<PAGE>
As filed with the Securities and Exchange Commission on September 7, 1999
Registration No. 333-84977
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------
PRE-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-11
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
------
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
1633 Broadway
New York, New York 10019
Telephone: 212-479-8247
(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 - $1,000,000 $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>
PRELIMINARY PROSPECTUS
SUBJECT TO COMPLETION, DATED SEPTEMBER 6, 1999
US$994,000,000
(Approximate)
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 6, 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. We
have not authorized anyone to provide you with different information.
We are not offering the securities 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 o, 1999.
<PAGE>
<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 .............................................. 58
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 ........................................ 73
Redemption of the Notes for Taxation or Other Reasons ................ 73
Redemption of the Notes upon an Event of Default ..................... 74
Optional Redemption of the Notes ..................................... 74
Final Maturity Date .................................................. 74
Final Redemption of the Notes ........................................ 74
Termination of the Trust ............................................. 75
Prescription ........................................................ 76
Voting and Consent of Noteholders ................................... 76
Reports to Noteholders .............................................. 77
Description of the Transaction Documents ............................... 78
Trust Accounts ...................................................... 78
</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 is
in accordance with the facts and does not omit anything likely
to affect the import of that information.
3
<PAGE>
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 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
accept any responsibility for any information contained in this prospectus and
have not separately verified the information contained in this prospectus; 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; 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:
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.
4
<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.
5
<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
6
<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>
7
<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 Maturity Date: The quarterly The quarterly The quarterly The quarterly
payment date payment date payment date payment date
falling in falling falling in falling in
August, 2009 in May, 2021 February, 2030 February, 2030
Clearance/Settlement: DTC/Euroclear/Cedelbank Offered in
Australia only
Cut-Off Date: Close of business, September , 1999
Pricing Date: September , 1999
Closing Date: September , 1999
</TABLE>
8
<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
9
<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 may 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
10
<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.
11
<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. St.George Bank
expects the pool of housing loans to have the following characteristics:
Selected Housing Loan Pool Data as of the
Close of Business August 17, 1999
Number of Housing Loans...................................................15,452
Housing Loan Pool Size........................................A$1,586,271,360.13
Average Housing Loan Balance........................................A$102,658.00
Maximum Housing Loan Balance........................................A$493,749.82
Minimum Housing Loan Balance.........................................A$16,945.28
Total Valuation of the Properties.............................A$2,973,839,278.00
Maximum Remaining Term to Maturity in months.................................354
Weighted Remaining Average Term to Maturity in months........................259
Weighted Average Seasoning in months..........................................26
Weighted Average Original Loan-to-Value Ratio.............................68.13%
Weighted Average Current Loan-to-Value Ratio..............................60.92%
Maximum Current Loan-to-Value Ratio.......................................90.00%
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.
12
<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;
13
<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.
14
<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-1, Class A-2 and Class A-3 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>
15
<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
16
<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.
17
<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
18
<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.
19
<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
20
<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.
21
<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.
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, and accordingly, may
become delinquent or
22
<PAGE>
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 insufficient
excess interest collections in
23
<PAGE>
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.
24
<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.
25
<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
140.
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$0.6320=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 August 27, 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.
26
<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
John Wallace Nairn 38th Floor, 140 Williams General Manager,
Street, Melbourne, Victoria Corporate Affairs
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.
27
<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.
28
<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 originator 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;
29
<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;
30
<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
31
<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;
32
<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 proposed to be sold to the trust on the
closing date. The information is provided as of the close of business on August
17, 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.
33
<PAGE>
Housing Loan Information
Seasoning Analysis
<TABLE>
<CAPTION>
Average % by % by
Number of Balance Outstanding Balance Number Balance
Range of months of Seasoning Loans (A$) (A$) of Loans Outstanding
- ---------------------------- ----- ---- ---- -------- -----------
<S> <C> <C> <C> <C> <C>
1 - 12.............. 2,808 344,357,487.74 122,634.43 18.17% 21.71%
13 - 24.............. 5,405 592,318,692.93 109,587.18 34.98 37.34
25 - 36.............. 3,238 313,047,944.68 96,679.41 20.96 19.73
37 - 48.............. 1,431 130,271,805.51 91,035.50 9.26 8.21
49 - 60.............. 1,376 114,950,853.10 83,539.86 8.90 7.25
61 - 72.............. 1,194 91,324,576.17 76,486.24 7.73 5.76
------ ---------------- ---------- ------ ------
Total................ 15,452 1,586,271,360.13 102,658.00 100.00% 100.00%
====== ================ ========== ====== ======
</TABLE>
Pool Profile by Geographic Distribution
<TABLE>
<CAPTION>
Total % by % by
Number of Valuation Number of Total
Region Properties (A$) Properties Valuation
- ------ ---------- ---- ---------- ---------
<S> <C> <C> <C> <C>
Australian Capital Territory - Inner City........... 359 55,918,750.00 2.08% 1.88%
Australian Capital Territory - Metro................ 269 38,089,175.00 1.56 1.28
------ -------------- ------ ------
628 94,007,925.00 3.64 3.16
====== ============= ====== ======
New South Wales - Inner City........................ 32 9,007,848.00 0.19 0.30
New South Wales - Metro............................. 8,636 1,808,130,382.00 50.06 60.80
New South Wales - Non-Metro......................... 4,370 596,458,587.00 25.33 20.06
------ ---------------- ------ ------
13,038 2,413,596,817.00 75.58 81.16
====== ================ ====== ======
Queensland - Inner City............................. 13 2,404,490.00 0.08 0.08
Queensland - Metro ................................. 670 90,483,255.00 3.88 3.04
Queensland - Non-Metro.............................. 494 73,732,687.00 2.86 2.48
------ -------------- ------ ------
1,177 166,620,432.00 6.82 5.60
====== ============== ====== ======
South Australia - Inner City........................ 1 120,000.00 0.01 0.00
South Australia - Metro ............................ 125 16,879,300.00 0.72 0.57
South Australia - Non-Metro ........................ 6 595,936.00 0.03 0.02
------ -------------- ------ ------
132 17,595,236.00 0.77 0.59
====== ============== ====== ======
Victoria - Inner City............................... 22 5,895,350.00 0.13 0.20
Victoria - Metro.................................... 1,267 176,502,667.00 7.34 5.94
Victoria - Non Metro................................ 858 79,989,851.00 4.97 2.69
------ -------------- ------ ------
2,147 262,387,868.00 12.45 8.82
====== ============== ====== ======
Western Australia - Inner City...................... 6 1,363,000.00 0.03 0.05
Western Australia - Metro........................... 116 17,545,500.00 0.67 0.59
Western Australia - Non-Metro....................... 7 722,500.00 0.04 0.02
------ -------------- ------ ------
129 19,631,000.00 0.75 0.66
------ -------------- ------ ------
Total............................................... 17,251 2,973,839,278.00 100.00% 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.
34
<PAGE>
Pool Profile by Balance Outstanding
<TABLE>
<CAPTION>
% by % by
Number of Balance Outstanding Average Number Balance
Current Balance (A$) Loans (A$) LVR (%) of Loans Outstanding
- -------------------- ----- ---- ------- -------- -----------
<S> <C> <C> <C> <C> <C>
0.01 - 50,000.00............... 2,177 82,971,908.32 36.19% 14.09% 5.23%
50,000.01 - 100,000.00............... 6,681 502,002,726.73 57.07 43.24 31.65
100,000.01 - 150,000.00............... 4,182 506,570,189.55 64.36 27.06 31.93
150,000.01 - 200,000.00............... 1,430 244,478,748.77 64.20 9.25 15.41
200,000.01 - 250,000.00............... 603 133,945,542.62 65.12 3.90 8.44
250,000.01 - 300,000.00............... 224 60,873,030.58 64.53 1.45 3.84
300,000.01 - 350,000.00............... 88 28,583,071.61 63.09 0.57 1.80
350,000.01 - 400,000.00............... 37 13,794,080.10 62.38 0.24 0.87
400,000.01 - 450,000.00............... 22 9,285,366.43 65.72 0.14 0.59
450,000.01 - 500,000.00............... 8 3,766,695.42 61.43 0.05 0.24
------- ---------------- ----- ------ ------
Total................................ 15,452 1,586,271,360.13 57.24% 100.00% 100.00%
======= ================ ===== ====== ======
</TABLE>
Pool Profile by LVR
<TABLE>
<CAPTION>
% by % by
Number of Balance Outstanding Average Number Balance
Current LVR (%) Loans (A$) LVR (%) of Loans Outstanding
- -------------------- ----- ---- ------- -------- -----------
<S> <C> <C> <C> <C> <C>
0.01 - 10.00........................ 1 28,593.71 7.62% 0.01% 0.00%
10.01 - 15.00........................ 9 343,129.03 14.42 0.06 0.02
15.01 - 20.00........................ 485 21,434,955.93 17.60 3.14 1.35
20.01 - 25.00........................ 661 37,398,225.49 22.48 4.28 2.36
25.01 - 30.00........................ 727 46,648,672.90 27.55 4.70 2.94
30.01 - 35.00........................ 834 62,221,492.73 32.54 5.40 3.92
35.01 - 40.00........................ 928 78,555,889.46 37.51 6.01 4.95
40.01 - 45.00........................ 1,030 101,922,632.35 42.53 6.67 6.43
45.01 - 50.00........................ 1,140 119,438,980.65 47.59 7.38 7.53
50.01 - 55.00........................ 1,100 121,896,780.74 52.54 7.12 7.68
55.01 - 60.00........................ 1,048 120,673,463.95 57.58 6.78 7.61
60.01 - 65.00........................ 1,010 116,174,709.23 62.50 6.54 7.32
65.01 - 70.00........................ 1,215 143,960,800.79 67.58 7.86 9.08
70.01 - 75.00........................ 1,333 158,830,360.77 72.59 8.63 10.01
75.01 - 80.00........................ 1,588 188,841,995.72 77.32 10.28 11.90
80.01 - 85.00........................ 1,345 153,514,699.40 82.53 8.70 9.68
85.01 - 90.00........................ 998 114,385,977.28 87.23 6.46 7.21
------- ---------------- ----- ------ ------
Total................................ 15,452 1,586,271,360.13 57.24% 100.00% 100.00%
======= ================ ===== ====== ======
</TABLE>
35
<PAGE>
Pool Profile by Year of Maturity
<TABLE>
<CAPTION>
% by % by
Number of Balance Outstanding Average Number Balance
Maturity Year Loans (A$) LVR (%) of Loans Outstanding
- -------------------- ----- ---- ------- -------- -----------
<S> <C> <C> <C> <C> <C>
2001................................. 1 35,422.01 19.25% 0.01% 0.00%
2002................................. 11 381,653.46 26.19 0.07 0.02
2003................................. 35 1,804,697.42 32.59 0.23 0.11
2004................................. 53 2,198,116.07 30.33 0.34 0.14
2005................................. 77 3,730,623.64 32.68 0.50 0.24
2006................................. 80 4,769,909.24 38.29 0.52 0.30
2007................................. 180 9,694,510.22 37.78 1.16 0.61
2008................................. 228 13,254,971.41 38.73 1.48 0.84
2009................................. 182 10,874,279.71 40.94 1.18 0.69
2010................................. 128 9,040,153.97 45.51 0.83 0.57
2011................................. 172 11,743,469.46 41.37 1.11 0.74
2012................................. 393 27,764,938.16 46.53 2.54 1.75
2013................................. 378 30,842,277.29 51.79 2.45 1.94
2014................................. 305 23,082,944.63 48.93 1.97 1.46
2015................................. 191 16,123,124.10 49.79 1.24 1.02
2016................................. 269 23,176,547.45 50.54 1.74 1.46
2017................................. 583 54,155,813.86 55.12 3.77 3.41
2018................................. 565 56,855,759.32 56.98 3.66 3.58
2019................................. 1,385 115,422,170.92 56.75 8.96 7.28
2020................................. 899 83,449,324.09 55.49 5.82 5.26
2021................................. 1,369 140,272,159.72 56.85 8.86 8.84
2022................................. 2,972 322,541,390.55 59.83 19.23 20.33
2023................................. 3,947 494,329,034.20 62.90 25.54 31.16
2024................................. 487 61,233,398.77 65.66 3.15 3.86
2025................................. 71 6,816,900.56 65.06 0.46 0.43
2026................................. 90 9,674,446.44 60.16 0.58 0.61
2027................................. 211 26,300,891.83 61.66 1.37 1.66
2028................................. 181 25,458,069.53 64.69 1.17 1.60
2029................................. 9 1,244,362.10 57.10 0.06 0.08
------ ---------------- ----- ------ ------
Total................................ 15,452 1,586,271,360.13 57.24% 100.00% 100.00%
====== ================ ===== ====== ======
</TABLE>
36
<PAGE>
Distribution of Current Coupon Rates
<TABLE>
<CAPTION>
% by % by
Number of Balance Outstanding Average Number Balance
Range of current coupon rates (%) Loans (A$) LVR (%) of Loans Outstanding
- --------------------------------- ----- ---- ------- -------- -----------
<S> <C> <C> <C> <C> <C>
5.01 - 5.50..................... 4 483,050.09 65.86% 0.03% 0.03%
5.51 - 6.00..................... 2,047 257,630,955.09 59.69 13.25 16.24
6.01 - 6.50..................... 7,466 719,603,892.69 53.04 48.32 45.36
6.51 - 7.00..................... 4,789 500,415,658.12 61.98 30.99 31.55
7.01 - 7.50..................... 502 51,630,218.64 62.22 3.25 3.25
7.51 - 8.00..................... 177 15,975,395.04 57.27 1.15 1.01
8.01 - 8.50..................... 266 23,923,525.86 61.91 1.72 1.51
8.51 - 9.00..................... 148 12,988,893.94 60.20 0.96 0.82
9.01 - 9.50..................... 1 34,055.04 26.81 0.01 0.00
9.51 - 10.00.................... 42 2,990,926.34 46.95 0.27 0.19
10.01 - 10.50.................... 3 204,936.61 49.23 0.02 0.01
10.51 - 11.00.................... 4 269,876.94 53.97 0.03 0.02
11.01 - 11.50.................... 1 49,002.51 81.67 0.01 0.00
11.51 - 12.00.................... 2 70,973.22 36.99 0.01 0.00
------ ---------------- ----- ------ ------
Total............................. 15,452 1,586,271,360.13 57.24% 100.00% 100.00%
====== ================ ===== ====== ======
</TABLE>
37
<PAGE>
Distribution of Months Remaining to Maturity
<TABLE>
<CAPTION>
Average % by % by
Number of Balance Outstanding Balance Number Balance
Range of months remaining to maturity Loans (A$) (A$) of Loans Outstanding
- ------------------------------------- ----- ---- ------- -------- -----------
<S> <C> <C> <C> <C> <C>
25 - 36..................... 9 333,312.66 37,034.74 0.06% 0.02%
37 - 48..................... 24 1,075,141.46 44,797.56 0.16 0.07
49 - 60..................... 50 2,300,941.16 46,018.82 0.32 0.15
61 - 72..................... 56 2,727,918.86 48,712.84 0.36 0.17
73 - 84..................... 86 4,601,450.94 53,505.24 0.56 0.29
85 - 96..................... 139 7,461,912.91 53,682.83 0.90 0.47
97 - 108..................... 242 13,744,006.03 56,793.41 1.57 0.87
109 - 120..................... 198 12,107,788.21 61,150.45 1.28 0.76
121 - 132..................... 114 7,211,992.72 63,263.09 0.74 0.45
133 - 144..................... 149 10,175,735.89 68,293.53 0.96 0.64
145 - 156..................... 350 24,364,630.46 69,613.23 2.27 1.54
157 - 168..................... 376 30,331,826.22 80,669.75 2.43 1.91
169 - 180..................... 348 26,524,378.75 76,219.48 2.25 1.67
181 - 192..................... 208 16,876,824.77 81,138.58 1.35 1.06
193 - 204..................... 218 18,662,404.47 85,607.36 1.41 1.18
205 - 216..................... 477 42,012,119.77 88,075.72 3.09 2.65
217 - 228..................... 615 60,141,002.07 97,790.25 3.98 3.79
229 - 240..................... 1,228 105,439,298.01 85,862.62 7.95 6.65
241 - 252..................... 918 82,800,785.62 90,196.93 5.94 5.22
253 - 264..................... 1,083 107,185,527.02 98,970.94 7.01 6.76
265 - 276..................... 2,388 250,353,613.62 104,838.20 15.45 15.78
277 - 288..................... 3,917 473,956,675.41 120,999.92 25.35 29.88
289 - 300..................... 1,674 213,968,119.45 127,818.47 10.83 13.49
301 - 312..................... 74 7,330,522.44 99,061.11 0.48 0.46
313 - 324..................... 74 7,706,737.81 104,145.11 0.48 0.49
325 - 336..................... 163 19,078,454.57 117,045.73 1.05 1.20
337 - 348..................... 225 30,207,114.12 134,253.84 1.46 1.90
349 - 360..................... 49 7,591,124.71 154,920.91 0.32 0.48
------ ---------------- ---------- ------ ------
Total.......................... 15,452 1,586,271,360.13 102,658.00 100.00% 100.00%
====== ================ ========== ====== ======
</TABLE>
38
<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
39
<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
40
<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.
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 Australia 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.
41
<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.
42
<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.
43
<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 current basis swap in place, St.George Bank,
both in its capacity as servicer and as seller, is obliged to ensure that the
interest rate applicable to the borrower's deposit account is such that, if
St.George Bank, as seller, fails to pay the issuer trustee an amount equal to
the amount of interest which would otherwise accrue on the borrower's deposit
account, St.George Bank, as servicer, will not be required, as a direct result
of that non-payment, 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 preceeding 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.
44
<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 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 on 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 modified without the
mortgage insurer's consent; and
o the occurrence of other circumstances affecting the insured's rights
or recoveries under the relevant 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
September 30, 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 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 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 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 ninth 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, 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;
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o any repayment of a liquidity draw made on or prior to the
previous payment date;
o the payment to the currency swap provider of the A$ Class A-1
Interest Amount at that date, which is thereafter to be applied
to payments of interest on the Class A-1 notes;
o the payment to the currency swap provider of the A$ Class A-2
Interest Amount at that date, which is thereafter to be applied
to payments of interest on the Class A-2 notes; and
o the payment to the currency swap provider of the A$ Class A-3
Interest Amount at that date, which is thereafter to be applied
to payments of interest on the Class A-3 notes;
o eighth, 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 ninth, the payment of the interest on the Class B notes.
The issuer trustee shall only make a payment described in any of the
preceeding 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 , 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 , 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 , 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 , 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; and
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 to be applied to payments
of principal on the Class A-3 notes;
which is thereafter applied as payments of principal on the Class A-3
notes; and
o tenth, as a payment to the Class B noteholders of principal on
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 on 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
The issuer trustee, at the direction of the manager, or the principal
paying agent, at its direction, 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;
o reinstating the Stated Amount of the Class A notes, to the
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.
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 or cause to be paid to 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.
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.
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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 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.
Downgrades
If a swap provider, the related standby swap provider or both are
downgraded by a rating agency and the manager notifies them that a rating agency
requires either:
o that swap provider or that standby swap provider to be
replaced by another party; or
o that swap provider to provide cash collateral in order to
maintain the rating on the notes,
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then the swap provider must, within 30 days of receiving notice from the
manager, either:
o provide cash collateral equal to its net obligations under the
swap to the issuer trustee; or
o transfer its obligations to a counterparty rated A-1+ by
Standard & Poor's, F1+ by Fitch IBCA and suitably rated by
Moody's who will not cause a reduction or a withdrawal of the
rating of the notes.
If the standby basis swap provider does not extend the term of its
obligations relating to the basis swap and the basis swap provider receives
notice from the manager that the rating of the notes will be either reduced or
withdrawn, then the basis swap provider must, within 30 days of receiving notice
from the manager, either:
o provide cash collateral equal to its net obligations under the
swap to the issuer trustee; or
o transfer its obligations to a counterparty rated A-1+ by
Standard & Poor's, F1+ by Fitch IBCA and suitably rated by
Moody's who will not cause a reduction or a withdrawal of the
rating of the notes.
Swap Collateral Account
If a swap provider provides cash collateral to the issuer trustee, the
issuer trustee must, at the direction of the manager, as soon as is practicable:
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, P-1
from Moody's and Fl+ from Fitch IBCA or which otherwise
satisfies the requirements of the rating agencies; and
o 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 account, 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.
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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.
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 Australian
dollar payment will be calculated using an exchange rate of .
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-1 Interest
Amount, the A$ Class A-2 Interest Amount and the A$ Class A-3 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
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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;
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;
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 issuer trustee will have the right to
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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 its obligation to
deposit collateral or other credit support with the issuer
trustee 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 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
The currency swap provider will give a commitment to provide cash
collateral or other credit enhancement in respect of the currency swap in the
event that the currency swap provider is ever downgraded below A2 by Moody's,
AA- by Fitch IBCA or A-1+, with respect to short term debt, or AA-, with respect
to long term debt, by Standard & Poor's.
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
immediately replaced as described in the subsection titled "Replacement of the
Currency Swap".
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;
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.
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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.$93.00 per share. Bankers Trust Corporation was merged with a
wholly-owned subsidiary of Deutsche Bank AG, with Bankers Trust Corporation as
the surviving entity.
In connection with the acquisition, Bankers Trust Corporation has
substantially changed the scope and nature of its business activities to conform
to Deutsche Bank AG's management structure. As part of this process, Bankers
Trust Corporation has transferred and will continue to transfer certain
entities and financial assets and liabilities to Deutsche Bank AG and its
affiliates. The consideration received and to be received for these transactions
was and will be the fair market value of the financial assets and liabilities at
and on the date of transfer.
The following table sets forth certain unaudited selected financial
data for Bankers Trust Corporation and its consolidated subsidiaries for the
periods and as of the dates indicated:
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Unaudited Consolidated Income Statement Data (in U.S.$ 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>
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:
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(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.
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
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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 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 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 related 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 quarterly 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 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 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.
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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 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.
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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 initial outstanding principal
balance of the class of notes less all principal payments on
that class of notes, divided by the initial outstanding
principal balance 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
o delinquency and loss statistics with respect to the housing
loans.
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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 accounts 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 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 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.
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.
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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.
This issuer trustee is also indemnified by St.George Bank under a deed 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.
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. The note trustee will be entitled to
indemnification from the assets of the trust for any loss, liability or expense
incurred by 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.
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 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.
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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.
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.
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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 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.
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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 a breach, or proposed breach, of any of the terms of the trust
documents is not 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
such. 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,
it must promptly convene a meeting of the Voting Mortgagees.
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;
o convert the floating charge to a fixed charge over any or all
of the trust assets; or
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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.
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
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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 leave, annual leave and similar employee benefits and
certain auditor's fees, if any, will
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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;
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 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 tenth, to pay any surplus to the issuer trustee to be
distributed in accordance with the master trust deed.
The surplus will not carry interest. If the security trustee pays the surplus to
the credit of an account in the name of the issuer trustee with any bank
carrying on business in Australia, the security trustee, receiver, Mortgagee or
attorney, as the case may be, will be under no further liability in respect of
it.
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
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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 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.
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Amendment
The issuer trustee and the security trustee may, following notice to
the rating agencies and with the written approval of the manager and the note
trustee, 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. 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 on 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 on the redraw
facility, less the total Carryover Redraw
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Charge Offs, provided that for the purpose of this
calculation, it is assumed that all draws on 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 on 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 on 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, which varies depending on how long the draw
is outstanding, calculated on the basis of the actual number of days elapsed
since the advance and a year of 365 days. 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 on 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.
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
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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
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.
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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 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.
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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 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.
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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 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;
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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;
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.
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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.
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
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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.
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,
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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 principal balance of the housing loans 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.
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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.
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.
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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.
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.
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Table 1: St.George Bank One-to-Four-Unit 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 ($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.
Table 2: St.George Bank One-to-Four-Unit 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 ($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
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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 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.
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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.
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
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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.
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.
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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. 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
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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;
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:
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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 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.
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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;
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
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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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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.
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.
We suggest 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".
It is anticipated that 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.
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 the price less a concession not in excess of the respective amounts
set forth in the
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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 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.
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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
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.
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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, 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
AXA Trustees Limited 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 ______, 1999.
Litigation
AXA Trustees Limited 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:
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;
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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______, 1999;
o the Security Trust Deed among the issuer trustee, the manager,
the security trustee and the note trustee, dated on or about
______, 1999;
o the Note Trust Deed among the issuer trustee, the manager and the
note trustee, dated on or about ______, 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 _______, 1999;
o the Servicing Agreement Amendment Agreement among the issuer
trustee, the manager and the servicer, dated on or about ______,
1999;
o the Redraw Facility Agreement among the issuer trustee, the
manager and the redraw facility provider, dated on or about
______, 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 ______,
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 ______, 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 ________, 1999;
o the mortgage insurance policy among St.George Bank, the issuer
trustee and Housing Loans Insurance Corporation Pty Limited,
dated on or about ________, 1999;
o the powers of attorney from St.George Bank, dated on or about
_____, 1999;
o the Seller Loan Agreement among the issuer trustee, the manager
and the seller, dated on or about ________, 1999;
o the Underwriting Agreement among St.George Bank, the manager, the
issuer trustee and the underwriters, dated on or about _______,
1999.
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.
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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-1 Interest Amount...... means, for any quarterly payment date, the
amount in Australian dollars, which is
calculated:
o on a daily basis at the rate set out in
the currency swap relating to the Class
A-1 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
the Class A-1 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 360 days.
A$ Class A-2 Interest Amount....... means, for any quarterly payment date, the
amount in Australian dollars, which is
calculated:
o on a daily basis at the rate set out in
the currency swap relating to the Class
A-2 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
the Class A-2 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 360 days.
A$ Class A-3 Interest Amount...... means, for any quarterly payment date, the
amount in Australian dollars, which is
calculated:
o on a daily basis at the rate set out in
the currency swap relating to the Class
A-3 notes, which shall be AUD-BBR-BBSW,
as defined in the Definitions of the
International Swaps and Derivitives
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;
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o on the A$ Equivalent of the aggregate of
the outstanding principal balances of
the Class A-3 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 360 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.
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;
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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.
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.
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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.
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
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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.
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
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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
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
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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;
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
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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;
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.
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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
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
on 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.
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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.
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;
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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 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;
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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.
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-1 Mortgage Backed Pass Through Floating
Rate Notes (comprising US$300,000,000 Class A-1 Notes due 2009 (the "Class A-1
Notes"), US$569,000,000 Class A-2 Notes due 2021 (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 [*] 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"), the holders for the time being of the
Class B Notes (the "Class B Noteholders" and, together with the Class A
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
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under the Agency Agreement), and under which further paying agents may be
appointed (together with the Principal Paying Agent, the "Paying Agents", which
expression includes the successors of each paying agent as such under the Agency
Agreement and any additional paying agents appointed), payments in respect of
the Class A Notes will be made by the Paying Agents and the 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
in the event of the security being enforced 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;
(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; 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.
There is no maximum or minimum Interest Rate.
(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
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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 Limited (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 (defined below) ending immediately before that Quarterly
Payment Date, the following amounts in the following order of priority:
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(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, the payment to the Currency Swap Provider under a
Confirmation relating to the Class B Notes of the A$ Class B
Interest Amount as at that date (which is thereafter to be applied
to payments of Interest 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 any 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 based
on 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 any Mortgage Insurer, of any payment in the
nature of principal received from an Obligor for which that 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 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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<PAGE>
(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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<PAGE>
(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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<PAGE>
(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 (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 [*].
(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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<PAGE>
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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<PAGE>
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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<PAGE>
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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<PAGE>
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 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.....................................
Printing and Engraving...................................
Legal Fees and Expenses..................................
Trustee Fees and Expenses................................
Rating Agency Fees.......................................
Accounting Fees & Expenses...............................
Miscellaneous............................................
----------
Total....................................................
==========
- ---------
* 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
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(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>
<TABLE>
<CAPTION>
Item 16. Exhibits and Financial Statement Schedules.
<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 Form of Servicing Agreement Amendment.*
10.3 Custodian Agreement.
10.4 Deed of Indemnity.
10.5 Form of the Redraw Facility Agreement.*
10.6 Form of the Basis Swap.*
10.7 Form of the Fixed-Floating Rate Swap.*
10.8 Form of the Cross Currency Swap.*
10.9 Form of Seller Loan Agreement.*
10.10 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>
- ----------
* To be filed by Amendment.
** Previously filed.
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. 1 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Sydney, Australia, on the 30th day of
August 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. 1 to the Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* /s/ Gregory Michael Bartlett
- ------------------------------
Gregory Michael Bartlett Principal Executive Officer August 30, 1999
* /s/ Steven George McKerihan
- ------------------------------
Steven George McKerihan Principal Financial Officer August 30, 1999
* /s/ Steven George McKerihan
- ------------------------------
Steven George McKerihan Principal Accounting Officer August 30, 1999
* /s/ Gregory Michael Bartlett
- ------------------------------
Gregory Michael Bartlett Director August 30, 1999
* /s/ Steven George McKerihan
- -----------------------------
Steven George McKerihan Director August 30, 1999
* /s/ Keith Andrew Ward
- ------------------------------
Keith Andrew Ward Director August 30, 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. 1 to the Registration Statement solely in such capacity.
/s/ Stefanie McDonald
-----------------------------------
Name: Stefanie McDonald
Address: CT Corporation System
1633 Broadway
New York, New York 10019
Telephone: (212) 479-8247
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 Form of Servicing Agreement Amendment.* -----
10.3 Custodian Agreement. -----
10.4 Deed of Indemnity. -----
10.5 Form of the Redraw Facility Agreement.* -----
10.6 Form of the Basis Swap.* -----
10.7 Form of Fixed-Floating Rate Swap.* -----
10.8 Form of the Cross Currency Swap.* -----
10.9 Form of Seller Loan Agreement.* -----
10.10 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>
- ----------
* To be filed by amendment.
** Previously filed.
<PAGE>
CRUSADE MANAGEMENT
MORTGAGE RESOURCES LIMITED
(A.C.N. 072 715 916)
- --------------------------------------------------------------------------------
GENERAL MEETING OF MORTGAGE RESOURCES LIMITED (A.C.N. 072 715 916) HELD IN THE
BOARD ROOM, LEVEL 4, ST. GEORGE HOUSE, 4 - 16 MONTGOMERY STREET, KOGARAH, ON
TUESDAY, 29TH APRIL 1997, AT 2:00 P.M.
- --------------------------------------------------------------------------------
MINUTE BY REPRESENTATIVE APPOINTED IN TERMS OF SECTION 249(3) OF THE
CORPORATIONS LAW.
- --------------------------------------------------------------------------------
The following special resolution required to be passed at a General Meeting has
been passed.
1. CHANGE OF COMPANY NAME:
RESOLVED that the name of the Company be changed to:
"Crusade Management Limited".
Signed:
/s/
-------------------
Representative
Dated: 29th April 1997
<PAGE>
ADVANCE BANK AUSTRALIA LIMITED
(A.C.N. 002 953 335)
- --------------------------------------------------------------------------------
GENERAL MEETING HELD IN THE MEETING ROOM, LEVEL 8, 182 GEORGE STREET, SYDNEY ON
WEDNESDAY, 22ND MAY 1996, AT 5:00 P.M.
- --------------------------------------------------------------------------------
MINUTES BY REPRESENTATIVE APPOINTED IN TERMS OF SECTION 249(3) OF THE
CORPORATIONS LAW.
- --------------------------------------------------------------------------------
The following resolutions required to be passed at a General Meeting have been
passed.
ITEM 1 - APPOINTMENT OF ADDITIONAL DIRECTORS:
Resolved that:
(a) the Company appoint, in accordance with Regulation 12.3 of the Articles
of Association of Mortgage Resources Limited, Messrs. Richard William
Turner, of 59 Park Avenue, Roseville, NSW 2069 and Graham Gordon Hart
Parkhurst, of 7 Tamar Place, Wahroonga, NSW 2076 as Directors of
Mortgage Resources Limited:
(b) the forms of "Consent to Act as a Director" from Messrs. Richard William
Turner and Graham Gordon Hart Parkhurst, be received and noted; and
(c) the Secretary be directed to notify the Directors of Mortgage Resources
Limited forthwith as to the terms of this Minute.
ITEM 2 - AMENDMENT OF THE MEMORANDUM AND ARTICLES OF ASSOCIATION:
(a) Regulation 12.3 of the Memorandum and Articles of Association be and is
hereby amended to read as follows:
Appointment of Director
12.3 Where and for so long as Advance Bank Australia Limited (A.C.N.
002 953 335) ("Advance Bank") is or is entitled to be registered
holder of one or more ordinary shares in the capital of the
Company, it shall have the following powers: -
(1) By notice in writing, to appoint upon such terms and
conditions not being inconsistent with these Regulations as
it shall think fit any person (not being a person
prohibited by the Law from holding office as a Director) to
be a Director or Managing Director of the Company; and
<PAGE>
(Cont'd) ITEM 2 - AMENDMENT OF THE MEMORANDUM AND ARTICLES OF ASSOCIATION:
(2) By notice in writing, to remove any Director or Managing
Director from office.
The powers conferred by this Regulation shall be exercisable at
any time and from time to time notwithstanding any other
provision of these Regulations and may be exercised by Advance
Bank's Board of Directors or by any agent, attorney or
representative of Advance Bank duly authorised in that behalf and
it shall be the duty of the Company and every Managing Director,
Director and officer thereof to give immediate effect to any such
exercise.
(b) Regulation 12.4 of the Memorandum and Articles of Association be
and is hereby deleted.
(c) the Secretary be directed to notify the Directors of Mortgage
Resources Limited forthwith as to the terms of these Minutes."
Signed:
- ------------------------------
- ------------------------------
Representative
Dated: Twenty second day of May 1996.
<PAGE>
-------------------------
Dated 5 February 1996
Corporations Law of Australian Capital Territory
MEMORANDUM
and
ARTICLES OF ASSOCIATION
of
MORTGAGE RESOURCES LIMITED
A Company Limited by Shares
Mallesons Stephen Jaques
Solicitors
Governor Phillip Tower
1 Farrer Pl
Sydney NSW 2000
Telphone (02) 250 3000
Fax (02) 250 3133
DX 113 Sydney
Ref CH:AS
<PAGE>
Corporations Law of Australian Capital Territory
MEMORANDUM OF ASSOCIATION
of
MORTGAGE RESOURCES LIMITED
A Company Limited by Shares
1. The name of the company is Mortgage Resources Limited.
2. The capital of the company is $1 million divided into 1,000,000 shares
of $1.00 each.
3. The liability of the members of the company is limited.
WE the subscribers whose names, addresses and occupations are set out below wish
to form a company under this memorandum of association and we respectively
agree to take the number of shares in the capital of the company set out
opposite our respective names.
<TABLE>
<CAPTION>
Names, addresses and Number and class of Signatures
occupations of subscribers shares taken by each
subscriber (in words)
<S> <C> <C>
SHOWERING, Adrienne One ordinary share /s/ Adrienne Showering
14 Martin Road
Centennial Park NSW 2021
Solicitor
MAZZOCHI, Richard John One ordinary share /s/ Richard John Mazzochi
Patrick
61 Glover Street
Mosman NSW 2088
Solicitor
KELL, John Russell One ordinary share /s/ John Russell Kell
Unit 202
66 McLachlan Avenue
Rushcutters Bay NSW 2011
Solicitor
HEWIT, Colin Irvine One ordinary share /s/ Colin Irvine Hewit
12 Rowe Street
Roseville Chase NSW 2069
Company Secretary
<PAGE>
- 2 -
LIDDEN, Louise Elizabeth One ordinary share /s/ Louise Elizabeth Lidden
52A James Henty Drive
Dural NSW 2158
Paralegal
</TABLE>
DATED 5 February 1996
WITNESS to the above signatures:
name: Grace But
address: 1 Farrer Place
Sydney NSW 2000
signature: /s/ Grace But
<PAGE>
Corporations Law of Australian Capital Territory
ARTICLES OF ASSOCIATION
OF
MORTGAGE RESOURCES LIMITED
A Company Limited by Shares
PART 1 - PRELIMINARY
Definitions
1.1 The following words have these meanings in these Articles unless the
contrary intention appears.
"Alternate Director" means a person appointed as alternate director
under Article 14.6;
"Articles" means these articles of association as amended from time to
time, and a reference to a particular article has a corresponding
meaning;
"Auditor" means the auditor or auditors for the time being of the
Company;
"Company" means Mortgage Resources Limited;
"Director" means a director for the time being of the Company, and
where appropriate includes an Alternate Director;
"Executive Director" means a person appointed as executive director
under Article 14.29;
"Managing Director" means a person appointed as a managing director
under Article 14.29;
"Member" means a person for the time being entered in the Register as a
member of the Company;
"Register" means the register of members of the Company to be kept
under the Corporations Law and if appropriate includes a branch
register;
"Registered Office" means the registered office for the time being of
the Company;
"Secretary" means a person appointed by the Directors under Article
15.1 to perform the duties of secretary of the Company; and
"State" means the state or territory in which the Company is from time
to time incorporated.
Interpretation
1.2 In these Articles:
(a) words importing any gender include all other genders;
<PAGE>
-2-
(b) the word person includes a firm, a body corporate, an
unincorporated association or an authority;
(c) the singular includes the plural and vice versa; and
(d) a reference to a statute or code or the Corporations Law (or to a
provision of same) means the statute, code or the Corporations Law
(or provision of same) as modified or amended and in operation
for the time being, or any statute, code or provision enacted
(whether by the State or the Commonwealth of Australia) in its
place and includes any regulation or rule for the time being in
force under the statute, code or the Corporations Law.
1.3 Unless the contrary intention appears in these Article, an expression
has, in a provision of these Articles that deals with a matter dealt
with by a particular provision of the Corporations Law, the same
meaning as in that provision of the Corporations Law.
1.4 Headings are inserted for convenience and do not affect the
interpretation of these Articles.
Table A not to apply
1.5 The regulations contained in Table A in Schedule 1 to the Corporations
Law do not apply to the Company.
PART 2 - SHARE CAPITAL AND VARIATION OF RIGHTS
Directors to issue shares
2.1 Without prejudice to any special rights previously conferred on the
holders of any existing shares or class of shares but subject to the
Corporations Law, or as the Company in general meeting may when
authorising any issue of shares otherwise direct, shares in the Company
are under the control of the Directors who may allot or dispose of all
or any of the same to such persons at such times and on such terms and
conditions and having attached to them such preferred, deferred or
other special rights or such restrictions, whether with regard to
dividend, voting, return of capital or otherwise and at a premium or at
par or at a discount as the Directors think fit.
2.2 The Directors have the right to grant to any person options or other
securities with rights of conversion to shares or pre-emptive rights to
any shares for any consideration and for any period.
Preference shares
2.3 The Company may not issue any preference shares nor may any issued
shares be converted into preference shares unless the rights of the
holders of the preference shares with respect to repayment of capital,
participation in surplus assets and profits, cumulative or
non-cumulative dividends, voting and priority of payment of capital and
dividends in relation to other shares or other classes of preference
shares are set out in the Articles. Subject to the Corporations Law,
preference shares may, with the sanction of a resolution of the Company
in general meeting, be issued on the terms that they are, or at the
option of the Company are, liable to be redeemed.
<PAGE>
-3-
Variation of rights
2.4 If at any time the share capital is divided into different classes
of shares, the rights attached to any class may (unless otherwise
provided by the terms of issue of the shares of that class),
whether or not the Company is being wound up, be varied or abrogated
in any way with the consent in writing of the holders of
three-quarters of the issued shares of that class, or with the
sanction of a special resolution passed at a separate meeting of
the holders of the shares of that class.
2.5 The provisions of these Articles relating to general meetings apply
so far as they are capable of application and with the necessary
changes to every separate meeting of the holders of a class of
shares except that:
(a) a quorum is constituted by two persons who, between
them, hold or represent one-third of the issued
shares of the class; and
(b) any holder of shares of the class, present in person or by
proxy, attorney or representative appointed under Article
11.2 may demand a poll.
2.6 The rights conferred on the holders of the shares of any class are
not deemed to be varied by the creation or issue of further shares
ranking equally with the first-mentioned shares unless otherwise:
(a) expressly provided by the terms of issue of the first-
mentioned shares; or
(b) required by the Corporations Law.
Commission and brokerage
2.7 The Company may exercise the power to pay brokerage or
commission conferred by the Corporations Law. The rate or
the amount of the brokerage or commission paid or agreed to
be paid must be disclosed in the manner required by the Corporations
Law.
2.8 The total brokerage and commission must not exceed 10% of
the total amount payable on allotment of the shares in
respect of which the commission is paid.
2.9 The brokerage or commission may be satisfied by the payment
of cash or by the allotment of fully or partly paid shares
or other securities or partly by the payment of cash and
partly by the allotment of fully or partly paid shares or
other securities.
Recognition and disclosure of interests
2.10 Except as required by law, the Company is not bound or
compelled in any way to recognise a person as holding a
share on any trust.
2.11 The Company is not bound by or compelled in any way to
recognise (whether or not it has notice of the interest or rights
concerned) any equitable, contingent, future or partial
interest in any share or unit of a share or (except as otherwise
provided by these Articles or by law) any other right in respect
of a share except an absolute right of ownership in the registered
holder.
<PAGE>
-4-
Right to share and option certificate
2.12 A person whose name is entered as a Member in the Register
or as an optionholder in the register of options is entitled
without payment to receive a certificate in respect of the shares or
options registered in the person's name under the seal of
the Company in accordance with the Corporations Law but, in
respect of shares or options held jointly by several persons, the
Company is not bound to issue more than one certificate.
2.13 Delivery of a certificate for a share to one of several
joint holders is sufficient delivery to all such holders.
Joint holders of shares
2.14 Where two or more persons are registered as the joint
holders of shares they are deemed to hold the shares as
joint tenants.
PART 3- LIEN
Lien on share
3.1 The Company has a first and paramount lien on every share
(other than a fully paid share) for all money (whether
presently payable or not) called or payable at a fixed time
in repect of that share and such lien extends to all dividends,
rights and other distributions from time time declared paid
or made in respect of that share.
3.2 The Company also has a first and paramount lien on all
shares (other than fully paid shares) registered in the name of a
Member for all money presently payable by that Member to the
Company and all money which the Company may be called on by
law to pay in respect of the shares of that Member.
3.3 The Directors may at any time exempt a share wholly or in
part from the provisions of Articles 3.1 and 3.2.
Sale under lien
3.4 Subject to Article 3.5, the Company may sell, in such manner
as the Directors think fit, any shares on which the Company
has a lien as if the share was forfeited.
3.5 A share on which the Company has a lien may not be sold by
the Company unless:
(a) a sum in respect of which the lien exists is
presently payable; and
(b) The Company has, not less than 14 days before the
date of the sale, given to the registered holder
for the time being of the share or the person
entitled to the share by reason of the death or bankruptcy
of the registered holder, a notice in writing setting out,
and demanding payment of, such part of the amount in
respect of which the lien exists as is presently payable.
Transfer on sale under lien
3.6 For the purpose of giving effect to a sale mentioned in Article 3.4,
the Company may receive the consideration (if any) given for the
share so sold and may execute a transfer of the share sold in
favour of the person to whom the share is sold.
<PAGE>
-5-
3.7 The Company must register the transferee as the holder of the share
comprised in any such transfer and the transferee is not bound to
see to the application of the purchase money.
3.8 The title of the transferee to the share is not affected by any
irregularity or invalidity in connection with the sale of the
share.
Proceeds of sale
3.9 The proceeds of a sale mentioned in Article 3.4 must be applied by
the Company in payment of such part of the amount in respect of
which the lien exists as is presently payable, and the residue (if
any) must (subject to any like lien for sums not presently payable
that existed on the share before the sale) be paid to the person
entitled to the share at the date of the sale.
PART 4 - CALLS ON SHARES
Directors to make calls
4.1 The Directors may make calls on a Member in respect of any money
unpaid on the shares of the Member (whether on account of the
nominal value of the shares or by way of premium) and not by the
terms of issue of those shares made payable at fixed times.
4.2 The Directors may revoke or postpone a call.
Time of call
4.3 A call is deemed to be made at the time when the resolution of the
Directors authorising the call is passed.
Members' liability
4.4 On receiving at least 14 days' notice specifying the time or times
and place of payment, each Member must pay to the Company at the
time or times and place so specified the amount called on the
Member's shares.
4.5 The joint holders of a share are jointly and severally liable to
pay all calls in respect of the share.
4.6 The non-receipt of a notice of any call by, or the accidental
omission to give notice of a call to, a Member does not invalidate
the call.
Interest on default
4.7 If a sum called in respect of a share is not paid before or on the
day appointed for payment of the sum, the person from whom the sum
is due must pay interest on the sum to the time of actual payment
at the rate, not exceeding 20% per annum, determined by the
Directors, but the Directors may waive payment of that interest
wholly or in part.
Fixed instalments deemed calls
4.8 Any sum that, by the terms of issue of a share, becomes payable on
allotment or at a fixed date, whether on account of the nominal
value of the share or by way of premium, is deemed for the purposes
of these Articles to be a call duly made and payable on the date
on which by the terms of issue the sum becomes payable, and, in
case of non-payment, all
<PAGE>
-6-
the relevant provisions of these Articles as to payment of interest
and expenses, forfeiture or otherwise apply as if the sum had
become payable by virtue of a call duly made and notified.
Differentiation between shareholders as to calls
4.9 The Directors may, on the issue of shares, differentiate between
the holders as to the amount of calls to be paid and the times of
payment.
Prepayment of calls
4.10 The Directors may accept from a Member the whole or a part of the
amount unpaid on a share although no part of that amount has been
called.
4.11 The Directors may authorise payment by the Company of interest on
the whole or any part of an amount so accepted, until the amount
becomes payable, at such rate, not exceeding the prescribed rate,
as is agreed on between the Directors and the Member paying the
sum.
4.12 For the purposes of Article 4.11, the prescribed rate of interest
is:
(a) if the Company has, by resolution, fixed a rate - the rate
so fixed; and
(b) in any other case - 20% per annum.
PART 5 - TRANSFER OF SHARES
Forms of instrument of transfer
5.1 Subject to these Articles, a Member may transfer all or any of the
Member's shares by instrument in writing in any usual or common
form or in any other form that the Directors approve.
5.2 An instrument of transfer referred to in Article 5.1 must be
executed by or on behalf of both the transferor and the transferee.
Registration procedure
5.3 The instrument of transfer must be left for registration at the
Registered Office accompanied by the certificate for the shares to
which it relates and such information as the Directors properly
require to show the right of the transferor to make the transfer,
and in that event, the Company must, subject to the powers vested
in the Directors by these Articles, register the transferee as a
shareholder.
5.4 A transferor of shares remains the holder of the shares transferred
until the transfer is registered and the name of the transferee is
entered in the Register in respect of the shares and a transfer of
shares does not pass the right to any dividends declared on the
shares until such registration.
Directors may decline to register
5.5 The Directors may decline to register any transfer of shares,
without being bound to give any reason whatsoever for so doing.
<PAGE>
-7-
Branch register
5.6 The Company may, in accordance with the Corporations Law, cause to
be kept in any place outside the State a branch register of Members
and the Directors may at their discretion, subject to the
Corporations Law, make provisions for transfer of shares of the
Company between the Register and branch registers.
PART 6 - TRANSMISSION OF SHARES
Transmission of shares on death of holder
6.1 In the case of the death of a Member, the survivor or survivors
where the deceased was a joint holder, and the legal personal
representatives of the deceased where the deceased was a sole
holder, are the only persons recognised by the Company as having
any title to the deceased's interest in the shares, but this
Article does not release the estate of a deceased joint holder
from any liability in respect of a share that had been jointly
held by the deceased with other persons.
Right to registration on death or bankruptcy
6.2 Subject to the Bankruptcy Act 1966, a person becoming entitled to
a share in consequence of the death or bankruptcy of a Member may,
on such information being produced as is properly required by the
Directors, either elect to be registered as holder of the share or
nominate another person to be registered as the transferee of the
share. Where the surviving joint holder becomes entitled to a share
in consequence of the death of a Member the Directors must, on
satisfactory evidence of that death being produced to them, direct
the Register to be altered accordingly.
6.3 If the person becoming entitled elects to be registered as holder
of the share under Article 6.2 the person must deliver or send to
the Company a notice in writing signed by the person in such form
as the Directors approve stating that the person so elects.
6.4 If the person becoming entitled nominates another person to be
registered as the transferee of the share under Article 6.2 the
person must execute a transfer of the share to the other person.
6.5 All the limitations, restrictions and provisions of these Articles
relating to the right to transfer, and the registration of transfer
of, shares are applicable to any such notice or transfer as if the
death or bankruptcy of the Member had not occurred and the notice
or transfer were a transfer signed by that Member.
Effect of transmission
6.6 If the registered holder of a share dies or becomes bankrupt, the
personal representative or the trustee of the estate of the
registered holder, as the case may be, is, on the production of
such information as is properly required by the Directors, entitled
to the same dividends and other advantages, and to the same rights
(whether in relation to meetings of the Company, or to voting or
otherwise), as the registered holder would have been entitled to if
the registered holder had not died or become bankrupt.
6.7 If two or more persons are jointly entitled to any share in
consequence of the death of the registered holder, they are, for
the purpose of these Articles, deemed to be joint holders of the
share.
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PART 7--FORFEITURE OF SHARES
Notice requiring payment of call
7.1 If a Member fails to pay a call or instalment of a call on the day
appointed for payment of the call or instalment, the Directors may,
at any time thereafter during such time as any part of the call or
instalment remains unpaid, serve a notice on the Member requiring
payment of so much of the call or instalment as is unpaid, together
with any interest that has accrued and all costs and expenses that
may have been incurred by the Company by reason of such
non-payment.
7.2 The notice must name a further day (not earlier than the expiration
of 14 days from the date of service of the notice) on or before
which the payment required by the notice is to be made and must
state that, in the event of non-payment at or before the time
appointed, the shares in respect of which the call was made will be
liable to be forfeited.
Forfeiture for failure to comply with notice
7.3 If the requirements of a notice served under Article 7.1 are not
complied with, any share in respect of which the notice has been
given may at any time thereafter, before the payment required by
the notice has been made, be forfeited by a resolution of the
Directors to that effect.
7.4 Such a forfeiture includes all dividends declared in respect of the
forfeited shares and not actually paid before the forfeiture.
7.5 Any share forfeited under Article 7.3 may be sold, re-allotted or
otherwise disposed of to whom and on such terms and conditions,
subject to the Corporations Law, as the Directors think fit.
7.6 If any share is forfeited under Article 7.3 notice of the
forfeiture must be given to the Member holding the share
immediately prior to the forfeiture and an entry of forfeiture with
the date thereof must be made in the Register.
Cancellation of forfeiture
7.7 At any time before a sale or disposition of a share, the forfeiture
of that share may be cancelled on such terms as the Directors think
fit.
Effect of forfeiture on former holder's liability
7.8 A person whose shares have been forfeited ceases to be a Member in
respect of the forfeited shares, but remains liable to pay the
Company all money that, at the date of forfeiture, was payable by
that person to the Company in respect of the shares (including
interest at the rate, not exceeding 20% per annum, determined by
the Directors from the date of forfeiture on the money for the time
being unpaid if the Directors think fit to enforce payment of the
interest and also expenses owing), but that person's liability
ceases if and when the Company receives payment in full of all
money (including interest and expenses) so payable in respect of
the shares.
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Evidence of forfeiture
7.9 A statement in writing declaring that the person making the
statement is a director or a secretary of the Company, and that a
share in the Company has been duly forfeited in accordance with the
Articles on the date stated in the statement, is prima facie
evidence of the facts stated in the statement as against all
persons claiming to be entitled to the share.
Transfer of forfeited share
7.10 The Company may receive the consideration (if any) given for a
forfeited share on any sale or disposition of the share and may
execute a transfer of the share in favour of the person to whom the
share is sold or disposed of.
7.11 On the execution of the transfer, the transferee must be registered
as the holder of the share and is not bound to see to the
application of any money paid as consideration.
7.12 The title of the transferee to the share is not affected by any
irregularity or invalidity in connection with the forfeiture, sale
or disposal of the share.
PART 8--CONVERSION OF SHARES INTO STOCK
Company may convert shares into stock
8.1 The Company may, by resolution in general meeting, convert all or
any of its paid up shares into stock and re-convert any stock into
paid up shares of any nominal value.
Transfer of stock
8.2 Subject to Article 8.3, when shares have been converted into stock,
the provisions of these Articles relating to the transfer of shares
apply, so far as they are capable of application, to the transfer
of the stock or of any part of the stock.
8.3 The Directors may fix the minimum amount of stock transferable and
restrict or forbid the transfer of fractions of that minimum, but
the minimum must not exceed the aggregate of the nominal values of
the shares from which the stock arose.
Stockholders' rights
8.4 The holders of stock have, according to the amount of the stock
held by them, the same rights, privileges and advantages as regards
dividends, voting at meetings of the Company and other matters as
they would have if they held the shares from which the stock arose.
8.5 No privilege or advantage (except participation in the dividends
and profits of the Company and in the property of the Company on
winding up) is conferred by any amount of stock that would not, if
existing in shares, have conferred that privilege or advantage.
Application of Articles to stock
8.6 The provisions of these Articles that are applicable to paid up
shares apply to stock, and references in those provisions to share
and Member include references to stock and stockholder
respectively.
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PART 9--ALTERATION OF CAPITAL
Company's power to alter capital
9.1 The Company in general meeting may by resolution:
(a) increase its authorised share capital by the creation of
new shares of such amount as is specified in the
resolution;
(b) consolidate and divide all or any of its authorised share
capital into shares of a larger amount than its existing
shares;
(c) subdivide all or any of its shares into shares of a
smaller amount than its existing shares but so that in the
subdivision the proportion between the amount paid and the
amount (if any) unpaid on each such share of a smaller
amount is the same as it was in the case of the share from
which the share of a smaller amount is derived; and
(d) cancel shares that, at the date of the passing of the
resolution, have not been taken or agreed to be taken by
any person or have been forfeited and reduce its authorised
share capital by the amount of the shares so cancelled.
Reduction of capital
9.2 Subject to the Corporations Law, the Company in general meeting
may, by special resolution, reduce its share capital, any capital
redemption reserve fund or any share premium account.
Buy-back authorisation
9.3 Subject to the Corporations Law, the Company may buy ordinary
shares in the capital of the Company on terms decided by the
Directors. This Article ceases to have effect on the day three
years after the latest of the incorporation of the Company,
adoption of these Articles and last renewal of this Article.
PART 10--GENERAL MEETINGS
Annual general meeting
10.1 Annual general meetings of the Company are to be held in accordance
with the Corporations Law.
General meeting
10.2 The Directors may convene a general meeting of the Company whenever
they think fit.
Notice of general meeting
10.3 Subject to the provisions of the Corporations Law relating to
special resolutions and agreements for shorter notice, at least 14
days' notice (exclusive of the day on which the notice is served or
deemed to be served and of the day for which notice is given)
specifying the place, day and the hour of the meeting and, in the
case of special business, the general nature of that business, must
be given to such persons as are entitled to receive notices from
the Company.
The non-receipt of notice of a general meeting by, or the
accidental omission to give notice of a general meeting to, a
person entitled to receive notice does not invalidate any
resolution passed at the general meeting.
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Special business of general meeting
10.4 All business that is transacted at a general meeting is special
with the exception at an annual general meeting of the declaration
of a dividend, the consideration of the accounts and the reports of
the Directors and the Auditor, the appointment of the Auditor and
the election of Directors.
Requisitioned meeting
10.5 The Directors must, on the written requisition of:
(a) not less than 100 Members holding shares in the Company on
which there has been paid up an average sum, per Member, of
not less than $200; or
(b) a Member who is entitled or Members who are together entitled,
to not less than 5% of the total voting rights of all Members
having at the date of the deposit of the requisition a right
to vote at general meetings;
immediately convene a general meeting of the Company to be held as
soon as practicable but, in any case, not later than two months
after the deposit of the requisition.
Objects of requisitioned meeting
10.6 The requisition for a general meeting must state the objects of the
meeting and must be signed by the requisitionists and deposited at
the Registered Office, and may consist of several documents in like
form each signed by one or more of the requisitionists.
Convening requisitioned meeting
10.7 If the Directors do not, within 21 days after the deposit of the
requisition, proceed to convene a general meeting the
requisitionists or any of them representing more than one-half of
the total voting rights of all of them may themselves, in the same
manner as nearly as possible as that in which meetings are to be
convened by the Directors, convene a meeting, but a meeting so
convened may not be held after the expiration of three months from
the date of the deposit of the requisition.
Expenses of requisitioned meeting
10.8 Any reasonable expenses incurred by the requisitionists by reason
of the failure of the Directors to convene a general meeting must
be paid to the requisitionists by the Company and any sum so paid
must be retained by the Company out of any sums due or to become
due from the Company by way of fees or other remuneration in
respect of their services to such of the Directors as were in
default.
Postponement or cancellation of meeting
10.9 The Directors may postpone or cancel any general meeting whenever
they think fit (other than a meeting convened as a result of a
requisition under Article 10.5 or by requisitionists under Article
10.7).
PART 11--PROCEEDINGS AT GENERAL MEETINGS
Representation of Member
11.1 Any Member may be represented at any meeting of the Company by a
proxy or attorney.
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11.2 If a body corporate is a Member it may also, by resolution of its
directors or other governing body, authorise such person as it
thinks fit to act as its representative either at a particular
general meeting or at all general meetings of the Company or of
any class of Members.
11.3 A person authorised under Article 11.2 is, in accordance with that
authority and until it is revoked by the body corporate, entitled
to exercise the same powers on behalf of the body corporate as the
body corporate could exercise if it were a natural person who was
a Member.
11.4 Unless the contrary intention appears, a reference to a Member in
the succeeding provisions of this Part II means a Member, a proxy
or attorney of a Member or a person appointed under Article 11.2
to represent a body corporate which is a Member.
Quorum
11.5 No business may be transacted at any general meeting unless a
quorum is present comprising 2 members present in person or by
proxy, attorney or representative appointed under Article 11.2 and
entitled to vote at the meeting. If a quorum is present at the
beginning of a meeting it is deemed present throughout the meeting
unless the chairman of the meeting otherwise declares, on the
chairman's own motion or at the instance of a Member, proxy,
attorney or representative appointed under Article 11.2.
Failure to achieve quorum
11.6 If a meeting is convened on the requisition of Members and a
quorum is not present within half an hour from the time appointed
for the meeting, the meeting must be dissolved.
11.7 If a meeting is convened in any other case and a quorum is not
present within half an hour from the time appointed for the
meeting:
(a) the meeting must be adjourned to such day, time and place
as the Directors determine or if no determination is made
by them to the same day in the next week at the same time
and place; and
(b) if at the adjourned meeting a quorum is not present
within half an hour from the time appointed for the
meeting the meeting must be dissolved.
Appointment and powers of chairman of general meeting
11.8 If the Directors have elected one of their number as chairman of
their meetings, that person must preside as chairman at every
general meting.
11.9 If a general meeting is held and:
(a) a chairman has not been elected as provided by Article
11.8; or
(b) the chairman is not present within 15 minutes after the
time appointed for the holding of the meeting or is
unable or unwilling to act,
then the deputy chairman elected under Article 14.16 (if any) must
act as chairman of the meeting. If there is no such person or
that person is absent or unable or unwilling to act, the
Directors present must elect one of their
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number to be chairman of the meeting, or, if no Director is
present or if all Directors present decline to take the chair, the
Members present must elect one of their number to be chairman of
the meeting.
Adjournment of general meeting
11.10 The chairman may, with the consent of any meeting at which a
quorum is present, and must if so directed by the meeting,
adjourn the meeting from day to day, time to time and from place
to place, but no business may be transacted at any adjourned
meeting other than the business left unfinished at the meeting
from which the adjournment took place.
11.11 When a meeting is adjourned for 30 days or more, notice of the
adjourned meeting must be given as in the case of an original
meeting.
11.12 Except as provided by Article 11.11, it is not necessary to give
any notice of an adjournment or of the business to be transacted
at any adjourned meeting.
Voting at general meeting
11.13 At any general meeting a resolution put to the vote of the meeting
must be decided on a show of hands unless a poll is (before or
on the declaration of the result of the show of hands) demanded:
(a) by the chairman;
(b) by not less than five Members having the right to vote at
the meeting;
(c) by a Member or Members present who are together entitled
to not less than 10% of the total voting rights of all
the Members having the right to vote at the meeting; or
(d) by a Member or Members present and holding shares in the
Company conferring a right to vote at the meeting, being
shares on which an aggregate sum has been paid up equal
to not less than 10% of the total sum paid up on all the
shares conferring that right.
Unless a poll is properly demanded, a declaration by the chairman
that a resolution has on a show of hands been carried or carried
unanimously, or by a particular majority, or lost, and an entry
to that effect in the book containing the minutes of the
proceedings of the Company, is conclusive evidence of the fact
without proof of the number or proportion of the votes recorded
in favour of or against the resolution.
Questions decided by majority
11.14 Subject to the requirements of the Corporations Law in relation to
special resolutions, a resolution is taken to be carried if the
proportion that the number of votes in favour of the resolution
bears to the total number of votes on the resolution exceeds one
half.
Poll
11.15 If a poll is properly demanded, it must be taken in such manner
and (subject to Article 11.16) either at once or after an
interval or adjournment or otherwise as the chairman directs, and
the result of the poll is the resolution of the meeting at which
the poll was demanded.
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11.16 A poll demanded on the election of a chairman or on a question of
adjournment must be taken immediately.
11.17 The demand for a poll may be withdrawn.
Equality of votes
11.18 If there is an equality of votes, whether on a show of hands or on
a poll, the chairman of the meeting is not entitled to a casting
vote in addition to any votes to which the chairman is entitled
as a Member or proxy or attorney or representative of a Member.
Entitlement to vote
11.19 Subject to any rights or restrictions for the time being attached
to any class or classes of shares and to these Articles:
(a) on a show of hands every person present who is a Member or
a proxy, attorney or representative of a Member has one
vote; and
(b) on a poll every person present who is a Member or proxy,
attorney or representative of a Member has one vote for
each share that the person holds or represents (as the
case may be).
Joint shareholders' vote
11.20 In the case of joint holders of a share in the Company the vote of
the senior who tenders a vote, whether in person or by proxy,
attorney or representative, must be accepted to the exclusion of
the votes of the other joint holders and, for this purpose,
seniority is determined by the order in which the names stand in
the Register.
Vote of shareholder of unsound mind
11.21 If a Member is of unsound mind or is a person whose person or
estate is liable to be dealt with in any way under the law
relating to mental health then the Member's committee or trustee
or such other person as properly has the management of the
Member's estate may exercise any rights of the Member in relation
to a general meeting as if the committee, trustee or other person
were the Member.
Effect of unpaid call
11.22 A Member is not entitled to vote at a general meeting unless all
calls and other sums presently payable by the Member in respect
of shares in the Company have been paid.
Objection to voting qualification
11.23 An objection may be raised to the qualification of a voter only at
the meeting or adjourned meeting at which the vote objected to
is given or tendered.
11.24 Any such objection must be referred to the chairman of the
meeting, whose decision is final.
11.25 A vote not disallowed under such an objection is valid for all
purposes.
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Appointment of proxy
11.26 An instrument appointing a proxy must be in writing under the hand
of the appointor or of the appointor's attorney duly authorised in
writing or, if the appointor is a corporation, either under seal
or under the hand of an officer or attorney duly authorised. A
proxy need not be a Member.
11.27 An instrument appointing a proxy may specify the manner in which
the proxy is to vote in respect of a particular resolution and, if
an instrument of proxy so provides, the proxy is not entitled to
vote on the resolution except as specified in the instrument.
11.28 An instrument appointing a proxy is deemed to confer authority to
demand or join in demanding a poll.
11.29 An instrument appointing a proxy must be in the form approved by
the Directors from time to time.
Deposit of proxy and other instruments
11.30 An instrument appointing a proxy may not be treated as valid
unless the instrument, and the power of attorney or other
authority (if any) under which the instrument is signed or a copy
of that power or authority certified as a true copy by statutory
declaration is or are received by the Company not less than 48
hours before the time for holding the meeting or adjourned meeting
at which the person named in the instrument proposes to vote at
the Registered Office or at such other place as is specified for
that purpose in the notice convening the meeting.
Validity of vote in certain circumstances
11.31 A vote given in accordance with the terms of an instrument of
proxy or of a power of attorney is valid notwithstanding the
previous death or unsoundness of mind of the principal, the
revocation of the instrument (or of the authority under which the
instrument was executed) or of the power, or the transfer of the
share in respect of which the instrument or power is given, if no
intimation in writing of the death, unsoundness of mind,
revocation or transfer has been received by the Company at its
Registered Office before the commencement of the meeting or
adjourned meeting at which the instrument is used or the power is
exercised.
Director entitled to notice of meeting
11.32 A Director is entitled to receive notice of and to attend all
general meetings and all separate general meetings of the holders
of any class of shares in the Company and is entitled to speak at
those meetings.
PART 12 - THE DIRECTORS
Number of Directors
12.1 The number of Directors must not be less than 3 nor more than 10.
The names of the first Directors will be determined in writing by
the subscribers to the memorandum of association of the Company
and those Directors will continue in office subject to these
Articles. The Company in general meeting may, by resolution,
increase or reduce the number of Directors.
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Share qualification of Directors
12.2 A Director is not required to hold any share in the Company.
Appointment of Director
12.3 The Company in general meeting may by resolution and the Directors may
at any time appoint any person to be a Director, either to fill a
casual vacancy or as an addition to the existing Directors, but so that
the total number of Directors does not at any time exceed the number
determined in accordance with Article 12.1.
Removal of Director
12.4 The Company in general meeting may by resolution remove any Director
from office and may by resolution appoint another person in that
Director's stead.
