<PAGE>
As filed with the Securities and Exchange Commission on 15 March 2000
Registration No. 333-93721
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
PRE-EFFECTIVE AMENDMENT NO. 3
TO
FORM S-11
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
Securitisation Advisory Services Pty Limited
(ACN 064 133 946)
(Exact name of registrant as specified in its governing instruments)
--------------
Level 8
48 Martin Place
Sydney, 2000
Australia
Telephone: 612-9378-5293
(Address, including zip code/post code, and telephone number, including area
code, of registrant's principal executive offices)
--------------
agent for service
Ian Phillips
Executive Vice President and
General Manager Americas
Commonwealth Bank of Australia
599 Lexington Avenue
New York, NY 10022
Telephone: 212-848-9241
(Name, address, including zip code and telephone number, including area code,
of agent for service)
--------------
With a copy to:
<TABLE>
<S> <C> <C>
Dominic Bruzze Diane Citron, Esq. Richard F. Kadlick
Securitisation Advisory Services Mayer, Brown & Platt Skadden, Arps, Slate,
Pty. Limited 1675 Broadway Meagher & Flom
Level 8, 48 Martin Place New York, New York 10019 Four Times Square
Sydney 2000, Australia New York, New York 10036
</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. [_]
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Proposed Proposed
Title of Each Class of Maximum Maximum Amount of
Securities to Be Amount to be Offering Price Aggregate Registration
Registered Registered Per Unit Offering Price Fee
- ---------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A-1 Mortgage
Backed Floating
Rate Notes............ $985,000,000 100% $985,000,000 $259,776*
</TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
* $264.00 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.
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- --------------------------------------------------------------------------------
<PAGE>
CROSS REFERENCE SHEET
<TABLE>
<CAPTION>
Name and Caption in Form
S-11 Caption in Prospectus
------------------------ ---------------------
<C> <S> <C>
1. Forepart of Registration Front Cover of Registration Statement; Outside
Statement and Outside Front Cover Page of Prospectus
Front Cover Page of
Prospectus
2. Inside Front and Outside
Back Cover Pages of Inside Front Cover Page of Prospectus; Outside
Prospectus Back Cover Page of Prospectus
3. Summary Information, Summary; Risk Factors
Risk Factors and Ratio
of Earnings to Fixed
Charges
Determination of
4. Offering Price *
5. Dilution *
6. Selling Security Holders *
7. Plan of Distribution Method of Distribution
8. Use of Proceeds Use of Proceeds
9. Selected Financial Data *
10. Management's Discussion
and Analysis of
Financial Condition and Description of the Trust; Description of the Assets
Results of Operations of the Trust
11. General Information as The Issuer Trustee, Commonwealth Bank and the
to Registrant Manager
Policy with respect to
12. Certain Activities Description of the Class A-1 Notes
Investment Policies of
13. Registrant Description of the Transaction Documents
14. Description of Real The Assets of the Trust; Commonwealth Bank
Estate Residential Loan Program
15. Operating Data *
16. Tax Treatment of
Registrant and Its United States Federal Income Tax Matters,
Security Holders Australian Tax Matters
17. Market Price of and
Dividends on the
Registrant's Common
Equity and Related
Stockholder Matters *
Description of
18. Registrant's Securities Description of the Class A-1 Notes
19. Legal Proceedings *
20. Security Ownership of
Certain Beneficial The Issuer Trustee, Commonwealth Bank
Owners and Management and the Manager
Directors and Executive
21. Officers *
22. Executive Compensation *
Certain Relationships
23. and Related Transactions *
24. Selection, Management Description of the Class A-1 Notes; Description
and Custody of of the Transaction Documents; Commonwealth
Registrant's Investments Bank Residential Loan Program
25. Policies with Respect to
Certain Transactions Description of the Class A-1 Notes
26. Limitations of Liability Description of the Transaction Documents
Financial Statements and
27. Information *
Interests of Named
28. Experts and Counsel *
29. Disclosure of Commission
Position on
Indemnification for
Securities Act
Liabilities Part II of Registration Statement
30. Quantitative and
Qualitative Disclosures
about Market Risk *
</TABLE>
- --------
* Not Applicable
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+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. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to completion, dated March 10, 2000
PRELIMINARY PROSPECTUS
US$ Class A-1 Mortgage Backed Floating Rate Notes
Series 2000-1G Medallion Trust
[LOGO]
Securitisation Advisory Services Pty Limited (ACN 064 133 946)
Manager
Commonwealth Bank of Australia (ACN 123 123 124)
Seller and Servicer
Perpetual Trustee Company Limited (ACN 000 001 007)
in its capacity as trustee of the Series 2000-1G Medallion Trust
Issuer Trustee
-----------
The Class A-1 notes will be collateralized by a pool of housing loans
secured by properties located in Australia. The Series 2000-1G Medallion Trust
will be governed by the laws of New South Wales, Australia.
