 Business Days of the
Quarterly Payment Date on which the Interest Entitlement was due
to be paid, together with all interest accrued and payable on
that Interest Entitlement; or
(ii) any other Secured Moneys, within 10 Business Days of the due
date for payment (or within any applicable grace period agreed
with the Mortgagees, or where the Mortgagee is a Class
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A Noteholder, with 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 a
Material Adverse Effect and that default (if in the opinion of the
Security Trustee capable of remedy) is not remedied within 30 days
after written notice (or such longer period as may be specified
in the notice) from the Security Trustee requiring the failure to be
remedied.
(c) (Insolvency) An Insolvency Event occurs in relation to the Chargor.
(d) (Priority of Charge) The Charge is not or ceases to be a first
ranking charge over the Trust Assets, or any other obligation of the
Chargor (other than as mandatorily preferred by law) ranks ahead of
or pari passu with any of the Secured Moneys.
(e) (Enforcement of security) Any Security Interest over the Trust Assets
is enforced.
(f) (Vitiation of Trust Documents)
(i) All or any part of any Trust Document (other than the Basis
Swap, the Redraw Facility Agreement or, where the Currency Swap
is terminated by the provider of the Currency Swap as a result
of a call exercised by the Trustee under Condition 5(j), the
Currency Swap) 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, the
Redraw Facility or, where the Currency Swap is terminated by the
provider of the Currency Swap as a result of a call exercised
by the Trustee under Condition 5(j), the Currency Swap)
where that event has or will have a Material Adverse Effect.
(g) (Trust) Without the prior consent of the Security Trustee (such
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; or
(iii) unless another trustee is contemporaneously and immediately
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.
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8.2 Rights of the Security Trustee upon Event of Default
At any time after an Event of Default occurs, the Security Trustee may,
and shall (subject to clauses 9.2, 9.3, 9.4 and 9.5) if so directed by
an Extraordinary Resolution:
(a) declare the Charge immediately enforceable;
(b) declare the Secured Moneys immediately due and payable;
(c) give a notice crystallising the charge in relation to any or all of
the Mortgaged Property under clause 4.4; and/or
(d) appoint a Receiver over the Trust Assets, or exercise the powers that
a Receiver would otherwise have if appointed under this deed.
The Security Trustee may exercise its rights under this clause
notwithstanding any delay or previous waiver.
8.3 Notify Events of Default
Each of the Chargor and the 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,
Custodial Transfer Event (as defined in the Custodian Agreement), Title
Perfection Event or Manager's Default including full details of that
Event of Default, Trustee's Default, Servicer Transfer Event, Title
Perfection Event, Custodial Transfer Event or 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 including, without limitation, clause 8.2) take such
proceedings as it may think fit to enforce any of the provisions of
this deed.
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 Voting Mortgagees.
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9.3 Obligation to convene meeting
(a) Prior to the Security Trustee becoming actually aware of the
occurrence of an Event of Default and provided that it has been
indemnified to its satisfaction in accordance with this deed,
the Security Trustee may enforce this deed without an Extraordinary
Resolution of the Voting Mortgagees if it believes (in its absolute
discretion) that it is necessary to do so to protect the interests
of the Mortgagees.
(b) Following the Security Trustee becoming actually aware of the
occurrence of an Event of Default in accordance with clause 1.10, it
shall, subject to clause 9.7, promptly convene a meeting of the Voting
Mortgagees in accordance with this deed, at which it shall seek
directions from the Voting Mortgagees by way of an Extraordinary
Resolution of the Voting Mortgagees 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
property held on trust under clause 2.1(b) or the Security
Trustee receiving from the Voting Mortgagees (other than the
Note Trustee) 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
property held on trust under clause 2.1(b) before it claims on any
indemnity from the Mortgagees other than the Note Trustee, including
any indemnity provided under clause 9.5. The Note Trustee is in no
circumstance required to give any indemnity to the Security Trustee.
(c) If an Event of Default is a payment default in respect of a
subordinated class of Notes, as long as there are Class A Notes
outstanding that rank prior to those subordinated Notes, the
Security Trustee shall not take any action without the consent of
the Note
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Trustee acting at the direction of each class of prior ranking Class
A Noteholder by Extraordinary Resolution.
(d) If the Security Trustee becomes bound to take steps and/or proceed
under this deed and it fails to do so within a reasonable time and
such failure is continuing, the Voting Mortgagees may exercise such
powers as they determine by Extraordinary Resolution and then only if
and to the extent the Voting Mortgagees are able to do so under
Australian law.
9.5 Security Trustee must receive indemnity
If:
(i) 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 (other than the Note Trustee) 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
(ii) those 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. The
Note Trustee is in no circumstance required to give any indemnity to
the Security Trustee.
9.6 Limitation on rights of Mortgagees
Subject to this deed (including, without limitation, clauses 9.4(b) and
9.5), 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, subject to clause 9.5, 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 clauses 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
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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 reasonable opinion of the Security Trustee,
materially prejudicial to the interests of the Mortgagees and may
determine 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 such waiver, authorisation or determination shall be made in
contravention of any directions contained in an Extraordinary
Resolution of Voting Mortgagees.
(c) Any such waiver, authorisation or determination shall, if the
Security Trustee so requires, be notified to the Voting Mortgagees by
the 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 reason 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 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
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(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 the Receiver's acts
and defaults.
(b) Each Mortgagee acknowledges that:
(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 and in accordance
with the interests of the Mortgagees in accordance with this deed,
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). However,
every Receiver acknowledges that the Chargor's liability in relation to
the Receiver's exercise of those powers is limited to the assets of the
Trust. 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) (Lend) He may lend money or provide financial accommodation.
(g) (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;
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(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.
(h) (Options) He may grant or take put or call options.
(i) (Sever fixtures) He may sever fixtures.
(j) (Employ) He may employ or discharge any person as employee,
contractor, agent, professional adviser, consultant or auctioneer
for any purpose.
(k) (Compromise) He may make or accept any arrangement or compromise.
(l) (Give receipts) He may give receipts for money and other assets.
(m) (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.
(n) (Vary and terminate agreements) He may vary, rescind or terminate any
document or agreement (including surrender or accept the surrender of
leases).
(o) (Authorisations) He may apply for, take up, transfer or surrender any
Authorisation or any variation of any Authorisation.
(p) (Take insolvency proceedings) He may make, commence and pursue
insolvency proceedings against any person and do any thing in
relation to any actual or contemplated Liquidation (including
attend and vote at meetings of creditors and appoint proxies).
(q) (Take proceedings) He may commence, defend, conduct, settle,
discontinue or compromise proceedings in the name of the Chargor or
otherwise.
(r) (Execute Documents) He may enter into and execute documents or
agreements on behalf of himself or the Chargor.
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(s) (Operate bank accounts) He may operate any bank account comprising
part of the Mortgaged Property and open and operate any further bank
account.
(t) (Surrender Mortgaged Property) He may surrender, release or transfer
any of the Mortgaged Property.
(u) (Exchange Mortgaged Property) He may exchange with any person any of
the Mortgaged Property for other property.
(v) (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.
(w) (Delegate) He may delegate to any person approved by the Security
Trustee any of his Powers (including delegation).
(x) (Have Access) He may exercise all the rights of the Chargor under
the Trust Documents with respect to the Trust Assets.
(y) (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.
(z) (Other outgoings) He may pay any outgoing or indebtedness of the
Chargor or any other person.
(aa) (Security Interests) He may redeem any Security Interest or acquire
it and any debt secured by it.
(bb) (Insure) He may take out insurance.
(cc) (Insurance claims) He may make, enforce, compromise and settle all
claims in respect of insurance.
(dd) (Incidental power) He may do anything incidental to the exercise of
any other Power.
All of the above paragraphs are to be construed independently. None
limits the generality of any other.
10.4 Receiver appointed after commencement of winding up
The power to appoint a Receiver may be exercised even though:
(a) an order may have been made or a resolution may have been passed
for the Liquidation of 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
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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 (provided it does not have a
Material Adverse Effect) 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 Supplementary Terms 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 fee from the proceeds of
the Mortgaged Property at the rate agreed from time to time by the
Chargor, the Security Trustee and the Manager. This fee shall accrue
from day to day.
(b) If the Security Trustee is required at any time to undertake duties
which relate to the enforcement of the terms of any Transaction
Document by the Security Trustee upon a default by any other party
under the terms of that Transaction Document, the Security Trustee is
entitled to such additional remuneration as may be agreed between the
Security Trustee and the Manager or, failing agreement, such amount
as is determined by a merchant bank (acting as an expert and not as
an arbitrator) selected by the Security Trustee. The determination of
such merchant bank shall be conclusive and binding on the Manager and
the Security Trustee so far as the law allows.
(c) The Security Trustee's fee under sub-clause (a) shall be payable in
arrears for the relevant period on the same dates as the Chargor's
fee under the Master Trust Deed for the Trust or as agreed from time
to time by the Chargor, the Security Trustee and the 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.
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12. Power of Attorney
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(a) For valuable consideration and by way of security the Chargor
irrevocably appoints each Receiver and 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.
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 do
anything which in its opinion is necessary or expedient to make good or
to attempt to make good that failure to its satisfaction.
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15. Statutory Powers
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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 and, subject to clause 40.17(d), and
provided there is sufficient time to do so, with the prior written
consent of the Noteholder Mortgagees) 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 Supplementary Terms
Notice) in the following order of priority, subject to any other
priority which may be required by statute or law:
(a) first, to pay (pari passu and rateably):
(i) any fees and other expenses due to the Security Trustee or the
Note Trustee;
(ii) any fees and other expenses due to the Principal Paying Agent;
(iii) any Expenses then due and unpaid with respect to the Trust; and
(iv) the Receiver's remuneration;
(b) second, 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
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those referred to in paragraph (d)) payable to the Security Trustee
or the Note Trustee under this deed;
(c) third, to pay any unpaid Accrued Interest Adjustment due to the
Approved Seller;
(d) fourth, to repay the Mortgage Insurer any moneys previously paid
under the Mortgage Insurance Policy by way of timely payment cover
but only to the extent that funds are received from the relevant
Obligor;
(e) fifth, to pay to the Swap Provider under the Interest Rate Swap any
Break Payments received by or on behalf of the Trustee from a
Borrower or the Mortgage Insurer and which have not previously been
paid to that Swap Provider.
(f) sixth, 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 Class A Noteholders (as at the
date of payment);
(iii) all Secured Moneys owing in relation to any Redraws made by the
Approved Seller for which it has not been reimbursed under the
Trust Documents; and
(iv) 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 (ii));
(g) seventh, all Secured Moneys owing to the Class B Noteholders (as at
the date of payment);
(h) eighth, to pay (pari passu and rateably) any amounts not covered
above owing to any Mortgagee under any Trust Document;
(i) ninth, to pay all monies owing to the Mortgage Insurer and not
paid under Clause 16.1(d);
(j) tenth, 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;
(k) eleventh, to pay any surplus to the Chargor to be distributed in
accordance with the Master Trust Deed and the Supplementary Terms
Notice.
The surplus will not carry interest. If the Security Trustee or a
Receiver, Mortgagee or Attorney pays the surplus to the credit of an
account in the name of the Chargor with any bank carrying on business
in Australia, the Security Trustee, Receiver, Mortgagee or Attorney
(as the case may be) will be under no further liability in respect of
it.
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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 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
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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 Supplementary Terms Notice, 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 Chargor under clause 16.1(f)(ii),
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 properly secured by the Security
Interest.
(b) Any of:
(i) the proceeds of cash collateral lodged by the provider of an
Hedge Agreement which are payable to that person under that
Hedge Agreement; and
(ii) 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 relevant Support
Facility Provider.
16.9 Proportionate Sharing
(a) Sharing
Whenever any Mortgagee receives or recovers any money in respect of
any sum due from the Chargor under a Trust Document in any
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way (including without limitation by set-off) except those referred
to in clause 16.8 or through distribution by the Security Trustee
under this deed (the Received Moneys).
(i) the Mortgagee shall immediately notify the Security Trustee;
(ii) the Mortgagee shall immediately pay that money to the Security
Trustee (unless the Security Trustee directs otherwise). As
between each class of Class A Noteholders, such payments (if
any) are to be made pari passu and rateably;
(iii) the Security Trustee shall treat the payment as if it were a
payment by the Chargor on account of all sums then payable to
the Mortgagees; and
(iv) (A) the payment or recovery will be taken to have been a
payment for the account of the Security Trustee and not to
the Mortgagee for its own account, and to that extent the
liability of the Chargor to the Mortgagee will not be
reduced by the recovery or payment, other than to the
extent of any distribution received by the Mortgagee under
paragraph (iii); and
(B) (without limiting sub-paragraph (A)) immediately on the
Mortgagee making or becoming liable to make a payment
under paragraph (ii), the Chargor shall indemnify the
Mortgagee against the payment to the extent that (despite
sub-paragraph (A)) its liability has been discharged by
the recovery or payment.
(b) Netting
If a Mortgagee receives or recovers any Received Moneys, and does not
pay that amount to the Security Trustee under paragraph (a) above,
the Security Trustee may retain out of amounts which would otherwise
be payable to the Mortgagee under this deed any amounts which the
Security Trustee considers necessary to put all Mortgagees in the
same position as if that Mortgagee had complied with, or been
required to comply with, paragraph (a) above and the Security
Trustee's obligation to apply monies to such Mortgagee shall be
discharged to the extent of such retention.
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
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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, negligence or wilful default on the
part of any Mortgagee, Receiver or Attorney.
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,
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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 Supplementary Terms Notice and this deed, the
Chargor shall reimburse each Mortgagee or (where the Mortgagee is a
Class A Noteholder who is not a Voting Mortgagee) 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
(b) (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
Subject to Clause 16.1, 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
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(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
(b) the amount actually received or recovered by that Mortgagee in
accordance with its normal practice when it converts the Payment
Currency into the Due Currency is less than the relevant amount of
the Due Currency.
22. Stamp Duties
- --------------------------------------------------------------------------------
(a) The Chargor shall pay (and reimburse each Mortgagee for) 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 any bank or
financial institution other than interest withholding tax.
(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
- --------------------------------------------------------------------------------
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
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(c) at the rate provided in clause 23.3,
except where the Trust Document provides otherwise.
23.2 Payment
The Chargor shall pay interest accrued under this clause on demand by
the Security Trustee and on each Payment Date. That interest is payable
in the currency of the unpaid amount on which it accrues.
23.3 Rate
The rate applicable under this clause is the sum of 2% per annum plus
the higher of the following, each as determined by the Security Trustee:
(a) the rate (if any) applicable to the amount immediately before the
due date; and
(b) the sum of 2% and the Three Month Bank Bill Rate.
24. Certificate as to Amount of Secured Moneys, etc.
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A certificate signed by an Authorised Signatory of the Security Trustee
will be sufficient evidence against the Chargor and the Mortgagees, in
the absence of manifest error or proof to the contrary:
(a) as to the amount of Secured Moneys stated in the certificate;
(b) that a person specified in that certificate is a Mortgagee;
(c) that a document specified in that certificate is a Trust Document; and
(d) that the Security Trustee is of the opinion stated in the certificate.
25. Survival of Representations
- --------------------------------------------------------------------------------
All representations and warranties in a Trust Document survive the
execution and delivery of the Trust Documents and the provision of
advances and accommodation.
26. Indemnity and Reimbursement Obligations
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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 Supplementary
Terms Notice and clause 16 of this deed and the restriction on
remedies contained in clause 31.
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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
until a final discharge of this deed and each Collateral Security has
been given to the Chargor.
28. Other Securities
- --------------------------------------------------------------------------------
No Power and nothing in this deed or any Collateral Security merges in,
or in any other way prejudicially affects or is prejudicially affected
by:
(a) any other Security Interest; or
(b) any judgment, right or remedy against any person,
which any Mortgagee or any person claiming through any Mortgagee may
have at any time.
29. Discharge of the Charge
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29.1 Release
Upon the 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, subject to Clause 29.2, at the request
of the 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 release the Charge
in respect of the Trust unless at the time such release is sought the
Security Trustee has no contingent or prospective liabilities in
respect of the Trust or otherwise in connection with this deed whether
or not there is any reasonable likelihood of such liabilities, becoming
actual liabilities, including without limitation, in respect of any
bills, notes drafts, cheques, guarantees, letters of credit or other
notes or documents issued, drawn, endorsed or accepted by the Security
Trustee for the account or at the request of the Chargor for the Trust.
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
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(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 expense of the
Trust, 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 agrees otherwise in writing.
30. Amendment
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30.1 Approval of Manager
The Security Trustee and the Chargor may, following the giving of at
least 10 Business Days prior written notice to each Designated Rating
Agency, and with the written approval of the Manager and (subject to
Clause 40.17(d)) the Noteholder Mortgagees and, 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 Agency;
(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 and in accordance with
this deed neither prejudicial nor likely to be prejudicial to
the interest of the Mortgagees as a whole or any class of
Mortgagee.
30.2 Extraordinary Resolution of Voting Mortgagees
Where in the opinion of the Security Trustee and in accordance with
this deed, 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.
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30.3 Distribution of amendments
The Manager shall distribute to all Voting Mortgagees and each
Designated Rating Agency, 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. Chargor's Liability
- --------------------------------------------------------------------------------
31.1 Limitation of liability
(a) General
Clause 30 of the Master Trust Deed applies to the obligations
and liabilities of the Chargor and the Manager under this deed.
(b) Limitation of Chargor's Liability
(i) The Chargor enters into this deed only in its
capacity as trustee of the Trust and in no other
capacity (except where the Transaction Documents
provide otherwise). Subject to paragraph (c) below, 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 assets and property of the Trust which are
available to satisfy the right of the Chargor to be
exonerated or 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.
(ii) Subject to paragraph (iii) below, no person
(including any Relevant Party) may take action
against 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.
(iii) The provisions of this clause 31.1(b) shall not apply
to any obligation or liability of the Chargor 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 Chargor's
indemnification or exoneration out of the Assets of
the Trust as a result of the Chargor's fraud,
negligence, or Default.
(iv) It is acknowledged that the Relevant Parties are
responsible under the Transaction 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
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Default of the Chargor for the purpose of paragraph
(iii) above to the extent to which the act or
omission was caused or contributed to by any failure
by any Relevant Party or any person who has been
delegated or appointed by the Chargor in accordance
with this deed or any other Transaction Document to
fulfil its obligations relating to the Trust or by
any other act or omission of a Relevant Party or any
such person.
(v) In exercising their powers under the Transaction
Documents, each of the Chargor, the Security Trustee
and the Noteholders must ensure that no attorney,
agent, delegate, receiver or receiver and manager
appointed by it in accordance with this deed 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 Default of the
Chargor for the purpose of paragraph (iii) above.
(vi) In this clause, Relevant Parties means each of the
Manager, the Servicer, the Calculation Agent, each
Paying Agent, the Note Trustee, and the provider of a
Support Facility.
(vii) Nothing in this clause limits the obligations
expressly imposed on the Chargor under the
Transaction Documents.
31.2 Rights against Mortgaged Property preserved
The Mortgaged Property shall secure to the Security Trustee, and the
Security Trustee shall have recourse to the Mortgaged Property for, all
of the liabilities of the Chargor to the Mortgagees under the Trust
Documents notwithstanding that at general law, under statute or under
the Master Trust Deed the Chargor has not properly incurred such
liability as Chargor or does not have a right of indemnity in relation
to that liability from the Mortgaged Property or has failed to execute
that degree of care, diligence and prudence required of a trustee
(including, without limiting the generality of the foregoing any fraud,
negligence or breach of trust).
31.3 Obligation Express
The Chargor, is not obliged to enter into any commitment or obligation
under this deed, unless:
(a) in the case of commitments or obligations that are expressly
contemplated by a Transaction Document and are between parties
to a Transaction Document, the Chargor's liability is limited
in the same manner as set out in this clause 31; or
(b) in the case of any other commitments or obligations, the
Chargor's liability is limited in a manner satisfactory to the
Chargor in its absolute discretion.
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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.
(b) The Powers in this deed and each Collateral Security are in
addition to, and do not exclude or limit, any right, power or
remedy provided by law.
33. Consents and Opinion
- --------------------------------------------------------------------------------
Except where expressly stated any Mortgagee may give or withhold, or
give conditionally, approvals and consents, may be satisfied or
unsatisfied, may form opinions, and may exercise its Powers, at its
absolute discretion.
34. Severability of Provisions
- --------------------------------------------------------------------------------
(a) Any provision of this deed or any Collateral Security which is
prohibited or unenforceable in any jurisdiction is ineffective
as to that jurisdiction to the extent of the prohibition or
unenforceability. That does not invalidate the remaining
provisions of this deed or any Collateral Security nor affect
the validity or enforceability of that provision in any other
jurisdiction.
(b) Without limiting the generality of paragraph (a):
(i) the definition of Secured Moneys does not include any
liability so long as and to the extent that the
inclusion of that liability would avoid, invalidate
or render ineffective clause 3 or 4 or the security
constituted by this deed; and
(ii) the definition of the Mortgaged Property does not
include any asset so long as and to the extent that
the inclusion of that asset would invalidate, avoid
or render ineffective clause 3 or 4 or the security
constituted by this deed.
The Chargor shall use its reasonable endeavours to satisfy any
condition or obtain any Authorisation which relates to it as
trustee of the Trust, but not in respect of the Trust
generally which may be necessary to include that liability or
asset validly under the Charge or this deed.
35. Moratorium Legislation
- --------------------------------------------------------------------------------
To the full extent permitted by law all legislation which at any time
directly or indirectly:
(a) lessens, varies or affects in favour of the Chargor any
obligation under this deed or any Collateral Security; or
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(b) delays, prevents or prejudicially affects the exercise by any
Mortgagee, any Receiver or Attorney, of any Power,
is excluded from this deed and any Collateral Security.
36. Assignments
- --------------------------------------------------------------------------------
(a) 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 in
accordance with the Transaction Documents and if prior notice
has been given to each Designated Rating Agency and such
assignment or transfer has no adverse effect on the ratings of
the Notes.
37. Notices
- --------------------------------------------------------------------------------
(a) All notices, requests, demands, consents, approvals,
agreements or other communications to or by a party to this
deed:
(i) must be in writing;
(ii) must be signed by an Authorised Signatory of the
sender; and
(iii) will be taken to be duly given or made (in the case
of delivery in person, by post, 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.
(b) The Security Trustee may give notice to a Mortgagee at the
address notified to the Security Trustee by the Chargor or the
Manager as that Mortgagee's address for notice or, where the
Mortgagee is a Noteholder, at the address of the Note Trustee.
38. Relationship of Mortgagees to Security trustee
- --------------------------------------------------------------------------------
38.1 Instructions; extent of discretion
(a) The Security Trustee will have no duties or responsibilities
except those expressly set out in this deed or any Collateral
Security.
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(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, if it does
act, it must act (with prior written notice to the Noteholder
Mortgagees) in the best interests of the Mortgagees in
accordance with this deed.
(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) Neither the Chargor nor the Security Trustee need 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
(a) The Security Trustee may employ agents and attorneys, and,
provided that the Security Trustee exercises reasonable care
in selecting them, providing the Security Trustee and the
agent or attorney, as the case may be, are not related bodies
corporate (as defined in the Corporations Law) the Security
Trustee will not be liable for the acts or omissions of any
such agent or delegate. 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 Manager)
before the occurrence of an Event of Default, the Security
Trustee shall first inform the Manager of the need for the
advice or information and obtain the approval of the Manager,
which approval shall not be unreasonably withheld or delayed.
(b) Notwithstanding other provisions in this clause 38.3, where
the Security Trustee employs a related body corporate as agent
or attorney, the Security Trustee shall be liable for all acts
or omissions of the agent or attorney done or omitted whilst
acting in its capacity as such.
38.4 Reliance on documents and experts
The Security Trustee may rely on:
(a) any document (including any facsimile transmission, telegram
or telex) it reasonably believes to be genuine and correct
including any
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document given by the Chargor under clause 5.1(d) or by the
Manager under clause 5.4; and (b) advice 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 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 Mortgagees.
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, Manager and any Mortgagee or
other person as if it were not the Security Trustee. It may
receive consideration for services in connection with any
Trust Document and otherwise without having to account to the
Mortgagees.
38.8 Indemnity to Security Trustee
(a) Subject to clause 38.8(b) and to the order of payment
contained in the Supplementary Terms Notice and clause 16 of
this deed, the Chargor shall indemnify the Security Trustee
(to the extent not reimbursed by the Chargor) against any
loss, cost, liability, expense or damage the Security Trustee
may sustain or incur directly or indirectly under or in
relation to the Trust Documents. This does not limit the
Chargor's liability under any other provision.