Remuneration of Directors
12.5 The Directors may be paid such remuneration as is determined from time
to time by the Company in general meeting. That remuneration is deemed
to accrue from day to day. A Director who retires, and is not
reappointed in accordance with these Articles, may be paid a retirement
benefit in recognition of past services in the amount determined by the
Directors, but not exceeding the amount permitted by the Corporations
Law.
12.6 The Directors may also be paid all travelling and other expenses
properly incurred by them in attending, participating in and returning
from meetings of the Directors or any committee of the Directors or
general meetings of the Company or otherwise in connection with the
business of the Company.
Director's interests
12.7 No Director is disqualified by the Director's office and the fiduciary
relationship established by it from holding any office or place of
profit (other than that of Auditor) under the Company. Any Director
may (subject to the Corporations Law):
(a) be or become a director of or otherwise hold office or a place of
profit in any other company promoted by the Company or in which
the Company may be interested as vendor, shareholder or otherwise;
(b) contract or make any arrangement with the Company whether as
vendor, purchaser, broker, solicitor or accountant or other
professional person or otherwise and any contract or arrangement
entered or to be entered into by or on behalf of the Company in
which any Director is in any way interested is not avoided for
that reason; and
(c) participate in any association, institution, fund, trust or scheme
for past or present employees or Directors of the Company, a
related body corporate or any of their respective predecessors in
business or their dependants or persons connected with them.
12.8 Any Director who:
(a) holds any office or place of profit under the Company;
(b) holds any office or place of profit referred to in Article
12.7(a);
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(c) is involved in a contract or arrangement referred to in Article
12.7(b); or
(d) participates in an association or otherwise under Article 12.7(c),
is not by reason only of any of those facts or any interest resulting
from it or the fiduciary relationship established by it liable to
account to the Company for any remuneration or other benefits accruing
from it.
12.9 Each Director must disclose that Director's interests to the Company in
accordance with the Corporations Law and the Secretary must record any
such declaration in the minutes of the relevant meeting.
12.10 No Director may vote in respect of any contract or proposed contract or
arrangement in which the Director has a material interest (other than
an interest arising merely as a director of a related body corporate)
and if the Director does so vote then that vote may not be counted.
Directors may vote in respect of a contract for insurance of the
company or its officers against a liability incurred by officers as
officers of the Company or a related body corporate.
12.11 The restrictions contained in Article 12.10 may at any time or times be
suspended or relaxed to any extent and either prospectively or
retrospectively by resolution of the Company in general meeting.
12.12 A Director or a Director's firm may act in a professional capacity
(other than as Auditor) for the Company and a Director or a Director's
firm is entitled to remuneration for professional services as if the
relevant Director was not a Director.
12.13 A Director may, notwithstanding the Director's interest, and whether or
not the Director is entitled to vote or does vote, participate in the
execution of any instrument by or on behalf of the Company and whether
through signing or sealing the same or otherwise.
Vacation of office of Director
12.14 In addition to the circumstances in which the office of a Director
becomes vacant under the Corporations Law, the office of a Director
becomes vacant if the Director:
(a) becomes of unsound mind or a person whose person or estate is
liable to be dealt with in any way under the law relating to
mental health;
(b) resigns from the office by notice in writing to the Company; or
(c) is absent without the consent of the remaining Directors from
meetings of the Directors held during a period of six months.
PART 13 - POWERS AND DUTIES OF DIRECTORS
Directors to manage Company
13.1 Subject to the Corporations Law and to any other provision of these
Articles the business of the Company is managed by the Directors, who
may exercise all such powers of the Company as are not, by the
Corporations Law or by these Articles, required to be exercised by the
Company in general meeting.
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13.2 Without limiting the generality of Article 13.1, the Directors may
exercise all the powers of the Company to borrow or raise money, to
charge any property or business of the Company or all or any of its
uncalled capital and to issue debentures or give any other security for
a debt, liability or obligation of the Company or of any other person.
Appointment of attorney
13.3 The Directors may, by power of attorney, appoint any person or persons
to be the attorney or attorneys of the Company for such purposes, with
such powers, authorities and discretions (being powers, authorities
and discretions vested in or exercisable by the Directors), and for
such period and subject to such conditions as they think fit.
13.4 Any such power of attorney may contain such provisions for the
protection and convenience of persons dealing with the attorney as the
Directors think fit and may also authorise the attorney to delegate all
or any of the powers, authorities and discretions vested in the
attorney.
Minutes
13.5 The Directors must cause minutes to be made:
(a) of the names of the Directors present at or involved in all
general meetings and all meetings of the Directors; and
(b) of all proceedings of general meetings and of meetings of
Directors,
and cause those minutes to be entered, within one month after the
relevant meeting is held, in the minute book.
13.6 The minutes referred to in Article 13.5 must be signed by the chairman
of the meeting at which the proceedings took place or by the chairman
of the next succeeding meeting.
Execution of Company cheques etc
13.7 All cheques, promissory notes, bankers' drafts, bills of exchange and
other negotiable instruments, and all receipts for money paid to the
Company, must be signed, drawn, accepted, endorsed or otherwise
executed, as the case may be, in such manner and by such persons as the
Directors determine from time to time.
PART 14 - PROCEEDINGS OF DIRECTORS
Director's meetings
14.1 The Directors may meet together for the despatch of business and
adjourn and otherwise regulate their meetings as they think fit.
14.2 A Director may at any time, and the Secretary must on the requisition
of a Director, convene a meeting of the Directors.
Questions decided by majority
14.3 Subject to these Articles, questions arising at a meeting of Directors
are to be decided by a majority of votes of Directors involved and
voting and any such decision is for all purposes deemed a decision of
the Directors.
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14.4 An Alternate Director involved in any meeting of Directors has one vote
for each Director for which that person is an Alternate Director and if
that person is a Director also has one vote as a Director.
14.5 In the event of an equality of votes the chairman of the meeting does
not have a casting vote.
Alternate Directors
14.6 A Director may appoint a person (whether a Member of the Company or
not) to be an Alternate Director in the Director's place during such
period as the Director thinks fit.
14.7 An Alternate Director is entitled to notice of all meetings of the
Directors and, if the appointor is not involved in such a meeting, is
entitled to participate and vote in the appointor's stead.
14.8 An Alternate Director may exercise any powers that the appointor may
exercise and in the exercise of any such power the Alternate Director
is an officer of the Company and is not deemed an agent of the
appointor.
14.9 An Alternate Director is not required to hold any share in the Company.
14.10 An Alternate Director is subject in all respects to the conditions
attaching to the Directors generally except that an Alternate Director
is not entitled to any remuneration under Article 12.5 otherwise than
from the Alternate Director's appointor.
14.11 The appointment of an Alternate Director may be terminated at any time
by the appointor notwithstanding that the period of the appointment of
the Alternate Director has not expired, and terminates in any event if
the appointor vacates office as a Director.
14.12 An appointment, or the termination of an appointment, of an Alternate
Director must be effected by a notice in writing signed by the Director
who makes or made the appointment and served on the Company.
14.13 The notice of appointment or termination of appointment of an Alternate
Director may be served on the Company by leaving it at the Registered
Office or by forwarding it by facsimile transmission to the Registered
Office and in the case of a facsimile transmission, the appearance at
the end of the message of the name of the Director appointing or
terminating the appointment is sufficient evidence that the Director
has signed the notice.
Quorum for Directors' meetings
14.14 At a meeting of Directors, the number of Directors whose involvement is
necessary to constitute a quorum is 2 or such greater number as is
determined by the Directors from time to time. Notwithstanding Article
12.10, a Director who has a material interest in any contract or
proposed contract or arrangement may be counted in the quorum involved
in any Directors' meeting at which such contract, proposed contract or
arrangement is considered.
<PAGE>
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Remaining Directors may act
14.15 In the event of a vacancy or vacancies in the office of a Director
or offices of Directors, the remaining Director or Directors may
act but, if the number of remaining Directors is not sufficient to
constitute a quorum at a meeting of Directors, they may act only
for the purpose of:
(a) increasing the number of Directors to a number sufficient
to constitute such a quorum; or
(b) convening a general meeting of the Company.
Chairman of Directors
14.16 The Directors must elect one of their number as chairman of their
meetings and may determine the period for which the person elected
as chairman is to hold office. The Directors may also elect one of
their number as deputy-chairman of their meetings and may determine
the period for which the person elected as deputy-chairman is to
hold office.
14.17 When a Directors' meeting is held and:
(a) a chairman has not been elected as provided by Article 14.16;
or
(b) the chairman is not present within ten minutes after the time
appointed for the holding of the meeting or is unable or
unwilling to act,
the deputy-chairman (if any) must act as chairman of the meeting.
If there is no such person or that person is absent or unable or
unwilling to act, the Directors involved must elect one of their
number to be a chairman of the meeting.
Directors' committees
14.18 The Directors may delegate any of their powers, other than powers
required by law to be dealt with by the directors as a board, to a
committee or committees consisting of at least one of their number
and such other persons as they think fit.
14.19 A committee to which any powers have been so delegated must
exercise the powers delegated in accordance with any directions of
the Directors and a power so exercised is deemed to have been
exercised by the Directors.
14.20 The members of such a committee may elect one of their number as
chairman of their meetings.
14.21 If such a meeting is held and:
(a) a chairman has not been elected as provided by Article
14.20; or
(b) the chairman is not present within ten minutes after the time
appointed for the holding of the meeting or is unable or
unwilling to act,
the members involved may elect one of their number to be chairman
of the meeting.
14.22 A committee may meet and adjourn as it thinks proper.
<PAGE>
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14.23 Questions arising at a meeting of a committee are to be determined
by a majority of votes of the members involved and voting.
14.24 In the event of there being an equality of votes, the chairman, in
addition to the chairman's deliberative vote, has a casting vote.
Written resolution by Directors
14.25 A resolution in writing signed by all the Directors who are
eligible to vote on the resolution is as valid and effectual as if
it had been passed at a meeting of the Directors held at the time
when the written resolution was last signed by an eligible
Director. Any such resolution may consist of several documents in
like form, each signed by one or more Directors.
Directors' meetings defined
14.26 The Directors may conduct meetings without Directors being in the
physical presence of other Directors provided that all the
Directors involved in the meeting are able simultaneously to hear
each other and to participate in discussion.
14.27 Article 14.26 applies to meetings of Directors' committees as if
all members were Directors.
Validity of acts of Directors
14.28 All acts done by any meeting of the Directors or of a committee of
Directors or by any person acting as a Director are,
notwithstanding that it is afterwards discovered that there was
some defect in the appointment of a person to be a Director or a
member of the committee, or to act as a Director, or that a person
so appointed was disqualified, as valid as if the person had been
duly appointed and was qualified to be a Director or to be a member
of the committee.
Appointment of Managing and Executive Directors
14.29 The Directors may from time to time appoint one or more of their
number to the office of Managing Director or Executive Director for
such period and on such terms as they think fit, and, subject to
the terms of any agreement entered into in a particular case, may
revoke any such appointment.
Remuneration of Managing and Executive Directors
14.30 A Managing Director or Executive Director may, subject to the terms
of any agreement entered into in a particular case, receive such
remuneration (whether by way of salary, commission or participation
in profits, or partly in one way and partly in another) as the
Directors determine.
Powers of Managing and Executive Directors
14.31 The Directors may, on such terms and conditions and with such
restrictions as they think fit, confer on a Managing Director or an
Executive Director any of the powers exercisable by them.
14.32 Any powers so conferred may be concurrent with, or be to the
exclusion of, the powers of the Directors.
14.33 The Directors may at any time withdraw or vary any of the powers
so conferred on a Managing Director or an Executive Director.
<PAGE>
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PART 15--SECRETARY
Appointment of Secretary
15.1 There must be at least one Secretary of the Company who may be
appointed by the Directors for such term, at such remuneration and
on such conditions as they think fit.
Suspension and removal of Secretary
15.2 The Directors have power to suspend or remove a Secretary.
Powers and duties of Secretary
15.3 The Directors may vest in a Secretary such powers, duties and
authorities as they may from time to time determine and a
Secretary must exercise all such powers and authorities subject at
all times to the control of the Directors.
Secretary to attend meetings
15.4 A Secretary is entitled to participate in all meetings of the
Directors and all general meetings of the Company and may be heard
on any matter.
PART 16--COMMON SEAL AND OFFICIAL SEAL
Custody of common seal
16.1 The Directors must provide for the safe custody of the common seal.
Use of common seal
16.2 The common seal may be used only by the authority of the Directors,
or of a committee of the Directors authorised by the Directors to
authorise the use of the common seal, and every document to which
the common seal is affixed must be signed by a Director and be
countersigned by another Director, a Secretary or another person
appointed by the Directors to countersign that document or a class
of documents in which that document is included.
Use of official seals
16.3 The Company may have for use outside the State in place of the
common seal one or more official seals, each of which must be a
facsimile of the common seal with the addition on its face of the
name of every place where it is to be used.
16.4 The Company may by writing under its common seal empower a person
in a place either generally or in respect of a specified matter to
affix its official seal for that place to any instrument to which
the Company is a party.
PART 17--INSPECTION OF RECORDS
Inspection by Members
17.1 Except as otherwise required by the Corporations Law, the Directors
may determine whether and to what extent, and at what times and
places and under what conditions, the accounting records and other
documents of the Company or any of them will be open to the
inspection of Members other
<PAGE>
-23-
than Directors, and a Member other than a Director does not have
the right to inspect any document of the Company except as provided
by law or authorised by the Directors or by the Company in general
meeting.
PART 18--DIVIDENDS AND RESERVES
Declaration of final dividend
18.1 Subject to the rights of persons (if any) entitled to shares with
special rights to dividend, the Directors may declare a final
dividend out of profits in accordance with the Corporations Law and
may authorise the payment or crediting by the Company to the
Members of such a dividend.
Directors may authorise interim dividend
18.2 The Directors may authorise the payment or crediting by the Company
to the Members of such interim dividends as appear to the Directors
to be justified by the profits of the Company.
No interest on dividends
18.3 Interest may not be paid by the Company in respect of any dividend,
whether final or interim.
Reserves and profits carried forward
18.4 The Directors may, before declaring #14# any dividend, set aside
out of the profits of the Company such sums as they think proper as
reserves, to be applied, at the discretion of the Directors, for
any purpose for which the profits of the Company may be properly
applied.
18.5 Pending any such application, the reserves may, at the discretion
of the Directors, be used in the business of the Company or be
invested in such investments as the Directors think fit.
18.6 The Directors may carry forward so much of the profits remaining as
they consider ought not to be distributed as dividends without
transferring those profits to a reserve.
Calculation and apportionment of dividends
18.7 Subject to the rights of persons (if any) entitled to shares with
special rights to dividend and to the terms of any issue of shares
to the contrary all dividends are to be declared and paid according
to the amounts paid or credited as paid on the shares in respect of
which the dividend is paid, and are to be apportioned and paid
proportionately to the amounts paid or credited as paid on the
shares during any portion or portions of the period in respect of
which the dividend is paid.
18.8 An amount paid or credited as paid on a share in advance of a call
is not to be taken as paid or credited as paid on the share for the
purposes of Article 18.7.
Deductions from dividends
18.9 The Directors may deduct from any dividend payable to a Member all
sums of money (if any) presently payable by that Member to the
Company on account of calls or otherwise in relation to shares in
the Company.
<PAGE>
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Distribution of specific assets
18.10 The Directors, when paying or declaring a dividend, may direct payment
of a dividend wholly or partly by the distribution of specific assets,
including paid up shares in, or debentures of, any other corporation.
18.11 If a difficulty arises in regard to such a distribution, the Directors
may settle the matter as they consider expedient and fix the value
for distribution of the specific assets or any part of those assets
and may determine that cash payments will be made to any Members on
the basis of the value so fixed in order to adjust the rights of all
parties, and may vest any such specific assets in trustees as the
Directors consider expedient. If a distribution of specific assets to
a particular Member or Members is illegal or, in the Directors'
opinion, impracticable then the Directors may make a cash payment to
that Member or Members on the basis of the cash amount of the dividend
instead of the distribution of specific assets.
Payment by cheque and receipts from joint holders
18.12 Any dividend, interest or other money payable in cash in respect
of shares may be paid by cheque sent through the post directed:
(a) to the address of the holder as shown in the Register or, in the
case of joint holders, to the address shown in the Register as the
address of the joint holder first named in the Register; or
(b) to such other address as the holder or joint holders in writing
directs or direct.
18.13 Any one of two or more joint holders may give effectual receipts for
any dividends, interest or other money payable in respect of the
shares held by them as joint holders.
Unclaimed dividends
18.14 All dividends declared but unclaimed may be invested by the Directors
as they think fit for the benefit of the Company until claimed or
until required to be dealt with in accordance with any law relating to
unclaimed moneys.
PART 19 -- CAPITALISATION OF PROFITS
Capitalisation of reserves and profits
19.1 The Directors may resolve that it is desirable to capitalise any sum,
being the whole or a part of the amount for the time being standing to
the credit of any reserve account or the profit and loss account or
otherwise available for distribution to Members, and that the sum is
applied, in any of the ways mentioned in Article 19.2, for the benefit
of Members in the proportions to which those Members would have been
entitled in a distribution of that sum by way of dividend.
19.2 The ways in which a sum may be applied for the benefit of Members under
Article 19.1 are:
(a) in paying up any amounts unpaid on shares held by Members;
<PAGE>
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(b) in paying up in full unissued shares or debentures to be issued to
Members as fully paid; or
(c) partly as mentioned in paragraph (a) and partly as mentioned in
paragraph (b).
19.3 The Directors may do all things necessary to give effect to the
resolution and, in particular, to the extent necessary to adjust the
rights of the Members among themselves, may:
(a) issue fractional certificates or make cash payments in cases where
shares or debentures become issuable in fractions; and
(b) authorise any person to make, on behalf of all or any of the
Members entitled to any further shares or debentures on the
capitalisation, an agreement with the Company providing for the
issue to them, credited as fully paid up, of any such further
shares or debentures or for the payment up by the Company on their
behalf of the amounts or any part of the amounts remaining unpaid
on their existing shares by the application of their respective
proportions of the sum resolved to be capitalised, and any such
agreement is effective and binding on all the Members concerned.
PART 20 -- NOTICES
Service of notices
20.1 A notice may be given by the Company to any Member or other person
receiving notice under these Articles either by serving it on the
person personally or by sending it by post or facsimile transmission to
the person at their address as shown in the Register or the address
supplied by the person to the Company for the giving of notices to the
person.
20.2 If a notice is sent by post, service of the notice is deemed to be
effected by properly addressing, prepaying, and posting a letter
containing the notice, and the notice is deemed to have been served on
the day after the date of its posting.
20.3 If a notice is sent by facsimile transmission, service of the notice is
deemed to be effected by properly addressing the facsimile transmission
and transmitting same and to have been served on the day following its
despatch.
20.4 A notice may be given by the Company to the joint holders of a share by
giving the notice to the joint holder first named in the Register in
respect of the share.
20.5 Every person who by operation of law, transfer or other means
whatsoever becomes entitled to any share is absolutely bound by every
notice given in accordance with this Article to the person from whom
that person derives title prior to registration of that person's title
in the Register.
Persons entitled to notice of general meeting
20.6 Notice of every general meeting must be given in a manner authorised by
Article 20.1 and in accordance with the Corporations Law to:
(a) Every Member;
<PAGE>
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(b) every Director and Alternate Director; and
(c) the Auditor.
20.7 No other person is entitled to receive notices of general meetings.
PART 21 - WINDING UP
Distribution of assets
21.1 If the Company is wound up, the liquidator may, with the sanction of a
special resolution of the Company, divide among the Members in kind the
whole or any part of the property of the Company and may for that
purpose set such value as the liquidator considers fair on any
property to be so divided and may determine how the division is to be
carried out as between the Members or different classes of Members.
21.2 The liquidator may, with the sanction of a special resolution of the
Company, vest the whole or any part of any such property in trustees on
such trusts for the benefit of the contributories as the liquidator
thinks fit, but so that no Member is compelled to accept any shares
or other securities in respect of which there is any liability.
PART 22 - INDEMNITY
Indemnity of officers
22.1 Every person who is or has been a director, secretary or executive
officer of the Company and its Related Bodies Corporate may, if the
Directors so determine, be indemnified, to the maximum extent
permitted by law, out of the property of the Company against any
liabilities for costs and expenses incurred by that person:
(a) in defending any proceedings relating to that person's position
with the Company, whether civil or criminal, in which
judgment is given in that person's favour or in which that
person is acquitted or which are withdrawn before judgment; or
(b) in connection with any administrative proceedings relating
to that person's position with the Company, except proceedings
which give rise to civil or criminal proceedings against that
person in which judgment is not given in that person's favour
or in which that person is not acquitted or which arise out of
conduct involving a lack of good faith; or
(c) in connection with any application in relation to any
proceedings relating to that person's position with the
Company, whether civil or criminal, in which relief is
granted to that person under the Corporations Law by the court.
22.2 Every person who is or has been a director, secretary or executive
officer of the Company and its Related Bodies Corporate may, if the
Directors so determine, be indemnified, to the maximum extent
permitted by law, out of the property of the Company against any
liability to another person (other than the Company or its Related
Bodies Corporate) as such an officer unless the liability arises out
of conduct involving a lack of good faith.
<PAGE>
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22.3 The Company may pay a premium for a contract insuring a person who is
or has been a director, secretary or executive officer of the Company
and its Related Bodies Corporate against:
(a) any liability incurred by that person as such an officer which
does not arise out of conduct involving a wilful breach of
duty in relation to the Company or a contravention of
sections 232(5) or (6) of the Corporations Law; and
(b) any liability for costs and expenses incurred by that person in
defending proceedings relating to that person's position with
the Company, whether civil or criminal, and whatever their
outcome.
WE the several persons whose names and addresses are subscribed, being
subscribers to the Memorandum of Association, hereby agree to the
foregoing Articles of Association.
Names and addresses Signatures of
of subscribers subscribers
SHOWERING, Adrienne /s/ Adrienne Showering
14 Martin Road
Centennial Park NSW 2021
MAZZOCHI, Richard John Patrick /s/ R. Mazzochi
61 Glover Street
Mosman NSW 2088
KELL, John Russell /s/ John Kell
Unit 202
66 McLachlan Avenue
Rushcutters Bay NSW 2011
HEWIT, Colin Irvine /s/ C. Hewit
12 Rowe Street
Roseville Chase NSW 2069
LIDDEN, Louise Elizabeth /s/ L. Lidden
52A James Henty Drive
Dural NSW 2158
DATED the 5 of February 1996,
WITNESS to the above signatures:
Name: Grace But
Address: 1 Farrer Place
Sydney NSW 2000
Signature: /s/ Grace But
<PAGE>
MORTGAGE RESOURCES LIMITED
INDEX OF ARTICLES OF ASSOCIATION
ARTICLE SUBJECT PAGE
1 PRELIMINARY 1
2 SHARE CAPITAL AND VARIATION OF RIGHTS 2
3 LIEN 4
4 CALLS ON SHARES 5
5 TRANSFER OF SHARES 6
6 TRANSMISSION OF SHARES 7
7 FORFEITURE OF SHARES 8
8 CONVERSION OF SHARES INTO STOCK 9
9 ALTERATION OF CAPITAL 10
10 GENERAL MEETINGS 10
11 PROCEEDINGS AT GENERAL MEETINGS 11
12 THE DIRECTORS 15
13 POWERS AND DUTIES OF DIRECTORS 17
14 PROCEEDINGS OF DIRECTORS 18
15 SECRETARY 22
16 COMMON SEAL AND OFFICIAL SEAL 22
17 RECORDS - INSPECTION OF 22
18 DIVIDENDS AND RESERVES 23
19 PROFITS - CAPITALISATION OF 24
20 NOTICES 25
21 WINDING UP 26
22 INDEMNITY 26
<PAGE>
CONTENTS
PAGE
PART 1 -- PRELIMINARY
1.1 Definitions
1.2 Interpretation
1.5 Table A not to apply
PART 2 -- SHARE CAPITAL AND VARIATION OF RIGHTS
2.1 Directors to issue shares
2.3 Preference shares
2.4 Variation of rights
2.7 Commission and brokerage
2.10 Recognition and disclosure of interests
2.12 Right to share and option certificate
2.14 Joint holders of shares
PART 3 -- LIEN
3.1 Lien on share
3.4 Sale under lien
3.6 Transfer on sale under lien
3.9 Proceeds of sale
PART 4 -- CALLS ON SHARES
4.1 Directors to make calls
4.3 Time of call
4.4 Members' liability
4.7 Interest on default
4.8 Fixed instalments deemed calls
4.9 Differentiation between shareholders as to calls
4.10 Prepayment of calls
PART 5 -- TRANSFER OF SHARES
5.1 Forms of instrument of transfer
5.3 Registration procedure
5.5 Directors may decline to register
5.6 Branch register
PART 6 -- TRANSMISSION OF SHARES
6.1 Transmission of shares on death of holder
6.2 Right to registration on death or bankruptcy
6.6 Effect of transmission
PART 7 -- FORFEITURE OF SHARES
7.1 Notice requiring payment of call
7.3 Forfeiture for failing to comply with notice
7.7 Cancellation of forfeiture
7.8 Efect of forfeiture on former holder's liability
7.9 Evidence of forfeiture
7.10 Transfer of forfeited share
<PAGE>
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PART 8 -- CONVERSION OF SHARES INTO STOCK
8.1 Company may convert shares into stock
8.2 Transfer of stock
8.4 Stockholders' rights
8.6 Application of Articles to stock
PART 9 -- ALTERATION OF CAPITAL
9.1 Company's power to alter capital
9.2 Reduction of capital
9.3 Buy-back authorisation
PART 10 -- GENERAL MEETINGS
10.1 Annual general meeting
10.2 General meeting
10.3 Notice of general meeting
10.4 Special business of general meeting
10.5 Requisitioned meeting
10.6 Objects of requisitioned meeting
10.7 Convening requisitioned meeting
10.8 Expenses of requisitioned meeting
10.9 Postponement or cancellation of meeting
PART 11 -- PROCEEDINGS AT GENERAL MEETING
11.1 Representation of Member
11.5 Quorum
11.6 Failure to achieve quorum
11.8 Appointment and powers of chairman of general meeting
11.10 Adjournment of general meeting
11.13 Voting at general meeting
11.14 Questions decided by majority
11.15 Poll
11.18 Equality of votes
11.19 Entitlement to vote
11.20 Joint shareholders' vote
11.21 Vote of shareholder of unsound mind
11.22 Effect of unpaid call
11.23 Objection of voting qualification
11.26 Appointment of proxy
11.30 Deposit of proxy and other instruments
11.31 Validity of vote in certain circumstances
11.32 Director entitled to notice of meeting
11.33 Resolution in writing
PART 12 -- THE DIRECTORS
12.1 Number of Directors
12.2 Share qualification of Directors
12.3 Appointment of Director
12.4 Removal of Director
12.5 Renumeration of Directors
12.7 Director's interests
12.14 Vacation of office of Director
<PAGE>
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PART 13 -- POWERS AND DUTIES OF DIRECTORS
13.1 Directors to manage Company
13.3 Appointment of attorney
13.5 Minutes
13.7 Execution of Company cheques etc
PART 14 -- PROCEEDINGS OF DIRECTORS
14.1 Directors' meetings
14.3 Questions decided by majority
14.6 Alternate Directors
14.14 Quorum for Directors' meetings
14.15 Remaining Directors may act
14.16 Chairman of Directors
14.18 Directors' committees
14.25 Written resolutions by Directors
14.26 Directors' meetings defined
14.28 Validity of acts of Directors
14.29 Appointment of Managing and Executive Directors
14.30 Remuneration of Managing and Executive Director
14.31 Powers of Managing and Executive Director
PART 15 -- SECRETARY
15.1 Appointment of Secretary
15.2 Suspension and removal of Secretary
15.3 Powers and duties of Secretary
15.4 Secretary to attend meetings
PART 16 -- COMMON SEAL AND OFFICIAL SEAL
16.1 Custody of common seal
16.2 Use of common seal
16.3 Use of official seals
PART 17 -- INSPECTION OF RECORDS
17.1 Inspection by Members
PART 18 -- DIVIDENDS AND RESERVES
18.1 Declaration of final dividend
18.2 Directors may authorise interim dividend
18.3 No interest on dividends
18.4 Reserves and profits carried forward
18.7 Calculation and apportionment of dividends
18.9 Deductions from dividends
18.10 Distribution of specific assets
18.12 Payment by cheque and receipts from joint holders
18.14 Unclaimed dividends
PART 19 -- CAPITALISATION OF PROFITS
19.1 Capitalisation of reserves and profits
PART 20 -- NOTICES
20.1 Service of notices
20.6 Persons entitled to notice of general meeting
<PAGE>
-iv-
PART 21 -- WINDING UP
21.1 Distribution of assets
PART 22 -- INDEMNITY
22.1 Indemnity
<PAGE>
Master Trust Deed
- -------------------------------------------------------
ST GEORGE BANK LIMITED
(St George)
CRUSADE MANAGEMENT LIMITED
(Crusade)
and
NATIONAL MUTUAL TRUSTEES LIMITED
(NMT)
Master Trust Deed
Crusade Euro Trusts
Allen Allen & Hemsley
The Chifley Tower
2 Chifley Square
Sydney NSW 2000
Australia
Tel 61 2 9230 4000
Fax 61 2 9230 5333
(Copyright) Copyright Allen Allen & Hemsley 1999
<PAGE>
Master Trust Deed Allen Allen & Hemsley
- --------------------------------------------------------------------------------
Table of Contents
1. Definitions and interpretation 1
1.1 Definitions 1
1.2 Interpretation 19
1.3 Binding on Noteholders and Beneficiaries 19
2. Trustee of Crusade Euro Trusts 20
2.1 Appointment of Trustee 20
2.2 Trustee to act in interests of Beneficiary and
Noteholders of a Trust 20
2.3 Separate and distinct Trusts 20
2.4 Termination of Deed 20
3. The Trusts 20
3.1 Beneficial Interest in the Trusts 20
3.2 Creation of Trusts 20
3.3 Name of the Trusts 21
3.4 Duration of a Trust 21
3.5 Termination; winding up 21
3.6 Costs of winding up of a Trust 22
4. Notes 23
4.1 Acknowledgement of indebtedness 23
4.2 Legal nature of Notes 23
4.3 Terms of Notes 23
4.4 Interest and Principal Entitlement of Noteholders
and Couponholders 23
4.5 Notes not invalid if issued in breach 24
4.6 No discrimination between Noteholders 24
5. Limits on rights of noteholders and beneficiary 24
5.1 General limits 24
5.2 Interests of Beneficiary Assignable 25
5.3 Ranking of interest of Beneficiary 25
5.4 Further limit on interest of Noteholders, Couponholders
and Warehouse Facility Providers 25
5.5 No liability of Noteholders or Beneficiary 25
6. Procedure for issue of notes 25
6.1 Note Issue Direction for a Trust 25
6.2 Requirements for a Note Issue Direction 26
6.3 Supplementary terms notice 27
6.4 Amendment 28
6.5 Comply with Note Issue Direction 29
Page (i)
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Master Trust Deed Allen Allen & Hemsley
- --------------------------------------------------------------------------------
6.6 Proviso on compliance with Note Issue Direction 29
6.7 Issue of Notes and transfer of benefit of Receivables 29
6.8 Action following Note Issue 30
6.9 No liability for insufficient moneys 30
6.10 Further assurance 30
6.11 Further issues subject to Rating Agency approval 31
6.12 Issue of unrated Notes 31
6.13 No limit on Notes 31
6.14 No issue in an Australian Jurisdiction 31
7. Transfers of notes 31
7.1 No restrictions on transfer of Notes 31
7.2 Transfer 31
8. Investment of the trusts generally 31
8.1 Authorised Investments only 31
8.2 Manager selects investments 31
8.3 Investment proposals 32
8.4 Disposal or realisation of Authorised Investments 32
8.5 Temporary investment of cash and limitation on
maturity of Authorised Investments 33
8.6 Support facilities 33
8.7 Authorised trustee investments 34
8.8 Limitation of Trustee's personal liability 35
8.9 Moneys payable to Trustee 35
8.10 Segregation of Assets of a Trust 35
8.11 Assets of Trusts 35
8.12 Liabilities of a Trust 36
9. General 36
9.1 Power to acquire Assets 36
9.2 Borrowings - general 36
9.3 Borrowings - Support Facilities etc. 37
10. Origination 37
11. Acquisition or funding by warehouse trust from another trust 37
11.1 Direction by Manager 37
11.2 Required information 38
11.3 Conditions to acceptance 38
11.4 Effect of acceptance 38
11.5 Implementation 38
11.6 General direction 38
11.7 Transfers between Trusts 38
Page (ii)
<PAGE>
Master Trust Deed Allen Allen & Hemsley
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11.8 Acknowledgement by Approved Seller 40
12. Acquisition from approved seller 40
12.1 Note issue direction 40
12.2 Accession of Approved Sellers 40
12.3 Sale notices 40
12.4 Constitution and Entitlement of the Trust Back 41
12.5 Conditions Precedent to Purchase 44
12.6 Representations and warranties of Approved Seller 44
12.7 Undertakings 47
12.8 Priority 47
12.9 Title perfection event; termination; repurchase 49
12.10 Subsequent adjustment 51
12.11 Substitution of security 52
12.12 Indemnification 52
12.13 Power of Attorney 53
13. Acquisition from warehouse trust by another trust 53
13.1 Direction 53
13.2 Implementation of acquisition 54
13.3 Survival of rights and remedies 54
13.4 Acknowledgement by Approved Seller 54
14. The manager 54
14.1 Appointment of Manager 54
14.2 Complete powers of management 55
14.3 Note issuance 55
14.4 Manager to act in interests of Beneficiary and Noteholders 55
14.5 Manager to assist Trustee 55
14.6 Manager's power to delegate 55
14.7 Manager's power to appoint advisers 56
14.8 Manager's books available to Trustee 56
14.9 Manager will account to Trustee for moneys received 56
14.10 Manager to report Pool Data on Reuters 56
14.11 Manager to prepare notices etc. 56
14.12 Prior approval of circulars 56
14.13 Taxes 57
14.14 Acquisition or disposal of Assets 57
14.15 Monitor support facilities 57
14.16 Make calculations, co-ordinate and provide reports 57
14.17 Manager cannot bind Trustee unless authorised 57
14.18 Manager must perform obligations under other
Transaction Documents 57
14.19 Manager to provide personnel and systems 57
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14.20 Additional covenants by Manager 58
14.21 Benefit of Managers' Covenants 58
15. Manager's fee 58
16. Retirement, removal and replacement of manager 59
16.1 Retirement on Manager's Default 59
16.2 Trustee may remove recalcitrant Manager 59
16.3 Trustee appoints replacement Manager 59
16.4 Voluntary retirement 60
16.5 No resignation by Manager unless successor appointed 60
16.6 Trustee to act as Manager if no successor appointed 60
16.7 Release of outgoing Manager 60
16.8 New Manager to execute deed 60
16.9 Settlement and discharge 61
16.10 Delivery of books, documents, etc 61
16.11 Notice to Noteholders of new Manager 61
16.12 Waiver of Manager's Defaults 61
17. Trustee's powers 61
17.1 General power 61
17.2 Specific powers 62
17.3 Powers to be exercised with others 64
17.4 Delegation to Related Bodies Corporate 64
17.5 Trustee's power to appoint attorneys and agents 64
17.6 65
17.7 Generally unlimited discretion 65
18. Trustee's covenants 65
18.1 General 65
18.2 To act continuously as Trustee 65
18.3 To act honestly, diligently and prudently 65
18.4 No dispositions of Assets except in accordance
with Transaction Documents 66
18.5 Indemnity re acts of Trustee's delegates 66
18.6 Forward notices etc to Manager 66
18.7 Trustee will implement Manager's directions 67
18.8 Custodian 67
18.9 Bank accounts 67
18.10 Perform transaction documents 67
19. Trustee's fees and expenses 67
19.1 Trustee's fee 67
19.2 Reimbursement of expenses 67
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19.3 Segregation of Trust Expenses 67
20. Removal, retirement and replacement of trustee 67
20.1 Retirement for Trustee's Default 67
20.2 Manager may remove recalcitrant Trustee 68
20.3 Manager appoints replacement 68
20.4 Voluntary retirement 68
20.5 No resignation by Trustee unless successor appointed 68
20.6 Manager to act as Trustee if no successor appointed 69
20.7 Trusts to be vested in new Trustee 69
20.8 Release of outgoing Trustee 69
20.9 New Trustee to execute deed 69
20.10 Manager and outgoing Trustee to settle amounts payable 69
20.11 Outgoing Trustee to retain lien 70
20.12 Delivery of books, documents, etc 70
20.13 Notice to Noteholders of New Trustee 70
21. Bank accounts 70
21.1 Opening of bank accounts 70
21.2 Location of bank accounts 71
21.3 Name of bank accounts 71
21.4 Purpose of bank accounts 71
21.5 Authorised signatories 71
21.6 Manager not entitled to have access 71
21.7 Bank statements and account information 71
21.8 Deposits 71
21.9 Withdrawals 72
21.10 All transactions through central accounts 72
22. Auditor 72
22.1 Auditor must be registered 72
22.2 Appointment of Auditor 72
22.3 Removal and retirement of Auditor 72
22.4 Appointment of replacement Auditor 73
22.5 Auditor may have other offices 73
22.6 Access to working papers 73
22.7 Auditor's remuneration and costs 73
22.8 Access to information 73
23. Accounts and audit 73
23.1 Keeping accounts 73
23.2 Location and inspection of books 73
23.3 Accounts to be kept in accordance with
Approved Accounting Standards 74
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23.4 Preparation of annual Accounts 74
23.5 Annual audited Accounts 74
23.6 Inspection and copies of audited Accounts 74
23.7 Tax returns 74
23.8 Audit 74
23.9 No Responsibility for Servicer 74
24. Payments 75
24.1 Cashflow allocation methodology 75
24.2 Payments to Beneficiary 75
24.3 Subordination of Beneficiary's Entitlements 75
24.4 Insufficient moneys 75
24.5 Income or capital 76
24.6 Income of Trust 76
25. Appointment of servicer 76
26. Lead manager and note managers 77
26.1 Appointment of Lead Manager and Note Managers 77
26.2 Fees 77
27. Representations and warranties 77
27.1 General representations and warranties 77
27.2 Trustee entitled to assume accuracy of
representations and warranties 78
28. Asset register 78
29. Meetings of noteholders 78
30. Trustee's and manager's powers, liability and
indemnity generally 79
30.1 Reliance on certificates 79
30.2 Trustee's reliance on Manager, Approved Seller or Servicer 79
30.3 Manager's reliance on Trustee, Approved Seller or Servicer 79
30.4 Compliance with laws 80
30.5 Reliance on experts 80
30.6 Oversights of others 80
30.7 Powers, authorities and discretions 81
30.8 Impossibility or impracticability 81
30.9 Duties and charges 81
30.10 Legal and other proceedings 81
30.11 No liability except for negligence etc. 82
30.12 Further limitations on Trustee's liability 82
30.13 Liability of Trustee limited to its right of indemnity 83
30.14 Trustee's right of indemnity - general 84
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30.15 Trustee's right of indemnity - Consumer Credit Legislation 85
30.16 Right of indemnity 86
30.17 Conflicts 86
30.18 Trustee not obliged to investigate the Manager etc 86
30.19 Independent investigation of credit 87
30.20 Information 87
30.21 Entering into Transaction Documents 87
30.22 Reliance by Trustee 87
30.23 Investigation by Trustee 87
31. Notices 88
31.1 Notices generally 88
31.2 Notices to Noteholders 88
31.3 Notices to Designated Rating Agencies 88
32. Payments generally 89
32.1 Payments to Noteholders 89
32.2 Trustee to arrange payments 89
32.3 Payment to be made on Business Day 89
32.4 Payment good discharge 89
32.5 Valid receipts 89
32.6 Taxation 89
33. Amendment 90
33.1 Amendment without consent 90
33.2 Amendment with consent 90
33.3 Copy of amendments to Noteholders 90
33.4 Copy of amendments in advance to Designated
Rating Agencies 90
34. Confidentiality 91
34.1 Confidential information 91
34.2 Exceptions 91
34.3 No merger 91
35. Miscellaneous 91
35.1 Data Base to be retained as confidential 91
35.2 Certificates by Manager 92
35.3 Waivers, remedies cumulative 92
35.4 Retention of documents 92
35.5 Governing law 92
35.6 Severability of provisions 92
35.7 Counterparts 92
35.8 Inspection of this Deed 92
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SCHEDULE 1 1
NOTE ISSUE DIRECTION 1
Annexure "A" 1
Receivables 1
SCHEDULE 2 1
NOTICE OF CREATION OF TRUST 1
SCHEDULE 3 1
VERTIFICATION CERTIFICATE 1
SCHEDULE 4 1
WAREHOUSE TRUST DIRECTION 1
Annexure "A" 1
Receivables 1
Annexure "B" 1
SUPPLEMENTARY TERMS NOTICE 1
Annexure A 1
SALE NOTICE 1
Annexure B 1
SELLER ACCESSION CERTIFICATE 1
Annexure C 1
SUPPLEMENTARY TERMS NOTICE 1
SCHEDULE 1
ANNEXURE D 1
SUPPLEMENTARY TERMS NOTICE CHECKLIST 1
Page (viii)
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Date
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Parties
- -----------
1. ST.GEORGE BANK LIMITED (ACN 055 513 070) of 4-16 Montgomery Street,
Kogarah, New South Wales 2217 (St.George);
2. CRUSADE MANAGEMENT LIMITED (ACN 072 715 916) of 4-6 Montgomery
Street, Kogarah, New South Wales 2217 (Crusade); and
3. NATIONALMUTUAL TRUSTEES LIMITED (ACN 004 029 841) incorporated in
Victoria of Level 2, 65 Southbank Boulevard, South Melbourne,
Victoria 3205 (NMT).
Recitals
- -----------
A It is intended by this Deed to establish a series of separate
trusts, being Trusts (collectively the Crusade Euro Trusts) (or such
other name as the Trustee and the Manager may from time to time
agree).
B The Trustee has agreed to act as the trustee, the Manager as the
manager, and the Servicer as the servicer, of the Trusts.
C The Trustee may enter into Support Facilities and a Security Trust
Deed in connection with the issue of Notes by the Trustee as the
trustee of a Trust
D Notes issued by the Trustee will not be deposit or other liabilities
of St.George, its Associates, the Trustee or any Note Trustee, nor
do St.George, its Associates, or the Trustee or any Note Trustee
stand by the capital value and/or performance of the Notes, or any
Assets of any Trust, except as expressly provided in the Transaction
Documents for that Trust.
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IT IS AGREED as follows.
PART A. DEFINITIONS AND INTERPRETATION
1. Definitions and interpretation
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1.1 Definitions
The following definitions apply unless the context requires otherwise.
Accounts means accounts as defined in section 9 of the Corporations Law.
Agency Agreement in relation to a Trust means any agreement specified as
an agency agreement in the Supplementary Terms Notice for that Trust.
Approved Accounting Standards means:
(a) the accounting standards from time to time approved under the
Corporations Law;
(b) the requirements of the Corporations Law in relation to the
preparation and content of accounts; and
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(c) generally accepted accounting principles and practices in
Australia consistently applied, except where inconsistent with
the standards or requirements referred to in paragraphs (a) or
(b).
Approved Bank means:
(a) a Bank (other than St.George) which has a short-term rating of at
least A-1+, (S&P), P-1 (Moody's) and F1+ (Fitch IBCA);
(b) a Bank (including St.George) which has a short-term rating of at
least A-1 and P-1 (Moody's) and F1+ (Fitch IBCA) provided that
the total value of deposits held by the Bank in relation to a
Trust does not exceed twenty per centum (20%) of the sum of the
aggregate of the Stated Amounts; or
(c) St.George, provided that:
(i) St.George has a short-term rating at least A-1+ (S&P), P-1
(Moody's) and F1+ (Fitch IBCA); or
(ii) if St.George does not have a short-term rating of at least
A-1+ (S&P), P-1 (Moody's) and F1+ (Fitch IBCA), the Rating
Agencies have confirmed that the holding of a bank account
by the Trustee with St.George for the purpose of clause 21
of this Deed will not result in a downgrading of the
credit rating assigned or to be assigned to any Note.
Approved Seller means:
(a) other than in clauses 12.1, 12.2, 12.3, 12.5(b), 12.6, 12.7,
12.11, 12.12, 30 and 34, the Trustee in its capacity as trustee
of any Warehouse Trust; or
(b) other than in clauses 12.2, 12.5(b), 12.6, 12.7, 12.11, 12.12, 30
and 34, the Trustee in its capacity as trustee of any other Trust
that is not a Warehouse Trust; or
(c) any person which the Manager notifies the Trustee is an Approved
Seller for the purposes of this Deed and who has executed a
Seller Accession Certificate or who is expressed to be an
Approved Seller under a Supplementary Terms Notice, and who is
acceptable to the Trustee (that acceptance not to be unreasonably
withheld),
and where used in the context of a Trust means the Approved Seller in
relation to that Trust.
Assets in relation to a Trust means the assets forming that Trust from
time to time, including the following to the extent to which they relate
to the Trust:
(a) Authorised Investments;
(b) amounts owing to the Trustee by debtors (excluding any bad or
doubtful debts);
(c) income accrued from Loans, Receivables and Authorised
Investments;
(d) any prepayment of expenditure;
(e) any Loans, Mortgages, other Receivables, Receivable Securities
and other Related Securities and other rights assigned to the
Trustee in its capacity as the Trustee of that Trust on and
subject to the Transaction Documents;
(f) the interests of the Trustee in any Support Facility;
(g) the benefit of all representations, warranties and undertakings
made by any party in favour of the Trustee under the Transaction
Documents; and
(h) the amount of any compensation found to be payable by the Trustee
(or admitted by the Trustee to be payable) to restore the assets
of that Trust because of the fraud, negligence or Default of the
Trustee.
(i) other property or asset as agreed in writing between the Manager
and the Trustee.
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Associate in relation to a person means a person that is taken to be an
associate of the first mentioned person by virtue of Division 2 of Part
1.2 of the Corporations Law.
Auditor in relation to a Trust means the auditor of that Trust appointed
from time to time under clause 23.
Australian Jurisdiction means a State or Territory of the Commonwealth
of Australia and the Commonwealth of Australia.
Authorisation includes:
(a) any consent, authorisation, registration, filing, lodgement,
agreement, notarisation, certificate, permission, licence,
approval, authority or exemption from, by or with a Government
Agency; or
(b) in relation to anything which will be fully or partly prohibited
or restricted by law if a Government Agency intervenes or acts in
any way within a specified period after lodgement, filing,
registration or notification, the expiry of that period without
intervention or action.
Authorised Investments in respect of a Trust means any investments which
at their date of acquisition are of the following types:
(a) Loans secured by Mortgages, those Mortgages, other Related
Securities and Receivable Rights;
(b) cash on hand or at an Approved Bank;
(c) other Receivables, Receivable Securities and Receivable Rights
approved by the Manager and acceptable to the Trustee (that
acceptance not to be unreasonably withheld);
(d) bonds, debentures, stock or treasury bills of any government of
an Australian Jurisdiction;
(e) debentures or stock of any public statutory body constituted
under the law of any Australian Jurisdiction where the repayment
of the principal secured and the interest payable thereon is
guaranteed by the Australian Jurisdiction;
(f) notes or other securities of any government of an Australian
Jurisdiction;
(g) deposits with, or the acquisition of certificates of deposit
(whether negotiable, convertible or otherwise), issued by, an
Approved Bank;
(h) bills of exchange accepted or endorsed by an Approved Bank which
at the time of acquisition have a remaining term to maturity of
not more than 200 days;
(i) securities which are "mortgage-backed securities", within the
meaning of both section 84FA(l) of the Stamp Duties Act, 1920 of
New South Wales and the Trustee Act, 1958 of Victoria; and
(j) any other assets of a class of assets that are both:
(1) prescribed for the purposes of sub-paragraph (iv) of the
definition of a "pool of mortgages" in section 84FA(1) of
the Stamp Duties Act, 1920 of New South Wales, or are
otherwise included within that definition of "pool of
mortgages"; and
(2) declared by order of the Governor in Council of Victoria
and published in the Victorian Government Gazette to be
assets for purposes of Subdivision (17A) of the Stamps
Act, 1958 of Victoria or are otherwise included within
sub-paragraph (b)(ii) of the definition of "pool of
mortgages" in section 137NA of that Act.
(In paragraphs (b)-(i) inclusive of this definition, expressions shall
be construed and, if necessary read down, so that the Notes in relation
to any Trust constitute "mortgage-backed securities" for the purposes of
both the Stamp Duties Act, 1920 of New South Wales and the Stamps Act,
1958 of Victoria.)
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Authorised Signatory in relation to any corporation means any person
from time to time certified in writing by two directors of the
corporation (or, in the case of the Trustee, by any divisional manager)
to be an authorised signatory of the corporation, whose signature
appears on such certificate and which signature is certified thereon by
such directors (or such divisional manager) to be that person's
signature.
Authorised Trustee Investment means an investment in which a trustee is
for the time being authorised to invest trust funds under the laws of an
Australian Jurisdiction.
Bank means:
(a) a corporation authorised under the Banking Act, 1959 to carry on
general banking business in Australia or a corporation formed or
incorporated under an Act of the Parliament of an Australian
Jurisdiction to carry on the general business of banking; or
(b) where any Transaction Document requires money to be deposited by
the Trustee outside Australia, a corporation authorised by the
banking legislation of the relevant jurisdiction to carry on the
general business of banking in that jurisdiction.
Beneficiary means, in relation to a Trust, the person nominated in the
Notice of Creation of Trust for that Trust as the beneficiary of that
Trust (including, where relevant, the holder of any unit representing an
interest as beneficiary of the Trust).
Borrowing means, in relation to a Trust, any Financial Indebtedness of
the Trustee in its capacity as trustee of the Trust but does not include
any Financial Indebtedness of the Trustee in any other capacity or in
respect of any other Trust. Borrow has an equivalent meaning.
Business Day means any day, other than a Saturday, Sunday or public
holiday in New South Wales, on which Banks are open for business in
Sydney (and, where so specified in this Deed, London).
Calculation Agent means the person appointed as calculation agent under
the Agency Agreement from time to time.
Cedel Bank means Cedel Bank, societe anonyme.
Certificate of Title means, in relation to a Mortgaged Property, the
certificate of title (or, if one is not issued, the original
registration confirmation statement or similar document) (if any) to
that Mortgaged Property issued under any relevant legislation (and, in
the case of Land, issued under any Real Property Legislation).
Class in relation to Notes issued, or to be issued, in respect of a
Trust means Notes having as amongst themselves the same rights or
restrictions with regard to the payment of interest, the repayment of
principal, voting or otherwise.
Closing Date means, in respect of a Trust, the date specified as the
Closing Date in the Supplementary Terms Notice or Sale Notice for that
Trust.
Collection Account means the account established and maintained under
clause 21 or, in relation to a Trust, any other account specified as the
Collection Account in the Supplementary Terms Notice for that Trust.
Collections in respect of a Trust has the meaning given in the
Supplementary Terms Notice for that Trust.
Competitor means, at any time, any Bank or financial institution that
carries on any business in any of the following areas:
(a) deposit-taking services;
(b) the provision of housing loans;
(c) treasury services; and
(d) securitisation services,
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which area is the same as, or substantially similar to or in competition
with, any business conducted by St.George or any of its Related Bodies
Corporate at that time but does not include a company or any of its
Related Bodies Corporate with which the Trustee or any of its Related
Bodies Corporate is at the date of this Deed negotiating a merger.
Conditions in relation to any Notes issued in respect of a Trust has the
same meaning given in the Supplementary Terms Notice applicable to those
Notes for that Trust.
Consumer Credit Legislation means any legislation relating to consumer
credit including:
(a) the Credit Act of any Australian Jurisdiction;
(b) the Consumer Credit Code (NSW) 1996; and
(c) any other equivalent legislation of any Australian Jurisdiction.
Coupon in relation to a Note issued in respect of a Trust has the
meaning specified in the Supplementary Terms Notice applicable to that
Note for that Trust.
Couponholder in relation to a Coupon issued in respect of a Trust at any
time means the person who is the bearer of that Coupon at that time for
that Trust.
Creditor in relation to a Trust means a creditor of the Trustee
(including the Noteholders, Couponholders, Security Trustee, the
Approved Seller, the Trustee in its capacity as trustee of another
Trust, the Servicer, the Support Facility Providers, the Note Managers
and the Manager in relation to the Trust) in its capacity as trustee of
the Trust.
Custodian means St.George Custodial Pty Limited in its capacity as the
custodian of the Trusts or any substitute person appointed in its place
under the terms of the Custodian Agreement.
Custodian Agreement means an agreement in respect of a Trust so entitled
between the Trustee, the Manager and the Custodian.
Cut-Off Date means, in relation to a Portfolio of Receivables, the date
specified as the Cut-off Date for the Receivables relating to that
Portfolio of Receivables in the relevant Note Issue Direction or
Supplementary Terms Notice.
Data Base in relation to the Trustee, the Manager, the Servicer and the
Custodian means all information, data and records collected, held or
stored in any way or in any medium (including computer retention and
storage) by or for the Trustee, the Manager, the Servicer and the
Custodian respectively relating to and including any Loan, Mortgage,
Receivable, Receivable Security or Related Securities which are given or
transferred to the Trustee under or as contemplated by this Deed.
Default means a failure by the Trustee to comply with:
(i) an obligation which is expressly imposed on it by the terms of a
Transaction Document; or
(ii) 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 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 the Default of the Trustee if the Trustee does not comply with an
obligation or direction where the Note Trustee or the Security Trustee
directs the Trustee not to comply with that obligation or direction.
Designated Rating in relation to a Support Facility provided to, or the
benefit of which is held by, the Trustee in its capacity as trustee of a
Rated Trust, means a credit rating of the party providing the Support
Facility as specified or approved by each Designated Rating Agency for
that Rated Trust.
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Designated Rating Agency in relation to a Trust, or Notes issued or to
be issued by the Trustee of a Trust, means each Rating Agency which has
been requested by the Manager to rate such Notes in relation to that
Trust.
Determination Date in respect of each Trust has the meaning given in the
Supplementary Terms Notice for that Trust.
Distributable Income has the meaning given in clause 24.6.
Eligible Receivable means a Receivable or Receivable Security (as the
case may be) which meets the Eligibility Criteria for that Receivable.
Eligibility Criteria in respect of a Receivable or a Receivable Security
and a Trust has the meaning given in the Supplementary Terms Notice for
that Trust.
Enhancement means a Mortgage Insurance Policy, a Stand-by Arrangement, a
Guaranteed Investment Contract and any other policy of insurance,
security, support, rights or benefits in support of or substitution for
a Receivable or Receivable Security or an Authorised Investment or the
income or benefit arising thereon.
Euroclear means Morgan Guaranty Trust Company of New York (Brussels
office) as operator of the Euroclear System.
Expenses in relation to a Trust means all costs, charges and expenses
incurred by the Trustee or the Manager in the administration and
operation of the Trust under the Transaction Documents for that Trust
including the following to the extent to which they relate to the Trust:
(a) any amounts payable or incurred by the Trustee or the Manager in
the acquisition, maintenance, review, administration or disposal
of an Asset;
(b) any amounts payable or incurred by the Trustee or the Manager
under any Support Facility or in reviewing documentation for any
proposed Support Facility;
(c) any amounts payable under or incurred by the Trustee or the
Manager under any Security Trust Deed or Custodian Agreement;
(d) any fees and other amounts payable to the Manager under this
Deed;
(e) any fees and other amounts payable to the Trustee under this
Deed;
(f) any fees and other amounts payable to a Servicer under this Deed
or a Servicing Agreement;
(g) any fees and other amounts payable to a Custodian under this Deed
or a Custodian Agreement;
(h) any fees and expenses payable to the Auditor;
(i) any fees and expenses payable by the Trustee (including in its
personal capacity for which it has the right of indemnity under
this Deed) to the Designated Rating Agency as agreed between the
Trustee and the Manager from time to time;
(j) any costs of postage and printing of all cheques, accounts,
statements, notices, and other documents required to be posted to
the Beneficiaries or Noteholders of the Trust under this Deed,
and any costs of convening and holding meetings of Noteholders
and of implementing any resolutions;
(k) the cost and expenses of registering caveats or Transfers of any
Receivable Security or assignment of Receivables;
(l) any costs of any valuation of the Trust or of any Asset of the
Trust;
(m) any expenses incurred in connection with Trust Accounts of the
Trustee in relation to the Trust and bank fees (including but not
limited to account keeping fees) and other bank or government
charges (including but not limited to bank account debits, tax
and charges in respect of financial institutions duty) incurred
in connection with the keeping of, or
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the transaction of business through, the internal accounts and
bank accounts of the Trustee and their management;
(n) any fees, charges and amounts which are paid or payable to any
person appointed or engaged by the Trustee or the Manager
pursuant to this Deed to the extent that the fees, charges and
amounts would be payable or reimbursable to the Trustee or the
Manager under any other provision of this definition or under any
other provision of this Deed if the services performed by the
person so appointed or engaged had been carried out directly by
the Trustee or the Manager and to the extent that those fees,
charges and amounts are reasonable in amount and properly
incurred;
(o) the amount of any indemnity from the Trust claimed by the Trustee
or the Manager under clause 30.10;
(p) all legal costs and disbursements (calculated in the same manner
under clause 30.10) incurred by the Manager and the Trustee in
relation to settling and executing any Transaction Document and
any subsequent consent, agreement, approval, waiver or amendment
thereto or in relation to any matter of concern to the Manager or
the Trustee in relation to a Transaction Document or the relevant
Trust;
(q) any legal costs and disbursements (on a full indemnity basis)
incurred by the Trustee in connection with court proceedings
brought against it under this Deed (except where the Trustee is
found to have acted negligently, fraudulently, or in Default);
(r) any costs incurred by the Trustee in, or in connection with, the
retirement or removal of the Servicer or the Custodian and the
appointment of any substitute to the extent those costs are
properly incurred;
(s) any amount specified as an Expense for the purposes of this Deed
in the Supplementary Terms Notice for a Trust;
(t) subject to clauses 16 and 20, any costs incurred by the Manager
or the Trustee in, or in connection with, the retirement or
removal of the Trustee or the Manager respectively under this
Deed and the appointment of any person in substitution to the
extent that those costs are properly and reasonably incurred;
(u) any fees and expenses payable to any Stock Exchange, Euroclear or
Cedel Bank from time to time by the Trustee;
(v) any fees, charges and expenses incurred by the Trustee under
clause 14.7, 17.2(d) or 26.2 of this Deed; and
(w) any other costs, charges, expenses, fees, liabilities, Taxes
(including stamp duty payable on cheques), imposts and other
outgoings properly incurred by the Trustee or the Manager in
exercising their respective powers, duties and obligations under
this Deed or any other Transaction Document (other than the
Notes),
provided that:
(v) general overhead costs and expenses of the Trustee and the
Manager (including rents and any amounts payable by the Trustee
or the Manager (as applicable) to its employees in connection
with their employment) incurred directly or indirectly in
connection with the business of the Trustee or the Manager (as
applicable) or in the exercise of its rights, powers and
discretions or the performance of its duties and obligations in
relation to the Trust; and
(w) any fees payable by the Manager not described above,
shall not constitute Expenses.
Expiry Time means, in relation to a Sale Notice, the time specified as
the expiry time in that Sale Notice.
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Extraordinary Resolution in relation to the Noteholders of a Trust or
any Class, subject to the provisions of any Security Trust Deed in
respect of the relevant Trust has the meaning given in the Note Trust
Deed.
Fair Market Value means:
(i) in relation to a Purchased Receivable and the related
Receivable Rights, the fair market value of that Purchased
Receivable and those Receivable Rights agreed between the
Trustee (acting on appropriate expert advice) and the
Approved Seller, or in the absence of such agreement as
determined by the Auditor; or
(ii) in relation to any other Receivable and the related
Receivable Rights, the fair market value of that
Receivable and those Receivable Rights determined by the
Manager (acting on appropriate expert advice, including
where relevant the Auditor),
in all cases as reflecting the status of the Receivable as a performing
or non-performing Receivable (as determined by the relevant Servicer)
and any benefit in respect of that Receivable which the intended
purchaser will have under any relevant Support Facility. The Trustee
shall be entitled to assume that a purchase price offered to it for a
Purchased Receivable and the related Receivable Rights which is equal to
or exceeds the relevant Unpaid Balance is equal to or exceeds the Fair
Market Value of that Purchased Receivable and the related Receivable
Rights.
Final Maturity Date in relation to a Note means the date specified in
the corresponding Supplementary Terms to be the last, or where there is
only one specified, the Principal Amortisation Date of the Note.
Financial Indebtedness means any indebtedness, present or future, actual
or contingent in respect of moneys borrowed or raised or any financial
accommodation whatever. It includes indebtedness under or in respect of
a negotiable or other financial instrument (including any Note),
guarantee, interest, gold or currency exchange, hedge or arrangement of
any kind, redeemable share, share the subject of a guarantee,
discounting arrangement, finance or capital lease, hire purchase,
deferred purchase price (for more than 90 days) of an asset or service
or an obligation to deliver goods or other property or provide services
paid for in advance by a financier or in relation to another financing
transaction.
Financial Year in relation to each Trust means:
(a) each consecutive period of 12 months from 1 July in each year
until 30 June in the following year; or
(b) any other consecutive period of 12 months as may at any time be
substituted for the consecutive period referred to in paragraph
(a) of this definition by determination of the Manager with the
approval of the Trustee,
and includes,
(c) any consecutive period greater or less than 12 months that may
arise as a result of the adoption of any substituted period under
paragraph (b) of this definition;
(d) the period commencing on the date of its creation under this Deed
to the next succeeding 30 June, or, if a substituted period is in
force under this definition in respect of the Trust at its
commencement, then to the immediately succeeding date of
termination of that substituted period; and
(e) the period to the Termination Date of the Trust from the
immediately preceding 1 July or, if a substituted period is in
force under this definition at the Termination Date then from the
immediately preceding date of commencement of that substituted
period.
Fitch IBCA means Fitch IBCA (Australia) Pty Limited (ACN 081 339 184).
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Future Agreement means the agreement formed between an Approved Seller
and the Trustee if the Trustee accepts a Sale Notice given under clause
12.
Government Agency means:
(a) any body politic or government in any jurisdiction, whether
federal, state, territorial or local;
(b) any minister, department, office, commission, instrumentality,
agency, board, authority or organisation of any government or in
which any government is interested;
(c) any corporation owned or controlled by any government.
Guaranteed Investment Contract means a guaranteed investment contract
(expressed in dollars) of a type approved by the Chief Commissioner of
Stamp Duties in New South Wales under paragraph (d) of Regulation 4 of
the Stamp Duties (Mortgage-Backed Securities) Regulation, 1986 of New
South Wales.
Hedge Agreement means, in relation to a Trust, any futures contract,
option agreement, hedge, swap, cap, forward rate agreement or other
arrangement in relation to interest rates and/or currency exchanges made
by the Trustee (whether alone or with the Manager or any other person)
with respect to the Receivables in, or Notes issued in relation to, that
Trust in accordance with this deed, as specified in the relevant
Supplementary Terms Notice.
Income Distribution Date in relation to an Income Distribution Period
for a Trust means the date specified in the Supplementary Terms, falling
on the last day of the first calendar month after the end of that Income
Distribution Period (or such other date specified by the Manager in
writing to the Trustee prior to the first issue of Notes by the Trustee
in its capacity as trustee of the Trust).
Income Distribution Period in relation to a Trust means each Financial
Year of the Trust or any series of periods during the Financial Year of
a Trust specified in the Supplementary Terms, provided that the first of
such periods in a Financial Year commences on (and includes) the first
day of the Financial Year and the last of such periods in a Financial
Year ends on (and includes) the last day of the Financial Year.
Information Memorandum means, in relation to the issue of any Notes, any
publicity documents publicly circulated to prospective investors in
relation to that issue entitled "Information Memorandum", "Offering
Circular" or a similar name, but does not include any term sheet or
general correspondence in relation to the placement of any Notes.
Initial Invested Amount in relation to a Note has the meaning given in
the relevant Supplementary Terms Notice for that Note.
Insolvency Event in relation to the Trustee (in its personal capacity or
as trustee of a Trust), the Manager, the Custodian, an Approved Seller
or the Servicer (each a relevant corporation) means the happening of any
of the following events:
(a) (winding up or ceases to carry on business) except for the
purpose of a solvent reconstruction or amalgamation:
(i) an application or an order is made, proceedings are
commenced, a resolution is passed or proposed in a notice
of meeting or an application to a court or other steps
(other than frivolous or vexatious applications,
proceedings, notices and steps) are taken for:
(A) the winding up, dissolution or administration of
the relevant corporation; or
(B) the relevant corporation entering into an
arrangement, compromise or composition with or
assignment for the benefit of its creditors or a
class of them,
and is not dismissed, ceased or withdrawn within 15
Business Days; or
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(ii) the relevant corporation ceases, suspends or threatens to
cease or suspend the conduct of all or substantially all
of its business or disposes of or threatens to dispose of
substantially all of its assets; or
(b) (unable to pay debts) the relevant corporation is, or under
applicable legislation is taken to be, unable to pay its debts
(other than as the result of a failure to pay a debt or claim the
subject of a good faith dispute) or stops or suspends or
threatens to stop or suspend payment of all or a class of its
debts (except, in the case of the Trustee, where this occurs only
in relation to another trust of which it is the trustee);
(c) (receivership): a receiver, receiver and manager or administrator
is appointed (by the relevant corporation or by any other person)
to all or substantially all of the assets and undertaking of the
relevant corporation or any part thereof (except, in the case of
the Trustee where this occurs in relation to another trust of
which it is the trustee);
(d) (analogous events) anything analogous to an event referred to in
paragraphs (a) to (c) (inclusive) or having substantially similar
effect occurs with respect to the relevant corporation.