The Class A-1 notes are not deposits and neither the notes nor the
underlying housing loans is insured or guaranteed by any governmental agency or
instrumentality. The Class A-1 notes represent obligations of the issuer
trustee in its capacity as trustee of the Series 2000-1G Medallion Trust only
and do not represent obligations of or interests in, and are not guaranteed by,
Securitisation Advisory Services Pty Limited, Commonwealth Bank of Australia,
Perpetual Trustee Company Limited or the underwriters.
An application has been made to the London Stock Exchange Limited ("The
London Stock Exchange") to admit the Class A-1 notes to the Official List. The
Class A-1 notes are the only notes that will be listed on The London Stock
Exchange pursuant to this prospectus.
Investing in the Class A-1 notes involves risks. See "Risk Factors" on page
24.
<TABLE>
<CAPTION>
Proceeds
Initial Initial Price Underwriting to
Principal Interest to Discounts and Issuer
Balance Rate Public Commissions Trustee
--------- ----------- ------ ------------- --------
<S> <C> <C> <C> <C> <C>
Class A-1 Notes............. $ LIBOR + % % $ $
</TABLE>
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these Class A-1 notes or determined
if this prospectus is accurate or complete. Any representation to the contrary
is a criminal offense.
J.P. Morgan & Co. Deutsche Banc Alex. Brown
Merrill Lynch & Co. Credit Suisse First Boston
The date of this prospectus is , 2000
<PAGE>
Table of Contents
<TABLE>
<CAPTION>
Page
----
<S> <C>
Disclaimers with Respect to Sales to Non-U.S. Investors.................... 4
Australian Disclaimers..................................................... 7
Summary.................................................................... 8
Structural Diagram........................................................ 10
Summary of the Notes...................................................... 11
Structural Overview....................................................... 12
Credit Enhancements....................................................... 12
Liquidity Enhancement..................................................... 14
Redraws and Further Advances.............................................. 14
Hedging Arrangements...................................................... 14
Optional Redemption....................................................... 15
The Housing Loan Pool..................................................... 16
Withholding Tax........................................................... 17
U.S. Tax Status........................................................... 17
Legal Investment.......................................................... 17
ERISA Considerations...................................................... 18
Book-Entry Registration................................................... 18
Collections............................................................... 18
Interest on the Notes and Redraw Bonds.................................... 19
Principal on the Notes and Redraw Bonds................................... 19
Allocation of Cash Flows.................................................. 19
Determination of Available Income Amount on a Distribution Date........... 20
Distribution of Available Income Amount on a Distribution Date............ 21
Determination of Available Principal Amount on a Distribution Date........ 22
Distribution of Available Principal Amount on a Distribution Date......... 23
Risk Factors............................................................... 24
Capitalized Terms.......................................................... 35
U.S. Dollar Presentation................................................... 35
The Issuer Trustee, Commonwealth Bank and the Manager...................... 35
The Issuer Trustee........................................................ 35
Commonwealth Bank......................................................... 36
The Manager............................................................... 36
Description of the Trust................................................... 36
Commonwealth Bank Securitisation Trust Programme.......................... 36
Series 2000-1G Medallion Trust............................................ 37
Other Trusts.............................................................. 37
Description of the Assets of the Trust..................................... 38
Assets of the Trust....................................................... 38
The Housing Loans......................................................... 38
Transfer and Assignment of the Housing Loans.............................. 39
</TABLE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Representations, Warranties and Eligibility Criteria...................... 40
Breach of Representations and Warranties.................................. 42
Substitution of Housing Loan Securities................................... 42
Other Features of the Housing Loans....................................... 42
Details of the Housing Loan Pool.......................................... 43
Housing Loan Information.................................................. 44
Commonwealth Bank Residential Loan Program................................. 51
Origination Process....................................................... 51
Approval and Underwriting Process......................................... 51
Commonwealth Bank's Product Types......................................... 53
Special Features of the Housing Loans..................................... 54
Additional Features....................................................... 56
The Mortgage Insurance Policies............................................ 56
General................................................................... 56
The High LTV Mortgage Insurance Policies.................................. 56
The Master Mortgage Insurance Policy...................................... 60
Description of the Mortgage Insurers...................................... 63
Description of the Class A-1 Notes......................................... 64
General................................................................... 64
Form of the Class A-1 Notes............................................... 64
Distributions on the Notes................................................ 69