(b) The Chargor is not liable under this sub-clause for any of the
above to the extent that they arise from the Security
Trustee's fraud, negligence or breach of trust.
(c) (i) Subject to paragraph (c)(iii) below, a liability arising
under or in connection with this deed or the trust constituted
under this deed can be enforced against the Security Trustee
only to
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the extent to which it can be satisfied out of the assets and
property of the trust constituted under this deed which are
available to satisfy the right of the Security Trustee to be
exonerated or indemnified for the liability. This limitation
of the Security Trustee's liability applies despite any other
provision of this deed and extends to all liabilities and
obligations of the Security Trustee in any way connected with
any representation, warranty, conduct, omission, agreement or
transaction related to this deed or the trust constituted
under this deed.
(ii) Subject to paragraph (c)(iii) below, no person (including any
Relevant Party) may take action against the Security Trustee
in any capacity other than as trustee of the trust constituted
under this deed or seek the appointment of a receiver (except
under this deed), or a liquidator, an administrator or any
similar person to the Security Trustee or prove in any
liquidation, administration or arrangements of or affecting
the Security Trustee.
(iii) The provisions of this clause 38.8(c) shall not apply to any
obligation or liability of the Security 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 Security Trustee's indemnification or exoneration out of
the assets as a result of the Security Trustee's fraud,
negligence or breach of trust.
(iv) It is acknowledged that the Relevant Parties are responsible
under the Transaction Documents for performing a variety of
obligations relating to the Trust and the trust constituted
under this deed. No act or omission of the Security Trustee
(including any related failure to satisfy its obligations
under this deed) will be considered fraud, negligence or
breach of trust of the Security Trustee for the purpose of
paragraph (c)(iii) above to the extent to which the act or
omission was caused or contributed to by any failure by any
Relevant Party or any person who has been delegated or
appointed by the Security Trustee in accordance with this deed
or any other Transaction Document to fulfil its obligations
relating to the Trust or the trust constituted under this deed
or by any other act or omission of a Relevant Party or any
such person.
(v) In exercising their powers under the Transaction Documents,
each of the Chargor, the Security Trustee and the Noteholders
must ensure that no attorney, agent, delegate, receiver or
receiver and manager appointed by it in accordance with this
deed has authority to act on behalf of the Security Trustee in
a way which exposes the Security 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
Security Trustee for the purpose of paragraph (c)(iii) above.
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(vi) The Security Trustee is not obliged to enter into any
commitment or obligation under this deed, unless:
(A) in the case of commitments or obligations that are
expressly contemplated by a Transaction Document and
are between parties to a Transaction Document, the
Security Trustee's liability is limited in the same
manner as set out in this subclause (c); or
(B) in the case of any other commitments or obligations,
the Security Trustee's liability is limited in a
manner satisfactory to the Security Trustee in its
absolute discretion.
(vii) A failure by the Security Trustee to act because it has not
received instructions (or proper instructions) from the
Mortgagees is not fraud, negligence or breach of trust.
(viii) In this clause, Relevant Parties means each of the Manager,
the Servicer, the Calculation Agent, each Paying Agent, the
Note Trustee, and the provider of a Support Facility.
(ix) Nothing in this clause limits the obligations expressly
imposed on the Security Trustee under the Transaction
Documents.
38.9 Independent investigation
Each Mortgagee confirms that it has made and will continue to make,
independently and without reliance on the Security Trustee, the Chargor
or any other Mortgagee (including the Manager) unless otherwise
provided in the Transaction Documents and based on the Trust Documents,
agreements and information which it regards appropriate:
(a) its own investigations into the Trust, the Notes and other
Mortgagee (including the Manager); 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 Manager with any Trust Document or any
other document or agreement or to inspect any property or book of the
Chargor or the Manager.
38.11 Information
The Chargor authorises:
(a) the Security Trustee to provide any Mortgagee; and
(b) the Note Trustee and any Paying Agent to provide any
Class A Noteholder,
with any information concerning the Trust and Notes which may come into
the possession of the Security Trustee or the Note Trustee (as the case
may
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be). Save for the information which is required by any Transaction
Document to be provided by it to the respective persons referred to in
paragraph (a) or (b) (as the case may be), none of the Security
Trustee, Note Trustee or any Paying Agent need otherwise provide any
other person with such information.
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 of 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 may comply with such direction or
order; 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) Neither the Security Trustee nor the Note Trustee has any
responsibility for the form or contents of this deed or any
other Trust Document and will have any liability (except, in
each case, with respect to itself) 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 disposition 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 the Chargor or any person in respect of the
Chargor or the Secured Moneys or relating in any way to the
Mortgaged Property;
(b) any decline or loss 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 this 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
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by clearing organisations or their operator or by any person
on behalf of the Note Trustee,
except for the fraud, negligence or breach of trust of the Security
Trustee.
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, 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 Manager, the
Note Trustee and each Designated Rating Agency without assigning any
reason and without being responsible for any costs occasioned by such
retirement.
39.2 Removal
Subject to any Trust Document to which the Security Trustee is a party,
the appointment of a successor Security Trustee as provided in this
clause, and prior notice being given to each Designated Rating Agency,
the Security Trustee may be removed:
(a) by the 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) the Security Trustee fails to comply with any of its
obligations under any Transaction Document and such
action has had, or, if continued will have, a Material
Adverse Effect, and, if capable of remedy, that
failure is not remedied within 14 days after the
earlier of (i) the Security Trustee having become
actually aware of that failure and (ii) the Security
Trustee having received written notice with respect
thereto from the Manager; or
(iv) there is a change in effective control of the
Security Trustee from that subsisting as at the date
of this deed unless approved by the Manager; or
(b) at any time by an Extraordinary Resolution of the Voting Mortgagees.
39.3 Replacement
(a) Upon notice of resignation or removal the 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.
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(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 St. George or a Related Body Corporate of St. George) who
accepts the appointment. If no such person is willing to
accept this appointment, the Voting Mortgagees may elect a
Security Trustee from among the Voting Mortgagees.
(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, subject to
paragraph (e).
(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.
39.4 Rating Agencies Approval
Any resignation or removal of the Security Trustee and appointment of a
successor note trustee will not become effective until acceptance of
the appointment of that successor Security 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 Notes.
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
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 adequately indemnified out of the
property held on trust under clause 2.1(b) against
all costs and expenses occasioned
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as a result, the Security Trustee shall convene a meeting of
the Voting Mortgagees if requested to do so:
(A) by the Chargor; or
(B) by Voting Mortgagees being holders of not less than
30% of the then Secured Moneys.
(b) (Time and place)
(i) Every meeting of Voting Mortgagees shall be held at
such time and place as the Security Trustee approves,
provided (subject to sub-paragraph (ii) and clause
40.3(b)) that any such meeting shall not be held
until the Class A Noteholders have held a meeting in
accordance with the Note Trust Deed and determined
how to vote or how to direct the Note Trustee to vote
(as the case may be) in the meeting of Voting
Mortgagees.
(ii) Upon receiving notice of a meeting of the Voting
Mortgagees, the Note Trustee shall as soon as
practicable call a meeting of the Class A Noteholders
in accordance with the terms of the Note Trust Deed.
(iii) The proviso in sub-paragraph (i) shall not apply if:
(A) the meeting of Class A Noteholders called in
accordance with sub-paragraph (ii) is
adjourned more than once; and
(B) the Class A Noteholders' determination under
sub-paragraph (i) is not made at the meeting
or adjourned meeting (as the case may be).
40.3 Notice of meetings
(a) (Period of Notice) Subject to clause 40.3(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) 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 or the Class A Noteholders, as the case
maybe).
(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.
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(e) (Contents of a notice) Notice of a meeting of Voting
Mortgagees shall specify, unless in any particular case the
Security Trustee otherwise agrees:
(i) the day, time and place of the proposed meeting; and
(ii) the nature of the resolutions to be proposed.
(f) (Failure to give notice) The accidental omission to give
notice to or the non-receipt of notice by any person entitled
to receive it shall not invalidate the proceedings at any
meeting.
40.4 Chairman
A person (who need not be a Voting Mortgagee and who may be a
Representative of the Security Trustee) nominated in writing by the
Security Trustee shall be entitled to take the 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 51% of the then Secured Moneys shall form a quorum for the
transaction of business (other than passing an Extraordinary Resolution
in which case the quorum shall be not less than 67.5% of the then
Secured Moneys) 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 15%
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 20% 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
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any adjourned meeting except business which might lawfully
have been transacted at the meeting from which the adjournment
took place.
(c) (Notice of adjourned meeting) At least 5 days' notice of any
meeting adjourned through want of a quorum shall be given in
the same manner as of an original meeting and such notice
shall state the quorum required at such adjourned meeting. It
shall not, however, otherwise be necessary to give any notice
of an adjourned meeting.
40.7 Voting procedure
(a) (Show of hands) Every question submitted to a meeting shall be
decided in the first instance by a show of hands and in case
of equality of votes the chairman shall both on a show of
hands and on a poll have a casting vote in addition to the
vote or votes (if any) to which he may be entitled as a Voting
Mortgagee or as a Representative.
(b) (Declaration) At any meeting, unless a poll is (before or on
the declaration of the result of the show of hands) demanded
by the chairman, the Chargor, the Manager, the Note Trustee or
the Security Trustee or by one or more persons holding, or
being a Representative or Representatives holding or
representing, in aggregate not less than 15% 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$100 (but not part thereof) of the
Secured Moneys
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that he holds or in respect of which he is a Representative.
Any person entitled to more than one vote need not use or cast
all of the votes to which he is entitled in the same way.
(f) (Evidence) A certificate from the Note Trustee to the Security
Trustee that the Note Trustee is entitled to vote on behalf of
a Class A Noteholder will be satisfactory evidence to the
Security Trustee that the Note Trustee is so entitled to vote.
For the purpose of determining the amount of Secured Moneys at any
time, the Security Trustee may rely on the Accounts of the Chargor and
any information provided by the Auditor of the Chargor. Clause 24 will
apply to any determination of Secured Moneys for the definition of
Voting Mortgagee and this Clause 40.
40.8 Right to attend and speak
The Chargor, the 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 Voting 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
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chairman of the meeting, in each case within the 24 hours
before the commencement of the meeting or adjourned meeting at
which the appointment of proxy is used.
40.10 Corporate Representatives
A person authorised pursuant to sections 249(3)-(6) of the Corporations
Law by a Voting Mortgagee being a body corporate to act for that Voting
Mortgagee at any meeting shall, in accordance with his authority until
his authority is revoked by the body corporate concerned, be entitled
to exercise the same powers on behalf of that body corporate as that
body corporate could exercise if it were an individual Voting Mortgagee
and shall be entitled to produce evidence of his authority (together
with, if required by the Security Trustee, evidence satisfactory to the
Security Trustee of the due execution of the authority) to act at any
time before the time appointed for the holding of or at the meeting or
adjourned meeting or for the taking of a poll at which he proposes to
vote.
40.11 Rights of Representatives
A Representative shall have the right to demand or join in demanding a
poll and shall (except and to the extent to which the Representative is
specifically directed to vote for or against any proposal) have power
generally to act at a meeting for the Voting Mortgagee concerned. The
Security Trustee and any officer of the Security Trustee may be
appointed a Representative.
40.12 Extraordinary Resolutions
(a) (Powers) A meeting of Voting Mortgagees shall, without
prejudice to any rights or powers conferred on other persons
by this deed, have power exercisable by Extraordinary
Resolution:
(i) to direct the Security Trustee in the action that
should be taken by it following the occurrence of an
Event of Default or the Charge or this deed becoming
enforceable;
(ii) to sanction any action that the Security Trustee or a
Receiver proposes to take to enforce the provisions
of this deed;
(iii) to sanction any proposal by the 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 Manager whether
such rights shall arise under this deed, the Trust
Documents or otherwise;
(iv) to sanction the exchange or substitution of the
Secured Moneys for, or the conversion of the Secured
Moneys into, bonds or other obligations or securities
of the Chargor or any body corporate formed or to be
formed;
(v) to assent to any modification of the provisions
contained in this deed which may be proposed by the
Chargor, the Note Trustee, the Manager or the
Security Trustee;
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(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 and any such Extraordinary
Resolution will (where relevant and in accordance
with clause 40.17) override any determination by the
Note Trustee.
(b) (No power) A meeting of Voting Mortgagees shall not have power
in relation to any Mortgagee to:
(i) release any obligation to pay any of the Secured
Moneys to that Mortgagee;
(ii) alter any date upon which any of the Secured Moneys
is payable;
(iii) alter the amount of any payment of any part of the
Secured Moneys; or
(iv) alter clause 16.1 in relation to that Mortgagee,
without the consent of that Mortgagee.
40.13 Extraordinary Resolution binding on Mortgagees
Subject to clause 40.12(b), an Extraordinary Resolution passed at a
meeting of the Voting Mortgagees duly convened and held in accordance
with this clause 40 shall be binding upon all Mortgagees whether or not
present at such meeting and each of the Mortgagees and the Chargor, the
Manager and the Security Trustee shall be bound to give effect to it
accordingly.
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Security Trust Deed Allen Allen & Hemsley
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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;
(b) (entitlement to vote) so as to satisfy itself that persons who
purport to attend or vote at any meeting of Voting Mortgagees
are entitled to do so in accordance with this clause 40 and
this deed; and
(c) (forms of Representative) as to the form of appointment of a
Representative.
40.17 Note Trustee rights
(a) Despite any other provision of this deed, for so long as the
Noteholder Mortgagees are the only Voting Mortgagees they may
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Security Trust Deed Allen Allen & Hemsley
- --------------------------------------------------------------------------------
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
including those acts or things referred to in clause 40.12 and
the Security Trustee shall, subject to this deed, comply with
such direction of the Noteholder Mortgagees.
(b) Neither the Security Trustee nor the 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 Noteholder Mortgagees direct the Security Trustee
to enforce the Charge (whether in the case of the Note
Trustee directed to do so by the 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) The Security Trustee shall not be liable to any Mortgagee for
acting, or not acting, on the directions of the Noteholder
Mortgagee except where in so doing the Security Trustee
engages in any fraud, negligence or breach of trust.
(e) 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 this deed 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
- --------------------------------------------------------------------------------
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.
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Security Trust Deed Allen Allen & Hemsley
- --------------------------------------------------------------------------------
42. Governing Law and Jurisdiction
- --------------------------------------------------------------------------------
This deed is governed by the laws of the New South Wales. The Chargor
submits to the non-exclusive jurisdiction of courts exercising
jurisdiction there.
43. Counterparts
- --------------------------------------------------------------------------------
This deed may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
44. Set-Off
- --------------------------------------------------------------------------------
No Mortgagee may apply any credit balance in any currency (whether or
not matured) in any account comprised in the Mortgaged Property towards
satisfaction of any sum then due and payable to that Mortgagee under or
in relation to any Trust Document.
45. Acknowledgement by Chargor
- --------------------------------------------------------------------------------
The Chargor confirms that:
(a) it has not entered into any Trust Document in reliance on, or
as a result of, any conduct of any kind of or on behalf of any
Mortgagee (other than the Manager and the Servicer) or any
Related Body Corporate of any Mortgagee (including any advice,
warranty, representation or undertaking); and
(b) no Mortgagee nor any Related Body Corporate 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 Body Corporate.
46. Information Memorandum
- --------------------------------------------------------------------------------
The Security Trustee has no responsibility for any statement or
information in or omission from any information memorandum,
advertisement, circular or other document issued by or on behalf of the
Chargor or Manager, including in connection with the issue of Notes.
Neither the Chargor nor the 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.
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<PAGE>
Security Trust Deed Allen Allen & Hemsley
- --------------------------------------------------------------------------------
47. Security Trustee's Limited Liability
- --------------------------------------------------------------------------------
47.1 Reliance on certificate
The Security Trustee shall not incur any liability as a result of
relying upon the authority, validity, due authorisation of, or the
accuracy of any information contained in any notice, resolution,
direction, consent, certificate, receipt, affidavit, statement,
valuation report or other document or communication (including any of
the above submitted or provided by the Manager, by the Trustee or by a
Mortgagee) if the Security Trustee is entitled, under clause 47.2 to
assume such authenticity, validity, due authorisation or accuracy.
In preparing any notice, certificate, advice or proposal the Security
Trustee shall be entitled to assume, unless it is actually aware to the
contrary, that each person under any Authorised Investment, Support
Facility, Receivable, Receivable Security, Related Securities, other
Transaction Document or any other deed, agreement or arrangement
incidental to any of the above or to the Trust, will perform their
obligations under those documents in full by the due date and otherwise
in accordance with their terms.
47.2 Security Trustee's reliance on Manager, Note Trustee or Servicer
(a) (Authorised Signatories are sufficient evidence) Whenever any
certificate, notice, proposal, direction, instruction,
document or other communication is to be given to the Security
Trustee, the Security Trustee may assume:
(i) the authenticity and validity of any signature in any
such document and that such document has been duly
authorised; and
(ii) the accuracy of any information contained in any
such documents,
in either case unless the officers of the Security Trustee
responsible for the administration of the Trust are not
actually aware to the contrary.
(b) (Trustee not liable for loss) The Security Trustee shall not
be responsible for any loss arising from any forgery or lack
of authenticity or any act, neglect, mistake or discrepancy of
the Manager, the Note Trustee or a Servicer or any officer,
employee, agent or delegate of the Manager, the Note Trustee
or the Servicer in preparing any such document or in
compiling, verifying or calculating any matter or information
contained in any such document, if the officers of the
Security Trustee responsible for the administration of the
Trust are not actually aware of such forgery, lack of
authenticity or validity, act, neglect, mistake or
discrepancy.
47.3 Compliance with laws
The Security Trustee shall not incur any liability to anyone in respect
of any failure to perform or to do any act or thing which by reason of
any provision
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Security Trust Deed Allen Allen & Hemsley
- --------------------------------------------------------------------------------
of any applicable present or future law of any place or any applicable
ordinance, rule, regulation or by law or of any applicable decree,
order or judgment of any competent court or other tribunal, the
Security Trustee shall be prohibited from doing or performing.
47.4 Reliance on experts
The Security Trustee may rely on and act on the opinion or statement or
certificate or advice of or information obtained from the Note Trustee,
the Servicer, barristers or solicitors (whether instructed by the
Security Trustee or not), bankers, accountants, brokers, valuers and
other persons believed by it in good faith to be expert or properly
informed in relation to the matters on which they are consulted and the
Security Trustee shall not be liable for anything done or suffered by
it in good faith in reliance on such opinion, statement, certificate,
advice or information except to the extent of losses, costs, claims or
damages caused by the Security Trustee's fraud, negligence or breach of
trust.
47.5 Oversights of others
Having regard to the limitations on the Security Trustee's duties,
powers, authorities and discretions under this deed, the Security
Trustee shall not be responsible for any act, omission, misconduct,
mistake, oversight, error of judgment, forgetfulness or want of
prudence on the part of any person or agent appointed by the Security
Trustee or on whom the Security Trustee is entitled to rely under this
deed (other than a Related Body Corporate), attorney, banker, receiver,
barrister, solicitor, agent or other person acting as agent or adviser
to the Security Trustee except to the extent of losses, costs, claims
or damages caused by the Security Trustee's fraud, negligence or breach
of trust, provided that nothing in this deed or any other Transaction
Document imposes any obligations on the Security Trustee to review or
supervise the performance by any other party of its obligations.
47.6 Powers, authorities and discretions
Except as otherwise provided in this deed and in the absence of fraud,
negligence or breach of trust, the Security Trustee shall not be in any
way responsible for any loss (whether consequential or otherwise),
costs, damages or inconvenience that may result from the exercise or
non-exercise of any powers, authorities and discretions vested in it.
47.7 Impossibility or impracticability
If for any other reason it becomes impossible or impracticable for it
to carry out any or all of the provisions of this deed or any other
Transaction Document, the Security Trustee shall not be under any
liability and, except to the extent of its own fraud, negligence or
breach of trust, nor shall it incur any liability by reason of any
error of law or any matter or thing done or suffered or omitted to be
done in good faith by it or its officers, employees, agents or
delegates.
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Security Trust Deed Allen Allen & Hemsley
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47.8 Legal and other proceedings
(a) (Indemnity for legal costs) The Security Trustee shall be
indemnified out of the Trust for all legal costs and
disbursements on a full indemnity basis and all other costs,
disbursements, outgoings and expenses incurred by the Security
Trustee in connection with:
(i) the enforcement or contemplated enforcement of, or
preservation of rights under;
(ii) without limiting the generality of paragraph (i)
above, the initiation, defence, carriage and
settlement of any action, suit, proceeding or dispute
in respect of; and
(iii) obtaining legal advice or opinions concerning or
relating to the interpretation or construction of,
this deed or any other Transaction Document or otherwise under
or in respect of the Trust provided that the enforcement,
contemplated enforcement or preservation by the Security
Trustee (as the case may be) of the rights referred to in
paragraph (i) or the court proceedings referred to in
paragraph (ii) (including in each case the defence of any
action, suit, proceeding or dispute brought against the
Security Trustee), and the basis of incurring any of those
costs, disbursements, outgoings and expenses by the Security
Trustee:
(iv) has been approved in advance by an Extraordinary
Resolution of the Voting Mortgagees; or
(v) the Security Trustee reasonably considers the
incurring of those costs, disbursements, outgoings
and expenses to be necessary to protect the Security
Trustee against potential personal liability.
(b) (Defence of proceedings alleging negligence etc.) The Security
Trustee shall be entitled to claim in respect of the above
indemnity from the Trust for its expenses and liabilities
incurred in defending any action, suit, proceeding or dispute
in which fraud, negligence or breach of trust is alleged or
claimed against it, but on the same being proved, accepted or
admitted by it, it shall from its personal assets immediately
repay to the Trust the amount previously paid by the Trust to
it in respect of that indemnity.
47.9 No liability except for negligence etc.
Except to the extent caused by the fraud, negligence or breach of trust
on the Security Trustee's part or on the part of any of its officers or
employees, or any agents or delegate, sub-agent, sub-delegate employed
by the Security Trustee in accordance with this deed (and where this
deed provides that the Security Trustee is liable for the acts or
omissions of any such person) to carry out any transactions
contemplated by this deed, the Security Trustee shall not be liable
personally for any losses, costs, liabilities or claims arising from
the failure to pay moneys on the due date for payment to any Mortgagee
or any other person or for any loss howsoever caused in respect of any
of the Trust or to any Mortgagee or other person.
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Security Trust Deed Allen Allen & Hemsley
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47.10 Further limitations on Security Trustee's liability
Subject to clause 47.2, the Security Trustee shall not be liable:
(a) for any losses, costs, liabilities or expenses arising out of
the exercise or non-exercise of its discretion or for any
other act or omission on its part under this deed, any other
Transaction Document or any other document except where the
exercise or non-exercise of any discretion, or any act or
omission, by the Security Trustee, or any of its officers or
employees, or any agent, delegate, sub-agent, sub-delegate
employed by the Security Trustee in accordance with this deed
(and where this deed provides that the Security Trustee is
liable for the acts or omissions of any such person) to carry
out any transactions contemplated by this deed, constitutes
fraud, negligence or breach of trust;
(b) for any losses, costs, damages or expenses caused by its
acting (in circumstances where this deed requires it to act or
contemplates that it may so act) on any instruction or
direction given to it by:
(i) any Mortgagee under this deed, any other Transaction
Document or any other document;
(ii) by any person under a Support Facility, Receivable or
Receivable Security; or
(iii) an Obligor,
except to the extent that it is caused by the fraud, negligence
or breach of trust of the Security Trustee, or any of its
officers or employees, or an agent or delegate employed by the
Security Trustee in accordance with this deed to carry out any
transactions contemplated by this deed;
(c) for any Manager's Default, Servicer Transfer Event or Title
Perfection Event;
(d) without limiting the Security Trustee's obligations under the
Transaction Documents, for any act, omission or default of the
Servicer in relation to its servicing duties or its
obligations under the Servicing Agreement;
(e) without limiting the Security Trustee's obligations under the
Transaction Documents, for any act, omission or default of the
Custodian in relation to its custodial duties or its
obligations under the Custodian Agreement;
(f) without limiting the Security Trustee's obligations under the
Transaction Documents, for any act, omission or default of the
Note Trustee in relation to its obligations under the
Transaction Documents;
(g) without limiting the Security Trustee's obligations under the
Transaction Documents, for any act, omission or default of a
Paying Agent in relation to its obligations under the
Transaction Documents;
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Security Trust Deed Allen Allen & Hemsley
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(h) without limiting the Security Trustee's obligations under the
Transaction Documents, for any act, omission or default of the
Calculation Agent in relation to its obligations under the
Transaction Documents;
(i) for the failure of a person to carry out an agreement with the
Security Trustee in connection with the Trust; or
(j) for any losses, costs, liabilities or expenses caused by the
Security Trustee's failure to check any calculation,
information, document, form or list supplied or purported to
be supplied to it by the Manager, the Note Trustee or the
Servicer,
except, in the case of paragraphs (c) to (j) (inclusive), to the extent
that it is caused by the fraud, negligence or breach of trust of the
Security Trustee.