Insurance Policy means:
(a) in relation to a Loan, any fire and/or risks insurance policy or
other general insurance policy in force in respect of that Loan
or the related Mortgaged Property; or
(b) in relation to any other Receivable, any insurance policy taken
out with respect to the assets from which that Receivable is
derived.
Insurance Proceeds means any payments received by the designated
beneficiary of an Insurance Policy.
Interest Entitlement in relation to a Note and an Interest Payment Date
means the amount of interest accrued in respect of that Note and due for
payment on that Interest Payment Date, determined in accordance with the
corresponding Supplementary Terms.
Interest Payment Date in relation to a Note means each date for the
payment of interest under the Note as specified in the corresponding
Supplementary Terms Notice.
Invested Amount in relation to a Note has the meaning given in the
relevant Supplementary Terms Notice for that Note.
Investment Direction means:
(a) a Note Issue Direction; or
(b) a Warehouse Trust Direction.
Land means:
(a) any estate or interest whether at law or in equity in freehold or
leasehold land, including all improvements on such land; and
(b) any parcel and any lot, common property and land comprising a
parcel within the meaning of the Strata Titles Act, 1973 (New
South Wales) or the Community Land Development Act, 1989 (New
South Wales) or any equivalent legislation in any other
Australian Jurisdiction.
Lead Manager means, in relation to any issue of Notes, any person who is
appointed as lead manager, co-lead manager, arranger, co-arranger or any
similar participant in relation to that issue.
Liquidity Facility Agreement in relation to a Trust means any agreement
specified as a Liquidity Facility Agreement in the Supplementary Terms
Notice for that Trust.
Liquidity Facility Provider means in relation to a Liquidity Facility
Agreement the bank or financial institution which provides that facility
or if it is a syndicated facility the bank or financial institution
which is the agent under that facility.
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Loan means a loan or other form of financial accommodation purchased or
made by the Trustee but does not include a Note.
Manager means Crusade, or, in the event of the retirement or removal of
Crusade as Manager, the substitute person appointed in its place under
this Deed, and includes the Trustee when acting as the Manager in
accordance with this Deed.
Manager's Default means:
(a) in relation to a Warehouse Trust, the happening of any events
specified in clauses 16.1(a) and 16.1(b) (but in the case of an
event under clause 16.1(a), only to the extent that the relevant
Warehouse Facility Provider has not waived or excused that
failure to pay); and
(b) in relation to any other Trust, means the happening of any of the
events specified in clause 16.1.
Manager's Fee in relation to a Trust means the Manager's fee in relation
to that Trust specified in clause 15.
Manager's Report means, in relation to a Trust, the report to be
provided by the Manager to the Trustee and each Rating Agency under
clause 14.16 which is in the format and includes the information agreed
by the Manager and the Trustee or set out in the relevant Supplementary
Terms Notice.
Material Adverse Effect means an event which will materially and
adversely affect the amount of any payment to be made to any Noteholder
or will materially and adversely affect the timing of such payment.
Moody's means Moody's Investor Service Inc or Moody's Investor Service
Pty. Limited and their respective successors and assigns.
Mortgage means a registered (or pending registration, registrable)
mortgage over Land, situated in any Australian Jurisdiction, granted to
or originated by the Trustee under this Deed or transferred from an
Approved Seller to the Trustee and securing the repayment of the
principal amount of a Loan and all other moneys payable under the Loan.
Mortgaged Property means:
(a) in relation to a Mortgage, the Land the subject of that Mortgage;
and
(b) in relation to any other Receivable Security, the property
subject to that Receivable Security.
Mortgage Insurance Policy means a policy of insurance under which a
Mortgage Insurer insures the Trustee in its capacity as trustee of a
Trust against loss under a Receivable which is an Asset of that Trust.
Mortgage Insurance Proceeds means any amounts received by the Trustee
(or a Servicer on its behalf) under any Mortgage Insurance Policy.
Mortgage Insurer means any mortgage insurer specified, in relation to a
Trust, as a Mortgage Insurer in the Supplementary Terms Notice for that
Trust.
Mortgagor means the security provider under a Receivable Security.
Note means a debt security of the nature referred to in clause 4.2
issued by the Trustee in its capacity as trustee of a Trust.
Note Cut-Off Date means the date specified in the Note Issue Direction
for a proposed issue of Notes.
Noteholders means, in relation to a Trust, the several persons who are
for the time being holders of the Notes with respect to that Trust
(being, if and to the extent that those Notes are represented by
definitive Notes, the bearers of those Notes and, if and to the extent
those Notes are represented by a global Note or Notes, the persons for
the time being shown in the records of Euroclear and Cedel Bank (other
than Cedel Bank if Cedel Bank is an account holder of Euroclear and
other than Euroclear if Euroclear is an account holder of Cedel Bank) as
being holders of those Notes) in which regard any certificate or other
document issued by Cedel Bank or Euroclear as to the Invested Amount of
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those Notes standing to the account of any person shall be conclusive
and binding on those persons for all purposes (but not for the purposes
of payments in respect of those Notes, the right to which shall be
vested, as against the Trustee and the Note Trustee in respect of the
relevant Trust, solely in the bearer of those global Notes in accordance
with and subject to their respective terms and the provisions of this
Deed)). The words holder and holders shall (where appropriate) be
construed accordingly.
Note Issue Date in relation to a Trust and Notes means the date on which
the Notes are issued by the Trustee in its capacity as trustee of that
Trust and, in the case of a proposed issue of Notes, means the date for
that proposed issue referred to in the corresponding Note Issue
Direction.
Note Issue Direction means the direction given by the Manager to the
Trustee substantially in the form of Schedule 1 or in such other form as
may from time to time be agreed between the Trustee and the Manager in
respect of a proposed issue of Notes in accordance with clause 6.1.
Note Manager means, in relation to a Trust, any person for the time
being appointed as note manager under the Subscription Agreement for
that Trust including the Lead Manager.
Note Trust Deed in relation to a Trust means any deed specified as such
in the Supplementary Terms Notice for that Trust.
Note Trustee in relation to a Trust means any person specified as such
in the Supplementary Terms Notice for that Trust.
Notice of Creation of a Trust means a notice in the form of Schedule 2
or in such other form as may from time to time be agreed between the
Trustee and the Manager.
Obligor means, in relation to a Receivable, the person who is obliged to
make payments with respect to that Receivable, whether as a principal or
secondary obligation (and in the case of a Loan means the person who is
the account debtor under that Loan), and includes where the context
requires, any other person obligated to make payments with respect to
that Receivable (including any guarantor).
Other Secured Liability means a loan, financial obligation or other
liability that is at any time secured by a Purchased Receivable
Security, other than a Purchased Receivable and any amounts payable
under any relevant Receivable Agreement or otherwise payable in
connection with a Purchased Receivable.
Paying Agent means, in relation to a Trust, any person for the time
being appointed as paying agent under the Agency Agreement for that
Trust and includes the Principal Paying Agent.
Payment Date means an Interest Payment Date or a Principal Amortisation
Date.
Portfolio of Receivables means the Receivables specified by the Manager
in the relevant Investment Direction as a class or type of Receivable
that has substantially the same terms and conditions.
Principal Amortisation Date in relation to a Note means each date for
the repayment of part or all of the outstanding principal in relation to
the Note as specified in the corresponding Supplementary Terms.
Principal Entitlement in relation to a Note and a Principal Amortisation
Date means the amount of principal in respect of the Note due to be
repaid on that Principal Amortisation Date, determined in accordance
with the corresponding Supplementary Terms.
Principal Paying Agent means, in relation to a Trust, any person
appointed as such under the Agency Agreement for that Trust.
Privacy Act means the Privacy Act 1988 (Commonwealth) or any equivalent
law of any Australian Jurisdiction.
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Purchase Price means, in relation to Receivables and related Receivable
Rights offered for sale under a Sale Notice, the Purchase Price
specified in the relevant Sale Notice as adjusted (where relevant) in
accordance with that Sale Notice.
Purchased Receivable means a Receivable referred to in a Sale Notice
which is accepted by the Trustee unless the Trustee has ceased to have
an interest in that Receivable.
Purchased Receivable Security means a Receivable Security referred to in
a Sale Notice which is accepted by the Trustee, unless the Trustee has
ceased to have an interest in that Receivable Security.
Rated Trust means a Trust in respect of which a Designated Rating Agency
has rated Notes issued by it.
Rating Agency means Moody's, S&P and Fitch IBCA or any other recognised
rating agency designated from time to time in writing by the Manager to
the Trustee.
Real Property Legislation means any law relating to the registration,
priority or effectiveness of any mortgage over land in any Australian
Jurisdiction.
Receivable means a right or interest under or in relation to any asset
which generates revenue over time, including:
(a) a residential or commercial loan (including a Loan);
(b) an operating or finance lease (including a lease of real
property, plant and equipment and a hire purchase agreement);
(c) a trade receivable;
(d) an automobile receivable;
(e) a credit or charge card receivable; and
(f) any other receivable or other form of monetary obligation.
Receivable Agreement means in relation to a Receivable, any agreement or
arrangement entered into between:
(a) if the Receivable is originated by the Trustee under this Deed,
the Trustee; or
(b) if the Receivable is acquired by the Trustee from an Approved
Seller under this Deed, the Approved Seller,
and the Obligor under which the Obligor incurs obligations to the
Trustee or Approved Seller (as the case may be) with respect to the
Receivable, and in the case of an agreement entered into by an Approved
Seller in a form provided to the Trustee by the Approved Seller before
the Sale Notice with respect to that Receivable is given.
Receivable Rights means, in relation to Receivables to be acquired by
the Trustee from an Approved Seller, all of the Approved Seller's or the
Trustee's (as the context requires) right, title, benefit and interest
(present and future) in, to, under or derived from:
(a) the Receivables and Receivable Securities specified in the
relevant Sale Notice; and
(b) such of the following as relate to those Receivables and
Receivable Securities:
(i) the Related Securities;
(ii) the Relevant Documents;
(iii) the Collections; and
(iv) all moneys, present, future, actual or contingent, owing
at any time by an Obligor (whether alone or with another
person) or any other person (other than the Approved
Seller) under or in connection with a Related Security,
including all principal, interest, reimbursable costs and
expenses and any other amounts
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incurred by or payable to the Approved Seller,
irrespective of whether such amounts relate to advances
made or other financial accommodation provided by the
Approved Seller to any Obligor before or after the Closing
Date,
but does not include:
(c) any Other Secured Liability; and
(d) in relation to the Receivables and Receivable Securities specified
in a Sale Notice:
(i) any interest or finance charges accrued up to but
excluding the Closing Date (or any other date specified
for that purpose in the Sale Notice) which are unpaid as
at close of business on that date; and
(ii) any interest in Collections received or applied by the
Approved Seller before the Cut-Off Date (or any other date
specified for that purpose in the Sale Notice),
if so specified in the Sale Notice.
Receivable Security means:
(a) in relation to a Loan, a Mortgage or any guarantee relating to
that Loan; or
(b) in relation to any other Receivable, any guarantee, indemnity or
Security Interest granted in respect of, or in connection with,
that Receivable.
Redraw Facility Agreement means in relation to a Trust any facility
specified as a Redraw Facility Agreement in the Supplementary Terms
Notice for that Trust.
Redraw Facility Provider means, in relation to a Trust, a person who has
entered into or agreed to make available a Redraw Facility Agreement to
the Trustee in relation to that Trust.
Registered Company Auditor has the same meaning as in the Corporations
Law.
Related Body Corporate has the same meaning as in section 9 of the
Corporations Law.
Related Receivable means, in relation to a Receivable Security, the
Receivable secured by that Receivable Security.
Related Security in relation to a Receivable means:
(a) any Relevant Document for that Receivable;
(b) any Insurance Policy or Insurance Proceeds with respect to the
Receivable; and
(c) any Mortgage Insurance Policy or Mortgage Insurance Proceeds with
respect to the Receivable; or
(d) any other agreement specified as a Related Security for the
Receivable in the relevant Supplementary Terms Notice.
Relevant Document means, with respect to a Receivable:
(a) the Receivable Agreement relating to that Receivable;
(b) the mortgage document in relation to each Receivable Security for
that Receivable;
(c) the Certificate of Title for the Mortgaged Property secured by
each Receivable Security;
(d) any amendment or replacement of such documents and any other
document which is entered into by or executed in favour of the
Approved Seller or Trustee (as the case may be) in connection
with that Receivable after the Cut-Off Date; or
(e) any other document specified as a Relevant Document in the
relevant Supplementary Terms Notice,
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but does not include any document or agreement which relates only to an
Other Secured Liability.
Repurchase Date has the meaning, in relation to a Purchased Receivable
and the related Receivable Rights, given in clause 12.6(d)(ii)(D) with
respect to the Purchased Receivable and related Receivable Rights.
Repurchase Price means, in relation to a Purchased Receivable and the
related Receivable Rights, the price determined under clause 12.9(c)(i).
S&P means Standard & Poor's (Australia) Pty. Limited, trading as
"Standard & Poor's Ratings Group" and its successors and assigns.
Sale Notice means:
(a) in relation to a purchase of Receivables by a Trust other than
from another Trust, a notice in the form of annexure A given
under clause 12; or
(b) in relation to a purchase of Receivables by a Trust from another
Trust, a notice in the form agreed by the Trustee and the Manager
in relation to that purchase.
Sale Termination Date means in relation to the obligations of a party
relating to a Sale Notice, the earlier of:
(a) the date 3 months after the date on which the last relevant
Purchased Receivable is discharged; and
(b) the date the Trustee (whether in its capacity as trustee of the
Trust to which the Purchased Receivables related or as trustee of
another Trust, including a Warehouse Trust) ceases to have any
interest in the relevant Purchased Receivables and related
Receivable Rights.
Security Interest includes any mortgage, pledge, lien, charge,
encumbrance, hypothecation, title retention, preferential right or trust
arrangement.
Security Trust Deed in relation to a Trust means a deed between the
Trustee in its capacity as trustee of that Trust, the Manager, the Note
Trustee and a person acting as security trustee under which, amongst
other things, the Trustee in its capacity as trustee of the Trust
charges all or some of the Assets of the Trust to secure the payment of
moneys owing to the Noteholders and other Creditors of the Trust in
favour of such security trustee as trustee for such Noteholders and
other Creditors.
Security Trustee means a security trustee under a Security Trust Deed
and any successor trustee appointed under that Security Trust Deed.
Seller Accession Certificate means a certificate in the form of annexure
B.
Servicer means St.George in its capacity as the servicer of the Trusts,
or in the event of the retirement or removal of St.George in its
capacity as Servicer, a substitute person appointed in its place to
service the Assets of a Trust and includes the Trustee when acting in
that capacity.
Servicer Transfer Event in relation to a Trust has the meaning (if any)
given to that term in the Servicing Agreement for that Trust.
Servicing Agreement means, in relation to a Trust, any agreement under
which a Servicer is appointed to service any of the Assets of that
Trust.
Stand-by Arrangement means in respect of each Trust an agreement made by
the Manager on behalf of the Trust with a person where the person agrees
to fund the payment to Noteholders by the Trustee in its capacity as
trustee of the Trust of amounts due to the Noteholders to an agreed
limit or extent to cover a shortfall of funds available in the Trust due
to, amongst other things, default by an Obligor or Obligors under one or
more Receivables.
Stated Amount in relation to a Note has the meaning given in the
relevant Supplementary Terms Notice for that Note.
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Stock Exchange means, in relation to a Note, any stock exchange on which
the Note is listed from time to time, including the London Stock
Exchange Limited or the Luxemburg Stock Exchange.
Subscription Agreement means, in relation to any Notes, any subscription
agreement, dealer agreement, underwriting agreement or other
distribution agreement (however called) under which dealers, managers or
other persons agree to subscribe for, underwrite or otherwise arrange
the distribution of those Notes.
Subscription Amount in relation to any proposed Notes means the total
amount payable by the proposed Noteholders as specified in the
corresponding Note Issue Direction.
Supplementary Terms in relation to a Note means the supplementary terms
relating to the Note specified in the Supplementary Terms Notice for the
Trust to which the Note relates.
Supplementary Terms Notice means:
(a) in relation to a Warehouse Trust:
(i) to the extent that no notice referred to in paragraph (b)
has been given, a Warehouse Trust Direction which
satisfies the requirements of Clause 11.2; and
(ii) to the extent so provided in the relevant Warehouse
Facility Agreement, that Warehouse Facility Agreement; or
(b) in each other case, a written notice from the Manager to the
Trustee materially in the form of annexure C satisfying the
requirements of clause 6.3.
Support Facility in relation to a Trust means:
(a) any Enhancement;
(b) any Liquidity Facility Agreement;
(c) any Hedge Agreement;
(d) any Redraw Facility Agreement;
(e) any Warehouse Facility Agreement;
(f) any other security, support, rights or benefits in support of or
substitution for an Authorised Investment or the income or
benefit arising thereon on an Authorised Investment, for the
financial management, credit enhancement or liquidity support of
the assets and liabilities of the Trust; or
(g) any other facility specified as a Support Facility in the
relevant Supplementary Terms Notice,
entered into by the Trustee for that Trust.
Support Facility Provider means, in relation to a Trust, any person who
has entered into or agreed to make available a Support Facility (other
than a Mortgage Insurance Policy) to the Trustee in relation to that
Trust.
Taxation Act means the Income Tax Assessment Act, 1936 (Commonwealth)
and the Income Tax Assessment Act 1997 (Commonwealth).
Tax and Taxes means any tax, levy, impost, deduction, charge, rate,
stamp duty, financial institutions duty, bank accounts debit tax or any
other tax, withholding or remittance of any nature which is now or later
payable or required to be remitted to, or imposed or levied, collected
or assessed by a Government Agency, together with any interest, penalty,
charge, fee or other amount imposed or made in respect thereof.
Termination Date in relation to a Trust means the earliest of the
following dates in relation to that Trust:
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(a) the eightieth anniversary of the date of creation of that Trust
under this Deed;
(b) the date upon which the Trust terminates by operation of statute
or by the application of general principles of law;
(c) if Notes have been issued by the Trustee in its capacity as
trustee of the Trust the earliest of:
(i) the Business Day (in both Sydney and London) immediately
following the date upon which the Trustee pays in full all
moneys due or which may become due, whether contingently
or otherwise, to Creditors of the Trust (as determined by
the Auditor, that determination to be conclusive); or
(ii) following the occurrence of an Event of Default under any
Security Trust Deed, the Security Trustee has enforced to
the fullest extent that it is able to do so all of its
powers under the Security Trust Deed which arise on the
occurrence of that Event of Default or on the Security
Trust Deed becoming enforceable, and has distributed all
of the amounts which it is required to distribute under
the Security Trust Deed (as determined by the Auditor,
that determination to be conclusive),
and the Trustee has received a confirmation from the Australian
Taxation Office that the Trustee has lodged its final tax return
in relation to that Trust; or
(d) if Notes have not been issued by the Trustee in its capacity as
trustee of the Trust, the date appointed by the Manager as the
Termination Date by notice in writing to the Trustee (which, if
the Trust is a Warehouse Trust, must be after the date on which
all amounts have been fully and finally repaid under the relevant
Warehouse Facility Agreement) after the Trustee has received a
confirmation from the Australian Taxation Office that the Trustee
has lodged its final tax return in relation to that Trust.
Title Documents means, in relation to the Authorised Investments of a
Trust, the documents of title and other documents contemplated under the
Custodian Agreement in relation to that Trust.
Title Perfection Event means, in relation to a Trust, each of the events
referred to in clause 12.9(a) for that Trust and the events (if any)
specified as Title Perfection Events in the relevant Supplementary Terms
Notice.
Transaction Documents means:
(a) this Deed;
(b) each Security Trust Deed;
(c) each Note Trust Deed;
(d) each Agency Agreement;
(e) any Seller Accession Certificate;
(f) any Support Facility;
(g) any Servicing Agreement;
(h) all Notes from time to time (and the related Supplementary Terms
Notice and Conditions);
(i) any Custodian Agreement;
(j) each other document which is expressed to be, or which is agreed
by the Manager and Trustee to be, a Transaction Document; and
(k) each other document that is executed under or which is or is
expressed to be incidental or collateral to, any other
Transaction Document, and in relation to a given Trust means all
of the above to the extent that they relate to that Trust.
Transfer of Receivable Security means:
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(a) in relation to a Mortgage or other Related Security that is a
registered mortgage of Land, a transfer of mortgage relating to
that Mortgage or Related Security under the Real Property
Legislation which, on registration, would result in the Trustee
being the registered mortgagee of that Mortgage or Related
Security; and
(b) in relation to any other Receivable Security and if required by
relevant legislation or practices a transfer of Security Interest
relating to that Receivable Security which, on registration,
would result in the Trustee being the registered holder of that
Receivable Security.
Trust means each Trust constituted from time to time under clause 3 and
Trusts means every Trust.
Trust Account means the account opened and operated for each Trust in
accordance with clause 21.
Trust Back means, in relation to a Trust, the trust (if any) referred to
in Clause 12.4 for that Trust.
Trust Back Assets means, in relation to a Trust, such right under or
interest in the Receivables and Receivable Securities specified in the
Sale Notice relating to that Trust and the related Collections to the
extent that such right or interest relates to (but only to the extent
that it relates to) any Other Secured Liabilities of which the Trustee
is actually aware.
Trustee means NMT in its capacity as the trustee of the Trusts, or in
the event of the retirement or removal of NMT as Trustee, a substitute
person appointed in its place under this Deed and includes the Manager
when acting as the Trustee in accordance with this Deed.
Trustee's Default in relation to a Trust means the occurrence of any of
the events specified in clause 20.1.
Trustee's Fee in relation to a Trust means the Trustee's fee for that
Trust under clause 19.1.
Unpaid Balance means:
(a) in relation to any Loan at any time, the sum of:
(i) the unpaid principal amount of that Loan; and
(ii) the unpaid amount of all finance charges, interest
payments and other amounts accrued on or payable under or
in connection with that Loan or the related Receivable
Rights at that time,
or the amount otherwise stated to be the Unpaid Balance for that
Loan, in the relevant Supplementary Terms Notice; or
(b) in relation to any other Receivable, the amount stated to be the
Unpaid Balance for the Receivable in the relevant Supplementary
Terms Notice.
Warehouse Facility Agreement means, in relation to a Trust, any facility
specified as a Warehouse Facility Agreement in the Supplementary Terms
Notice for that Trust, under which one or more financial institutions or
other persons agree to make available financial accommodation to the
Trustee to enable it to acquire Receivables.
Warehouse Facility Provider means, in relation to a Trust, a person who
has entered into or agreed to make available a Warehouse Facility
Agreement to the Trustee in relation to that Trust.
Warehouse Trust means a Trust under which the Trustee originates or
acquires Receivables using the proceeds of financial accommodation
provided under a Warehouse Facility Agreement, some or all of which
Receivables may subsequently be acquired by one or more other Trusts.
Warehouse Trust Direction means a direction by the Manager to the
Trustee materially in the form of Schedule 4 or in such other form as
may from time to time be agreed between the Trustee and the Manager.
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1.2 Interpretation
Headings are for convenience only and do not affect interpretation. The
following rules of interpretation apply unless the context requires
otherwise.
(a) The singular includes the plural and conversely.
(b) A gender includes all genders.
(c) Where a word or phrase is defined, its other grammatical forms
have a corresponding meaning.
(d) A reference to a person includes a body corporate, an
unincorporated body or other entity and conversely.
(e) A reference to a clause or schedule is to a clause of or schedule
to this Deed.
(f) A reference to any party to this Deed or any other agreement or
document includes the party's successors and permitted assigns.
(g) A reference to any agreement or document is to that agreement or
document as amended, novated, supplemented, varied or replaced
from time to time, except to the extent prohibited by this Deed.
(h) A reference to any legislation or to any provision of any
legislation includes any modification or re-enactment of it, any
legislative provision substituted for it and all regulations and
statutory instruments issued under it.
(i) A reference to dollars or $ is to Australian currency.
(j) Where the day on or by which any sum is payable under this Deed
or any act, matter or thing is to be done is a day other than a
Business Day such sum shall be paid and such act, matter or thing
shall be done on the next succeeding Business Day except to the
extent otherwise provided in the Supplementary Terms Notice.
(k) A word or phrase defined in the Corporations Law has the same
meaning in this Deed, unless separately defined in this Deed.
(l) All accounting terms shall be interpreted in accordance with the
Approved Accounting Standards.
(m) A reference to a month is to a calendar month.
(n) A reference to include, includes, included or including shall be
without limitation to the matter referred to.
(o) Except as otherwise provided, a reference to any time is a
reference to Sydney time.
(p) In relation to any 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 that Trust.
(q) A reference to writing includes a facsimile transmission and any
means of reproducing words in a tangible and permanently visible
form.
1.3 Binding on Noteholders and Beneficiaries
This Deed shall be binding on all Noteholders and Couponholders and the
Beneficiaries as if each was originally a party to this Deed.
PART B. CREATION OF TRUSTS
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2. Trustee of Crusade Euro Trusts
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2.1 Appointment of Trustee
The Trustee is appointed, and agrees to act, as trustee of each Trust
upon, and subject to, the terms and conditions of this Deed and the
relevant Supplementary Terms Notice.
2.2 Trustee to act in interests of Beneficiary and Noteholders of a Trust
(a) The Trustee shall, in respect of each Trust, act in the interests
of the Beneficiary and (subject to paragraph (b) below)
Noteholders in relation to that Trust on, and subject to, the
terms and conditions of this Deed. In the event of any conflict
of interests, the interests of the Noteholders will prevail.
(b) For the avoidance of doubt:
(i) the obligation of the Trustee to act in the interests of
the Noteholders is a contractual, not a fiduciary,
obligation and arises out of the contractual relationship
existing between the Trustee and the Noteholders under the
Notes; and
(ii) the Noteholders in respect of a Trust are not
beneficiaries of that Trust.
2.3 Separate and distinct Trusts
Each Trust shall be a separate and distinct trust fund held by the
Trustee on separate and distinct terms and conditions.
2.4 Termination of Deed
This Deed shall terminate on the date agreed by the Trustee and the
Manager if at that date:
(a) there are no Trusts in existence;
(b) the Trustee and the Manager are satisfied that all Notes have
been fully redeemed and all Creditors paid in full;
(c) there is no Sale Notice which has been given to the Trustee but
which has not at that date been accepted or rejected by the
Trustee; and
(d) there is no Investment Direction which has been given to the
Trustee but which has not been acted on or rejected by the
Trustee.
3. The Trusts
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3.1 Beneficial Interest in the Trusts
(a) The Trustee shall hold each part of each Trust, and each Asset of
each Trust from time to time, on trust for the relevant
Beneficiary on and subject to the terms and conditions of this
Deed.
(b) The interest of a Beneficiary under a Trust may be evidenced by
the issue of one or more units by the Trustee, if the relevant
Supplementary Terms Notice so specifies. A unit may give the
holder a right only to capital or only to income, or may give
such other rights as the relevant Supplementary Terms Notice may
provide. If a Beneficiary has paid all subscription and other
moneys payable by it for the issue of a unit, the interests of
that Beneficiary under paragraph (a) are not affected by the
failure of the Trustee to issue any such unit.
3.2 Creation of Trusts
(a) (Manager may create) The Manager may at any time create a Trust
by lodging with the Trustee:
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(i) (notice of creation) a duly completed and executed Notice
of Creation of a Trust; and
(ii) (initial Assets) the sum of $10.00 to constitute the
initial Assets of the Trust (which sum may be evidenced,
at the time of creation of that Trust or a later date, by
the issue of a unit under clause 3.1).
(b) (Constitution of a Trust) On satisfaction of clause 3.2(a), the
Trust referred to in the corresponding Notice of Creation of
Trust under clause 3.2(a)(i) shall be created.
(c) (No limit on Trusts) There shall be no limit on the number of
Trusts that may be created under this Deed.
3.3 Name of the Trusts
(a) Each Trust which is not a Warehouse Trust shall be known as:
(i) (initial name) the Crusade Euro Trust No. X of Y, where X
represents the consecutive order of creation of the Trust
in the relevant year the Trust was created and Y
represents the year in which the Trust was created; for
example, in the case of the first Trust the Crusade Euro
Trust No. 1 of 1998; or
(ii) (alternative name) such other name as the Trustee, the
Manager and the relevant Approved Seller (if any) may from
time to time agree.
(b) Each Warehouse Trust shall be known as:
(i) the Crusade Euro Warehouse Trust No. Z where Z is the
number of order of creation of Warehouse Trusts; for
example, in the case of the first Warehouse Trust the
Crusade Euro Warehouse Trust No. 1; or
(ii) (alternative name) such other name as the Trustee and the
Manager and the relevant Approved Seller may from time to
time agree.
3.4 Duration of a Trust
Each Trust shall continue until, and shall terminate on the later of:
(i) its respective Termination Date;
(ii) the date on which the provision of Clause 3.5 have been
satisfied; and
(iii) the date on which the Trustee ceases to hold any Trust Back
Assets in relation to that Trust.
3.5 Termination; winding up
(a) (Realisation of Assets) Subject to this clause 3 and to the
Transaction Documents, immediately following the Termination Date
of a Trust the Trustee in consultation with the Manager or the
Beneficiary, to the extent either has title to the Assets of the
relevant Trust following that Termination Date, must:
(i) sell and realise the Assets of that Trust (having obtained
appropriate expert advice prior to the sale of any
Receivable or Receivable Security); and
(ii) so far as reasonably practicable and reasonably
commercially viable, and subject to this clause, complete
the sale within 180 days after the Termination Date for
that Trust.
(b) (First right of refusal) Where an Approved Seller has a first
right of refusal in relation to those Receivables or Receivable
Securities under clause 12.9(c), the Trustee or the Beneficiary
(as the case may be) must comply with that clause 12.9(c).
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(c) (Sale within 180 days) During the 180 day period after the
Termination Date of a Trust, the Trustee or the Beneficiary (as
the case may be) must not (subject to paragraph (d)) and the
Manager must not direct it to, sell any Receivables and the
related Receivable Rights for an amount less than:
(i) in the case of performing Receivables, their Unpaid
Balance; or (ii) in the case of non-performing
Receivables, their Fair Market Value.
(d) (Performing Receivables) Notwithstanding paragraph (c)(i), the
Trustee or the Beneficiary (as the case may be) may not, and the
Manager must not direct it to, at any time sell any performing
Receivable for less than its Fair Market Value without the
consent of an Extraordinary Resolution of the relevant
Noteholders. Any purported sale without that approval will be
ineffective.
(e) (Sale at less than Unpaid Balance) The Trustee or the Beneficiary
(as the case may be) must not, and the Manager must not direct it
to, sell any performing Receivable and the related Receivable
Rights for less than the Unpaid Balance of the performing
Receivable unless:
(i) if the Invested Amount of each Note is greater than zero,
the Noteholders have consented to such sale by
Extraordinary Resolution; or
(ii) if the Invested Amount of each Note is zero, the relevant
Beneficiary consents.
(f) (Procedures before winding up) The provisions of this Deed will
continue to apply to a Trust for the period between the
Termination Date of that Trust and the date on which the Assets
of that Trust have been realised and distributed, notwithstanding
the occurrence of the Termination Date.
(g) (Expenses) Subject to the Security Trust Deed, the Manager must
direct the Trustee or the Beneficiary (as the case may be) to,
and the Trustee or the Beneficiary (as the case may be) must, pay
or provide for all Taxes, Expenses, claims and demands due or
incurred, or which the Trustee or the Beneficiary (as the case
may be) believes should be provided for, in connection with or
arising out of the administration or winding up of any Trust,
including the fees of any consultants or advisers employed in
connection with the administration or winding up of the Trust.
(h) (Distribution) The Manager shall direct the Trustee or the
Beneficiary (as the case may be) to distribute the proceeds of
realisation of the Assets of a Trust (after deducting the amounts
paid or provided for under paragraph (g)) in accordance with the
cashflow allocation methodology set out in the relevant
Supplementary Terms Notice and in accordance with any directions
given to it by the Manager. The Trustee or the Beneficiary (as
the case may be) shall comply with that direction.
(i) (Beneficiary) If all Notes relating to a Trust have been fully
and finally redeemed and the Creditors paid in full, the Trustee
must at the direction of the Manager distribute all or part of
the Assets to the relevant Beneficiary in specie (without
recourse to the Trustee or the Beneficiary (as the case may be)
and without any representation or warranty by the Trustee or the
Beneficiary (as the case may be)).
(j) (Performing/non-performing) The Servicer is to determine, in
consultation with the Trustee or the Beneficiary (as the case may
be) (acting on appropriate expert advice), whether a Receivable
is performing or non-performing for the purposes of this clause
3.5.
3.6 Costs of winding up of a Trust
During the winding up of a Trust under clause 3.5:
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(a) (Trustee's Fee) the Trustee shall be entitled to the continued
payment of the Trustee' s Fee under clause 19.1;
(b) (Manager's Fee) the Manager shall be entitled to continued
payment of the Manager's Fee under clause 15; and
(c) (Expenses) the Trustee or the Beneficiary (as the case may be)
and the Manager shall be entitled to reimbursement for, and the
Manager and the Trustee shall make provision for, all Expenses
incurred, made or apprehended in relation to the Trust (which
shall for this purpose include all Taxes, costs, charges,
expenses, claims and demands incurred, made or apprehended in
connection with the winding up of the Trust, including the fees
of any agents, solicitors, bankers, accountants or other persons
who the Trustee or the Beneficiary (as the case may be) or the
Manager may employ in connection with the winding up of the
Trust).
PART C. NOTES
4. Notes
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4.1 Acknowledgement of indebtedness
Subject to the terms of this Deed and the relevant Supplementary Terms
Notice, each Note constitutes an independent and separate
acknowledgement to the relevant Noteholder by the Trustee of its
indebtedness as trustee of that Trust for the Invested Amount of that
Note together with the other rights given to Noteholders under this
Deed, the Supplementary Terms Notice, the Security Trust Deed and the
Note Trust Deed relating to that Trust and the Conditions relating to
each Note.
4.2 Legal nature of Notes
Notes will be in bearer form, and may be definitive notes (with coupons
and talons attached), temporary global notes or permanent global notes.
4.3 Terms of Notes
(a) All Notes issued by the Trustee in its capacity as trustee of a
Trust shall be issued with the benefit of, and subject to, this
Deed, the Supplementary Terms Notice relating to such Notes, the
Security Trust Deed and the Note Trust Deed relating to that
Trust and the Conditions relating to those Notes.
(b) The Supplementary Terms Notice relating to that Trust is binding
on the Manager, the Trustee, the Note Trustee, the Noteholders,
the Couponholders, the Security Trustee, the Custodian, the
Servicer and the Approved Seller.
4.4 Interest and Principal Entitlement of Noteholders and Couponholders
Subject to this Deed, the relevant Supplementary Terms Notice and the
relevant Security Trust Deed, 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 in its capacity as trustee of that Trust shall in respect of
the Notes issued by it in that capacity, and acting on the directions of
the Manager, pay or cause to be paid to the Noteholders and
Couponholders (as relevant) of those Notes (to the extent that the
Trustee has available to it such amounts under the relevant
Supplementary Terms Notice and the relevant Conditions):
(a) (interest) their Interest Entitlement on each Interest Payment
Date; and
(b) (principal) their Principal Entitlement on each Principal
Amortisation Date.
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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 Deed, the Supplementary Terms Notice or any
other Transaction Document relating to that Trust.
4.6 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 and the
terms of the Security Trust Deed (if any) relating to that Trust.
5. Limits on rights of noteholders and beneficiary
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5.1 General limits
Except as otherwise provided in the Note Trust Deed, this Deed or the
Security Trust Deed, no Noteholder or Beneficiary shall be entitled to:
(a) (fiduciary obligation) in the case of any Noteholder, require the
Trustee to owe to it, or act in a manner consistent with, any
fiduciary obligation in any capacity;
(b) (particular interest) an interest in any particular part of any
Trust or Asset comprised in any Trust;
(c) (require transfer) subject (in the case of the Beneficiary) to
this Deed, require the transfer to it of any Asset comprised in
any Trust;
(d) (interfere in management) interfere with or question the exercise
or non-exercise of the rights or powers of a Servicer, the
Manager or the Trustee in their dealings with any Trust or any
Asset;
(e) (exercise rights in respect of Assets) exercise any rights,
powers or privileges in respect of any Asset in any Trust;
(f) (act in Trustee's place) attend meetings or take part in or
consent to any action concerning any property or corporation in
which the Trustee in its capacity as trustee of a Trust holds an
interest;
(g) (terminate Trusts) seek to wind up or terminate any Trust (except
as provided in clause 30);
(h) (remove) seek to remove a Servicer, Manager, Trustee, Custodian,
Note Trustee, Paying Agent, Calculation Agent or any Support
Facility Provider;
(i) (interfere) interfere in any way with any Trust;
(j) (lodge caveats etc) lodge or enter a caveat or similar instrument
in relation to an asset register maintained under clause 28 or
claim any estate or interest in any Land over which a Mortgage or
any Related Securities are held or to which any other Asset
relates in respect of any Trust;
(k) (communicate with Mortgagors etc) except where the Noteholder or
Beneficiary is St.George and is communicating in some other
capacity under the Transaction Documents, or the Trustee has
otherwise consented, and subject to any provision of a
Transaction Document which allows any such communication,
negotiate or communicate in any way with any Mortgagor, or
Obligor or other security provider in respect of any Mortgage,
Loan, other Receivable, Receivable Security or Related Security
or with any person providing a Support Facility to the Trustee or
any other person who is party to any Transaction Document (other
than a Note Manager and a Note Trustee);
(l) (take proceedings) take any proceedings of any nature whatsoever
in any court or otherwise to obtain any remedy of any nature
(including
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against the Trustee, the Manager, a Note Trustee, the Security
Trustee or a Servicer or any former Trustee, Manager, Note
Trustee, Security Trustee or Servicer or in respect of any Trust
or any Asset of any Trust) (unless, in the case of a Warehouse
Trust, the Noteholder or Beneficiary is St.George and the Trustee
consents to St.George taking the proceedings) provided that it
shall be entitled to compel the Trustee, the Manager and any
Servicer to comply with their respective duties and obligations
under the Transaction Documents and, if the Noteholders are
entitled to the benefit of any applicable Security Trust Deed,
the Noteholders may compel the Security Trustee to comply with
its duties and obligations under the Security Trust Deed; and
(m) (recourse to personal assets of Trustee) any recourse whatsoever
to the Trustee in its personal capacity, except to the extent of
any fraud, negligence or Default on the part of the Trustee.
5.2 Interests of Beneficiary Assignable
Subject to the relevant Supplementary Terms Notice, a Beneficiary may
assign, or create or allow to exist a Security Interest over, its rights
and interests in respect of a Trust without the prior written consent of
any person.
5.3 Ranking of interest of Beneficiary
The rights, claims and interest of a Beneficiary in relation to any
Trust, the Assets of any Trust and in relation to any payment or
distribution out of any Trust (including on the winding up of a Trust)
shall at all times rank after, and be subject to, the interests of
Noteholders under the Notes issued in relation to that Trust (including
in relation to any payment obligations on the Notes).
5.4 Further limit on interest of Noteholders, Couponholders and Warehouse
Facility Providers
A Noteholder, a Couponholder or a Warehouse Facility Provider in
relation to a Trust shall only be a creditor of the Trustee in its
capacity as trustee of that Trust to the extent of the Notes held by
that Noteholder or the Coupons held by that Couponholder or, in the case
of a Warehouse Facility Provider, their rights under the relevant
Warehouse Facility Agreement (as the case may be) and shall not be
entitled to any beneficial or, subject to the Security Trust Deed
relating to that Trust, other interest in that Trust.
5.5 No liability of Noteholders or Beneficiary
No Noteholder by reason of being a Noteholder, or Beneficiary by reason
of being a Beneficiary, shall in respect of a Trust:
(a) (liability) have any liability to make any contribution to the
Assets of the Trust or any payment to the Trustee, the Manager or
any other person in relation to the Trust; and
(b) (indemnity) be under any obligation to indemnify the Trustee, the
Manager or any Creditor of the Trustee in its capacity as trustee
of the Trust in respect of any of the liabilities (actual,
contingent or otherwise and whether due to any deficiency or not)
of the Trustee or the Manager in relation to, arising from or in
connection with the Assets of the Trust or the Trust generally.
6. Procedure for issue of notes
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6.1 Note Issue Direction for a Trust
(a) (Delivery of direction) If the Manager proposes that the Trustee
will issue Notes as trustee of a Trust, it shall, at least 5
Business Days (or such other period agreed by the Trustee or as
specified in a relevant Supplementary Terms Notice) prior to the
proposed Note Issue Date, deliver to the Trustee a Note Issue
Direction directing amongst other
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things that the Trustee (subject to this Deed and the relevant
Supplementary Terms Notice):
(i) (transfer benefit of Receivables) hold as trustee of the
Trust the benefit of the Portfolio of Receivables
specified by the Manager in the Note Issue Direction; and
(ii) (issue Notes) issue as trustee of the Trust the Notes
specified by the Manager in the Note Issue Direction.
(b) (Conditions precedent to first direction) The right of the
Manager to give a Note Issue Direction for any Trust is subject
to the Trustee receiving in form and substance satisfactory to
it:
(i) in relation to the first Note Issue Direction for that
Trust, a certificate in relation to the relevant Servicer,
the Manager and (if any) the relevant Approved Seller
(except where the Approved Seller is a Trust) given by a
director or secretary of that company substantially in the
form of Schedule 3 with the attachments referred to in
that certificate;
(ii) in relation to the first Note Issue Direction for that
Trust, unless the Trustee already holds a copy as trustee
of another Trust, a duly executed counterpart of this
Deed;
(iii) in relation to the first Note Issue Direction for that
Trust, a legal opinion on this Deed; and
(iv) any other document or condition specified in the relevant
Supplementary Terms Notice.
6.2 Requirements for a Note Issue Direction
A Note Issue Direction given by the Manager to the Trustee in respect of
a Trust under this Deed shall (whether in that Note Issue Direction, or
in the accompanying Supplementary Terms Notice):
(a) (contain the following information) specify the following in
respect of the Notes:
(i) (classes) whether any of the Notes will constitute a Class
separate from any other Notes previously issued by the
Trustee in its capacity as trustee of the Trust or from
any other Notes referred to in the Note Issue Direction;
(ii) (name) the name of the Notes or, if the Notes are divided
into more than one Class, the name of each Class of Notes;
(iii) (amount) the total number of Notes and, if the Notes are
divided into more than one Class, the number of Notes in
each Class;
(iv) (principal amount) the total principal amount of the Notes
and, if the Notes are divided into more than one Class,
the principal amount of each Class;
(v) (minimum subscription) the minimum subscription amounts
for Notes (if any);
(vi) (issue price) where the Notes are to be issued at a
discount or a premium to the face value, the issue price
of the Notes;
(vii) (Note Issue Date) the proposed Note Issue Date;
(viii) (Security Trust Deed and Support Facilities) whether a
Security Trust Deed or any Support Facility needs to be
effected in relation to the proposed Note Issue Date and,
if so, reasonable details of these;
(ix) (Receivables) all relevant details (including where
relevant the nature, principal amount and rate of return)
of Receivables held
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or to be held under the Trust to which the Note Issue
Direction relates;
(x) (Seller) where relevant, the identity and details of the
relevant Approved Seller or Warehouse Trust from which the
Receivables are to be acquired;
(xi) (such other required information) such other information
required by the Note Issue Direction or the relevant
Supplementary Terms Notice;
(xii) (Lead Manager) if there is to be a Lead Manager in
relation to the issue of the Notes, the identity and
address of that Lead Manager; and
(xiii) (Subscription Agreement) if a Subscription Agreement is to
be effected in relation to the proposed Note Issue Date,
reasonable details of that agreement (including the
parties to that agreement and the amount of their proposed
subscriptions but excluding any information relating to
the fees payable to the Note Manager);
(b) (duly completed) without limiting paragraph (a), be otherwise
duly completed;
(c) (accompanied by a Supplementary Terms Notice) be accompanied by a
duly completed and executed Supplementary Terms Notice for the
Notes, or if the Notes are divided into more than one Class and
the Manager elects to have a separate Supplementary Terms Notice
for each Class, a duly completed Supplementary Terms Notice for
each Class. However, if the terms of a Supplementary Terms Notice
for the Notes, or a particular Class of the Notes, are the same
as for a previous issue of Notes or a Class of Notes in respect
of the Trust, or if the Notes are contemplated by or issued under
a previous Supplementary Terms Notice, this requirement may be
satisfied if the Note Issue Direction specifies that this is the
case and is accompanied by the relevant previous Supplementary
Terms Notice; and
(d) (accompanied by a certification) be accompanied by a
certification by the Manager:
(i) in accordance with clause 6.6(a); and
(ii) that it expects the revenue which the Obligors have
contracted to pay under the Receivables the subject of the
Trust and the other Transaction Documents that the Trustee
will enter into in respect of the Trust will be sufficient
to enable the Trustee to meet the expenses of the Trust
and the amounts due to Noteholders.
6.3 Supplementary terms notice
(a) (Mandatory Information) A Supplementary Terms Notice shall
specify the following in respect of the Notes to which it refers
or if it relates to more than one Class of Notes for each Class
to which it refers:
(i) (Interest Payment Dates) each date (if any) for the
payment of interest under the Notes;
(ii) (Principal Amortisation Dates) each date for the repayment
of part or all of the outstanding principal under the
Notes;
(iii) (rate of interest) the rate of interest (if any) on the
Notes (which may be fixed, variable, calculated by way of
discount on the issue price or determined by a stated
method) and the method for calculating the interest;
(iv) (repayment of principal) where principal on the Notes is
to amortise, the amount (or the method of calculating the
amount) of principal to be repaid on the Notes on each
Principal Amortisation Date;
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(v) (Class rights) if the corresponding Note Issue Direction
specifies that the Notes are to constitute a Class
separate from any other Notes previously issued by the
Trustee in its capacity as trustee of the relevant Trust
or from any other Notes referred to in the Note Issue
Direction, the rights or restrictions that constitute the
first mentioned Notes as a separate Class and the
relationship of those rights and restrictions to any other
then or proposed Class of Notes;
(vi) (cashflow allocation methodology) the manner in which
cashflow from the Receivables (and any relevant Support
Facilities) will be applied by the Trustee, and in which
any shortfalls in income will be allocated among Notes
and/or Classes of Notes;
(vii) (conversion rights) where the Notes may be converted into
a different Class of Notes, details of that conversion
(including when and in what manner it can occur); and
(viii) (fees) any relevant fee (for example, fees to the
Servicer) for the relevant Trust.
(b) (Optional information) A Supplementary Terms Notice may specify
the following in respect of the Notes or Classes of Notes to
which it refers:
(i) (special rights) any preferred, deferred or special rights
or restrictions applying to the Notes whether with regard
to the payment of interest, the repayment of principal,
voting, the division into classes or otherwise, which may
include that the Notes are to be initially issued on a
partly paid basis or shall have an additional entitlement
to the principal or capital of the corresponding Trust
beyond the repayment in full of their Initial Invested
Amount; and
(ii) (other information) any other terms or restrictions
applying to the Notes that may be included in the
Supplementary Terms Notice.
(c) (Inconsistency) If a term of a Supplementary Terms Notice is
inconsistent with any provision of this Deed, the Supplementary
Terms Notice shall prevail to the extent of the inconsistency,
with respect only to the Trust and Notes to which that
Supplementary Terms Notice relates.
(d) (Amendment) A Supplementary Terms Notice in relation to a Trust
may expressly amend any provision of this Deed with respect to
that Trust and the relevant Notes. This Deed and those Notes
shall be construed accordingly.
(e) (Execution) Once the Trustee, the Manager, the relevant Servicer,
the provider of any relevant Support Facility and any relevant
Approved Seller have agreed to the terms of a Supplementary Terms
Notice they shall execute that Supplementary Terms Notice in the
Australian Capital Territory (or another place or jurisdiction
agreed between the Manager and the Trustee), on or before the
date on which the Manager proposes to issue the relevant
Investment Direction.
6.4 Amendment
The Manager may (and where the Trustee has acknowledged the Note Issue
Direction in accordance with clause 6.6(b), with the consent of the
Trustee), prior to a proposed Note Issue Date amend a previously issued
Note Issue Direction or Supplementary Terms Notice (including any Note
Issue Direction or Supplementary Terms Notice previously amended under
this clause). For the purposes of clause 6.11 only an amendment shall be
treated as creating a further issue of Notes. Such an amendment for a
Rated Trust shall only be made if prior notice of the amendment has been
given to the Designated Rating Agency and
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where the relevant Rated Trust has previously issued rated Notes which
amendment shall have no adverse effect on the ratings of those Notes.
6.5 Comply with Note Issue Direction
Subject to this clause 6, the Trustee must comply with a Note Issue
Direction.
6.6 Proviso on compliance with Note Issue Direction
(a) (Trustee shall not accept direction) The Trustee shall not comply
with a Note Issue Direction unless at least 5 Business Days (or
such other period agreed by the Trustee) prior to the proposed
Note Issue Date the Manager has certified to the Trustee that the
Note Issue Direction and any corresponding Supplementary Terms
Notice comply with this Deed.
(b) (Acknowledgement of direction) If the Trustee receives the
certificate provided for under paragraph (a) above, then it shall
no later than the close of business 2 Business Days (or such
other period agreed by the Manager) prior to the proposed Note
Issue Date sign the acknowledgement of receipt on the Note Issue
Direction and return it to the Manager. This acknowledgement will
not of itself constitute a declaration of trust and a trust will
only arise in accordance with clause 6.7(h).
6.7 Issue of Notes and transfer of benefit of Receivables
If the Trustee has:
(a) (acknowledged the Note Issue Direction) acknowledged receipt of a
Note Issue Direction;
(b) (sufficient applications for Notes) received confirmation from
the Manager that the Subscription Amount for such Notes is not
less than the amount specified in the corresponding Note Issue
Direction;
(c) (received or granted certain documents) on or prior to the
proposed Note Issue Date:
(i) (Security Trust Deed) entered into a Security Trust Deed
as trustee of the relevant Trust (unless not required for
the issue of the Notes by the Manager in the corresponding
Note Issue Direction);
(ii) (Support Facilities) obtained, or entered into
arrangements to obtain with effect from the corresponding
Note Issue Date, as trustee of the relevant Trust the
benefit of the Support Facilities referred to in the
corresponding Note Issue Direction;
(iii) (Subscription Agreement) if the Supplementary Terms Notice
provides for a Subscription Agreement, entered into a
Subscription Agreement in relation to the relevant Notes
at the direction of the Manager, but on such terms and
conditions as are reasonably agreed by the Manager and the
Trustee (subject to this Deed); and
(iv) (Power of Attorney) received an irrevocable power of
attorney or irrevocable powers of attorney from each
Approved Seller (in a form reasonably acceptable to the
Manager and the Trustee and in any event in registrable
form in each Australian Jurisdiction) appointing certain
specified officers of the Trustee as its attorneys for the
purposes of enabling the Trustee to perfect its title to
those purchased Receivables,
and, to the extent required, received any legal opinions on those
documents reasonably requested by the Trustee;
(d) (rating) if the Notes are to be rated, the Manager has advised
the Trustee that it has received a provisional indication from
the Rating
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Agency that the Notes will have a rating equal to or higher than
the rating specified in the relevant Supplementary Terms Notice;
or
(e) (listing) if the Notes are to be listed on a Stock Exchange, an
indication from the relevant Stock Exchange that the Notes have
been approved for listing on that Stock Exchange,
then, subject to the other requirements of this Deed being satisfied in
relation to matters which must be done on or prior to the Note Issue
Date, the Trustee agrees with the Manager (for the benefit solely of the
Manager) that if, on the direction of the Manager on the Note Issue Date
it issues Notes, as trustee of the relevant Trust, to the intending
Noteholders for the amount referred to in the corresponding Note Issue
Direction:
(f) (acquisition) where the relevant Receivables are to be acquired
from an Approved Seller:
(i) the Trustee will accept the relevant Sale Notice (but only
if the Trustee has issued the relevant Notes) and without
any obligation to the Approved Seller to do so; and
(ii) the Trustee agrees with the Manager (for the benefit
solely of the Manager) to pay to the Approved Seller from
the proceeds of the issue of the Notes the principal
amounts of such Receivables or such other consideration
specified in relation to the Note Issue Direction, as at
the date specified in the corresponding Note Issue
Direction; or
(iii) ( (origination) where the Trustee is to originate
the relevant Receivables, originate those Receivables (and
any relevant Receivable Securities) in accordance with the
procedures agreed under clause 10; and
(iv) ( (transfer of benefit of Receivables) subject to
payment of the amount referred to in paragraph (f), hold
automatically by virtue of this deed and without any
further act or instrument or other thing being done or
brought into existence, the benefit of the Portfolio of
Receivables referred to in the corresponding Note Issue
Direction with effect from the Note Issue Date as trustee
of the relevant Trust (together with the benefit with
effect from the Note Issue Date of all such Receivables,
Related Securities, Support Facilities and other rights
and entitlements relating thereto).
6.8 Action following Note Issue
The Trustee shall issue Notes in accordance with the applicable Note
Trust Deed and Supplementary Terms Notice.
6.9 No liability for insufficient moneys
If insufficient moneys are raised on a proposed Note Issue Date to
satisfy clause 6.7(b), neither the Trustee nor the Manager shall have
any obligation or liability to any person (including each other, any
intending Noteholder or any Beneficiary) to issue the Notes or, in the
case of a proposed issue in relation to a Trust, to hold the benefit of
the Portfolio of Receivables referred to in the corresponding Note Issue
Direction for the Trust, or otherwise.
6.10 Further assurance
Subject to the Transaction Documents, the Trustee shall following a Note
Issue Date for a Trust execute such documentation and do all such other
acts, matters or things as the Manager reasonably requires to transfer
the benefit of the Portfolio of Receivables referred to in the
corresponding Note Issue Direction (and the benefit of all corresponding
Loans, Related Securities, Receivable Rights and Support Facilities) to
the Trust.
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6.11 Further issues subject to Rating Agency approval
Where the Trustee in its capacity as trustee of a Rated Trust has issued
Notes, no further Notes in respect of that Trust shall be created, and
the Manager shall not direct the Trustee to issue any further Notes,
unless the Trustee receives a certificate from each Designated Rating
Agency in respect of the Notes then on issue in respect of the Trust
confirming the rating of those Notes.
6.12 Issue of unrated Notes
Nothing in this Deed shall be construed as requiring the Trustee or the
Manager to obtain a rating for Notes to be issued by the Trustee (except
subject to the Supplementary Terms Notice where those Notes are to be
issued by a Rated Trust).
6.13 No limit on Notes
Subject to the provisions of this Deed, there shall be no limit on the
amount or value of Notes which may be issued in respect of a Trust.
6.14 No issue in an Australian Jurisdiction
Notwithstanding anything in this Deed, no Notes may be offered for
subscription or purchase, or issued or allotted, nor may any offer or
invitation or Information Memorandum in respect of any Notes be
distributed, (except in the case of the Information Memorandum, for
information purposes only) in any Australian Jurisdiction.
7. Transfers of notes
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7.1 No restrictions on transfer of Notes
Subject to this Deed and the applicable Supplementary Terms Notice,
there shall be no restriction on the transfer of Notes.
7.2 Transfer
(i) ( A Noteholder must not transfer any Notes except
in accordance with all applicable laws in any jurisdiction
in which it may offer, sell or deliver Notes and will not
directly or indirectly offer, sell or deliver Notes or
distribute any prospectus, circular, advertisement,
Information Memorandum or other offering material relating
to the Notes in any country or jurisdiction except under
circumstances that will result in compliance with any
applicable laws and regulations.
(ii) ( None of the Trustee, the Manager, the Servicer,
any Note Manager or an Approved Seller is liable to any
Noteholder in relation to a breach by that Noteholder of
paragraph (a).
PART D. TRUST INVESTMENTS
8. Investment of the trusts generally
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8.1 Authorised Investments only
Subject to this Deed and the relevant Supplementary Terms Notice, each
Trust shall comprise only assets and property which are Authorised
Investments as at the date of their acquisition.
8.2 Manager selects investments
Subject to the terms of this Deed:
(a) the Manager alone shall have absolute and uncontrolled discretion
to determine, and it shall be the duty of the Manager to:
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(i) recommend or propose in writing to the Trustee (which may
be under a Supplementary Terms Notice), the manner in
which any moneys forming part of a Trust shall be invested
and what purchases, sales, transfers, exchanges,
collections, realisations or alterations of Assets shall
be effected and when and how the same should be effected;
and
(ii) give to the Trustee all directions necessary to give
effect to the recommendations or proposals referred to in
paragraph (i) above and such other directions which the
Trustee may desire in relation to the above matters; and
(b) it shall be the role of the Trustee to give effect to all such
directions of the Manager as are communicated by the Manager to
the Trustee in accordance with this clause, but the Manager may
not give any direction to the Trustee which conflicts with any
applicable law, the terms of the Trust, including the
Supplementary Terms Notice for that Trust or which could
adversely affect the current ratings (if any) of the Notes. For
the avoidance of doubt, except where the Transaction Documents
provide otherwise, the Trustee is not required to take any action
unless it has been directed to do so by the Manager.
8.3 Investment proposals
(a) (Manager's investment proposals) The Manager shall from time to
time give to the Trustee a proposal for the acquisition or
origination of property which is to constitute Assets of a Trust
and for the sale, transfer or other realisation of or dealing
with the Assets of a Trust, provided that the Manager may not
make any such proposal which could adversely affect the current
rating (if any) of the Notes.
(b) (Sufficient details) Except where the Manager's proposal is an
Investment Direction, each proposal shall contain all necessary
details relating to the proposal together with all information
and evidence as the Trustee may reasonably require to satisfy
itself that the implementation of the proposal is permitted under
this Deed. Where the Manager's proposal is an Investment
Direction, the proposal will comply with this Deed.
(c) (Discretion) The Manager shall have the fullest discretion to
recommend in the proposal the time and mode of and the broker,
contractor or agent (if any) to be engaged for the implementation
of the proposal including the right to recommend a postponement
for so long as the Manager in its discretion shall think fit.
(d) (Trustee must implement investment proposals) Subject to clause
8.7, on receipt of any written proposal by the Manager under this
clause 8, the Trustee shall implement that proposal and the
Trustee shall not be required, nor be under a duty, to inquire or
to make any assessment or judgment in relation to that proposal
or whether the proposed investment is an Authorised Investment or
is otherwise permitted under this Deed. The Trustee must not make
an investment if it is knows that it is not an Authorised
Investment.
8.4 Disposal or realisation of Authorised Investments
(a) (Authorised Investments to be held to maturity in Rated Trusts)
Subject to this Deed, any applicable Security Trust Deed or
Support Facility, Authorised Investments in respect of a Rated
Trust shall be held until their maturity (and the Trustee shall,
subject to this Deed and any applicable Security Trust Deed and
Support Facility, accordingly not have power to dispose of or
realise any Authorised Investment in a Rated Trust) but nothing
in this Deed shall affect the rights, powers, duties and
obligations of the Trustee in relation to enforcing any
Receivable, Receivable Security or Related Securities or
otherwise in relation to any other Authorised Investment or
Support Facility.
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(b) (Circumstances for disposal in Rated Trusts) Subject to this
clause 8.4(b) and to clause 8.4(c), the Trustee shall have power
to dispose of or realise any Authorised Investment in a Rated
Trust if the Manager confirms to the Trustee that the disposal or
realisation of the Authorised Investment will not lead to a loss
or where to continue to hold such Authorised Investment would:
(i) (breach) result in a breach of this Deed;
(ii) (affect Authorised Trustee Investment status) affect the
status of Notes as an Authorised Trustee Investment (if
applicable);
(iii) (adversely affect rating) adversely affect the then rating
(if any) of the Notes issued in relation to the Rated
Trust; or
(iv) (prejudicial to Noteholders) in the opinion of the
Manager, be prejudicial to the interests of Noteholders in
the Rated Trust.
The Trustee may only exercise its power of disposal or
realisation under paragraphs (ii)-(iv) (inclusive) on the written
direction of the Manager.
(c) (No restriction on disposal in unrated Trusts) Subject to each
Transaction Document there shall be no restriction on the
disposal or realisation of or temporary investment or
reinvestment in Authorised Investments:
(i) in a Trust which is not a Rated Trust; or
(ii) where the disposal is to another Trust under clauses 11,
12.9(d) or 13.
(d) (Proceeds on realisation) On the settlement of the discharge,
realisation or disposal of an Asset, the Trustee may accept the
proceeds in the form of:
(i) a Bank cheque payable to the Trustee; or
(ii) in other immediately available funds.
8.5 Temporary investment of cash and limitation on maturity of Authorised
Investments
The Manager shall in respect of a Trust direct the Trustee to cause cash
on hand which represents the income or capital of the Trust and which is
not required for:
(a) (Expenses) the immediate payment of the Expenses of the Trust
(including the Trustee's Fee in relation to the Trust); or
(b) (Noteholders or Beneficiaries) the immediate payment to the
Noteholders or a Beneficiary of the Trust,
to be invested in Authorised Investments provided that such Authorised
Investments shall mature on a date on or before the due date for such
payment.
8.6 Support facilities
(a) (Enter into Support Facilities) The Trustee shall in relation to
any Trust, on the prior direction of the Manager (and following a
review by the Trustee of the documentation for the proposed
Support Facility), enter into or acquire and perform any Support
Facilities on such terms and conditions as are reasonably
required by the Manager and which are acceptable to the Trustee
(acting reasonably) (subject to this Deed).
(b) (Rating of parties to Support Facility) If Notes have been, or
are proposed to be, issued by the Trustee in its capacity as
trustee of a Rated Trust, the Manager shall (subject to this
Deed):
(i) direct the Trustee that each Support Facility for the
benefit of the Rated Trust must be taken out or executed
with a person having
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at that time a Designated Rating (if necessary to maintain
the rating(s) of the Notes); and
(ii) take, or direct the Trustee to take, such other action as
may be necessary to maintain the rating(s) of the Notes in
relation to that Rated Trust unless such action is
materially adverse to the Trustee (and which the Trustee
has the power to take under this deed and where the terms
of any such Support Facility that affect or relate to the
Trustee in its personal capacity are acceptable to the
Trustee, acting reasonably).
(c) (Support Facilities for Rated Trusts) If Notes have been, or are
proposed to be, issued by the Trustee in its capacity as trustee
of a Rated Trust, any Support Facility for the benefit of the
Rated Trust shall be entered into by the Trustee prior to or on
the Note Issue Date in relation to those Notes provided that the
Trustee may, on the prior direction of the Manager:
(i) enter into a new Support Facility as trustee of a Rated
Trust after a Note Issue Date, if and only if, the Manager
has received written confirmation from any Designated
Rating Agency that entering into the Support Facility will
not result in a downgrading or withdrawal of the rating of
the Notes; or
(ii) substitute a new Support Facility for any existing Support
Facility entered into in accordance with this clause 8.6
where it has previously issued Notes as trustee of a Rated
Trust, if and only if, the Manager considers the same to
be in the interests of that Rated Trust and the Manager
has received written confirmation from any Designated
Rating Agency that the new Support Facility will not
result in a downgrading or withdrawal of the rating of the
Notes.
(d) (Downgrading of parties) If a person providing a Support Facility
to the Trustee in its capacity as trustee of a Rated Trust ceases
to have a Designated Rating (if the corresponding Designated
Rating Agency confirms that that cessation is necessary to
maintain the rating(s) of the Notes) and the Designated Rating
Agency has downgraded or withdrawn, or has indicated that it
proposes to downgrade or withdraw, its rating of the Notes, the
Trustee shall, if directed by the Manager and subject to this
Deed:
(i) enter into any substitute or additional Support Facility
identified by the Manager, and on such terms required by
the Manager (and which the Trustee has the power to enter
into under this Deed and where the terms of any such
Support Facility that affect or relate to the Trustee in
its personal capacity are acceptable to the Trustee,
acting reasonably); or
(ii) take such other action which the relevant Designated
Rating Agency confirms is necessary to maintain the
rating(s) of the Notes,
to maintain the rating of the Notes as it stood prior to such
downgrading or withdrawal or proposed downgrading or withdrawal
of the rating of the Notes.
(e) (No obligation to have Support Facilities) Nothing in this clause
or this Deed shall be construed as requiring that any given Trust
has the benefit of any Support Facility. The Trustee is not
required to enter into any Support Facility except as provided in
this clause.
8.7 Authorised trustee investments
The Manager shall not direct the Trustee to, and the Trustee shall not
knowingly invest, any moneys of a Trust in any Authorised Investment
which prejudices the qualification of Notes in that Trust as an
Authorised Trustee Investment in a given Australian Jurisdiction if the
Manager has indicated to the Trustee that the
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Notes are, or are proposed to be, an Authorised Trustee Investment of
that Australian Jurisdiction or any Information Memorandum or prospectus
in relation to such Notes indicates that the Notes are, or are proposed
to be, an Authorised Trustee Investment of that Australian Jurisdiction.
8.8 Limitation of Trustee's personal liability
Notwithstanding any other provision of this Deed, the Trustee is not
obliged to execute any instrument, enter into any agreement, take any
action, or incur any obligation in connection with a Trust (including in
connection with Support Facilities or Assets) unless:
(a) in the case of agreements, actions or obligations that are
expressly contemplated by the Transaction Documents and are
between parties to the Transaction Documents, its personal
liability in connection with the instrument, agreement, action or
obligation is limited in a manner consistent with clause 30.13;
or
(b) in any other case, the Trustee's liability is limited in a manner
satisfactory to the Trustee in its absolute discretion.
8.9 Moneys payable to Trustee
Subject to this Deed, the Manager and the Trustee shall ensure that any
agreements entered into in relation to the Trusts contain a provision to
the effect that any moneys belonging to the Trusts under the agreements
shall be paid to the Trustee or to an account, or Authorised Investment,
in the name of the Trustee in its capacity as trustee of the relevant
Trust.