Key Dates and Periods..................................................... 70
Calculation of Available Income Amount.................................... 71
Liquidity Facility Advance................................................ 72
Distribution of the Available Income Amount............................... 72
Interest on the Notes..................................................... 74
Determination of the Available Principal Amount........................... 75
Distribution of the Available Principal Amount............................ 77
Allocation of Principal to Class A Notes and Class B Notes................ 77
Redraws and Further Advances.............................................. 79
Principal Charge-offs..................................................... 80
The Interest Rate Swaps................................................... 81
The Currency Swap......................................................... 85
Partial Redemption of the Class A-1 Notes on Distribution Dates........... 92
Withholding or Tax Deductions............................................. 92
Redemption of the Notes for Taxation or Other Reasons..................... 92
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Redemption of the Notes upon an Event of Default.......................... 93
Optional Redemption of the Notes.......................................... 94
Final Maturity Date....................................................... 94
Redemption upon Final Payment............................................. 95
No Payments of Principal in Excess of Stated Amount....................... 95
Termination of the Trust.................................................. 95
Prescription.............................................................. 96
Directions by Class A-1 Noteholders....................................... 97
Amendments to Class A-1 Notes and Class A-1 Note Trust Deed............... 97
Reports to Noteholders.................................................... 99
Description of the Transaction Documents................................... 100
Collections Account and Authorized Short-Term Investments................. 101
Modifications of the Master Trust Deed and Series Supplement.............. 101
The Issuer Trustee........................................................ 103
The Manager............................................................... 107
Limits on Rights of Noteholders and Redraw Bondholders.................... 109
The Class A-1 Note Trustee................................................ 110
The Security Trust Deed................................................... 112
The Liquidity Facility.................................................... 121
The Standby Redraw Facility............................................... 123
Servicing of the Housing Loans............................................ 126
Seller Deposit............................................................ 131
Custody of the Housing Loan Documents..................................... 131
Clean-Up and Extinguishment............................................... 133
The Servicer............................................................... 134
Servicing of Housing Loans................................................ 134
Collection and Enforcement Procedures..................................... 134
Collection and Enforcement Process........................................ 135
Servicer Delinquency Experience........................................... 136
Prepayment and Yield Considerations........................................ 138
General................................................................... 138
Prepayments............................................................... 138
Weighted Average Lives.................................................... 139
Use of Proceeds............................................................ 143
Legal Aspects of the Housing Loans......................................... 143
General................................................................... 143
Nature of Housing Loans as Security....................................... 143
Enforcement of Registered Mortgages....................................... 146
Penalties and Prohibited Fees............................................. 147
Bankruptcy and Insolvency................................................. 147
</TABLE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Environmental............................................................. 148
Insolvency Considerations................................................. 148
Tax Treatment of Interest on Australian Housing Loans..................... 149
Consumer Credit Code...................................................... 149
United States Federal Income Tax Matters................................... 150
General................................................................... 151
Sale of Notes............................................................. 151
Market Discount........................................................... 151
Premium................................................................... 153
Backup Withholding........................................................ 153
Australian Tax Matters..................................................... 153
Payments of Principal, Premiums and Interest.............................. 154
Profit on Sale............................................................ 155
Goods and Services Tax.................................................... 156
Tax Reform Proposals...................................................... 157
Other Taxes............................................................... 159
Enforcement of Foreign Judgments in Australia.............................. 159
Exchange Controls and Limitations.......................................... 160
ERISA Considerations....................................................... 160
Legal Investment Considerations............................................ 161
Available Information...................................................... 162
Ratings of the Notes....................................................... 162
Plan of Distribution....................................................... 163
Underwriting.............................................................. 163
Offering Restrictions..................................................... 164