Nothing in this clause 47.10 alone (but without limiting the operation
of any other clause of this deed) shall imply a duty on the Security
Trustee to supervise the Manager or the Note Trustee in the performance
of the Manager's or the Note Trustee's functions and duties, and the
exercise by the Manager or the Note Trustee of its discretions.
47.11 Conflicts
(a) (Not liable to account) A Relevant Person shall not be in any
way liable to account to any Mortgagee or any other person
for any profits or benefits (including any profit, bank
charges, commission, exchange, brokerage and fees) made or
derived under or in connection with any transaction or contract
specified in paragraph (a) above.
(b) (Fiduciary relationship) A Relevant Person shall not by reason
of any fiduciary relationship be in any way precluded from making
any contracts or entering into any transactions with any such
person in the ordinary course of its business or from undertaking
any banking, financial, development, agency or other services
including any contract or transaction in relation to the placing
of or dealing with any investment and the acceptance of any
office or profit or any contract of loan or deposits or other
contract or transaction which any person or company not being
a party to this deed could or might have lawfully entered into
if not a party to this deed. A Relevant Person shall not be
accountable to any Mortgagee or any other person for any
profits arising from any such contracts, transactions or offices.
47.12 Information
Except for notices and other documents and information (if any)
expressed to be required to be furnished to any person by the Security
Trustee under this deed or any other Transaction Document, the Security
Trustee shall not have any duty or responsibility to provide any person
(including any Mortgagee) with any credit or other information
concerning the affairs, financial condition or business of the Trust.
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47.13 Investigation by Security Trustee
Each Mortgagee acknowledges that:
(a) the Security Trustee has no duty, and is under no obligation,
to investigate whether a Manager's Default, Servicer Transfer
Event or Title Perfection Event has occurred in relation to
the Trust other than where it has actual notice;
(b) the Security Trustee is required to provide the notices
referred to in this deed in respect of a determination of
Material Adverse Effect only if it is actually aware of the
facts giving rise to the Material Adverse Effect; and
(c) in making any such determination, the Security Trustee will
seek and rely on advice given to it by its advisors in a
manner contemplated by this deed.
EXECUTED as a deed in Sydney.
Each attorney executing this deed thereby states that he has no notice of
alteration to, or revocation or suspension of, his power of attorney.
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Security Trust Deed Allen Allen & Hemsley
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CHARGOR
SIGNED SEALED and DELIVERED )
on behalf of )
AXA TRUSTEES LIMITED )
(ACN 004 029 841) )
)
by its attorney under Power of Attorney )
dated )
in the presence of: )
-----------------------------------
Signature
- -------------------------------------- -----------------------------------
Witness Print name
- --------------------------------------
Print name
SECURITY TRUSTEE
SIGNED SEALED and DELIVERED )
on behalf of )
NATIONAL MUTUAL LIFE )
NOMINEES LIMITED )
(ACN 004 387 133) )
)
by its attorney under Power of Attorney )
dated )
in the presence of: )
-----------------------------------
Signature
- -------------------------------------- -----------------------------------
Witness Print name
- --------------------------------------
Print name
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<PAGE>
MANAGER
SIGNED SEALED and DELIVERED )
on behalf of )
CRUSADE MANAGEMENT LIMITED )
)
by its attorney Power of Attorney )
dated )
in the presence of: )
-----------------------------------
Signature
- -------------------------------------- -----------------------------------
Witness Print name
- --------------------------------------
Print name
NOTE TRUSTEE
SIGNED SEALED and DELIVERED )
for and on behalf of )
BANKERS TRUST COMPANY LIMITED )
)
by its attorney Power of Attorney )
dated )
in the presence of: )
-----------------------------------
Signature
- -------------------------------------- -----------------------------------
Witness Print name
- --------------------------------------
Print name
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<PAGE>
[LOGO]
Note Trust Deed
- --------------------------------------------------------------------------------
AXA Trustees Limited
(Trustee)
Crusade Management Limited
(Manager)
Bankers Trust Company
(Note Trustee)
Midland Bank Plc
(Principal Paying Agent)
Midland Bank Plc
(Calculation Agent)
National Mutual Life Nominees
(Security 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>
Note Trust Deed Allen Allen & Hemsley
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<TABLE>
<CAPTION>
Cross Reference Table(1)
- --------------------------------------------------------------------------------
Trust Indenture Act Section Clause
- --------------------------------------------------------------------------------
<S> <C> <C>
310 (a)(1) 23.6
(a)(2) 23.1(d)
(a)(3) 23.6
(a)(4) 22.2(b)
(a)(5) NA-2
(b) 23.6
(c) 23.6, 23.1
NA
- --------------------------------------------------------------------------------
311 (a) 13.1
(b) 13.1
(c) NA
- --------------------------------------------------------------------------------
312 (a) 35.1, 35.2(a)
(b) 35.2(b)
(c) 35.2(c)
- --------------------------------------------------------------------------------
313 (a) 35.3
(b)(1) 35.3
(b)(2) NA
(c) 35.4
(d) 35.3
- --------------------------------------------------------------------------------
314 (a)(1) 35.5
(a)(2) 35.5
(a)(3) 35.5
(a)(4) 11.1(j)
(b) 11.1(k)
(c) 36.1(a)
(d) 36.1(b)
(e) 36.1(c)
(f) 36.1(a)
- --------------------------------------------------------------------------------
315 (a) 13.2(b)
(b) 13.4
(c) 13.2(a)
(d) 13.2(c), (d)
(e) 36.2
- --------------------------------------------------------------------------------
316 (a)(1) 36.3
(a)(2) NA
(b) 36.4
- --------------------------------------------------------------------------------
317 (a)(1) 6.1
(a)(2) NA
(b) 2.5
- --------------------------------------------------------------------------------
318 (a) 36.5
- --------------------------------------------------------------------------------
</TABLE>
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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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Page ii
<PAGE>
<TABLE>
<CAPTION>
Table of Contents
<S> <C> <C> <C>
1. Definitions and Interpretation 2
1.1 Definitions and Interpretation 2
1.2 Definitions in Master Trust Deed,
Supplementary Terms Notice and Conditions 4
1.3 Incorporation by reference 4
1.4 Interpretation 5
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 Knowledge of Trustee 6
1.10 Knowledge of the Note Trustee 6
1.11 Appointment of the Note Trustee 6
1.12 Obligations of the Trustee 6
1.13 Opinion of Counsel 6
2. Payments on Notes 7
2.1 Principal amount 7
2.2 Covenant to repay 7
2.3 Deemed payment 8
2.4 Following Event of Default 8
2.5 Requirements of Paying Agent 9
2.6 Certification 9
2.7 Determinations 10
3. Form of, Issue of and Duties and Taxes on, Notes 10
3.1 Issue of Book-Entry Notes 10
3.2 Form of Book-Entry Notes 10
3.3 Definitive Notes 12
3.4 Stamp and Other Taxes 13
3.5 Indemnity for non-issue 13
3.6 Note Register and Note Registrar 13
</TABLE>
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Page i
<PAGE>
<TABLE>
<S> <C> <C>
4. Covenant of Compliance 14
5. Cancellation of Class A Notes 15
5.1 Cancellation 15
5.2 Records 15
6. Enforcement 15
6.1 Actions following Event of Default 15
6.2 Evidence of default 16
6.3 Overdue interest 16
6.4 Restrictions on enforcement 16
6.5 Action by Noteholders 16
7. Proceedings 17
7.1 Acting only on direction 17
7.2 Security Trustee acting 17
7.3 Note Trustee alone entitled to act 18
7.4 Available amounts 18
7.5 No obligation to ensure compliance 18
7.6 Conflict of interests 18
8. Notice of Payment 19
9. Investment by Note Trustee 19
10. Partial Payments 19
11. Covenants by the Trustee and Manager 20
12. Remuneration of Note Trustee 23
12.1 Fee 23
12.2 Additional Remuneration 23
12.3 Costs, expenses 23
12.4 Overdue rate 24
12.5 Continuing obligation 24
13. Note Trustee 24
</TABLE>
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Page ii
<PAGE>
<TABLE>
<S> <C> <C>
13.1 Preferential Collection of Claims Against
Trustee 24
13.2 Duties of Note Trustee 24
13.3 Obligations of Note Trustee 25
13.4 Notice of Defaults 25
13.5 Rights of Note Trustee 25
14. Note Trustee's Liability 33
15. Delegation by Note Trustee 33
16. Employment of Agent by Note Trustee 34
17. Note Trustee Contracting with Trustee 35
18. Waiver 35
19. Amendment 36
19.1 Approval 36
19.2 Resolution of Class A Noteholders 36
19.3 Distribution of amendments 37
19.4 Amendments binding 37
19.5 Conformity with TIA 37
20. Class A Noteholders 37
20.1 Absolute Owner 37
20.2 Clearing Agency Certificate 38
21. Currency Indemnity 39
22. New Note Trustees 40
22.1 Appointment by Trustee 40
22.2 Appointment by Note Trustee 40
22.3 Notice 41
23. Note Trustee's Retirement and Removal 41
23.1 Removal by Trustee 41
23.2 Removal by Class A Noteholders 41
23.3 Resignation 42
</TABLE>
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Page iii
<PAGE>
<TABLE>
<S> <C> <C>
23.4 Rating Agencies approval 42
23.5 Trust Corporation 42
23.6 Successor to Note Trustee 42
23.7 Eligibility; Disqualification 43
24. Note Trustee's Powers Additional 43
25. Severability of Provisions 43
26. Notices 44
26.1 General 44
26.2 Details 44
27. Governing Law and Jurisdiction 46
28. Counterparts 46
29. Limited Recourse 46
29.1 General 46
29.2 Liability of Trustee limited to its right
to indemnity 46
29.3 Unrestricted remedies 47
29.4 Restricted remedies 48
30. Successor Trustee 48
31. Reimbursement for the Cost of Independent Advice 48
32. No Liability 49
33. Information Memorandum 49
34. Note Trustee's Limited Liability 49
34.1 Reliance on certificate 49
34.2 Note Trustee's reliance on Manager,
Security Trustee, Trustee or Servicer 50
34.3 Compliance with laws 50
34.4 Reliance on experts 50
34.5 Oversights of others 51
</TABLE>
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Page iv
<PAGE>
<TABLE>
<S> <C> <C>
34.6 Powers, authorities and discretions 51
34.7 Impossibility or impracticability 51
34.8 Legal and other proceedings 51
34.9 No liability except for negligence etc. 52
34.10 Further limitations on Note Trustee's
liability 53
34.11 Conflicts 54
34.12 Information 54
34.13 Investigation by Note Trustee 54
35. Noteholders' Lists and Reports 55
35.1 Provision of information 55
35.2 Preservation of Information; Communications
to Noteholders 55
35.3 Reports by Note Trustee 55
35.4 Notices to Class A Noteholders; Waiver 56
35.5 Reports by Trustee 56
36. Trust Indenture Act - Miscellaneous 57
36.1 Compliance Certificates and Opinions, etc 57
36.2 Undertaking for Costs 58
36.3 Exclusion of section 316 59
36.4 Unconditional Rights of Class A Noteholders
to Receive Principal and Interest 59
36.5 Conflict with Trust Indenture Act 60
37. Consent of Class A Noteholders 60
37.1 General 60
37.2 Special Written Approvals 60
37.3 Requirement for writing 61
Schedule 1 65
Form Book-Entry Note 65
Assignment 73
Schedule 2 70
Information to be contained in Noteholder's Report 70
</TABLE>
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Note Trust Deed Allen Allen & Hemsley
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Date 1999
- -------------
Parties
- -------------
1. AXA Trustees Limited (ACN 004 029 841) incorporated in
Victoria of Level 2, 65 Southbank Boulevard, South Melbourne,
Victoria 3205 in its capacity as trustee of the Crusade Global
Trust No. 1 of 1999 (the Trustee);
2. Crusade Management Limited (ACN 072 715 916) incorporated in
the Australian Capital Territory of 4-16 Montgomery Street,
Kogarah, New South Wales 2217 as Manager of the Crusade Euro
Trust No. 2 of 1998 (the Manager);
3. Bankers Trust Company acting through its office at 1 Appold
Street, Broadgate, London EC2A 2HE, United Kingdom (the 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);
4. Midland Bank plc acting through its office at HSBC Issuer
Services, Mariner House, Pepys Street, London EC3N 4DA, United
Kingdom (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.
5. Midland Bank plc acting through its office at HSBC Issuer
Services, Mariner House, Pepys Street, London EC3N 4DA, United
Kingdom (the Calculation Agent), which expression shall
wherever the context requires, include any successor
calculation agent from time to time appointed under the Agency
Agreement.
6. National Mutual Life Nominees (ACN 004 387 133) of 44 Market
Street, Sydney, NSW 2000 (the Security Trustee)
Recitals
- -------------
A The Trustee has resolved at the direction of the Manager to
issue US$1,000,000,000 of mortgage backed pass through
floating rate notes comprising US$994,000,000 Class A Notes
(being US$300,000,000 Class A-1 Notes due 2009, US$569,000,000
Class A-2 Notes due 2021 and US$125,000,000 Class A-3 Notes
due 2030) and the A$ equivalent of US$6,000,000 Class B Notes
due 2030. The Class A Notes are 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.
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Note Trust Deed Allen Allen & Hemsley
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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.
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 the person
maintaining an account with such Clearing Agency (directly as 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 1
Appold Street, Broadgate, London EC2A 2HE, United Kingdom or at such
other address as the Note Trustee may designate by notice to the
Manager, 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 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
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Note Trust Deed Allen Allen & Hemsley
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delivered to the Note Trustee. [Not used in the deed - MBP to confirm
if this is required]
Master Trust Deed means the Master Trust Deed dated
14 March 1998 between the Trustee, St.George Bank Limited and the
Manager.
Note Depository Agreement means the agreement among the Trustee, Note
Trustee and The Depository Trust Company, as the initial Clearing
Agency, dated as of the Closing Date, relating to the Notes, as the
same may be amended or supplemented from time to time.
Noteholders Report means the report to be delivered by the Manager, on
behalf of the Trustee, in accordance with clause 11(l)(i) containing
the information set out in Schedule 2.
Officer's Certificate means a certificate signed by any Authorised
Signatory of the Trustee or the 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 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:
(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 Notes,
in each case (except in the case of the initial Principal Paying Agent)
where notice of the appointment has been given to the 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.
Supplementary Terms Notice means the Supplementary Terms Notice dated
on or about the date of this Deed between the Trustee, the Manager, the
Note Trustee, the Security Trustee, St.George and the Custodian.
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Note Trust Deed Allen Allen & Hemsley
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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 Bankers Trust
Company for so long as it complies with such section.
1.2 Definitions in Master Trust Deed, Supplementary Terms
Notice and Conditions
(a) Words and expressions which are defined in the Master Trust
Deed (as amended by the Supplementary Terms Notice), the
Supplementary Terms 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 Supplementary
Terms 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 Noteholder under this deed
unless the Note Trustee (or the Noteholders acting under
clause 6.5, as the case may be) 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 a 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
issued by the Commission, will have the meaning assigned to them by
such definitions.
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Note Trust Deed Allen Allen & Hemsley
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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.
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.
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Note Trust Deed Allen Allen & Hemsley
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1.9 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.
1.10 Knowledge of the Note Trustee
In relation to the Trust, the Note Trustee will be considered to have
knowledge or notice of or be aware of any matter or thing if the Note
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 Note Trustee who have day to day responsibility for the
administration of the Note Trust.
1.11 Appointment of the Note Trustee
The Note Trustee:
(a) is appointed to act as trustee on behalf of the Noteholders on
the terms and conditions of this Deed; and
(b) acknowledges and declares that it:
(i) holds the sum of US$10.00 received on the date of
this Deed; and
(ii) will hold the benefit of the obligations of the
Trustee under this Deed,
in each case, on trust for each Noteholder, in accordance with the
terms and conditions of this Deed.
1.12 Obligations of the Trustee
(a) Where the Manager may act on behalf of the Trustee,
failing action by the Manager in accordance with the
relevant clause (including any requirement to take
such action within a specified time) the reference to
the Manager acting on behalf of the Trustee shall be
construed as a reference to the Trustee.
(b) The Trustee shall not be liable for any act or
omission by the Manager where it is acting on behalf
of the Trustee under this deed.
(c) Where the Manager is empowered to act on behalf of
the Trustee, the Manager undertakes to the Trustee
that it will duly and punctually perform, on behalf
of the Trustee, those obligations, imposed on the
Trustee in accordance with the terms of the relevant
clause.
1.13 Opinion of Counsel
For the purposes of this deed, the Trustee may where necessary seek,
and rely conclusively on, any Opinion of Counsel on any matters
relating to or connected with the TIA. The cost of any such Opinion of
Counsel will be an Expense of the Trustee in relation to the Trust.
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Note Trust Deed Allen Allen & Hemsley
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2. Payments on Notes
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2.1 Principal amount
The aggregate principal amount of the Class A Notes is limited to
US$994,000,000:
(a) US$300,000,000 in respect of the Class A-1 Notes;
(b) US$569,000,000 in respect of the Class A-2 Notes;
(c) US$125,000,000 in respect of the Class A-3 Notes.
2.2 Covenant to repay
(a) The Trustee covenants with the Note Trustee that the Trustee
will, in accordance with the terms of any Class A Notes
(including the Conditions) and the Transaction Documents (and
subject to the terms of the Transaction Documents and the
Conditions, including clause 29 of this Deed and Condition 6)
at the direction of the Manager on:
(i) the Maturity Date of the Class A Notes; or
(ii) each earlier date as those Class A Notes, or any of
them, may become repayable (whether in full or in
part),
pay or procure to be paid unconditionally in accordance with
this deed to or to the order of the Note Trustee in US$ in
London for immediate value the principal amount of those Class
A Notes repayable, or in the case of a partial payment of
those Class A Notes, the principal amount payable, subject to
and in accordance with the terms of those Class A Notes
(including the Conditions).
(b) Subject to clause 2.3 and to the terms of the Class A Notes
(including the Conditions and in particular Condition 6 of the
Notes) and the Transaction Documents (including clause 29),
until any payment as well after as before any judgment or
other order of a court of competent jurisdiction the Trustee
shall, at the direction of the Manager, pay or procure
to be paid unconditionally in accordance with this deed 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.
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2.3 Deemed payment
Any payment of principal or interest in respect of any 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 those Class A Notes by the Trustee in this clause 2 to the
extent of that payment, except to the extent that the Principal Paying
Agent subsequently fails to pay that amount under those Class A Notes
in accordance with the terms of those Class A Notes (including the
Conditions).
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 Manager, the
Principal Paying Agent, the other Paying Agents and
the Calculation Agent and until such notice is
withdrawn require the Principal Paying Agent, the
other Paying Agents and the Calculation Agent under
the Agency Agreement either:
(A) (1) to act as Principal Paying Agent and Paying
Agents and Calculation Agent 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 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
Calculation Agent 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 Calculation
Agent is obliged not to release by any law or
regulation; or
(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
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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 Supplementary Terms Notice and the
Conditions to the Note Trustee in accordance with paragraph
(a) 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 (a).
2.5 Requirements of Paying Agent
The Manager on behalf of 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 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 Manager if the full
amount of any payment of principal or interest required to be
made by the Supplementary Terms Notice and the relevant
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
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.
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2.7 Determinations
If the Manager does not at any time for any reason determine a
Principal Payment, the Bond Factor, the Invested Amount or the Stated
Amount applicable to any Class A Notes in accordance with Condition
5(a) or 5(h), the Principal Payment, the Bond Factor, Invested Amount
and the Stated Amount may be determined by the Calculation Agent (or,
failing the Calculation Agent, the Note Trustee) in accordance with
Condition 5(a) or 5(h) (but based on the information in its possession)
and each such determination or calculation shall be deemed to have been
made by the Manager, and the Note Trustee shall have no liability in
respect thereof other than as a result of the fraud, negligence,
default or breach of trust of the Note Trustee.
3. Form of, Issue of and Duties and Taxes on, Notes
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3.1 Issue of Book-Entry Notes
(a) Each Class of Class A Notes shall, on issue be represented by
Book-Entry Notes.
(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 Depository, 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:
(i) US$300,000,000 for the Class A-1 Notes;
(ii) US$569,000,000 for the Class A-2 Notes; and
(iii) US$125,000,000 for the Class A-3 Notes.
(d) The Manager on behalf of 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 a
binding and valid obligation of
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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 Manager on behalf of 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
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 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
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 a
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 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
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(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:
(a) the Principal Paying Agent advises the Manager 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 Manager
is unable to locate a qualified successor;
(b) the Trustee, at the direction of the Manager (at the Manager's
option) advises the Principal Paying Agent in writing that the
book-entry system is or is to be terminated; or
(c) after the occurrence of an Event of Default, the Note Trustee
shall, at the direction of Class A Note Owners representing
beneficial interests aggregating to at least a majority of the
aggregate Invested Amount of the Class A Notes advise both the
Principal Paying Agent through the Clearing Agency and the
Issuer Trustee 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 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.
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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 Sates
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;
(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
Owner to enforce the provisions of the Class A Notes or the
Transaction Documents; and
(d) the creation of the security constituted under the Security
Trust Deed.
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(a) 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) indemnify the Note Trustee, the Class A
Noteholders and the 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 the Class A
Note Owners is less than the amount that would have been received had
Definitive Notes been issued within the 30 days referred to in this
clause 3.5. 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 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 Manager, on behalf of the Trustee, shall keep or cause to
be kept the Note Register in which, subject to such reasonable
regulations as it may prescribe, the Manager 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 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 1(f), if the requirements of Section
8-401(a) of the Uniform Commercial Code of New York (the UCC)
are met the Trustee shall, at the direction of the Manager, =
execute and upon its written request
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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, of the same
class 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
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, at the direction of the Manager,
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 a 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 Transaction Documents
and the Conditions shall be binding on the Trustee, the Note Trustee
and the Class A Noteholders. The Note Trustee (or the Class A
Noteholders, under clause
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6.5, as the case may be) 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 Notes).
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, has been surrendered and replaced under Condition 11,
shall 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;
(b) such records shall be made available to the Note Trustee on
reasonable notice and during business hours promptly following
the Note Trustee's request for the same.
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 under the Transaction Documents.
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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 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
Interest Period 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
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
any Class A Notes, the Note Trustee must not vote under the Security
Trust Deed to, or otherwise direct the Security Trustee to, enforce the
Security Trust Deed or dispose of the Mortgaged Property unless either:
(a) 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
(b) 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
(the cost of which advice shall be an expense incurred by the
Note Trustee under the Transaction Documents), 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) relating to the
Trust.
6.5 Action by Noteholders
Notwithstanding any other provision of this Deed, if the Note Trustee,
having become bound to take steps and/or proceed under clause 6.1
and/or the Security Trust Deed, fails to do so within a reasonable time
and such failure is continuing, the Class A Noteholders may proceed
directly against the Trustee but then only if and to the extent the
Class A Noteholders are able to do so under Australian law.
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7. Proceedings
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7.1 Acting only on direction
(a) Subject to paragraph (b), the Note Trustee may, but 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 the holders of at least 75%
of the aggregate Invested Amount of the Class A Notes and then
only if the Note Trustee is indemnified to its 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 by so doing.
(b) If an Extraordinary Resolution (as defined in the Security
Trust Deed) of Voting Mortgagees (as defined in the Security
Trust Deed) elects not to direct the Security Trustee to
enforce the Security Trust Deed, in circumstances where the
Security Trustee could enforce, the Note Trustee must, at the
direction of the Class A Noteholders, direct the Security
Trustee to enforce the Security Trust Deed on behalf of the
Class A Noteholders.