8.10 Segregation of Assets of a Trust
(a) Subject to this Deed (and in particular to clause 21.10) and any
Supplementary Terms Notice the Trustee shall:
(i) ensure that no money or other Assets of a Trust are
commingled with the money or other Assets of another Trust
or any assets of the Trustee in any capacity other than as
Trustee of the Trust;
(ii) account for the Assets included in each Trust separately
from the Assets included in all other Trusts and any
assets of the Trustee in any capacity other than as
Trustee of the Trust; and
(iii) keep the liabilities of, and principal amounts outstanding
to Noteholders and providers of Support Facilities or
other Creditors in relation to each Trust separate and
apart from the liabilities of, and principal amounts
outstanding to Noteholders and providers of Support
Facilities or other Creditors in relation to all other
Trusts and any liabilities of the Trustee in any capacity
other than as Trustee of the Trust.
(b) Notwithstanding this clause 8.10:
(i) any Expenses of a Warehouse Trust may be borne by one or
more Warehouse Trusts in the respective amounts directed
by the Manager from time to time; and
(ii) the Trustee at the direction of the Manager, and with the
approval of any relevant Designated Rating Agency (if
relevant), may enter any Hedge Agreement which relates to
Assets of any two or more Trusts.
8.11 Assets of Trusts
Assets of a Trust shall not be available to meet any liability of, or
principal amounts outstanding to Noteholders and providers of Support
Facilities or other Creditors in relation to:
(i) any Trust other than the Trust of which those Assets form a part;
or
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(ii) any liability of the Trustee in any capacity other than as
Trustee of the Trust.
8.12 Liabilities of a Trust
Any liabilities to the extent that they relate to a Trust and principal
amounts outstanding to Noteholders and providers of Support Facilities
or other Creditors to the extent that they relate to a Trust, shall not
be aggregated with any liabilities, and principal amounts outstanding to
Noteholders and providers of Support Facilities or other Creditors, to
the extent that they relate to any other Trust or any liabilities of the
Trustee in any capacity other than as Trustee of the Trust or offset
against the Assets of any Trust other than the Trust of which those
liabilities and principal amounts form a part or to which they relate or
any liability of the Trustee in any capacity other than as trustee of
the Trust.
PART E. ACQUISITION AND ORIGINATION OF ASSETS
9. General
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9.1 Power to acquire Assets
Subject to this Deed and any Supplementary Terms Notice, the Trustee may
Borrow for the purpose of or in connection with:
(a) the making of, investment in, acquisition of, or funding of
assets underlying, Loans or other Receivables and Receivable
Securities;
(b) in relation to paragraph (a), investment in other Authorised
Investments; or
(c) the continued funding of any investment in Receivables,
Receivable Securities or other Authorised Investments.
9.2 Borrowings - general
Subject to clause 9.3, the Trustee may only Borrow in relation to a
Trust following receipt of a Warehouse Trust Direction under clause 11.1
or a Note Issue Direction under clause 6 and only by way of:
(a) the issue of Notes at any time and from time to time under this
Deed and the relevant Trust;
(b) a Support Facility contemplated by the Warehouse Trust Direction
or Note Issue Direction (as the case may be) (and any Notes
issued with respect to that Support Facility);
(c) in the case of a Rated Trust, a Borrowing which is:
(i) at all times subordinated and subject to the Notes, the
interests of the Noteholders under the Notes, and the
interests of the providers of any Support Facilities, in
relation to the relevant Trust; or
(ii) rated by all Designated Ratings Agencies at least as high
as the rating given by them to the Notes; or
(iii) without recourse to the Trustee or any assets of the
Trustee, other than the excess funds of the Trust after
meeting the principal and interest requirements of the
Noteholders and any Expenses of the Trust, provided that
the Borrowing does not constitute a claim against the
Trustee to the extent that there are insufficient funds to
meet repayments on the Borrowing,
and in any event does not adversely affect the current ratings of
the relevant Notes.
(d) in the case of a Trust which is not a Rated Trust, any other
Borrowing agreed by the Trustee and the Manager.
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9.3 Borrowings - Support Facilities etc.
(a) Where there are, or may be, ongoing obligations of the Trustee or
Approved Seller (as the case may be) to provide Obligors with the
ability to redraw amounts prepaid under a Receivable, or to
increase the principal amount of or owing in relation to any
Receivable, the Trustee shall subject to any applicable
restriction in the Transaction Documents at the direction
(whether under a Supplementary Terms Notice or otherwise) of the
Manager (without limiting its rights or powers under this Deed):
(i) enter into a Redraw Facility Agreement or Warehouse
Facility Agreement with respect to those obligations;
(ii) sell or otherwise transfer that Receivable to a Warehouse
Trust;
(iii) subject to clauses 6.11 and 6.12, issue Notes to reimburse
the relevant Approved Seller for any redrawn amounts
funded by the Approved Seller; or
(iv) enter any other arrangements as may be agreed between the
Trustee, the Manager and the Approved Seller.
(b) The Trustee may, at the direction of the Manager in accordance
with clause 6, issue Notes in relation to its obligations under a
Warehouse Facility Agreement or a Warehouse Trust.
(c) The parties to a Supplementary Terms Notice for a Warehouse Trust
may amend the Supplementary Terms Notice from time to time in
writing.
10. Origination
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(a) Where an Investment Direction directs the Trustee to fund the
making of Loans, or the making or creation of other Receivables,
other than by acquisition from an Approved Seller (an
Origination), and the Trustee implements the direction, the
Trustee shall use the proceeds of the relevant issue of Notes or
drawing under the relevant Support Facility (as the case may be)
for the purpose of the Origination in accordance with the
detailed procedure for Origination set out in the relevant
Supplementary Terms Notice and as agreed by the Trustee, the
Manager and the relevant originator.
(b) The Manager shall not direct the Trustee to, and the Trustee may
not Originate Receivables unless the Trustee is satisfied (in its
absolute discretion) with the procedures for the Origination
(including as to any indemnity for liability under Consumer
Credit Legislation).
11. Acquisition or funding by warehouse trust from another trust
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11.1 Direction by Manager
(a) Subject to Clause 11.3, the Manager may from time to time direct
the Trustee under a Warehouse Trust Direction to acquire from
another Trust Receivables and/or Receivable Securities using the
proceeds of financial accommodation under a Warehouse Facility
Agreement or in consideration of the transfer of any Authorised
Investments held by the Warehouse Trust.
(b) The Trustee has power, as trustee of a Trust, to dispose of
Receivables and/or Receivable Securities to a Warehouse Trust in
accordance with a Supplementary Terms Notice relating to that
Trust and that Warehouse Trust.
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11.2 Required information
A Warehouse Trust Direction must include:
(a) all relevant details relating to:
(i) the other Trust;
(ii) the Receivables and relevant Receivable Securities;
(iii) the Warehouse Facility Agreement (including the amount of
financial accommodation to be raised); and
(iv) all necessary information required in a Supplementary
Terms Notice under this Deed; and
(b) all other information reasonably required by the Trustee in order
to make a determination under clause 11.3.
11.3 Conditions to acceptance
The Trustee will not accept a direction under clause 11.1 unless the
direction (including the Receivables and Receivable Securities specified
in the direction) complies with the requirements of the relevant
Warehouse Trust Direction and any relevant Warehouse Facility Agreement
or as the Manager and the Trustee otherwise agree.
11.4 Effect of acceptance
(a) A Warehouse Trust Direction must be executed in the same manner
that a Supplementary Terms Notice is to be executed under clause
6.3(e).
(b) If the Trustee accepts a Warehouse Trust Direction under clause
11.1, it shall:
(i) enter into, or ensure that there is in place, a relevant
Warehouse Facility Agreement;
(ii) acquire or originate the Receivables (as the case may be),
and otherwise comply with the Warehouse Trust Direction.
11.5 Implementation
If the Trustee accepts a Warehouse Trust Direction under clause 11.1,
the Manager shall do everything reasonably necessary to enable the
Trustee to implement the direction.
11.6 General direction
(a) A Warehouse Trust Direction under clause 11.1 may take the form
of a general direction that specifies one or more Trusts from
which Receivables and Receivable Securities may be acquired by
the Trustee in its capacity as trustee of the relevant Warehouse
Trust from time to time without the need for a further Warehouse
Trust Direction under clause 11.1.
(b) Without limiting paragraph (a), a general direction referred to
in that paragraph can provide that the Manager may draw an amount
under the relevant Warehouse Facility Agreement on behalf of and
without prior notice to the Trustee, on satisfaction of any
relevant procedures specified in the Warehouse Trust Direction.
Those procedures shall include:
(i) notice to be given to the Trustee within a specified
period after that drawing; and
(ii) requirements as to whom the proceeds of that drawing will
be paid.
11.7 Transfers between Trusts
(a) Where a transfer of Assets is to occur between Trusts (whether
between two Warehouse Trusts, between a Warehouse Trust and a
Trust which is
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not a Warehouse Trust, or between two Trusts neither of which is
a Warehouse Trust), the provisions of this clause 11.7 apply.
(b) The transfer may take place under a Sale Notice, under a relevant
Supplementary Terms Notice, or by such other method as the
Trustee and the Manager may determine. The information and timing
of that transfer and the delivery of that Sale Notice or any
other document will be as agreed between the Trustee and the
Manager.
(c) Subject to payment of the agreed Purchase Price (as adjusted in
accordance with the terms of the sale), the Trustee in its
capacity as trustee of a Trust will hold automatically by virtue
of this Deed and without any further act or instrument or other
thing being done or brought into existence, the benefit of all
Receivable Rights transferred to it by the Trustee in its
capacity as trustee of another Trust (together with the benefit
of all Support Facilities which the Trustee and the Manager agree
are to be transferred, and all other rights and entitlements
relating to the relevant Receivables). The Trustee will hold the
Receivables so acquired as trustee of the Trust which acquires
those Receivable Rights and no longer as the trustee of the Trust
which disposed of the Receivable Rights.
(d) The Sale Notice, Supplementary Terms Notice or other method of
transfer (as the case may be) may, if so agreed between the
Trustee and the Manager, provide:
(i) that the Manager, the Servicer or the Approved Seller of
the Assets which are the subject of the transfer shall
give for the benefit of the acquiring Trust specified
representations, warranties and undertakings in relation
to the Assets; and
(ii) for the effect of any breach of a representation, warranty
or undertaking referred to in sub-paragraph (i),
provided that neither the giving of such representations,
warranties or undertakings nor the effect of breaching any of
them adversely affects the rating of a Rated Trust.
(e) Following a transfer between Trusts, each of:
(i) the Trustee in its capacity as trustee of the Trust which
transfers the relevant Receivable Rights (the Old Trust);
(ii) the Trustee in its capacity as trustee of the Trust which
acquires the relevant Receivable Rights (the New Trust);
and
(iii) the relevant Approved Seller,
agrees that with effect from the date of transfer of the relevant
Receivable Rights the rights and obligations as between the
Approved Seller and the Trustee in its capacity as trustee of the
Old Trust will be novated, and enjoyed by, the Approved Seller
and the Trustee in its capacity as trustee of the New Trust as
between themselves (without the need for further action on the
part of any person). The Approved Seller and the Trustee in its
capacity as trustee of the Old Trust shall, as between
themselves, cease from that date to owe any obligations or hold
any rights as between themselves unless accrued before the
transfer.
(f) Where Assets of a Trust which are transferred to another Trust
are subject to a Trust Back, that Trust Back is dealt with in
accordance with clause 12.4(j).
(g) Following a transfer of Assets between Trusts, the Manager shall
calculate, and notify the Trustee of, the amount of:
(i) any accrued interest under the relevant Receivables that
may be due from the New Trust to the Old Trust at any
time; and
(ii) any repaid or prepaid principal under the relevant
Receivables that may be due from the Old Trust to the New
Trust,
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in accordance with the provisions (if any) of the relevant
Supplementary Terms Notice or Sale Notice.
The Manager directs the Trustee (as Trustee of the Trust with any
obligation under this paragraph (g)) to pay any amount so
calculated to the other relevant Trust as an adjustment to the
corresponding purchase price, in accordance with the relevant
Supplementary Terms Notice.
11.8 Acknowledgement by Approved Seller
Each Approved Seller acknowledges and agrees that any interest in
Receivables acquired from it by the Trustee in its capacity as trustee
of any Trust may be disposed of by the Trustee to another Trust.
12. Acquisition from approved seller
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12.1 Note issue direction
Where:
(a) a Note Issue Direction directs that the Trustee issues Notes; or
(b) a Warehouse Trust Direction directs that the Trustee draws any
amount under the relevant Warehouse Facility Agreement,
to fund the acquisition of Authorised Investments from an Approved
Seller under a Sale Notice under clause 12.3, the Trustee shall use the
proceeds of the relevant issue of Notes or drawing under the Warehouse
Facility Agreement (as the case may be) for the purpose of the
acquisition and other related purposes in accordance with this clause.
12.2 Accession of Approved Sellers
(a) (Approved Seller) A person approved by the Manager and which is
acceptable to the Trustee (acting reasonably) may at any time
become an Approved Seller for the purposes of this Deed by
entering into a Seller Accession Certificate. The Manager shall
not direct the Trustee to acquire Receivables and/or Receivable
Securities from an Approved Seller for a Rated Trust (other than
the Approved Seller who first disposed of Receivables and/or
Receivable Securities to that Trust) without first confirming
that the rating for that Trust will not be downgraded or
withdrawn as a result of that acquisition.
(b) (Accession) On execution of a Seller Accession Certificate by
that person and the Trustee, that person shall be taken to be an
Approved Seller for the purposes of this Deed with all the rights
and obligations as if it were an original party to this Deed.
(c) (Trustee as Approved Seller) If the Trustee in its capacity as
trustee of a Trust is to be an Approved Seller, it need not
execute a Seller Accession Certificate but will be bound by this
Deed as an Approved Seller as trustee of that Trust.
12.3 Sale notices
(a) An Approved Seller may (but is not obliged to) offer to sell its
equitable interest in any Authorised Investments, Receivables or
Receivable Securities to the Trustee by delivering a Sale Notice
to the Trustee.
(b) Unless the Trustee otherwise agrees, a Sale Notice given under
this Deed shall be delivered to the Trustee not later than 4.00
pm on the Business Day which is 5 Business Days before the day on
which the Expiry Time falls (which must also be a Business Day).
(c) An offer in a Sale Notice is irrevocable during the period up to
and including the Expiry Time of that Sale Notice.
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(d) If so directed by the Manager, the Trustee shall accept the offer
contained in a Sale Notice at any time prior to the Expiry Time
by, and only by, the payment by the Trustee to the Approved
Seller (or as it directs) of the Purchase Price in same day funds
to the bank account specified by the Approved Seller for that
purpose in that Sale Notice.
(e) Notwithstanding:
(i) satisfaction of all relevant conditions precedent; or
(ii) any negotiations undertaken between the Approved Seller
and the Trustee prior to the Trustee accepting the offer
contained in a Sale Notice,
the Trustee is not obliged to accept the offer contained in a
Sale Notice and no contract for the sale or purchase of any
Receivables or related Receivable Rights referred to in a Sale
Notice will arise unless and until the Trustee accepts the offer
contained in the Sale Notice in accordance with this clause.
(f) The offer contained in a Sale Notice may only be accepted in
relation to all the Receivables and related Receivable Rights
referred to in the Sale Notice.
12.4 Constitution and Entitlement of the Trust Back
(a) Constitution of Trust Back
On the acceptance of a Sale Notice which relates to Receivable
Securities or Related Securities that secure Other Secured
Liabilities:
(i) a trust shall be constituted; and
(ii) the relevant Trust Back Assets shall vest in the Trustee
and be held by the Trustee on and subject to the trusts,
terms and conditions of this clause.
(b) Declaration of trust
The Trustee declares that it will hold all its right, title and
interest in the Trust Back Assets on bare trust for the relevant
Approved Seller in accordance with this clause.
(c) Entitlement of the Approved Seller to the Trust Back Assets
The beneficial interest in the Trust Back Assets relating to a
Trust vests absolutely in the relevant Approved Seller.
(d) Dealing with Trust Back Assets
Subject to the terms of this Deed:
(i) an Approved Seller is entitled to deal with its Trust Back
Assets in its absolute discretion;
(ii) the Trustee must not deal with any Trust Back Assets other
than:
(A) in accordance with directions given by the relevant
Approved Seller as beneficiary of the Trust Back,
from time to time;
(B) in accordance with all the Transaction Documents;
or
(C) to the extent necessary to exercise and enforce any
Receivable Rights; and
(iii) the Trustee must act in accordance with any direction
given to it by the relevant Approved Seller in respect of
its Trust Back Assets, except that the Trustee is not
obliged to act in accordance with the direction of that
Approved Seller where to do so would:
(A) be illegal; or
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(B) in the Trustee's reasonable opinion materially
prejudice the exercise of the Trustee's rights in
relation to the Receivables or related Receivable
Rights.
(e) Proceeds
Subject to clause 12.8:
(i) an Approved Seller may retain any proceeds received by it
from its Trust Back Assets; and
(ii the Trustee must immediately on the direction of the
Manager pay to an Approved Seller (or otherwise pay as the
Approved Seller directs) any proceeds the Trustee receives
in respect of that Approved Seller's Trust Back Assets.
That payment constitutes a good discharge of the Trustee.
(f) Trustee's duties
(i) The Trustee owes no fiduciary or other duties to any
Approved Seller in respect of that Approved Seller's Trust
Back Assets other than pursuant to paragraph (d) or
(e)(ii) and, in any event, is not liable in any manner
whatsoever to any Approved Seller for any liability, loss,
cost or expense to that Approved Seller's Trust Back
Assets (whether consequential or otherwise) resulting from
doing or omitting to do any act or thing in relation to
those Trust Back Assets, except where such loss is caused
by the fraud, negligence or Default of the Trustee.
(ii) Subject to sub-paragraphs (d)(iii) and (e)(ii), the
Trustee is not required to take any action in respect of
any Trust Back Assets.
(g) Indemnity in respect of Trust Back Assets
(i) Without limiting any indemnity to which the Trustee is
otherwise entitled and subject to paragraph (ii), each
Approved Seller unconditionally and irrevocably
indemnifies the Trustee against any liability, loss, cost
or expense incurred by the Trustee as a result of the
Trustee complying with any directions by that Approved
Seller in accordance with this Deed in connection with any
Trust Back for that Approved Seller (including the
transfer of the Trust Back Assets to the Approved Seller
under paragraph (j)). That Approved Seller must pay or
reimburse the Trustee on demand for all reasonable
expenses, including but not limited to stamp duties and
taxes, payable in connection with such indemnity.
(ii) An Approved Seller's obligations under sub-paragraph (i)
to indemnify and reimburse the Trustee do not apply to the
extent that such liabilities or expenses arise as a result
of the fraud, negligence or Default of the Trustee.
(h) Conflicts or Inconsistencies
If there is at any time a conflict or inconsistency between:
(i) any:
(A) directions given by an Approved Seller, as referred
to in paragraph (d); or
(B) duty owed by the Trustee to an Approved Seller by
virtue of the Trustee being the trustee of the
Trust Back (whether arising by operation of law,
equity or otherwise); and
(ii) the obligations and duties of the Trustee arising under or
in connection with the Transaction Documents (apart from
this clause) or the interests of Mortgagees (as defined in
the Security Trust Deed),
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the Trustee:
(iii) must give priority to the obligations, duties and
interests referred to in paragraph (ii) over any direction
or duty referred to in paragraph (i); and
(iv) shall not, provided it acts in good faith and without
fraud, negligence or Default, incur any liability to the
relevant Approved Seller for so doing.
(i) Termination of Trust Back
A Trust Back shall terminate when the Trustee ceases to have any
right to, or interest in, the Trust Back Assets of that Trust
Back.
(j) Transfer of Trust Back
(i) Where the Trustee holds Trust Back Assets as trustee of a
Trust (the First Trust), and any of those Trust Back
Assets are transferred to another Trust (the Second
Trust), then automatically and without any further act or
instrument being done or brought into existence:
(A) the Trustee, as trustee of the Second Trust, will
hold all its right, title and interest in the Trust
Back Assets so transferred on bare trust for the
relevant Approved Seller in accordance with this
clause 12.4; and
(B) the Trustee, as trustee of the First Trust, will
cease to hold any interest in the Trust Back Assets
so transferred on the Trust Back in relation to the
First Trust.
(ii) The Manager will notify each Approved Seller of any
transfer by that Trust of any Receivable for which that
Approved Seller is the registered mortgagee, except where
the relevant transferee is the Trustee in its capacity as
trustee of another Trust.
(k) Additional financial accommodation
Notwithstanding any other provision of this Deed but subject to
clause 12.8, an Approved Seller may provide further financial
accommodation to an Obligor on the security of a Purchased
Receivable Security after that Purchased Receivable Security has
been assigned in equity to a Trust provided such action does not
adversely affect the current ratings (if any) of the relevant
Notes. The Definition of Other Secured Liability includes such
further financial accommodation (except to the extent that the
financial accommodation relates to a Receivable which is an Asset
of the relevant Trust at the time the financial accommodation was
provided).
(l) Caveat
(i) If the Trustee perfects title to any Receivable Security
or a Related Security under this clause 12:
(A) the Trustee shall notify the Security Trustee of
the Receivable Securities and/or Related Securities
which it is actually aware are affected by a Trust
Back; and
(B) neither the Trustee nor the Security Trustee shall
dispose of or create any interest in that
Receivable Security or Related Security unless the
person receiving that Receivable Security or
Related Security or that interest is first notified
of the relevant Trust Back.
(ii) If an Approved Seller reasonably believes that the Trustee
or the Security Trustee intends to dispose of or create an
interest in a Receivable Security or Related Security
which secures an Other Secured Liability of that Approved
Seller without notifying the relevant third party acquirer
of the relevant Trust Back under
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paragraph (i), that Approved Seller may lodge a caveat to
protect its interest in the relevant Trust Back Assets.
12.5 Conditions Precedent to Purchase
(a) General
The right of an Approved Seller (other than the Trustee in its
capacity as trustee of a Trust) to give a Sale Notice under
clause 12.3 shall be subject to the Trustee having received in
form and substance satisfactory to the Trustee on or before the
date such offer is given:
(i) (verification certificate) except where the Approved
Seller is the Trustee in its capacity as trustee of a
Trust, a certificate in relation to the Approved Seller
given by an Authorised Signatory of the Approved Seller
substantially in the form of Schedule 3 with the
attachments referred to and dated as at the date of the
Sale Notice;
ii) (Investment Direction) the Manager having delivered to the
Trustee as the case may be:
(A) a Note Issue Direction and executed Supplementary
Terms Notice under clause 6 in relation to the
issue of the relevant Notes; or
(B) a Warehouse Trust Direction and Supplementary Terms
Notice under clause 11 in relation to a drawing
under the relevant Warehouse Facility Agreement;
and
(iii) (other conditions) any other condition precedent specified
in the relevant Supplementary Terms Notice.
(b) Further conditions precedent
The rights of an Approved Seller (other than the Trustee in its
capacity as trustee of a Trust) to give a Sale Notice shall be
subject to the further conditions precedent that on the date of
giving a Sale Notice the following statements shall be true (and
the Approved Seller, other than the Trustee, shall, by virtue of
giving that Sale Notice be deemed to have certified that):
(i) (representations true) the representations and warranties
in clause 12.6 are true as of such day as though they had
been made at that date in respect of the facts and
circumstances then subsisting;
(ii) (no default) no Title Perfection Event has occurred and is
subsisting or would result from the acceptance of a Sale
Notice.
12.6 Representations and warranties of Approved Seller
Each Approved Seller (other than the Trustee in its capacity as trustee
of a Trust) makes the following representations and warranties.
(a) (i) (Status) It is a corporation validly existing under the
laws of the place of its incorporation specified in this
Deed or the relevant Seller Accession Certificate.
(ii) (Power) It has the power to enter into and perform its
obligations under the Transaction Documents to which it is
expressed to be a party and to carry out the transactions
contemplated by those documents.
(iii) (Corporate authorisations) It has taken on a timely basis
all necessary corporate action to authorise the entry
into, delivery and performance of the Transaction
Documents to which it is expressed to be a party and to
carry out the transactions contemplated by those
documents.
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(iv) (Documents binding) Each Transaction Document to which it
is expressed to be a party is its legal, valid and binding
obligation enforceable in accordance with its terms,
except to the extent it is affected by laws relating to
liquidation or doctrines of equity.
(v) (Transactions permitted) The execution and performance by
it of the Transaction Documents to which it is expressed
to be a party and each transaction contemplated under
those documents did not and will not (as applicable)
violate in any respect a provision of:
(A) a law or treaty or a judgment, ruling, order or
decree of a Government Agency binding on it
(including, without limitation, the Consumer Credit
Legislation);
(B) its constituent documents; or
(C) any other document or agreement which is binding on
it or its assets,
which is material in the context of performing its duties
under each Transaction Document to which it is a party;
(vi) (Authorisations) Each Authorisation which is required in
relation to:
(A) the execution, delivery and performance by it of
Transaction Documents to which it is expressed to
be a party and the transactions contemplated by
those documents;
(B) the legal validity and enforceability of
Transaction Documents to which it is expressed to
be a party; and
(C) the perfection of the interest of the Trustee in
the Purchased Receivables and related Receivable
Rights (not including such Authorisations, (if any)
pertaining solely to acts of the Trustee),
has been obtained or effected. Each is in full force and
effect. It has complied with each of them. It has paid all
applicable fees for each of them.
(vii) (Supplementary Terms Notice) Any representations and
warranties required to be made by the Approved Seller as
set out in the relevant Supplementary Terms Notice.
(b) Time at which representations and warranties made
The representations and warranties in clause 12.6(a) are deemed
to be made by an Approved Seller, by reference to the facts and
circumstances then existing in relation to the relevant Trust, on
each of the dates on which a Sale Notice is given and on the
Closing Date specified in that Sale Notice (unless otherwise
specified in the representation or warranty).
(c) Reliance on representations and Warranties
Each Approved Seller acknowledges that the Trustee may accept an
offer in accordance with clause 12.3 and, if an offer is
accepted, will pay the Purchase Price in reliance on the
representations and warranties in clause 12.6(a).
(d) Breach of representations and warranties
(i) (Duty to give notice) For the purposes of sub-paragraph
(ii) (and without affecting the Trustee's right to
damages), if an Approved Seller, the Manager or the
Trustee becomes actually aware that a representation or
warranty in relation to any Purchased Receivable or other
Receivable Rights (other than with respect to any
information with respect to the Receivables and related
Receivable Rights set forth in the relevant Information
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Memorandum or in any written information provided to the
potential investors with the consent of the Approved
Seller) is incorrect (including relating to whether a
Purchased Receivable is an Eligible Receivable) otherwise
than as a result of receiving notice from the other, it
must notify the other parties and the Designated Rating
Agency (if any), within 5 Business Days of it becoming so
aware.
(ii) (Offer and acceptance)
If:
(A) such a representation and warranty is incorrect;
(B) the Approved Seller gives or receives a notice
under paragraph (d)(i) not later than 10 Business
Days before 120 days after the relevant Closing
Date; and
(C) the Manager does not direct that the Trustee waive
that breach, or the Approved Seller does not remedy
the breach to the satisfaction of the Manager and
the Trustee, within the period of 10 Business Days
referred to above, or such longer time as the
Manager and the Trustee in their absolute
discretion permit,
then, without any action being required by either party:
(D) the Approved Seller shall be taken to have offered
to repurchase the relevant Purchased Receivables
and related Receivable Rights:
(1) where it gives a notice under subparagraph
(B) on the date which is the earlier of the
date specified in that notice and 10
Business Days after that notice is given; or
(2) otherwise, on the date which is 10 Business
Days after the notice it receives or should
have given (as the case may be) under
paragraph (d)(i),
(in either case, the Repurchase Date) for an amount
equal to its Unpaid Balance;
(E) the Trustee, by not waiving the breach or agreeing
to a longer time as referred to in paragraph (C)
above, shall be taken to have accepted that offer;
(F) the Trustee shall be entitled to:
(1) all Collections received in relation to the
relevant Purchased Receivable and the
related Receivable Rights on and from the
Closing Date to (but excluding) the
Repurchase Date; and
(2) the Unpaid Balance of the relevant Purchased
Receivable as at the Repurchase Date; and
(G) the Approved Seller shall pay to the Trustee the
Unpaid Balance as at the Repurchase Date of that
Receivable on or before the Repurchase Date,
together with any relevant break costs for which
the Approved Seller is liable in relation to the
prepayment of any Hedge Agreement for the relevant
Trust.
(iii) (Effect of repurchase) On payment of the amount under
paragraph (d)(ii)(G):
(A) the Trustee shall cease to have any interest in the
relevant Purchased Receivables and related
Receivable Rights; and
(B) the Approved Seller shall hold both the legal and
beneficial interest in those Receivables and
Receivable
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Rights and be entitled to all interest and fees
that accrue in respect of them from (and including)
the Repurchase Date; and
(C) no rights or interest under or in respect of those
Receivables or Receivable Rights shall form part of
the relevant Trust Back Assets.
(iv) (Other breach) Except where paragraph (ii) applies, the
Trustee's rights in relation to a breach of a
representation or warranty shall give rise only to a claim
for damages.
(v) (Limit on damages) Subject to clause 12.12, the maximum
amount that an Approved Seller may become obliged to pay
to the Trustee in relation to the breach of any
representation or warranty relating to a Purchased
Receivable, a Purchased Receivable Security or other
Receivable Rights is an amount equal to the Unpaid Balance
of that Receivable at the time the Approved Seller pays
the damages.
(vi) (Conditions precedent to damages) No Approved Seller shall
be obliged to pay any damages for a breach of
representation or warranty under any Transaction Document,
or any indemnity in relation to such breach, unless:
(A) the Trustee first establishes that there has been a
breach that has caused loss;
(B) the damages or indemnity claimed represent no more
than the loss incurred as a result of the breach;
(C) the Trustee first gives the Approved Seller a
written notice specifying:
(1) the quantum of the claim; and
(2) the basis of the claim.
(vii) (Payment) Where an Approved Seller is liable to pay
damages under this clause, it shall make such
payment within 14 Business Days of receipt by the Approved
Seller of a notice that complies with paragraph (vi).
12.7 Undertakings
(a) Approved Seller Undertakings
Each Approved Seller undertakes to the Trustee as follows in
relation to the relevant Trust and Receivables and related
Receivable Rights:
(i) (comply with Supplementary Terms Notice) it will comply
with its obligations under the relevant Supplementary
Terms Notice; and
(ii) (comply with other Transaction Documents) it will comply
with its obligations under any other Transaction Document
to which it is a party.
(b) Term of Undertaking
Each undertaking in this clause continues from the date of this
Deed until the date following the Sale Termination Date when the
Trustee ceases to have any interest in the Purchased Receivables
or related Receivable Rights or until the Trustee's interest in
the Purchased Receivables or related Receivable Rights is
perfected.
12.8 Priority
(a) Priority
Notwithstanding:
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(i) anything contained in any Purchased Receivables or the
related Receivable Rights (including any Related
Securities);
(ii) the terms of a Receivable or any Other Secured Liability;
(iii) the respective dates on which anything is done or omitted
to be done under or in relation to a Receivable Security
or a Related Security or the moneys secured by that
Receivable Security or that Related Security; or
(iv) any rule of law or equity to the contrary,
all moneys received by an Approved Seller, a Servicer, the
Manager or the Trustee or any receiver, receiver and manager or
attorney under or in relation to a Purchased Receivable, a
Purchased Receivable Security, any relevant Related Security or
any Other Secured Liability as the result of the enforcement of a
Purchased Receivable or a Purchased Receivable Security or such
Related Security shall be applied in the following order of
priority:
(A) First, subject to paragraph (b):
(1) all costs, charges and expenses of the
relevant mortgagee or any receiver, receiver
and manager or attorney incurred in or
incidental to the exercise or performance or
attempted exercise or performance of any
right, power or remedy in relation to the
Receivable Security or Related Security;
(2) all outgoings in relation to the Receivable
Security which the mortgagee or any
receiver, receiver and manager or attorney
thinks fit to pay; and
(3) the remuneration of any receiver or receiver
and manager.
(B) Second, in satisfaction of all amounts (actual and
contingent) owing under the Receivable or any other
Receivable Rights secured by that Purchased
Receivable Security or Related Security.
(C) Third, the Other Secured Liability for all moneys
now or in the future secured by the Purchased
Receivable Security or Related Security that relate
to that Other Secured Liability.
(b) Enforcement Expenses
(i) Where, and to the extent that, the costs, charges,
expenses, outgoings and remuneration referred to in
sub-paragraphs (A)(1)-(3) of paragraph (a) (Enforcement
Expenses) are covered by a Mortgage Insurance Policy, they
shall be treated as a first priority payment under
sub-paragraph (a)(A).
(ii) Where, and to the extent that, the Enforcement Expenses
are not covered by a Mortgage Insurance Policy, then
subject to the terms of the relevant Purchased Receivable,
Purchased Receivable Security or Related Security:
(A) if they arise because the enforcement arose from
default under an Other Secured Liability, they
shall be treated as a third priority payment under
sub-paragraph (a)(C); and
(B) otherwise, they shall be treated as a first
priority payment under sub-paragraph (a)(A).
(c) Continuing balance
This clause 12.8 applies to a continuing balance and any present
or future moneys secured by a Receivable Security or Related
Security
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notwithstanding any subsequent repayment, advance or provision of
accommodation or other increase or decrease in the amount
secured.
12.9 Title perfection event; termination; repurchase
(a) Title Perfection Event
Unless otherwise provided in the relevant Supplementary Terms
Notice, each of the following is a Title Perfection Event in
relation to a Portfolio of Receivables, the related Receivable
Rights and the relevant Approved Seller:
(i) (downgrade) where the Portfolio of Receivables is held
subject to a Rated Trust the Approved Seller ceases to
have a long term credit rating of at least:
(A) BBB from S&P (if S&P has rated that Trust or Notes
issued by the Trustee in its capacity as trustee of
that Trust);
(B) Baa2 from Moody's (if Moody's has rated that Trust
or Notes issued by the Trustee in its capacity as
trustee of that Trust);
(C) BBB from Fitch IBCA (if Fitch IBCA has rated that
Trust or Notes issued by the Trustee in its
capacity as trustee of that Trust);
(D) its equivalent from any other Designated Rating
Agency which has rated that Trust or Notes issued
by the Trustee in its capacity as trustee of that
Trust; or
(ii) (Insolvency Event) an Insolvency Event occurs with respect
to the Approved Seller.
(b) Remedies
(i) Following the occurrence of a Title Perfection Event, the
Trustee (at the direction of the Manager) and the Manager
must (with the assistance of the Servicer) take all
reasonable steps to perfect the Trustee's title in and to
the relevant Purchased Receivables and related Receivable
Rights, including:
(A) complete, execute and register on behalf of the
Approved Seller any relevant Transfer of Receivable
Security;
(B) give notice of any sale of the relevant Receivable
Rights under any relevant Future Agreement to the
relevant Obligors;
(C) give notice of the perfection of its title in the
Purchased Receivables and related Receivable Rights
to any other interested person, including the
insurers under the relevant Mortgage Insurance
Policies;
(D) do anything else reasonably necessary to perfect
its interest in the relevant Purchased Receivables
and related Receivable Rights, including
registering Transfers of Receivable Securities or
caveats; and/or
(E) require the then existing payment instructions of
each Obligor to be amended as so specified by the
Trustee and the Manager.
Except as otherwise provided in the relevant Servicing
Agreement, the Trustee shall not take any such action
until the occurrence of a Title Perfection Event and until
directed to do so by the Manager.
(ii) The relevant Approved Seller agrees that on being directed
to do so by the Trustee following a Title Perfection
Event, it will promptly (and in any event within 10
Business Days or such
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longer period as the Trustee permits) take all action to
perfect the Trustee's legal title to the Purchased
Receivables and the related Receivable Rights by:
(A) giving written notice of the Trustee's interest to
any Obligor;
(B) registering any relevant Transfer of Receivable
Security;
(C) aking any other action required or permitted by law
or required by the Trustee and permitted by law to
perfect such legal title; and
(D) delivering all Relevant Documents relating to the
relevant Portfolio of Receivables and Receivable
Rights to the Trustee.
(c) First Right of Refusal
(i) As soon as practical after the Termination Date of the
Trust, the Manager directs the Trustee to offer (by
written notice to the Approved Seller) irrevocably to
extinguish in favour of the Approved Seller, or if the
Trustee has perfected its title, to assign to the Approved
Seller, its entire right, title and interest in and to the
Purchased Receivables, and related Receivable Rights (if
any) in consideration of the payment to the Trustee by the
Approved Seller in relation to the Trust of:
(A) in the case of performing Purchased Receivables,
the Unpaid Balance of the relevant Purchased
Receivables; and
(B) in the case of non-performing Purchased
Receivables, their Fair Market Value.
In each case, the Servicer, in consultation with the
Trustee, is to determine whether a Receivable is
performing or non-performing.
(ii) The Approved Seller cannot accept the offer if the Fair
Market Value of relevant Purchased Receivables is less
than the Unpaid Balance without the approval of an
Extraordinary Resolution. Any purported acceptance without
that approval will be ineffective.
(iii) During the 180 day period after the Termination Date of a
Trust, the Trustee must not, and the Manager must not
direct the Trustee, sell any Receivables and the related
Receivable Rights for an amount less than:
(A) in the case of performing Receivables, their Unpaid
Balance; or
(B) in the case of non-performing Receivables, their
Fair Market Value.
(iv) The Approved Seller may accept or reject that offer in its
discretion.
(v) The Trustee will not sell or deal with the relevant
Purchased Receivables and related Receivable Rights except
in accordance with paragraph (c)(i) unless the Approved
Seller has failed to accept the offer referred to in
paragraph (c)(i) within 180 days after the occurrence of
the Termination Date of the Trust by paying to the
Trustee, within 180 days after the occurrence of the
Termination Date of the Trust, the purchase price referred
to in paragraph (c)(i) for all of those Purchased
Receivables and related Receivable Rights.
(d) Clean Up Offer
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(i) A Supplementary Terms Notice for a Trust may provide that
the Manager may, in certain circumstances, direct a
Warehouse Trust to purchase Receivables or Receivable
Securities held by another Trust at a particular time. The
parties will comply with that Supplementary Terms Notice.
(ii) Unless otherwise provided in that Supplementary Terms
Notice, the consideration for the purchase in
sub-paragraph (i) will be:
(A) in the case of performing Purchased Receivables,
the Unpaid Balance of the relevant Purchased
Receivables; and
(B) in the case of non-performing Receivables, their
Fair Market Value.
In each case, the Servicer is to determine whether a
Receivable is performing or non-performing.
(e) Costs of Repurchase; Indemnity
(i) The Approved Seller shall pay all costs and expenses
(including stamp duty) relating to the repurchase or
extinguishment of its relevant Purchased Receivables and
related Receivable Rights under clauses 12.6(d) and
12.9(c).
(ii) Without limiting any indemnity to which the Trustee is
otherwise entitled, each Approved Seller unconditionally
and irrevocably indemnifies the Trustee against any claim,
liability, loss, cost, damage or expense suffered or
incurred by the Trustee as a result of a Title Perfection
Event relating to that Approved Seller. That Approved
Seller must pay or reimburse the Trustee on demand for all
amounts (including all reasonable expenses, including but
not limited to stamp duties and taxes), payable in
connection with such indemnity.
12.10 Subsequent adjustment
(a) Where Receivables in a Portfolio of Receivables have been
acquired from an Approved Seller:
(i) (interest) where so specified in the relevant
Supplementary Terms Notice or Sale Notice, the Manager
shall direct the Trustee after a Note Issue Date for a
Trust to debit any interest or fees received by the
Trustee in respect of a Receivable referred to in the
corresponding Note Issue Direction, with an amount that
represents accrued but unpaid interest on the Receivable
up to the date specified for that purpose in the
Supplementary Terms Notice, and to credit that amount to
the relevant Approved Seller;
(ii) (repaid principal) where so specified in the relevant
Supplementary Terms Notice or Sale Notice, after the Note
Issue Date the relevant Approved Seller will as soon as
possible (but by close of business on the first
Determination Date) pay to the Trustee, as an adjustment
to the amount paid by the Trustee under clause 6.7(e), an
amount equal to the amount of any principal received by
the Approved Seller on or after the date specified for
that purpose in the Sale Notice in respect of any
Receivables referred to in the corresponding Note Issue
Direction;
(b) (other costs) subject to clause 12.10(a), the Manager may in its
absolute discretion direct the Trustee on or at any time after a
Note Issue Date for a Trust to debit or credit the corresponding
Trust with such other amounts that the Manager believes are
appropriate so that the Approved Seller has the benefit of any
receipts, and bears the cost of any outgoings, in respect of each
Receivable referred to in the corresponding Note Issue
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Direction (and any corresponding Receivables, Receivable
Security, Related Securities and Support Facilities) up to (but
not including) the Note Issue Date and so that the relevant Trust
has the benefit of such receipts, and bears such costs, from (and
including) the Note Issue Date; and
(c) (Trustee to act in accordance with direction) the Trustee or the
Approved Seller (as the case may be) shall act in accordance
with, and may rely on, a direction of the Manager in accordance
with this clause 12.10.
12.11 Substitution of security
If:
(a) an Obligor under a Purchased Receivable is, in accordance with
the relevant Approved Seller's ordinary course of business,
entitled to replace the related Receivable Security, or a
Security Interest which is a Related Security, with another
security securing the same Receivable;
(b) the representations and warranties of the Approved Seller in
clause 12.6(a) and in the relevant Supplementary Terms Notice
would be true and correct in relation to the Receivable and the
new Security Interest at the time of substitution as if it was
specified as a Purchased Receivable in the Sale Notice; and
(c) without limitation, in relation to Land, the new security would
be subject to a Mortgage Insurance Policy under which the Trustee
would be the insured;
then:
(i) the Approved Seller may discharge the related Receivable
Security, or the relevant Related Security, on the giving
of the new security;
(ii) the new security shall be taken to be a Purchased
Receivable Security or a Related Security in relation to
the relevant Trust, as the case may be, for the purposes
of each Transaction Document and it and the related
Receivable Rights shall be Assets of the relevant Trust;
and
(iii) the Approved Seller shall do anything else reasonably
necessary to assure to the Trustee its interest in that
new security.
12.12 Indemnification
(i) Without limiting any other rights which the Trustee may
have under any Transaction Document or under applicable
law, each Approved Seller agrees to indemnify the Trustee
from and against any and all damages, losses, claims,
liabilities and related costs and expenses including legal
costs and expenses on a full indemnity basis the Trustee
may sustain or incur as a direct or indirect consequence
of:
(A) the breach of any representation or warranty or
undertaking made by that Approved Seller under or
in connection with any Transaction Document, or any
other information or report delivered by that
Approved Seller under any Transaction Document,
being false or incorrect in any respect when made
or deemed made or delivered or such information or
report being misleading or deceptive;
(B) the failure by that Approved Seller (whether before
or after the relevant Closing Date) to comply with
any applicable law, rule or regulation including,
without limitation, the Consumer Credit Legislation
with respect to any Receivable or Receivable
Security or Receivable Right, including the
nonconformity of any Receivable or Receivable
Security or Receivable Right with any such
applicable law, rule or regulation;
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(C) any dispute, claim or defence of the Obligor to the
payment of any Purchased Receivable or Purchased
Receivable Security or Receivable Rights which
results from a breach by the Approved Seller under
any Transaction Document;
(D) a material breach by that Approved Seller of any of
its obligations or duties under or in connection
with any Transaction Document; and
(E) any offset of the Obligor to the payment of that
Purchased Receivable or Purchased Receivable
Security or Receivable Rights, the entitlement to
which arises:
(1) Purchased Receivables or Purchased
Receivable Security or Receivable Rights to
the Trustee; or
(2) after that date, if the offset is exercised
by the Obligor against the Approved Seller
with respect to rights and obligations as
between the Obligor and the Approved Seller.
To the extent that the matters referred to in paragraph
(i) are covered by clause 12.6(d), clause 12.6(d) shall
apply. If the Trustee recovers from an Obligor any amount
for which it has been indemnified under sub-paragraphs (C)
or (E), the Trustee shall promptly pay to the Approved
Seller an amount equal to that recovery.
(ii) Except where clause 12.6(d) applies, an Approved Seller
shall not be obliged to pay any indemnity for a breach of
representation or warranty under any Transaction Document,
unless:
(A) the Trustee first establishes that there has been a
breach that has caused loss;
(B) the indemnity claimed represents no more than the
loss incurred as a result of the breach; and
(C) the Trustee first gives the Approved Seller a
written notice specifying:
(1) the quantum of the claim; and
(2) the basis ofthe claim.
(iii) (Payment) Where an Approved Seller is liable to pay an
amount under paragraph (i), it shall make such payment
within 5 Business Days of receipt by the Approved Seller
of a notice that complies with paragraph (ii). All other
amounts due from the Approved Seller under this clause
shall be paid promptly within 5 Business Days after the
Approved Seller has been notified thereof.
12.13 Power of Attorney
(a) The Trustee shall ensure that each power of attorney given by an
Approved Seller to the Trustee under or in relation to this Deed
shall be exercised only strictly in accordance with its terms.
(b) The Trustee shall:
(i) register each such power of attorney with the land titles
office of each relevant jurisdiction; and
(ii) keep each such power of attorney in a secure place.
13. Acquisition from warehouse trust by another trust
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13.1 Direction
(a) Where:
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(i) a Note Issue Direction directs that the Trustee issues
Notes; or
(ii) a Warehouse Trust Direction directs that the Trustee draws
any amount under the relevant Warehouse Facility
Agreement,
to fund the acquisition of Receivables by a Trust from a
Warehouse Trust, and the Trustee implements that direction, the
Trustee shall use the proceeds of the relevant issue of Notes or
drawing under the Warehouse Facility Agreement (as the case may
be) for the purpose of that acquisition.
(b) The Trustee has power, as the trustee of a Warehouse Trust, to
dispose of Receivables to another Trust in accordance with
Supplementary Terms Notices relating to that Warehouse Trust and
that other Trust, and subject to other relevant Transaction
Documents.
13.2 Implementation of acquisition
An acquisition of Receivables contemplated by clause 13.1 shall take
effect in accordance with clause 11.7.
13.3 Survival of rights and remedies
Where there exists any right or obligation of the Trustee in relation to
Receivables to be acquired from a Warehouse Trust, including any:
(a) Trust Back in relation to the Receivables;
(b) Approved Seller repurchase obligation under clause 12.6(d);
(c) Approved Seller representations or undertakings under clause
12.6(a); or
(d) limitation as to priority of payments on enforcement of the
Receivables,
the Trustee (in its capacity as Trustee of the Trust acquiring the
Receivables (the New Trust)), will acquire those Receivables with the
benefit of those rights and subject to those obligations.
Where any rights or obligations of the Trustee in relation to the
Receivables cannot be transferred to the Trustee in its capacity as
trustee of the New Trust, clauses 11.7(d), 11.7(e) and 11.7(g) will
apply.
13.4 Acknowledgement by Approved Seller
Each Approved Seller which disposes of Receivables to a Warehouse Trust
acknowledges and agrees that those Receivables acquired from it by the
Trustee in its capacity as trustee of a Warehouse Trust may be disposed
of by the Trustee to another Trust.
PART F. MANAGER
14. The manager
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14.1 Appointment of Manager
(a) The Manager is appointed, and agrees to act, as the manager of
the Trusts on and subject to the terms of this Deed and any
relevant Supplementary Terms Notice.
(b) Except as provided in clause 14.17 and clause 16.3:
(i) the Manager will be an independent contractor and not an
agent of the Trustee;
(ii) the Manager will not represent or hold itself out to any
person to be an agent of the Trustee; and
(iii) the Trustee will not be responsible for the acts,
omissions or defaults of the Manager.
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14.2 Complete powers of management
Subject to the Transaction Documents, the Manager shall carry out and
perform the duties and obligations on its part contained in this Deed
and shall have full and complete powers of management of the Trusts,
including:
(a) (Assets and liabilities) the administration and servicing of the
Assets (which are not serviced by a Servicer), Borrowings and
other liabilities of the Trusts (including concluding the
commercial terms of the Borrowings and the Hedge Agreements to be
entered into by the Trustee); and
(b) (day to day operation) the conduct of the day to day operation
of the Trusts.
14.3 Note issuance
The Manager has the following additional express powers which may be
exercised only in accordance with the relevant Transaction Documents:
(a) to negotiate with any Lead Manager and any Note Manager in
relation to the issue of relevant Notes;
(b) to invite bids from any Lead Manager or Note Manager for relevant
Notes on behalf of the Trustee; and
(c) to accept any such bid on behalf of the Trustee.
14.4 Manager to act in interests of Beneficiary and Noteholders
The Manager shall, in respect of each Trust, act in the interests of the
Beneficiary and the Noteholders in relation to that Trust on, and
subject to, the terms and conditions of this Deed. In the event of any
conflict of interests, the interests of the Noteholders will prevail.
14.5 Manager to assist Trustee
The Manager shall take such action as is consistent with its powers
under this Deed to assist the Trustee to perform its obligations under
this Deed.
14.6 Manager's power to delegate
The Manager may in carrying out and performing its duties and
obligations contained in this Deed:
(a) (delegate to employees) 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);
(b) (appoint attorneys and agents) appoint any person to be its
attorney, agent, delegate or sub-contractor for such purposes and
with such powers, authorities and discretions (not exceeding
those vested in the Manager) as the Manager thinks fit including:
(i) power for the attorney, agent, delegate or sub-contractor
to sub-delegate any such powers, authorities or
discretions;
(ii) power to authorise the issue in the name of the Manager of
documents bearing facsimile signatures of the Manager or
of the attorney, agent, delegate or sub-contractor (either
with or without proper manuscript signatures of its
officers); and
(iii) such provisions for the protection and convenience of
those dealing with any such attorney, agent, delegate,
sub-contractor or sub-delegate as they may think fit; and
(c) (remove agents and delegates) supersede or suspend any such
agent, delegate, sub-contractor or sub-delegate for such cause or
reason as the Manager may in its sole discretion think sufficient
with or without assigning any cause or reason and either
absolutely or for such time as it may think proper,
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but despite any delegation or appointment under the above paragraphs of
this clause, the Manager shall remain liable for the acts or omissions
of any such officer, employee, attorney, delegate, agent, sub-delegate,
sub-contractor or sub-agent and shall be solely responsible for the fees
and expenses of such officer, employee, attorney, agent, delegate,
sub-delegate, sub-contractor or sub-agent.
14.7 Manager's power to appoint advisers
The Manager may appoint and engage any valuers, solicitors, barristers,
accountants, surveyors, property managers, real estate agents,
contractors, qualified advisers and such other persons as may be
necessary, usual or desirable for the purpose of enabling the Manager to
properly exercise its powers and perform its obligations under this Deed
and all proper fees, charges and moneys payable to any such persons and
all disbursements, expenses, duties and outgoings properly chargeable to
them shall constitute Expenses of the Trust to which they relate.
14.8 Manager's books available to Trustee
The Manager will, in relation to each Trust:
(a) (keep proper records) keep proper books and records for the Trust
separate from any other books or records;
(i) (produce books) during normal business hours on reasonable
notice make available to the Trustee or the Auditor for
inspection all of the books and records of the Trust
maintained by the Manager; and
(ii) (provide information) give to the Trustee or the Auditor
such written or oral information as the Trustee or the
Auditor reasonably requires with respect to all matters in
possession of the Manager relating to the Trust.
14.9 Manager will account to Trustee for moneys received
(a) The Manager will pay to the Trustee or to an account of the
Trustee, within one Business Day of receipt, all moneys coming
into its hands belonging to the Trusts or payable to the Trusts.
(b) The Manager will keep any Assets which it may come to hold from
time to time separate from any other property belonging to or
entrusted to or held by the Manager.
14.10 Manager to report Pool Data on Reuters
The Manager may, if so specified in a Supplementary Terms Notice for a
Trust, prepare and arrange for the publication by Reuters (or another
customary electronic medium) of summary pool performance data for that
Trust in a format similar to that used by other mortgage-backed
securities or asset-backed securities (as the case may be) in the
relevant market for the Notes.
14.11 Manager to prepare notices etc.
The Manager shall prepare or cause to be prepared all notices and
statements which the Trustee is required to serve or give under any of
the provisions of this Deed or any other Transaction Document and shall
produce such notices and statements (as the case may be) to the Trustee
at least one Business Day (or any other period as the Trustee and the
Manager agree) before the day on which the notice or statement is
required to be served or given.
14.12 Prior approval of circulars
(a) Except as otherwise agreed by the Trustee and the Manager, where
the Manager has prepared any:
(i) Information Memorandum; or
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(ii) circular, offer letter, notice, report or the like to
Noteholders, or prospective Noteholders (a Publication)
for a Trust,
the Manager shall submit the Information Memorandum or
Publication to the Trustee for the Trustee's approval (in the
case of any document required by law to be the responsibility of
the Trustee) or information (in any other case) prior to the
issue of the document (unless otherwise waived by the Trustee).
(b) Where the Manager has prepared any Information Memorandum or
Publication which names, or purports to be issued by or on behalf
of, a Servicer or an Approved Seller, the Manager shall submit
the Information Memorandum or Publication to the Servicer or
Approved Seller (as the case may be) for its consent (not to be
unreasonably withheld) prior to the issue of the document (unless
the Servicer or Approved Seller otherwise agrees).
14.13 Taxes
The Manager directs the Trustee to make all payments (as and when they
fall due) out of a Trust to any duly empowered Government Agency of any
Australian Jurisdiction or any other jurisdiction for Taxes levied on
that Trust or on the Trustee in its capacity as trustee of that Trust.
14.14 Acquisition or disposal of Assets
Subject to this Deed, the Manager shall ensure that all steps which it
thinks are desirable are taken in connection with the investigation or
negotiation for the acquisition or disposal of Assets.
14.15 Monitor support facilities
The Manager shall monitor all Support Facilities in respect of a Trust
and shall properly perform the functions which are necessary for it to
perform under those Support Facilities.
14.16 Make calculations, co-ordinate and provide reports
The Manager shall:
(a) calculate all payments due on any relevant Payment Date;
(b) co-ordinate the issue of relevant Notes and the raising of funds
from those issues, or from any Support Facility; and
(c) as and when required by any Supplementary Terms Notice or other
Transaction Document prepare and distribute the Manager's Report
for each Trust to the Trustee and each Rating Agency,
and provide all directions to the Trustee as may be required for the
Trustee to comply with its obligations under the Transaction Documents.
14.17 Manager cannot bind Trustee unless authorised
The Manager acknowledges that in exercising its powers, authorities and
discretions vested in it and carrying out and performing its duties and
obligations in relation to any Trust or any Asset, whether under any
Transaction Document or any other deed, agreement or other arrangement,
neither it nor its delegate has any power to bind the Trustee, otherwise
than as expressly provided in any Transaction Document or such other
deed, agreement or other arrangement.
14.18 Manager must perform obligations under other Transaction Documents
The Manager shall properly perform the functions which are necessary for
it to perform under the other Transaction Documents to which it is a
party.
14.19 Manager to provide personnel and systems
The Manager shall at its own expense, procure sufficient trained and
experienced personnel, equipment and systems to enable it to carry out
its obligations under
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this Deed and shall at all times maintain complete and accurate records,
books of account and an adequate system of audit and internal controls
so as to perform its obligations under this Deed.
14.20 Additional covenants by Manager
The Manager shall:
(a) (act honestly) 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 this Deed;
(b) (prudently) manage each Trust exercising the degree of diligence
and care reasonably expected of an appropriately qualified
manager acting prudently, having regard to the interests of the
Beneficiaries, the Noteholders and the other Creditors in
accordance with its obligations under the relevant Transaction
Documents;
(c) (conduct its business properly) use reasonable endeavours to
carry on and conduct its business in so far as it relates to this
Deed in a proper and efficient manner;
(d) (do all things necessary to perform obligations) do everything
and take all such actions which are necessary (including
obtaining all such Authorisations as are appropriate for the
Trust, but not any Authorisation in relation to the Trustee in
its capacity as trustee of the Trust which the Trustee itself is
required or solely capable of obtaining) to ensure that it and
the Trustee are able to exercise all their respective powers and
remedies and perform all their respective obligations under this
Deed, the Transaction Documents and all other deeds, agreements
and other arrangements entered into by the Manager or the
Trustee, as the case may be, under this Deed or any other
Transaction Document;
(e) (details to Trustee) use all reasonable endeavours to make
available or to ensure that there is made available to the
Trustee the details the Trustee reasonably requires with respect
to all matters relating to the Trust;
(f) notify defaults) promptly, on an officer of the Manager who has
responsibility for the transactions contemplated by the
Transaction Documents for a Trust becoming actually aware, notify
the Trustee and each applicable Designated Rating Agency of any
Manager's Default, Title Perfection Event, Trustee's Default,
Servicer Transfer Event or any Material Adverse Effect relating
to that Trust and at the same time or as soon as possible
afterwards provide details of that default or effect;
(g) (not merge) not merge or consolidate into another entity unless
the surviving entity assumes the obligations of the Manager under
the Transaction Documents;
(h) (Support Facilities) perform all obligations within its power to
ensure that all Support Facilities for each Trust are maintained
and available to the Trustee; and
(i) (Ratings) not take any action or omit to take any action knowing
that it could have an adverse affect on the ratings (if any) of
the Notes.
14.21 Benefit of Managers' Covenants
The covenants, undertakings and acknowledgements of the Manager in this
clause 14 are given or made for the benefit of the Trustee, each
Servicer, the Beneficiaries, the Noteholders and other Creditors jointly
and severally.
15. Manager's fee
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In consideration of the Manager performing its function and duties under
this Deed, it shall be entitled to be paid from each Trust a fee in the
amount and at the times set out in the corresponding Supplementary Terms
Notice.
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16. Retirement, removal and replacement of manager
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16.1 Retirement on Manager's Default
The Manager shall retire from the management of the Trusts if and when
directed to do so by the Trustee in writing (which direction must be
copied to each Servicer and, if any of the Trusts are Rated Trusts, the
Designated Rating Agency). A direction may only be given following a
Manager's Default which may include any one or more of the following
events:
(a) (Collections and distributions) The Manager fails to make any
payment required from it within the time period specified in a
Transaction Document, and that failure is not remedied within 10
Business Days of receipt from the Trustee of notice of that
failure.
(b) (Insolvency Event) An Insolvency Event has occurred and is
continuing in relation to the Manager.
(c) (Breach by the Manager)
(i) The Manager breaches any obligation or duty imposed on the
Manager under this Deed, any other Transaction Document or
any other deed, agreement or arrangement entered into by
the Manager under this Deed in relation to the Trust;
(ii) the Trustee, acting on appropriate expert advice,
reasonably believes that breach has a Material Adverse
Effect; and
(iii) the Manager fails after 30 days' notice from the Trustee
(which notice specifies the breach with reasonable
particularity and requires rectification) to remedy that
breach, if capable of remedy, or pay compensation to the
Trustee for its loss from such breach,
except, in each case, where the Manager has relied on information
provided, or other action taken, by a Servicer or has not
received information from the Servicer which the Manager requires
to comply with the obligation or duty and the Servicer's action
or inaction as the case may be, is not due to the Manager's
fraud, negligence or wilful default.
(d) (Misrepresentation) 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 or deceptive when
repeated and, if capable of remedy, is not remedied to the
Trustee's reasonable satisfaction within 90 days after notice
from the Trustee, acting on appropriate expert advice, where (as
determined by the Trustee) it has a Material Adverse Effect.
The costs of removal of a Manager in default shall be borne by the
Manager. The Manager indemnifies the Trustee and each Trust for those
costs.
16.2 Trustee may remove recalcitrant Manager
In default of the Manager retiring in accordance with clause 16.1 within
30 days of being directed by the Trustee in writing so to do, the
Trustee must by deed poll executed by the Trustee remove the Manager
from the management of the Trusts except that:
(a) until a replacement Manager is appointed under clause 16.3, the
Manager must continue as Manager; and
(b) if a replacement Manager is not appointed under clause 16.3
within 120 days of the Trustee electing to
appoint a new Manager, the Trustee will be the new Manager.
16.3 Trustee appoints replacement Manager
On the retirement or removal of the Manager, the Trustee shall be
entitled to appoint some other corporation to be the Manager of the
Trusts provided that
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appointment will not have an adverse affect on the ratings (if any) of
the Notes. Until that appointment is complete the Trustee may and, if
required under clause 16.2(b) shall, subject to this Deed and to any
approval required by law, act as Manager and will be entitled to the
Manager's Fee for the period it acts as Manager. A new Manager shall not
be appointed in relation to a Rated Trust without prior notice being
given by the Trustee to the Designated Rating Agency.
16.4 Voluntary retirement
The Manager may, subject to clause 16.5, resign on giving to the Trustee
(with a copy to the Designated Rating Agency) and the Note Trustee not
less than 120 days' notice in writing (or such other period as the
Manager and the Trustee may agree) of its intention to do so.
16.5 No resignation by Manager unless successor appointed
The Manager must not, subject to clause 16.6, resign under clause 16.4
unless:
(a) either:
(i) it procures that, before the date on which that
termination becomes effective, another person, reasonably
acceptable to the Trustee assumes all of the obligations
of the Manager under the Transaction Documents as its
successor, and executes such documents as the Trustee
requires to become bound by this Deed and the relevant
Supplementary Terms Notices, with effect from that date,
as if it had originally been a party to this Deed and the
relevant Supplementary Terms Notice as the Manager; or
(ii) the Trustee elects not to appoint a successor Manager, and
to perform itself the obligations and functions which the
Transaction Documents contemplate being performed by the
Manager;
(b) the appointment of the successor Manager, or (as the case may be)
the election of the Trustee, will not materially prejudice the
interests of Noteholders; and
(c) in the case of the appointment of a successor Manager pursuant to
paragraph (a), the appointment is approved by, and reasonably
acceptable to, the Trustee.
16.6 Trustee to act as Manager if no successor appointed
If at the end of the period of notice specified in a notice given under
clause 16.4, no successor Manager has been appointed, as contemplated by
clause 16.5(a)(i):
(a) the Trustee must itself perform the obligations and functions
which this Deed contemplates being performed by the Manager and
shall receive the Manager's fee, until a successor Manager is
appointed in accordance with this Deed; and
(b) the resignation of the Manager will become effective.
16.7 Release of outgoing Manager
On retirement or removal and provided there has been payment to the
Trustee of all sums due to it by the outgoing Manager under this Deed at
that date, the outgoing Manager shall be released from all further
obligations under this Deed but no release under this clause 16.7 shall
extend to any existing or antecedent breach of contract on the part of
the outgoing Manager or its officers, employees, attorneys, agents or
delegates, sub-delegates, or sub-agents.
16.8 New Manager to execute deed
(a) A new Manager shall execute a deed in such form as the Trustee
may require under which the new Manager undertakes to the
Trustee, the Beneficiaries, the Noteholders and the other
Creditors jointly and
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severally to be bound by all the covenants on the part of the
Manager under the Transaction Documents from the date of
execution of the new deed on the same terms contained in the
Transaction Documents.
(b) On and from the date of execution of the new deed, the new
Manager shall and may afterwards exercise all the powers, enjoy
all the rights and shall be subject to all the duties and
obligations of the Manager under the Transaction Documents as
fully as though the new Manager had been originally named as a
party to the Transaction Documents.
16.9 Settlement and discharge
Subject to clause 16.7, the Trustee shall settle with the outgoing
Manager the amount of any sums payable by the outgoing Manager to the
Trustee or by the Trustee to the outgoing Manager and shall give to or
accept from the outgoing Manager a discharge in respect of those sums
which shall be conclusive and binding as between the Trustee, the
outgoing Manager, the new Manager, the Beneficiaries, the Noteholders
and the other Creditors.
16.10 Delivery of books, documents, etc
(a) On the retirement or removal of the Manager in accordance with
the provisions of this clause 16 the outgoing Manager shall
immediately deliver to the new Manager appointed in respect of
any Trust (or the Trustee if it is acting as Manager) the Data
Base and all other books, documents, records and property
relating to the Trusts and any other information relating to a
Trust or the outgoing Manager as the Trustee or new Manager may
reasonably request. The reasonable costs and expenses of this
incurred by the new Manager (but not the outgoing Manager) are to
be paid out of the relevant Trust.
(b) The outgoing Manager shall be entitled to take, and retain as its
own property, copies of such books, documents and records. Each
of the Trustee and the new Manager shall produce the originals of
such books, documents and records in its possession on the giving
of reasonable written notice by the outgoing Manager.
16.11 Notice to Noteholders of new Manager
As soon as practicable after the appointment of a new Manager under this
clause 17, the new Manager shall notify the Noteholders of its
appointment.
16.12 Waiver of Manager's Defaults
Subject to first giving notice to the Designated Rating Agency, the
Trustee may waive any Manager's Default or any other default by the
Manager under a Transaction Document, provided such waiver does not have
an adverse effect on the ratings (if any) of the Notes. On any such
waiver, the default shall cease to exist, and that Manager's Default
shall be deemed to have been remedied for every purpose of this Deed. No
such waiver shall extend to any subsequent or other default or impair
any right consequent on a Manager's Default except to the extent
expressly waived.
PART G. TRUSTEE
17. Trustee's powers
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17.1 General power
Subject to this Deed and the other Transaction Documents but in addition
to any rights and powers of trustees arising under any law (which are
hereby expressed to apply to the Trustee), the Trustee shall have all
the rights, powers and discretions over and in respect of the Assets of
the Trusts which it could exercise if it were the absolute and
beneficial owner of such Assets, provided that it will take no action
without a direction from the Manager, or omit to take any
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action without a direction from the Manager, that could reasonably be
expected to adversely affect the ratings (if any) of the Notes.
17.2 Specific powers
Without in any way affecting the generality of the above or the other
provisions of this Deed, but subject to the Trustee's obligations under
this Deed and the other Transaction Documents, the Trustee shall have
the following powers (which shall be construed as separate and
independent powers of the Trustee):
(a) (enter into Receivable Securities) to enter into, provide,
purchase, acquire, dispose of and sell:
(i) Loans on the security of Mortgages and Related Securities;
and
(ii) other Receivables (where relevant, on the security of
Receivable Securities and Related Securities);
(b) (deal in other Authorised Investments) to make, purchase, acquire
or dispose of any other Authorised Investment for cash or on
terms;
(c) (fees and Expenses) to pay all fees payable under this Deed and
the Transaction Documents and all Expenses which were properly
incurred in respect of a Trust;
(d) (advisers) to engage, and to incur reasonable expenses in
relation to, any valuers, solicitors, barristers, accountants,
surveyors, property advisers, real estate agents, contractors,
qualified advisers, and such other persons as may be necessary,
usual or desirable for the purpose of enabling the Trustee to be
fully and properly advised and informed in order that it may
properly exercise its powers and perform its obligations under
this Deed;
(e) (execute proxies, etc) to execute all such proxies and other
instruments as may be necessary or desirable to enable the
Trustee, or any officer, delegate or agent of the Trustee
(appointed in accordance with this Deed) to exercise any power,
discretion or right of the Trustee as the Trustee shall in its
absolute discretion see fit;
(f) (dealings over mortgaged Land) to consent to any mortgage, lease
and/or sub-lease of or dealing with the property (including Land)
over which a Receivable Security is held provided that, in the
case of any such mortgage, the Receivable Security held by the
relevant Trust will rank in priority to any dealing for which
consent is sought;
(g) (discharge Receivables) subject to this Deed and the other
relevant Transaction Documents, to grant any form of discharge or
release or partial discharge or release of any Receivable,
Receivable Security or Related Security where to do so is in the
opinion of the Trustee not prejudicial to the relevant Trust
(and, without limitation, will not have the effect of removing a
Receivable from the coverage of any Support Facility prior to the
receipt of all moneys owing or which may become owing under the
Receivable) and to execute all deeds or other documents as shall
be necessary or incidental to such a discharge or release and to
deal with certificates of title or other indicia of title as the
Trustee sees fit;
(h) (powers of holder of Receivable Security) subject to this Deed
and the other relevant Transaction Documents, to exercise any
power of sale arising on default under any Receivable, Receivable
Security or Related Securities or any other right or remedy
accruing in respect of any Trust in relation to any Asset,
Support Facility or other Transaction Document and to exercise
all customary powers, authorities and discretions following on
the exercise of that power, right or remedy where the Trustee
considers it is in the interests of the relevant Trust;
(i) (proceedings) to institute, prosecute, defend, settle and
compromise legal or administrative proceedings of any nature and
generally to enforce and pursue its rights under and in respect
of Assets, a Trust or a Transaction Document;
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(j) (waivers) wherever it thinks it expedient or desirable in the
interests of any Trust, to give any waiver, time or indulgence to
any person on such terms as it may in its discretion determine;
(k) (Euroclear and Cedel) to lodge Notes, or arrange for Notes to be
lodged, with Euroclear or Cedel, or a depositary for Euroclear
and/or Cedel;
(l) (Notes) subject to this Deed and the other relevant Transaction
Documents, to borrow and raise moneys by the issue of Notes as
provided in this Deed;
(m) (other borrowings) to borrow, raise moneys or procure financial
accommodation where the Trustee considers the same to be in the
interests of the relevant Trust on such terms and conditions as
the Manager thinks fit and that are acceptable to the Trustee
(acting reasonably);
(n) (Transaction Documents) to enter into and perform its obligations
under any Transaction Document containing such terms and
conditions as the Manager thinks fit and that are acceptable to
the Trustee (acting reasonably);
(o) (insurance) insure any Asset for amounts, on conditions and for
types of insurance determined to be necessary by the Manager;
(p) (attend meetings) attend and vote at meetings in accordance with
the written directions of the Manager;
(q) (indemnity) give an indemnity out of a Trust in any terms
whatsoever to such persons and against such expenses and damages
as the Manager reasonably considers necessary or desirable and
that are acceptable to the Trustee;
(r) (undertakings in Transaction Documents) without limiting the
above provisions of this clause 17.2, give any representation,
warranty, indemnity or other undertaking required in respect of a
Support Facility, or other Transaction Documents, the sale or
issue of Notes or other transaction in any way relating to a
Trust as the Manager thinks fit and that are acceptable to the
Trustee (acting reasonably, subject to the following) even if the
subject matter of such representation, warranty, indemnity or
other undertaking may refer to the Trustee in its personal
capacity or otherwise to the Trustee's personal affairs provided
that any such representation, warranty, indemnity or undertaking
referring to the Trustee in its personal capacity or to its
personal affairs must be acceptable to the Trustee in its
absolute discretion;
(s) (custody) appoint the Custodian in respect of a Trust to
undertake custodial duties in accordance with the relevant
Custodian Agreement;
(t) (transfer Assets) transfer any of the Assets of a Trust to
another Trust in accordance with the relevant Transaction
Documents;
(u) (payment direction) where a person owes an amount to the Trustee
in its capacity as trustee of any Trust, direct that debtor to
make that payment to another person on behalf of the Trustee,
including directing payments due in respect of Receivables to be
made to the Servicer;
(v) (currency conversion) convert currencies on such terms and
conditions as the Manager thinks fit and that are acceptable to
the Trustee acting reasonably;
(w) (stock exchange) list and maintain the listing of the Notes on
any stock exchange;
(x) (Note Trustee) appoint a Note Trustee in respect of a relevant
Trust;
(y) (Paying Agents) appoint Paying Agents in respect of a relevant
Trust; and
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(z) (incidental powers) with the written agreement of the Manager
(that agreement not to be unreasonablywithheld), to do all such
things incidental to any of the above powers or necessary or
convenient to be done for or in connection with any Trust or the
Trustee's functions under this Deed.
17.3 Powers to be exercised with others
The Trustee's rights, powers and discretions under this Deed shall be
exercised by such persons, or exercised in conjunction with, with the
approval of, or at the discretion of such persons, as contemplated by
this Deed or any other Transaction Document.
17.4 Delegation to Related Bodies Corporate
In exercising its powers and performing its obligations and duties under
this Deed, the Trustee may, with the approval of the Manager (not to be
unreasonably withheld) and subject always to the covenants on the part
of the Trustee contained in this Deed, from time to time by instrument
in writing appoint one or more corporations each being:
(a) a corporation which is a Related Body Corporate of the Trustee;
and
(b) which is a trustee company or trustee corporation for the
purposes of any State or Territory legislation governing the
operation of trustee companies,
as its delegate (or, where two or more such corporations are appointed
as its delegate, jointly and severally) to undertake, perform or
discharge any or all of the duties, powers, discretions or other
functions of the Trustee under this Deed or otherwise in relation to a
Trust.
The Trustee and/or the corporation (as the case may be) may by the terms
of any such appointment insert such provisions for the protection and
convenience of those dealing with any such corporation as the Trustee
and/or the corporation thinks fit but the Trustee shall despite any such
appointment remain liable for any act or omission of any such
corporation as if any such act or omission were an act or omission of
the Trustee.
The Trustee shall be responsible for payment of the fees and expenses of
any corporation appointed under this clause.
17.5 Trustee's power to appoint attorneys and agents
The Trustee may in carrying out and performing its duties and
obligations contained in this Deed appoint any person to be its
attorney, agent or delegate for such purposes and with such powers,
authorities and discretions (not exceeding those vested in the Trustee)
as the Trustee thinks fit including:
(a) power for the attorney or agent to delegate or sub-delegate any
such powers, authorities or discretions;
(b) power to authorise the issue in the name of the Trustee of
documents bearing facsimile signatures of the Trustee or of the
attorney or agent (either with or without proper manuscript
signatures of their officers); and
(c) such provisions for the protection and convenience of those
dealing with any such attorney, agent, delegate or sub-delegate
as they may think fit,
but except as provided for in this Deed or any other Transaction
Document excluding the obligation to receive or make payments.
The Trustee is not liable or responsible for the acts or omissions of
any agent or delegate except where:
(i) the Trustee did not appoint the agent or delegate in good
faith and using reasonable care;
(ii) the Trustee expressly instructs the agent to do (or omit
to do) the relevant act; or
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(iii) the Trustee is aware of the default of the agent or
delegate and does not take the action available to it
under the relevant Transaction Document to remedy the
agent's or delegate's act or omission.
17.6
The Trustee may, in accordance with clause 17.5, appoint any of the
following persons to be its attorney, agent or delegate to do those
things which the Transaction Documents expressly provide or contemplate
will be done by them on behalf of the Trustee or to receive or make
payments on behalf of the Trustee in the manner contemplated by this
Deed:
(a) the Servicer;
(b) an attorney, agent or delegate of the Servicer (where the Trustee
is acting as Servicer);
(c) the Principal Paying Agent and all other Paying Agents;
(d) the Note Trustee;
(e) banks, solicitors and brokers approved by the Manager (such
approval not to be unreasonably withheld); or
(f) any other experts appointed by the Trustee to assist it in
performing its duties and obligations under the Transaction
Documents.
In the case of paragraphs (a) to (f) (inclusive), the Trustee will not
be responsible for losses, claims or liabilities caused by the acts or
omissions of any person so appointed except to the extent that the
Transaction Document or other agreement under which the person is
appointed so provides, and except to the extent caused by the fraud,
negligence or Default of the Trustee.
17.7 Generally unlimited discretion
Subject to the Trustee duly observing its duties, covenants and
obligations under this Deed and any other Transaction Document, the
Trustee has absolute discretion as to the exercise or non-exercise of
the trusts, powers, authorities and discretions vested in it by this
Deed.
18. Trustee's covenants
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18.1 General
The provisions contained in this clause 18 shall be for the benefit of
the Manager, each Servicer, the Beneficiaries, the Noteholders and the
other Creditors jointly and severally.
18.2 To act continuously as Trustee
The Trustee shall act continuously as trustee of each Trust until the
Trust is terminated as provided by this Deed or the Trustee has retired
or been removed from office in the manner provided under this Deed.
18.3 To act honestly, diligently and prudently
The Trustee shall:
(a) (act honestly) 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 this Deed;
(b) (prudently) subject to this Deed, exercise such diligence and
prudence as a prudent person of business would exercise in
performing its express functions and in exercising its
discretions under this Deed, having regard to the interests of
the Beneficiaries, the Noteholders and the other Creditors in
accordance with its obligations under the relevant Transaction
Documents;
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(c) (conduct its business properly) use its best endeavours to carry
on and conduct its business in so far as it relates to this Deed
in a proper and efficient manner;
(d) (records) keep, or ensure that the Manager keeps, accounting
records which correctly record and explain all amounts paid and
received by the Trustee in its capacity as trustee of a Trust;
(e) (separate Trusts and Assets) keep each Trust separate from each
other Trust which is constituted under this Deed and from all
other assets of the Trustee in any capacity other than as Trustee
of such Trust and account for Assets and liabilities of the Trust
separately from those of other Trusts and all other assets and
liabilities of the Trustee in any capacity other than as Trustee
of such Trust;
(f) (do all things necessary to perform obligations) do everything
and take all such actions which are necessary (including
obtaining all appropriate Authorisations which relate to it in
its capacity 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 this
Deed, the Transaction Documents and all other deeds, agreements
and other arrangements entered into by the Trustee under this
Deed;
(g) (no other activity) not, in its capacity as trustee of the Trust,
engage in any business or activity in respect of a Trust except
as contemplated or required by the Transaction Documents in
respect of that Trust;
(h) (arm's length with Related Bodies Corporate) 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;
(i) (no guarantees) except as contemplated or required by the
Transaction Documents in respect of a Trust, not, in respect of
that Trust, guarantee or become obligated for the debts of any
other entity or hold out its credit as being available to settle
the obligations of others; and
(j) (stock exchange) in respect to listed Notes, comply with the
rules and regulations of the relevant Stock Exchange.
18.4 No dispositions of Assets except in accordance with Transaction
Documents
Except as provided in any Transaction Document (and other than any
charge given to the Security Trustee), the Trustee shall not, nor shall
it permit any of its officers to, sell, mortgage, charge or otherwise
encumber or part with possession of any Asset.
18.5 Indemnity re acts of Trustee's delegates
The Trustee covenants it will duly observe and perform the covenants and
obligations of this Deed, and the Trustee will be personally liable to
the Servicers, the Noteholders, the Beneficiary of any Trust, the Note
Managers or the other Creditors, as the case may be only if it is guilty
of negligence, fraud or Default. The Trustee is not responsible for the
acts or omissions of its agents or delegates (including persons referred
to in clause 17.6 of this Deed) selected by the Trustee in good faith
and using reasonable care, except where the Trustee expressly instructs
the agent or delegate to do (or omit to do) the relevant act, if the
Trustee is aware of the default of the agent or delegate 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 Trustee is so liable.
18.6 Forward notices etc to Manager
The Trustee shall without delay forward to the Manager all notices,
reports, circulars and other documents received by it or on its behalf
as trustee of a Trust except to the extent they are received from the
Manager.
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18.7 Trustee will implement Manager's directions
Subject to this Deed and any other Transaction Document to which it is a
party, the Trustee will act on all directions given to it by the Manager
in accordance with the terms of this Deed.
18.8 Custodian
(a) Subject to the Custodian Agreement, the Trustee may lodge any
Relevant Document or any documents of title to or evidencing any
Asset in its vault or, with the prior consent of the relevant
Approved Seller, the relevant Servicer and the Manager, in the
vault of a subcustodian, on behalf of the Trustee or with a
recognised clearing system to the order of the Trustee or
subcustodian on behalf of the Trustee.
(b) Nothing in this Deed shall prevent the Manager, a Servicer or the
Trustee from acting as Custodian of Relevant Documents or any
documents of title to or evidencing any Asset, provided that the
Trustee, if acting in that capacity, shall allow the Manager, any
relevant Servicer and any relevant Approved Seller to have access
to them during normal business hours on reasonable notice.
18.9 Bank accounts
The Trustee will open and operate the bank accounts in accordance with
clause 22.
18.10 Perform transaction documents
The Trustee shall properly perform the functions which are necessary for
it to perform under all Transaction Documents in respect of a Trust.
19. Trustee's fees and expenses
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19.1 Trustee's fee
In consideration of the Trustee performing its functions and duties
under this Deed, the Trustee shall be entitled to deduct from each Trust
a fee in the amount and at the times set out in the corresponding
Supplementary Terms Notice.
19.2 Reimbursement of expenses
In addition to the Trustee's remuneration under clause 19.1, the Trustee
shall pay, or be reimbursed, from a Trust all Expenses that relate to
that Trust properly incurred by the Trustee. These will be paid or
reimbursed in accordance with the corresponding Supplementary Terms
Notice.
19.3 Segregation of Trust Expenses
The Manager directs the Trustee to segregate, and apply, all Expenses to
the Trust to which they relate.
20. Removal, retirement and replacement of trustee
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20.1 Retirement for Trustee's Default
The Trustee shall retire as trustee of the Trusts if and when directed
to do so by the Manager in writing (which direction must be copied to
each Servicer and, if any of the Trusts are Rated Trusts, the Designated
Rating Agency). A direction may only be given on the occurrence of one
or more of the following events (each a Trustee's Default):
(a) (Insolvency Event) an Insolvency Event has occurred and is
continuing in relation to the Trustee in its personal capacity;
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(b) (rating downgrade) any action is taken in relation to the Trustee
in its personal capacity which causes the rating of any Notes to
be downgraded or withdrawn;
(c) (breach by the Trustee) the Trustee, or any employee or officer
of the Trustee breaches any obligation or duty imposed on the
Trustee under this Deed or any other Transaction Document in
relation to a Trust where the Manager reasonably believes it may
have a Material Adverse Effect and the Trustee fails or neglects
after 30 days' notice from the Manager, if capable of remedy, to
remedy that breach;
(d) (merger or consolidation) the Trustee merges or consolidates with
another entity without ensuring that the resulting merged or
consolidated entity assumes the Trustee's obligations under the
Transaction Documents; or
(e) (change in control) there is a change in effective control of the
Trustee from that subsisting as at the date of this Deed to a
Competitor unless approved by the Manager.
If a direction is given on the occurrence of an event under paragraph
(e) that direction must specify a date for the Trustee to retire which
is no less than 6 months from the date of that direction, provided that
the Manager may at its discretion direct that the Trustee be paid the
equivalent amount of the Trustee's Fee in lieu of this notice period.
20.2 Manager may remove recalcitrant Trustee
(a) In default of the Trustee retiring in accordance with clause 20.1
within 30 days of being directed by the Manager in writing to do
so the Manager shall have the right to and shall by deed poll
executed by the Manager remove the Trustee from its office as
trustee of the Trusts.
(b) Where the Trustee is removed under clause 20.1(a), (b), (c) or
(d) it shall (as trustee of the relevant Trust) bear the
reasonable costs of its removal. The Trustee indemnifies the
Manager and the Trust for those costs.
20.3 Manager appoints replacement
On the retirement or removal of the Trustee under clause 20.1 or 20.2
the Manager, subject to giving prior notice to the Designated Rating
Agency in relation to a Rated Trust, shall be entitled to appoint in
writing some other statutory trustee to be the Trustee under this Deed
provided that appointment will not in the reasonable opinion of the
Manager materially prejudice the interests of Noteholders. Until the
appointment is completed the Manager shall act as Trustee and will be
entitled to the Trustee's Fee for the period it so acts as Trustee.
20.4 Voluntary retirement
The Trustee may, subject to clause 20.5, resign on giving to the Manager
(with a copy to the Designated Rating Agency) not less than 3 months'
notice in writing (or such other period as the Manager and the Trustee
may agree) of its intention to do so.
20.5 No resignation by Trustee unless successor appointed
The Trustee must not resign under clause 20.4 unless:
(a) either:
(i) it procures that, before the date on which that
termination becomes effective, another person assumes all
of the obligations of the Trustee under the Transaction
Documents as its successor, and executes such documents as
the Manager reasonably requires to become bound by the
Transaction Documents, with effect from that date, as if
it had originally been a party to the Transaction
Documents as the Trustee; or
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(ii) the Manager elects to perform itself the obligations and
functions which the Transaction Documents contemplate
being performed by the Trustee;
(b) the appointment of the successor Trustee, or (as the case may be)
the election of the Manager, will not materially prejudice the
interests of Noteholders; and
(c) in the case of the appointment of a successor Trustee pursuant to
paragraph (a), the appointment is approved by the Manager.
20.6 Manager to act as Trustee if no successor appointed
If at the end of the period of notice specified in a notice given under
clause 20.4, no successor Trustee has been appointed, as contemplated by
clause 20.5(a)(i):
(a) the Manager must itself perform as trustee the obligations and
functions which the Transaction Documents contemplate being
performed by the Trustee, until a successor Trustee is appointed
in accordance with this Deed; and
(b) the resignation of the Trustee will become effective.
20.7 Trusts to be vested in new Trustee
The Trustee shall, on retirement or removal, vest the Trusts or cause
these to be vested, in the new Trustee.
20.8 Release of outgoing Trustee
On retirement or removal and provided there has been payment to the
Manager or the new Trustee (as the case may be) of all sums due to it by
the outgoing Trustee under the Transaction Documents at that date, the
outgoing Trustee shall be released from all further obligations under
the Transaction Documents. No release under this clause shall extend to
any liability of the Trustee under this Deed in respect of any act,
omission or event occurring prior to such release.
20.9 New Trustee to execute deed
On appointment of the new Trustee of the Trusts the new Trustee shall:
(a) execute a deed in such form as the Manager may require under
which it undertakes to the Manager (for the benefit of the
Manager, St.George, the Servicers, the Beneficiaries, the other
Creditors and the Noteholders jointly and severally) to be bound
by all the obligations of the outgoing Trustee under the
Transaction Documents from the date of the deed;
(b) on and from the date of execution of the new deed, exercise all
the powers, enjoy all the rights and be subject to all duties and
obligations of the Trustee under the Transaction Documents as if
the new Trustee had been originally named as a party to the
Transaction Documents; and
(c) indemnify the outgoing Trustee for the amount of all Notes issued
in the name of the outgoing Trustee and maturing on or after the
date of the retirement or removal of the outgoing Trustee and for
all other liabilities and expenses incurred by the outgoing
Trustee for which it is entitled to be indemnified out of the
Trusts and which have not been recouped by it, but the liability
of the new Trustee under such indemnity shall be limited to the
same extent provided for in clause 30.13 and any payment shall
rank in the same priority under clause 24 as the corresponding
liability for which the outgoing Trustee claims such
indemnification.
20.10 Manager and outgoing Trustee to settle amounts payable
(a) The Manager shall be entitled to settle with the outgoing Trustee
the amount of any sums payable by the outgoing Trustee to the
Manager or the new Trustee or by the Manager to the outgoing
Trustee and to give or accept from the outgoing Trustee a
discharge and any such agreement or discharge shall (except in
the case of any liability of the outgoing
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Trustee under this Deed in respect of any act, omission or event
occurring prior to the release of the outgoing Trustee be
conclusive and binding on all persons (including the Manager, the
new Trustee, St.George, the Beneficiary, the Noteholders and any
other Creditors).
(b) Even though no new Trustee is appointed in its place (except as
contemplated by Clause 20.6), the Manager may make such
arrangements as it thinks fit for the discharge of the outgoing
Trustee from any existing liability and any liability which might
arise under the Transaction Documents and any discharge of the
outgoing Trustee in accordance with such arrangements shall
(except as stated above) be conclusive and binding on all persons
claiming under the Transaction Documents.
20.11 Outgoing Trustee to retain lien
Notwithstanding the retirement or removal of the outgoing Trustee and
the indemnity in favour of the Trustee by the new Trustee as
contemplated by clause 20.9(c), the outgoing Trustee will retain a lien
over a Trust to meet claims of any Creditors of the Trustee in its
capacity as trustee of that Trust to the extent that the claims of those
Creditors are not properly and duly satisfied by the incoming Trustee.
20.12 Delivery of books, documents, etc
(a) On the retirement or removal of the Trustee in accordance with
the provisions of this clause 20 the outgoing Trustee shall
immediately deliver to the new Trustee appointed in respect of
any Trust (or the Manager if it is acting as Trustee) the Data
Base and all other books, documents, records and property
relating to the Trusts. Any related costs and expenses incurred
by the incoming Trustee and, in the case of retirement under
clause 20.1(c) only, the outgoing Trustee are to be paid out of
the relevant Trust.
(b) The outgoing Trustee shall be entitled to take, and retain as its
own property, copies of such books, documents and records. Each
of the Manager and the new Trustee shall produce the originals of
such books, documents and records in its possession on the giving
of reasonable written notice by the outgoing Trustee.
20.13 Notice to Noteholders of New Trustee
As soon as practicable after the appointment of a new Trustee under this
clause 20, the new Trustee shall notify the Noteholders of its
appointment and the Manager shall notify each Designated Rating Agency
(if any), each other party to the Transaction Documents and, where the
Notes are listed, the relevant Stock Exchange.
PART H. ADMINISTRATION OF TRUSTS
21. Bank accounts
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21.1 Opening of bank accounts
(a) (Collection Account) The Trustee must open at least one account
with an Approved Bank into which Collections can be paid.
(b) (Separate bank accounts for each Trust) The Trustee must open and
maintain a separate account with an Approved Bank in respect of
each Trust.
(c) (Additional bank accounts) The Trustee may open such additional
accounts with an Approved Bank in respect of a Trust as it sees
fit or as required by the Transaction Documents. In relation to a
Rated Trust, only the accounts specified in the Transaction
Documents for that Trust may be opened.
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(d) (Change bank accounts) If an account in respect of a Trust is
held with a bank which ceases to be an Approved Bank then the
Trustee shall as soon as practicable on becoming aware of that
fact (and in any event within 30 days):
(i) close that account: and
(ii) transfer all funds standing to the credit of that account
to another existing account in respect of that Trust with
an Approved Bank or, if none, the Trustee shall
immediately open an account with an Approved Bank.
21.2 Location of bank accounts
(a) (Central bank account) Unless otherwise directed in writing by
the Manager the central bank account of each Trust shall for so
long as St.George is an Approved Bank be opened and maintained at
a branch in New South Wales of St.George.
(b) (Interstate branch bank accounts) The Trustee may, if necessary
or desirable for the operation of a Trust, open bank accounts
with a branch outside New South Wales of an Approved Bank (which
shall, unless the Manager otherwise determines, be St.George for
so long as it is an Approved Bank) provided that if such accounts
are opened it shall enter into arrangements so that as soon as
practicable after the receipt of moneys to the credit of such
accounts, such moneys are to be transferred to the credit of the
central bank accounts of the Trust in New South Wales (subject to
a direction to the contrary by the Manager under clause 21.2(a)).
21.3 Name of bank accounts
Each bank account for a Trust shall be opened by the Trustee in its name
as trustee of the Trust.
21.4 Purpose of bank accounts
No bank account shall be used for any purpose other than for the
relevant Trust in respect of which the account is maintained and other
than in accordance with this Deed and the Transaction Documents.
21.5 Authorised signatories
The only authorised signatories for any bank account are to be officers
or employees of the Trustee or a Related Body Corporate of the Trustee.
21.6 Manager not entitled to have access
Except as expressly provided in this Deed the Manager may not deal with
any bank account or the moneys in any bank account in any way.
21.7 Bank statements and account information
(a) (Copies of bank statements) The Trustee shall promptly on receipt
of a statement in respect of each bank account for a Trust
provide a copy to the Manager (and any other person from time to
time specified by the Manager).
(b) (Direct access) Subject to the Privacy Act, the Trustee
authorises the Manager (and any other person from time to time
specified by the Manager) to obtain direct from an Approved Bank,
statements and information in relation to each bank account of a
Trust.
21.8 Deposits
Subject to this Deed, the Servicing Agreement and any relevant
Supplementary Terms Notice, the Trustee shall pay (or cause the relevant
Servicer to pay) into a bank account of a Trust within one Business Day
of receipt the following moneys and proceeds:
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(a) (subscription moneys) all subscription moneys raised in respect
of Notes issued by the Trustee in its capacity as trustee of the
Trust;
(b) (proceeds) all proceeds of the Authorised Investments and Support
Facilities in respect of the Trust; and
(c) (other moneys) all other moneys received by the Trustee in
respect of the Trust.
21.9 Withdrawals
Subject to this Deed and the Transaction Documents, the Trustee shall
withdraw funds from a bank account of a Trust and apply the same when
necessary for the following outgoings:
(a) (Authorised Investments) purchasing Authorised Investments and
making payments required in connection with Authorised
Investments;
(b) (payments to Creditors etc) making payments to the Creditors or
the Beneficiary in relation to the Trust, including through any
Paying Agent; and
(c) (other payments) making payments to any other person of Expenses
or other amounts entitled to be paid to or retained for their
respective benefit under this Deed or any other Transaction
Document.
21.10 All transactions through central accounts
(a) (Receipts and outgoings) Unless otherwise directed by the Manager
or as otherwise provided in the Transaction Documents, all moneys
and proceeds in relation to a Trust referred to in clause 21.8
shall, subject to Clause 21.10(b), be credited to the central
bank account of the Trust (whether credited direct to the central
account or transferred from an interstate bank account of the
Trust) and all outgoings of a Trust referred to in clause 21.9
shall, subject to clause 21.10(b), be paid from the central bank
account of the Trust (either by direct payment or by transfer to
an interstate bank account of the Trust).
(b) (Bank charges, etc) Any amounts referred to in paragraph (m) of
the definition of Expenses in clause 1.1 to the extent they
relate to an interstate bank account of a Trust may be deducted
or withdrawn direct from the interstate bank account.
22. Auditor
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22.1 Auditor must be registered
The Auditor of each Trust shall be a firm of chartered accountants some
of whose members are Registered Company Auditors.
22.2 Appointment of Auditor
The Auditor of each Trust shall be a person nominated by the Manager and
agreed to by the Trustee (that agreement not to be unreasonably
withheld) and shall be appointed by the Trustee within three months of
the creation of that Trust under this Deed on such terms and conditions
as the Trustee and the Manager agree. The Auditor holds office subject
to this clause.
22.3 Removal and retirement of Auditor
(a) (Removal by Trustee) Subject to paragraph (b) the Trustee may, on
giving one month's notice to the Auditor and the Designated
Rating Agency, remove the Auditor as Auditor of a Trust on
reasonable grounds (to be notified to the Manager before notice
of removal is given to the Auditor).
(b) (Removal at request of Manager or Noteholders) The Trustee may,
on the recommendation of the Manager and shall, if so requested
by an
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Extraordinary Resolution of Noteholders of a Trust, remove the
Auditor as Auditor of a Trust.
(c) (Retirement) An Auditor may retire at any time on giving six
months' written notice (or such shorter period approved by the
Manager and the Trustee) to the Trustee of its intention to
retire as Auditor of a Trust.
22.4 Appointment of replacement Auditor
The Trustee shall fill any vacancy in the office of Auditor by
appointing:
(a) where the Auditor was removed by Extraordinary Resolution of
Noteholders, and a person was nominated to be appointed as
Auditor in that resolution, that person; or
(b) in any other case, a person nominated by the Manager and
qualified to be appointed Auditor under this clause,
but only where that appointment would not lead to the rating from the
relevant Designated Rating Agency on any rated Notes to be withdrawn or
downgraded.
22.5 Auditor may have other offices
An Auditor may also be the auditor of the Trustee, the Lead Manager, any
Note Manager, the Manager, a Servicer or any of their Related Bodies
Corporate or of any other trust (whether of a similar nature to the
Trusts or otherwise) but a member of the firm appointed as an Auditor
may not be an officer or employee, or the partner of an officer or an
employee, of the Trustee, the Manager, a Servicer or any of their
Related Bodies Corporate.
22.6 Access to working papers
Each Auditor shall be appointed on the basis that it will make its
working papers and reports available for inspection by the Trustee and
the Manager.
22.7 Auditor's remuneration and costs
The Trustee may pay out of a Trust, or reimburse itself from a Trust,
the reasonable remuneration of the Auditor of the Trust as agreed
between the Manager and the Auditor and notified to the Trustee and any
reasonable expenses of the Auditor of the Trust sustained in the course
of the performance of the duties of the Auditor.
22.8 Access to information
The Auditor of a Trust shall be entitled to require from the Manager and
the Trustee, and they shall furnish to the Auditor, such information,
accounts and explanations as may be necessary for the performance by the
Auditor of its duties under this Deed.
23. Accounts and audit
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23.1 Keeping accounts
The Manager and the Trustee shall, having regard to their separate
functions, keep or cause to be kept accounting records which provide a
true and fair view of all sums of money received and expended by or on
behalf of each Trust, the matters in respect of which such receipt and
expenditure takes place, of all sales and purchases of Authorised
Investments and of the assets and liabilities of each Trust. The Manager
and the Trustee shall furnish each to the other from time to time any
information necessary for this purpose.
23.2 Location and inspection of books
The accounting records of each Trust shall be kept at the office of the
Trustee or the Manager (as the case may be) or at such other place as
the Trustee and the Manager may from time to time agree and shall be
open to the inspection of the
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Manager, the Trustee, the Auditor of the Trust and the relevant
Beneficiary on reasonable notice and during usual business hours.
23.3 Accounts to be kept in accordance with Approved Accounting Standards
The accounting records of each Trust shall be maintained in accordance
with the Approved Accounting Standards and in a manner which will enable
true and fair Accounts of the Trust to be prepared and audited in
accordance with this Deed.
23.4 Preparation of annual Accounts
The Manager shall cause the preparation of the Accounts for each
Financial Year of each Trust.
23.5 Annual audited Accounts
The Manager shall require the Auditor to audit the Accounts prepared by
the Manager in respect of each Trust within 3 months of the end of each
financial year of the Trust.
23.6 Inspection and copies of audited Accounts
A copy of the audited Accounts of a Trust and any Auditor's report shall
be available for inspection, but not copying, by the Noteholders in
relation to the Trust at the offices of the Manager and the Note
Trustee.
23.7 Tax returns
The Manager shall, or shall require the Auditor to:
(a) prepare and lodge all necessary income tax returns and other
statutory returns for each Trust; and
(b) confirm that all the income of each Trust has either been
distributed or offset by deductible losses or expenses or that no
Trust has any liability to pay income tax.
23.8 Audit
The Manager must require the Auditor, as part of each annual audit
carried out by the Auditor in relation to each Trust, to provide a
written report to the Trustee, the Security Trustee and the Designated
Rating Agency as to:
(a) the nature and extent of the audit performed (as specified by the
Manager and the Trustee);
(b) any breaches of the obligations of any of the parties to the
Transaction Documents for that Trust identified by the Auditor
within the parameters of the audit specified under paragraph (a);
and
(c) any errors in or omissions from any reports or information
provided by any party to a Transaction Document for that Trust to
another party under that Transaction Document identified by the
Auditor within the parameters of the audit specified under
paragraph (a),
that report to be in the form agreed by the Trustee and the Manager and
previously notified to the Designated Rating Agency.
23.9 No Responsibility for Servicer
Provided that it complies with its obligations under clause 14, the
Manager shall have no liability to any person under this clause 23 if it
fails to keep records relating to the Assets of a Trust and that failure
is caused by the failure of the relevant Servicer to keep any records
and provide any reports which it is obliged to keep and provide under
the relevant Servicing Agreement except where the Servicer's failure is
due to the fraud, negligence or wilful default of the Manager.
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24. Payments
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24.1 Cashflow allocation methodology
Collections in relation to a Trust and other amounts credited to the
Collection Account for a Trust will be allocated by the Manager on
behalf of the Trustee, and paid by the Trustee as directed by the
Manager, in accordance with the Supplementary Terms Notice for that
Trust.
24.2 Payments to Beneficiary
(a) (Distributable Income absolutely vested) The Beneficiary of a
Trust shall as at the end of each Financial Year of that Trust
have an absolute vested interest in the Distributable Income of
that Trust for that Financial Year.
(b) (Distributable Income due as at close of Financial Year) The
Distributable Income of a Trust for a Financial Year (to the
extent not previously distributed) shall, subject to clause
24.3, constitute a debt due as at the end of the Financial Year
by the Trustee in its capacity as trustee of the Trust to the
Beneficiary entitled to the Distributable Income under clause
24.2(a) and shall, subject to clause 24.3, be payable under
clause 24.2(c).
(c) (Payment of Distributable Income) Subject to clause 24.3, the
Trustee may make interim distribution of the Distributable
Income of a Trust to the relevant Beneficiary in accordance with
the terms of the Supplementary Terms Notice for that Trust and
shall as soon as practicable after the end of a Financial Year
transfer an amount representing the Distributable Income of the
Trust (to the extent not previously distributed) from the
central bank account of the Trust to the bank account of the
Beneficiary of the Trust as directed by the Beneficiary.
(d) (Residual capital) On the termination of a Trust, the surplus
capital of the Trust remaining after satisfaction by the Trustee
of all its obligations in respect of the Trust shall be paid to
the Beneficiary of the Trust.
24.3 Subordination of Beneficiary's Entitlements
(a) No moneys may be paid out of a Trust during a Financial Year to
a Beneficiary under clause 24.2, whilst there is any amount due,
but unpaid, which is in accordance with clause 24.1 to be paid
in priority to those amounts and before the Trustee is
satisfied, after consulting with the Manager, that sufficient
allowance has been made for those priority amounts in relation
to the Trust, accruing during the Financial Year. To the extent
that there is an amount payable under clause 24.1 which is to be
paid in priority to the amounts payable to the Beneficiary, the
Beneficiary directs the Trustee to meet the amount payable under
clause 24.1 as an application of the Beneficiary's entitlement
to the Distributable Income of the Trust.
(b) Notwithstanding paragraph (a), once an amount is paid out of a
Trust to a Beneficiary during a Financial Year, that amount may
not be recovered from that Beneficiary for any reason or by any
person except to the extent that amount was paid in error.
24.4 Insufficient moneys
If after the application of the provisions of clause 24.1 there is
insufficient money available to the Trustee in respect of a Trust to pay
the full amount due to Noteholders in the Trust, the deficiency shall,
subject to the Supplementary Terms Notice for the Notes or any Class of
the Notes issued in relation to the Trust, be borne by the Noteholders
in the manner set out in the relevant Supplementary Terms Notice.
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24.5 Income or capital
The Manager shall determine whether any amount is of an income or
capital nature in accordance with clause 24.6 and, subject only to a
contrary determination by the Auditor of the relevant Trust in
accordance with clause 24.6, the determination by the Manager shall be
final and binding.
24.6 Income of Trust
(a) The income of each Trust for each Financial Year will include:
(i) any amount (including a profit made by the Trustee)
which is included in the assessable income of the Trust
for the purposes of the Taxation Act (other than Part
IIIA);
(ii) any realised capital gains derived by the Trustee to the
extent to which the same are reflected in the net
capital gain (if any) calculated under Part IIIA of the
Taxation Act which is included in the assessable income
of the Trust for the purposes of the Taxation Act,
and otherwise will be determined in accordance with Approved
Accounting Standards. All periodic income of the Trust will be
deemed to accrue from day to day and will be brought to account
as arising on a daily basis where that is required for tax
purposes (using a daily accruals method of accounting where that
is the method required for tax purposes).
(b) The expenses of each Trust for each Financial Year will include
losses or outgoings which are allowable deductions in
calculating the net income of the Trust under Section 95(1) of
the Taxation Act and otherwise will be determined in accordance
with Approved Accounting Standards. All periodic expenses of the
Trust will be deemed to accrue from day to day and will be
brought to account on a daily basis where that is required for
tax purposes (using a daily accruals method of accounting where
that is the method required for tax purposes).
(c) The Manager will determine the Net Accounting Income for each
Trust for each Financial Year by applying against the income of
the Trust for that Financial Year:
(i) so much of the expenses specified in paragraph (b) as
are referable to that Financial Year; and (ii) any Net
Accounting Loss carried forward from a preceding
Financial Year.
The balance of the income of the Trust for the Financial Year
remaining after those applications will constitute the Net
Accounting Income for that Financial Year except where the
amount is negative, in which case, it will be the Net Accounting
Loss for that Financial Year.
(d) The Net Accounting Income in respect of a Financial Year for
each Trust will constitute the distributable income
(Distributable Income) of the Trust for that Financial Year.
PART I. SERVICERS & LEAD MANAGER
25. Appointment of servicer
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Each Servicer shall be appointed, and shall act, as servicer of any
Receivables, Receivable Securities and Related Securities on and subject
to the terms of the relevant Servicing Agreement.
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26. Lead manager and note managers
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26.1 Appointment of Lead Manager and Note Managers
(a) The Trustee and the Manager may appoint any one or more persons
to be Lead Manager or Note Manager or both in relation to any
issue of Notes, with remuneration determined by the Manager and
such Lead Manager or Note Manager. An issue of Notes may have
more than one Lead Manager and more than one Note Manager. An
issue of Notes under a Trust may have a different Lead Manager,
or different Lead Managers or Note Managers, from other issues
of Notes under that Trust.
(b) The Trustee and the Manager may terminate the appointment of a
Lead Manager or Note Manager at any time.
26.2 Fees
The Trustee shall be entitled to pay from each Trust from which any
person is a Lead Manager or Note Manager fees (if any) to that person in
the amount and at the times set out in the corresponding Note Issue
Direction or Subscription Agreement.
PART J. REPRESENTATIONS, POWERS AND INDEMNITIES
27. Representations and warranties
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27.1 General representations and warranties
Each party makes the following representations and warranties for the
benefit of the others:
(a) (status) it is a corporation duly incorporated and existing
under the laws of its place of incorporation and the
Commonwealth of Australia;
(b) (power) it has the power to enter into and perform its
obligations under each Transaction Document to which it is a
party, to carry out the transactions contemplated by this Deed
and each other Transaction Document to which it is a party and
to carry on its business as now conducted or contemplated;
(c) (corporate authorisations) it has taken all necessary corporate
action to authorise the entry into, delivery and performance of
each Transaction Document to which it is a party and to carry
out the transactions contemplated by such Transaction Documents;
(d) (obligations binding) its obligations under each Transaction
Document to which it is a party are legal, valid, binding and
enforceable in accordance with their respective terms (subject
to laws relating to insolvency and general doctrines of
insolvency, except in the case of an Approved Seller with
respect to any Sale Notice and the transactions contemplated
therein);
(e) (transactions permitted) the execution, delivery and performance
by it of each Transaction Document to which it is a party and
each transaction contemplated under those documents will not
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any provision of:
(i) a law or treaty or a judgment, ruling, order or decree
of a Government Agency binding on it (including, without
limitation, Consumer Credit Legislation);
(ii) its memorandum or articles of association; or
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(iii) any other document or agreement which is binding on it
or its assets,
which is material in the context of performing its
duties under each Transaction Document to which it is a
party; and
(f) (Authorisations) it holds all Authorisations (in the case of the
Trustee, which relate to it in its capacity as trustee and will
take all actions necessary to assist the Manager to obtain all
other Authorisiations) necessary to carry on its business and to
act as required by each Transaction Document to which it is a
party and by law to comply with the requirements of any
legislation and subordinate legislation (including to the extent
relevant, any Consumer Credit Legislation).
27.2 Trustee entitled to assume accuracy of representations and warranties
Each Noteholder acknowledges that the Trustee is not under any
obligation to:
(a) make any enquiries in respect of Receivables and related
Receivable Rights and any other Assets which a prudent purchaser
of such assets would be expected to make;
(b) conduct any investigation to determine if the representations
and warranties given by the Approved Seller in relation to the
Receivables, Receivable Securities and Related Securities are
incorrect; or
(c) to test the truth of those representations and warranties,
and is entitled to conclusively accept and rely entirely on the
Receivables satisfying the Eligibility Criteria and on the accuracy of
the representations and warranties made by a Servicer or an Approved
Seller, unless the Trustee has actual notice of any event to the
contrary.
PART K. ASSET REGISTER AND MEETINGS OF NOTEHOLDERS
28. Asset register
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(a) The Trustee shall keep or cause to be kept an asset register
with respect to each Trust, in which shall be entered the
Authorised Investments and other Assets of the Trust (other than
Purchased Receivables and the related Receivable Rights) entered
into the relevant asset register on an individual basis.
(b) Each asset register shall be:
(i) (place kept) kept at the Trustee's principal office in
Melbourne or at such place as the Trustee and the
Manager may agree;
(ii) (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;
(iii) (inspection by Noteholder) open for inspection by a
Noteholder during normal business hours but only in
respect of information relating to that Noteholder; and
(iv) (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.
29. Meetings of noteholders
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Meetings of Noteholders of a Trust will be held in accordance with the
Note Trust Deed applicable to that Trust and each Noteholder is subject
to and bound by the provisions of that Note Trust Deed. A meeting held,
or a resolution passed, at a meeting under the Note Trust Deed will be
taken to be a meeting
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held or resolution passed by Noteholders for the purposes of the
Transaction Documents.
30. Trustee's and manager's powers, liability and indemnity generally
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Without prejudice to any indemnity allowed by law or elsewhere in this
Deed given to the Trustee or the Manager, it is expressly declared as
follows. In this clause 30, Relevant Party means each of the Manager,
the Servicer, the Calculation Agent, the Custodian, each Paying Agent,
the Note Trustee, and the provider of a Support Facility.
30.1 Reliance on certificates
The Trustee and the Manager 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 (in the case of the
Trustee only), by the Trustee (in the case only of the Manager) or by an
Approved Seller or a Relevant Party) if the Trustee or the Manager is
entitled, under clause 30.2 to assume such authenticity, validity, due
authorisation or accuracy.
In preparing any notice, certificate, advice or proposal the Trustee and
the Manager shall be entitled to assume, unless (in the case of the
Trustee) it is actually aware to the contrary or (in the case of the
Manager) it is actually aware or should reasonably be 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 any Trust, will perform their
obligations under those documents in full by the due date and otherwise
in accordance with their terms.
30.2 Trustee's reliance on Manager, Approved Seller 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 Trustee, the
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 or any information contained in any such
documents,
in either case unless the officers of the Trustee responsible
for the administration of the relevant Trust are not actually
aware to the contrary.
(b) (Trustee not liable for loss) The 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
Approved Seller or any Relevant Party or any officer, employee,
agent or delegate of the Approved Seller or the Relevant Party
in preparing any such document or in compiling, verifying or
calculating any matter or information contained in any such
document, if the officers of the Trustee responsible for the
administration of the relevant Trust are not actually aware of
such forgery, lack of authenticity or validity, act, neglect,
mistake or discrepancy.
30.3 Manager's reliance on Trustee, Approved Seller or Servicer
(a) (Trustee's Authorised Signatories are sufficient evidence)
Whenever any certificate, notice, proposal, direction,
instruction, document or other communication is to be given to
the Manager, the
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Manager may (unless, in the case of such communication from the
Servicer, the Manager and the Servicer are the same entity)
assume:
(i) the authenticity and validity of any signature in any
such document and that such document had been duly
authorised; and
(ii) the accuracy of any information contained in any such
document,
in either case, unless it is actually aware or should reasonably
have been aware to the contrary.
(b) (Manager not liable for loss) The Manager shall not be
responsible for any loss arising from any act, forgery or lack
of authenticity or validity, or any neglect, mistake or
discrepancy of the Trustee, an Approved Seller or a Servicer or
any officer, employee, agent or delegate of the Trustee, the
Approved Seller or the Servicer in preparing any such document
or in compiling, verifying or calculating any matter or
information contained in any such document, if the officers of
the Manager responsible for the administration of the relevant
Trust are not actually aware or should reasonably have been
aware to the contrary, of such forgery, lack of authenticity or
validity, act, neglect, mistake or discrepancy.
30.4 Compliance with laws The Trustee and the Manager shall not
incur any liability to anyone in respect of any failure to
perform or to do any act or thing which by reason of any
provision of any 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 Trustee and/or the Manager shall
be prohibited from doing or performing.
30.5 Reliance on experts
The Trustee and the Manager may rely on and act on the opinion or
statement or certificate or advice of or information obtained from a
Servicer, barristers or solicitors (whether instructed by the Manager or
the Trustee), bankers, accountants, brokers, valuers and other persons
believed by it in good faith to be expert or properly informed in
relation to the matters on which they are consulted and the Trustee and
the Manager shall not be liable for anything done or suffered by it in
good faith in reliance on such opinion, statement, certificate, advice
or information except:
(a) in the case of the Trustee, to the extent of losses, costs,
claims or damages caused by the Trustee's fraud, negligence or
Default; and
(b) in the case of the Manager, to the extent of losses, costs,
claims or damages caused or contributed to by its breach of its
obligations under any Transaction Document.
30.6 Oversights of others
Without limiting clause 18, but having regard to the limitations in the
Trustee's duties, powers, authorities and discretions under this Deed,
the Trustee and the Manager shall not be responsible for any act,
omission, misconduct, mistake, oversight, error of judgment,
forgetfulness or want of prudence on the part of any Relevant Party or
agent appointed by the Trustee or the Manager or on whom the Trustee or
the Manager 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 Trustee or the Manager
except:
(a) in the case of the Trustee, to the extent of losses, costs,
claims or damages caused by the Trustee's fraud, negligence or
Default; and
(b) in the case of the Manager, to the extent of losses, costs,
claims or damages caused or contributed to by its breach of its
obligations under any Transaction Document,
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provided that nothing in this Deed or any other Transaction Document
imposes any obligations on the Trustee to review or supervise the
performance by any other party of its obligations.
30.7 Powers, authorities and discretions
Except as otherwise provided in this Deed and in the absence of fraud,
negligence, or Default, the 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.
30.8 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 Trustee and the Manager shall not be under any
liability and, except to the extent (in the case of the Trustee only) of
its own fraud, negligence, or Default and (in the case of the Manager
only) its own breach of contract, nor shall either of them incur any
liability by reason of any error of law or any matter or thing done or
suffered or omitted to be done in good faith by either of them or their
respective officers, employees, agents or delegates.
30.9 Duties and charges
The Trustee and the Manager shall not be required to effect any
transaction or dealing with any Notes or with all or any part of the
Authorised Investments of a Trust on behalf or at the request of any
Noteholder or other person unless such Noteholder or other person (as
the case may be) shall first have paid in cash or otherwise provided to
its satisfaction for all duties, Taxes, governmental charges, brokerage,
transfer fees, registration fees and other charges (collectively duties
and charges) which have or may become payable in respect of such
transaction or dealing but the Trustee and the Manager shall be entitled
if it so thinks fit to pay and discharge all or any of such duties and
charges on behalf of the Noteholder or other person and to retain the
amount so paid of any moneys or property to which such Noteholder or
other person may be or become entitled under this Deed.
30.10 Legal and other proceedings
(a) (Indemnity for legal costs) The Trustee and the Manager shall be
indemnified out of a Trust for all legal costs and disbursements
on a full indemnity basis and all other cost, disbursements,
outgoings and expenses incurred by the Trustee and the Manager
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 such Trust provided that the enforcement,
contemplated enforcement or preservation by the Trustee or the
Manager (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 Trustee or the Manager
(as the case may be)), and the basis of incurring any those
costs, disbursements, outgoings and expenses by the Trustee or
the Manager (as the case may be):
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(iv) has been approved in advance by the Manager (such
approval not to be unreasonably withheld) (in the case
of the Trustee) or by an Extraordinary Resolution of the
Noteholders of the Trust;
(v) is regarded by the Trustee or the Manager (as the case
may be) as necessary to protect the interests of the
Noteholders in relation to a Trust following a breach by
the Manager or the Trustee (as the case may be) of its
obligations under this Deed and the Trustee or the
Manager (as the case may be) reasonably believes that
any delay in seeking an approval under paragraph (iv)
will be prejudicial to the interests of the Noteholders
in relation to the Trust or the Trustee or the Manager
(as the case may be); or
(vi) the Trustee or the Manager (as the case may be)
reasonably considers the incurring of those costs,
disbursements, outgoings and expenses to be necessary to
protect the Trustee or the Manager (as the case may be)
against potential personal liability.
(b) (Defence of proceedings alleging negligence etc.) Each of the
Trustee and the Manager shall be entitled to claim in respect of
the above indemnity from the relevant Trust for its expenses and
liabilities incurred in defending any action, suit, proceeding
or dispute in which (in the case of the Trustee) fraud,
negligence or Default or (in the case of the Manager) breach of
contract is alleged or claimed against it, but on the same being
proved, accepted or admitted by it, it shall from its personal
assets immediately repay to such Trust the amount previously
paid by such Trust to it in respect of that indemnity.
30.11 No liability except for negligence etc.
Except to the extent caused by the fraud, negligence or Default on its
part or on the part of any of its officers or employees, or any agents
or delegate, sub-agent, sub-delegate employed by the Trustee in
accordance with this Deed (and where this Deed provides that the Trustee
is liable for the acts or omissions of any such person) or by the
Manager to carry out any transactions contemplated by this Deed, the
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 Noteholder, any Beneficiary, the Manager or any
other person or for any loss howsoever caused in respect of any of the
Trusts or to any Noteholder, any Beneficiary, the Manager or other
person.
30.12 Further limitations on Trustee's liability
Subject to clauses 30.2 and 30.13, the Trustee shall not be liable:
(a) (for loss on its discretions) for any losses, costs, liabilities
or expenses arising out of the exercise or non-exercise of its
discretion (or by the Manager of its discretions) or for any
other act or omission on its part under this Deed, any other
Transaction Document or any other document except where the
exercise or non-exercise of any discretion, or any act or
omission, by the Trustee, or any of its officers or employees,
or any agent, delegate, sub-agent, sub-delegate employed by the
Trustee in accordance with this Deed (and where this Deed
provides that the 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 Default;
(b) (for loss on directions) 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 Relevant Party under this Deed, any other
Transaction Document or any other document;
(ii) by any person under a Support Facility, Receivable or
Receivable Security; or
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(iii) an Obligor,
except to the extent that it is caused by the fraud, negligence
or Default of the Trustee, or any of its officers or employees,
or an agent or delegate employed by the Trustee in accordance
with this Deed to carry out any transactions contemplated by
this Deed (and where this Deed provides that the Trustee is
liable for the acts or omissions of such person);
(c) (for certain defaults) for any Manager's Default, Servicer
Transfer Event or Title Perfection Event;
(d) (for acts of Servicer) without limiting the Trustee's
obligations under the Transaction Documents, for any act,
omission or default of a Servicer in relation to its servicing
duties or its obligations under the relevant Servicing
Agreement;
(e) (for acts of Custodian) without limiting the Trustee's
obligations under the Transaction Documents, for any act,
omission or default of a Custodian in relation to its custodial
duties or its obligations under the relevant Custodian
Agreement;
(f) (for acts of Note Trustee) without limiting the Trustee's
obligations under the Transaction Documents, for any act,
omission or default of a Note Trustee in relation to its
obligations under the Transaction Documents;
(g) (for acts of Paying Agent) without limiting the 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) (for acts of Calculation Agent) without limiting the Trustee's
obligations under the Transaction Documents, for any act,
omission or default of a Calculation Agent in relation to its
obligations under the Transaction Documents;
(i) (failure to comply) for the failure of a person to carry out an
agreement with the Trustee in connection with the Trust; or
(j) (failure to check) for any losses, costs, liabilities or
expenses caused by the Trustee's failure to check any
calculation, information, document, form or list supplied or
purported to be supplied to it by the Manager, Approved Seller
or Servicer,
except, in the case of paragraphs (c) to (j) (inclusive), to the extent
that it is caused by fraud, negligence or Default of the Trustee.
Nothing in this clause 30.12 alone (but without limiting the operation
of any other clause of this Deed) shall imply a duty on the Trustee to
supervise the Manager in the performance of the Manager's functions and
duties, and the exercise by the Manager of its discretions.
30.13 Liability of Trustee limited to its right of indemnity
(a) This Deed applies to the Trustee only in its capacity as trustee
of each Trust and in no other capacity (except where the
Transaction Documents provide otherwise). Subject to paragraph
(c) below, a liability arising under or in connection with this
Deed or a Trust can be enforced against the Trustee only to the
extent to which it can be satisfied out of the assets and
property of the relevant 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 any representation, warranty, conduct, omission, agreement
or transaction related to this Deed or a 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 relevant Trust or seek the
appointment of a receiver (except under
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the Security Trust Deed), or a liquidator, an administrator or
any similar person to the Trustee or prove in any liquidation,
administration or arrangements of or affecting the Trustee.
(c) The provisions of this clause 30.13 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 relevant
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 this Deed or any other
Transaction Document to fulfil its obligations relating to a
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, 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 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) Nothing in this clause limits the obligations expressly imposed
on the Trustee under the Transaction Documents.
30.14 Trustee's right of indemnity - general
(a) (Indemnity from each Trust) Subject to this Deed and without
prejudice to the right of indemnity given by law to trustees,
the Trustee will be indemnified out of the Assets of each Trust
against all losses and liabilities properly incurred by the
Trustee in performing any of its duties or exercising any of its
powers under this Deed in relation to that Trust.
(b) (Preservation of right of indemnity) Subject to clause 30.14(c),
and without limiting the generality of clause 30.14(a), the
Trustee's right to be indemnified in accordance with clause
30.14(a) and to effect full recovery out of the Assets of a
Trust, will apply in relation to any liabilities to Creditors of
the Trust notwithstanding any failure by the Trustee to exercise
a degree of care, diligence and prudence required of the Trustee
having regard to the powers, authorities and discretions
conferred on the Trustee under this Deed or any other act or
omission which may not entitle the Trustee to be so indemnified
and/or effect such recovery (including fraud, negligence or
Default).
(c) (Indemnity in certain circumstances held for Trust creditors)
Subject to paragraph (d) below, if the Trustee fails to exercise
the degree of care and diligence required of a trustee having
regard to the powers, authorities and discretions conferred on
the Trustee by this Deed or if any other act or omission occurs
which would, but for paragraph (b) above, prevent the Trustee
from being indemnified in accordance with paragraph (a) above or
to effect full recovery out of a Trust (including fraud,
negligence or Default):
(i) the Trustee may not receive or hold or otherwise have
the benefit of the indemnity given in clause 30.14(a)
otherwise than on behalf of and on trust for Creditors
in relation to that Trust; and
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(ii) the Trustee may only be indemnified to the extent
necessary to allow it to discharge its liability to
Creditors in relation to that Trust.
(d) (Not to limit rights of others) Nothing in clauses 30.14(a) to
(c) or 30.13 shall be taken to:
(i) impose any restriction on the right of any Noteholder, a
Beneficiary, the Manager or any other person to bring an
action against the Trustee for loss or damage suffered
by reason of the Trustee's failure to exercise the
degree of care and diligence required of a trustee
having regard to the powers, authorities and discretions
conferred on the Trustee by this Deed, including the
Trustee's fraud, negligence or Default; or
(ii) confer on the Trustee a right to be indemnified out of
the Assets of a Trust against any loss the Trustee
suffers in consequence of an action brought against it
by reason of the Trustee's breach of trust where the
Trustee fails to show the degree of care and diligence
required of a trustee having regard to the powers,
authorities and discretions conferred on the Trustee by
this Deed, including the Trustee's fraud, negligence, or
Default.
(e) (Not to limit Trustee's duty) Nothing in this Deed shall limit
the Trustee's duties and obligations under this Deed or prevent
or restrict any determination as to whether there has been, or
limit the Trustee's personal liability under this Deed for, a
fraud, negligence or Default on the part of the Trustee or its
officers or employees.
30.15 Trustee's right of indemnity - Consumer Credit Legislation
(a) (Indemnity from each Trust) Without prejudice to the right of
indemnity given by law to trustees, and without limiting any
other provision of this Deed, the Trustee will be indemnified
out of the Assets of each Trust, free of any set off or
counterclaim, against all Civil Penalty Payments which the
Trustee is required to pay personally or in its capacity as
trustee of that Trust in performing any of its duties or
exercising any of its powers under this Deed in relation to that
Trust.
(b) (Preservation of right and indemnity) Without limiting the
generality of paragraph (a), the Trustee's right to be
indemnified in accordance with clause 30.15(a), and to effect
full recovery out of the Assets of a Trust pursuant to such a
right, will apply notwithstanding any alleged failure by the
Trustee to exercise a degree of care, diligence and prudence
required of the Trustee having regard to the powers, authorities
and discretions conferred on the Trustee under this Deed or any
other alleged act or omission which may not entitle the Trustee
to be so indemnified and/or effect such recovery (including
alleged fraud, negligence or Default) and that is not related to
the liability.
(c) (Overriding) This clause 30.15 overrides any other provision of
this Deed.
(d) (Nominated credit provider) Unless otherwise specified in the
Supplementary Terms Notice, the Trustee nominates the Servicer,
in relation to each relevant Trust, as credit provider for the
purposes of regulation 75 of the Consumer Credit Legislation
with respect to Receivables held by the Trustee under the
relevant Trust. The Servicer agrees to be a credit provider for
the purposes of regulation 75 of the Consumer Credit Legislation
in relation to those Receivables.
(e) (Indemnity) Each Servicer that is a nominated credit provider
under Clause 30.15(d) indemnifies the Trustee in relation to
each relevant Trust, free of any set off or counterclaim,
against all Civil Penalty Payments which the Trustee is required
to pay personally or in its capacity as trustee of that Trust in
performing any of its duties or exercising any of its powers
under this Deed in relation to that Trust.
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(f) The Trustee shall call upon the indemnity under paragraph (e)
before it calls upon the indemnity in paragraph (a).
In this clause 30.15, Civil Penalty Payment means:
(i) the amount of any civil penalty which the Trustee is
ordered to pay under Part 6 of the Consumer Credit
Legislation;
(ii) any other money ordered to be paid by the Trustee, or
legal costs or other expenses payable or incurred by the
Trustee related to such an order;
(iii) any amount which the Trustee agrees to pay to an Obligor
or other person in settlement of an application for an
order under Part 6 of the Consumer Credit Legislation;
and
(iv) any legal costs or other costs and expenses payable or
incurred by the Trustee in relation to that application.
30.16 Right of indemnity
The Manager shall be indemnified out of the relevant Trust in respect of
any liability, cost or expense properly incurred by it in its capacity
as Manager of the relevant Trust.
30.17 Conflicts
(a) (No conflict) Nothing in this Deed shall prevent the Trustee,
the Manager or any Related Corporation or Associate of any of
them or their directors or other officers (each a Relevant
Person) (subject to any applicable laws and regulations) from:
(i) subscribing for purchase, holding, dealing in or
disposing of any Notes;
(ii) entering into any financial, banking, development,
insurance, agency, broking or other transaction with, or
providing any advice or services for any of the Trusts;
or
(iii) being interested in any such contract or transaction or
otherwise at any time contracting or acting in any
capacity as representative or agent.
(b) (Not liable to account) A Relevant Person shall not be in any
way liable to account to any Noteholder, any Beneficiary or any
other person for any profits or benefits (including any profit,
bank charges, commission, exchange, brokerage and fees) made or
derived under or in connection with any transaction or contract
specified in paragraph (a) above;
(c) (Fiduciary relationship) A Relevant Person shall not by reason
of any fiduciary relationship be in any way precluded from
making any contracts or entering into any transactions with any
such person in the ordinary course of 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 Noteholders, the Beneficiaries or any other
person for any profits arising from any such contracts,
transactions or offices.
30.18 Trustee not obliged to investigate the Manager etc
The Trustee shall be responsible only for so much of the Authorised
Investments, and the income and proceeds emanating from the Authorised
Investments as may be actually transferred or paid to it and the Trustee
is expressly excused from:
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(a) taking any action or actions to investigate the accounts,
management, control or activities of the Manager or any other
person; or
(b) inquiring into or in any manner questioning or bringing any
action, suit or proceeding or in any other manner seeking to
interfere with the management, control or activities (including
the exercise or non-exercise of powers and discretions) of such
persons or seeking to remove from office such persons, taking
any steps or bringing any action, suit or proceedings or in any
other manner seeking to vary, amend delete from or add to this
Deed or other instrument establishing the Trusts, or wind up any
of such persons or vest the Trusts.
30.19 Independent investigation of credit
(a) (Trustee and Manager may assume independent investigation) The
Trustee and the Manager shall be entitled to assume that each
Noteholder has, independently and without reliance on the
Trustee, the Manager, the Lead Manager or other Note Managers or
any other Noteholder, and based on documents and information as
each has deemed appropriate, made its own investigations in
relation to the Notes, the Trustee, the Manager and the
provisions of this Deed and any other Transaction Document and
has not entered into any Transaction Document as a result of any
inducement from the Trustee or the Manager.
(b) (Acknowledgement of independent investigation) Each Noteholder
agrees that it will, independently and without reliance on the
Trustee, the Manager, a Servicer or any other Noteholder and
based on documents and information as it shall deem appropriate
at the time, continue to make its own analysis and decisions as
to all matters relating to this Deed and any other Transaction
Document.
30.20 Information
Except for notices and other documents and information (if any)
expressed to be required to be furnished to any person by the Trustee
under this Deed or any other Transaction Document, the Trustee shall not
have any duty or responsibility to provide any person (including any
Noteholder or Beneficiary but not including the Manager) with any credit
or other information concerning the affairs, financial condition or
business of any of the Trusts.
30.21 Entering into Transaction Documents
Notwithstanding any other provision of this Deed, the Trustee is not
obliged to enter into any Transaction Document for a Trust unless the
Trustee, with the agreement of the Manager, has received independent
legal advice (if required by the Trustee) in relation to the Transaction
Document.
30.22 Reliance by Trustee
Notwithstanding any other provision of this Deed, in the absence of
actual knowledge to the contrary, the Trustee is entitled conclusively
to rely on and is not required to investigate the accuracy of:
(a) the contents of a Sale Notice given to it by an Approved Seller;
(b) the contents of any Manager's Report;
(c) any calculations made by an Approved Seller, a Servicer, the
Manager or a Calculation Agent under any Transaction Document
including the calculation of amounts to be paid to, or charged
against, Noteholders, the Beneficiary or the Seller on specified
dates; or
(d) the amount of, or allocation of, Collections.
30.23 Investigation by Trustee
The Manager, each Servicer, each Approved Seller, each Noteholder and
the Beneficiary of each Trust acknowledges that:
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(a) the 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 that Trust
other than where it has actual notice;
(b) the Trustee is required to provide the notices referred to in
this Deed in respect of a determination of 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 Trustee will seek and rely
on advice given to it by its advisors in a manner contemplated
by this Deed.
PART L. GENERAL PROVISIONS
31. Notices
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31.1 Notices generally
Subject to clause 31.2, every notice, certificate, request, direction,
demand or other communications required to or by a party to this Deed:
(a) must be in writing;
(b) must be signed by an Authorised Signatory of the sender;
(c) will be taken to be duly given or made:
(i) (in the case of delivery in person or by post, facsimile
transmission or cable) when delivered received or left
to the address of that party shown in this Deed (or at
such other address as may be notified in writing by that
party to the other party from time to time);
(ii) (in the case of telex) on receipt by the sender of the
answerback code of the recipient at the end of
transmission; or
(iii) (in the case of electronic mail) on receipt by the
sender of an acknowledgement of transmission,
but if delivery or receipt is on a day on which business is not
generally carried on in the place to which the communication is
sent or is later than 4pm (local time), it will be taken to have
been duly given or made at the commencement of business on the
next day on which business is generally carried on in that
place;
31.2 Notices to Noteholders
A notice, request or other communication by the Trustee, the Manager,
the Note Trustee or a Servicer to Noteholders shall be deemed to be duly
given or made if given or made in accordance with the relevant
Conditions.
31.3 Notices to Designated Rating Agencies
(a) The Manager shall provide a copy of each notice, request or
other communication by the Trustee, the Manager or a Servicer to
Noteholders in a Trust to each Designated Rating Agency (if any)
for the relevant Trust as from time to time agreed in writing
with that Designated Rating Agency, and where a Transaction
Document specifies that notice is to be given to each Designated
Rating Agency, but the person who is to give that notice is not
specified. Where a Transaction Document requires notice to be
given to a Designated Rating Agency, that requirement
constitutes an "agreement in writing" for the purposes of this
clause 31.3.
(b) The Manager, or failing it, the Trustee will notify each
Designated Rating Agency as soon as practicable after all of the
Notes in respect of a Trust have been repaid in full.