(c) 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 of
the Class A Notes (including the Conditions), provided that if the
Security Trustee having become bound to take steps and/or to proceed
under the Security Trust Deed, fails to do so within a reasonable time
and such failure is continuing, the Note Trustee and/or Class A
Noteholders (if entitled under the Transaction Documents to act in
place of the Note Trustee) may proceed directly against the Trustee but
then only if and to the extent the Class A Noteholders are able to do
so under Australian law. The Security Trustee shall comply with all
directions given to it by the Note Trustee pursuant to any power to
give directions granted to the Note Trustee pursuant to this deed or to
the Security Trust Deed provided that the Security Trustee has the
power under the Security Trust Deed to take the action contemplated by
the direction, and the Security Trustee shall not be liable for all
direct and indirect costs, expenses, losses, damages, liabilities or
actions arising or resulting from any action or conduct undertaken or
not taken by the Security Trustee or its
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officers, employees or agents including as a consequence of following
those directions.
7.3 Note Trustee alone entitled to act
Subject to clauses 6.5 and 7.2, only the Note Trustee may:
(a) direct the Security Trustee to enforce or not to enforce; or
(b) enforce the provisions of this deed or of 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 the Class A Notes (including
the Conditions).
7.4 Available amounts
For the purpose of Conditions 5(i) and 5(j) the Note Trustee shall not
be satisfied that the Trustee will be in a position to discharge the
liabilities referred to 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 or AA- by Fitch IBCA or whose short
term unsecured and unguaranteed debt securities are rated A-1+
by S&P or F1+ by Fitch IBCA, provided that in both cases its
short term unsecured and unguaranteed debt securities are
ranked P-1 by Moody's, to provide sufficient cash on or before
the relevant Payment Date to enable the Trustee to discharge
the relevant liabilities,
and in each circumstance the Manager or the Trustee has certified to
the Note Trustee that the requirements of clause 7.4(a) or (b) have
been met and the Note Trustee shall be entitled to rely on such
certification.
7.5 No obligation to ensure compliance
In giving any direction to the Security Trustee under this Deed or the
Security Trust Deed, the Note Trustee shall not be obliged to ensure
that the Security Trustee complies with such direction and will not be
liable for failure by the Security Trustee so to comply.
7.6 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.
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8. Notice of Payment
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The Paying Agent shall give notice to the 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 and in any relevant circumstance will certify to the Note
Trustee that the requirements of Clauses 7.1(a) and (b) of the Note
Trust Deed have been satisfied (and the Note Trustee shall be entitled
to rely upon such certification). The Note Trustee shall give notice to
the 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 (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 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 in good faith. The Note Trustee must not make
any investment that could have an adverse effect on the 50% risk
weighting attributed to the Notes by the Bank of England and the Note
Trustee need only account for interest equal to the highest rate
payable by it to an independent depositor in respect of comparable
deposits.
10. Partial Payments
- --------------------------------------------------------------------------------
In the case of Definitive Notes, on any payment of amounts received by
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 the
Trustee certifying to the Note Trustee that an indemnity has been given
to the Trustee by the recipient of the payment as the Trustee considers
sufficient and the Note Trustee shall be entitled to rely on such
certification.
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11. Covenants by the Trustee and Manager
- ----------------------------------------------------------------
Each of the Trustee and the 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 in accordance with
this Deed).
(a) (Master Trust Deed covenants) It will comply with its
covenants in the Master Trust Deed.
(b) (Transaction Documents)
(i) It will comply with its material obligations under
the Transaction Documents.
(ii) It will use reasonable endeavours (to the extent that
it is able to do so under the Master Trust Deed) to
procure that each other party to a Transaction
Document complies with and performs its obligations
under that Transaction Document.
(c) (Information) It will give to the Note Trustee a copy of any
information in its possession relating to the Trust as soon as
reasonably practicable in connection with the exercise and
performance of its powers and obligations under this deed and
which the Trustee or the Manager (as the case may be)
reasonably considers has a material bearing on the interest of
the Noteholders.
(d) (Notify Events of Default)
(i) It will promptly notify the Note Trustee if it has
knowledge or notice of or is aware of the occurrence
of an Event of Default, Trustee's Default, Servicer
Transfer Event, Title Perfection Event or 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 Manager's Default (as the case
may be).
(ii) In addition to its obligations under sub-clause item
(d)(i) of this Clause 11, the Manager, on behalf of
the Trustee, will confirm to the Note Trustee, on
each anniversary of this deed:
(A) whether or not the Manager or the Trustee is
aware that any Event of Default has occurred;
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
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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 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 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 Manager on behalf of the
Trustee will maintain in the Borough of Manhattan, The City of
New York and in 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
Manager 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) (Calculation Agent) It will procure that, so long as any of
the Class A Notes remain outstanding, there will at all times
be a Calculation Agent.
(h) (Change to Paying Agents or Calculation Agent) It will give
notice to the 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 Calculation Agent;
(ii) any change to any Paying Agent's Paying Office (as
defined in the Agency Agreement); or
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(iii) any change to the Calculation Agent'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 for approval by the Note
Trustee, two copies of the form of every notice prior to the
notice being 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 (the first such fiscal year
commencing on 1 July 1999), 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 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 (or the Manager on its behalf)
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) (Noteholder Report)
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(i) The Trustee (or the 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 Note Trustee and 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.
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 and
at the times specified in the Supplementary Terms Notice.
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 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.
In the event of the Note Trustee, the Manager and the Trustee failing
to agree on such additional remuneration, such remuneration shall be
determined by a merchant or investment bank (acting as an expert and
not as an arbitrator) selected by the Note Trustee and approved by the
Trustee or, failing such approval, nominated (on the application of the
Note Trustee or the Trustee) by the President for the time being of The
Law Society of England and Wales (the expenses involved in such
nomination and the fees of such merchant or investment bank being
shared equally by the Trustee and the Note Trustee) and the
determination of any such merchant or investment bank shall be final
and binding upon the Note Trustee and the Trustee and shall be payable
by the Trustee to the Note Trustee.
12.3 Costs, expenses
(a) Subject to clause 34.8, 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 (or the Class A Noteholders acting under clause
6.5 (as the case may be)) in connection with properly
undertaking its duties under the Transaction Documents and in
connection with any legal proceedings brought by the Note
Trustee (or the Class A Noteholders acting under clause 6.5
(as the case may be)) 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
which it incurs.
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(b) Without prejudice to the right of indemnity by law given to
trustees, to the extent the Trustee is itself entitled to be
indemnified, and subject to clause 29, the Trustee indemnifies
the Note Trustee (or the Class A Noteholders acting under
clause 6.5 (as the case may be)) and every other person
properly appointed by it or any of them 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 fraud, negligence, default or breach of trust
by the Note Trustee or that person).
12.4 Overdue rate
All sums payable by the Trustee under clauses 12 and 34.8 shall be
payable by the Trustee on the next Payment Date in the order set out in
the Supplementary Terms Notice or (if applicable) the Security Trust
Deed and shall carry interest at the rate of LIBOR plus 2% from the due
date. Any amount payable shall carry interest at that rate from the due
date to the date of actual payment.
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 and even if the Note Trustee has
ceased to be the Note Trustee for any reason including but not limited
to those contemplated in clause 23 it will be entitled to all rights
arising to it prior to it ceasing to be the Note Trustee.
13. Note Trustee
- --------------------------------------------------------------------------------
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 only 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
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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.
(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.
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Note Trust Deed Allen Allen & Hemsley
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(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.
(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 Manager, the Servicer or
otherwise.
(f) Any advice, opinion or information 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
two Authorised Signatories of the Trustee or the 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 except in the case of fraud, negligence or breach of trust
(in the case of the Security Trustee) or fraud, negligence,
default or breach of trust (in the case of the Note Trustee)
of that party, neither the Note Trustee nor the Security
Trustee shall be responsible for any loss, expense or
liability which may be suffered as a result of any assets
secured by the Security Trust
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Deed, Mortgaged Property or any deed 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 if prudently chosen in
accordance with the Transaction Documents.
(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) Except as otherwise provided in this Deed or any other
Transaction Documents to which it is a party, 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 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
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
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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,
any other Transaction Document 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 Manager as relevant and any rate,
method and date so agreed shall be binding on the Trustee, the
Class A Noteholders.
(o) Subject to clauses 6.5 and 7.4, the Note Trustee may certify
in good faith 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 Supplementary Terms Notice or the Security Trust Deed, all
interest (after payment of all sums which are permitted under
the Supplementary Terms 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 such 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. The Trustee shall pay
the Note Trustee reasonable costs and expenses of providing
the certificate at the times specified in the Supplementary
Terms Notice.
(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 (other
than itself) contained
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in any Transaction Document or other document entered into in
connection with it and shall assume its accuracy and
correctness and (except with respect to itself) the 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
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 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 Trust and the Class A Notes 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 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 Obligor under a
Purchased Receivable or 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 a Mortgage in
Australia or for any related legal, administrative or other
fees, costs and expenses (including, but not limited to, any
proper disbursements and any goods and services tax). The
Manager will provide to the Note Trustee such information and
the Trustee will pay to the Note Trustee such costs as the
Note Trustee reasonably considers necessary to make these
determinations and, subject to clause 29, the Trustee
indemnifies the Note Trustee against any loss or damage
suffered as a result of the Note Trustee incurring such an
obligation.
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(t) Without prejudice to the provisions of any Transaction
Document, the Note Trustee shall not be under any obligation
to 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 insurance.
(u) 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,
depository, 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 fraud,
negligence, default or breach of trust of the Note Trustee.
(v) 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.
(w) 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 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 an Obligor 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.
(x) The Note Trustee is not responsible (except as to itself) for
the genuineness, validity, effectiveness or suitability of any
of the Transaction Documents or any of the Mortgages, Security
Interests 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
constituted by or purported to be constituted by or pursuant
to that Security Interest, nor shall it (except as to itself)
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 responsible for or have any duty
to make any investigation in respect of or in any way be
liable whatsoever for:
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(i) the nature, status, creditworthiness or solvency of
any Obligor 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 Obligor;
(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
Obligor 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 Obligor 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 Mortgages in relation
to the advances;
(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);
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(xi) the failure by any Approved Seller, the Trustee, the
Servicer or the 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
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.
(y) The Note Trustee is not liable or responsible for any loss,
cost, damages, expenses, liabilities or inconvenience which
may result from anything done or omitted to be done by it in
accordance with the provisions of this deed, any other
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.
(z) The Note Trustee shall be entitled to call for and rely on a
certificate or any letter of confirmation or explanation
reasonably believed by it to be genuine, of any Approved
Seller, the Servicer, the Trustee, the Manager, any Paying
Agent, the Calculation Agent, any Designated Rating Agency or
any other credit rating agency in respect of every manner and
circumstance for which a certificate is expressly provided for
under this deed or in respect of the rating of the Class A
Notes or the Conditions and the Note Trustee is not bound in
any such case to call for further evidence or be responsible
for any loss, liability, costs, damages, expenses or
inconvenience that may be occasioned by its failing so to do.
(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.
(bb) Except as otherwise provided in this deed or any other
Transaction Document, the Note Trustee shall have no
responsibility for the
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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 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, 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.
(dd) The Note Trustee acknowledges that the Manager is responsible,
under the Supplementary Terms Notice, for calculating all
amounts referred to in clause 5 of the Supplementary Terms
Notice (other than calculations required to be made by the
Calculation Agent under the Agency Agreement) and the Note
Trustee has no liability in respect of these calculations
other than as a result of the fraud, negligence, default or
breach of trust of the Note Trustee.
(ee) The Note Trustee shall not be liable to the Trustee, or any
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 Depository or any common depository 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.
14. Note Trustee's Liability
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Nothing in this deed shall exempt the Note Trustee from or indemnify it
against any liability for breach of trust or any liability in respect
of any fraud, negligence, default 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
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regulations as the Note Trustee may in the interests of
the Class A Noteholders think fit, provided that appointment
does not have an adverse effect on the ratings of the Class A
Notes.
(b) If the Note Trustee exercises reasonable care in the selection
of a delegate under paragraph (a), providing the Note Trustee
and the delegate are not related bodies corporate (as defined
in the Corporations Law), 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
and the Designated Rating Agencies.
(c) Notwithstanding other provision in this clause 15, where the
Note Trustee delegates any power to a related body corporate
(as defined in the Corporations Law), the Note Trustee shall
be liable for all acts or omissions of the delegate done or
omitted whilst acting in its capacity as such.
16. Employment of Agent by Note Trustee
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(a) 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 provided that the use of such an agent
does not have an adverse effect on the ratings of the Class A
Notes. If the Note Trustee exercises reasonable care in the
selection of that agent and providing the Note Trustee and the
agent are not related bodies corporate (as defined in the
Corporations Law), 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.
(b) Notwithstanding other provision in this clause 16, where the
Note Trustee employs, under this clause 16, a related body
corporate (as defined in the Corporations Law) as agent, the
Note Trustee shall be liable for all acts or omissions of the
agent done or omitted whilst acting in its capacity as such.
(c) 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 connection with matters arising in connection with
this deed. Those charges will be for the account of the Note
Trustee unless agreed otherwise, who shall be reimbursed by
the Trustee under clause 12.
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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 is by reason of its or their
fiduciary position only 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 by
them 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 (as to which evidence
of a breach of one Class A Note shall be deemed
evidence of a breach of all Class A Notes); or
(ii) determine that any condition, event or act which
constitutes, or which with the giving of notice, the
lapse 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
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aggregate Invested Amount of the Class A Notes or by 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 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 Manager and the Trustee may, following the giving
of not less than ten Business Days' prior 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 37.2 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 Agency;
(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
(d) in the opinion of the Note Trustee not materially prejudicial
to the interests of the Class A Noteholders as a whole,
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, the
Note Trustee, the Manager and the Trustee may
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make that alteration, addition or modification only 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 Manager shall distribute to all Class A Noteholders and each
Designated Rating Agency 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 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 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
Manager, the Security Trustee, the Note Trustee or the Paying
Agents is affected by any notice to the contrary.
(b) So long as the Class A Notes, or any of them, are represented
by a Book-Entry Note, the Trustee, the 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 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.
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(c) Any payments by the Trustee to the registered holder of a Book
Entry Note or to an owner of a Class A Note under this clause
will be a good discharge to the Trustee.
(d) All payments made to the owner of a 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 below.
(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
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 Class A
Noteholders as provided in clause 31.4.
20.2 Clearing Agency Certificate
The Trustee, the 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.
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21. Currency Indemnity
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Subject to this deed including, without limitation, clause 29, 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 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.
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22. New Note Trustees
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22.1 Appointment by Trustee
The Trustee may, at the direction of the 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 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;
(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
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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 in accordance with
Condition 12.
(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.
23. Note Trustee's Retirement and Removal
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23.1 Removal by Trustee
The Trustee (or the Manager on its behalf after informing the Trustee
of its intention to do so) 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 fails to comply with any of its obligations
under any Transaction Document and such failure has had or, if
continued, will have, a Material Adverse Effect (as determined
by the Trustee), and, if capable of remedy, the Note Trustee
does not remedy that failure within 14 days after the earlier
of:
(i) the Note Trustee becoming aware of that failure; and
(ii) receipt by the Note Trustee of a written notice with
respect thereto from either the Trustee or the
Manager; 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 23.7.
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 the Class A Notes
to require the Trustee to remove the Note Trustee or note trustees for
the time being of this deed.
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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 Manager, the
Security Trustee 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 the
Class A Notes.
23.4 Rating Agencies approval
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
Trustee shall not become effective until a successor Note Trustee which
is a Trust Corporation is appointed. The Manager must assist the Note
Trustee to appoint a new note trustee of this deed. If the Trustee
fails to appoint a new Note Trustee within three months from such
retirement or removal, the Note Trustee shall be entitled to appoint a
new Note Trustee which is a Trust Corporation and such appointment
shall be deemed to have been made under clause 22.2 of this Deed.
23.6 Successor to Note Trustee
(a) On the execution by the Trustee, the 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 the Transaction Documents 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;
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(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 to this deed, unless otherwise required by the Trustee
or the Manager, and after that effective date all references
in this deed to the Note Trustee shall be references to that
corporation.
(c) If no other person can be found to act as Note Trustee, the
Noteholders may elect a Note Trustee from among the holders of
the Class A Notes.
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 US$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 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.
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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
person shown in clause 26.2 or to any other address
of which the sender may have been notified by the
recipient;
(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 in accordance with this clause 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,
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 5.00 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. Any party may by notice to
each party change its address, facsimile and telex under this
clause 26.1.
26.2 Details
The address, facsimile and telex of each person to whom notices may be
sent at the date of this deed are as follows:
The Trustee
AXA TRUSTEES LIMITED
Level 2
65 Southbank Boulevard
SOUTH MELBOURNE VIC 3205
Tel: 613 9694 6500
Fax: 613 9694 6462
Attention: Mr Philip Maddox
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The Manager
CRUSADE MANAGEMENT LIMITED
Level 11
55 Market Street
SYDNEY NSW 2000
AUSTRALIA
Tel: 612 9320 5605
Telex: AA73550
Fax: 612 9320 5586
Attention: Executive Manager, Securitisation
The Principal Paying Agent
MIDLAND BANK PLC
HSBC Issuer Services
Mariner House
Pepys Street
LONDON EC3N 4DA
UNITED KINGDOM
Tel: [*]
Telex: [*]
Fax: [*]
SWIFT: [*]
Attention: [*]
The Calculation Agent
MIDLAND BANK PLC
HSBC Issuer Services
Mariner House
Pepys Street
LONDON EC3N 4DA
UNITED KINGDOM
Tel: [*]
Telex: [*]
Fax: [*]
SWIFT: [*]
Attention: [*]
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The Note Trustee
BANKERS TRUST COMPANY
1 Appold Street
Broadgate
LONDON EC2A 2HE
UNITED KINGDOM
Tel: [*]
Telex: [*]
Fax: [*]
SWIFT: [*]
Attention: [*]
27. Governing Law and Jurisdiction
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This deed and the Trust constituted under this deed are governed by the
law of New South Wales, Australia. The parties submit to the
non-exclusive jurisdiction of courts exercising jurisdiction there. The
administration of the Trust, including the exercise of the Note
Trustee's powers under clause 13 of this Deed, is governed by the law
of England and in the event of any inconsistency between the operation
of the law of New South Wales, Australia and the law of England in
respect of the application of those powers, the law of England will
prevail to the extent of the inconsistency.
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 30 of the Master Trust Deed applies to the obligations and
liabilities of the Trustee and the 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 (except where
the Transaction Documents provide otherwise). Subject to
paragraph (c) below, 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 the assets and property of the Trust which are
available to satisfy the right of the Trustee to be exonerated
or 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
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any representation, warranty, conduct, omission, agreement or
transaction related to this Deed or the Trust.
(b) Subject to paragraph (c) below, no person (including any
Relevant Party) may take action against 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 29.2 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 or exoneration out of the Assets of
the Trust as a result of the Trustee's fraud, negligence, or
Default.
(d) It is acknowledged that the Relevant Parties are responsible
under this Deed or 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 Default of the Trustee for the purpose of
paragraph (c) above to the extent to which the act or omission
was caused or contributed to by any failure by any Relevant
Party or any person who has been delegated or appointed by the
Trustee in accordance with the Transaction Documents to fulfil
its obligations relating to the Trust or by any other act or
omission of a Relevant Party or any such person.
(e) In exercising their powers under the Transaction Documents,
each of the Trustee, the Security Trustee and the Noteholders
must ensure that no attorney, agent, delegate, receiver or
receiver and manager appointed by it in accordance with this
Deed or any other Transaction Documents 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 Default of the
Trustee for the purpose of paragraph (c) above.
(f) In this clause, Relevant Parties means each of the Manager,
the Servicer, the Custodian, the Calculation Agent, each
Paying Agent, the Note Trustee and the provider of any Support
Facility.
(g) Nothing in this clause limits the obligations expressly
imposed on the Trustee under the Transaction Documents.
29.3 Unrestricted remedies
Nothing in clause 29.2 limits any party in:
(a) obtaining an injunction or other order to restrain any breach
of this deed by any party;
(b) obtaining declaratory relief;
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(c) in relation to its rights under the Security Trust Deed or
this Deed; or
(d) taking any legal action against the Trustee in its personal
capacity under clause 29.2(c).
29.4 Restricted remedies
Except as provided in clause 29.3, the Note Trustee 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 Note Trustee waives
its rights to make those applications and take those proceedings.
30. Successor Trustee
- --------------------------------------------------------------------------------
The Note Trustee shall do all things reasonably necessary of itself to
enable any successor Trustee appointed under clause 20 of the Master
Trust Deed to become the Note Trustee under this deed.
31. Reimbursement for the Cost of Independent Advice
- --------------------------------------------------------------------------------
Where the Note Trustee is required to express an opinion or make a
determination or calculation under this deed or the other Transaction
Documents, the Note Trustee may appoint or engage such independent
advisors including any of the persons referred to in clause 13(a) as
the Note Trustee reasonably requires to assist in the giving of that
opinion or the making of that determination or calculation and any
reasonable costs and expenses payable to those advisors will be
reimbursed to the Note Trustee by the Trustee or if another person is
expressly stated in the relevant provision in a Transaction Document,
that person.
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32. No Liability
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Without limitation the Note Trustee shall not be liable for:
(a) any decline in the value or loss realised upon any sale or
other disposition made under the Security Trust Deed of any
Mortgaged Property (as defined in the Security Trust Deed) 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 Trustee or the Secured Moneys (as
defined in the Security Trust Deed) or relating in any way to
the Mortgaged Property;
(b) any decline or loss directly or indirectly arising from the
Note 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, the
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 Security Trustee or the Note Trustee,
except for the fraud, negligence, default or breach
of trust of the Note Trustee.
33. Information Memorandum
- --------------------------------------------------------------------------------
The Note 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 Trustee or Manager,
including in connection with the issue of Class A Notes. Neither the
Trustee nor the Manager may publish or permit to be published any such
document in connection with the offer of Class A Notes or an invitation
for subscriptions for Class A Notes containing any statement which
makes reference to the Note Trustee without the prior written consent
of the Note Trustee, which consent must not be unreasonably withheld.
In considering whether to give its consent, the Note Trustee is not
required to take into account the interests of the Noteholders.
34. Note Trustee's Limited Liability
- --------------------------------------------------------------------------------
34.1 Reliance on certificate
The Note Trustee shall not incur any liability as a result of relying
upon the authority, validity, due authorisation of, or the accuracy of
any information contained in any notice, resolution, direction,
consent, certificate, receipt, affidavit, statement, valuation report
or other document or communication (including any of the above
submitted or provided by the Manager, by the Trustee or by a Class A
Noteholder) if the Note Trustee is entitled, under
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clause 34.2 to assume such authenticity, validity, due authorisation
or accuracy.
In preparing any notice, certificate, advice or proposal the Note
Trustee shall be entitled to assume, unless it is actually aware to the
contrary, that each person under any Authorised Investment, Support
Facility, Receivable, Receivable Security, Related Securities, other
Transaction Document or any other deed, agreement or arrangement
incidental to any of the above or to the Trust, will perform their
obligations under those documents in full by the due date and otherwise
in accordance with their terms.
34.2 Note Trustee's reliance on Manager, Security Trustee,
Trustee or Servicer
(a) (Authorised Signatories are sufficient evidence) Whenever any
certificate, notice, proposal, direction, instruction,
document or other communication is to be given to the Note
Trustee, the Note Trustee may assume:
(i) the authenticity and validity of any signature in any
such document and that such document has been duly
authorised; and
(ii) the accuracy of any information contained in any such
documents,
in either case unless the officers of the Note Trustee
responsible for the administration of the trust constituted
under this Deed (the Note Trust) are actually aware to the
contrary.
(b) (Trustee not liable for loss) The Note Trustee shall not be
responsible for any loss arising from any forgery or lack of
authenticity or any act, neglect, mistake or discrepancy of
the Manager, the Security Trustee, Trustee or the Servicer or
any officer, employee, agent or delegate of the Manager, the
Security Trustee, the Trustee or the Servicer in preparing any
such document or in compiling, verifying or calculating any
matter or information contained in any such document, if the
officers of the Note Trustee responsible for the
administration of the Note Trust are not actually aware of
such forgery, lack of authenticity or validity, act, neglect,
mistake or discrepancy.
34.3 Compliance with laws
The Note Trustee shall not incur any liability to anyone in respect of
any failure to perform or to do any act or thing which by reason of any
provision of any applicable present or future law of any place or any
applicable ordinance, rule, regulation or by law or of any applicable
decree, order or judgment of any competent court or other tribunal, the
Note Trustee shall be prohibited from doing or performing.