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32. Payments generally
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32.1 Payments to Noteholders
Any payment made by or on behalf of the Trustee in respect of any Note
shall be made in accordance with the Supplementary Terms Notice, the
Note Trust Deed and the Agency Agreement.
32.2 Trustee to arrange payments
The Trustee will:
(a) prepare or cause to be prepared all cheques which are to be
issued to Noteholders and to Beneficiaries and stamp the same as
required by law; or
(b) otherwise arrange payments under clause 32.1.
The Trustee will sign (by autographical, mechanical or other means)
cheques for despatch on the day on which they ought to be despatched.
32.3 Payment to be made on Business Day
If any payment is due under a Transaction Document on a day which is not
a Business Day (as defined for the purposes of that Transaction
Document, whether in this Deed or in that Transaction Document) the due
date will be the next Business Day (as defined for the purposes of that
Transaction Document, whether in this Deed or in that Transaction
Document) unless that day falls in the next calendar month, in which
case the due date will be the preceding Business Day (as defined for the
purposes of that Transaction Document, whether in this Deed or in that
Transaction Document).
32.4 Payment good discharge
There is a full satisfaction of the moneys payable under a Note, and a
good discharge to the Trustee, the Manager or the Servicer (as the case
may be) in relation to that Note, when so provided under the Note Trust
Deed.
32.5 Valid receipts
The receipt of the Trustee for any moneys shall exonerate the person
paying the same from all liability to make any further enquiry. Every
such receipt shall as to the moneys paid or expressed to be received in
such receipt, effectually discharge the person paying such moneys from
such liability or enquiry and from being concerned to see to the
application or being answerable or accountable for any loss or
misapplication of such moneys.
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 future Taxes of any
Australian Jurisdiction unless required by law.
(b) (Interest Withholding Tax) Payments on Notes by or on behalf of
the Trustee will be made subject to deduction for any interest
withholding tax imposed by the Commonwealth of Australia from
payments of interest in respect of the Notes to non-residents of
the Commonwealth of Australia who are 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 and all other withholdings
and deductions referred to in the relevant Condition of the
Notes.
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- --------------------------------------------------------------------------------
33. Amendment
- --------------------------------------------------------------------------------
33.1 Amendment without consent
Subject to clause 33.2, the Trustee, the Manager and a Servicer (in
relation to a Trust) may by way of supplemental deed alter, add to or
modify this Deed (including this clause 33) or (subject to clause
6.3(c)) a Supplementary Terms Notice in respect of any one or more
Trusts so long as such alteration, addition or modification either
complies with clause 33.2 or is:
(a) (correct manifest error) to correct a manifest error or
ambiguity or is of a formal, technical or administrative nature
only;
(b) (comply with law) necessary to comply with the provisions of any
statute or regulation or with the requirements of any Government
Agency;
(c) (change in law) appropriate or expedient as a consequence of an
amendment to any statute or regulation or altered requirements
of any Government Agency (including an alteration, addition or
modification which is appropriate or expedient as a consequence
of the enactment of a statute or regulation or an amendment to
any statute or regulation or ruling by the Commissioner or
Deputy Commissioner of Taxation or any governmental announcement
or statement, in any case which has or may have the effect of
altering the manner or basis of taxation of trusts generally or
of trusts similar to any of the Trusts);
(d) (not yet constituted Trust) to apply only in respect of a Trust
not yet constituted under this Deed; or
(e) (otherwise desirable) in the reasonable opinion of the Trustee,
the Manager and the Servicer desirable to enable the provisions
of this Deed to be more conveniently, advantageously, profitably
or economically administered or is otherwise desirable for any
reason.
33.2 Amendment with consent
Where in the reasonable opinion of the Trustee a proposed alteration,
addition or modification to this Deed is prejudicial or likely to be
prejudicial to the interests of the Noteholders (as to which the Trustee
may rely on a determination by the Note Trustee) or a Class of
Noteholders or the Beneficiaries in a particular then constituted Trust
such alteration, addition or modification may only be effected by the
Trustee with the prior consent of the Noteholders or a Class of
Noteholders (as the case may be) in the particular Trust under an
Extraordinary Resolution of the Noteholders or a Class of Noteholders
(as the case may be) in the Trust or with the prior written consent of
the Beneficiaries (as the case may be).
33.3 Copy of amendments to Noteholders
The Trustee shall on request by a Noteholder, provide the Noteholder
with a copy of the supplemental deed effecting any alteration, addition
or modification to this Deed.
33.4 Copy of amendments in advance to Designated Rating Agencies
The Manager shall provide a copy of a proposed alteration, addition or
modification to any Transaction Document in relation to a Rated Trust,
where the Transaction Document requires notice be given to the
Designated Rating Agency to each Designated Rating Agency (if any) for
the Rated Trust at least 5 Business Days (or such other period as may
from time to time be agreed by the Manager with the Designated Rating
Agency) prior to any alteration, addition or modification taking effect.
Notwithstanding any other provision of any Transaction Document, other
than clause 33.2 of this Deed, no alteration, addition or modification
thereof will be made if such alteration, addition or modification will
or does adversely affect the ratings (if any) of the Notes.
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34. Confidentiality
- --------------------------------------------------------------------------------
34.1 Confidential information
Each party shall keep, and shall procure that its officers and advisers
shall keep, the following matters (referred to in this clause 34 as
Confidential Information) strictly confidential to those officers and
advisers of the party whose involvement and knowledge is necessary:
(a) any information regarding, or copies of, any Transaction
Document or any transaction contemplated by any Transaction
Document; and
(b) any information disclosed by any party (including an Approved
Seller) to other parties in accordance with this Deed.
34.2 Exceptions
(a) Notwithstanding clause 34.1, a party may disclose Confidential
Information where:
(i) a Transaction Document requires or contemplates such
disclosure, including to the successors of a party, a
Designated Rating Agency, which has, pursuant to a
request by the Manager, rated such Notes in relation to
that Trust, and a provider of Support Facilities;
(ii) information is required to enter the public domain
pursuant to this Deed or which comes into the public
domain, for reasons other than a breach of this Deed;
(iii) information is required to be disclosed under any law or
by the listing rules of any relevant Stock Exchange;
(iv) any information is required to be disclosed by a
Government Agency;
(v) the other parties have given their consent to that
disclosure; or
(vi) information is legally required to be disclosed on
account of any discovery, judgement, order or decree of
any court or regulatory authority having jurisdiction.
(b) Disclosure under (a)(vi) shall only be made to the extent
legally required and the disclosing party must use its best
efforts to obtain reliable assurances that confidential
treatment conforming as nearly as practicable to the terms of
this clause 34 will be accorded to the Confidential Information
so disclosed by the entities to whom disclosure is made.
34.3 No merger
The rights and obligations of the parties under this clause 34 will not
merge on completion of any transaction under, or termination of, this
Deed and the Transaction Documents. They will survive the execution and
delivery of any assignment or other document entered into for the
purpose of implementing any transaction.
35. Miscellaneous
- --------------------------------------------------------------------------------
35.1 Data Base to be retained as confidential
Each party shall retain as confidential to itself the Data Base in so
far as the same is held by it and shall not disclose the Data Base to
any other person (including any of its Related Bodies Corporate) except:
(a) (Transaction Documents) as permitted or required by any
Transaction Document or necessary for any party to a Transaction
Document to perform its respective duties and obligations;
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- --------------------------------------------------------------------------------
(b) (enforcement) as required for the enforcement or attempted
enforcement of any Transaction Document, Loan, Mortgage or
Related Securities;
(c) (professional advisers) to any professional adviser, delegate,
agent or sub-agent of that party under a power contained in a
Transaction Document;
(d) (officers) to the officers, employees and directors of that
party made in the performance by that party respectively of its
duties and obligations under the Transaction Documents or at
law;
(e) (Auditors) to the Auditor of any Trust or as required by the
Auditor of any Trust; or (f) (law) as required by law or by any
Government Agency or by the listing rules of any relevant Stock
Exchange,
subject in all cases to the Privacy Act.
35.2 Certificates by Manager
Any statement or certificate by the Manager in relation to any act,
matter, thing or state of affairs in relation to any of the Trusts, this
Deed or any other Transaction Document shall, in the absence of manifest
error be final, binding and conclusive on the Trustee, the
Beneficiaries, the Noteholders and all other persons.
35.3 Waivers, remedies cumulative
Save as provided in this Deed, no failure to exercise and no delay in
exercising on the part of any party of any right, power or privilege
under this Deed shall operate as a waiver. Nor shall any single or
partial exercise of any right, power or privilege preclude any other or
further exercise of that or any other right, power or privilege.
35.4 Retention of documents
(a) All instruments of transmission shall be retained by the Manager
for a period of seven years. On the expiration of seven years
from the date of any such document the document may be
destroyed.
(b) All files in respect of each Loan, Mortgage or Related
Securities and related computer tape held by a Servicer shall be
retained by the Servicer for a period of seven years after the
related Loan has been paid in full or is otherwise liquidated or
for such longer period required by law.
35.5 Governing law
This Deed shall be governed by and construed in accordance with the laws
of New South Wales. Each of the parties and the Noteholders submits to
the non-exclusive jurisdiction of courts exercising jurisdiction there.
35.6 Severability of provisions
Any provision of any Transaction Document which is prohibited or
unenforceable in any jurisdiction is, as to that jurisdiction,
ineffective to the extent of that prohibition or unenforceability. This
does not invalidate the remaining provisions of that Transaction
Document nor affect the validity or enforceability of that provision in
any other jurisdiction.
35.7 Counterparts
This Deed may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
35.8 Inspection of this Deed
The Noteholders may inspect a copy of this Deed, each relevant
Supplementary Terms Notice, Servicing Agreement and Security Trust Deed
at the office of the
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- --------------------------------------------------------------------------------
relevant Note Trustee during normal business hours, but shall not be
entitled to a copy of any of them.
EXECUTED as a deed in Canberra.
SIGNED SEALED and DELIVERED )
on behalf of )
NATIONAL MUTUAL TRUSTEES )
LIMITED )
by its attorney under Power of )
Attorney dated )
Who hereby declares that no notice of )
Alteration to or revocation of the said )
Power of Attorney has been received by )
them in the presence of: )
------------------------------------
Signature
- ----------------------------------------- ------------------------------------
Witness Print name
- -----------------------------------------
Print name
CRUSADE / MANAGER
SIGNED SEALED and DELIVERED )
on behalf of CRUSADE )
MANAGEMENT LIMITED )
by its attorney [under power of )
attorney] in the presence of: )
------------------------------------
Signature
- ----------------------------------------- ------------------------------------
Witness Print name
- -----------------------------------------
Print name
ST.GEORGE
SIGNED SEALED and DELIVERED )
on behalf of )
ST GEORGE BANK LIMITED )
by its attorney [under power of )
attorney] in the presence of: )
------------------------------------
Signature
- ----------------------------------------- ------------------------------------
Witness Print name
- -----------------------------------------
Print name
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- --------------------------------------------------------------------------------
SCHEDULE 1
NOTE ISSUE DIRECTION
- --------------------------------------------------------------------------------
To: National Mutual Trustees Limited as trustee of the Crusade Euro Trust
No. X of Y (the Trustee)
From: Crusade Management Limited (ACN 072 715 916) (the Manager)
1. Proposal to Issue Notes
- --------------------------------------------------------------------------------
Under clause 6.1 of the Master Trust Deed dated [*] 1998 (as amended from time
to time) establishing the Crusade Euro Trusts (the Trust Deed) the Manager
proposes and directs in this Note Issue Direction (the Note Issue Direction)
that the Trustee on [*] (the Note Issue Date) will:
(a) hold as trustee of the Crusade Euro Trust No. X of Y (the Trust) on the
terms of the Trust Deed the benefit of the Portfolio of Receivables
specified in [the attached Sale Notice/Annexure "A"] (the Portfolio of
Receivables);
(b) issue as trustee of the Trust the Notes specified below (the proposed
Notes):
(i) the name(s), total principal amount, total number and
Subscription Amount of the proposed Notes are as follows:
Name(s):
Total principal amount:
Total number:
Subscription Amount:
Issue price:
Note Issue Date:
(ii) the proposed Notes [will/will not] constitute a Class separate
from any other Notes previously issued by the Trustee in its
capacity as trustee of the Trust or from any other proposed Notes
referred to in this Note Issue Direction.
[The details of each Class are as follows:
[specify information in (i) above for each Class]]
[(c) pay to [[*] (the Approved Seller)/[ ] (the Warehouse Trust)] the
principal amount of the Loans relating to the Portfolio of Receivables
at [date] (the Cut-Off Date) being $[*].]
[(d) the Lead Manager for the issue is [*]]
[(e) the Note Manager is [*] and was appointed pursuant to a Subscription
Agreement dated [*] by which:
- [*]
2. Security Trust Deed and Support Facilities
- --------------------------------------------------------------------------------
For the purposes of clause 6.2(a)(viii) of the Trust Deed:
(a) a Security Trust Deed for the Trust [must/need not] be put in
place prior to the Note Issue Date.
(b) the following Support Facilities must be effected prior to the
Note Issue Date:
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- --------------------------------------------------------------------------------
[insert details]
3. Supplementary Terms Notice
- --------------------------------------------------------------------------------
The terms of the Supplementary Terms Notice for the proposed Notes [each
Class of the proposed Notes] are contained [in the attached duly
completed Supplementary Terms Notice/in the Supplementary Terms Notice
attached to the Note Issue Direction dated [*]].
4. Manager's Certifications
- --------------------------------------------------------------------------------
For the purposes of clause 6.6(a) of the Trust Deed, but subject to the
Trust Deed, the Manager certifies to the Trustee that:
(a) this Note Issue Direction, and each accompanying Supplementary
Terms Notice, complies with the Trust Deed; and
(b) it expects the revenue which the Obligors have contracted to pay
under the Receivables the subject of the Trust will be sufficient
to enable the Trustee to meet the expenses of the Trust and the
amounts due to Noteholders.
Interpretation
Each expression used in this Note Issue Direction that is not defined has the
same meaning as in the Trust Deed.
Dated:
For and on behalf of Crusade Management Limited
- -------------------------------------------------
Authorised signatory
RECEIPT
We acknowledge receipt of the above Note Issue Direction.
This acknowledgement shall not constitute a declaration by the Trustee that any
property (including any Receivable Security) shall be held on trust for any
person.
For and on behalf of National Mutual Trustees Limited
- -------------------------------------------------
Authorised signatory
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Master Trust Deed Allen Allen & Hemsley
- --------------------------------------------------------------------------------
Annexure "A"
Receivables
- --------------------------------------------------------------------------------
[Attach Sale Notice or specify Receivables]
Page (1)
<PAGE>
Master Trust Deed Allen Allen & Hemsley
- --------------------------------------------------------------------------------
SCHEDULE 2
NOTICE OF CREATION OF TRUST
- --------------------------------------------------------------------------------
To: National Mutual Trustees Limited (the Trustee)
From: Crusade Management Limited (ACN 072 715 916) (the Manager)
Under clause 3.2(a)(ii) of the Master Trust Deed dated [*] 1998 between the
Trustee in its capacity as trustee, the Manager as trust manager and St.George
Bank Limited establishing the Crusade Euro Trusts (as amended from time to time)
(the Master Trust Deed) the Manager gives notice of the creation of a Trust
under the Master Trust Deed to be known as the Crusade Euro Trust No. X of Y [or
such other name as the Manager and the Trustee have agreed under clause
3.3(a)(i) of the Master Trust Deed].
The Crusade Euro Trust No. X of Y will be a Trust for the purposes of the Master
Trust Deed.
This Notice of Creation of Trust is accompanied by $10.00 from [*] in accordance
with clause 3.2(a)(ii) of the Master Trust Deed. [The Trustee must issue a
residual capital unit to [*]]
The Beneficiary of the Trust is [name], of [address] [give details of units and
other Beneficiaries, if any]
Terms defined in the Master Trust Deed have the same meaning when used in this
Notice.
Dated:
For and on behalf of Crusade Management Limited
- -----------------------------------------------
Authorised Signatory
For and on behalf of National Mutual Trustees Limited
- -----------------------------------------------
Authorised Signatory
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Master Trust Deed Allen Allen & Hemsley
- --------------------------------------------------------------------------------
SCHEDULE 3
VERIFICATION CERTIFICATE
- --------------------------------------------------------------------------------
To: National Mutual Trustees Limited as trustee of the Crusade Euro Trust No. X
of Y (the Trustee).
CRUSADE EURO TRUSTS
I [*] am a [director/secretary/Authorised Signatory] of [*] Limited of [*] (the
Company).
I refer to the Master Trust Deed (the Master Trust Deed) dated [*] 1998 between
the Trustee in its capacity as trustee and Crusade Management Limited as Manager
and St. George Bank Limited as Servicer.
Definitions in the Master Trust Deed apply in this Certificate.
I CERTIFY as follows.
1. Attached to this Certificate are complete and up to date copies of:
(a) the memorandum and articles of association of the Company
(marked A); and
(b) a duly stamped and registered power of attorney granted by the
Company for the execution of each Transaction Document to which
it is expressed to be a party (marked B). That power of attorney
has not been revoked or suspended by the Company and remains in
full force and effect.
2. The following are signatures of the Authorised Officers of the Company
and the persons who have been authorised to sign each Transaction
Document to which it is expressed to be a party and to give notices and
communications under or in connection with the Transaction Documents.
Authorised Signatories
Name Position Signature
* *
------------------------
* *
------------------------
* *
------------------------
Signatories
Name Position Signature
* *
------------------------
* *
------------------------
* *
------------------------
Signed:
- ---------------------------------------
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Master Trust Deed Allen Allen & Hemsley
- --------------------------------------------------------------------------------
[Director/Secretary/Authorised Signatory]
---------------------------------------
Print name
DATED
Page (2)
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Master Trust Deed Allen Allen & Hemsley
- --------------------------------------------------------------------------------
SCHEDULE 4
WAREHOUSE TRUST DIRECTION
- --------------------------------------------------------------------------------
To: National Mutual Trustees Limited as trustee of the [Crusade Euro
Warehouse Trust #[]] (the Trustee)
From: Crusade Management Limited (ACN 072 715 916) (the Manager)
1. Direction to acquire Receivables
- --------------------------------------------------------------------------------
Under clause 11.1 of the Master Trust Deed dated [*] 1998 (as amended from time
to time) establishing the Crusade Euro Trusts (the Master Trust Deed) the
Manager proposes and directs in this Direction (the Direction) that the Trustee
on [*] (the Note Issue Date) will:
(a) hold as trustee of the [Crusade Euro Warehouse Trust #[]] (the Trust) on
the terms of the Master Trust Deed the benefit of the Portfolio of
Receivables specified in Annexure "A" (the Portfolio of Receivables);
[(b) pay to [[*] (the Approved Seller)/[ ] (the Seller Trust)] the principal
amount of the Loans relating to the Portfolio of Receivables at [date]
(the Cut-Off Date) being $[*]; and]
(c) enter into the Warehouse Facility Agreement in the attached form with
[*] to have financial accommodation of up to $[*] or any greater amount
proposed by the Manager from time to time.
2. Supplementary Terms Notice
- --------------------------------------------------------------------------------
The Supplementary Terms Notice for the Trust is set out in Annexure "B".
3. [Standing direction
- --------------------------------------------------------------------------------
This is a standing Warehouse Trust Direction for the purposes of clause 12.6, in
the manner set out in the attached Supplementary Terms Notice.]
4. Manager's Certifications
- --------------------------------------------------------------------------------
Subject to the Master Trust Deed, the Manager certifies to the Trustee that this
Direction, complies with the Master Trust Deed.
Interpretation
Each expression used in this Direction that is not defined has the same meaning
as in the Trust Deed.
Dated:
For and on behalf of Crusade Management Limited
- ---------------------------------------
Authorised signatory
RECEIPT
We acknowledge receipt of the above Warehouse Trust Direction.
This acknowledgement shall not constitute a declaration by the Trustee that any
property (including any Receivable Security) shall be held on trust for any
person.
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Master Trust Deed Allen Allen & Hemsley
- --------------------------------------------------------------------------------
For and on behalf of NATIONAL MUTUAL TRUSTEES LIMITED
- ---------------------------------------
Authorised signatory
Page (2)
<PAGE>
Master Trust Deed Allen Allen & Hemsley
- --------------------------------------------------------------------------------
Annexure "A"
Receivables
- --------------------------------------------------------------------------------
[Attach Sale Notice or specify Receivables]
Page (1)
<PAGE>
Master Trust Deed Allen Allen & Hemsley
- --------------------------------------------------------------------------------
Annexure "B"
SUPPLEMENTARY TERMS NOTICE
- --------------------------------------------------------------------------------
SEE ANNEXURE E OF MASTER TRUST DEED FOR DETAILS TO BE INCLUDED
[CRUSADE EURO WAREHOUSE #[] TRUST]
WAREHOUSE TRUST SUPPLEMENTARY TERMS NOTICE
1. INTRODUCTION
- --------------------------------------------------------------------------------
This Supplementary Terms Notice is issued on [*] 1998 by Crusade
Management Limited (ACN 072 715 916) as manager (Manager) pursuant and
subject to the Master Trust Deed dated [*] 1998 (the Master Trust Deed)
between (among others) the Manager and National Mutual Trustees Limited
(ACN 004 029 841) as trustee of the [Crusade Euro Warehouse #[]] Trust
created under the Notice of Creation of Trust (the Trustee).
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.
St.George Bank Limited (the Servicer) agrees to service the Purchased
Receivables and Purchased Receivable Securities in accordance with the
Servicing Agreement.
2. SUPPLEMENTARY TERMS NOTICE AND TRUST BACK
- --------------------------------------------------------------------------------
(a) Under clauses 9.2 and 11 of the Master Trust Deed, the Manager
directs the Trustee to:
(i) enter into the Warehouse Facility Agreement;
(ii) accept any Sale Notice; and
(iii) Borrow under the Warehouse Facility Agreement from time to
time in accordance with clause 9 and the Warehouse
Facility Agreement.
(b) A Trust Back, entitled Warehouse Trust Back #[], is created in
relation to any Other Secured Liabilities secured by the
Purchased Receivable Securities.
(c) The parties agree that:
(i) the Trust will be a Trust for the purposes of the Master
Trust Deed; and
(ii) the Trust will not be a Rated Trust under the Master Trust
Deed.
3. DEFINITIONS AND INTERPRETATION
- --------------------------------------------------------------------------------
3.1 Definitions
Unless otherwise defined in this 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
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Master Trust Deed Allen Allen & Hemsley
- --------------------------------------------------------------------------------
Crusade Euro Warehouse #[] Trust, and do not apply to any other Trust
(as defined in the Master Trust Deed).
[*]
3.2 Interpretation
Clause 1.2 of the Master Trust Deed is incorporated into this
Supplementary Terms Notice as if set out in full, except that any
reference to deed is replaced by a reference to Supplementary Terms
Notice.
3.3 Limitation of liability
(a) General
Clause 30 of the Master Trust Deed applies to the obligations and
liabilities of the Trustee under this Agreement.
(b) Liability of Trustee limited to its rights of indemnity
(i) The Trustee enters into this Supplementary Terms Notice
only in its capacity as trustee of the Warehouse Trust and
in no other capacity (except where this Supplementary
Terms Notice provides otherwise). Subject to paragraph
(iii) below, a liability arising under or in connection
with this Supplementary Terms Notice or the Warehouse
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 Warehouse 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 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 Warehouse 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 Warehouse Trust or
seek the appointment of a receiver (except under the
Security Trust Deed), or a liquidator, an administrator or
any similar person to the Trustee or prove in any
liquidation, administration or arrangements of or
affecting the Trustee.
(iii) The provisions of this clause 3.3 shall not apply to any
obligation or liability of the Trustee to the extent that
it is not satisfied because under a Transaction Document
or by operation of law there is a reduction in the extent
of the Trustee's indemnification or exoneration out of the
assets of the Warehouse 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 Warehouse Trust. No act or omission of the Trustee
(including any related failure to satisfy its obligations
under the Transaction Documents) 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 Warehouse 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, the each of 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 has
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- --------------------------------------------------------------------------------
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 Calculation Agent, each Paying
Agent, the Note Trustee and any provider of a Support
Facility.
(vii) Nothing in this clause limits the obligations expressly
imposed on the Trustee under the Transaction Documents.
4. ACQUISITION OF RECEIVABLES
- --------------------------------------------------------------------------------
[*]
5. DISPOSAL OF RECEIVABLES
- --------------------------------------------------------------------------------
[*]
6. CASHFLOW ALLOCATION METHODOLOGY
- --------------------------------------------------------------------------------
[*]
7. MASTER TRUST DEED AND SERVICING AGREEMENT
- --------------------------------------------------------------------------------
7.1 Completion of details in relation to Master Trust Deed
(a) (Manager fee)
[*]
(b) (Trustee fee)
[*]
(c) (Servicing fee)
[*]
7.2 Amendments to Master Trust Deed
[*]
7.3 Amendments to Servicing Agreement
[*]
8. BENEFICIARY
- --------------------------------------------------------------------------------
[*]
9. TITLE PERFECTION EVENTS
- --------------------------------------------------------------------------------
[*]
EXECUTED as a deed in New South Wales.
Each attorney executing this Supplementary Terms Notice states that he
or she has no notice of revocation or suspension of his or her power of
attorney.
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Master Trust Deed Allen Allen & Hemsley
- --------------------------------------------------------------------------------
TRUSTEE
SIGNED SEALED and DELIVERED )
by NATIONAL MUTUAL )
TRUSTEES LIMITED )
(ACN 004 029 841) )
by its attorney under Power of )
Attorney dated )
Who hereby declares that no notice of )
Alteration to or revocation of the said )
Power of Attorney has been received by )
them in the presence of: )
------------------------------------
Signature
- ----------------------------------------- ------------------------------------
Witness Print name
- -----------------------------------------
Print name
MANAGER
SIGNED SEALED and DELIVERED )
by CRUSADE MANAGEMENT )
LIMITED )
in the presence of: )
------------------------------------
Signature
- ----------------------------------------- ------------------------------------
Witness Print name
- -----------------------------------------
Print name
SERVICER
SIGNED SEALED and DELIVERED )
by ST GEORGE BANK LIMITED )
in the presence of: )
------------------------------------
Signature
- ----------------------------------------- ------------------------------------
Witness Print name
- -----------------------------------------
Print name
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Master Trust Deed Allen Allen & Hemsley
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ANNEXURE A
SALE NOTICE
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TO: National Mutual Trustees Limited as trustee of the Crusade Euro Trust
No. X of Y (the Trustee)
Attention: [*]
FROM: [*]
(the Approved Seller)
Dear Sirs
MASTER TRUST DEED
We refer to the Master Trust Deed (the Master Trust Deed) dated [*] between
National Mutual Trustees Limited, St.George Bank Limited and Crusade Management
Limited and the Supplementary Terms Notice issued under the Master Trust Deed in
relation to the [*] Trust (the Supplementary Terms Notice).
1. DEFINITIONS AND INTERPRETATION
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1.1 Definitions
Terms defined in the Master Trust Deed and the Supplementary Terms
Notice shall have the same meaning in this Sale Notice unless the
context otherwise requires except that:
Cut-Off Date means [ ].
Expiry Time means 4:00pm on [*].
[Offered Receivable Interest means that part of the Offered Receivable
Rights which consists of the Approved Seller's right, title, benefit,
interest (present and future) in, to, under or derived from any
Receivable Security and the Related Receivables.] [For Land only].
Offered Receivable Rights means the Approved Seller's right, title and
interest in and to the Receivables and Receivable Securities described
in the attached computer disk and printout, and the related Receivable
Rights, except to the extent of the exclusion in paragraphs (c) and (d)
of the definition of Receivable Rights.
Purchase Price means [ ].
A reference to any clause is a reference to that clause in this Sale
Notice.
1.2 Interpretation
The provisions of the Master Trust Deed will apply to any contract
formed if the offer contained in this Sale Notice is accepted.
2. OFFER
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Subject to the terms and conditions of this Sale Notice, the Approved
Seller, as legal and beneficial owner, offers to sell and assign the
Offered Receivable Rights (free from any Security Interest) to the
Trustee for the Purchase Price.
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Master Trust Deed Allen Allen & Hemsley
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3. ACCEPTANCE
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(a) The offer in clause 2 is irrevocable during the period up to and
including the Expiry Time.
(b) The Trustee may accept the offer contained in this Sale Notice at
any time prior to the Expiry Time by, and only by, the payment by
the Trustee to the Approved Seller (or as it directs) of $[*] in
same day funds [by bank cheque] [to the following bank account:
[*], Account Number [*].]
(c) Notwithstanding:
(i) satisfaction of all relevant conditions precedent; or
(ii) any negotiations undertaken between the Approved Seller
and the Trustee prior to the Trustee accepting the offer
contained in this Sale Notice,
the Trustee is not obliged to accept the offer
contained in this Sale Notice and no contract for the sale or
purchase of any Offered Receivable Rights will arise unless
and until the Trustee accepts the offer contained in the Sale
Notice in accordance with this clause.
(d) The offer contained in this Sale Notice may only be accepted in
relation to all the Offered Receivable Rights.
(e) On the acceptance of the offer contained in this Sale Notice, the
Trustee shall:
(i) subject to the Master Trust Deed and any relevant
Supplementary Terms Notice, hold the beneficial interest
in the Offered Receivable Rights on and from the Closing
Date, free of any set-off or counterclaim; and
(ii) not assume any obligation under the Offered Receivable
Rights.
4. CONSIDERATION
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[(a) If the Trustee accepts the offer in this Sale Notice, the
Purchase Price shall be divided between the property purchased as
follows:
(i) the lesser of $100 or 5% of the Purchase Price to that
part of the Offered Receivable Rights which is not part of
the Offered Receivable Interest; and
(ii) the balance to the Offered Receivable Interest.] [Only for
Mortgages]
[(b) On the payment of the Purchase Price, the Trustee shall ensure
that any Accrued Interest Adjustment (as defined in the
Supplementary Terms Notice) is made in accordance with the Master
Trust Deed and any relevant Supplementary Terms Notice.]
[(c) After the Closing Date, the Approved Seller will on the next
Payment Date pay to the Trustee, as an adjustment to the Purchase
Price, an amount equal to any Principal Collections received by
the Approved Seller in relation to the Purchased Receivables from
the close of business on the Cut-Off Date to but excluding the
Closing Date. Such payment will be discharged by the Manager or
the Servicer depositing such amount in the relevant Collection
Account.]
5. ACKNOWLEDGEMENT
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The Approved Seller acknowledges, agrees and confirms to the Trustee
that:
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Master Trust Deed Allen Allen & Hemsley
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(a) (Master Trust Deed binding on it) the Master Trust Deed is a
valid and binding obligation of the Approved Seller enforceable
in accordance with its terms;
(b) (repeat representations) the Approved Seller repeats the
representations and warranties made by it in clause 12.6 of the
Master Trust Deed in so far as they apply to the Offered
Receivable Rights;
(c) (description of Receivables)
(i) a description of the Receivables and Receivable Securities
is in the attached computer disk and hard copy; and
(ii) each Receivable and Receivable Security included or
referred to in the Offered Receivable Rights constitutes
an Eligible Receivable;
(d) (no default) no Title Perfection Event is subsisting as at the
date of this Sale Notice nor, if the offer is accepted, will
there be any Title Perfection Event subsisting at the date the
offer is accepted or the date the purchase price is paid nor will
any Title Perfection Event result from the offer evidenced by
this Sale Notice or the transfer of the Offered Receivable
Rights;
(e) (Authorisations) all necessary Authorisations for the offer
evidenced by this Sale Notice and the transfer of the Offered
Receivable Rights have been taken, or as the case may be,
obtained.
6. GOVERNING LAW
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This Sale Notice is governed by the laws of New South Wales.
Authorised Signatory of
[*]
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Master Trust Deed Allen Allen & Hemsley
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ANNEXURE B
SELLER ACCESSION CERTIFICATE
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DEED dated between:
Date
- -----------
Parties
- -----------
1. [NAME OF APPROVED SELLER] (A.C.N. [*]) (the Approved Seller);
2. NATIONAL MUTUAL TRUSTEES LIMITED (ACN 004 029 841) as trustee of
the Crusade Euro Trust No. X of Y (the Trustee); and
3. CRUSADE MANAGEMENT LIMITED (ACN 072 715 916) (the Manager).
Recitals
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A Under a Master Trust Deed (the Master Trust Deed) dated [*] 1998
between the Trustee, Crusade Management Limited and St.George Bank
Limited Trusts may be established to purchase Receivables from the
Approved Seller.
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IT IS AGREED AS FOLLOWS
1. In this Deed terms defined in the Master Trust Deed have the same
meaning.
2. The Approved Seller shall as and from the date of this Deed be an
Approved Seller for the purposes of the Master Trust Deed as if named as
a party to the Master Trust Deed in the capacity of an Approved Seller.
The Approved Seller agrees to comply with the Master Trust Deed. All the
terms and conditions of it shall bind the Approved Seller accordingly,
and it shall be entitled to all rights of an Approved Seller under the
Master Trust Deed.
3. The Approved Seller agrees to be a credit provider for the purposes of
regulation 75 of the Consumer Credit Code in relation to Receivables
disposed of by the Approved Seller.
4. This Deed is governed by the laws of New South Wales.
5. Each attorney executing this Deed states that he has no notice of the
revocation of his power of attorney.
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Master Trust Deed Allen Allen & Hemsley
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SIGNED SEALED and DELIVERED )
on behalf of )
[*]LIMITED )
by its attorney )
in the presence of: )
------------------------------------
Attorney
- ----------------------------------------- ------------------------------------
Witness Print name
- -----------------------------------------
Print name
TRUSTEE
SIGNED SEALED and DELIVERED )
by NATIONAL MUTUAL )
TRUSTEES LIMITED )
(ACN 004 029 841) )
by its attorney under Power of )
Attorney dated )
Who hereby declares that no notice of )
Alteration to or revocation of the said )
Power of Attorney has been received by )
them in the presence of: )
------------------------------------
Signature
- ----------------------------------------- ------------------------------------
Witness Print name
- -----------------------------------------
Print name
MANAGER
SIGNED SEALED and DELIVERED )
on behalf of )
CRUSADE MANAGEMENT LIMITED )
)
by its attorney )
in the presence of: )
------------------------------------
Attorney
- ----------------------------------------- ------------------------------------
Witness Print name
- -----------------------------------------
Print name
[OTHER PARTIES]
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Master Trust Deed Allen Allen & Hemsley
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ANNEXURE C
SUPPLEMENTARY TERMS NOTICE
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SEE ANNEXURE D OF THE TRUST DEED
FOR DETAILS TO BE INCLUDED
CRUSADE EURO TRUST NO. X OF Y
SUPPLEMENTARY TERMS NOTICE
1. INTRODUCTION
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This Supplementary Terms Notice is issued on [*] 1998 by Crusade
Management Limited (ACN 072 715 916) as manager (Manager) under the
Master Trust Deed (as defined below). It is issued pursuant and subject
to the Master Trust Deed dated [*] 1998 (the Master Trust Deed) between
(among others) the Manager and National Mutual Trustees Limited (ACN 004
029 841) as trustee of the Crusade Euro Trust No. X of Y (the Trustee).
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.
St.George Bank Limited (the Servicer) agrees to service the Purchased
Receivables and Purchased Receivable Securities in accordance with the
Servicing Agreement.
2. DIRECTION AND TRUST BACK
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(a) A Trust Back, entitled St.George [] Trust Back, is created in
relation to Other Secured Liabilities secured by the Purchased
Receivable Securities.
(b) The parties agree that the Trust will be a Trust for the purposes
of the Transaction Documents.
3. DEFINITIONS AND INTERPRETATION
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3.1 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 Euro Trust No. X of Y
, and do not apply to any other Trust (as defined in the Master Trust
Deed).
[*]
3.2 Interpretation
Clause 1.2 of the Master Trust Deed is incorporated into this
Supplementary Terms Notice as if set out in full, except that any
reference to deed is replaced by a reference to Supplementary Terms
Notice.
3.2 Limitation of liability
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Master Trust Deed Allen Allen & Hemsley
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(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 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 3.3 shall not apply to any
obligation or liability of the Trustee to the extent that
it is not satisfied because under a Transaction Document
or by operation of law there is a reduction in the extent
of the Trustee's indemnification 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 Deed has authority to act on
behalf of the Trustee in a way which exposes the Trustee
to any personal liability and no act or omission of any
such person will be considered fraud, negligence, or
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 Calculation Agent, each Paying
Agent, the Note Trustee and any provider of a Support
Facility.
(vii) Nothing in this clause limits the obligations expressly
imposed on the Trustee under the Transaction Documents.
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Master Trust Deed Allen Allen & Hemsley
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4. NOTES
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[*]
5. CASHFLOW ALLOCATION METHODOLOGY
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[*]
6. MASTER TRUST DEED
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6.1 Completion of details in relation to Master Trust Deed
(a) (Manager fee)
[*]
(b) (Trustee fee)
[*]
(c) (Servicing fee)
[*]
6.2 Amendments to Master Trust Deed
The Master Trust Deed is amended for the purpose of the Crusade Euro
Trust No. X of Y as follows:
[*]
7. TRANSFERS TO WAREHOUSE TRUST
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[The Trustee may, from time to time, direct the Trustee to transfer a
Purchased Receivable to a Warehouse Trust. That transfer:
(a) must be in accordance with clause 11 of the Master Trust Deed;
and
(b) must be for a consideration equal to the Unpaid Balance of that
Receivable.
The Trustee must comply with that direction.]
8. BENEFICIARY
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[*]
9. TITLE PERFECTION EVENTS
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[*]
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Master Trust Deed Allen Allen & Hemsley
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TRUSTEE
SIGNED SEALED and DELIVERED )
by NATIONAL MUTUAL )
TRUSTEES LIMITED )
(ACN 004 029 841) )
by its attorney under Power of )
Attorney dated )
Who hereby declares that no notice of )
Alteration to or revocation of the said )
Power of Attorney has been received by )
them in the presence of: )
------------------------------------
Signature
- ----------------------------------------- ------------------------------------
Witness Print name
- -----------------------------------------
Print name
MANAGER
SIGNED SEALED and DELIVERED )
by CRUSADE MANAGEMENT )
LIMITED )
in the presence of: )
------------------------------------
Signature
- ----------------------------------------- ------------------------------------
Witness Print name
- -----------------------------------------
Print name
SERVICER
SIGNED SEALED and DELIVERED )
by ST GEORGE BANK LIMITED )
in the presence of: )
------------------------------------
Signature
- ----------------------------------------- ------------------------------------
Witness Print name
- -----------------------------------------
Print name
Page (4)
<PAGE>
Master Trust Deed Allen Allen & Hemsley
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APPROVED SELLER
SIGNED SEALED and DELIVERED )
by ST GEORGE BANK LIMITED )
in the presence of: )
------------------------------------
Signature
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Witness Print name
- -----------------------------------------
Print name
Page (5)
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Master Trust Deed Allen Allen & Hemsley
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SCHEDULE
An Eligible Receivable means a Loan which, as at the Cut-Off Date for that Loan:
[*]
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Master Trust Deed Allen Allen & Hemsley
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ANNEXURE D
SUPPLEMENTARY TERMS NOTICE CHECKLIST
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Clause 1.1 definitions:
Approved Bank
Authorised Investments
Closing Date
Collection Account
Collections
Conditions
Coupon
Cut-Off Date
Eligibility Criteria
Expense
Final Maturity Date
Hedge Agreement
Income Distribution Date
Information Memorandum
Initial Invested Amount
Interest Entitlement
Interest Payment Date
Invested Amount
Liquidity Facility Agreement
Manager's Report - information and format
Mortgage Insurer
Note Trust Deed
Note Trustee
Principal Entitlement
Principal Amortisation Date
Redraw Facility Agreement
Related Security
Relevant Document
Support Facility
Title Perfection Event
Transaction Document
Unpaid Balance
Warehouse Facility Agreement
Clause 3.1(b) - Beneficiary's unit(s) and rights
Clause 3.5(h) - cashflow allocation methodology
Clause 4.6 - any discrimination between Noteholders
Clause 5.2 - if Beneficiary interest is not assignable
Clause 6.1 - period for Note Issuance Direction if not 3
Business Days
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Master Trust Deed Allen Allen & Hemsley
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Clause 6.2(a)(xi) - additional information in Note Issuance Direction
Clause 6.3 - information to be included: Clause 6.3(a) is
mandatory; clause 6.3(b) is optional
Clause 6.7(d) - rating specified
Clause 7.1 - no restrictions on Note transfer
Clause 8.2 - investment recommendation
Clause 8.10(a) - segregation of Assets contrary to Trust Deed
Clause 9.1 - Borrowing contrary to Trust Deed
Clause 9.3 - direction as to Support Facility
Clause 10 - origination procedure
Clause 11.1 - details of acquisition by Warehouse Trust
Clause 11.2(a) - information required in a Warehouse Trust Direction
Clause 11.7 - transfers between Trusts
Clause 12.5(a)(iii) - other conditions precedent to sale
Clause 12.6(vii) - Approved Seller representations
Clause 12.7(a) - Approved Seller undertakings
Clause 12.9(a) - Title Perfection Events contrary to Trust Deed
Clause 12.9(d) - Clean Up Offer
Clause 12.10(a)(i) - accrued interest to Approved Seller, together with
relevant date
Clause 12.10(a)(ii) - principal received by Approved Seller, together
with relevant date
Clause 13.1 - details of acquisition from Warehouse Trust
Clause 14.1(a) - additional provisions relating to Manager
Clause 14.10 - publication by Reuters
Clause 14.16(c) - prepare and distribute the Manager's Report
Clause 15 - Manager's fee
Clause 16.8(a) - if Servicer is not Custodian
Clause 19.1 - Trustee's fee
Clause 19.2 - reimbursement of Trustee's expenses
Clause 21.8 - deposits if contrary to Trust Deed
Clause 24.1 - applying income and capital of Trust
Clause 24.2(c) - distribution of Distributable Income
Clause 24.4 - manner in which shortfalls are to be borne by
Noteholders
Clause 30.15(d) - non-approved Seller nominated credit provider
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<PAGE>
Crusade Euro Trust
Servicing Agreement
- -------------------------------------------------------------------
St. George Bank Limited (Servicer)
Crusade Management Limited (Manager)
National Mutual Trustees Limited (Trustee)
Transaction Description here
Allen Allen & Hemsley
The Chifley Tower
2 Chifley Square
Sydney NSW 2000
Australia
Tel 61 2 9230 4000
Fax 61 2 9230 5333
(Copyright) Copyright Allen Allen & Hemsley 1999
<PAGE>
<TABLE>
<CAPTION>
Crusade Euro Trust Servicing Agreement Allen Allen & Hemsley
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Table of Contents
<S> <C>
1. Definitions and interpretation 1
1.1 Definitions 1
1.2 Interpretation 3
1.3 Limitation of Trustee's Liability 3
1.4 Supplementary Terms Notice 4
1.5 Knowledge of Trustee 4
1.6 Knowledge of Servicer 4
2. Appointment of servicer 4
2.1 Appointment 4
2.2 General duties and standard of care 4
2.3 Powers 4
2.4 Records 5
2.5 Servicer's power to delegate 5
2.6 Servicer's power to appoint advisers 6
2.7 Legal title 6
2.8 Transfer of custody of Relevant Documents 6
2.9 License to enter Servicer's premises 6
3. Undertakings 6
3.1 Servicing Undertakings 6
3.2 Undertakings of Servicer in its capacity as an Approved Seller 11
3.3 Material Adverse Effect 12
4. Procedures manual 12
4.1 Trustee bound by acts of Servicer 12
4.2 No liability for compliance 12
4.3 Amendments to Procedures Manual 12
5. Collection and remittance of moneys 12
5.1 Collection of moneys 12
5.2 Remittances 13
5.3 Remittances to Trustee 13
5.4 Payments and Computations, etc. 14
5.5 Report by Servicer 14
5.6 No Right of Set-Off 14
6. Servicer fees 14
6.1 Fee 14
6.2 Expenses of Servicer 14
7. Termination 15
</TABLE>
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Crusade Euro Trust Servicing Agreement Allen Allen & Hemsley
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<TABLE>
<S> <C>
7.1 Expiry of Term 15
7.2 Servicer Transfer Event 15
7.3 Resignation 15
7.4 Survival 16
7.5 Release of outgoing Servicer 16
7.6 New Servicer to execute deed 16
7.7 Settlement and discharge 16
8. Indemnity 16
8.1 Indemnity 17
8.2 Limitation of liability 17
8.3 No liability for acts of certain persons 17
8.4 No liability for loss etc 17
8.5 Method of claiming under indemnity 17
8.6 Time of Payment 18
9. Representations and warranties 18
9.1 Representations and Warranties 18
9.2 Reliance 18
9.3 Survival of Representations and Indemnities 18
10. The servicer may act as banker 18
11. Administrative provisions 18
11.1 Notices 18
11.2 Governing Law and Jurisdiction 18
11.3 Assignment 19
11.4 Amendment 19
11.5 Severability clause 19
11.6 Costs and Expenses 19
11.7 Waivers: Remedies Cumulative 19
SCHEDULE 1 21
RECEIVABLES REGISTER INFORMATION 28
</TABLE>
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Date
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Parties
- -------------
1. St.George Bank Limited (ACN 055 513 070) incorporated in New South
Wales of 4-16 Montgomery Street, Kogarah, New South Wales 2217
(Servicer);
2. Crusade Management Limited (ACN 072 715 916) incorporated in New South
Wales of 4-16 Montgomery Street, Kogarah, New South Wales 2217
(Manager); and
3. National Mutual Trustees Limited (ACN 004 029 841) of Level 2, 65
Southbank Boulevard, South Melbourne, Victoria 3205 in its capacity as
trustee of each Relevant Trust (Trustee)
Recitals
- -------------
A The Trustee and the Manager agree to retain the Servicer to provide the
Services in relation to the Receivables and Receivable Rights for
certain Trusts.
B The Trustee and the Manager propose that the Servicer undertake the
Services in relation to those Receivables and Receivable Rights that it
sells to the Trustee for so long as the Servicer holds legal title to
those Receivables and Receivable Rights.
C The parties acknowledge that the Servicer is engaged by this Agreement
only to service the Receivables and the Receivable Rights and that it
is not engaged in any way to manage the Relevant Trust or the Assets of
the Relevant Trust, which task is that of the Manager under the Master
Trust Deed.
- --------------------------------------------------------------------------------
IT IS AGREED as follows
1. Definitions and interpretation
- --------------------------------------------------------------------------------
1.1 Definitions
In this Agreement, terms defined in the Master Trust Deed or a
Supplementary Terms Notice in relation to a Relevant Trust have the
same meaning and the following definitions apply unless the context
otherwise requires.
Civil Penalty Payment has the meaning given in Section 30.15 of the
Master Trust Deed.
Eligible Servicer means any suitably qualified person whose appointment
as Servicer under this Agreement will not materially prejudice the
interests of the Noteholders and, if required by the Mortgage Insurance
Policy, approved by the Mortgage Insurer.
Law means any statute, rule, regulation, ordinance, order or decree of
any Government Agency, and includes, without limitation the Consumer
Credit Legislation and the Code of Banking Practice.
Master Trust Deed means the Master Trust Deed between the Trustee, the
Manager and the Servicer dated on or about the date of this Agreement.
Material Default means, with respect to a Receivable:
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<PAGE>
(a) a failure by an Obligor to pay any amount payable pursuant to
the relevant Receivable which failure causes the Receivable to
be in Arrears and which failure to pay continues for a period
of 90 days; or
(b) the occurrence of an event of default, howsoever described
(other than a failure by an Obligor to pay an amount under the
relevant Receivable) under that Receivable or any related
Receivable Right unless the Servicer reasonably determines
that such event of default is of a minor or technical nature
and will not result in a Material Adverse Effect.
Procedures Manual means, in relation to a Portfolio of Receivables,
those policies and procedures of the Servicer relating to the
origination, servicing and enforcement of those Receivables, Receivable
Securities and Related Securities as those policies and procedures are
amended in accordance with this Agreement, and applied from time to
time in the Servicer's ordinary course of business.
Receivable has the meaning in the Master Trust Deed, but relates only
to Receivables held by the Trustee under a Relevant Trust.
Receivable Rights has the meaning in the Master Trust Deed, but relates
only to Receivable Rights held by the Trustee under a relevant Trust.
Receivable Securities has the meaning in the Master Trust Deed, but
relates only to Receivable Securities held by the Trustee under a
Relevant Trust.
Receivables Register means a register of Receivables for each Trust and
Warehouse Trust maintained by the Servicer and stored on computer disk
or other electronic form. In relation to Mortgages it shall contain the
information in respect of each Mortgage set out in Schedule 1.
Relevant Trust means a Trust in relation to which the Servicer has been
appointed, and has agreed to act, as Servicer under clause 2.1 and a
Supplementary Terms Notice.
Services means the services provided or to be provided by the Servicer
under this Agreement.
Servicer Transfer Event means the occurrence of any of the following:
(a) an Insolvency Event occurs with respect to the Servicer;
(b) the Servicer fails to pay any amount in accordance with any
Transaction Document within 10 Business Days of receipt of a
notice to do so from either the Trustee or the Manager;
(c) 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 Trustee) and, if capable of remedy, the Servicer does
not remedy that failure within 30 days after the earlier of:
(i) the Servicer becoming aware of that failure; and
(ii) receipt of a notice from either the Trustee or the
Manager;
(d) any representation, warranty or certification made by the
Servicer is incorrect when made and is not waived by the
Trustee or, if capable of remedy, remedied to the Trustee's
reasonable satisfaction within 45 days after notice from the
Trustee, and the Trustee determines that breach would have a
Material Adverse Effect; or
(e) if it is unlawful for the Servicer to perform the Services.
Supplementary Terms Notice means each Supplementary Terms Notice dated
on or after the date of this Agreement relating to a Relevant Trust.
Term means the period from the date of this Agreement until the earlier
of:
(a) the date on which this Agreement is terminated pursuant to
clause 7.2;
(b) the date which is one month after the Notes in relation to
each Relevant Trust have been redeemed in full in accordance
with the Transaction
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<PAGE>
Documents and the Trustee ceases to have any obligations to
any Creditor in relation to any Trust;
(c) the date on which the Trustee replaces the Servicer with an
Eligible Servicer; and
(d) the date on which the Servicer is replaced after resigning
under clause 7.3.
1.2 Interpretation
The provisions of clause 1.2 of the Master Trust Deed apply to this
Agreement, as if set out in full, and on the basis that a reference in
clause 1.2(e), (f), (g), (k) or (l) to "this Deed" is a reference to
this Agreement.
1.3 Limitation of Trustee's Liability
(a) General
Clause 30 of the Master Trust Deed applies to the obligations
and liabilities of the Trustee and the Manager under this
Agreement.
(b) Liability of Trustee limited to its right to indemnity
(i) The Trustee enters into this Agreement only in its
capacity as trustee of each 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
Agreement or a 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
relevant 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
a 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
relevant Trust or seek the appointment of a receiver
(except under the Security Trust Deed), or a
liquidator, an administrator or any similar person to
the Trustee or prove in any liquidation,
administration or arrangements of or affecting the
Trustee.
(iii) The provisions of this clause 1.3 shall not apply to
any obligation or liability of the Trustee to the
extent that it is not satisfied because under a
Transaction Document or by operation of law there is a
reduction in the extent of the Trustee's
indemnification or exoneration out of the Assets of
the relevant Trust as a result of the Trustee's fraud,
negligence, or Default.
(iv) 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 each Trust. No act or omission
of the Trustee (including any related failure to
satisfy its obligations under this Agreement) will be
considered fraud, negligence or 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 a 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
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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
(iii) above.
(vi) 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.
(vii) Nothing in this clause limits the obligations
expressly imposed on the Trustee under the Transaction
Documents.
1.4 Supplementary Terms Notice
This Agreement is subject to the Supplementary Terms Notice for each
Relevant Trust. In case of any inconsistency, the relevant
Supplementary Terms Notice shall prevail.
1.5 Knowledge of Trustee
In relation to any 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 that Trust.
1.6 Knowledge of Servicer
For the purposes of this Agreement, the Servicer will only be
considered to have knowledge, notice of or to be aware of any thing if
the Servicer has knowledge, notice or awareness of that thing by virtue
of the actual knowledge, notice or awareness of the officers or
employees of the Servicer who have day to day responsibility for the
carrying its obligations under this Agreement.
2. Appointment of servicer
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2.1 Appointment
The Servicer is hereby appointed to perform the Services during the
Term for each Trust in relation to which the Servicer is specified as,
and agrees to act as, the Servicer in the relevant Supplementary Terms
Notice. By executing a Supplementary Terms Notice, the Servicer shall
be taken to have accepted that appointment, and agreed to perform the
Services in relation to that Trust in accordance with this Agreement.
2.2 General duties and standard of care
The Servicer shall service the Receivables:
(a) in accordance with this Agreement;
(b) to the extent not provided in this Agreement, in accordance
with the applicable Procedures Manual as that is interpreted
and applied by the Servicer in the ordinary course of its
business; and
(c) to the extent not covered by clauses 2.2(a) and (b), by
exercising the degree of diligence and care expected of an
appropriately qualified Servicer of the relevant financial
products.
2.3 Powers
Subject to clauses 2.2, 3.1(i) and 3.3, the Servicer has the express
power to the extent such action will not cause a Material Adverse
Effect (that is, an event which will materially and adversely affect
the amount of any payment to be made
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to any Noteholder, or will materially and adversely affect the timing
of such payment):
(a) to waive any fees and break costs which may be collected in
the ordinary course of servicing the Receivables or arrange
the rescheduling of interest due and unpaid following a
default under any Receivables;
(b) in its discretion, to waive any right in respect of any
Receivables and Receivable Securities in the ordinary course
of servicing the Receivables and Receivable Securities
(including in accordance with its normal collection
procedures); and
(c) to grant an extension of maturity beyond 30 years from the
date any Receivable that relates to a mortgage loan was made,
when required to do so by Law or a Government Agency. The
restriction on granting extensions that will not have a
Material Adverse Effect shall not apply where the extension is
required by Law or a Government Agency.
2.4 Records
(a) The Servicer will maintain the Data Base used by it as a
master record of Receivables and Receivable Rights in relation
to each Relevant Trust.
(b) Each Receivable will be electronically tagged so that all
related Collections and performance statistics (the nature of
which shall be as mutually agreed from time to time by the
Servicer, the Manager and the Trustee) for that Receivable
will be readily identified.
2.5 Servicer's power to delegate
Without in any way affecting the generality of the above, the Servicer
may in carrying out and performing its duties and obligations contained
in this Agreement:
(a) (delegate to employees) delegate to any of its officers and
employees all Services (whether or not requiring or involving
the Servicer's judgment or discretion);
(b) (appoint attorneys or subcontract) appoint any person to be
its attorney or agent or delegate to or subcontract with any
person for such purposes and with such powers, authorities and
discretions (not exceeding those vested in the Servicer) as
the Servicer thinks fit with:
(i) power for the attorney or agent to sub-delegate any
such powers, authorities or discretions;
(ii) power to authorise the issue in the name of the
Servicer of documents bearing facsimile signatures of
the Servicer or of the attorney, agent or delegate
(either with or without proper manuscript signatures
of their officers); and
(iii) provisions for the protection and convenience of those
dealing with any such attorney, agent or delegate as
they may think fit; and
(c) (suspend agents and sub-agents) supersede or suspend any such
attorney, agent or delegate for such cause or reason as the
Servicer may in its sole discretion think sufficient with or
without assigning any cause or reason and either absolutely
or for such time as it may think proper,
but despite any delegation or appointment under the above paragraphs
of this clause, the Servicer shall remain liable for the performance
of the Services in accordance with this Agreement and for the acts or
omissions of any officer, employee, attorney, agent, delegate,
sub-delegate or sub-agent and shall be solely responsible for the
fees and expenses of such officer, employee, attorney, agent,
delegate, sub-delegate or sub-agent.
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2.6 Servicer's power to appoint advisers
In accordance with its ordinary course of business, the Servicer may
appoint and engage and act upon the opinion, advice or information
obtained from any valuers, solicitors, barristers, accountants,
surveyors, property managers, real estate agents, contractors,
qualified advisers and such other persons as may be necessary, usual or
desirable for the purpose of enabling the Servicer properly to exercise
and perform its duties and obligations under this Agreement.
2.7 Legal title
The Servicer agrees that upon being directed to do so by the Trustee
following a Title Perfection Event for a Relevant Trust, it will
promptly take all action to perfect the Trustee's legal title to the
relevant Receivables and Receivable Rights by:
(a) giving written notice of the Trustee's interest to any Obligor
or Mortgagor;
(b) preparing, lodging and registering any Transfer of Receivable
Security;
(c) taking any other action required or permitted by law to
perfect such legal title;
(d) delivering all Relevant Documents which it has in its
possession and procuring the Custodian to deliver all other
Relevant Documents for that Trust to or to the order of the
Trustee. If the Servicer or the Custodian (as the case may be)
has not done so within 10 Business Days (or such longer period
as the Trustee permits in its reasonable discretion), pursuant
to the Custodian Agreement, the Trustee must enter any
premises where those Relevant Documents are kept, take
possession of and remove those Relevant Documents. The
Servicer shall assist the Trustee in doing so; and
(e) taking any other action which the Trustee requires it to do.
2.8 Transfer of custody of Relevant Documents
If a Servicer Transfer Event occurs and is subsisting, the Servicer
immediately must deliver all Relevant Documents which it has in its
possession to the Trustee, or as it directs. If the Servicer has not
done so within 10 Business Days (or such longer period as the Trustee
in its reasonable discretion permits) the Trustee must enter any
premises where the Relevant Documents are kept, take possession of and
remove the Relevant Documents. The Servicer shall assist in doing so
and will take or perform any acts which the Trustee reasonably directs
it to do in relation to the Trustee taking possession of and removing
the Relevant Documents. If the Trustee does not have possession of all
of the Relevant Documents within that period it may, to the extent that
it has information available to it to do so, lodge caveats in relation
to the Receivables and Receivable Rights for which it does not hold the
Relevant Documents.
2.9 License to enter Servicer's premises
The Servicer irrevocably licenses the Trustee to enter onto its
premises for the purpose of taking possession of, and removing, any
Relevant Documents which the Servicer has in its possession in
accordance with this Agreement.
3. Undertakings
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3.1 Servicing Undertakings
The Servicer undertakes that at all times during the Term it will:
(a) (notice of default) give notice in writing to the Trustee and
each Designated Rating Agency of it becoming aware of the
occurrence of any Servicer Transfer Event;
(b) (compliance with law)
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(i) 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 Receivables and
Receivable Rights and to perform or comply with its
obligations under this Agreement;
(ii) comply with all Laws in connection with servicing the
Receivables and Receivable Rights where failure to do
so would have a Material Adverse Effect; and
(iii) comply with the Consumer Credit Legislation in
connection with servicing the Receivables and
Receivable Rights so that the Trustee does not
personally or in its capacity as trustee of the Trust
become liable to pay any Civil Penalty Payments.
(c) (Relevant Documents to Custodian) Unless the Servicer requires
a Relevant Document to perform its duties as Servicer in
relation to the related Receivable, or otherwise comply with
its obligations under the Transaction Documents, each Relevant
Document shall be delivered promptly to the Custodian to be
dealt with in accordance with the Custodian Agreement.
(d) (Collections)
(i) in relation to Receivables of which the Servicer (as
an Approved Seller) is the legal owner, collect all
moneys due under those Receivables and the Receivable
Rights; and
(ii) in relation to Receivables of which the Trustee is
the legal owner, collect all moneys due under those
Receivables and Receivables Rights,
in accordance with the standards specified in clause 2.2, and
pay them into the relevant Collection Account not later than
the time that Servicer would be required to do so under clause
5;
(e) (Material Default) if a Material Default occurs in respect to
a Receivable, take such action in accordance with the
Servicer's normal enforcement procedures to enforce the
relevant Receivable and the Receivable Right to the extent
that the Servicer determines that enforcement procedures
should be taken;
(f) (Insurance Policies)
(i) act (both in its capacity as Servicer and Approved
Seller) in accordance with the terms of any Mortgage
Insurance Policies;
(ii) not do or omit to do anything (both in its capacity
as Servicer and Approved Seller) which, or the
omission of which, as the case may be, could be
reasonably expected to prejudicially affect or limit
its rights or the rights of the Trustee under or in
respect of a Mortgage Insurance Policy to the extent
those rights relate to a Receivable and the
Receivable Rights;
(iii) promptly make a claim under any Mortgage Insurance
Policy when it is required to do so in accordance
with:
(A) the Procedures Manual;
(B) the Transaction Documents; and
(C) the terms of the Mortgage Insurance Policy;
(iv) promptly notify the Manager when circumstances arise
that would entitle it to make a claim under a
Mortgage Insurance Policy; and
(v) in respect of the HLIC Policy (as defined in the
Supplementary Terms Notice for Crusade Euro Trust No.
1 of 1998), perform the obligations and indemnify the
Trustee in respect of the
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following provisions as if the following amendments
were made to the HLIC Policy:
(A) in the section headed "DUTY OF DISCLOSURE" on
pages 2 and 3, wherever the word "Insured"
appears, it shall be replaced with the words
"First Insured (as Servicer)";
(B) in the sixth and seventh lines of clause 3.6(a),
the words "then the Insured shall immediately
advise HLIC and promptly pay to HLIC any
overpayment by HLIC" shall be replaced with the
words "then the First Insured (as Servicer)
shall immediately advise the Trustee and HLIC
and, after receiving the appropriate funds from
the Trustee (if any), promptly pay to HLIC any
overpayment by HLIC";
(C) in the fifth and sixth lines of clause 4.4, the
words "then the Insured shall immediately advise
HLIC of that fact and promptly repay to HLIC the
difference" shall be replaced with the words
"then the First Insured (as Servicer) shall
immediately advise the Trustee and HLIC of that
fact and, after receiving the appropriate funds
from the Trustee (if any), promptly repay to
HLIC the difference";
(D) in clause 5:
(1) wherever the word "Insured" (other than as
"Insured Loan" or "Insured Loan Contract")
appears, it shall be replaced with the
words "First Insured (as Servicer)";
(2) wherever the words "HLIC requests" and
"HLIC reasonably requests" appear, they
shall be replaced with "HLIC requests of
the Trustee" and "HLIC reasonably requests
of the Trustee", respectively; and
(3) wherever the words "request from HLIC"
appear, they shall be replaced with
"request from HLIC to the Trustee";
(E) in clause 6.1, the words "The Insured" in the
first line shall be replaced with the words "The
First Insured (as Servicer)";
(F) in clause 6.2(a):
(1) the word "Insured" in the first line shall
be replaced with "Insured, who may request
the First Insured alone (as Servicer)"; and
(2) the words "and the First Insured (as
Servicer) shall not unreasonably refuse to
comply with the Trustee's request" shall be
added to the end of the clause;
(G) in clause 6.2(b), the words in the second line
"HLIC may require the Insured" shall be replaced
with "HLIC may require the Insured, who may
direct the First Insured alone (as Servicer) and
the First Insured (as Servicer) shall not
unreasonably refuse to comply with the Trustee's
request";
(H) in clause 6.3:
(1) wherever the word "Insured" (other than as
"Insured Loan" or "Insured Loan Contract")
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appears, it shall be replaced with the word
"First Insured (as Servicer)"; and
(2) wherever the word "HLIC" appears, it shall
be replaced with the word "HLIC and/or the
Trustee (as the case may be)";
(I) in clause 9.2, paragraphs (d) - (i) inclusive
shall apply solely to the First Insured (as
Servicer);
(J) in clause 12, the word "Insured" at the end of
the second line shall be replaced with "First
Insured (as Servicer)";
(g) (Mortgaged Property Insurance) use reasonable endeavours by
reference to Australian market practice to ensure that a
current policy of general insurance is maintained in respect
of each Mortgaged Property;
(h) (no Security Interests) not consent to the creation or
existence of any Security Interest in favour of a third party
in relation to any Mortgaged Property in connection with a
Receivable and the Receivable Rights:
(i) without limiting paragraph (h)(ii), unless priority
arrangements are entered into with that third party
under which the third party acknowledges that the
Receivable and Receivable Rights ranks ahead in
priority to the third party Security Interest on
enforcement for an amount not less than the Unpaid
Balance of the Receivable plus such other amount as
the Servicer determines in accordance with the
Procedures Manual or its ordinary course of business;
or
(ii) which would rank before or pari passu with the
relevant Receivable and Receivable Rights;
(i) (release of debt or vary terms) not, except as required by
Law, release an Obligor from any amount owing in respect of a
Receivable or otherwise vary or discharge any Receivable or
Receivable Right or enter into any agreement or arrangement
which has the effect of altering the amount payable in respect
of a Receivable or Receivable Right where it would have a
Material Adverse Effect;
(j) (binding provisions and orders of a competent authority)
release any Receivable or Receivable Right, reduce the amount
outstanding under or vary the terms of any Receivable or grant
other relief to an Obligor, 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 Trustee for any loss
the Trustee may suffer by reason of the order. The amount of
the loss is to be determined by agreement with the Trustee or
failing this, by the Servicer's external auditors;
(k) (other miscellaneous things) attend to the stamping and
registration of all Relevant Documents for each Relevant Trust
(including documents which became Relevant Documents)
following any amendment, consolidation or other action, and in
the case of any registration of any Mortgage that registration
must result in the Mortgage having the ranking referred to in
the relevant eligibility criteria in the Supplementary Terms
Notice. In relation to any Mortgage that is not registered at
the relevant Closing Date, the Servicer shall ensure that it
is lodged for registration not later than 120 days after that
Closing Date;
(l) (setting the Interest Rate)
(i) the Servicer shall set the interest rate on the
Receivables in accordance with the requirements of
the Supplementary Terms Notice; and
(ii) subject to the relevant Supplementary Terms Notice,
if the Trustee has perfected its title to the
Receivables or Receivable
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Rights and the Trustee is entitled to vary the
interest rate in accordance with the terms of the
Receivables, the Servicer shall, in accordance with
the terms of the Receivables, set and maintain the
interest rate on the relevant Receivables at or above
the relevant Threshold Rate as advised by the Manager
in accordance with the Master Trust Deed and the
Supplementary Terms Notice and promptly notify the
relevant Obligors;
(m) (notification) notify:
(i) the 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
(ii) the Manager of anything else which the Manager
reasonably requires regarding any proposed
modification to any Receivable or Receivable Security
and the Services;
(n) (provide information and access on request) provide
information reasonably requested by the Trustee or the
Manager, with respect to all matters relating to each Relevant
Trust and the assets of the relevant Trust, and the Trustee or
the Manager believes reasonably necessary for it to perform
its obligations under the relevant Transaction Documents, and
upon reasonable notice and at reasonable times permit the
Trustee to inspect the Data Base in relation to each Relevant
Trust;
(o) (comply with other obligations) comply with all its
obligations under any Transaction Document to which it is a
party;
(p) (pay taxes) subject to receiving payment from, or being
reimbursed by, the relevant Obligor or being indemnified by
the Trustee, pay all Taxes that relate to the Services (other
than any Tax on or referable to the income of a Trust or of
the Servicer) or ensure those Taxes are paid or where such
Taxes are incurred due to the default or breach of duty by the
Servicer, pay those Taxes or ensure that those Taxes are paid;
(q) (not claim) not claim any Security Interest over any Asset;
(r) (comply with Supplementary Terms Notice) comply with any
undertaking specified as an additional Servicer undertaking in
a relevant Supplementary Terms Notice, including, without
limitation, providing the Manager with any information
referred to in that Supplementary Terms Notice;
(s) (update Receivables Register) update the Receivables Register
and give a copy to the Manager and the Trustee:
(i) within 3 months of the Closing Date for each Relevant
Trust;
(ii) if its holding company has a short term rating from
the Designated Rating Agency of not less than A-1+
from S&P, P-1 from Moody's or F1+ from Fitch, not
later than the last Business Day of each calendar
year during the Term;
(iii) if its holding company does not have such a rating,
on the last Business Day of each calendar quarter
during the Term; and
(iv) within 30 days of a written request by the Trustee.
(t) (switches) notify the Manager immediately of each request by
an Obligor to switch its Receivable to another product offered
by an Approved Seller; and
(u) (comply with Trust Back) apply any moneys it receives in
relation to any Other Secured Liability in accordance with the
relevant Trust Back in accordance with the directions of the
Trustee.
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3.2 Undertakings of Servicer in its capacity as an Approved Seller
The Servicer in its capacity as an Approved Seller undertakes that at
all times during the Term, and for so long as it is the legal owner of
any Receivable or Receivable Security, it will:
(a) (compliance with law)
(i) maintain in effect all qualifications, consents,
licences, permits, approvals, exemptions, filings and
registrations as may be required under any applicable
Law in relation to its ownership of any Receivable or
Receivable Right and to perform or comply with its
obligations under this Agreement; and
(ii) comply with all Laws in connection with any
Receivables and Receivable Rights, where failure to
do so would have a Material Adverse Effect;
(b) (comply with Supplementary Terms Notice) comply with any
undertaking specified in relation to it in its capacity as
Servicer in a relevant Supplementary Terms Notice and all
other Transaction Documents with respect to the relevant
Trust, including, without limitation, providing the Manager
with any information referred to in that Supplementary Terms
Notice;
(c) (Insurance Policies) 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 Trustee under or in respect of a
Mortgage Insurance Policy to the extent those rights relate to
a Receivable and the Receivable Right;
(d) (no Security Interests) not consent to the creation or
existence of any Security Interest in favour of a third party
in relation to any Mortgaged Property in connection with a
Receivable and the Receivable Right:
(i) without limiting paragraph (d)(ii), unless priority
arrangements are entered in to with that third party
under which the third party acknowledges that the
Receivable and Receivable Right ranks ahead in
priority to the third party Security Interest on
enforcement for an amount not less than the Unpaid
Balance of the Receivable plus such other amount as
the Servicer (as an Approved Seller) determines in
accordance with the Procedures Manual or its ordinary
course of business; or
(ii) which would rank before or pari passu with the
relevant Receivable and Receivable Right;
(e) (release of debt or vary terms) not, except as required by
Law, release an Obligor from any amount owing in respect of a
Receivable or otherwise vary or discharge any Receivable or
Receivable Right or enter into any agreement or arrangement
which has the effect of altering the amount payable in respect
of a Receivable or Receivable Right where it would have a
Material Adverse Effect;
(f) (binding provisions and orders of a competent authority)
release any Receivable or Receivable Right, reduce the amount
outstanding under or vary the terms of any Receivable or grant
other relief to an Obligor, 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
(as an Approved Seller). If the order is due to the Servicer
(as an Approved Seller) breaching any applicable Law then the
Servicer must indemnify the Trustee for any loss the Trustee
may suffer by reason of the order. The amount of the loss is
to be determined by agreement with the Trustee or failing
this, by the Servicer's external auditors; and
(g) (not claim) not claim any Security Interest over any Asset.
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3.3 Material Adverse Effect
(a) In performing the Services, the Servicer shall have regard to
whether what it does, or does not do, will have any Material
Adverse Effect.
(b) The Servicer may ask the Trustee or the Manager if any action
or inaction on its part is reasonably likely to, or will, have
a Material Adverse Effect.
(c) The Servicer may rely upon any statement by the Trustee or the
Manager that any action or inaction by the Servicer is
reasonably likely to, or will, have a Material Adverse Effect,
provided it so relies in good faith.
(d) Subject to paragraphs (a) and (c), the Servicer shall not be
liable for a breach of this Agreement, or be liable under any
indemnity, in relation to any action or inaction on its part,
where it has been notified by the Trustee or the Manager that
the action or inaction is not reasonably likely to, or will
not have a Material Adverse Effect.
4. Procedures manual
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4.1 Trustee bound by acts of Servicer
All acts of the Servicer in servicing the Receivables in accordance
with the relevant Procedures Manual are binding on the Trustee.
4.2 No liability for compliance
(a) The Servicer is not in breach of its duties under this
Agreement or otherwise liable to the Trustee if it complies
strictly with the relevant Procedures Manual unless:
(i) the relevant Procedures Manual does not materially
comply with any Law; or
(ii) the Servicer is not otherwise complying with clauses
2.2 and 3 in relation to the relevant matter or duty.
(b) If the Servicer becomes aware that any Procedures Manual does
not materially comply with any Law, it shall notify the
Trustee within 10 Business Days and take all reasonable steps
to rectify that non-compliance.
4.3 Amendments to Procedures Manual
The Servicer shall not amend the relevant Procedures Manual in any way
that would reasonably be expected to result in a Material Adverse
Effect, unless it must do so to ensure compliance with Law. The
Servicer shall notify the Trustee, the Manager and the Designated
Rating Agency of any material amendment to the relevant Procedures
Manual.
5. Collection and remittance of moneys
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5.1 Collection of moneys
(a) The Servicer shall on behalf of the Trustee collect and
receive the Collections in respect of Receivables in relation
to which the Servicer (as an Approved Seller) is the legal
owner.
(b) In collecting and receiving the Collections for Receivables in
relation to which it is (as an Approved Seller) the legal
owner, the Servicer shall:
(i) act in accordance with the standards and practices
applied by the Servicer to other assets which it owns
in the ordinary course of its business (as an
Approved Seller) and in accordance with the
Procedures Manual; and
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(ii) exercise the degree of diligence and care expected of
an appropriately qualified lender in relation to the
relevant financial products.
(c) Following the perfection of title to any Receivable and
Receivable Rights, the Servicer shall assist the Trustee in
relation to the collection and receipt of Collections in
respect of those Receivables and Receivable Rights.
5.2 Remittances
(a) If the Servicer has a short term rating of A-1+ from S&P, P-1
from Moody's or F1+ from Fitch, and the Standby Bank Guarantee
is in place or the Servicer otherwise satisfies each relevant
Designated Rating Agency that any rating given by the
Designated Rating Agency in respect of the Notes will not be
adversely affected, the Servicer must pay the Collections it
receives during a Collection Period on the Remittance Date for
that Collection Period into the relevant Collection Account.
(b) Subject to the terms of the relevant Supplementary Terms
Notice, on that Remittance Date, the Servicer must pay into
the relevant Collection Account an amount equal to the
aggregate of:
(i) the Collections received during the Collection Period
relating to that Remittance Date; and
(ii) an amount equal to the interest that would have been
earned on such Collections received by it if they had
been deposited into the relevant Collection Account
five Business Days following receipt by the Servicer,
less an amount equal to any Taxes payable in relation to those
Collections and any other amount the Servicer may retain in
accordance with any relevant Supplementary Terms Notice.
(c) If the Servicer does not have a short term rating of A-1+ from
S&P, P-1 from Moody's and F1+ from Fitch, or otherwise does
not satisfy the requirements of each relevant Designated
Rating Agency so that the rating given by the Designated
Rating Agency in respect of the Notes will be adversely
affected, then the Servicer shall pay all Collections in its
possession or control into the relevant Collection Account no
later than two (2) Business Days following receipt.
(d) If a Collection Account is not maintained with the Servicer,
or a subsidiary of the Servicer, all Collections in relation
to the relevant Trust must be deposited into that Collection
Account no later than two Business Days following receipt of
them by the Servicer.
(e) In respect of Crusade Euro Trust No.1 of 1998, if the amount
standing to the credit of the Collection Account at any time
exceeds the Standby Guarantee Limit (as defined in the Standby
Bank Guarantee) at that time the amount of that excess must be
withdrawn from the Collection Account and deposited in an
account held with an Approved Bank (other than St.George)
unless the Standby Guarantor temporarily increases the Standby
Guarantee Limit (as defined in the Standby Bank Guarantee) by
an amount equal to that excess.
5.3 Remittances to Trustee
(a) (Transfer of funds to Trustee) The Servicer shall pay to the
relevant Collection Account all funds required to be paid to
the Trustee in accordance with this clause 5 by wire transfer
or as otherwise instructed by the Trustee in same day funds.
(b) (Payment dishonoured) If the Servicer pays funds relating to
any payment in respect of Receivables and Receivable Rights to
the Trustee and the related Obligor's payment is returned, or
dishonoured, the Servicer shall be entitled to a return of the
amount remitted to the
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<PAGE>
Trustee for which the Servicer did not receive funds from the
Obligor. The Servicer may withhold that amount from funds
subsequently remitted to the Trustee in relation to the
Relevant Trust.
5.4 Payments and Computations, etc.
(a) Subject to the terms of any relevant Supplementary Terms
Notice, the Servicer shall make all payments to the Trustee
under a Transaction Document:
(i) without set off or counterclaim and without
deduction, except in relation to any deductions that
may be made in accordance with this clause; and
(ii) by paying or depositing it in accordance with the
terms of the relevant Transaction Document no later
than 4.00 pm on the day when due in same day funds.
(b) If any payment is due on a day which is not a Business Day,
the due date will be the next Business Day.
5.5 Report by Servicer
On or before each Determination Date for each Relevant Trust, the
Servicer will prepare and submit to the Manager and the Trustee a
report on Collections, and provide such other information as the
Manager reasonably requires to prepare its report under clause 14.16 of
the Master Trust Deed and at the end of each Financial Year produce a
certificate for the Trustee and the Manager containing a schedule of
information agreed from time to time with the Trustee and the Manager.
5.6 No Right of Set-Off
Notwithstanding any term of any other document, whether relating to the
establishment of a Collection Account or otherwise:
(a) if a Trust account is maintained with the Servicer, the
Servicer agrees that it shall have no right of set-off,
banker's lien, right of combination of accounts, right to
deduct moneys or any other analogous right or security in or
against any funds held in the Trust Account for any amount
owed to the Servicer; or
(b) if a Trust account is maintained with any Bank other than
St.George, the Manager shall use its best endeavours to ensure
that the relevant Bank agrees that it shall have no right of
set-off, banker's lien, right of combination of accounts,
right to deduct moneys or any other analogous right or
security in or against any funds held in the Trust Account for
any amount owed to that Bank.
6. Servicer fees
- --------------------------------------------------------------------------------
6.1 Fee
The Trustee shall in accordance with, and subject to the relevant
Supplementary Terms Notice pay to the Servicer a fee for providing its
services under this Agreement in relation to each Trust.
6.2 Expenses of Servicer
(a) The Trustee must reimburse the Servicer for all legal and
selling expenses relating to the enforcement and recovery of
the Receivables, including legal expenses, valuations,
premiums on force-placed insurance policies where the relevant
Obligor has cancelled or let lapse an insurance policy, rates
and taxes, any amount repaid to a liquidator or trustee in
bankruptcy under any applicable law, binding code, order or
decision of a court, tribunal or the like or based on the
advice of the Servicer's legal advisers, and other reasonable
amounts which the Servicer reasonably
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spends or incurs in relation to the enforcement or sale,
provided that where the consent of an insurer under a Mortgage
Insurance Policy is required in order for an expense to be
reimbursable by that insurer, the Servicer will only be
reimbursed where it has obtained that consent. This right of
reimbursement to the Servicer is subject to the terms of any
relevant Trust Back under the Master Trust Deed.
(b) The Servicer will invoice the Trustee on each Determination
Date in relation to each Relevant Trust for the costs and
expenses under paragraph (a), and shall provide reasonable
details and supporting documentation in relation to amounts to
be reimbursed.
(c) This reimbursement shall be in accordance with the relevant
Supplementary Terms Notice.
(d) The Trustee must, in accordance with the Master Trust Deed and
the relevant Supplementary Terms Notice on the recommendation
of the Manager, reimburse the Servicer for all costs and
expenses incurred by the Servicer in complying with clause
2.7.
(e) Except as provided in this clause, the Servicer shall be
responsible for all other costs and expenses of servicing the
Receivables.
7. Termination
- --------------------------------------------------------------------------------
7.1 Expiry of Term
This Agreement shall continue until the expiry of the Term.
7.2 Servicer Transfer Event
(a) If a Servicer Transfer Event occurs, the Trustee must at the
direction of the Manager by notice terminate this Agreement
with immediate effect.
(b) Following such action:
(i) clause 2.8 shall apply;
(ii) the Servicer must promptly transfer at its own cost
to the Trustee or as the Trustee directs the relevant
information in the Data Base held or maintained by
the Servicer in relation to this Agreement, the
Receivables or Receivable Rights; and
(iii) unless and until another Eligible Servicer has been
appointed to be the Servicer, the Trustee shall act
as Servicer and be entitled to the fee payable under
clause 6 while so acting.
(c) No other person will be appointed to perform all or part of
the obligations the Servicer has undertaken to perform under
this Agreement or to service any of the Receivables unless:
(i) the Trustee has terminated this Agreement in
accordance with the provisions of paragraph (a); or
(ii) the Servicer has resigned in accordance with clause
7.3; and
in all circumstances that person must be an Eligible Servicer
or the Trustee.
7.3 Resignation
(a) The Servicer shall not resign without first giving 120 days'
notice to the Designated Rating Agency, the Manager and the
Trustee. The Manager and the Trustee shall use reasonable
endeavours to procure the appointment of a replacement
Servicer which is an Eligible Servicer. The Servicer shall
assist the Manager and the Trustee in procuring such
appointment if requested.
(b) When a notice under paragraph (a) is given, the Trustee and
the Manager shall be entitled to appoint some other
corporation to be the Servicer of
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the relevant Trust on any terms the Trustee sees fit
(including the amount of Servicer's Fee that would be payable
to the replacement Servicer at market rates) provided that the
terms of that appointment will not have an adverse effect on
the ratings of the Notes and that corporation is an Eligible
Servicer.
(c) Subject to paragraph (d) below, until a replacement Servicer
is appointed under paragraph (b) above, the Servicer must
continue to act as Servicer and be entitled to the fee payable
under clause 6 while so acting.
(d) If an Eligible Servicer is not appointed by the expiry of the
120 day notice period given under paragraph (a) above, the
Trustee must itself act as Servicer and be entitled to a fee
payable under clause 6 while so acting.
(e) Despite paragraph (a), the Trustee may resign as Servicer by
giving one (1) day's notice to the Designated Rating Agency
and the Manager when the appointment of a replacement Servicer
(which is an Eligible Servicer) has been procured to take
effect from the Trustee's resignation as Servicer.
7.4 Survival
The obligations of the Servicer under clause 7 survive the termination
of this Agreement.
7.5 Release of outgoing Servicer
Except as provided in clause 7.4, upon retirement or removal and
provided there has been payment to the Trustee of all sums due to it by
the outgoing Servicer under this Agreement at that date, the outgoing
Servicer shall be released from all further obligations under this
Agreement but no release under this clause shall extend to any existing
or antecedent fraud, negligence or wilful default on the part of the
outgoing Servicer or its officers, employees, agents or delegates.
7.6 New Servicer to execute deed
(a) A new Servicer shall execute a deed in such form as the
Trustee may reasonably require under which the new Servicer
shall undertake to the Trustee and other relevant parties to
be bound by all the covenants on the part of the Servicer
under the Transaction Documents from the date of execution of
the new deed on the same terms contained in the Transaction
Documents.
(b) On and from the date of execution of the new deed, the new
Servicer shall and may afterwards exercise all the powers,
enjoy all the rights and shall be subject to all the duties
and obligations of the Servicer under the Transaction
Documents as fully as though the new Servicer had been
originally named as a party to it.
7.7 Settlement and discharge
Subject to clause 7.5, the Trustee shall settle with the outgoing
Servicer the amount of any sums payable by the outgoing Servicer to the
Trustee or by the Trustee to the outgoing Servicer and shall give to or
accept from the outgoing Servicer a discharge in respect of those sums
which shall be conclusive and binding as between the Trustee, the
outgoing Servicer, the new Servicer, the Manager, the Beneficiaries and
the Noteholders.
8. Indemnity
- --------------------------------------------------------------------------------
8.1 Indemnity
Subject to the succeeding provision of this clause, the Servicer fully
indemnifies the Trustee from and against 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 Servicer (as
Servicer or Approved Seller) or its
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officers, employees or agents including as a consequence of a Servicer
Transfer Event, or a failure by the Servicer to perform its duties
under this Agreement (as Servicer or Approved Seller), including,
without limitation, a failure to keep the Receivables Register in
accordance with this Agreement.
8.2 Limitation of liability
The Servicer is not liable:
(a) in connection with anything done by it in good faith in
reliance upon any document, form or list provided by or on
behalf of the Trustee except when it has actual knowledge, or
ought reasonably to know, that the document, form or list is
not genuine or accurate;
(b) if it fails to do anything because it is prevented or hindered
from doing it by any Law; or
(c) subject to the Corporations Law, if a person (other than a
delegate or agent of the Servicer) fails to carry out an
agreement with the Trustee or the Servicer in connection with
the Services (except when the failure is due to the Servicer's
own neglect, fraud or default).
8.3 No liability for acts of certain persons
If the Servicer relies in good faith on an opinion, advice, information
or statement given to it, by a person the Servicer is not liable for
any misconduct, mistake, oversight, error of judgment, forgetfulness or
want of prudence on the part of that person, except:
(a) when the person is not independent from the Servicer; or
(b) it would not be reasonable to rely upon the opinion, advice,
information or statement from the person who gives it; or
(c) where that person is a delegate or agent of the Servicer.
A person will be regarded as independent notwithstanding that the
person acts or has acted as adviser to the Servicer so long as separate
instructions are given by the Servicer to that person.
8.4 No liability for loss etc
The Servicer is not liable:
(a) for any loss, cost, liability or expense arising out of the
exercise or non-exercise of a discretion by the Trustee or the
Manager or the act or omission of the Trustee or the Manager
except to the extent that it has arisen out of the Servicer's
own fraud, negligence or default; or
(b) for any loss, cost, liability or expense caused by its failure
to check any information, document, form or list supplied or
purported to be supplied to it by the Trustee or the Manager
except to the extent that the loss is caused by the Servicer's
own fraud, negligence or default.
This exclusion does not apply in relation to the acts or omissions of
the Manager for so long as the Servicer is a Related Body Corporate of
the Manager.
8.5 Method of claiming under indemnity
The Servicer shall not be obliged to pay any indemnity under this
Agreement, unless:
(a) the Trustee first establishes that there has been a breach
that has caused loss;
(b) the indemnity claimed represents no more than the loss
incurred as a result of the breach; and
(c) the Manager on behalf of the Trustee first gives the Servicer
a written notice specifying:
(i) the quantum of the claim; and
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(ii) the basis of the claim.
8.6 Time of Payment
The Servicer shall pay any amount it is required to pay under this
clause within 7 Business Days of receipt of notice under clause 8.5.
9. Representations and warranties
- --------------------------------------------------------------------------------
9.1 Representations and Warranties
The Servicer makes the representations and warranties in clause 27.1 of
the Master Trust Deed in relation to itself for the benefit of the
Trustee.
9.2 Reliance
The Servicer acknowledges that the Trustee has entered into this
Agreement in reliance on the representations and warranties in clause
9.1.
9.3 Survival of Representations and Indemnities
(a) All representations and warranties in a Transaction Document
survive the execution and delivery of the Transaction
Documents.
(b) Each indemnity in this Agreement:
(i) is a continuing obligation;
(ii) is a separate and independent obligation; and
(iii) survives termination or discharge of this Agreement.
10. The servicer may act as banker
- --------------------------------------------------------------------------------
The Servicer may (without having to account to the Trustee) engage in
any kind of banking, finance, trust or other business permitted under
any law with any Obligor as if it did not have obligations under this
Agreement and it were not the Servicer but subject to the provisions of
this Agreement. The Servicer shall not be required to account to the
Trustee for any moneys received by it on any account that is unrelated
to Receivables and Receivable Rights or the Services.
11. Administrative provisions
- --------------------------------------------------------------------------------
11.1 Notices
All notices, requests, demands, consents, approvals or agreements 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 (in the case of
delivery in person or by post or facsimile transmission) 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, 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.
11.2 Governing Law and Jurisdiction
This Agreement is governed by the laws of the New South Wales. Each of
the Servicer and the Trustee submits to the non-exclusive jurisdiction
of courts exercising jurisdiction there.
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<PAGE>
11.3 Assignment
No party may assign, novate, transfer or deal with its obligations
under this Agreement except for the creation of a charge by the Trustee
under the relevant Security Trust Deed.
11.4 Amendment
This Agreement can only be amended in writing, and provided:
(a) prior notice of any proposed amendment is given to the
Designated Rating Agency; and
(b) the amendment will not result in an adverse effect on the
ratings of any Notes.
11.5 Severability clause
Any provisions of any Transaction Document which are prohibited or
unenforceable in any jurisdiction are ineffective to the extent of the
prohibition or unenforceability. That does not invalidate the remaining
provisions of that Transaction Document nor affect the validity or
enforceability of that provision in any other jurisdiction.
11.6 Costs and Expenses
(a) (Trustees costs and expenses) On demand the Servicer shall
reimburse the Trustee for the reasonable expenses of the
Trustee (as applicable) in relation to any enforcement of this
Agreement by the Trustee against the Servicer for breaching
this Agreement including in each case legal costs and expenses
on a full indemnity basis and each party shall bear their own
costs (other than legal costs) relating to the preparation
execution and completion of this Agreement.
(b) (Stamp duty) In addition, the Servicer shall pay all stamp and
registration Taxes (including fines and penalties) which may
be payable or determined to be payable in relation to the
execution, delivery, performance or enforcement of this
Agreement.
(c) (Servicer's costs and expenses) In accordance with the
Supplementary Terms Notice, the Trustee shall reimburse the
Servicer for the reasonable expenses of the Servicer (as
applicable) in relation to any enforcement of this Agreement
including in each case legal costs and expenses on a full
indemnity basis, except to the extent that such enforcement
relates to a breach by the Servicer of this Agreement.
11.7 Waivers: Remedies Cumulative
(a) No failure on the part of a party to exercise and no delay in
exercising any right, power or remedy under any Transaction
Document operates as a waiver. Nor does any single or partial
exercise of any right, power or remedy preclude any other or
further exercise of that or any other right, power or remedy.
(b) The rights, powers and remedies provided to the Trustee in the
Transaction Documents are in addition to any right, power or
remedy provided by law.
EXECUTED in Canberra.
Each attorney executing this Agreement states that he or she has no
notice of revocation or suspension of his or her power of attorney.
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<PAGE>
For agreement executed under power of attorney
c40
SIGNED on behalf of )
ST.GEORGE BANK LIMITED )
by its attorney )
in the presence of: )
--------------------------------------
Signature
- -------------------------------------- --------------------------------------
Witness Print name
- --------------------------------------
Print name
SIGNED on behalf of )
CRUSADE MANAGEMENT LIMITED )
by its attorney )
in the presence of: )
-------------------------------------
Signature
- ---------------------------------------- -------------------------------------
Witness Print name
- ----------------------------------------
Print name
For agreement executed under power of attorney
c40
SIGNED on behalf of )
NATIONAL MUTUAL TRUSTEES )
LIMITED (ACN 004 029 841) )
by its attorney under power of attorney )
dated )
who hereby declare that no notice )
of alteration to or revocation of )
the said Power of Attorney has )
been received by them )
in the presence of: )
----------------------------------
Signature
- ------------------------------------------- ----------------------------------
Witness Print name
- -------------------------------------------
Print name
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<PAGE>
SCHEDULE 1
RECEIVABLES REGISTER INFORMATION
- --------------------------------------------------------------------------------
The Receivables Register shall contain the following information in
relation to each Mortgage.
1. Name and address of the relevant Obligor(s).
2. Account/reference number of the loan under the relevant loan document,
letter of offer or terms and conditions.
3. The title reference for the relevant Mortgaged Property.
4. Such other information as the Servicer and the Trustee may agree from
time to time.
5. The registered dealing number of that Mortgage from the relevant Land
Titles Office together with:
(a) in respect of Mortgaged Property in New South Wales, the volume
and folio number(s) for the Mortgaged Property;
(b) in respect of Mortgaged Property in Queensland, a description of
the lot, county, parish and title reference(s) of the Mortgaged
Property;
(c) in respect of Mortgaged Property in Western Australia:
(i) lot and diagram/plan/strata plan number(s) or location name
and number(s); and
(ii) volume and folio number(s) or crown lease number(s);
(d) in respect of Mortgaged Property in South Australia, the volume
and folio number(s) for the Mortgaged Property;
(e) in respect of Mortgaged Property in Tasmania, the volume and folio
number(s) for the Mortgaged Property;
(f) in respect of Mortgaged Property in the Australian Capital
Territory district/division, section, block, unit, volume and
folio number(s) for the Mortgaged Property;
(g) in respect of Mortgaged Property in the Northern Territory, the
Receivables Register, volume, folio, location, parcel, plan and
unit for the Mortgaged Property;
(h) in respect of Mortgaged Property in Victoria, the volume and folio
number(s) for the Mortgaged Property.
6. Details of the direct debit authorities in respect of Obligors.
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Custodian Agreement
- -------------------
St.George Custodial Pty Limited
(Custodian);
Crusade Management Limited
(Manager
National Mutual Trustees Limited
(the Trustee).
Allen Allen & Hemsley
The Chifley Tower
2 Chifley Square
Sydney NSW 2000
Australia
Tel 61 2 9230 4000
Fax 61 2 9230 5333
(Copyright) Copyright Allen Allen & Hemsley 1999
<PAGE>
Custodian Agreement Allen Allen & Hemsley
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Table of Contents
<S> <C> <C>
1. Definitions and interpretation 3
1.1 Definitions 3
1.2 Interpretation 5
1.3 Limitation of Trustee's Liability 5
1.4 Supplementary terms notice 6
1.5 Knowledge of the Trustee 6
1.6 Knowledge of the Custodian 6
2. Appointment of the custodian 6
2.1 Appointment 6
2.2 General duties and standard of care 6
2.3 The Custodian's power to delegate 6
2.4 The Custodian's power to appoint advisers 7
2.5 Legal title 7
2.6 License to enter Premises 7
3. Duties and responsibilities of the custodian 7
3.1 General 7
3.2 Locate and Access 8
3.3 Audit 8
3.4 Transfer of custody 8
4. Undertakings 9
4.1 The custodian's undertakings 9
4.2 Material adverse effect 10
5. Custodial procedures 10
5.1 No liability for compliance 10
5.2 Amendments to Custodial Procedures 11
6. The custodian fees 11
6.1 Fee 11
6.2 Expenses of the Custodian 11
7. Termination 11
7.1 Expiry of Term 11
7.2 Custodial transfer event/custodial transfer trigger 11
7.3 Resignation 11
7.4 Survival 12
7.5 Release of outgoing Custodian 12
7.6 New Custodian to execute deed 12
</TABLE>
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Custodian Agreement Allen Allen & Hemsley
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<TABLE>
<S> <C> <C>
7.7 Settlement and discharge 12
8. Indemnity 12
8.1 Indemnity 12
8.2 Limitation of liability 13
8.3 No liability for acts of certain persons 13
8.4 No liability for loss etc 13
8.5 Method of claiming under indemnity 13
8.6 Time of Payment 13
9. Representations and warranties 14
9.1 Representations and Warranties 14
9.2 Reliance 14
9.3 Survival of Representations and Indemnities 14
10. Administrative provisions 14
10.1 Notices 14
10.2 Governing Law and Jurisdiction 14
10.3 Assignment 14
10.4 Amendment 14
10.5 Severability clause 15
10.6 Costs and Expenses 15
10.7 Waivers: remedies cumulative 15
SCHEDULE 1 17
AUDIT 17
</TABLE>
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Page (ii)
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Custodian Agreement Allen Allen & Hemsley
- --------------------------------------------------------------------------------
Date
Parties
1. ST.George Custodial Pty Limited (ACN 003 347 411)
incorporated in New South Wales of Level 8, 182 George
Street, Sydney, New South Wales, 2000 (Custodian);
2. Crusade Management Limited (ACN 072 715 916) of 4-16
Montgomery Street, Kogarah, New South Wales 2217
(Manager); and
3. National Mutual 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 each Relevant Trust (the Trustee).
Recitals
A The Trustee and the Manager wish to retain the services of
the Custodian to provide custodial services in relation to
the Relevant Documents.
- --------------------------------------------------------------------------------
IT IS AGREED as follows.
1. Definitions and interpretation
- --------------------------------------------------------------------------------
1.1 Definitions
In this Agreement, terms defined in the Master Trust Deed, a
Supplementary Terms Notice or a Servicing Agreement in relation to a
Relevant Trust have the same meaning and the following definitions
apply unless a different meaning is given in a Supplementary Terms
Notice in relation to a Relevant Trust or the context otherwise
requires.
Audit Date means a date not later than the first anniversary of the
date of this Agreement and every 12 months after that date during the
Term.
Custodial Procedures means those policies and procedures of the
Custodian relating to the collection, storage and safekeeping, filing
and general management of the Relevant Documents and the Security
Packets, which have been approved in advance by the Trustee, the
Manager and the Designated Ratings Agencies.
Custodial Services means the services provided or to be provided by
the Custodian under this Agreement.
Custodial Transfer Event means the occurrence of any of the
following:
(a) an Insolvency Event occurs with respect to the Custodian;
(b) for so long as the Custodian is a Related Body Corporate of
the Approved Seller:
(i) the long-term rating of the Approved Seller falls below
BBB from S&P, Baa2 from Moody's or BBB from Fitch IBCA;
or
(ii) a Title Perfection Event occurs;
(c) the Custodian fails to comply with the Custodial Procedures
or 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
Trustee and the Manager) and, if capable of remedy, the
Custodian does not remedy that failure within the earlier of
30 days after:
(i) the Custodian becoming aware of that failure; and
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Custodian Agreement Allen Allen & Hemsley
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(ii) receipt of a notice from either the Trustee or the
Manager;
(d) any representation, warranty or certification made by the
Custodian is incorrect when made and is not waived by the
Trustee or remedied, if capable of remedy, to the Trustee's
reasonable satisfaction within 45 days after notice from the
Trustee, and the Trustee determines that breach would have a
Material Adverse Effect;
(e) if it is unlawful for the Custodian to perform the Custodial
Services; or
(f) a Servicer Transfer Event.
Custodial Transfer Trigger means a Further Audit resulting in an
adverse report.
Eligible Custodian means any suitably qualified person whose
appointment as the Custodian under this Agreement will not adversely
affect the rating assigned to any Notes by a Designated Rating
Agency.
Further Audit has the meaning given in clause 3.3(c).
Law means any statute, rule, regulation, ordinance, order or decree
of any Government Agency, and includes, without limitation the
Consumer Credit Legislation and the Code of Banking Practice.
Master Trust Deed means the Master Trust Deed between the Trustee,
the Manager and St. George Bank Limited dated on or about the date of
this Agreement.
Material Default means, with respect to a Receivable:
(a) a failure by an Obligor to pay any amount pursuant to the
relevant Receivable which failure causes the Receivable to
be in Arrears and which failure to pay continues for a
period of 90 days; or
(b) the occurrence of an event of default, howsoever described
(other than a failure by an Obligor to pay an amount under
the relevant Receivable) under that Receivable or any
related Receivable Right unless the Custodian reasonably
determines that such event of default is of a minor or
technical nature and will not result in a Material Adverse
Effect.
Premises means the area specified as such in the relevant
Supplementary Terms Notice relating to a Relevant Trust.
Receivable has the meaning in the Master Trust Deed, but relates only
to Receivables held by the Trustee under a Relevant Trust.
Receivable Rights has the meaning specified in the Master Trust Deed,
but relates only to Receivable Rights held by the Trustee under a
relevant Trust.
Receivable Securities has the meaning in the Master Trust Deed, but
relates only to Receivable Securities held by the Trustee under a
Relevant Trust.
Record of Movements has the meaning given in clause 3.1(c).
Relevant Document has the meaning given in the Master Trust Deed.
Relevant Trust means a Trust in relation to which the Custodian has
been appointed, and has agreed to act, as the Custodian under clause
2.1 and a Supplementary Terms Notice.
Security Packet means, in relation to a Receivable, each packet of
Relevant Documents relating to that Receivable.
Security Packet Audit means, at any time, an inventory of Security
Packets conducted by the Custodian to verify location of the Security
Packets.
Security Vault means any security document vault located on the
Premises in which any Security Packets or Relevant Documents are
stored.
Term means the period from the date of this Agreement until the
earlier of:
(a) the date on which this Agreement is terminated pursuant to
clause 7.2;
(b) the date which is one month after the Notes in relation to
each Relevant Trust have been redeemed in full in accordance
with the Transaction
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Documents and the Trustee ceases to have any obligations
to any Creditor in relation to any Trust;
(c) the date on which the Trustee replaces the Custodian with an
Eligible Custodian; and
(d) the date on which the Custodian is replaced after resigning
under clause 7.3.
Supplementary Terms Notice means each Supplementary Terms Notice
dated on or after the date of this agreement relating to each
Relevant Trust.
1.2 Interpretation
The provisions of clause 1.2 of the Master Trust Deed apply to this
Agreement, as if set out in full, and on the basis that a reference
in clause 1.2(e), (f), (g), (k) or (l) to "this Deed" is a reference
to this Agreement.
1.3 Limitation of Trustee's Liability
(a) General
Clause 30 of the Master Trust Deed applies to the
obligations and liabilities of the Trustee and the Manager
under this Agreement.
(b) Liability of Trustee limited to its right to indemnity
(i) The Trustee enters into this Agreement only in its
capacity as trustee of each 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 Agreement or a
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 relevant 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 a 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 relevant
Trust or seek the appointment of a receiver (except under
the Security Trust Deed), or a liquidator, an
administrator or any similar person to the Trustee or
prove in any liquidation, administration or arrangements
of or affecting the Trustee.
(iii) The provisions of this clause 1.3 shall not apply to any
obligation or liability of the Trustee to the extent that
it is not satisfied because under a Transaction Document
or by operation of law there is a reduction in the extent
of the Trustee's indemnification or exoneration out of
the Assets of the relevant Trust as a result of the
Trustee's fraud, negligence, or Default.
(iv) 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 (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 a Trust or by any other act or omission of a Relevant
Party or any such person.
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(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 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 (iii) above.
(vi) 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.
(vii) Nothing in this clause limits the obligations expressly
imposed on the Trustee under the Transaction Documents.
1.4 Supplementary terms notice
This Agreement is subject to the Supplementary Terms Notice for each
Relevant Trust. In case of any inconsistency, the relevant
Supplementary Terms Notice shall prevail.
1.5 Knowledge of the 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.
1.6 Knowledge of the Custodian
For the purposes of this Agreement, the Custodian will only be
considered to have knowledge, notice of or to be aware of any thing
if the Custodian has knowledge, notice or awareness of that thing by
virtue of the actual knowledge, notice or awareness of the officers
or employees of the Custodian who have day to day responsibility for
carrying out its obligations under this Agreement.
2. Appointment of the custodian
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2.1 Appointment
The Manager and the Trustee appoint the Custodian to perform the
Custodial Services during the Term for each Trust in relation to
which the Custodian is specified as, and agrees to act as, the
Custodian in the relevant Supplementary Terms Notice. By executing a
Supplementary Terms Notice, the Custodian shall be taken to have
accepted that appointment, and agreed to perform the Custodial
Services in relation to that Trust in accordance with this Agreement.
2.2 General duties and standard of care
The Custodian shall provide the Custodial Services:
(a) in accordance with this Agreement;
(b) to the extent not provided in this Agreement, in accordance
with the Custodial Procedures; and
(c) to the extent not covered by clauses 2.2(a) and (b), by
exercising the degree of diligence and care expected of an
appropriately qualified custodian of documents.
2.3 The Custodian's power to delegate
(a) Without in any way affecting the generality of the above, the
Custodian may in carrying out and performing its duties and
obligations contained
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in this Agreement delegate all Custodial Services (whether or
not requiring or involving the Custodian's judgment or
discretion) to its officers and employees, the Servicer and to
such firms of solicitors as are approved by the Trustee.
(b) Despite any delegation or appointment under paragraph (a) of
this clause, the Custodian shall remain liable for the
performance of the Custodial Services in accordance with this
Agreement and for the acts or omissions of any delegate and
shall be solely responsible for the fees and expenses of such
delegate.
2.4 The Custodian's power to appoint advisers
In accordance with its ordinary course of business, the Custodian may
appoint and engage and act upon the opinion, advice or information
obtained from any solicitors, barristers, accountants, contractors,
qualified advisers and such other persons as may be necessary, usual
or desirable for the purpose of enabling the Custodian properly to
exercise and perform its duties and obligations under this Agreement.
2.5 Legal title
The Custodian agrees that, upon being directed to do so by the
Trustee following a Title Perfection Event for a Relevant Trust, it
will promptly take all action to assist the Trustee and the Manager
to perfect the Trustee's legal title to the relevant Receivables and
Receivable Rights by:
(a) taking any action required or permitted by law to assist the
perfection of such legal title;
(b) delivering all Relevant Documents for that Trust to the
Trustee. If the Custodian has not done so within 10 Business
Days (or such longer period as the Trustee in its reasonable
discretion permits) the Trustee must enter any premises
(including the Premises) where those Relevant Documents are
kept, take possession of and remove those Relevant Documents.
The Custodian shall assist the Trustee in doing so; and
(c) taking any other action which the Trustee reasonably requests
it to do.
2.6 License to enter Premises
The Custodian irrevocably licenses the Trustee to enter onto the
Premises for the purpose of taking possession of, and removing, the
Relevant Documents in accordance with this Agreement and give access
to any relevant Security Vault for that purpose.
3. Duties and responsibilities of the custodian
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3.1 General
The Custodian's duties and responsibilities are to:
(a) (hold Relevant Documents) hold as custodian under this
Agreement at the direction of the Trustee each Relevant
Document that it may receive on behalf of the Trustee (or its
agent or nominee) pursuant to a Transaction Document in
accordance with the Custodial Procedures as if the Relevant
Documents were beneficially owned by the Custodian;
(b) (identify and keep separate) ensure that each Relevant
Document is capable of identification and is kept in a
Security Packet which is kept together with other Security
Packets relating to the Receivables of that Trust in a
Security Vault, and separate from other documents held by the
Custodian for another Trust, other persons or otherwise;
(c) (Record of Movements) in relation to each Relevant Trust, open
and maintain in safe custody a record of physical movement
from the Premises and between each Relevant Trust of any
Relevant Document
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held by it from time to time pursuant to this Agreement (the
Record of Movements); and
(d) (all other things) at all times during the currency of this
Agreement do all acts, matters and things which may reasonably
be required of the Custodian by the Trustee for the purposes
of, or as contemplated by, this Agreement.
3.2 Locate and Access
(a) The Custodian shall ensure that at all times it shall be able
to locate each Security Packet by way of a periodic Security
Packet Audit.
(b) Unless the Servicer requires a Relevant Document to perform
its duties as the Servicer in relation to the related
Receivable in the manner permitted by the Servicing Agreement,
or otherwise comply with its obligations under the Transaction
Documents, each Relevant Document shall be kept within a
Security Vault.
(c) Other than the Servicer requiring a Relevant Document under
clause 3.2(b), or for an audit by the Servicer's or the
Custodian's internal or external auditor, or by the auditor
under clause 3.3 of this Agreement, a Relevant Document may
only be removed from a Security Vault with the Trustee's
written approval and for the following purposes:
(i) inspection by the Trustee; or
(ii) such other purpose approved in writing by the Trustee.
3.3 Audit
(a) The Manager or the Trustee (in default of action by the
Manager) shall on each Audit Date request an independent
auditor to conduct an audit of the Custodian's custodial role
with respect to the Relevant Documents for each Relevant Trust
by considering the matters set out in Schedule 1.
(b) The terms of the instruction of that auditor must require
delivery, within one month of an Audit Date, of a certificate
addressed to the Trustee, the Custodian and the Designated
Rating Agency stating whether or not the Custodian has
complied with the matters set out in Schedule 1.
(c) Where a certificate referred to in clause 3.3(b) (the Audit
Certificate) gives an "Adverse" finding (as set out in
Schedule 1), the Trustee must direct that auditor to conduct a
further audit (the Further Audit) on a similar basis to the
audit to which the Audit Certificate related. The Further
Audit shall be conducted no later than one month after the
date of the Audit Certificate. That auditor shall then issue a
new certificate with respect to the Further Audit in the form
required by clause 3.3(b) no later than one month after the
date on which the Further Audit commenced.
(d) Subject to any bona fide confidentiality restrictions, the
Custodian shall give each auditor full access to all relevant
information and the Relevant Documents for the purpose of
conducting each audit under clause 3.3.
(e) The Trustee shall pay the reasonable fees and expenses of the
auditor with respect to any audit under this clause 3.3 from
the Trust.
(f) The auditor instructed under this clause must be instructed to
give written reasons supporting any "Adverse" finding.
(g) The Custodian shall take all reasonable steps to cure any
non-compliance identified by an audit.
3.4 Transfer of custody
If:
(a) a Custodial Transfer Event occurs and is subsisting; or
(b) a Custodial Transfer Trigger occurs,
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the Custodian must deliver the Relevant Documents at the Custodian's
expense to the Trustee, or as it directs. If the Custodian has not
done so within 10 Business Days (or such longer period as the Trustee
in its reasonable discretion permits) of the occurrence of the
Custodian Transfer Event or Custodian Transfer Trigger the Trustee
must (with assistance from the Manager) enter any premises where the
Relevant Documents are kept, take possession of and remove the
Relevant Documents and all other documents and records relating to
the Relevant Documents. The Custodian shall assist the Trustee in
doing so and will do, at its expense, all things which the Trustee or
the Manager reasonably directs it to do in relation to the Trustee
taking possession of, and removing, the Relevant Documents and all
other documents and records relating to the Relevant Documents. If
the Trustee does not have possession of the Relevant Documents within
that period it may, to the extent that it has information available
to it to do so, lodge caveats in relation to the Receivables and
Receivable Rights for which it does not hold the Relevant Documents.
4. Undertakings
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4.1 The custodian's undertakings
The Custodian undertakes that at all times during the Term it will:
(a) (notice of default) give notice in writing to the Trustee and
each Designated Rating Agency of it becoming aware of the
occurrence of any Custodial Transfer Event;
(b) (compliance with law)
(i) 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 perform or comply with its
obligations under this Agreement;
(ii) comply with all Laws in connection with the provision of
the Custodial Services where failure to do so would have
a Material Adverse Effect; and
(iii) comply with the Consumer Credit Legislation in
connection with the provision of the Custodial Services
so that the Trustee does not personally or in its
capacity as trustee of the Trust become liable to pay any
Civil Penalty Payments.
(c) (Material Default) if a Material Default occurs in respect to
a Receivable, take all reasonable action to assist the
Servicer and the Trustee to enforce the relevant Receivable
and the Receivable Rights;
(d) (Insurance Policies)
(i) act in accordance with the terms of any Mortgage
Insurance Policies to the extent applicable to the
Custodian; and
(ii) not do or omit to do anything which, or the omission of
which, as the case may be, could be reasonably expected
to prejudicially affect or limit its rights or the rights
of the Trustee or the Servicer under or in respect of a
Mortgage Insurance Policy to the extent those rights
relate to a Receivable and the Receivable Rights;
(e) (notification) notify the Trustee, the Manager and the
Servicer of any event which it reasonably believes is likely
to have a Material Adverse Effect promptly after becoming
aware of such event;
(f) (provide information and access on request) as soon as
reasonably practicable after being requested so to do, provide
information reasonably requested by the Trustee, the Manager
or the Servicer, with respect to all matters relating to the
Custodial Services and upon reasonable notice and at
reasonable times permit the Trustee, the
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Manager or the Servicer to enter the Premises and inspect the
Data Base in relation to each Relevant Trust and the Relevant
Documents;
(g) (Report Record of Movements) provide the Trustee and the
Manager on the last Business Day of each week a copy of an
extract from the Record of Movements applicable to that week's
movements of Relevant Documents;
(h) (comply with other obligations) comply with all its
obligations under any Transaction Document to which it is a
party;
(i) (pay taxes) subject to receiving payment from, or being
reimbursed by, the relevant Obligor or being indemnified by
the Trustee, pay all Taxes that relate to the Custodial
Services (other than any Tax on, or measured by reference to,
the income of a Trust or the Custodian) or where such Taxes
are incurred due to the default or breach of duty by the
Custodian, pay those Taxes itself or ensure those Taxes are
paid;
(j) (not claim) not claim any Security Interest over any Asset;
(k) (comply with Supplementary Terms Notice) comply with any
undertaking specified as an additional Custodian undertaking
in a relevant Supplementary Terms Notice, including, without
limitation, providing the Manager with any information
referred to in that Supplementary Terms Notice;
(l) (insurances) ensure that the Premises are appropriately
insured for fire and public risks, and that it has appropriate
directors and officers insurance; and
(m) (Data Base) maintain the Data Base collected, held or stored
by it in relation to each Relevant Trust and each Relevant
Document and, subject to all applicable laws, provide the
Trustee with access to the Data Base upon reasonable request
and during normal business hours.
4.2 Material adverse effect
(a) In performing the Custodial Services the Custodian shall have
regard to whether what it does, or does not do, will have any
Material Adverse Effect.
(b) The Custodian may ask the Trustee or the Manager if any action
or inaction on its part is reasonably likely to, or will, have
a Material Adverse Effect.
(c) The Custodian may rely upon any statement by the Trustee or
the Manager that any action or inaction by the Custodian is
reasonably likely to, or will, have a Material Adverse
Effect.
(d) Subject to paragraph (a), the Custodian shall not be liable
for a breach of this Agreement, or be liable under any
indemnity, in relation to any action or inaction on its
part, where it has been notified by the Trustee or the
Manager that the action or inaction is not reasonably likely
to, or will not have a Material Adverse Effect, unless the
notification was caused by the fraud, negligence or wilful
default of the Custodian.
5. Custodial procedures
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5.1 No liability for compliance
(a) The Custodian is not in breach of its duties under this
Agreement or otherwise liable to the Trustee if it complies
strictly with the relevant Custodial Procedures unless:
(i) the relevant Custodial Procedures do not materially
comply with any Law; or
(ii) the Custodian is not otherwise complying with clauses 2.2
and 4 in relation to the relevant matter or duty.
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(b) If the Custodian becomes aware that any Custodial Procedures
do not materially comply with any Law, it shall notify the
Trustee within 10 Business Days and take all reasonable steps
to rectify that non-compliance.
5.2 Amendments to Custodial Procedures
The Custodian shall not amend the relevant Custodial Procedures in
any way that would reasonably be expected to result in a Material
Adverse Effect, unless it must do so to ensure compliance with Law.
The Custodian shall notify the Trustee, the Manager and the
Designated Rating Agency of any material amendment to the relevant
Custodial Procedures.
6. The custodian fees
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6.1 Fee
The Trustee shall in accordance with, and subject to the relevant
Supplementary Terms Notice, pay to the Custodian a fee for providing
its services under this Agreement in relation to each Trust.
6.2 Expenses of the Custodian
(a) The Trustee must, in accordance with the Master Trust Deed and
the relevant Supplementary Terms Notice, on the direction of
the Manager, reimburse the Custodian for all costs and
expenses incurred by the Custodian in complying with clause
2.5.
(b) Except as provided in this clause, the Custodian shall be
responsible for all other costs and expenses of providing the
Custodial Services.
7. Termination
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7.1 Expiry of Term
This Agreement shall continue until the expiry of the Term.
7.2 Custodial transfer event/custodial transfer trigger
(a) If a Custodial Transfer Event or a Custodial Transfer Trigger
occurs, the Trustee must (unless otherwise agreed by the Note
Trustee, that agreement not to be unreasonably withheld), at
the direction of the Manager, by notice terminate this
Agreement with immediate effect. Following such action, clause
3.4 shall apply.
(b) No other person will be appointed to perform all or part of
the obligations the Custodian has undertaken to perform under
this Agreement unless:
(i) the Trustee has terminated this Agreement in accordance
with the provisions of paragraph (a); or
(ii) the Custodian has resigned in accordance with clause 7.3,
and that person is either an Eligible Custodian or the
Trustee.
7.3 Resignation
(a) The Custodian shall not resign without first giving 3 months'
notice to the Designated Rating Agency, the Manager, the
Servicer and the Trustee. The Manager and the Trustee shall
use reasonable endeavours to procure the appointment of a
replacement Custodian which is an Eligible Custodian. The
Custodian shall assist the Manager and the Trustee in
procuring such appointment if requested.
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(b) If an Eligible Custodian has not been appointed to be the
Custodian by the expiration of that 3 month notice period, the
Custodian must continue to act as Custodian until such an
Eligible Custodian is appointed and be entitled to the fee
payable under clause 6 while so acting.
(c) Despite paragraph (a), the Custodian may resign as Custodian
by giving five (5) day's notice to the Designated Rating
Agency and the Manager when the appointment of a replacement
Custodian (which is an Eligible Custodian) has been procured
to take effect from the Custodian's resignation.
7.4 Survival
The obligations of the Custodian under clause 7 survive the termination
of this Agreement.
7.5 Release of outgoing Custodian
Except as provided in clause 7.4, upon retirement or removal and
provided there has been payment to the Trustee of all sums due to it
by the outgoing Custodian under this Agreement at that date
(including damages payable under clause 8), the outgoing Custodian
shall be released from all further obligations under this Agreement
but no release under this clause shall extend to any existing or
antecedent fraud, negligence or wilful default on the part of the
outgoing Custodian or its officers, employees, agents or delegates.
7.6 New Custodian to execute deed
(a) A new Custodian shall execute a deed in such form as the
Trustee may reasonably require (including any credit support
reasonably required by the Trustee) under which the new
Custodian shall undertake to the Trustee and other relevant
parties to be bound by all the covenants on the part of the
Custodian under the Transaction Documents from the date of
execution of the new deed on the same terms contained in the
Transaction Documents.
(b) On and from the date of execution of the new deed, the new
Custodian shall and may afterwards exercise all the powers,
enjoy all the rights and shall be subject to all the duties
and obligations of the Custodian under the Transaction
Documents as fully as though the new Custodian had been
originally named as a party to it.
7.7 Settlement and discharge
The Trustee shall settle with the outgoing Custodian the amount of
any sums payable by the outgoing Custodian to the Trustee or by the
Trustee to the outgoing Custodian and shall give to or accept from
the outgoing Custodian a discharge in respect of those sums (subject
to clause 7.5) which shall be conclusive and binding as between the
Trustee, the outgoing Custodian, the new Custodian, the Manager, the
Beneficiaries and the Noteholders.
8. Indemnity
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8.1 Indemnity
Subject to the succeeding provision of this clause, the Custodian
fully indemnifies the Trustee from and against 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 Custodian or its officers, employees or agents including
as a consequence of a Custodial Transfer Event or a Custodial
Transfer Trigger, a failure by the Custodian to perform its duties
under this Agreement, including, without limitation, a failure to
deliver the Relevant Documents to the Trustee when it is required to
do so or a breach by the Custodian of its representations and
warranties under this Agreement.
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8.2 Limitation of liability
The Custodian is not liable:
(a) in connection with anything done by it in good faith in
reliance upon any document, form or list provided by or on
behalf of the Trustee except when it has actual knowledge, or
ought reasonably know, that the document, form or list is not
genuine or accurate;
(b) if it fails to do anything because it is prevented or hindered
from doing it by any Law; or
(c) subject to the Corporations Law, if a person (other than a
delegate or agent of the Custodian) fails to carry out an
agreement with the Trustee or the Custodian in connection with
the Custodial Services (except when the failure is due to the
Custodian's own neglect, fraud or default).
8.3 No liability for acts of certain persons
If the Custodian relies in good faith on an opinion, advice,
information or statement given to it by a person, the Custodian is
not liable for any misconduct, mistake, oversight, error of judgment,
forgetfulness or want of prudence on the part of that person, except:
(a) when the person is not independent from the Custodian; or
(b) it would not be reasonable to rely upon the opinion, advice,
information or statement from the person who gives it; or
(c) where that person is a delegate or agent of the Custodian.
A person will be regarded as independent notwithstanding that the
person acts or has acted as adviser to the Custodian so long as
separate instructions are given by the Custodian to that person.
However, officers and employees of St.George and its Related Bodies
Corporate will not be regarded as independent.
8.4 No liability for loss etc
The Custodian is not liable:
(a) for any loss, cost, liability or expense arising out of the
exercise or non-exercise of a discretion by the Trustee, the
Manager or the Servicer or the act or omission of the Trustee,
the Manager or the Servicer except to the extent that it is
caused by the Custodian's own fraud, negligence or wilful
default; or
(b) for any loss, cost, liability or expense caused by its failure
to check any information, document, form or list supplied or
purported to be supplied to it by the Trustee, the Manager or
the Servicer except to the extent that the loss, cost,
liability or expense is caused by the Custodian's own fraud,
negligence or wilful default.
8.5 Method of claiming under indemnity
The Custodian shall not be obliged to pay any indemnity under this
Agreement, unless:
(a) the Trustee first establishes that there has been a breach
that has caused loss;
(b) the indemnity claimed represents no more than the loss
incurred as a result of the breach; and
(c) the Trustee first gives the Custodian a written notice
specifying:
(i) the quantum of the claim; and
(ii) the basis of the claim.
8.6 Time of Payment
The Custodian shall pay any amount it is required to pay under this
clause within 7 Business Days of receipt of notice under clause 8.5.
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9. Representations and warranties
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9.1 Representations and Warranties
The Custodian makes the representations and warranties in clause 27
of the Master Trust Deed in relation to itself for the benefit of the
Trustee.
9.2 Reliance
The Custodian acknowledges that the Trustee has entered into this
Agreement in reliance on the representations and warranties in clause
9.1.
9.3 Survival of Representations and Indemnities
(a) All representations and warranties in a Transaction Document
survive the execution and delivery of the Transaction
Documents.
(b) Each indemnity in this Agreement:
(i) is a continuing obligation;
(ii) is a separate and independent obligation; and
(iii) survives termination or discharge of this Agreement.
10. Administrative provisions
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10.1 Notices
All notices, requests, demands, consents, approvals or agreements 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 (in the case of
delivery in person or by post or facsimile transmission) 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, 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.
10.2 Governing Law and Jurisdiction
This Agreement is governed by the laws of New South Wales. Each of
the Custodian and the Trustee submits to the non-exclusive
jurisdiction of courts exercising jurisdiction there.
10.3 Assignment
No party may assign, novate, transfer or deal with its obligations
under this Agreement except for the creation of a charge by the
Trustee under the relevant Security Trust Deed.
10.4 Amendment
This Agreement can only be amended in writing, and provided:
(a) prior notice of any proposed amendment is given to the
Designated Rating Agency; and
(b) the amendment will not result in an adverse effect on the
ratings of any Notes.
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Custodian Agreement Allen Allen & Hemsley
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10.5 Severability clause
Any provisions of any Transaction Document which are prohibited or
unenforceable in any jurisdiction are ineffective to the extent of
the prohibition or unenforceability. That does not invalidate the
remaining provisions of that Transaction Document nor affect the
validity or enforceability of that provision in any other
jurisdiction.
10.6 Costs and Expenses
(a) (Trustees costs and expenses) On demand the Custodian shall
reimburse the Trustee for the reasonable expenses of the
Trustee (as applicable) in relation to any enforcement of this
Agreement by the Trustee against the Custodian for breaching
this Agreement, including in each case legal costs and
expenses on a full indemnity basis and each party shall bear
their own costs (other than legal costs) relating to the
preparation execution and completion of this Agreement.
(b) (Stamp duty) In addition, the Custodian shall pay all stamp
and registration Taxes (including fines and penalties) which
may be payable or determined to be payable in relation to the
execution, delivery, performance or enforcement of this
Agreement.
(c) (Custodial Services costs and expenses) In accordance with the
relevant Supplementary Terms Notice, the Trustee shall
reimburse the Custodian for the reasonable expenses of the
Custodian (as applicable) in relation to any enforcement of
this Agreement including in each case legal costs and expenses
on a full indemnity basis, except to the extent that such
enforcement relates to a breach by the Custodian of this
Agreement.
10.7 Waivers: remedies cumulative
(a) No failure on the part of a party to exercise and no delay in
exercising any right, power or remedy under any Transaction
Document operates as a waiver. Nor does any single or partial
exercise of any right, power or remedy preclude any other or
further exercise of that or any other right, power or remedy.
(b) The rights, powers and remedies provided to the Trustee in the
Transaction Documents are in addition to any right, power or
remedy provided by law.
EXECUTED in . Canberra.
Each attorney executing this Agreement states that he or she has no notice of
revocation or suspension of his or her power of attorney.
SIGNED on behalf of ST.GEORGE )
CUSTODIAL PTY LIMITED )
by its attorneys in the )
Presence of: )
- -------------------------------- --------------------------------
Signature Signature
- -------------------------------- --------------------------------
Print name Print name
- --------------------------------------------------------------------------------
Page (15)
<PAGE>
Custodian Agreement Allen Allen & Hemsley
- --------------------------------------------------------------------------------
SIGNED on behalf of CRUSADE )
MANAGEMENT LIMITED )
by its attorneys in the )
presence of: )
- -------------------------------- ------------------------------
Signature Signature
- -------------------------------- ------------------------------
Print name Print name
SIGNED by NATIONAL MUTUAL )
TRUSTEES LIMITED )
(AC 004 029 841) )
by its attorneys under Power of Attorney )
dated )
who hereby declare that no notice of )
alternation to or revocation of the said )
Power of Attorney has been received by )
them in the presence of: )
- -------------------------------- ------------------------------
Witness Print Name
- -------------------------------- ------------------------------
Print name Print name
- --------------------------------------------------------------------------------
Page (16)
<PAGE>
Custodian Agreement Allen Allen & Hemsley
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SCHEDULE 1
AUDIT
- --------------------------------------------------------------------------------
1. Each audit referred to in clause 3.3 shall involve a review of the
following:
(a) the custodial procedures adopted by the Custodian;
(b) that the Relevant Documents are capable of identification,
segregated by reference to the relevant Portfolio of
Receivables and from other mortgage title documents held by
the Custodian;
(c) that controls exist such that the Relevant Documents may not
be removed or tampered with except with appropriate
authorisation; and
(d) that an appropriate tracking system is in place such that the
location of the Relevant Documents can be detected at any
time.
2. The Auditor will review a sample of the Security Packets and confirm
that those Security Packets contain the Relevant Documents which the
Supplementary Terms indicate that they should (including, as a
minimum, the Receivable Security documents, and any Certificate of
Title if issued). If the Security Packets do not contain all such
documents the Auditor must determine if there is an adequate
explanation for that or whether the Security Packets of the
Custodian's records, indicate the location of the missing documents.
3. The Auditor's certificate referred to in clause 3.3 will set out
whether any errors detected by the Auditor in the relevant audit were
the result of isolated non-compliance with the control system
established by the Custodian under this Agreement or result from a
weakness in that control system.
4. The Auditor's certificate referred to in clause 3.3 will grade the
custodial performance of the Custodian under this Agreement based on
the following grades.
(A) Good - All control procedures and accuracy of information in
respect of Relevant Documents completed without exception,
other than immaterial and occasional variances.
(B) Satisfactory - Minor exceptions to compliance with control
procedures and accuracy of information in respect of Relevant
Documents
(C) Improvement required - Base internal controls are in place but
a number of issues were identified that need to be resolved
for controls to be considered adequate; and testing of the
relevant information in respect of Relevant Documents
identified a number of minor exceptions to compliance which
are the result of non-compliance with the control system
(D) Adverse - Major deficiencies in internal controls and the
relevant information in respect of the Relevant Documents were
identified.
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<PAGE>
Deed of Indemnity
- -----------------------------
St.George Bank Limited
(Indemnifier);
St.George Custodial Pty Limited
(Custodian);
Crusade Management Limited
(Manager);
National Mutual Trustees Limited
(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>
Deed of Indemnity Allen Allen & Hemsley
- --------------------------------------------------------------------------------
Table of Contents
1. Definitions and interpretation 1
1.1 Definitions 1
1.2 Interpretation 2
1.3 Knowledge of the Trustee 2
2. Indemnity 2
3. Variation 3
4. Waivers, remedies cumulative 3
5. Severance 3
6. Moratorium legislation 3
7. Costs and expenses 3
8. Further assurances 4
9. Assignment 4
10. Notices 4
11. Acknowledgement by indemnifier 4
12. Governing law and jurisdiction 5
13. Counterparts 5
14. Deed binding on signatories 5
15. Limitation of trustee's liability 5
- --------------------------------------------------------------------------------
Page (i)
<PAGE>
Deed of Indemnity Allen Allen & Hemsley
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Date
- -------------
Parties
- -------------
1. ST.George Bank Limited (ACN 055 513 070) incorporated in New
South Wales of 4-16 Montgomery Street, Kogarah, New South Wales
2217 (Indemnifier);
2. ST.George Custodial Pty Limited (ACN 003 347 411) incorporated in
New South Wales of 4-16 Montgomery Street, Kogarah, New South
Wales 2217 (Custodian);
3. Crusade Management Limited (ACN 072 715 916) incorporated in New
South Wales of 4-16 Montgomery Street, Kogarah, New South Wales
2217 (Manager); and
4. National Mutual Trustees Limited (ACN 004 029 841) of Level 2, 65
Southbank Boulevard, South Melbourne, Victoria 3205 in its
capacity as trustee of the Relevant Trust (Trustee).
Recitals
- -------------
A By the Custodian Agreement, the Custodian was appointed to
provide Custodial Services in relation to the Relevant Documents.
B By this deed, the Indemnifier indemnifies the Trustee for any
losses arising from a breach by the Custodian of its obligations
under the Custodian Agreement.
IT IS AGREED as follows.
1. Definitions and interpretation
1.1 Definitions
In this deed, terms defined in the Custodian Agreement, Master Trust
Deed or a Supplementary Terms Notice in relation to a Relevant Trust
have the same meaning and the following definitions apply unless a
different meaning is given in a Supplementary Terms Notice in relation
to a Relevant Trust or the context otherwise requires.
Custodian Agreement means the agreement so titled dated on or about the
same date as this deed between the Custodian, the Manager and the
Trustee by which the Custodian agrees to provide Custodial Services to
the Relevant Trust.
Master Trust Deed means the Master Trust Deed between the Trustee, the
Manager and the Indemnifier dated 14 March 1998.
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Deed of Indemnity Allen Allen & Hemsley
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Power means a power, right or authority, discretion or remedy which is
given to the Trustee by this deed or by Law.
Supplementary Terms Notice means each Supplementary Terms Notice dated
on or after the date of this Agreement relating to a Relevant Trust.
1.2 Interpretation
The provisions of clause 1.2 of the Master Trust Deed apply to this
deed, as if set out in full, and on the basis that a reference in
clause 1.2(e), (f), (g), (k) or (l) to "this deed" is a reference to
this deed.
1.3 Knowledge of the 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.
2. Indemnity
(a) The Indemnifier unconditionally and irrevocably indemnifies the
Trustee in respect of:
(i) all liability, including all actions, proceedings,
judgments, damages, losses, costs and expenses of any
nature, which may be incurred or suffered by, brought,
made or recovered against the Trustee consequent on or
arising directly or indirectly out of any default or delay
by the Custodian in the performance and observance of its
obligations contained or implied in the Custodian
Agreement; and
(ii) any money payable under the Custodian Agreement (including
money which would have been money payable under the
Custodian Agreement if it were recoverable) which is not
recoverable from the Custodian for any reason, including
any legal limitation, disability or incapacity affecting
the Custodian or an obligation in the Custodian Agreement
being or becoming unenforceable, void or illegal and
whether or not:
(A) any transaction relating to that money was void or
illegal or has been avoided; or
(B) anything relating to that transaction was or ought
to have been known to the Trustee.
(b) The Indemnifier as principal debtor agrees to pay to the Trustee
on demand a sum equal to the amount described in clause 2(a).
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Deed of Indemnity Allen Allen & Hemsley
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3. Variation
This deed covers the Custodian Agreement as amended, varied or replaced
from time to time, whether or not with the consent of or notice to the
Indemnifier.