34.4 Reliance on experts
The Note Trustee may rely on and act on the opinion or statement or
certificate or advice of or information obtained from the Security
Trustee, the
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Servicer, the Trustee, barristers or solicitors (whether instructed by
the Note Trustee or not), bankers, accountants, brokers, valuers and
other persons believed by it in good faith to be expert or properly
informed in relation to the matters on which they are consulted and the
Note Trustee shall not be liable for anything done or suffered by it in
good faith in reliance on such opinion, statement, certificate, advice
or information except to the extent of losses, costs, claims or damages
caused by the Note Trustee's fraud, negligence, default or breach of
trust.
34.5 Oversights of others
Having regard to the limitations on the Note Trustee's duties, powers,
authorities and discretions under this Deed, the Note Trustee shall not
be responsible for any act, omission, misconduct, mistake, oversight,
error of judgment, forgetfulness or want of prudence on the part of any
person or agent appointed by the Note Trustee or on whom the Note
Trustee is entitled to rely under this Deed (other than a Related Body
Corporate), attorney, banker, receiver, barrister, solicitor, agent or
other person acting as agent or adviser to the Note Trustee except to
the extent of losses, costs, claims or damages caused by the Note
Trustee's fraud, negligence, default or breach of trust, provided that
nothing in this Deed or any other Transaction Document imposes any
obligations on the Note Trustee to review or supervise the performance
by any other party of its obligations.
34.6 Powers, authorities and discretions
Except as otherwise provided in this Deed and in the absence of fraud,
negligence, default or breach of trust, the Note Trustee shall not be
in any way responsible for any loss (whether consequential or
otherwise), costs, damages or inconvenience that may result from the
exercise or non-exercise of any powers, authorities and discretions
vested in it.
34.7 Impossibility or impracticability
If for any other reason it becomes impossible or impracticable for it
to carry out any or all of the provisions of this Deed or any other
Transaction Document, the Note Trustee shall not be under any liability
and, except to the extent of its own fraud, negligence, default or
breach of trust, nor shall it incur any liability by reason of any
error of law or any matter or thing done or suffered or omitted to be
done in good faith by it or its officers, employees, agents or
delegates.
34.8 Legal and other proceedings
(a) (Indemnity for legal costs) The Note Trustee or the Class A
Noteholders acting under Clause 6.5 (as the case may be) (each
an Indemnified Party) shall be indemnified by the Trustee
(subject to clause 29) for all legal costs and disbursements
on a full indemnity basis and all other cost, disbursements,
outgoings and expenses incurred by the Indemnified Party in
connection with:
(i) the enforcement or contemplated enforcement of, or
preservation of rights under;
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(ii) without limiting the generality of paragraph (i)
above, the initiation, defence, carriage and
settlement of any action, suit, proceeding or dispute
in respect of; and
(iii) obtaining legal advice or opinions concerning or
relating to the interpretation or construction of,
this Deed or any other Transaction Document or otherwise under
or in respect of the Note Trust Deed provided that the
enforcement, contemplated enforcement or preservation by the
Note Trustee (as the case may be) of the rights referred to in
paragraph (i) or the court proceedings referred to in
paragraph (ii) (including in each case the defence of any
action, suit, proceeding or dispute brought against the
Indemnified Party), and the basis of incurring any of those
costs, disbursements, outgoings and expenses by the
Indemnified Party:
(iv) has been approved in advance by the written consent
of the holders of at least 75% of the aggregate
Invested Amount of the Class A Notes; or
(v) the Indemnified Party reasonably considers the
incurring of those costs, disbursements, outgoings
and expenses to be necessary.
(b) (Defence of proceedings alleging negligence etc.) The
Indemnified Party shall be entitled to claim in respect of the
above indemnity from the Trustee for its expenses and
liabilities incurred in defending any action, suit, proceeding
or dispute in which fraud, negligence, default or breach of
trust is alleged or claimed against it, but on the same being
proved, accepted or admitted by it, it shall immediately repay
to the Trust the amount previously paid by the Trustee to it
in respect of that indemnity.
34.9 No liability except for negligence etc.
Except to the extent caused by the fraud, negligence, default or breach
of trust on the Note Trustee's part or on the part of any of its
officers or employees, or any agents or delegate, sub-agent,
sub-delegate employed by the Note Trustee in accordance with this Deed
(and where this Deed provides that the Note Trustee is liable for the
acts or omissions of any such person) to carry out any transactions
contemplated by this Deed, the Note Trustee shall not be liable for any
losses, costs, liabilities or claims arising from the failure to pay
moneys on the due date for payment to any Class A Noteholder or any
other person or for any loss howsoever caused in respect of any of the
Trust or to any Class A Noteholder or other person. The Note Trustee is
not obliged to take any action under this Deed unless it is indemnified
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 by so doing.
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34.10 Further limitations on Note Trustee's liability
Subject to clause 34.2, the Note Trustee shall not be liable:
(a) for any losses, costs, liabilities or expenses arising out of
the exercise or non-exercise of its discretion or for any
other act or omission on its part under this Deed, any other
Transaction Document or any other document except where the
exercise or non-exercise of any discretion, or any act or
omission, by the Note Trustee, or any of its officers or
employees, or any agent, delegate, sub-agent, sub-delegate
employed by the Note Trustee in accordance with this Deed (and
where this Deed provides that the Note Trustee is liable for
the acts or omissions of any such person) to carry out any
transactions contemplated by this Deed, constitutes fraud,
negligence, default or breach of trust;
(b) for any losses, costs, damages or expenses caused by its
acting (in circumstances where this Deed requires it to act or
contemplates that it may so act) on any instruction or
direction given to it by:
(i) any Class A Noteholder under this Deed, any other
Transaction Document or any other document;
(ii) by any person under a Support Facility, Receivable or
Receivable Security,
except to the extent that it is caused by the fraud,
negligence, default or breach of trust of the Note Trustee, or
any of its officers or employees, or an agent or delegate
employed by the Note Trustee in accordance with this Deed to
carry out any transactions contemplated by this Deed;
(c) for any Manager's Default, Servicer Transfer Event or Title
Perfection Event;
(d) without limiting the Note Trustee's obligations under the
Transaction Documents, for any act, omission or default of the
Servicer in relation to its servicing duties or its
obligations under the Servicing Agreement;
(e) without limiting the Note Trustee's obligations under the
Transaction Documents, for any act, omission or default of the
Custodian in relation to its custodial duties or its
obligations under the Custodian Agreement;
(f) without limiting the Note Trustee's obligations under the
Transaction Documents, for any act, omission or default of the
Security Trustee in relation to its obligations under the
Transaction Documents;
(g) without limiting the Note Trustee's obligations under the
Transaction Documents, for any act, omission or default of a
Paying Agent in relation to its obligations under the
Transaction Documents;
(h) without limiting the Note Trustee's obligations under the
Transaction Documents, for any act, omission or default of the
Calculation Agent in relation to its obligations under the
Transaction Documents;
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(i) for the failure of a person to carry out an agreement with the
Note Trustee in connection with the Trust; or
(j) for any losses, costs, liabilities or expenses caused by the
Note Trustee's failure to check any calculation, information,
document, form or list supplied or purported to be supplied to
it by the Manager, the Trustee, Security Trustee or the
Servicer,
except, in the case of paragraphs (c) to (j) (inclusive), to the extent
that it is caused by the fraud, negligence, default or breach of trust
of the Note Trustee.
Nothing in this clause 34.10 alone (but without limiting the operation
of any other clause of this Deed) shall imply a duty on the Note
Trustee to supervise the Manager or the Security Trustee in the
performance of the Manager's or the Security Trustee's functions and
duties, and the exercise by the Manager or the Security Trustee of its
discretions.
34.11 Conflicts
(a) (Not liable to account) Note Trustee shall not be in any way
liable to account to any Class A Noteholder or any other
person for any profits or benefits (including any profit, bank
charges, commission, exchange, brokerage and fees) made or
derived under or in connection with any transaction or
contract specified in paragraph (b) below.
(b) (Fiduciary relationship) Note Trustee shall not by reason of
any fiduciary relationship be in any way precluded from making
any contracts or entering into any transactions with any such
person in the ordinary course of its business or from
undertaking any banking, financial, development, agency or
other services including any contract or transaction in
relation to the placing of or dealing with any investment and
the acceptance of any office or profit or any contract of loan
or deposits or other contract or transaction which any person
or company not being a party to this Deed could or might have
lawfully entered into if not a party to this Deed. Note
Trustee shall not be accountable to any Class A Noteholder or
any other person for any profits arising from any such
contracts, transactions or offices.
34.12 Information
Except for notices and other documents and information (if any)
expressed to be required to be furnished to any person by the Note
Trustee under this Deed or any other Transaction Document, the Note
Trustee shall not have any duty or responsibility to provide any person
(including any Class A Noteholder) with any credit or other information
concerning the affairs, financial condition or business of the Trust.
34.13 Investigation by Note Trustee
Each Noteholder acknowledges that the Note Trustee has no duty, and is
under no obligation, to investigate whether a Manager's Default,
Servicer
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Transfer Event or Title Perfection Event has occurred in relation to
the Trust other than where it has actual notice.
35. Noteholders' Lists and Reports
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35.1 Provision of information
The Trustee (or the Manager on its behalf) 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, 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 Manager with a
copy provided to 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.
35.2 Preservation of Information; Communications to
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 35.1 and
if it acts 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 35.1 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.
35.3 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, the Trustee and the Manager 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
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be filed by the Note Trustee with the Commission and each stock
exchange, if any, on which the Class A Notes are listed. The Manager on
behalf of the Trustee shall notify the Note Trustee if and when the
Class A Notes are listed on any stock exchange.
35.4 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
expressly provided) if in writing and mailed, first-class, postage
prepaid to each 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 Manager on behalf of
the Trustee shall direct the Note Trustee shall be deemed to be a
sufficient giving of such notice.
35.5 Reports by Trustee
The Trustee (or the Manager on its behalf) 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
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TIA) such summaries of any information, documents and reports
required to be filed by the Trustee pursuant to clauses (a)
and (b) of this clause 35.5 as may be required by rules and
regulations prescribed from time to time by the Commission.
36. Trust Indenture Act - Miscellaneous
- --------------------------------------------------------------------------------
36.1 Compliance Certificates and Opinions, etc
(a) Upon any application or request by the Trustee or the Manager
to the Note Trustee to take any action under any provision of
this deed, the Trustee (or the Manager on its behalf) 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 36.1(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 (or the Manager on its behalf) 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 $25,000 or less than one
percent of the then Total Invested Amount of the
Notes.
Notwithstanding any other provision of this clause,
the Trustee may:
(A) collect, liquidate, sell or otherwise
dispose of Receivables or other Assets of
the Trust as and to the extent permitted or
required by the Transaction Documents; and
(B) make or permit to be made cash payments out
of the Collection Account or the US$ 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
(iv) a statement as to whether, in the opinion of each
such signatory such condition or covenant has been
complied with.
36.2 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,
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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).
36.3 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.
36.4 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 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 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.
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36.5 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.
37. Consent of Class A Noteholders
- --------------------------------------------------------------------------------
37.1 General
Except as expressly provided in elsewhere in this deed or in clause
37.2 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.
37.2 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;
(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, as appropriate,
(i) power to sanction any compromise or arrangement
proposed to be made between the Trustee and the Class
A Noteholders;
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(ii) power to sanction any abrogation, modification,
compromise or arrangement in respect of the rights of
the Class A Noteholders 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;
(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, as the case
may be, 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.
37.3 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, 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
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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 or she has no notice of,
alteration to, or revocation or suspension of, his or her power of attorney.
TRUSTEE
SIGNED on behalf of )
AXA TRUSTEES LIMITED )
(ACN 004 029 841) )
by its attorney under the Power of )
Attorney dated )
in the presence of: )
---------------------------
Signature
- -------------------------------------------------- ---------------------------
Witness Print name
- --------------------------------------------------
Print name
MANAGER
SIGNED, SEALED AND )
DELIVERED on behalf of )
CRUSADE MANAGEMENT )
LIMITED )
by its attorney under the Power of )
Attorney dated )
in the presence of: )
---------------------------
Signature
- -------------------------------------------------- ---------------------------
Witness Print name
- --------------------------------------------------
Print name
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NOTE TRUSTEE
SIGNED, SEALED AND )
DELIVERED on behalf of )
BANKERS TRUST COMPANY )
by its attorney under the Power of )
Attorney dated )
in the presence of: )
---------------------------
Signature
- -------------------------------------------------- ---------------------------
Witness Print name
- --------------------------------------------------
Print name
PRINCIPAL PAYING AGENT
SIGNED, SEALED AND )
DELIVERED on behalf of )
MIDLAND BANK PLC )
by its attorney under the Power of )
Attorney dated )
in the presence of: )
---------------------------
Signature
- -------------------------------------------------- ---------------------------
Witness Print name
- --------------------------------------------------
Print name
CALCULATION AGENT
SIGNED, SEALED AND )
DELIVERED on behalf of )
MIDLAND BANK PLC )
by its attorney under the Power of )
Attorney dated )
in the presence of: )
---------------------------
Signature
- -------------------------------------------------- ---------------------------
Witness Print name
- --------------------------------------------------
Print name
- --------------------------------------------------------------------------------
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SECURITY TRUSTEE
SIGNED, SEALED AND )
DELIVERED on behalf of )
NATIONAL MUTUAL LIFE )
NOMINEES LIMITED )
by its attorney under the Power of )
Attorney dated )
in the presence of: )
---------------------------
Signature
- -------------------------------------------------- ---------------------------
Witness Print name
- --------------------------------------------------
Print name
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Note Trust Deed Allen Allen & Hemsley
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Schedule 1
Form 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.
AXA TRUSTEES LIMITED
(ACN 004 029 841)
(a limited liability company incorporated under the law of
Victoria, Australia)
in its capacity as trustee of the Crusade Global Trust No. 1
of 1999
BOOK-ENTRY NOTE
representing
US$[number]**
Class [A-1/A-2/A-3] Mortgage Backed Floating Rate Notes Due on
the Quarterly Payment Date falling in [August 2009 / May 2021
/ February 2030]
This Note is a Class [A-1/A-2/A-3] Book-Entry Note without principal or interest
in respect of a duly authorised issue of Notes of AXA Trustees Limited in its
capacity as trustee of the Crusade Global Trust No. 1 of 1999 (the "Trust") (the
"Issuer"), designated as specified in the title above (the "Notes"), in an
initial aggregate principal amount of
[ ]** (US$ [ ])**
and (a) constituted by a Master Trust Deed (the "Master Trust Deed") dated 14
March 1998 between the Issuer, St.George Bank Limited and Crusade Management
Limited (the "Manager"), by a Supplementary Terms Notice (the "Supplementary
Terms Notice") dated [*] 1999 between (among others) the Issuer, the Security
Trustee (as defined herein), St.George Custodial Pty Limited, Bankers Trust
Company (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-1/A-2/A-3] Notes
(the
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Note Trust Deed Allen Allen & Hemsley
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"Class [A-1/A-2/A-3] Noteholders") and the Manager, and by the Conditions;
(b) issued subject to a Note Trust Deed dated [*] 1999 (the "Note Trust Deed")
between (among others) the Issuer, the Manager and the Note Trustee; and (c)
secured by a Security Trust Deed (the "Security Trust Deed") dated [*] 1999
between the Issuer, the Manager, the Note Trustee and National Mutual Life
Nominees Limited (ACN 004 387 133) (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 Class [A-1/A-2/A-3] Book-Entry Note will be exchangeable in
whole at the offices of the Principal Paying Agent at [*] (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 Class
[A-1/A-2/A-3]Definitive Notes and the Issuer shall execute and procure that the
Principal Paying Agent authenticates and delivers in full exchange for this
Class [A-1/A-2/A-3] Book-Entry Note, Class [A-1/A-2/A-3] Definitive Notes in
aggregate principal amount equal to the Amount of all Class [A-1/A-2/A-3] Notes
represented by this Class [A-1/A-2/A-3] 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 Class A
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
Class [A-1/A-2/A-3] 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 Class A-1/A-2/A-3 Book-Entry Note (or such part of that amount as may
become repayable under the Conditions, the Supplementary Terms 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 Supplementary Terms Notice and
the Note Trust Deed and to pay interest in arrears on each Quarterly Payment
Date (as defined in Condition 4) on the Invested Amount (as defined in Condition
5(a)) of this Class [A-1/A-2/A-3] Book-Entry Note at rates determined in
accordance with Class [A-1/A-2/A-3] Condition 4 and all subject to and in
accordance with the certification requirements described in this Class
[A-1/A-2/A-3] Book-Entry Note, the Conditions, the Supplementary Terms Notice
and the Note Trust Deed, which shall be binding on the registered holder of this
Class [A-1/A-2/A-3] Book-Entry Note (as if references in the Conditions to the
Notes and the Noteholders were references to this Class [A-1/A-2/A-3] Book-Entry
Note and the registered holder of this Class [A-1/A-2/A-3] Book-Entry Note
respectively and as if the same had been set out in this Class [A-1/A-2/A-3]
Book-Entry Note in full with all necessary changes, except as otherwise provided
in this Class [A-1/A-2/A-3] Book-Entry Note).
Payments of interest on this Class [A-1/A-2/A-3] Note due and payable on each
Quarterly 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
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Note Trust Deed Allen Allen & Hemsley
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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-1/A-2/A-3] Note will be entitled to receive
any payment so made in respect of that Class [A-1/A-2/A-3] 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-1/A-2/A-3] Notes which must be made by the holder of this Class [A-1/A-2/A-3]
Book-Entry Note, for so long as this Class [A-1/A-2/A-3] Book-Entry Note is
outstanding.
On any payment of principal and/or interest on the Class [A-1/A-2/A-3] 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-1/A-2/A-3] 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 Class A 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 Class A 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 Supplementary Terms Notice
and this Class A Book-Entry Note.
On an exchange of this Class [A-1/A-2/A-3] Book-Entry Note, this Class
[A-1/A-2/A-3] Book-Entry Note shall be surrendered to the Principal Paying
Agent.
This Class [A-1/A-2/A-3] 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
Supplementary Terms Notice).
This Class [A-1/A-2/A-3] Book-Entry Note is governed by, and shall be construed
in accordance with, the laws of New South Wales, Australia.
IN WITNESS the Issuer has caused this Class [A-1/A-2/A-3]Book-Entry Note to be
signed [manually/in facsimile] by a person duly authorised on its behalf
AXA TRUSTEES LIMITED in its capacity as trustee of the Crusade
Global Trust No. 1 of 1999
By: ------------------------------
Authorised Signatory
IMPORTANT NOTICE:
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Note Trust Deed Allen Allen & Hemsley
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(a) The Notes do not represent deposits or other liabilities of St.George Bank
Limited, ACN 055 513 070 ("St.George") or associates of St.George.
(b) The holding of Notes is subject to investment risk, including possible
delays in repayment and loss of income and principal invested.
(c) Neither St.George, any associate of St.George, AXA Trustees Limited, the
Security Trustee, the Note Trustee nor any Note Manager in any way stands
behind the capital value and/or performance of the Notes or the assets of
the Trust except to the limited extent provided in the
Transaction Documents for the Trust.
(d) None of St.George, AXA Trustees Limited, the Custodian (as defined in the
Supplementary Terms Notice), the Servicer (as defined in the Supplementary
Terms Notice), the Manager, the Security Trustee, the Note Trustee, the
Standby Guarantor (as defined in the Supplementary Terms Notice), Deutsche
Bank AG in its capacity as standby provider of an Interest Hedge (as
defined in the Supplementary Terms Notice), the Currency Swap Provider (as
defined in the Supplementary Terms Notice) or any of the Note Managers (as
defined in the Supplementary Terms Notice) guarantees the payment of
interest or the repayment of principal due on the Notes.
(e) None of the obligations of the Issuer or the Manager are guaranteed in any
way by St.George or any associate of St.George or associate of AXA Trustees
Limited.
(f) Without limiting the Conditions, the Issuer's liability to make payments in
respect of the Notes is limited to its right of indemnity from the assets
of the Trust from time to time available to make such payments under the
Master Trust Deed and Supplementary Terms Notice. All claims against the
Issuer in relation to the 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 Default (as defined
in the Master Trust Deed) 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.
CERTIFICATE OF AUTHENTICATION
This Class [A-1/A-2/A-3] Book-Entry Note is authenticated by HSBC Issuer
Services and until so authenticated shall not be valid for any purpose.
HSBC ISSUER SERVICES as Principal Paying Agent
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Note Trust Deed Allen Allen & Hemsley
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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.
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Note Trust Deed Allen Allen & Hemsley
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Schedule 2
Information to be contained in Noteholder's Report
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(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 Payment Shortfall (if any);
(viii) 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;
(ix) the Gross Principal Collections;
(x) the Principal Collections;
(xi) the Liquidity Shortfall (if any);
(xii) the Remaining Liquidity Shortfall (if any);
(xiii) the Principal Charge Off (if any);
(xiv) the Class A Percentage and the Class B Percentage;
(xv) 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);
(xvi) 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);
(xvii) all Carryover Charge Offs (if any);
(xviii) if required, the Threshold Rate at that Collection Determination Date;
(xix) LIBOR, as at the first day of the related Interest Period ending
immediately after that Collection Determination Date as calculated by
the Agent Bank;
(xx) scheduled and unscheduled payments of principal on the Housing Loans;
(xxi) aggregate Balances Outstanding of Fixed Rate Housing Loans and
aggregate Balances Outstanding of Variable Rate Housing Loans; and
(xxii) delinquency statistics with respect to the Housing Loans.
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Allen Allen & Hemsley
ALLENS ARTHUR ROBINSON GROUP
Agency Agreement
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AXA Trustees Limited
(Trustee)
Crusade Management Limited
(Manager)
Midland Bank plc
(Principal Paying Agent)
Bankers Trust Company
(Note Trustee)
Midland Bank plc
(Calculation Agent)
Midland Bank plc
(Note Registrar)
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>
Agency Agreement Allen Allen & Hemsley
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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 4
1.6 Trustee as trustee 4
2. Appointment of Paying Agents 4
3. Payment 5
3.1 Payment by Trustee 5
3.2 Confirmation 5
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 Reimbursement 6
3.9 Method of payment 6
3.10 No fee 7
3.11 Trust 7
4. Repayment 7
5. Appointment of the Calculation Agent 8
6. Duties of the Calculation Agent 8
7. Note Trustee 9
8. Early Redemption of Notes 10
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Agency Agreement Allen Allen & Hemsley
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9. Pro Rata Redemption, Purchases and Cancellation of Notes 11
10. Notices to Noteholders 12
11. Documents and Forms 13
12. Authentication 13
13. Indemnity 13
14. The Note Register 14
14.1 Appointment of Note Registrar 14
14.2 Details to be kept on the Note Register 14
14.3 Payments of Principal and Interest 15
14.4 Place of keeping Register, copies and access 15
14.5 Details on Note Register conclusive 16
14.6 Alteration of details on Note Register 16
14.7 Rectification of Note Register 16
14.8 Correctness of Note Register 17
15. Changes of Note Registrar 17
15.1 Removal 17
15.2 Resignation 17
15.3 Limitation 17
16. General 17
16.1 Communications to Class A Noteholders 17
16.2 Agency 18
16.3 Identity 18
16.4 No set-off 18
16.5 Reliance 19
16.6 Entitled to deal 19
16.7 Consultation 19
16.8 Duties 19
16.9 Income Tax Returns 19
16.10 Obligations of Note Parties 19
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Agency Agreement Allen Allen & Hemsley
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17. Changes in Paying Agents and Calculation Agent 20
17.1 Removal 20
17.2 Resignation 20
17.3 Limitation 21
17.4 Delivery of amounts 22
17.5 Successor to Principal Paying Agent 22
17.6 Successor to Calculation Agent 22
17.7 Notice to Noteholders 23
17.8 Change in Paying Office or Specified Office 23
18. Fees and Expenses 24
19. Waivers, Remedies Cumulative 25
20. Severability of Provisions 25
21. Assignments 25
22. Notices 26
22.1 General 26
22.2 Details 26
22.3 Communication through Principal Paying Agent 28
23. Limited Recourse 28
23.1 General 28
23.2 Liability of Trustee limited to its right to indemnity 28
23.3 Unrestricted remedies 29
23.4 Restricted remedies 30
24. Counterparts 30
25. Governing Law 30
26. Successor Trustee 30
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Page (iii)
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Agency Agreement Allen Allen & Hemsley
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Date
- -------------
Parties
- -------------
1. AXA TRUSTEES LIMITED (ACN 004 029 841) incorporated in Victoria
of Level 2, 65 Southbank Boulevard, South Melbourne, Victoria
3205 in its capacity as trustee of the Crusade Global Trust No.