4. Waivers, remedies cumulative
(a) No failure to exercise and no delay in exercising any Power by
the Trustee operates as a waiver. Nor does any single or partial
exercise of any Power preclude any other or further exercise of
that Power or any other Power.
(b) The Powers under this deed are in addition to, and do not exclude
or limit, any right, power or remedy provided by Law.
5. Severance
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.
6. 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 Indemnifier any
obligation under this deed; or
(b) delays, prevents or prejudicially affects the exercise by the
Trustee of any right, power or remedy given by this deed,
is excluded from this deed.
7. Costs and expenses
On demand the Indemnifier shall indemnify the Trustee against any cost,
charge, expense, liability, outgoing or payment which the Trustee may
sustain or incur in relation to:
(a) the preparation, execution, stamping and completion of this deed;
and
(b) any actual or contemplated enforcement of, or the actual or
contemplated exercise, preservation or consideration of any
rights under, this deed,
including in each case legal costs and expenses (including in-house
lawyers charged at their usual rates) on a full indemnity basis.
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Deed of Indemnity Allen Allen & Hemsley
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8. Further assurances
Each party shall take all steps, execute all documents and do
everything reasonably required by any other party to give effect to any
of the transactions contemplated by this deed.
9. Assignment
No party may assign, novate, transfer or deal with its obligations
under this Agreement except for the creation of a charge by the Trustee
under the relevant Security Trust Deed.
10. Notices
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 the sender or if the Trustee is a company, by
an Authorised Signatory; and
(c) will be taken to be duly given or made:
(i) (in the case of delivery in person or by post, facsimile
transmission or cable) when delivered, received or left at
the address of the recipient shown in this deed or to any
other address which it may have notified the sender; or
(ii) (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 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.
11. Acknowledgement by indemnifier
The Indemnifier confirms that:
(a) it has not entered into this deed in reliance on, or as a result
of, any statement or conduct of any kind of or on behalf of the
Trustee (including any advice, warranty, representation or
undertaking); and
(b) the Trustee is not obliged to do anything (including disclosing
anything or giving advice), except as expressly set out in the
Custodian Agreement or in writing duly signed by or on behalf of
the Trustee.
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Deed of Indemnity Allen Allen & Hemsley
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12. Governing law and jurisdiction
This deed is governed by the laws of New South Wales. The Indemnifier
submits to the non-exclusive jurisdiction of courts exercising
jurisdiction there.
13. Counterparts
This deed may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
14. Deed binding on signatories
This deed binds each party which signs it even if other parties do not,
or if the execution by other parties is defective, void or voidable.
15. Limitation of trustee's liability
(a) The Trustee enters into this Deed only in its capacity as trustee
of each 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 a 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 relevant 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 any representation, warranty, conduct, omission, agreement
or transaction related to this Deed or a 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 relevant 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 15 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
relevant 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
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Deed of Indemnity Allen Allen & Hemsley
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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 a
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.
Page 6
<PAGE>
EXECUTED in New South Wales.
TRUSTEE
SIGNED SEALED and DELIVERED )
by NATIONAL MUTUAL )
TRUSTEES LIMITED )
(ACN 004 029 841) )
by its attorney under the Power of )
Attorney dated )
who hereby declare that no notice of )
alternation to or revocation of the said)
Power of Attorney has been received ) -------------------------------------
by them ) Signature
- -------------------------------------- -------------------------------------
Witness Print Name
- -------------------------------------- -------------------------------------
Signature Signature
-------------------------------------
Print Name
MANAGER
SIGNED SEALED and DELIVERED)
on behalf of CRUSADE )
MANAGEMENT LIMITED )
by its attorney )
in the presence of )
) --------------------------------------
Signature
- ---------------------------- --------------------------------------
Witness Print Name
- ----------------------------
Signature
Page 1
<PAGE>
INDEMNIFIER
SIGNED SEALED and DELIVERED)
on behalf of ST.GEORGE BANK)
LIMITED )
by its attorney )
in the presence of )
--------------------------------------
Signature
- ---------------------------- --------------------------------------
Witness Print Name
- ----------------------------
Signature
CUSTODIAN
SIGNED SEALED and DELIVERED)
on behalf of ST.GEORGE )
CUSTODIAL PTY LIMITED )
by its attorney )
in the presence of ) --------------------------------------
Signature
- ---------------------------- --------------------------------------
Witness Print Name
- ----------------------------
Signature
Page 2
<PAGE>
[GRAPHIC OMITTED]
-------------------------------------------------------
LENDERS
MORTGAGE INSURANCE
MASTER POLICY
-------------------------------------------------------
for
ST GEORGE BANK LIMITED
(First Insured)
AXA Australia trustees Limited
(Second Insured)
in relation to
CRUSADE GLOBAL TRUST No. 1 of 1999
<PAGE>
Index page 1
- --------------------------------------------------------------------------------
Housing Loans Insurance Corporation Pty Ltd
-------------------------------------------
(ACN 071 466 334)
-----------------
LENDERS MORTGAGE INSURANCE
MASTER POLICY
INDEX
-----
Page
- --------------------------------------------------------------------------------
Operation of Master Policy 2
Proposals 2
Approval 2
Contract 2
Timely Payment Cover 2
Duty of Disclosure 2
Variation or termination of Master Policy 3
Notices 3
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions 5
1.2 Interpretation 8
1.3 Acts by Others 9
1.4 Approval, Consent or Agreement of the Insurer 9
1.5 Trustee Provisions 9
1.6 Credit Provider 10
1.7 First Insured to act on behalf of Second Insured 10
1.8 Additional Amount 10
2. COVER PROVIDED BY THE POLICY
2.1 Period of Insurance 10
2.2 Cover in respect of the Insured Loan 11
2.3 Cover in respect of Timely Payment Cover 11
3. CALCULATION OF LOSS IN RESPECT OF THE LOAN
3.1 Loss in respect of an Insured loan 11
3.2 Amount Outstanding 11
3.3 Deductions 11
3.4 Unrecouped Timely Payment Cover 12
3.5 Maximum Payable under Limited Cover Policy 13
3.6 Credit Code 13
4. CALCULATION OF LOSS IN RESPECT OF TIMELY PAYMENT COVER
4.1 Loss in respect of a single Repayment Instalment 13
4.2 Aggregate limit and reinstatement 13
4.3 Extension of cover beyond the maturity date 13
4.4 Credit Code Limits 14
<PAGE>
Index page 2
- --------------------------------------------------------------------------------
5. REPORTING OBLIGATIONS
5.1 Notice of Default 14
5.2 General Reports on all Insured loans 14
5.3 Reports relating to fixed term loans 14
5.4 Reports relating to Borrower, Mortgagor, Mortgage
Guarantor or the Property 15
5.5 Reports relating to a Prior Mortgage 15
5.6 Reports Relating to Year 2000 Communications Issues 15
5.7 Form of Reports 16
6. EXERCISE OF REMEDIES
6.1 The Insurer Notification 16
6.2 The Insurer may require steps to be taken 16
6.3 Due Care 16
7. CLAIMS
7.1 Form of Claim 16
7.2 Information 16
7.3 Timing of claim in respect of the Loan 17
7.4 Timing of claim in respect of a Repayment Instalment 17
7.5 Payment of a claim 17
7.6 Interest on claims 17
7.7 The Insurer may determine to pay a claim 17
7.8 Terms and condition of payment of a claim 17
7.9 Reimbursement of claims paid 18
7.10 Insured in breach of the Policy 18
7.11 Year 2000 Ready 18
8. ACCOUNTING FOR CLAIMS IN RESPECT OF TIMELY PAYMENT COVER
8.1 Accounting for Policy 18
8.2 No diminishing of rights against the Borrower or Mortgagor 18
9. CONDITIONS
9.1 Action requiring the Insurer's consent 18
9.2 The Insurer's other requirements 19
10. EXCLUSIONS 20
11. CANCELLATION OF THE POLICY
11.1 Cancellation by the Insurer 20
11.2 Cancellation by the Insured 20
12. AUDIT 20
13. ASSIGNMENT OF POLICY
13.1 General 21
13.2 Second Insured 21
14 GOVERNING LAW AND SUBMISSION TO JURISDICTION 21
<PAGE>
Page 1
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Housing Loans Insurance Corporation Pty Ltd
-------------------------------------------
(ACN 071 466 334)
LENDERS MORTGAGE INSURANCE
MASTER POLICY
Housing Loans Insurance Corporation Pty Ltd agrees to issue policies of
lenders mortgage insurance to the First Insured named below in
accordance with the terms and conditions of this Master Policy.
First Insured: St George Bank Limited (ACN 055 513 070)
Level 4, 4-16 Montgomery Street, Kogarah
Attention:
Facsimile:
Second Insured:
AXA Australia Trustees Limited (ACN xxx xxx xxx)
Level 1, 44 Market Street, Sydney
Attention:
Facsimile:
Address for notices to First Insured: (if varies from above)
Address for notices to Second Insured: (if varies from above)
Date Master Policy commences: [ date ]
Executed as a Deed in Sydney
Signed sealed and delivered on behalf of Housing Loans Insurance
Corporation Pty Ltd
---------------------------------- -------------------------
Authorised Representative Witness
Signed sealed and delivered on behalf of the First Insured
----------------------------------- -------------------------
Authorised Representative Witness
Signed sealed and delivered on behalf of the Second Insured
---------------------------------- -------------------------
Authorised Representative Witness
<PAGE>
Page 2
- --------------------------------------------------------------------------------
OPERATION OF THIS MASTER POLICY
This Master Policy sets out the way in which the Insurers will deal
with proposals for lenders mortgage insurance and the terms and
conditions applying to Policies issued to the First Insured. A separate
Policy is issued in respect of each loan approved to be insured. The
Insurer for a particular loan shall be that Insurer selected by the
First Insured and who approves the loan for insurance under this Master
Policy.
PROPOSALS
The First Insured may from time to time provide the information
required by the Insurer about a loan proposed to be an Insured Loan in
the form and manner specified by the Insurer. The Insurer may approve
or reject the proposal or request further information. For this
purpose, the Insurer and the First Insured may agree on a procedure for
the submission and approval of proposals, and in that case proposals
shall only be submitted and approved in accordance with the agreed
procedure. A proposal must identify the Insurer from whom cover is
being sought, or alternatively the identity of the Insurer may be
agreed in advance and form part of the agreed procedure for the
submission and approval of proposals.
Where the Insurer has agreed to receive proposals on terms that the
proposed loans are of a certain type, meet certain conditions or are in
accordance with Lending Guidelines, on making a proposal the First
Insured shall be taken to state that the First Insured has made full
inquiry and that the proposed loan is of that type, meets those
conditions and is in accordance with any applicable Lending Guidelines
other than to the extent expressly stated in the proposal.
Note: Lending Guidelines means the guidelines of the First Insured
for the making of loans which are approved by the Insurer
including any amendments made to those guidelines with the
prior approval of the Insurer.
APPROVAL
On approval of a proposal the Insurer shall:
(a) make an entry in its records of the approval and details of
the Insured Loan Contract; and
(b) if requested by the First Insured, the Insurer will issue
an Acceptance Advice and if agreed by the Insurer within 14
days of the Effective Date issue a Certificate of Insurance
in respect of the Insured Loan/s.
The Insurer may but it is not required to advise the First Insured of
the reason for rejection of a proposal.
CONTRACT
Following approval of a proposal a Policy shall be taken to issue on
the Effective Date in respect of the proposed loan. Each such Policy
will operate as a Deed.
TIMELY PAYMENT COVER
If the Insurer approves a proposal for insurance that includes Timely
Payment Cover then the provisions of the Policy relating to Timely
Payment Cover shall apply. If Timely Payment Cover applies it will be
shown on the Schedule.
DUTY OF DISCLOSURE
The Insured acknowledges its duty under the Insurance Contracts Act
1984, to disclose to the Insurer every matter that it knows, or could
reasonably be expected to know, is relevant to the Insurer's decision
whether to accept the risk of the insurance and, if so, on what terms.
The Insured has the same duty to disclose those matters to the Insurer
before renewing, extending, varying or reinstating a Policy. The duty
applies up until the Effective Date in respect of each Policy.
<PAGE>
Page 3
- --------------------------------------------------------------------------------
The duty, however, does not require disclosure of a matter:
(a) that diminishes the risk to be undertaken by the Insurer;
(b) that is of common knowledge;
(c) that the Insurer knows or, in the ordinary course of its
business, ought to know;
(d) as to which compliance of this duty of disclosure is waived by
the Insurer.
If the Insured fails to comply with its duty of disclosure, the Insurer
may be entitled to reduce its liability under a Policy in respect of a
claim or may cancel the Policy.
If the Insured's non-disclosure is fraudulent, the Insurer may also
have the option of avoiding the Policy from the beginning.
Note: the Insurer shall treat the Insured as knowing anything that any
person, who is an agent or employee of the Insured or Mortgage Manager
knows or in the ordinary course of its business ought to know.
VARIATION OR TERMINATION OF MASTER POLICY
The Insurer may vary or terminate this Master Policy by giving to the
Insured at least 28 days notice of its intention to do so and in that
event:
(a) any variation set out in the notice shall apply to any
proposal approved by the Insurer on or after the date
specified in the notice; and
(b) the termination shall operate from the date specified in the
notice, but the termination shall not affect any proposal
approved by the Insurer or any Policy issued by the Insurer
prior to the date of termination
The Insurer may not vary this Master Policy for any Insured Loan except
where the variation is generally applied to all insured customers of
the same type in relation to the same type of insurance and where the
variation is necessitated to ensure that, as a consequence of a change
in law, the Insurer is not in breach of the law.
It is expressly understood that the Insurer is not liable for any loss
or damage howsoever caused by, arising from, or attributable to any
failure, neglect, omission or error in communication of any information
which is or is intended to be given to or made by the. Insured arising
from the failure of the Insured's computer systems or other items to be
Year 2000 Ready other than as the result of any failure in the
Insurer's computer systems or other items to be Year 2000 Ready.
NOTICES
Any notice given under this Master Policy or under any Policy issued
under it:
(a) must be in writing addressed to the intended recipient at the
address shown below or the address last notified by the
intended recipient to the sender:
in the case of notices to the Insurer:
Attention: Managing Director
Address: HLIC/GEMICO Australia,
Level 23, AAP Tower,
259 George Street,
SYDNEY NSW 2000
Fax: (02) 9247 6733
<PAGE>
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in the case of the First Insured:
To the attention of the person and at the address and fax
number shown on the front of this Master Policy;
in the case of the Second Insured:
To the attention of the person and at the address and fax
number shown on the front of this Master Policy;
(b) must be signed by a person duly authorised by the sender,
(c) will be taken to have been given:
(i) (in the case of delivery in person) when delivered or
left at the above address;
(ii) (in the case of facsimile transmission) when recorded
on the transmission result report unless:
(A) within 24 hours of that time the recipient
informs the sender that the transmission was
received in an incomplete or garbled form; or
(B) the transmission result report indicates a
faulty or incomplete transmission; and
(iii) (in the case of post) on the seventh day after the
date on which the notice is ccepted for posting by
the relevant postal authority.
If delivery or receipt is on a day when commercial premises
are not generally open for business in the place of receipt
or is later than 4pm (local time) on any day, the notice
will be taken to have been given on the next day when
commercial premises are generally open for business in the
place of receipt.
(d) In this clause a "notice" includes the giving of any
approval or consent or the provision of any information or
report.
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POLICY WORDING
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Master Policy and any Policy issued under it, unless the
contrary intention appears:
Acceptance Advice in relation to a loan proposed to be insured,
means:
(a) if agreed by the Insurer an advice by the Insurer
confirming its agreement to insure the loan, the details of
the loan and any special conditions to apply to the Policy;
or
(b) in any other case an entry in the records of the Insurer of
its agreement to insure the loan, the details of the loan
and any special conditions to apply to the Policy;
Additional Advance means any amount which is or becomes owing to
the Insured under the Insured Loan Contract or which is secured by
the Mortgage, in addition to the Loan Amount or which is in
addition to the Loan Amount reduced by any repayments of principal
that is not interest, fees or charges payable under the Insured
Loan Contract;
Approved Additional Advance means an Additional Advance approved
by the Insurer for insurance under a Policy in its absolute
discretion, or which is of a type and in accordance with any
conditions specified in the Schedule.
Approved General Insurance Policy means a policy of insurance:
(a) issued by an insurer authorised to carry on insurance
business in Australia;
(b) which does not preclude any claim under it by virtue of the
Policy;
(c) under which the Property is insured:
(i) in the case where the Property is a lot or unit
under a strata plan, by the body corporate of the
strata plan; and
(ii) in any other case, for the interests of the Insured
and the Mortgagor for not less than the value of all
buildings and improvements on the Property; and
(d) which provides insurance against destruction or damage by
events which include fire, storm and tempest, lightning and
earthquake and such other risks as are:
(i) required under the Insured Loan Contract; or
(ii) reasonably required by the Insurer by notice to the
Insured;
Approved Prior Mortgage means a mortgage or other security ranking
in priority to the Mortgage securing the Insured Loan which was
disclosed to the Insurer prior to the issue of the Acceptance
Advice or subsequently approved by the Insurer;
Note: any subsequent approval of a prior mortgage shall be at the
absolute discretion of the Insurer.
Approved Prior Mortgagee means the person entitled as mortgagee to
the benefit of an Approved Prior Mortgage;
Borrower means the person who is liable to repay the Insured Loan
and who is so named in the Certificate of Insurance;
Certificate of Insurance in relation to an Insured Loan, means:
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(a) if no certificate is issued to the Insured by the Insurer -
the most recent information in respect of the Policy
contained in the records of the Insurer setting out the
matters specified for inclusion in the Certificate of
Insurance in the policy wording; or
(b) if a certificate is issued to the Insured by the Insurer -
the most recent certificate issued by the Insurer in
respect of the Policy setting out the matters specified for
inclusion in the Certificate of Insurance in the policy
wording;
Collateral Security means any mortgage, charge, encumbrance,
guarantee, Mortgage Guarantee, letter of credit, letter of comfort
or any other right of any description from time to time relied
upon by the Insured as supporting the obligations under the
Insured Loan Contract;
Credit Code means the Consumer Credit Code set out in the appendix
to the Consumer Credit (Queensland) Act 1994 and the regulations
made under that Act as adopted, amended or supplemented in the
relevant state or territory of Australia.
Default in respect of an Insured Loan Contract, means any event on
or following which the Insured's power of sale in relation to the
Property becomes exercisable whether immediately or at the
Insured's option or upon the expiration of any notice or period of
time and whether or not the power of sale only arises if before
the expiration of the notice or period of time the default remains
unremedied;
Effective Date means:
(a) in the case of an Insured Loan other than an Approved
Additional Advance, the latest of:
(i) the date monies are first advanced under the Insured
Loan Contract;
(ii) the date that the Mortgage securing the Insured Loan
is granted to or acquired by the Insured; or
(iii) the date the premium is received by the Insurer in
respect of the proposed Insured Loan; or
(b) in the case of any Approved Additional Advance approved by
the Insurer, the latest of:
(i) the date monies are first advanced on account of the
Approved Additional Advance; or
(ii) any additional premium is received by the Insurer in
respect of the Approved Additional Advance.
Government includes any local government or any government or
local government authority or any body established by statute and
controlled by government;
Insurer means Housing Loans Insurance Corporation Pty Ltd;
Insured means the First Insured, the Second Insured or a person
entitled to the benefit of this Policy;
Insured Loan means the loan described in the Certificate of
Insurance including:
(a) any Approved Additional Advance; and
(b) the Loan or Approved Additional Advance as amended pursuant
to section 66 or 68 of the Credit Code;
Insured Loan Contract means the contract under which the Insured
Loan is made and the Mortgage securing the Insured Loan;
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Lending Guidelines means the guidelines of the Insured for the
making of loans which are approved by the Insurer including any
amendments made to those guidelines with the prior approval of the
Insurer;
Loan Amount in respect of an Insured Loan, means:
(a) the amount of principal originally advanced, not being
greater than the amount of principal shown in the
Certificate of Insurance; and
(b) the amount of principal advanced under any Approved
Additional Advance,
less any amount of principal repaid (not including any amount the
subject of a claim paid by the Insurer for loss in respect of a
Repayment Instalment) and excluding any capitalised interest, fees
and charges;
Loss Date in respect of an Insured Loan means:
(a) where following a Default the Insured or an Approved Prior
Mortgagee sells the Property, the date on which the sale is
completed;
(b) where following a Default the Insured or an Approved Prior
Mortgagee becomes the absolute owner by foreclosure, the
date on which that event occurs;
(c) where following a Default the Mortgagor sells the Property
with the prior approval of the Insured and the Insurer, the
date on which the sale is completed;
(d) where the Property is compulsorily acquired or sold by a
government for public purposes and there is a Default (or
where the Mortgage has been discharged by the operation of
the compulsory acquisition or sale and there is a default
in repayment of the Insured Loan which would have been a
Default but for the occurrence of that event), the date
being the later of the date of the completion of the
acquisition or sale or the date 28 days after the date of
the default;
(e) where the Insurer has agreed or determined to pay a claim
under the Policy, the date specified in that agreement or
determination;
Mortgage means the mortgage of real property which is security for
the Insured Loan, details of which are set out in the Certificate
of Insurance or a security substituted for the mortgage:
(a) where the Credit Code applies - in accordance with section
47 of the Credit Code; or
(b) in any other case - approved by the Insurer in its absolute
discretion;
Note: In giving any consent or imposing any condition on a
consent under section 47 of the Credit Code the Insured shall have
regard to the interests of the Insurer
Mortgage Guarantee means a guarantee given by a Mortgagor
guaranteeing the obligations of the Borrower under the Insured
Loan;
Mortgage Manager means a person approved by the Insurer who
manages Insured Loans on behalf of the Insured;
Mortgagor means the mortgagor of the Mortgage who is named as such
in the Certificate of Insurance;
Policy means the lenders mortgage insurance policy issued in
respect of an Insured Loan under this Master Policy and shall
consist of:
(a) the policy wording;
(b) the Certificate of Insurance; and
(c) the Schedule and any attachments to it.
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Property means the real property described in the Certificate of
Insurance and mortgaged under the Mortgage;
Repayment Instalment means a sum payable periodically at monthly
or other intervals on account of amounts outstanding under an
Insured Loan;
Schedule means the most recent Schedule issued to the First
Insured in respect of this Master Policy setting out matters
specified for inclusion in the Schedule in the policy wording and
any special conditions applying to the Policy;
Scheduled Balance means, for the purposes of this Master Policy,
the amount that would have been outstanding if the minimum
Repayment Instalments under the Insured Loan Contract had been
made on the scheduled dates.
Standard Rate means the rate of interest which is charged under an
Insured Loan if Repayment Instalments are paid by a particular
time or within a particular period;
Timely Payment Cover means the insurance provided by clause 2.3;
Trust means if the Second Insured holds the benefit of the Policy
as the Trustee of a Trust, the trust shown in the Schedule.
Year 2000 Ready in respect of a computer system or other items
means that the functionality or performance of that computer
system or those other items is not affected by dates prior to,
during and after the year 2000 (other than functionality or
performance which would have been affected had the relevant items
been able to process dates prior to, during and after the year
2000 in the first place) and in particular:
(a) no value for current date will cause any interruption in
operation of the computer system;
(b) the date-based functionality of the computer system must
behave consistently for dates prior to, during and after
the year 2000;
(c) in all interfaces and data storage in respect of the
computer system, the century in any date must be specified
either explicitly or by unambiguous algorithms or
interfacing rules; and
(d) the Year 2000 must be recognised by the computer system as
a leap year.
1.2 Interpretation
In this Master Policy and any Policy issued under it, unless the
contrary intention appears:
(a) the singular includes the plural and conversely;
(b) a gender includes all genders;
(c) where a word or phrase is defined, its other grammatical
forms have a corresponding meaning;
(d) a reference to a person includes a body corporate or
unincorporated body or other entity;
(e) a reference to any legislation or to any provision of any
legislation includes any modification or re-enactment of
it, any legislative provisions substituted for it, and all
regulations and statutory instruments under it;
(f) a reference to a clause is to a clause of this Policy;
(g) all references to dollars and expressions preceded by the
symbol "$" shall be to Australian currency and all
references to cost, value and price shall be to cost, value
and price expressed in Australian currency;
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(h) writing and any reference to an advice, consent or approval
includes facsimile transmission and recording or
communicating by electronic or similar means;
(i) a signature includes a copied, stamped or electronic
signature; and
(j) headings are for convenience only and do not affect
interpretation.
1.3 Acts by Others
For the purposes of the Policy, the receipt of any monies by the
Insured, the doing of any act or thing, or the omission to do any
act or thing, by the Insured shall include the receipt of those
monies and the doing of the act or thing or the omission to do the
act or thing by any other Insured or by the Mortgage Manager.
1.4 Approval, Consent or Agreement of the Insurer
Where the approval, consent or agreement of the Insurer is
required under the Policy then:
(a) unless it is expressed that the approval, consent or
agreement is in the absolute discretion of the Insurer or
the contrary intention otherwise appears, the Insurer shall
act reasonably in giving or refusing to give that approval
or consent or in agreeing or not agreeing; and
(b) the Insurer shall not be taken to have given its approval,
consent or agreement unless it has done so in writing or it
is recorded in the Certificate of Insurance in respect of
the Insured Loan.
1.5 Trustee Provisions
(a) The Second Insured holds the benefit of each Policy only in
its capacity as trustee of the Trust and in no other
capacity. A liability or obligation of the Second Insured
to pay money under or in connection with each Policy can be
enforced against the Second Insured only to the extent to
which it can be satisfied out of the property of the Trust
out of which the Second Insured is actually indemnified for
the liability. This limitation of the Second Insured's
liabilities or obligations under this Policy applies
despite any other provision of each Policy and extends to
all liabilities and obligations in any way connected with
any representation, warranty, conduct, omission, agreement
or transaction related to each Policy;
(b) The Insurer may not sue the Second Insured in any capacity
other than as trustee of the Trust, including seeking the
appointment of a receiver (except in relation to the
property of the Trust), a liquidator, an administrator or
any similar person to the Second Insured or prove in any
liquidation, administration or arrangement of, or affecting
the Second Insured (except in relation to the property of
the Trust);
(c) The provisions of this clause 1.5 shall not apply to any
obligation or liability of the Second Insured to the extent
that the Second Insured is not actually indemnified for the
obligation or liability as a result of the Second Insured's
fraud, negligence or breach of trust.
For these purposes, it is agreed that the Second Insured
cannot be regarded as being fraudulent, negligent or in
breach of trust to the extent to which any failure by the
Second Insured to satisfy its liabilities or obligations
under a Policy has been caused or contributed to by a
failure by the First Insured, the Mortgage Manager or the
Trust Manager (being the Manager referred to in the Master
Trust Deed and Supplementary Terms Notice detailed in the
Schedule) or any other person (other than a person in
respect of which the Second Insured is liable for their
acts or omissions under such Master Trust Deed or
Supplementary Terms Notice) to fulfil its obligations in
relation to the Trust or under the Policy or any other act
or omission of any such person.
(d) The Second Insured is not obliged to do or refrain from
doing anything under a Policy (including incur any
liability) unless the Second Insured's liability is limited
in the same manner as set out in paragraphs (a) to (c) of
this clause.
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(e) For the avoidance of doubt, nothing in this clause affect's
the Insurer's rights under a Policy, or under the Insurance
Contracts Act, to avoid or reduce a claim which may be made
by, or on behalf of, the Second Insured under a Policy (or
to obtain a declaration or any order to that effect).
1.6 Credit Provider
If the Credit Code applies to an Insured Loan in respect of which
the insured is the Second Insured and the Second Insured is not
the credit provider for the purposes of the Credit Code then:
(a) at all times the Second Insured must be entitled to require
the credit provider to do such acts or things or not to do
such acts or things as may be required under this Policy
which may only be done or not done by the credit provider;
and
(b) it shall require the credit provider to do or not do those
acts or things as may be required to be done or not done by
the Second Insured under this Policy if it was the credit
provider or failing that, take whatever steps are necessary
to become the credit provider under the Insured Loan.
1.7 First Insured to act on behalf of Second Insured
The Insurer acknowledges that, and the First Insured agrees with
the Second Insured that whilst the First Insured is the Mortgage
Manager, and while the Trust Manger is the Manager of the
Trust(being the Manager referred to in the Master Trust Deed and
Supplemetary Terms Notice detailed in the Schedule) where this
Master Policy or a Policy requires the Second Insured (either in
that capacity or as an Insured) to do an act or refrain from doing
an act then the First Insured or Trust Manager will do that act or
refrain from doing that act (as the case may be) on behalf of the
Second Insured (other than a requirement for the payment of any
money by the Second Insured). This clause regulates the
arrangement between the First Insured, the Second Insured and the
Trust Manager only and does not affect the rights or obligations
of the Insurer in respect of any Insured.
1.8 Additional Amount
(a) If the Insurer becomes liable to pay goods and services tax
or any like tax ("GST") on any part of the premium payable
by the Insured in respect of the Policies issued under this
Master Policy then the Insurer shall notify the First
Insured of that fact, the date on which the GST is payable
and the amount calculated under this clause (the
"Additional Amount") showing how that amount is allocated
with respect to each Policy issued under this Master
Policy.
(b) The First Insured shall pay to the Insurer the Additional
Amount as specified in the notice at least 30 days prior to
the date on which the GST is payable by the Insurer or, if
the notice is given less than 40 days prior to the date on
which the GST is payable, then within 14 days of the giving
of the notice.
(c) The Additional Amount is in respect of policies issued
under this Master Policy and still in force at the GST
commencement date in respect of which the GST is levied,
adjusted as follows:
(i) If stamp duty is payable in respect of the
Additional Amount then the Additional Amount shall
be increased by a further amount so that after
paying GST on that further amount the amount
remaining is the amount of stamp duty payable;
(ii) The amount payable under this clause shall be
reduced by any refund of stamp duty that has been or
will be received by the Insurer in respect of the
premiums paid or payable in respect of any Policies
issued under this Master Policy; and
(d) For the purposes of this clause the Additional Amount shall
only be payable in respect of that part of the premium in
respect of which the GST is payable.
(e) The Insurer will consider in good faith any reasonable
request by the First Insured to pass on to the First
Insured any material reduction in costs or other benefits
which accrue to the
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Insurer as a direct result of the introduction of GST or
the associated abolition or reduction of other statutory
charges, levies, duties or taxes (excluding taxes on the
income of the Insurer).
2. COVER PROVIDED BY THE POLICY
2.1 Period of Insurance
The Policy in respect of an Insured Loan applies:
(a) in the case of the First Insured, from the Effective Date
until the earliest of:
(i) if the Insured Loan and the Mortgage securing the
Insured Loan is beneficially assigned to the Second
Insured - midnight on the day immediately preceding
such assignment; or
(ii) the date the Insured Loan or the Mortgage securing
the Insured Loan is assigned, transferred or
mortgaged to a person other than to a person who is
or becomes an Insured; or
(iii) the date the Insured Loan is repaid in full; or
(iv) the date the Insured Loan ceases to be secured by
the Mortgage (other than in the case where the
Mortgage is discharged by the operation of a
compulsory acquisition or sale by a government for
public purposes); or
(v) the maturity date as set out in the Certificate of
Insurance or as extended with the consent of the
Insurer or as varied by a court under the Credit
Code; or
(vi) the date the Policy is cancelled in respect of the
Insured Loan in accordance with the Policy; and
(b) in the case of the Second Insured, on and from the date the
Insured Loan and the Mortgage securing the Insured Loan are
beneficially assigned to it until the earliest of:
(i) the date the Insured Loan or the Mortgage securing
the Insured Loan is assigned, transferred or
mortgaged to a person other than to a person who is
or becomes an Insured; or
(ii) the date the Insured Loan is repaid in full; or
(iii) the date the Insured Loan ceases to be secured by
the Mortgage (other than in the case where the
Mortgage is discharged by the operation of a
compulsory acquisition or sale by a government for
public purposes); or
(iv) the maturity date set out in the Certificate of
Insurance, or as extended with the consent of the
Insurer or as varied by a court under the Credit
Code; or
(v) the date the Policy is cancelled in respect of the
Insured Loan in accordance with the Policy.
Note: in this provision a court includes a Court as defined
under the Credit Code
2.2 Cover in respect of the Insured Loan
In accordance with the Policy, the Insurer shall pay to the
Insured the loss in respect of that Insured Loan if the Loss Date
occurs in respect of that Insured Loan.
Where a Default occurs prior to the expiry date of the Policy or
the cancellation of the Policy, the Insurer shall pay to the
Insured the loss in respect of that Insured Loan even though the
Loss Date occurs after the period of insurance has ended.
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2.3 Cover in respect of Timely Payment Cover
In accordance with the Policy, and where the Schedule states that
Timely Payment Cover applies, the Insurer shall pay to the Insured
the loss in respect of a Repayment Instalment if:
(a) the Borrower fails to pay all or part of a Repayment
Instalment due under an Insured Loan; and
(b) that failure continues for 14 days after the due date for
payment.
3. CALCULATION OF LOSS IN RESPECT OF THE LOAN
3.1 Loss in respect of an Insured Loan
The loss in respect of an Insured Loan is the amount outstanding
less the deductions calculated under this clause as at the Loss
Date, or where clause 3.4 applies calculated in accordance with
that clause.
3.2 Amount outstanding
The amount outstanding is the aggregate of:
(a) the Loan Amount together with any interest fees or charges
(whether capitalised or not), that are outstanding at the
Loss Date;
(b) fees and charges paid or incurred by the Insured ; and
(c) such other amounts (including fines or penalties) which the
Insurer in its absolute discretion approves;
which the Insured is entitled to recover under the Insured Loan
Contract or any Mortgage Guarantee.
3.3 Deductions
The deduction to be made from the amount outstanding is the
aggregate of:
(a) where the Property is sold, the sale price or where the
property is compulsorily acquired the amount of
compensation less any amount required to discharge any
Approved Prior Mortgage;
(b) where foreclosure action occurs, the value of the Insured's
interest in the Property (treating the Insured's interest
as including the interest of any prior Mortgagee who is not
an Approved Prior Mortgagee);
(c) any amount received by the Insured under any Collateral
Security;
(d) all amounts paid to the Insured:
(i) by way of rents, profits or proceeds in relation to
the Property; or
(ii) under any policy of insurance relating to the
Property and not applied in restoration or repair;
(e) any interest whether capitalised or not that exceeds
interest at the Standard Rate;
Note: if the Credit Code applies to the loan then any interest
greater than the interest calculated and accrued at the
Standard Rate in accordance with the provisions of the Credit Code
shall be excluded.
(f) any fees or charges whether capitalised or not, that are
not of a type or which exceed the maximum amounts specified
below:
(i) premiums for Approved General Insurance Policies,
levies and other charges payable to a body corporate
under a strata title system, rates, taxes and other
statutory charges;
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(ii) reasonable and necessary legal and other fees and
disbursements of enforcing or protecting the
Insured's rights under the Insured Loan Contract, up
to the maximum amount stated in the Schedule;
(iii) repair, maintenance and protection of the Property,
up to the maximum amount or proportion of the value
of the Property stated in the Schedule; and
(iv) reasonable costs of the sale of the Property by the
Insured, up to the maximum amount stated in the
Schedule;
Note: if the Credit Code applies to the Insured Loan then
fees and charges that exceed the fees and charges
recoverable under the Credit Code (less any amount that
must be accounted for to the Borrower or the Mortgagor)
shall be excluded.
(g) losses directly arising out of physical damage to the
Property other than:
(i) losses arising from fair, wear and tear; or
(ii) losses which were recovered and applied in the
restoration or repair of the Property prior to the
Loss Date or which were recovered under a policy of
insurance and were applied to reduce the amount
outstanding under the Insured Loan;
(h) any amounts by which a claim may be reduced under the Policy;
and
(i) any deductible or other amount specified in the Schedule.
3.4 Unrecouped Timely Payment Cover claim
If prior to the Loss Date the Insurer has paid a claim for loss in
respect of Timely Payment Cover and that claim together with
interest has not been repaid to the Insurer in accordance with
clause 7.9(a) then:
(a) firstly, the amounts specified in paragraphs (a), (b)
or (c) of clause 3.3 shall be applied to repay the Insurer
such claim in accordance with clause 7.9(a);
(b) secondly, the amount outstanding under clause 3.2 is
reduced by the amount applied to repay the Insurer under
paragraph (a) of this clause; and
(c) thirdly, the loss in respect of the Insured Loan is the
amount outstanding so reduced less the deductions
calculated under this clause as at the Loss date.
3.5 Maximum payable under Limited Cover policy
If the Certificate of Insurance states that the Policy provides
"Limited Cover" the maximum amount payable by the Insurer shall
not exceed the percentage of the Loan Amount specified in the
Certificate of Insurance.
3.6 Credit Code
If the Credit Code applies to the Insured Loan then:
(a) the amount outstanding calculated under clause 3.2 shall
not exceed the amount required to pay out the Insured Loan
as calculated in accordance with the provisions of the
Credit Code at the last date prior to the Loss Date on
which such payment could be made less any interest whether
capitalised or not that exceeds the Standard Rate, and if
after payment of a claim by the Insurer it is determined
that no amount or a lesser amount was payable immediately
preceding the Loss Date then the Insured shall immediately
advise the Insurer and promptly pay to the Insurer any
overpayment by the Insurer; and
Note: the maximum amount will normally be the amount calculated
under section 75 of the Credit Code.
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(b) if any application is made to a court under the Credit Code
in respect of the Insured Loan after a Default or any
application has been made prior to a Default that has not
been finally disposed of prior to that Default then no
claim shall be payable until the application has been
finally disposed of.
Note: in this provision a court includes a Court as defined under
the Credit Code. The type of application to which this provision
may apply is an application under section 68, 69, 70, 72, 77, 88,
101, 102, 107, or 114 of the Credit Code as well as other
proceedings under the Code.
4. CALCULATION OF LOSS IN RESPECT OF TIMELY PAYMENT COVER
4.1 Loss in respect of a single Repayment Instalment
The amount of the Insured's loss in respect of a Repayment
Instalment is the amount by which the amount received by the
Insured on account of that Repayment Instalment is less than the
amount of that Repayment Instalment calculated at the Standard
Rate, less -
(a) any amount by which a claim may be reduced under the
Policy; or
(b) any deductible or other amount specified in the Schedule.
4.2 Aggregate limit and reinstatement
The aggregate amount payable in respect of all losses in respect
of Repayment Instalments under the Policy shall not exceed the
amount specified in or calculated in accordance with the method
set out in the Schedule and that aggregate shall be reinstated by
any amounts subsequently repaid or reimbursed to the Insurer.
4.3 Extension of cover beyond the maturity date
If at the end of the term of the Insured Loan in respect of which
Repayment Instalments are for interest only, all or part of the
Loan Amount remains outstanding then for the purpose of the
insurance for a loss in respect of a Repayment Instalment, an
obligation to make Repayment Instalments under the Insured Loan
Contract of interest only calculated at the Standard Rate
applicable at the end of the term shall be deemed to continue:
(a) at the repayment intervals specified under Insured Loan
Contract;
(b) until the first to occur of the repayment of that Insured
Loan or the expiration of six months from the end of the
term of the Insured Loan.
4.4 Credit Code limits
If the Credit Code applies to the Insured Loan then the maximum
loss in respect of a Repayment Instalment shall be the amount of
the Repayment Instalment calculated in accordance with the
provisions of the Credit Code as if that Repayment Instalment was
paid on the due date and if after payment by the Insurer of a loss
in respect of a Repayment Instalment it is determined that no
amount or a lesser amount was payable by the Borrower in respect
of that Repayment Instalment then the Insured shall immediately
advise the Insurer of that fact and promptly repay to the Insurer
the difference between the amount paid by the Insurer in respect
of the loss and the amount payable in accordance with the
provisions of the Credit Code.
Note: the Repayment Instalment must be calculated in accordance
with the Credit Code without any default interest.
5. REPORTING OBLIGATIONS
5.1 Notice of default
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Within 14 days after the end of each month the Insured must inform
the Insurer if at the end of month:
(a) where Repayment Instalments are payable monthly or more
frequently, an amount due by the Borrower by way of
interest or otherwise in respect of an Insured Loan which
equals or exceeds at least 90% of the sum of Repayment
Instalments payable in a period of 3 months; and
(b) in any other case, an amount due by the Borrower in respect
of an Insured Loan has remained unpaid for one month,
and must furnish such further information as the Insurer requests.
5.2 General reports on all Insured Loans
The Insured must, within 28 days of receiving a written request
from the Insurer, provide the Insurer with a status report which
sets out:
(a) all Insured Loans or all Insured Loans of a particular type
or location insured under a Policy issued under this Master
Policy;
(b) the Scheduled Balance in respect of those Insured Loans;
(c) the amount outstanding under each of those Insured Loans;
and
(d) other information about those Insured Loans, the Insured
Loan Contracts, any Mortgage Guarantees or Collateral
Securities as the Insurer reasonably requests.
The Insurer may request a status report under this clause no more
than twice a year.
5.3 Reports relating to fixed term loans
Where the Policy applies to an Insured Loan with a fixed term at
the end of which the Loan Amount or any part of it that remains
outstanding is to be repaid then, if the Borrower fails to repay
the Loan Amount or that part of it on or before the end of the
term, the Insured shall within 14 days of the end of the term
notify the Insurer of the default.
5.4 Reports relating to the Borrower, Mortgagor, Mortgage Guarantor or
the Property
The Insured must as soon as possible and, in any event, not later
than 14 days after it becomes aware of the relevant facts, inform
the Insurer in writing of the following events:
(a) the institution of proceedings for the bankruptcy or
winding up of the Borrower, the Mortgagor, any Mortgage
Guarantor or the provider of any Collateral Security;
(b) any material failure of the Borrower, the Mortgagor, the
Mortgage Guarantor or the provider of any Collateral
Security to observe, comply with or perform any of their
obligations or covenants contained in an Insured Loan
Contract, the Mortgage, the Mortgage Guarantee or the
Collateral Security other than those relating to payment of
amounts due by the Borrower in respect of the Insured Loan;
(c) the taking of possession of the Property by the Insured or
any other person (including the date of possession);
(d) if the Credit Code applies to the Insured Loan:
(i) any request to materially vary the terms of the
Insured Loan Contract, any Mortgage Guarantee or any
Collateral Security or to postpone any enforcement
proceedings;
Note: a request under this provision will include a request
under section 66, 69 or 86. Enforcement proceedings has the
same meaning that the term has under the Credit Code.
(ii) any application made in respect of the Insured Loan
to a court and any order of that court;
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Note: in this provision a court includes a Court as defined
under the Credit Code. The type of application to which
this provision may apply is an application under section
68, 69, 70, 72, 77, 88, 101, 102, 107, or 114 of the Credit
Code as well as other proceedings under the Code.
(iii) if the Insured becomes aware or, in the ordinary
course of business ought to be aware that the terms
of the Insured Loan Contract, any Mortgage Guarantee
or any Collateral Security, or any act or omission
of the Insured, may constitute a contravention of
the Credit Code,
and must furnish to the Insurer such further information about the
events as the Insurer requests.
5.5 Reports relating to a Prior Mortgage
Where a Mortgage is not a first mortgage, the Insured must as soon
as possible and, in any event, not later than 14 days after it
becomes aware, or in the ordinary course of business ought to
become aware of the relevant facts, notify the Insurer if:
(a) the Mortgagor has failed to observe or comply with any of
the Mortgagor's obligations or covenants contained in any
prior mortgage;
(b) a prior mortgagee has entered into possession of the
Property or sold it or commenced foreclosure action or
commenced proceedings against the Mortgagor for recovery of
any amounts owing under the prior mortgage, or proposes to
exercise any of these remedies; or
(c) the principal amount owing under a prior mortgage has
increased since the date of the Acceptance Advice.
5.6 Reports Relating to Year 2000 Communications Issues
If the Insured becomes aware of any failure in its computer
systems or other items to be Year 2000 Ready and which causes or
may reasonably be expected to cause a claim, the Insured must
immediately notify the Insurer with full written details
including, but not limited to the nature of the failure, details
of the relevant Borrower, if applicable, and details of how the
failure may lead to a claim.
5.7 Form of reports
The Insurer may require the notices and reports required under
this clause to be in a form approved by the Insurer.
6. EXERCISE OF REMEDIES
6.1 Insurer notification
The Insured must not, without prior notice to the Insurer:
(a) enter into possession of the Property, sell it, take
foreclosure action or appoint any receiver or manager of
the Property;
(b) commence any legal proceedings in relation to the Insured
Loan Contract, any Mortgage Guarantee or any Collateral
Security; or
(c) if the Credit Code applies to the Insured Loan Contract,
take any enforcement proceedings or make any application to
a court in relation to the Insured Loan Contract, any
Mortgage Guarantee or any Collateral Security.
Note: enforcement proceedings has the same meaning as that term
has under the Credit Code. A court includes any Court as defined
under the Credit Code. Applications to a court may include
applications under section 101 or 102 of the Credit Code.
6.2 The Insurer may require steps to be taken
<PAGE>
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(a) If the Insurer becomes aware (by reason of a report or
otherwise) of an actual or alleged contravention of a key
requirement under the Credit Code the Insurer may request
the Insured to engage (at the Insured's expense) an expert
(acting as an expert and not an arbitrator) to advise in
writing whether there is such a contravention, if so, its
effect and how best to stop it.
In this clause 6.2(a), "expert" means:
(i) a person agreed between the Insurer and the Insured;
or
(ii) failing agreement after such a notice is given to
the Insured, a barrister or solicitor of at least 7
years standing practicing in the Supreme Court of a
State or Territory of Australia who is chosen by the
President for the time being of the Law Society.
The Insured may not unreasonably refuse to comply with such
a request, shall promptly and diligently brief the expert
(with due regard to the interests of, and any material
provided by, the Insurer) and shall promptly provide to the
Insurer a copy of the expert's written advice.
(b) If the Insurer becomes aware (by reason of a report or
otherwise) of any actual or alleged contravention of the
Insured Loan Contract, any Mortgage Guarantee or any
Collateral Security, then the Insurer may require the
Insured to take such steps as it notifies to the Insured
that are in the Insurer's reasonable opinion in accordance
with generally accepted prudent mortgage enforcement
practice.
6.3 Due Care
The Insured must promptly and diligently take and pursue all
action as is required by or notified to the Insurer under this
clause, and shall have due regard to the interests of the Insurer
in exercising or not exercising any power, right or remedy under
the Insured Loan Contract any Collateral Security or under any law
including the Credit Code.
7. CLAIMS
7.1 Form of claim
All claims must be in a form and be accompanied by documents or
information required by the Insurer.
7.2 Information
All information provided in relation to a claim must be provided
honestly and frankly.
7.3 Timing of claim in respect of the Loan
A claim for a loss in respect of an Insured Loan must be lodged
within 28 days after the Loss Date unless in its absolute
discretion the Insurer otherwise agrees. Where a claim is not
lodged within 28 days after the Loss Date the claim shall be
reduced for any loss and damage the Insurer suffers by reason of
the delay in lodgment of the claim.
7.4 Timing of claim in respect of a Repayment Instalment
A claim for the Insured's loss in respect of a Repayment
Instalment shall only be made following 14 days or more after the
due date for payment of that Repayment Instalment by the Borrower.
7.5 Payment of a claim
Payment by the Insurer in settlement of a claim will be made to
the Insured within 14 days of the Insurer's receipt of the
completed claim form and supporting information and documents.
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7.6 Interest on claims
If a claim is not paid within 28 days of the date on which a
completed claim form and all supporting information and documents
are lodged, the Insurer will pay interest on the amount of the
claim admitted by the Insurer at the Standard Rate from the date
the completed claim form and supporting information and documents
were lodged until payment of the claim.
7.7 The Insurer may determine to pay a claim
Following a Default which remains unremedied for at least 6 months
then the Insurer may in its absolute discretion give notice to the
Insured that it will pay the claim for the loss in respect of that
Insured Loan (whether or not a claim has been made) on a date
specified in the notice (being a date not less than 14 days after
the date of the notice) which date shall be the Loss Date.
7.8 Terms and condition of payment of a claim
Upon payment of a claim for a loss in respect of an Insured Loan
the Insurer shall be subrogated to all the rights and interests of
the Insured in respect of the Insured Loan Contract, any Mortgage
Guarantee or any Collateral Security and where the Insurer has
agreed or determined to pay a claim or agreed to acquire an
Insured Loan under this clause, that agreement or determination
shall be on all or any of the following conditions as determined
by the Insurer:
(a) the Insured Loan Contract, any Mortgage Guarantee and any
Collateral Security is transferred or assigned to the
Insurer or its nominee at the Insured's expense;
(b) the Insured delivers to the Insurer a power of attorney in
a form approved by the Insurer and to the extent permitted
by law under which the Insurer or nominated officers of the
Insurer are severally and irrevocably constituted as the
attorneys of the Insured to exercise, at the Insurer's
discretion, all or any of the rights and powers of the
Insured in relation to the Insured Loan Contract, any
Mortgage Guarantee or any Collateral Security; or
(c) the Insured takes such action (including legal proceedings)
in relation to the Insured Loan Contract, any Mortgage
Guarantee or any Collateral Security as the Insurer
requests; and
(d) the Insured gives to the Insurer such certificates and
undertakings as are necessary in the opinion of the Insurer
to establish that the Insured Loan Contract, any Mortgage
Guarantee or any Collateral Security is valid and
subsisting and that the relevant rights of the Insured
remain undiminished and unimpaired.
If the Insurer recovers an amount in excess of the amount of a
claim paid in respect of an Insured Loan, then the Insurer shall:
(i) refund any excess to the Insured; and
(ii) reassign to the Insured (at the Insured's expense)
any remaining rights and interests assigned to
assigned to the Insurer under this clause.
7.9 Reimbursement of claims paid
All amounts received by the Insured on account of an Insured Loan
(including any amount paid on account of any Additional Advance)
or the property after the date on which any claim is made under
this Policy (whether upon the exercise of powers following a
Default or otherwise) must be notified to the Insurer immediately
and such amounts are held on trust for the Insurer to be:
a) firstly, where the Insurer has wholly or partly paid a
claim, paid by the Insured to the Insurer until the amount
so paid is equal to the amount paid by the Insurer under
the Policy in respect of that Insured Loan; and
b) secondly, applied to reduce the balance of the amount
payable by the Insurer under the Policy in respect of that
Insured loan.
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7.10 Insured in breach of the Policy
the Insurer may refuse or reduce any claim for loss in respect of
an Insured Loan or a Repayment Instalment by the amount that
fairly represents the extent to which the Insurer's interests have
been prejudiced by the Insured's failure to comply with any
condition, provision or requirement of the Policy.
7.11 Year 2000 Ready
The Insurer may refuse or reduce any claim for loss in respect of
an Insured Loan by the amount that fairly represents the extent to
which the Insurer's interests have been prejudiced by the failure
of any item used or relied upon by the Insured to be Year 2000
Ready other than as the result of any failure in the Insurer's
computer systems or other items to be Year 2000 Ready.
8. ACCOUNTING FOR CLAIMS PAID IN RESPECT OF TIMELY PAYMENT COVER
8.1 Accounting for Policy
For the purposes of the Policy only, all amounts received by the
Insured on account of an Insured Loan (including any amount paid
on account of any Additional Advance) after a claim for the
Insured's loss in respect of any Repayment Instalment has been
paid will be first appropriated and credited to Repayment
Instalments (and interest on those Repayment Instalments at the
Standard Rate) for which claims have been paid and:
(a) where claims have been paid in respect of several Repayment
Instalments, such amounts must be appropriated to those
Repayment Instalments and interest on those Repayment
Instalments in the order in which those Repayment
Instalments became payable by the Borrower; and
(b) any amount so appropriated and credited to a particular
Repayment Instalment or interest on that Repayment
Instalment will be deemed for the purposes of this clause
to have been received by the Insured on account of that
Repayment Instalment or interest on it as the case may be.
8.2 No diminishing of rights against the Borrower or Mortgagor
The Insured must not accept or deal with any amount received from
the Insurer pursuant to a claim made in respect of the Insured
Loan or in respect of a Repayment Instalment or otherwise act in
any way so as to extinguish or diminish its right to claim against
the Borrower, the Mortgage Guarantor, the Mortgagor or any person
providing any Collateral Security for the whole of any claim.
9. CONDITIONS
9.1 Action requiring the Insurer's consent
The Insured must not, without prior approval of the Insurer:
(a) make any Additional Advance upon the security of the
Property that ranks for payment ahead of the Insured Loan;
(b) materially alter the terms of the Insured Loan Contract,
any Mortgage Guarantee or any Collateral Security, other
than an alteration made in accordance with section 66 or 68
of the Credit Code;
(c) allow its rights to be reduced against the Borrower, the
Mortgagor, any Mortgage Guarantor, any provider of any
Collateral Security or the Property by compromise,
postponement, partial discharge or otherwise;
(d) approve any transfer or assignment of the Property without
full discharge of the Insured Loan;
(e) contravene any provision of the Policy; or
(f) consent to a further advance by an Approved Prior Mortgagee
upon the security of the Approved Prior Mortgage.
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9.2 The Insurer's other requirements
The Insured must:
(a) pay any premium within 28 days of the due date as specified
in the Schedule;
(b) not make any representation or statement (deemed or
otherwise) in a proposal that is incorrect or breach the
duty of disclosure;
(c) ensure there is a Mortgage Manager in respect of the
Insured Loan at all times if the Insured does not manage
and administer the Insured Loan or is not a lender approved
by the Insurer;
(d) ensure there is a condition in the Insured Loan Contract
that the Property is kept insured under an Approved General
Insurance Policy and specifying in case of a failure to do
so that the Insured may insure the Property under an
Approved General Insurance Policy at the cost and expense
of the Borrower or the Mortgagor and not advance any part
of the Insured Loan to the Borrower before the Property is
so insured;
(e) where a Mortgage is not a first mortgage, take such action
as the Insurer may require to oppose any application by any
prior mortgagee for foreclosure against the Mortgagor and
the Insured.
(f) ensure the Mortgage has been duly registered with the land
titles office in the State or Territory in which the
Property is situated;
Note: The Insurer shall not consider it to be a breach of this
provision if the Mortgage has been lodged for registration in
accordance with the normal practice of the jurisdiction and it has
not been rejected.
(g) ensure the Insured Loan Contract, any Mortgage Guarantee or
any Collateral Security is duly stamped in each relevant
State or Territory;
Note:The Insurer shall not consider it to be a breach of this
provision if all steps required by the relevant State or Territory
stamp office have been taken and the Insured pays stamp duty when
it falls due.
(h) if an Insured Loan is for the purpose of (either solely or
partly) or in connection with, the construction,
refurbishment or renovation of any building the Insured
must not, other than in accordance with the lending
Guidelines, make any advance:
(i) before the Borrower (and the Mortgagor if not the
Borrower) and the builder have entered into a
contract which precludes the Borrower (and the
Mortgagor if not the Borrower) from being charged
more than a specified price inclusive of all
expenses other than those incurred in respect of
additional work or variations authorised in writing
by the Borrower (and the Mortgagor if not the
Borrower);
Note: The specified price must not exceed the price stated
in the Acceptance Advice without the approval of the
Insurer and the Insured Loan Contract must not permit the
Borrower (and the Mortgagor if not the Borrower) to
authorise any additional work without the consent of the
Insured.
(ii) intended to be paid to the builder before one of the
Insured's officers or a competent third party has
inspected the building to ensure that construction
is sound and substantially in accordance with plans
and specifications and that the payment is
appropriate having regard to the progress of
construction;
(iii) after a Default without the approval of the Insurer.
(i) notify the Insurer of any Additional Advance made on the
security of the Property, and where the Additional Advance
is an Approved Additional Advance pay any additional
premium required by the Insurer.
<PAGE>
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10. EXCLUSIONS
This Policy does not cover any loss arising from:
(a) any war or warlike activities;
(b) the use, existence or escape of nuclear weapons material or
ionizing radiation from or contamination by radioactivity
from any nuclear fuel or nuclear waste from the combustion
of nuclear fuel;
(c) the existence or escape of any pollution or environmentally
hazardous material;
(d) the fact that the Insured Loan Contract, any Mortgage
Guarantee or any Collateral Security is void or
unenforceable;
(e) where the Credit Code applies, any failure of the Insured
Loan Contract, any Mortgage Guarantee or any Collateral
Security to comply with the requirements of the Credit
Code; or
(f) the failure of the Insured's computer systems or other
items to be Year 2000 Ready other than as the result of any
failure in the Insurer's computer systems or other items to
be Year 2000 Ready
11. CANCELLATION OF THE POLICY
11.1 Cancellation by the Insurer
If the Insurer is so entitled, it may cancel a Policy issued under
this Master Policy by notice to the Insured without any refund of
premium.
11.2 Cancellation by the Insured
The Insured may cancel a Policy issued under this Master Policy by
notice to the Insurer.
Note: if the Insured Loan is fully discharged and the Insurer
is notified within 3 months of that date it may refund such part
of the premium as it determines.
12. AUDIT
The Insurer (or its nominee) at its cost, and after giving the
Insured at least 14 days notice, may audit all or any of the
Insured Loan Contracts, insured under the Master Policy and for
this purpose the Insured shall co-operate with and provide
reasonable assistance to the Insurer or its nominee and provide
security packets and all files relating to the Insured Loan
Contracts to be audited.
13. ASSIGNMENT OF POLICY
13.1 General
Subject to clause 13.2, a Policy issued under this Master Policy
may only be assigned with the prior consent of the Insurer.
Note: if the Credit Code applies to the Insured Loan then the
Insurer's consent will not be given unless the Insurer is
satisfied that the assignee is reasonably capable of complying
with the Credit Code.
13.2 Second Insured
The Insurer acknowledges and agrees that an Insured Loan may be
beneficially assigned to the Second Insured notwithstanding that
the Repayment Instalments under that Insured Loan are in arrears
or that there is Default by a mortgagor in relation to that
Insured Loan and upon assignment of any Insured Loan under this
sub-clause, the Policy in relation to that Insured Loan shall be
for the benefit of the assignee subject to any rights,
entitlements or defences that may have arisen prior to the
assignment.
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14. Governing Law and Submission to Jurisdiction
This Master Policy and each policy issued shall be governed by the
laws of New South Wales and the Insured and the Insurer shall
submit to the non-exclusive jurisdiction of the courts of New
South Wales.
<PAGE>
Schedule
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Approved Additional Advance - is in respect of a loan insured under this Master
Policy:
a) any Additional Advance which is approved for insurance by the Insurer
subject to the payment of an additional premium; or
b) any Loan Redraw.
Due Date is the date by which the premium is to be paid to the Insurer, and is:
(a) in respect of individual loans insured under this Master Policy, within
28 days of the date of the first advance of loan funds; and
(b) in respect of any pool of mortgages insured under this Master Policy
for securitisation, the securitisation date.
Special Condition - Existing Insured Loans
Certain loans to be insured under this Master Policy have existing insurance
issued by either Housing Loans Insurance Corporation ("HLIC"), Housing Loans
Insurance Corporation Pty Ltd ("HLIC Pty Ltd") or GE Capital Mortgage Insurance
Corporation (Australia) Pty Ltd (GEMICO) in respect of which a premium has been
paid (the "Existing Insured Loans"). These loans are set out in annexure "A"
Where an Existing Insured Loan is covered by an insurance contract issued by the
Commonwealth of Australia, under this Master Policy the Insurer shall only be
liable for that part of the loss in respect of the Insured Loan which is not
insured under the terms of any policy of insurance issued by the Commonwealth of
Australia.
Where an Existing Insured Loan is insured under a policy issued by HLIC Pty Ltd
or GEMICO then on and from the date that this Master Policy insures that loan
the previous policy issued shall be cancelled and the terms of the insurance
shall be governed by the terms and conditions of this Master Policy.
In respect of any Existing Insured Loans where there is insurance issued by the
Commonwealth of Australia, the Insured agrees that it will provide reports in
respect of that Existing Insured Loan as if the provisions of clause 4 of this
Master Policy were incorporated into and were part of the policy issued by the
Commonwealth of Australia.
It is agreed by the Insurer that in the event of any inconsistency between the
Master Policy wording and the Schedule, with regard to the definition of
Insurer, the Special Condition - Existing Insured Loans or the definition of
Effective Date, for the purposes of this Master Policy the provisions of the
Schedule will prevail.
[GRAPHIC OMITTED]
Loan Redraw - For the purposes of this Master Policy any loan redraw made under
an Insured Loan Contract is an Approved Additional Advance. A loan redraw means,
in respect of any loan not repaid in full, a redraw of repaid principal, where
following the redraw the Loan Amount does not exceed the Scheduled Balance. No
additional premium is payable to the Insurer in respect of a loan redraw. Any
loan redraw will be deemed to have been notified to the Insurer in accordance
with clause 9.2(i) of this Master Policy.
Maximum Enforcement Expenses - $2,000 unless otherwise approved in writing by
the Insurer.
Maximum Repair Maintenance and Protection Costs - $1,000 unless otherwise
approved in writing by the Insurer.
Maximum Sale Costs - $1,000 plus selling agent's commission unless otherwise
approved in writing by the Insurer.
<PAGE>
Schedule
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Trust Details - The Crusade Global Trust No. 1 of 1999 established under a trust
deed between the First Insured, the Second Insured and Crusade Management
Limited dated on or about xx/xxx/1999 and the related Notice of Creation of
Trust.
Master Trust Deed- the Deed so entitled on or about 14 March 1998 between the
First Insured, the Second Insured, Crusade Management Limited, St.George
Custodial Pty Limited, National Mutual Life Nominees Limited and Bankers Trustee
Company Limited.
Supplementary Terms Notice- the Deed so entitled on or about 14 March 1998
between the First Insured, the Second Insured, Crusade Management Limited,
St.George Custodial Pty Limited, National Mutual Life Nominees Limited and
Bankers Trustee Company Limited.
Acknowledgement
The Insurer acknowledges that the Second Insured may charge the benefit of the
Policies, the Master Policy and rights in Properties to National Mutual Life
Nominees Limited( The "Security Trustee") under the security trust deed dated on
or about 13 March 1998 between the Second Insured ,the Security Trustee, Bankers
Trustee Company Limited and Crusade Management Limited and consents to that
charge. If the Security Trustee so directs the Insurer, the Insurer will pay the
Security Trustee or its nominee any amount payable to the Second Insured. Each
party (other than the insurer) acknowledges that any payment so made by the
Insurer to the Security Trustee shall operate to satisfy the Insurer's
obligations under the Policy with respect to that payment and the Insurer shall
cease to owe any obligations under the Policy to any other party with respect to
that payment. The Insurer shall have no liability to any other party for any
payment so made by it, and is not required to investigate whether the Security
Trustee is entitled to direct it to make any such payment. This change to the
Security Trustee shall not terminate the Second Insured's coverage under any
such Policy pursuant to clause 2.1(b)(i).
Premium - The premium payable (including stamp duty where applicable) in respect
of each loan insured under the Master Policy, as specified in Table 1., must be
paid to the Insurer on or before the securitisation date.
Refund of Premium - To be based on the Insurer's standard refund policy in force
from time to time. Current policy being as set out hereunder:
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PREMIUM REFUND RATES
Period from date of contract to date Percentage of standard
of loan repayment premium to be refunded
1 year or less 40%
Over 1 year to 2 years 20%
No refund is payable where:
. the loan is not discharged in full; or
. the loan is repaid within one year of the maturity date of the mortgage; or
. the amount payable is less than $100; or
. a loss has eventuated or a claim has been made on HLIC; or
. the loan has been reported to have had recent arrears.
-----------------------------------------------------------------------------
Timely Payment Cover applies in respect of all loans insured under this Master
Policy, up to an aggregate limit of 24 Repayment Instalments per loan.
Variations - Any variation to an Insured Loan (including substitution of
security and partial release of security) which results in an increase to the
Scheduled Balance or the loan to value ratio based on the Scheduled Balance in
respect of that loan, will be subject to a new proposal form and a new premium.
A special refund on the existing policy (based on the net premium paid) may be
applicable subject to the Insurer's refund variation policy in force from time
to time. Current policy being as set out hereunder:
--------------------------------------------------------------
Period from date of Contract to Refund Payable
date of variation
--------------------------------------------------------------
<PAGE>
Schedule
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--------------------------------------- -----------------------
3 months or less 80%
--------------------------------------- -----------------------
Over 3 months to 1 year 70%
--------------------------------------- -----------------------
Over 1 year to 2 years 50%
--------------------------------------- -----------------------
Where the calculated refund is less than $100, no refund will be payable
Additional Amount - in respect of any Additional Amount payable by the First
Insured to the Insurer pursuant to clause 1.8 of this Master Policy the Insurer
confirms that it will not take any steps to reduce its liability or deny any
claims (which are in all other respects properly indemnifiable pursuant to the
terms and conditions of this Master Policy) solely as a consequence of any
Additional Amount notified by the Insurer as being due from the Insured
remaining unpaid after the due time for payment. The Insurer's rights and
remedies in respect of unpaid Additional Amounts which arise under this Master
Policy or otherwise remain unchanged.
<PAGE>
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HLIC/GEMICO Australia MASTER POLICY
CERTIFICATE OF INSURANCE - PARTICULARS TO BE INCLUDED
1. Date of issue
2. Name of Insured
3. Name of the Mortgage Manager
4. Name of Borrower
5. Name of the Mortgagor
6. Principal Loan Amount
7. Description of Mortgaged Property
8. Expiry Date (if applicable)
9. Where Policy Limited Cover and if so percentage
- --------------------------------------------------------------------------------
SCHEDULE - PARTICULARS TO BE INCLUDED
1. Category "A" loans
2. Category "B" loans
3. Maximum Legal and Enforcement costs
4. Maximum Repair Maintenance and Protection Costs
5. Maximum Sale Costs
6. Deductible (if any)
7. Trust Details
8. Approved Additional Advances
9. Aggregate Timely Payment Cover Limit