1 of 1999 (the Trustee);
2. CRUSADE MANAGEMENT LIMITED (ACN 072 715 916) incorporated in New
South Wales of 4-16 Montgomery Street, Kogarah, New South Wales
2217, as Manager in relation to the Crusade Global Trust No. 1
of 1999 (the Manager);
3. MIDLAND BANK PLC acting through its office at HSBC Issuer
Services, Mariner House, Pepys Street, London EC3N 4DA, United
Kingdom as principal paying agent for the 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. BANKERS TRUST COMPANY acting through its office at 1 Appold
Street Broadgate, London EC2A2HE, United Kingdom as trustee for
the 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); and
5. MIDLAND BANK PLC acting through its office at HSBC Issuer
Services, Mariner House, Pepys Street, London EC3N 4DA, United
Kingdom as reference agent in relation to the Notes described
below (the Calculation Agent) which expression shall, whenever
the context requires, include any successor reference agent from
time to time).
6. MIDLAND BANK PLC acting through its office at HSBC Issuer
Services, Mariner House, Pepys Street, London EC3N 4DA, United
Kingdom as note registrar in relation to the Notes described
below (the Note Registrar) which expression shall, whenever the
context requires, include any successor note registrar from time
to time).
Recitals
- -------------
A The Trustee proposes to issue US$1,000,000,000 of Class A
mortgage backed pass through floating rate Notes comprising
US$300,000,000 Class A-1 Notes (Class A-1 Notes) due on the
Quarterly Payment Date falling in August 2009, US$569,000,000
Class A-2 Notes (Class A-2 Notes) due on the Quarterly Payment
Date falling in May 2021,
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Agency Agreement Allen Allen & Hemsley
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US$125,000,000 Class A-3 Notes (Class A-3 Notes) due on the
Quarterly Payment Date falling in February 2030 and the A$
equivalent of US$6,000 000 Class B Notes due on the Quarterly
Payment Date falling in February 2030.
B Each Class of Class A Notes will be represented initially by one
or more Book-Entry Notes (the Book-Entry Notes).
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 Supplementary Terms 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 Calculation Agent 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.
H The Trustee wishes to appoint the Note Registrar in respect of
the 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
- ----------------------------------------------------------------
1.1 Definitions
The following definitions apply unless the context requires otherwise.
Master Trust Deed means the Master Trust Deed for the Crusade Euro
Trusts dated 14 March 1998 between the Trustee as trustee, St.George
Bank Limited and the Manager.
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Agency Agreement Allen Allen & Hemsley
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Notice of Creation of Trust means the Notice of Creation of Trust dated
on or about the date of this agreement 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.
Supplementary Terms Notice means the Supplementary Terms Notice dated
on or about the date of this agreement relating to the Trust.
Specified Office means, in relation to the Calculation Agent, the
office of the Calculation Agent specified under this Agreement as the
office at which the Calculation Agent will carry out its duties under
this agreement.
Trust means the trust known as the Crusade Global Trust No. 1 of 1999
established under the Notice of Creation of Trust, the Master Trust
Deed and the Supplementary Terms 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.
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Agency Agreement Allen Allen & Hemsley
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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 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 Trust, and do not relate to any other Trust
(as defined in the Master Trust Deed).
2. Appointment of Paying Agents
- -------------------------------------------------------------------------------
(a) Subject to the terms of this agreement, the Trustee (acting on
the direction of the Manager) 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 of
the Principal Paying Agent or any other Paying Agent.
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Agency Agreement Allen Allen & Hemsley
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3. Payment
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3.1 Payment by Trustee
The Trustee shall, with the assistance of and, at the direction of the
Manager, not later than 10.00 am (London time) on each Payment Date,
pay to or to the order of, or procure payment to or to the order of,
the Principal Paying Agent (including where relevant in clause 3.9) 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 each Class of Class A Notes on that Payment Date under the
Supplementary Terms Notice and the Conditions.
3.2 Confirmation
Not later than 4.00 pm (Sydney time) on each Determination Date, the
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 or principal payable in respect of each Class of Class A Notes
on the Payment Date following that Determination Date. The Trustee or
if required by the Trustee, the 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 each Class of the Class A Notes in accordance with the
Supplementary Terms Notice and the Conditions.
3.4 Method of Payment - Book-Entry Notes
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 Depository
for credit to the account of the persons appearing from time to time in
the records of the Common Depository as account holder with respect to
the Book-Entry Note.
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 Supplementary
Terms 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
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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 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 Supplementary Terms
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 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 the 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 Manager if the full
amount of any payment of principal or interest required to be made by
the Supplementary Terms Notice and 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 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 Supplementary Terms Notice,
the Conditions and this agreement. The Trustee shall not be concerned
with the apportionment of any moneys between the Principal Paying
Agent, 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 Trustee in respect of such moneys.
3.9 Method of payment
(a) All sums payable by the Trustee to the Principal Paying Agent
under this agreement shall, unless otherwise provided by and
subject to the Currency Swap, be paid by the Currency Swap
Provider 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 in an
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account for payment to the Class A Noteholders, as the case
may be, 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 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
Principal Paying Agent shall, promptly after each Payment
Date, confirm that the Principal Paying Agent has paid the
relevant amount to the Common Depository.
(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.
3.10 No fee
Subject to clause 18, no Paying Agent will charge any commission or fee
in relation to any payment under this agreement.
3.11 Trust
The Principal Paying Agent shall hold in trust for the Note Trustee and
the Class A Noteholders all sums held by it for the payment of
principal and interest with respect to the 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.
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
amounts 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.
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5. Appointment of the Calculation Agent
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(a) The Trustee (acting on the direction of the Manager) appoints
the Calculation Agent as its reference agent in respect of the
Class A Notes upon the terms and conditions set forth in this
agreement and the Calculation Agent accepts that appointment.
(b) It is acknowledged and agreed that:
(i) the Calculation Agent 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 of the
Calculation Agent.
6. Duties of the Calculation Agent
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(a) The Calculation Agent shall in relation to each Class of Class
A Notes until their final 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 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
Manager, the Note Trustee or the Principal Paying
Agent;
(ii) determine LIBOR for each Interest Period, and
calculate the relevant Interest and Interest Rate on
Notes, in the manner set out in Condition 4 and
confirm with the Currency Swap Provider that the
LIBOR determined under this Agreement is the same as
LIBOR determined by the Currency Swap Provider under
the Currency Swap;
(iii) notify the Trustee, the Manager, the Note Trustee and
the Paying Agents by telex or facsimile transmission
on or as soon as possible after the first day of that
Interest Period, of the Interest Rate and the
Interest so determined by it in relation to that
Interest Period, specifying to the Trustee and the
Manager the rates upon which they are based and
(where relevant) the names of the banks quoting those
rates; and
(iv) cause the Interest and Interest Rates applicable to
the Class A Notes for each Interest 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, provided that the Trustee and the
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Manager and the Note Trustee shall co-operate with
the Calculation Agent in order to effect that
publication.
(b) The Interest, Interest Rate 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.
(c) If the Calculation Agent at any time for any reason does not
determine the Interest Rate or calculate the Interest for a
Class A Note, the Manager shall do so and each such
determination or calculation shall be deemed to have been made
by the Calculation Agent. In doing so, the Manager shall apply
the provisions of this 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.
(d) If the Manager does not at any time for any reason determine a
Principal Payment, the Invested Amount or the Stated Amount
applicable to Class A Notes in accordance with the Transaction
Documents, the Principal Payment, Invested Amount and the
Stated Amount shall be determined by the Calculation Agent in
accordance with the Transaction Documents (but based on the
information in its possession) and each such determination or
calculation shall be deemed to have been made by the Manager.
The Calculation Agent may appoint any person as its agent for
the purpose of making any such calculation or determination.
7. Note Trustee
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(a) At any time after an Event of Default has occurred in relation
to a Class A Note or at any time after Definitive Notes have
not been issued when required in accordance with the
provisions of the Transaction Documents, the Note Trustee may:
(i) by notice in writing the Trustee, the Manager the
Calculation Agent, the Principal Paying Agent and any
other Paying Agents require the Principal Paying
Agent, the other Paying Agents and the Calculation
Agent either:
(A) (1) to act as Principal Paying Agent,
Paying Agents and Calculation
Agent, respectively of the Note
Trustee on the terms of this
agreement in relation to payments
to be made by or on behalf of the
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
Calculation Agent and the Paying
Agents shall be limited to any
amount for the time being
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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 directs in
that notice, other than any documents or
records which the Calculation Agent or
Paying Agent (as the case may be) 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 Supplementary Terms 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 period it is required to make payment
to the Note Trustee under paragraph (b).
(c) The Note Trustee shall forthwith upon request give notice to
the Manager, the Trustee, the Security Trustee, the
Calculation Agent and the Principal Paying Agent of any change
in the Authorised Signatories of the Note Trustee.
(d) If the Calculation Agent 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 Calculation Agent. 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 Notes
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(a) If the Trustee intends to redeem all (but not some only) of a
Class of Class A Notes prior to its Final Maturity Date
pursuant to Condition
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5(j) (which it may only do at the direction of the Manager),
the 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(i) or 5(j) 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 Depository of the proposed
redemption, specifying:
(A) the aggregate Invested Amount or Stated
Amount (as the case may be) of each Class of
Class A Notes to be redeemed;
(B) the amount of principal to be repaid in
relation to each Class of Class A Notes; and
(C) the date on which each Class of Class A
Notes are to be redeemed; and
(ii) promptly and in accordance with the relevant
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 a
Class of Class A Notes prior to its Final Maturity Date
pursuant to Condition 5(a) the Manager shall on each
Determination Date give prior notice to the Calculation Agent,
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 Depository of the
proposed redemption, specifying in each case the aggregate
principal amount of the Class A Notes to be redeemed, the
Class of 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 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 Manager shall, on (or as soon as practicable after) each
Determination Date in respect of each Class of the Class A
Notes, calculate:
(i) the amount of principal to be repaid in respect of
each Class of Class A Notes due on the Payment Date
next following that Determination Date;
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(ii) the Stated Amount and Invested Amount of each Class A
Note on the first day of the next following Interest
Period (after deducting any principal due to be made
on the next Payment Date); and
(iii) the Class A Bond Factor on each Quarterly
Determination Date in respect of the Collection
Period ending before that Quarterly Determination
Date,
and shall forthwith notify or cause to be notified to the
Trustee, the Calculation Agent 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
Supplementary Terms Notice. On receipt of that notice, the
Principal Paying Agent shall give a copy of that notice to the
Common Depository in accordance with the requirements of the
Note Depository Agreement.
(e) The Manager will immediately cause details of each
determination under paragraph (d) to be published in
accordance with Condition 12 by one Business Day before the
relevant Payment Date.
(f) If no principal is due to be repaid on the Class A Notes on
any Payment Date, the 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 of 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 that Class, cause
the Note Registrar to record all relevant details in the Note
Register. The Principal 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 Manager and the Note Trustee.
10. Notices to Noteholders
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(a) At the expense of the Trustee, the Principal Paying Agent
shall arrange for the publication of all notices to Class A
Noteholders in accordance with the Conditions.
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(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 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 the Class A Noteholders for issue or
inspection (including the Note Trust Deed, the Master Trust
Deed and the Supplementary Terms Notice).
(b) The Manager and the Trustee shall provide to the Calculation
Agent such documents as the Calculation Agent may reasonably
require from the Manager or the Trustee (and in the case of
the Trustee only those documents that are in the Trustee's
possession or power) in order for the Calculation Agent
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 Calculation Agent against
any loss, damages, proceeding, liability, cost, claim, action,
demand or expense (in this clause 15, each, an Expense) which
the Paying Agent or the Calculation Agent, as the case may be,
may incur or which may be made against the Paying Agent or the
Calculation Agent (as the case may be), as a result of or in
connection with the Paying Agent's or the Calculation Agent's,
as the case may be, appointment or the proper exercise of the
Paying Agent's or the Calculation Agent's, as the case may be,
powers and proper performance of the Paying Agent's or the
Calculation Agent's, as the case may be, duties under this
agreement, notwithstanding the resignation or removal of that
Paying Agent or the Calculation Agent in accordance with
clause 17 (including any liability in respect of payment of a
cheque drawn by that Paying Agent 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).
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(b) The indemnity in paragraph (a) applies to any Expense of a
Paying Agent or the Calculation Agent (as the case may be)
only:
(i) to the extent the Expense does not result from the
breach by the Paying Agent or the Calculation Agent
(as the case may be) of the terms of this agreement
or from the Paying Agent's or the Calculation Agent's
(as the case may be) 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 Calculation Agent (as the
case may be) gives notice of the Expense to the
Trustee and the Manager as soon as the Paying Agent
or the Calculation Agent (as the case may be) becomes
aware of the Expense; and
(iii) if and whenever the Trustee or the Manager so
requires, the Paying Agent or the Calculation Agent
(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 Calculation Agent, and the Paying Agents severally
indemnifies the Trustee and the Manager against any Expense
which the Trustee or the Manager (as the case may be) may
incur or which may be made against it as a result of a breach
by the Calculation Agent 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.
14. The Note Register
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14.1 Appointment of Note Registrar
The Trustee appoints Midland Bank plc to be the initial Note Registrar.
Midland Bank plc 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;
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(e) (Invested Amount) the Invested Amount of each Class A Note or
Class of Class A Notes from time to time;
(f) (Stated Amount) the Stated Amount of each Class A Note or
Class of Class A Notes from time to time;
(g) (Series) details of relevant Classes of Class A Notes;
(h) (details of Noteholders) the name and address of each Class A
Noteholder;
(i) (number of Notes) the number of Class A Notes held by each
Class A Noteholder;
(j) (date of entry) the date on which a person was entered as the
holder of Class A Notes;
(k) (date of cessation) the date on which a person ceased to be a
Class A Noteholder;
(l) (account) the account to which any payments due to a Class A
Noteholder are to be made (if applicable);
(m) (payments) a record of each payment in respect of the Class A
Notes; and
(n) (additional information) such other information as:
(i) is required by the Supplementary Terms Notice;
(ii) the Note Registrar considers necessary or desirable;
or
(iii) the Manager or the Trustee reasonably requires.
14.3 Payments of Principal and Interest
(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 Manager and the
Note Registrar may agree;
(b) (access to Manager and Auditor) open to the Trustee, the
Manager and the Auditor of the Trust to inspect during normal
business hours;
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(c) (inspection by Class A Noteholders) open for inspection by a
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 Manager) except in compliance
with such terms and conditions (if any) as the 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 a 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.
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 a 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.
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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 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 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 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 terms 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,
Manager, Security Trustee or Note Trustee of any communication to be
delivered to Class A Noteholders or 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 Class A 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
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solicitation shall be delivered (the Response Date). The Principal
Paying Agent shall treat any Class A 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, 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 shown in the records of the Common
Depository 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 Depository 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 of Notes
is no longer outstanding but Definitive Notes in respect of
that Class of 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 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.
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16.5 Reliance
Each of the Calculation Agent and the Paying Agent(s) 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 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
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
or any Class A Notes.
16.7 Consultation
Each Note Party may, with the consent of the Trustee and the Manager
(such consent not to be unreasonably withheld), consult as to legal
matters with lawyers selected by it, who may be employees of or lawyers
to the Trustee, the Manager or the relevant Paying Agent or the
Calculation 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, 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 income tax returns.
16.10 Obligations of Note Parties
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.
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17. Changes in Paying Agents and Calculation Agent
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17.1 Removal
The Trustee (or the Manager with the consent of the Trustee (such
consent not to be unreasonably withheld)) 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 Calculation Agent;
(b) subject to this clause 17, terminate the appointment of any
Paying Agent or the Calculation Agent by giving written notice
to that effect to each Designated Rating Agency, the
Calculation Agent (if its appointment is to be terminated),
the Principal Paying Agent and (if different) the Paying Agent
whose appointment is to be terminated:
(i) with effect immediately on that notice, if any of the
following occurs in relation to the Paying Agent or
Calculation Agent (as the case may be):
(A) an Insolvency Event has occurred in relation
to the Paying Agent or Calculation Agent;
(B) the Paying Agent or Calculation Agent has
ceased its business;
(C) the Paying Agent or Calculation Agent fails
to comply with any of its obligations under
this Agreement and, if capable of remedy,
such failure is not remedied within five
days after the earlier of (x) the Paying
Agent or the Calculation Agent, as the case
may be, having become aware of that failure
and (y) the receipt by the Paying Agent or
the Calculation Agent, as the case may be,
of written notice with respect thereto from
the Trustee or Manager; 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 Calculation Agent may
resign its appointment under this agreement at any time by giving to
the Trustee, the 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.
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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) subject to clause 17.3(a), if any Paying Agent or the
Calculation Agent 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 Manager has not appointed
a new Paying Agent or Calculation Agent then the relevant
Paying Agent or Calculation Agent (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);
(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
the City of London;
(d) no appointment or termination of the appointment of any Paying
Agent or the Calculation Agent (as the case may be) shall take
effect unless and until notice has been given to the Class A
Noteholders in accordance with the Conditions; and
(e) no resignation by or termination of the appointment of the
Calculation Agent shall take effect until a new Calculation
Agent 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 be, in the case
of an appointment under clause 17.1(a) or a termination under
clause 17.1(b)(ii), at the cost of the relevant Paying Agent).
In addition, the Trustee shall forthwith appoint a Paying Agent in New
York City in the circumstances described in Condition 6(b) in any Note
(if there is no such Paying Agent at the time) and while such
circumstances subsist maintain such a Paying Agent. 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
Condition 12.
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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 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:
(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 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 Calculation Agent
(a) On the execution by the Trustee, the Manager and any successor
Calculation Agent of an instrument effecting the appointment
of that successor Calculation Agent, that successor
Calculation 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 Calculation
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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 Calculation
Agent is appointed.
(b) Any corporation:
(i) into which the Calculation Agent is merged;
(ii) with which the Calculation Agent is consolidated;
(iii) resulting from any merger or consolidation to which
the Calculation Agent is a party;
(iv) to which the Calculation 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
Calculation 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 Manager, and after that
effective date all references in this agreement to the
Calculation Agent shall be references to that corporation.
17.7 Notice to Noteholders
The Manager on behalf of the Trustee shall, within 14 days of:
(a) the termination of the appointment of any Paying Agent or the
Calculation Agent;
(b) the appointment of a new Paying Agent or Calculation Agent; or
(c) the resignation of any Paying Agent or Calculation Agent,
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 or the Calculation Agent, as the case may be).
17.8 Change in Paying Office or Specified Office
(a) If any Paying Agent proposes to change its Paying Office or to
nominate a further Paying Office (which must be within the
same city as its previous Paying Office), it must give to the
Trustee, the 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 Notes.
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(b) If the Calculation Agent proposes to change its Specified
Office (which must be in the City of London), or to nominate a
further Specified Office, it must give to the Trustee, the
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 Manager, on behalf of the Trustee, 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 or
Specified Office (as the case may be) but the costs of giving
that notice shall be borne by the Paying Agent or the
Calculation Agent (as the case may be) which is changing its
Paying Office and not by the Trustee or the Manager.
(d) Despite any other provision of this agreement, no Paying
Office may be located in Australia.
18. Fees and Expenses
- -------------------------------------------------------------------------------
(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, the Manager 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 Calculation Agent during the
period when any of the Class A Notes remain outstanding the
fee separately agreed by the Calculation Agent, the Manager
and the Trustee, together with any out-of-pocket expenses
reasonably incurred (including any legal fees and expenses).
If the appointment of the Calculation Agent is terminated
under this agreement, the Calculation Agent must refund to the
Trustee that proportion of the fee (if any) which relates to
the period during which the Calculation Agent will not be the
Calculation Agent.
(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
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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 (b), or as expressly
provided elsewhere in this agreement, neither the Trustee nor
the Manager shall have any liability in respect of any fees or
expenses of the Calculation Agent, Principal Paying Agent, any
other Paying Agent or the Note Registrar in connection with
this agreement.
(e) The above fees, payments and expenses shall be paid in
Australian 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.
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, except for the creation of a charge by the
Trustee under the Security Trust Deed. A party who assigns or transfers
any of its rights or obligations under this agreement must promptly
notify each Designated Rating Agency of that assignment.
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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 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 recipient to the
sender under this clause 22; and
(ii) (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 5.00 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.
Any party may by notice to each party change its address, facsimile,
telex or telephone number under this clause 22.1.
22.2 Details
The address, facsimile and telex of each party at the date of this
agreement are as follows:
The Trustee
AXA TRUSTEES LIMITED
65 Southbank Boulevard
SOUTH MELBOURNE VIC 3205
Tel: 613 9694 6500
Fax: 613 9694 6462
Attention: Mr. Philip Maddox
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The Manager
CRUSADE MANAGEMENT LIMITED
55 Market Street
SYDNEY NSW 2000
Tel: 612 9320 5605
Telex: AA73550
Fax: 612 9320 5586
Attention: Executive Manager, Securitisation
The Principal Paying Agent
MIDLAND BANK PLC
HSBC Issuer Services
Mariner House
Pepys Street
London EC3N4DA
United Kingdom
Tel: [*]
Telex: [*]
Fax: [*]
SWIFT: [*]
Attention: [*]
The Calculation Agent
MIDLAND BANK PLC
HSBC Issuer Services
Mariner House
Pepys Street
London EC3N4DA
United Kingdom
Tel: [*]
Telex: [*]
Fax: [*]
SWIFT: [*]
Attention: [*]
The Note Trustee
BANKERS TRUST COMPANY
1 Appold Street
Broadgate
London EC2A 2HE
United Kingdom
Tel: [*]
Telex: [*]
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Fax: [*]
SWIFT: [*]
Attention: [*]
The Note Registrar
MIDLAND BANK PLC
HSBC Issuer Services
Mariner House
Pepys Street
London EC3N4DA
United Kingdom
Tel: [*]
Telex: [*]
Fax: [*]
SWIFT: [*]
Attention: [*]
22.3 Communication through Principal Paying Agent
All communications relating to this agreement between the Trustee or
the Manager and the Calculation Agent 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
Clause 30 of the Master Trust Deed applies to the obligations and
liabilities of the Trustee and the Manager under this agreement.
23.2 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 (except where
the Transaction Documents provide otherwise). Subject to
paragraph (c) below, 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 the assets and property of the Trust which
are available to satisfy the right of the Trustee to be
exonerated or 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) Subject to paragraph (c) below, no person (including any
Relevant Party) may take action against the Trustee in any
capacity other than
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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 23.2 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 or exoneration out of the Assets of
the Trust as a result of the Trustee's fraud, negligence, or
Default.
(d) It is acknowledged that the Relevant Parties are responsible
under this Agreement or 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 Default of the Trustee for the
purpose of paragraph (c) above to the extent to which the act
or omission was caused or contributed to by any failure by any
Relevant Party or any person who has been delegated or
appointed by the Trustee in accordance with the Transaction
Documents to fulfil its obligations relating to the Trust or
by any other act or omission of a Relevant Party or any such
person.
(e) In exercising their powers under the Transaction Documents,
each of the Trustee, the Security Trustee and the Class A
Noteholders must ensure that no attorney, agent, delegate,
receiver or receiver and manager appointed by it in accordance
with this Agreement or any other Transaction Documents 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 Default of the Trustee for the purpose of
paragraph (c) above.
(f) In this clause, Relevant Parties means each of the Manager,
the Servicer, the Custodian, the Calculation Agent, each
Paying Agent, the Note Trustee and the provider of any Support
Facility.
(g) Nothing in this clause limits the obligations expressly
imposed on the Trustee under the Transaction Documents.
23.3 Unrestricted remedies
Nothing in clause 23.2 limits a Paying Agent or the Calculation Agent
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.
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23.4 Restricted remedies
Except as provided in clauses 23.3 and 23.2(iii) neither any Paying
Agent nor the Calculation 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 and the
Calculation Agent 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 20 of the Master Trust
Deed to become the Trustee under this agreement.
Each attorney executing this agreement states that he has no notice of any
alteration to, or revocation or suspension of, his power of attorney.
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TRUSTEE
SIGNED on behalf of )
AXA TRUSTEES LIMITED )
by its attorney under the Power of )
Attorney dated )
in the presence of: )
--------------------------------------
Signature
- ------------------------------------- --------------------------------------
Witness Print name
- -------------------------------------
Print name
MANAGER
SIGNED on behalf of )
CRUSADE MANAGEMENT LIMITED )
by its attorney under Power of Attorney )
dated )
in the presence of: )
--------------------------------------
Signature
- ------------------------------------- --------------------------------------
Witness Print name
- -------------------------------------
Print name
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NOTE TRUSTEE
SIGNED on behalf of )
BANKERS TRUST COMPANY )
by its attorney under Power of Attorney )
dated )
in the presence of: )
------------------------------------
Signature
- ---------------------------------------- ------------------------------------
Witness Print name
- ----------------------------------------
Print name
PRINCIPAL PAYING AGENT
SIGNED on behalf of )
MIDLAND BANK PLC )
by its attorney under Power of Attorney )
dated )
in the presence of: )
-------------------------------------
Signature
- --------------------------------------- -------------------------------------
Witness Print name
- ---------------------------------------
Print name
CALCULATION AGENT
SIGNED on behalf of )
MIDLAND BANK PLC )
by its attorney under Power of Attorney )
dated )
in the presence of: )
-----------------------------------
Signature
- ----------------------------------------- -----------------------------------
Witness Print name
- -----------------------------------------
Print name
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NOTE REGISTRAR
SIGNED on behalf of )
MIDLAND BANK PLC )
by its attorney under Power of Attorney )
dated )
in the presence of: )
-----------------------------------
Signature
- ------------------------------------------ -----------------------------------
Witness Print name
- ------------------------------------------
Print name
<PAGE>
September 14, 1999
Crusade Management Limited
Level 4,
4-16 Montgomery Street
Kogarah NSW 2217
Commonwealth of Australia
Ladies and Gentlemen:
We have acted as your special 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 notes (the "Notes") to be issued by AXA Trustees
Limited, in its capacity as trustee of the Crusade Global Trust No. 1 of 1999
(in such capacity, the "Issuer Trustee") pursuant to the terms of the notice of
creation of trust between Crusade Management Limited, as manager, and the Issuer
Trustee, the Supplementary Terms Notice, which incorporates certain of the terms
and provisions of the Master Trust Deed, the direction from Crusade Management
Limited, as 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 Matters" 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 sold by the Issuer Trustee 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
<PAGE>
Crusade Management Limited
September 14, 1999
Page 2
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 as to those matters governed by the laws of the Commonwealth of
Australia or the laws of any of the States or Territories thereof.
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
Matters" 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,
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.
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--U.S. Tax Status" and
"United States Federal Income Tax Matters", which discuss the material Federal
income tax consequences of the purchase, ownership, and disposition of the
Notes. 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>
Crusade Management Limited
September 14, 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--U.S. Tax Status," "United States Federal Income Tax Matters" 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>
[*] September 1999
Crusade Management Limited
4-16 Montgomery Street
Kogarah NSW 2217
Dear Sirs
CRUSADE GLOBAL TRUST NO. 1 OF 1999
We have acted for Crusade Management Pty Limited (CML) in connection with the
Crusade Global Trust No. 1 of 1999 (the Trust) to be constituted under the
Master Trust Deed (the Master Trust Deed) dated 14 March 1998 between AXA
Trustees Limited (formerly National Mutual Trustees Limited) (the Trustee) and
CML.
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 draft documents:
(a) the Master Trust Deed;
(b) the Notice of Creation of Trust for the Trust;
(c) the Supplementary Terms Notice;
(d) the Note Trust Deed between CML, the Trustee, the Note Trustee
HSBC Issuer Services and the Security Trustee;
(e) the Note Issue Direction for the Trust;
(f) the Agency Agreement between, among others, CML, the Trustee; and
(g) a copy of the Prospectus as filed, or to be filed with the
Securities and Exchange Commission (the Commission) under the
US Securities Act of 1933 (the Prospectus).
<PAGE>
Crusade Management Limited Allen Allen & Hemsley
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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.
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" which discuss the material Australian income tax consequences
of the purchase ownership and disposition of the Notes. There can be no
assurance, however, that the tax conclusions presented in that section
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 and to
the references to this firm under the heading "Australian Tax Matters",
"Enforcement of Foreign Judgments in Australia" and "Legal Matters" in
the Prospectus, without admitting that we are "experts" within the
meaning of the Securities Act of 1933 of 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/ Andrew Jinks
- ------------------------
Andrew Jinks
Partner
[email protected]
Tel (02) 9230 4925
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Page 2 of 2
<PAGE>
[logo]
Seller Loan Agreement
AXA Trustees Limited
(Trustee)
St.George Bank Limited
(Approved Seller)
Crusade Management Limited
(Manager)
Crusade Global Trust No. 1 of 1999
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>
Seller Loan Agreement Allen Allen & Hemsley
- --------------------------------------------------------------------------------
Table of Contents
1. Definitions and Interpretation 1
1.1 Definitions 1
1.2 Master Trust Deed definitions 2
1.3 Interpretation 2
1.4 Determination, statement and
certificate sufficient evidence 2
1.5 Transaction Document 3
1.6 Limited to Trust 3
1.7 Trustee as trustee 3
1.8 Knowledge of Trustee 3
1.9 Unsecured loan 3
2. Purpose 3
3. Drawings 4
3.1 Advance 4
3.2 Making of Advance 4
4. Interest and Fees 4
5. Repayment 4
6. Payments 4
6.1 Manner 4
6.2 Payment to be made on Business Day 5
7. Conditions Precedent 5
8. Representations and Warranties 5
8.1 Representations and warranties 5
8.2 Reliance on representations and warranties 6
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Page (i)
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Seller Loan Agreement Allen Allen & Hemsley
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9. Undertakings 6
9.1 General undertakings 6
9.2 Undertakings relating to Trust 7
9.3 Term of undertakings 7
10. Control Accounts 7
11. Waivers, Remedies Cumulative 7
12. Severability of Provisions 8
13. Survival of Representations 8
14. Indemnity and Reimbursement Obligation 8
15. Moratorium Legislation 8
16. Consents and Opinions 8
17. Assignments 9
18. Notices 9
19. Authorised Signatories 9
20. Governing Law and Jurisdiction 10
21. Counterparts 10
22. Acknowledgement by Trustee 10
23. Limited Recourse 10
23.1 General 10
23.2 Liability of Trustee limited to
its right to indemnity 10
23.3 Unrestricted remedies 11
23.4 Restricted remedies 12
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Page (ii)
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Seller Loan Agreement Allen Allen & Hemsley
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24. Approved Seller's Obligations 12
25. Successor Trustee 12
ANNEXURE A 14
DRAWDOWN NOTICE 14
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Page (iii)
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Seller Loan Agreement Allen Allen & Hemsley
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Date 1999.
- -------------
Parties
- -------------
1. AXA Trustees Limited (ACN 004 029 841) of Level 2, 65
Southbank Boulevard, South Melbourne, Victoria 3205 in its
capacity as trustee of the Crusade Global Trust No. 1 of 1999
(the Trustee);
2. St.George Bank Limited (ACN 055 513 070) incorporated in New
South Wales of 4-16 Montgomery Street, Kogarah, New South
Wales 2217 (the Approved Seller); and
3. Crusade Management Limited (ACN 072 715 916) incorporated in
the Australian Capital Territory of 4-16 Montgomery Street,
Kogarah, New South Wales 2217 (the Manager).
Recitals
- -------------
A The Trustee is the trustee of the Crusade Global Trust No. 1
of 1999 and proposes to issue Notes pursuant to the Master
Trust Deed.
B The Manager has arranged for the Approved Seller to provide
the Trustee with a loan of A$[*] for the purchase of
Receivables by the Trustee.
C The Approved Seller has agreed to provide the loan to the
Trustee on the terms and conditions contained in this
agreement.
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IT IS AGREED as follows.
1. Definitions and Interpretation
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1.1 Definitions
In this agreement the following definitions apply unless the context
requires otherwise, or unless otherwise defined.
Advance means the advance made or to be made under this agreement.
Drawdown Notice means a notice under clause 3.1.
Limit means A$[*].
Master Trust Deed means the deed entitled "Master Trust Deed" between,
among others, the Trustee and the Manager dated 14 March 1998.
Notice of Creation of Trust means the Notice of Creation of Trust dated
on or before the date of this agreement issued under the Master Trust
Deed in relation to the Trust.
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Seller Loan Agreement Allen Allen & Hemsley
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Principal Outstanding means, at any time, the total principal amount of
the Advance at that time.
Secured Moneys has the meaning given in the Security Trust Deed.
Security Trust Deed means the Security Trust Deed dated on or before
the date of this agreement between, among others, the Trustee, the
Manager and National Mutual Life Nominees Limited.
Supplementary Terms Notice means the Supplementary Terms Notice issued
by the Manager on or about the date of this agreement under the Master
Trust Deed.
Trust means the Crusade Global Trust No. 1 of 1999 constituted under
the Master Trust Deed on the terms of the Supplementary Terms Notice.
Trust Document means:
(a) this agreement;
(b) the Master Trust Deed;
(c) the Notice of Creation of Trust;
(d) the Supplementary Terms Notice;
(e) the Custodian Agreement;
(f) the Security Trust Deed;
(g) the Servicing Agreement;
(h) the Note Trust Deed;
(i) the Agency Agreement; and
(j) the Support Facilities.
Trustee means the trustee of the Trust at the date of this agreement or
any person which becomes a successor trustee under clause 20 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 Supplementary Terms Notice) and the Supplementary Terms
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.
1.4 Determination, statement and certificate sufficient evidence
Except where otherwise provided in this agreement any determination,
statement or certificate by the Approved Seller or an Authorised
Signatory of
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Seller Loan Agreement Allen Allen & Hemsley
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the Approved Seller 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 Approved Seller has no
obligation under this agreement to provide financial accommodation to
the Trustee as trustee of any other such Trust.
1.7 Trustee as trustee
In this agreement, 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 and in no other capacity;
and
(b) a reference to the undertaking, property, assets, business or
money of the Trustee is a reference to the undertaking,
property, assets, business or money of the Trustee in its
capacity referred to in paragraph (a).
1.8 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.
1.9 Unsecured loan
The Approved Seller acknowledges that the Advance is an unsecured loan,
and does not have the benefit of any Security Interest under the
Security Trust Deed.
2. Purpose
- --------------------------------------------------------------------------------
The Manager directs the Trustee to, and the Trustee shall, apply the
proceeds of the Advance to purchase Receivables specified in any Sale
Notice and for no other purpose.
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Seller Loan Agreement Allen Allen & Hemsley
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3. Drawings
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3.1 Advance
(a) Subject to this agreement, the Manager may direct the Trustee
to request the Advance by giving to the Trustee a duly
completed but unsigned Drawdown Notice by no later than 10 am
on the Closing Date (Sydney time).
(b) The Drawdown Notice must be:
(i) in writing;
(ii) in or substantially in the form of Annexure A; and
(iii) signed by the Trustee.
The Trustee must sign and return the Drawdown Notice to the
Manager by no later than 2 pm on the Closing Date (Sydney
time).
(c) The amount requested in a Drawdown Notice must not exceed the
Limit.
3.2 Making of Advance
(a) Subject to the terms of this agreement, the Advance shall be
made available by the Approved Seller applying that amount to
the purchase price for Receivables under a Sale Notice.
4. Interest and Fees
- --------------------------------------------------------------------------------
No interest or fees are payable by the Trustee in relation to the
Advance or this agreement.
5. Repayment
- --------------------------------------------------------------------------------
The Trustee shall, at the direction of the Manager, repay the Principal
Outstanding on the Business Day immediately following the date on which
the Secured Moneys are fully and finally repaid, but only to the extent
that amounts are available for that purpose under clause 5.4(e) of the
Supplementary Terms Notice. That payment shall be in full and final
settlement of the obligations of the Trustee under this agreement.
6. Payments
- --------------------------------------------------------------------------------
6.1 Manner
The Trustee shall make all payments under this agreement:
(a) by cheque, electronic funds transfer or other agreed methods,
provided to the Approved Seller at its address for service of
notices
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<PAGE>
Seller Loan Agreement Allen Allen & Hemsley
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or by transfer of immediately available funds to the account
specified by the Approved Seller;
(b) without set-off, counterclaim or other deduction, except any
compulsory deduction for Tax; and
(c) in accordance with, and only at the directions of the Manager,
the Master Trust Deed, the Security Trust Deed and the
Supplementary Terms Notice.
6.2 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.
7. Conditions Precedent
- --------------------------------------------------------------------------------
The right of the Trustee to give the initial Drawdown Notice and the
obligations of the Approved Seller under this agreement are subject to
the condition precedent that the Approved Seller receives all of the
following in form and substance satisfactory to the Approved Seller:
(a) (Trust Documents) from the Manager a certified copy of each
duly executed and (where relevant) stamped Trust Document;
(b) (Master Trust Deed conditions precedent) from the Manager
evidence that the conditions precedent referred to in clause 6
of the Master Trust Deed have been satisfied; and
(c) (Notes) evidence that the Notes have been issued.
8. Representations and Warranties
- --------------------------------------------------------------------------------
8.1 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) (Documents binding) This agreement constitutes (or will, when
executed and delivered, constitute) its legal, valid and
binding obligations (subject to laws generally affecting
creditors' rights and to general principles of equity).
(b) (Transactions permitted) The execution of this agreement did
not and will not contravene any applicable law or
authorisation which affects the Trustee in its capacity as
trustee of the Trust.
(c) (Other default) It has no actual knowledge of any default by
it or the Manager under either:
(i) the Master Trust Deed; or
(ii) any law, authorisation, agreement or obligation applicable to
the Assets of the Trust,
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Seller Loan Agreement Allen Allen & Hemsley
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which has not been remedied or waived in writing.
(d) (Trust) The Trust has been validly created and is in existence
at the date of this agreement.
(e) (Sole Trustee) It is the sole trustee of the Trust at the date
of this agreement.
(f) (Removal) No notice has been given to it and to its knowledge
no resolution has been passed or direction or notice has been
given, removing it as trustee of the Trust.
8.2 Reliance on representations and warranties
The Trustee acknowledges that the Approved Seller has entered into the
Trust Documents in reliance on the representations and warranties in
this clause.
9. Undertakings
- --------------------------------------------------------------------------------
9.1 General undertakings
Each of the Trustee and the Manager undertake to the Approved Seller as
follows in relation to the Trust, except to the extent that the
Approved Seller consents.
(a) (Authorisations) It will ensure that each Authorisation
(which, in the case of the Trustee, is limited to any
Authorisation relating to the Trustee in its capacity as
trustee of the Trust and not to the Trust generally) 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 Approved Seller 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.
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Seller Loan Agreement Allen Allen & Hemsley
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(c) (Comply with obligations) It will duly and punctually comply
with its obligations under the Trust Documents.
(d) (Notice to Approved Seller) It will notify the Approved Seller
as soon as it becomes actually aware of any proposal by a
Government Agency to acquire compulsorily any Assets of the
Trust.
9.2 Undertakings relating to Trust
Each of the Trustee, as trustee of the Trust, and the Manager severally
undertakes to the Approved Seller as follows, except to the extent that
the Approved Seller consents.
(a) (Amendment to Master Trust Deed) It will not consent to any
amendment to the Master Trust Deed, the Supplementary Terms
Notice or any other Trust Document which would change:
(i) the basis upon which the amount of the Advance to be
made is calculated;
(ii) Clause 5.4 of the Supplementary Terms Notice; or
(iii) the basis of calculation or order of application of
any amount to be paid or applied under clause 5 of
the Supplementary Terms Notice unless the change
would not be adverse to the Approved Seller in
respect of the Advance.
(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 Deed, the Supplementary Terms Notice and the other Trust
Documents.
(c) (No additional trustee) It will act continuously as trustee or
manager (as the case may be) 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.
9.3 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 or cease to be outstanding.
10. Control Accounts
- --------------------------------------------------------------------------------
The accounts kept by the Approved Seller constitute sufficient
evidence, unless proven wrong, of the amount at any time due from the
Trustee under this agreement.
11. 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
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Seller Loan Agreement Allen Allen & Hemsley
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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 Approved
Seller in this agreement are in addition to, and do not
exclude or limit, any right, power or remedy provided by law.
12. 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.
13. 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.
14. 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.
15. 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
Approved Seller of any right, power or remedy conferred by
this agreement,
is excluded from this agreement.
16. Consents and Opinions
- --------------------------------------------------------------------------------
Except where expressly stated the Approved Seller may give or withhold,
or give conditionally, approvals and consents, may be satisfied or
unsatisfied,
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Seller Loan Agreement Allen Allen & Hemsley
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may form opinions, and may exercise its rights, powers and remedies, at
its absolute discretion.
17. 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, except for the creation of a charge by the
Trustee under the Security Trust Deed.
18. 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.
19. Authorised Signatories
- --------------------------------------------------------------------------------
The Trustee irrevocably authorises the Approved Seller 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.
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Seller Loan Agreement Allen Allen & Hemsley
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20. Governing Law and Jurisdiction
- --------------------------------------------------------------------------------
This agreement is governed by the laws of New South Wales. The Trustee
submits to the non-exclusive jurisdiction of courts exercising
jurisdiction there.
21. Counterparts
- --------------------------------------------------------------------------------
This agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
22. 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 Approved Seller (including any advice, warranty,
representation or undertaking); and
(b) the Approved Seller is not obliged to do anything (including
disclose anything or give advice),
except as expressly set out in this agreement.
23. Limited Recourse
- --------------------------------------------------------------------------------
23.1 General
Clause 30 of the Master Trust Deed applies to the obligations and
liabilities of the Trustee and the Manager under this agreement.
23.2 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 (except where
the Transaction Documents provide otherwise). Subject to
paragraph (c) below, 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 the assets and property of the Trust which
are available to satisfy the right of the Trustee to be
exonerated or 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) Subject to paragraph (c) below, no person (including any
Relevant Party) may take action against 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
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Seller Loan Agreement Allen Allen & Hemsley
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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 23.2 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 or exoneration out of the Assets of
the Trust as a result of the Trustee's fraud, negligence, or
Default.
(d) It is acknowledged that the Relevant Parties are responsible
under this agreement or 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 Default of the Trustee for the
purpose of paragraph (c) above to the extent to which the act
or omission was caused or contributed to by any failure by any
Relevant Party or any person who has been delegated or
appointed by the Trustee in accordance with the Transaction
Documents to fulfil its obligations relating to the Trust or
by any other act or omission of a Relevant Party or any such
person.
(e) In exercising their powers under the Transaction Documents,
each of the Trustee, the Security Trustee and the Noteholders
must ensure that no attorney, agent, delegate, receiver or
receiver and manager appointed by it in accordance with this
agreement or any other Transaction Documents 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
Default of the Trustee for the purpose of paragraph (c) above.
(f) In this clause, Relevant Parties means each of the Manager,
the Servicer, the Custodian, the Calculation Agent, each
Paying Agent, the Note Trustee and the provider of any Support
Facility.
(g) Nothing in this clause limits the obligations expressly
imposed on the Trustee under the Transaction Documents.
23.3 Unrestricted remedies
Nothing in clause 23.2 limits the Approved Seller 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.
- --------------------------------------------------------------------------------
Page 11
<PAGE>
Seller Loan Agreement Allen Allen & Hemsley
- --------------------------------------------------------------------------------
23.4 Restricted remedies
Except as provided in clause 23.3, the Approved Seller 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 Approved Seller waives
its rights to make those applications and take those proceedings.
24. Approved Seller's Obligations
- --------------------------------------------------------------------------------
The Trustee shall have no recourse to the Approved Seller in relation
to this agreement beyond its terms, and the Approved Seller's
obligations under this agreement are separate from, and independent to,
any obligations the Approved Seller may have to the Trustee for any
other reason (including under any other Trust Document).
25. Successor Trustee
- --------------------------------------------------------------------------------
The Approved Seller shall do all things reasonably necessary to enable
any successor Trustee appointed under clause 20 of the Master Trust
Deed to become the Trustee under this agreement.
EXECUTED in Sydney.
Each attorney executing this agreement states that he or she has no notice of
revocation or suspension of his or her power of attorney.
- --------------------------------------------------------------------------------
Page 12
<PAGE>
Seller Loan Agreement Allen Allen & Hemsley
- --------------------------------------------------------------------------------
SIGNED by )
AXA TRUSTEES LIMITED )
(ACN 004 029 841) )
by its attorney under the Power of )
Attorney dated )
the presence of: )
---------------------------
Signature
- -------------------------------------------------- ---------------------------
Witness Print name
- --------------------------------------------------
Print name
SIGNED on behalf of )
ST.GEORGE BANK LIMITED )
by its attorney under the Power of )
Attorney dated )
in the presence of: )
---------------------------
Signature
- -------------------------------------------------- ---------------------------
Witness Print name
- --------------------------------------------------
Print name
SIGNED on behalf of )
CRUSADE MANAGEMENT )
LIMITED )
by its attorney under the Power of )
Attorney dated )
in the presence of: )
---------------------------
Signature
- -------------------------------------------------- ---------------------------
Witness Print name
- --------------------------------------------------
Print name
- --------------------------------------------------------------------------------
Page 13
<PAGE>
Seller Loan Agreement Allen Allen & Hemsley
- --------------------------------------------------------------------------------
ANNEXURE A
DRAWDOWN NOTICE
- --------------------------------------------------------------------------------
To: St.George Bank Limited
SELLER LOAN AGREEMENT - DRAWDOWN NOTICE NO. [*]
We refer to the Seller Loan Agreement dated [*] 1999 (the Facility Agreement).
Under clause 3.1 of the Seller Loan Agreement we give you irrevocable notice as
follows:
(1) we wish to draw on the Closing Date;
(2) the principal amount of the Advance is A$[*]; [NOTE: Amount to
comply with the limits in clause 3.]
(3) we request that the proceeds be remitted to account number [*]
at [*];
(4) to the best of our knowledge and, relying on the information
provided by the Manager, the proceeds of the advance will be
used for the purposes contemplated in the Facility Agreement;
(5) all representations and warranties under clause 8 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.
AXA TRUSTEES LIMITED
By: [Authorised Signatory]
DATED
Verified by Crusade Management Limited
By: [Authorised Signatory]
Dated
- --------------------------------------------------------------------------------
Page 14
<PAGE>
UNITED STATES
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)
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a Identification no.)
U.S. national bank)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
Bankers Trust Company
Legal Department
130 Liberty Street, 31st Floor
New York, New York 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
CRUSADE MANAGEMENT LIMITED
(Exact name of Registrant as specified in its charter)
Australia
(State or other jurisdiction of (IRS employer
Incorporation or organization) Identification no.)
Level 4
4-16 Montgomery Street
Kogarah 2217
Australia
Telephone 612 9952 1315
(Address, including zip code
of principal executive offices)
Crusade Global Trust No.1 of 1999
(Title of the 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
---- -------
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(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 3.-15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of Bankers
Trust Company dated August 7, 1990, Certificate
of Amendment of the Organization Certificate of
Bankers Trust Company dated June 21, 1995
Incorporated herein by reference to Exhibit 1
filed with Form T-1 Statement, Registration No.
33-65171, Certificate of Amendment of the
Organization Certificate of Bankers Trust Company
dated March 20, 1996, incorporate by referenced
to Exhibit 1 filed with Form T-1 Statement,
Registration No. 333-25843 and Certificate of
Amendment of the Organization Certificate of
Bankers Trust Company dated June 19, 1997, copy
attached.
Exhibit 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2
filed with Form T-1 Statement, Registration No.
33-21047.
Exhibit 3 - Authorization of the Trustee to exercise
corporate trust powers - Incorporated herein by
reference to Exhibit 2 filed with Form T-1
Statement, Registration No. 33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust Company, as
amended on 22 June, 1999. Copy attached.
-2-
<PAGE>
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company required by
Section 321(b) of the Act. - Incorporated herein
by reference to Exhibit 4 filed with Form T-1
Statement, Registration No. 22-18864.
Exhibit 7 - The latest report of condition of Bankers Trust
Company dated as of December 31, 1998. Copy
attached.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, 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 10th of
Septembre, 1999.
BANKERS TRUST COMPANY
By:
---------------------------
-4-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, 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 10th of
Septembre, 1999.
BANKERS TRUST COMPANY
By:
---------------------------
-5-
<PAGE>
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New
York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF
AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section
8005 of the Banking Law," dated June 19, 1997, providing for an increase in
authorized capital stock from $1,601,666,670 consisting of 100,166,667 shares
with a par value of $10 each designated as Common Stock and 600 shares with a
par value of $1,000,000 each designated as Series Preferred Stock to
$2,001,666,670 consisting of 100,166,667 shares with a par value of $10 each
designated as Common Stock and 1,000 shares with a par value of $1,000,000 each
designated as Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of New
York,
this 27th day of June in the Year of our Lord one
thousand nine hundred and ninety-seven.
/s/ Manuel Kursky
--------------------------------
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is One Billion, Six Hundred and One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($1,601,666,670), divided into
One Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred
Sixty-Seven (100,166,667) shares with a par value of $10 each
designated as Common Stock and 600 shares with a par value of One
Million Dollars ($1,000,000) each designated as Series Preferred
Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Two Billion One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($2,001,666,670), divided into One Hundred
Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(100,166,667) shares with a par value of $10 each designated as Common
Stock and 1000 shares with a par value of One Million Dollars
($1,000,000) each designated as Series Preferred Stock."
<PAGE>
5. The foregoing amendment of the organization certificate was
authorized by unanimous written consent signed by the holder of all outstanding
shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this
19th day of June, 1997.
/s/ James T. Byrne, Jr.
-------------------------------
James T. Byrne, Jr.
Managing Director
/s/ Lea Lahtinen
-------------------------------
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an
Assistant Secretary of Bankers Trust Company, the corporation described in the
foregoing certificate; that she has read the foregoing certificate and knows the
contents thereof, and that the statements herein contained are true.
/s/ Lea Lahtinen
-----------------------
Lea Lahtinen
Sworn to before me this 19th day
of June, 1997.
Sandra L. West
- ------------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
<PAGE>
BY-LAWS
JUNE 22, 1999
Bankers Trust Company
New York
Marked to show changes to ARTICLE II DIRECTORS, SECTIONS 1 and 5
<PAGE>
ARTICLE II
DIRECTORS
CURRENT SECTION 1.
SECTION 1. The affairs of the Company shall be managed and its corporate powers
exercised by a Board of Directors consisting of such number of directors, but
not less than ten nor more than twenty-five, as may from time to time be fixed
by resolution adopted by a majority of the directors then in office, or by the
stockholders. In the event of any increase in the number of directors,
additional directors may be elected within the limitations so fixed, either by
the stockholders or within the limitations imposed by law, by a majority of
directors then in office. One-third of the number of directors, as fixed from
time to time, shall constitute a quorum. Any one or more members of the Board of
Directors or any Committee thereof may participate in a meeting of the Board of
Directors or Committee thereof by means of a conference telephone or similar
communications equipment which allows all persons participating in the meeting
to hear each other at the same time. Participation by such means shall
constitute presence in person at such a meeting.
All directors hereafter elected shall hold office until the next annual meeting
of the stockholders and until their successors are elected and have qualified.
No person who shall have attained age 72 shall be eligible to be elected or
re-elected a director. Such director may, however, remain a director of the
Company until the next annual meeting of the stockholders of Bankers Trust New
York Corporation (the Company's parent) so that such director's retirement will
coincide with the retirement date from Bankers Trust New York Corporation.
No Officer-Director who shall have attained age 65, or earlier relinquishes his
responsibilities and title, shall be eligible to serve as a director.
PROPOSED SECTION 1.
SECTION 1. The affairs of the Company shall be managed and its corporate powers
exercised by a Board of Directors consisting of such number of directors, but
not less than seven nor more than fifteen, as may from time to time be fixed by
resolution adopted by a majority of the directors then in office, or by the
stockholders. In the event of any increase in the number of directors,
additional directors may be elected within the limitations so fixed, either by
the stockholders or within the limitations imposed by law, by a majority of
directors then in office. One-third of the number of directors, as fixed from
time to time, shall constitute a quorum. Any one or more members of the Board of
Directors or any Committee thereof may participate in a meeting of the Board of
Directors or Committee thereof by means of a conference telephone or similar
communications equipment which allows all persons participating in the meeting
to hear each other at the same time. Participation by such means shall
constitute presence in person at such a meeting.
<PAGE>
All directors hereafter elected shall hold office until the next annual meeting
of the stockholders and until their successors are elected and have qualified.
No Officer-Director who shall have attained age 65, or earlier relinquishes his
responsibilities and title, shall be eligible to serve as a director.
CURRENT SECTION 5.
SECTION 5. Regular meetings of the Board of Directors shall be held from time to
time on the third Tuesday of the month. If the day appointed for holding such
regular meetings shall be a legal holiday, the regular meeting to be held on
such day shall be held on the next business day thereafter. Special meetings of
the Board of Directors may be called upon at least two day's notice whenever it
may be deemed proper by the Chairman of the Board or, the Chief Executive
Officer or, in their absence, by such other director as the Board of Directors
may have designated pursuant to Section 3 of this Article, and shall be called
upon like notice whenever any three of the directors so request in writing.
PROPOSED SECTION 5.
SECTION 5. Regular meetings of the Board of Directors shall be held from time to
time provided, however, that there shall be at least ten regular monthly
meetings during a calendar year. Special meetings of the Board of Directors may
be called upon at least two day's notice whenever it may be deemed proper by the
Chairman of the Board or, the Chief Executive Officer or, in their absence, by
such other director as the Board of Directors may have designated pursuant to
Section 3 of this Article, and shall be called upon like notice whenever any
three of the directors so request in writing.
<PAGE>
BY-LAWS
JUNE 22, 1999
Bankers Trust Company
New York
<PAGE>
BY-LAWS
of
Bankers Trust Company
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall be held
at the office of the Company in the Borough of Manhattan, City of New York, on
the third Tuesday in January of each year, for the election of directors and
such other business as may properly come before said meeting.
SECTION 2. Special meetings of stockholders other than those regulated by
statute may be called at any time by a majority of the directors. It shall be
the duty of the Chairman of the Board, the Chief Executive Officer or the
President to call such meetings whenever requested in writing to do so by
stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there shall be present, either in
person or by proxy, stockholders owning a majority of the capital stock of the
Company, in order to constitute a quorum, except at special elections of
directors, as provided by law, but less than a quorum shall have power to
adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief Executive
Officer or, in his absence, the President or, in their absence, the senior
officer present, shall preside at meetings of the stockholders and shall direct
the proceedings and the order of business. The Secretary shall act as secretary
of such meetings and record the proceedings.
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed and its corporate powers
exercised by a Board of Directors consisting of such number of directors, but
not less than seven nor more than fifteen, as may from time to time be fixed by
resolution adopted by a majority of the directors then in office, or by the
stockholders. In the event of any increase in the number of directors,
additional directors may be elected within the limitations so fixed, either by
the stockholders or within the limitations imposed by law, by a majority of
directors then in office. One-third of the number of directors, as fixed from
time to time, shall constitute a quorum. Any one or more members of the Board of
Directors or any Committee thereof may participate in a meeting of the Board of
Directors or Committee thereof by means of a conference telephone or similar
communications equipment which allows all persons participating in the meeting
to hear each other at the same time. Participation by such means shall
constitute presence in person at such a meeting.
All directors hereafter elected shall hold office until the next annual meeting
of the stockholders and until their successors are elected and have qualified.
<PAGE>
No Officer-Director who shall have attained age 65, or earlier relinquishes his
responsibilities and title, shall be eligible to serve as a director.
SECTION 2. Vacancies not exceeding one-third of the whole number of the Board of
Directors may be filled by the affirmative vote of a majority of the directors
then in office, and the directors so elected shall hold office for the balance
of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of the Board of
Directors. In his absence, the Chief Executive Officer or, in his absence, such
other director as the Board of Directors from time to time may designate shall
preside at such meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations for the
conduct of its meetings and the management of the affairs of the Company as it
may deem proper, not inconsistent with the laws of the State of New York, or
these By-Laws, and all officers and employees shall strictly adhere to, and be
bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors shall be held from time to
time provided, however, that there shall be at least ten regular monthly
meetings during a calendar year. Special meetings of the Board of Directors may
be called upon at least two day's notice whenever it may be deemed proper by the
Chairman of the Board or, the Chief Executive Officer or, in their absence, by
such other director as the Board of Directors may have designated pursuant to
Section 3 of this Article, and shall be called upon like notice whenever any
three of the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of committees
shall be fixed from time to time by resolution of the Board of Directors.
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the Board consisting of not
less than five directors who shall be appointed annually by the Board of
Directors. The Chairman of the Board shall preside at meetings of the Executive
Committee. In his absence, the Chief Executive Officer or, in his absence, such
other member of the Committee as the Committee from time to time may designate
shall preside at such meetings.
The Executive Committee shall possess and exercise to the extent permitted by
law all of the powers of the Board of Directors, except when the latter is in
session, and shall keep minutes of its proceedings, which shall be presented to
the Board of Directors at its next subsequent meeting. All acts done and powers
and authority conferred by the Executive Committee from time to time shall be
and be deemed to be, and may be certified as being, the act and under the
authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the Committee may act
only by the concurrent vote of not less than one-third of its members, at least
one of whom must be a director other than an officer. Any one or more directors,
even though not members of the Executive Committee, may attend any meeting of
the Committee, and the member
<PAGE>
or members of the Committee present, even though less than a quorum, may
designate any one or more of such directors as a substitute or substitutes for
any absent member or members of the Committee, and each such substitute or
substitutes shall be counted for quorum, voting, and all other purposes as a
member or members of the Committee.
SECTION 2. There shall be an Audit Committee appointed annually by resolution
adopted by a majority of the entire Board of Directors which shall consist of
such number of directors, who are not also officers of the Company, as may from
time to time be fixed by resolution adopted by the Board of Directors. The
Chairman shall be designated by the Board of Directors, who shall also from time
to time fix a quorum for meetings of the Committee. Such Committee shall conduct
the annual directors' examinations of the Company as required by the New York
State Banking Law; shall review the reports of all examinations made of the
Company by public authorities and report thereon to the Board of Directors; and
shall report to the Board of Directors such other matters as it deems advisable
with respect to the Company, its various departments and the conduct of its
operations.
In the performance of its duties, the Audit Committee may employ or retain, from
time to time, expert assistants, independent of the officers or personnel of the
Company, to make studies of the Company's assets and liabilities as the
Committee may request and to make an examination of the accounting and auditing
methods of the Company and its system of internal protective controls to the
extent considered necessary or advisable in order to determine that the
operations of the Company, including its fiduciary departments, are being
audited by the General Auditor in such a manner as to provide prudent and
adequate protection. The Committee also may direct the General Auditor to make
such investigation as it deems necessary or advisable with respect to the
Company, its various departments and the conduct of its operations. The
Committee shall hold regular quarterly meetings and during the intervals thereof
shall meet at other times on call of the Chairman.
SECTION 3. The Board of Directors shall have the power to appoint any other
Committees as may seem necessary, and from time to time to suspend or continue
the powers and duties of such Committees. Each Committee appointed pursuant to
this Article shall serve at the pleasure of the Board of Directors.
<PAGE>
ARTICLE IV
OFFICERS
SECTION 1. The Board of Directors shall elect from among their number a Chairman
of the Board and a Chief Executive Officer; and shall also elect a President,
and may also elect a Senior Vice Chairman, one or more Vice Chairmen, one or
more Executive Vice Presidents, one or more Senior Managing Directors, one or
more Managing Directors, one or more Senior Vice Presidents, one or more
Principals, one or more Vice Presidents, one or more General Managers, a
Secretary, a Controller, a Treasurer, a General Counsel, one or more Associate
General Counsels, a General Auditor, a General Credit Auditor, and one or more
Deputy Auditors, who need not be directors. The officers of the corporation may
also include such other officers or assistant officers as shall from time to
time be elected or appointed by the Board. The Chairman of the Board or the
Chief Executive Officer or, in their absence, the President, the Senior Vice
Chairman or any Vice Chairman, may from time to time appoint assistant officers.
All officers elected or appointed by the Board of Directors shall hold their
respective offices during the pleasure of the Board of Directors, and all
assistant officers shall hold office at the pleasure of the Board or the
Chairman of the Board or the Chief Executive Officer or, in their absence, the
President, the Senior Vice Chairman or any Vice Chairman. The Board of Directors
may require any and all officers and employees to give security for the faithful
performance of their duties.
SECTION 2. The Board of Directors shall designate the Chief Executive Officer of
the Company who may also hold the additional title of Chairman of the Board,
President, Senior Vice Chairman or Vice Chairman and such person shall have,
subject to the supervision and direction of the Board of Directors or the
Executive Committee, all of the powers vested in such Chief Executive Officer by
law or by these By-Laws, or which usually attach or pertain to such office. The
other officers shall have, subject to the supervision and direction of the Board
of Directors or the Executive Committee or the Chairman of the Board or, the
Chief Executive Officer, the powers vested by law or by these By-Laws in them as
holders of their respective offices and, in addition, shall perform such other
duties as shall be assigned to them by the Board of Directors or the Executive
Committee or the Chairman of the Board or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to the
Board of Directors for the determination of the program of the internal audit
function and the evaluation of the adequacy of the system of internal controls.
Subject to the Board of Directors, the General Auditor shall have and may
exercise all the powers and shall perform all the duties usual to such office
and shall have such other powers as may be prescribed or assigned to him from
time to time by the Board of Directors or vested in him by law or by these
By-Laws. He shall perform such other duties and shall make such investigations,
examinations and reports as may be prescribed or required by the Audit
Committee. The General Auditor shall have unrestricted access to all records and
premises of the Company and shall delegate such authority to his subordinates.
He shall have the duty to report to the Audit Committee on all matters
concerning the internal audit program and the adequacy of the system of internal
controls of the Company which he deems advisable or which the Audit Committee
may request. Additionally, the General Auditor shall have the duty of reporting
independently of all officers of the Company to the Audit Committee at least
quarterly on any matters concerning the internal audit program and the adequacy
of the system of internal controls of the Company that should be brought to the
attention of the directors except those matters responsibility for which has
been vested in the General Credit Auditor. Should the General Auditor deem any
matter
<PAGE>
to be of special immediate importance, he shall report thereon forthwith to the
Audit Committee. The General Auditor shall report to the Chief Financial Officer
only for administrative purposes.
The General Credit Auditor shall be responsible to the Chief Executive Officer
and, through the Audit Committee, to the Board of Directors for the systems of
internal credit audit, shall perform such other duties as the Chief Executive
Officer may prescribe, and shall make such examinations and reports as may be
required by the Audit Committee. The General Credit Auditor shall have
unrestricted access to all records and may delegate such authority to
subordinates.
SECTION 3. The compensation of all officers shall be fixed under such plan or
plans of position evaluation and salary administration as shall be approved from
time to time by resolution of the Board of Directors.
SECTION 4. The Board of Directors, the Executive Committee, the Chairman of the
Board, the Chief Executive Officer or any person authorized for this purpose by
the Chief Executive Officer, shall appoint or engage all other employees and
agents and fix their compensation. The employment of all such employees and
agents shall continue during the pleasure of the Board of Directors or the
Executive Committee or the Chairman of the Board or the Chief Executive Officer
or any such authorized person; and the Board of Directors, the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or any such
authorized person may discharge any such employees and agents at will.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by Section 7018 of
the New York Banking Law, indemnify any person who is or was made, or threatened
to be made, a party to an action or proceeding, whether civil or criminal,
whether involving any actual or alleged breach of duty, neglect or error, any
accountability, or any actual or alleged misstatement, misleading statement or
other act or omission and whether brought or threatened in any court or
administrative or legislative body or agency, including an action by or in the
right of the Company to procure a judgment in its favor and an action by or in
the right of any other corporation of any type or kind, domestic or foreign, or
any partnership, joint venture, trust, employee benefit plan or other
enterprise, which any director or officer of the Company is servicing or served
in any capacity at the request of the Company by reason of the fact that he, his
testator or intestate, is or was a director or officer of the Company, or is
serving or served such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity, against judgments,
fines, amounts paid in settlement, and costs, charges and expenses, including
attorneys' fees, or any appeal therein; provided, however, that no
indemnification shall be provided to any such person if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 2. The Company may indemnify any other person to whom the Company is
permitted to provide indemnification or the advancement of expenses by
applicable law,
<PAGE>
whether pursuant to rights granted pursuant to, or provided by, the New York
Banking Law or other rights created by (i) a resolution of stockholders, (ii) a
resolution of directors, or (iii) an agreement providing for such
indemnification, it being expressly intended that these By-Laws authorize the
creation of other rights in any such manner.
SECTION 3. The Company shall, from time to time, reimburse or advance to any
person referred to in Section 1 the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action or proceeding
referred to in Section 1, upon receipt of a written undertaking by or on behalf
of such person to repay such amount(s) if a judgment or other final adjudication
adverse to the director or officer establishes that (i) his acts were committed
in bad faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or (ii) he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
SECTION 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred to in clause (i) in any capacity shall
be deemed to be doing so at the request of the Company. In all other cases, the
provisions of this Article V will apply (i) only if the person serving another
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise so served at the specific request of the Company, evidenced by
a written communication signed by the Chairman of the Board, the Chief Executive
Officer or the President, and (ii) only if and to the extent that, after making
such efforts as the Chairman of the Board, the Chief Executive Officer or the
President shall deem adequate in the circumstances, such person shall be unable
to obtain indemnification from such other enterprise or its insurer.
SECTION 5. Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
SECTION 6. The right to be indemnified or to the reimbursement or advancement of
expense pursuant to this Article V (i) is a contract right pursuant to which the
person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the Company and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to events occurring prior to the adoption hereof, and (iii) shall continue to
exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
SECTION 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstance, nor an actual determination by the Company (including its Board of
Directors, independent legal
<PAGE>
counsel, or its stockholders) that the claimant is not entitled to
indemnification or to the reimbursement or advancement of expenses, shall be a
defense to the action or create a presumption that the claimant is not so
entitled.
SECTION 8. A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in Section 1 shall be entitled to indemnification only as provided in Sections 1
and 3, notwithstanding any provision of the New York Banking Law to the
contrary.
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the
counterpart dies of which shall be in the charge of the Secretary of the Company
and such officers as the Chairman of the Board, the Chief Executive Officer or
the Secretary may from time to time direct in writing, to be affixed to
certificates of stock and other documents in accordance with the directions of
the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a specified
occasion and for a specified transaction or transactions, for the use of a
printed or engraved facsimile seal of the Company.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon the books
of the Company by the registered holder in person, or by power of attorney, duly
executed, witnessed and filed with the Secretary or other proper officer of the
Company, on the surrender of the certificate or certificates of such shares
properly assigned for transfer.
<PAGE>
ARTICLE VIII
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall be
deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the Board of
Directors at any meeting, or by the stockholders at any annual or special
meeting, provided notice thereof has been given.
I, ____________________, Assistant Vice President of Bankers Trust Company, New
York, New York, hereby certify that the foregoing is a complete, true and
correct copy of the By-Laws of Bankers Trust Company, and that the same are in
full force and effect at this date. `
-------------------------------------
ASSISTANT VICE PRESIDENT
DATED:
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 12/31/98 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
-------------
C400
--------------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou
- - -----------------------------------------------------------------------------------------------------------------------------
ASSETS /////////////////////
1. Cash and balances due from depository institutions (from Schedule RC-A): /////////////////////
a. Noninterest-bearing balances and currency and coin (1).................... 0081 2,772,000 1.a.
b. Interest-bearing balances (2) ............................................ 0071 2,497,000 1.b.
2. Securities: /////////////////////
a. Held-to-maturity securities (from Schedule RC-B, column A) ............... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D).............. 1773 8,907,000 2.b.
3. Federal funds sold and securities purchased under agreements to resell.......... 1350 22,851,000 3.
4. Loans and lease financing receivables: /////////////////////
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 21,882,000 ///////////////////// 4.a.
b. LESS: Allowance for loan and lease losses.....................RCFD 3123 620,000 ///////////////////// 4.b.
c. LESS: Allocated transfer risk reserve ........................RCFD 3128 0 ///////////////////// 4.c.
d. Loans and leases, net of unearned income, /////////////////////
allowance, and reserve (item 4.a minus 4.b and 4.c) ...................... 2125 21,262,000 4.d.
5. Trading Assets (from schedule RC-D) ........................................... 3545 39,983,000 5.
6. Premises and fixed assets (including capitalized leases) ....................... 2145 974,000 6.
7. Other real estate owned (from Schedule RC-M) ................................... 2150 80,000 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) 2130 97,000 8.
9. Customers' liability to this bank on acceptances outstanding ................... 2155 232,000 9.
10. Intangible assets (from Schedule RC-M) ......................................... 2143 278,000 10.
11. Other assets (from Schedule RC-F) .............................................. 2160 4,625,000 11.
12. Total assets (sum of items 1 through 11) ....................................... 2170 104,558,000 12.
- - --------------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 12/31/98 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-2
City, State Zip: New York, NY 10006 12
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
SCHEDULE RC--CONTINUED
Dollar Amounts in Thousands //////// Bil Mil Thou
- - -------------------------------------------------------------------------------------------------
LIABILITIES ///////////////////////
13. Deposits: ///////////////////////
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) RCON 2200 20,409,000
(1) Noninterest-bearing(1) ........................RCON 6631 3,124,000...... ///////////////////////
(2) Interest-bearing ..............................RCON 6636 17,285,000...... ///////////////////////
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E ///////////////////////
part II) RCFN 2200 20,167,000 13.b
(1) Noninterest-bearing ...........................RCFN 6631 1,781,000 ///////////////////////
(2) Interest-bearing ..............................RCFN 6636 18,386,000 ///////////////////////
14. Federal funds purchased and securities sold under agreements to repurchase RCFD 2800 13,919,000 14.
15. a. Demand notes issued to the U.S. Treasury ........................................ RCON 2840 0
b. Trading liabilities (from Schedule RC-D)......................................... RCFD 3548 26,175,000 15.b
16. Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases): /////////////////////// /
a. With a remaining maturity of one year or less ................................... RCFD 2332 5,422,000
b. With a remaining maturity of more than one year through three years.............. A547 1,766,000 16.b
c. With a remaining maturity of more than three years............................... A548 2,884,000 16.c
17. Not Applicable. ///////////////////////
18. Bank's liability on acceptances executed and outstanding ............................... RCFD 2920 232,000
19. Subordinated notes and debentures (2)................................................... RCFD 3200 984,000
20. Other liabilities (from Schedule RC-G) ................................................. RCFD 2930 5,657,000
21. Total liabilities (sum of items 13 through 20) ......................................... RCFD 2948 97,615,000
22. Not Applicable ///////////////////////
///////////////////////
EQUITY CAPITAL ///////////////////////
23. Perpetual preferred stock and related surplus .......................................... RCFD 3838 1,500,000
24. Common stock ........................................................................... RCFD 3230 2,127,000
25. Surplus (exclude all surplus related to preferred stock) ............................... RCFD 3839 541,000
26. a. Undivided profits and capital reserves .......................................... RCFD 3632 3,200,000
b. Net unrealized holding gains (losses) on available-for-sale securities .......... RCFD 8434 (36,000)
27. Cumulative foreign currency translation adjustments .................................... RCFD 3284 (389,000) 27.
28. Total equity capital (sum of items 23 through 27) ...................................... RCFD 3210 6,943,000 28.29.
29. Total liabilities and equity capital (sum of items 21 and 28)........................... RCFD 3300 104,558,000 29
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the Number
most comprehensive level of auditing work performed for the bank by independent external --------------
auditors as of any date during 1998 ..................................................... RCFD 6724 N/A M.1
--------------------------------
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required
by state chartering authority)
</TABLE>
- -----------------------
(1) Including total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
<PAGE>
[13] September 1999
Crusade Management Limited
4-16 Montgomery Street
Kogarah NSW 2217
Dear Sirs
CRUSADE GLOBAL TRUST NO. 1 OF 1999
We have acted for Crusade Management Pty Limited (CML) in connection with the
Crusade Global Trust No. 1 of 1999 (the Trust) to be constituted under the
Master Trust Deed (the Master Trust Deed) dated 14 March 1998 between AXA
Trustees Limited (formerly National Mutual Trustees Limited) (the Trustee) and
CML.
Definitions in the Prospectus as filed or to be 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 following qualification that we express
no opinion as to any laws other than the laws of each Relevant
Jurisdiction as in
<PAGE>
[13] September 1999 Crusade Management Limited Allen Allen & Hemsley
- --------------------------------------------------------------------------------
force at the 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 a 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 Form S-11 filed with the Prospectus, without admitting that we are
"experts" within the meaning of the Securities Act of 1933 of the rules and
regulations of the Commission issued under that Act with respect of any part of
the Registration Statement, including this exhibit.
Yours faithfully
/s/ Allen Allen & Hemsley
- --------------------------------------------------------------------------------
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