Listing and General Information............................................ 165
Listing................................................................... 165
Authorization............................................................. 166
Litigation................................................................ 166
Euroclear and Clearstream, Luxembourg..................................... 166
Transaction Documents Available for Inspection............................ 167
Consents to Opinions...................................................... 168
Announcement............................................................... 168
Legal Matters.............................................................. 168
Glossary................................................................... 169
Appendix I................................................................. I-1
Terms and Conditions of the Class A-1 Notes................................ I-1
</TABLE>
3
<PAGE>
Disclaimers with Respect to Sales to Non-U.S. Investors
This section applies only to the offering of the Class A-1 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 Perpetual Trustee Company Limited are to that company in its
capacity as trustee of the Series 2000-1G Medallion Trust, and not its personal
capacity. Securitisation Advisory Services Pty 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 Class A-1 notes in any
country or jurisdiction. The Class A-1 notes may be offered non-publicly in
other jurisdictions. The Class A-1 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. Each underwriter has agreed to comply with all applicable
securities laws and regulations in each jurisdiction in which it purchases,
offers, sells or delivers Class A-1 notes or possesses or distributes this
prospectus or any other offering material. The distribution of this prospectus
and the offer or sale of the Class A-1 notes may be restricted in some
jurisdictions. In particular, there are restrictions on the distribution of
this prospectus and the offer and sale of the Class A-1 notes in the United
Kingdom, Australia and in the United States of America. You should inform
yourself about and observe any of these restrictions. For a description of
further restrictions on offers and sales of the Class A-1 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 Class A-1 notes by or on
behalf of Perpetual Trustee Company Limited or Securitisation Advisory Services
Pty 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:
. Perpetual Trustee Company Limited accepts responsibility for the
information contained in this prospectus. To the best of the
knowledge and belief of Perpetual Trustee Company 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.
. Commonwealth Bank of Australia, as seller, servicer and currency
swap provider, accepts responsibility for the information
contained in "Summary--The Housing Loan Pool" and "--Selected
Housing Loan Pool Data," "The Issuer Trustee, Commonwealth Bank
and the Manager--Commonwealth Bank" and "--the Manager,"
"Description of the Assets of the Trust--The Housing Loans," "--
Other Features of the Housing Loans," "--Details of
4
<PAGE>
the Housing Loan Pool" and "--Housing Loan Information,"
"Commonwealth Bank Residential Loan Program," "Description of the
Class A-1 Notes--The Currency Swap--Commonwealth Bank" and "The
Servicer." To the best of the knowledge and belief of Commonwealth
Bank of Australia, 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.
. The Bank of New York accepts responsibility for the information
contained in "Description of the Transaction Documents--The Class
A-1 Note Trustee--Appointment of Class A-1 Note Trustee" on page
110. To the best of the knowledge and belief of The Bank of New
York, 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.
. Merrill Lynch Capital Services Inc. accepts responsibility for the
information contained in "Description of the Class A-1 Notes--The
Currency Swap--Merrill Lynch Capital Services Inc." on page 89. To
the best of the knowledge and belief of Merrill Lynch Capital
Services Inc., 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.
None of Commonwealth Bank of Australia, in its individual capacity and as
seller, servicer, fixed rate swap provider, basis swap provider, currency swap
provider, liquidity facility provider and standby redraw facility provider,
P.T. Limited, as security trustee, The Bank of New York, as Class A-1 note
trustee, Class A-1 note registrar, principal paying agent, agent bank and
paying agent or Merrill Lynch Capital Services Inc., as currency swap provider,
accepts any responsibility for any information contained in this prospectus and
has not separately verified the information contained in this prospectus and
makes 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 Class A-1 notes except with
respect to the information for which it accepts responsibility in the preceding
four paragraphs.
Except as described in the preceding five paragraphs, Commonwealth Bank
of Australia, in its individual capacity and as seller, servicer, fixed rate
swap provider, basis swap provider, currency swap provider, liquidity facility
provider and standby redraw facility provider, Perpetual Trustee Company
Limited, in its personal capacity and as trustee, Securitisation Advisory
Services Pty Limited, as manager, P.T. Limited, in its personal capacity and as
security trustee, The Bank of New York, as Class A-1 note trustee, Class A-1
note registrar, principal paying agent, agent bank and paying agent, Merrill
Lynch Capital Services Inc., as currency swap provider, and the underwriters do
not recommend that any person should purchase any of the Class A-1 notes and do
not accept any responsibility or make any representation as to the tax
consequences of investing in the Class A-1 notes.
5
<PAGE>
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 Class A-1 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 Class A-1
notes;
. should make their own independent investigation of the trust and
the Class A-1 notes; and
. should seek their own tax, accounting and legal advice as to the
consequences of investing in any of the Class A-1 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 Class A-1 notes. If such information or
representation is given or received, it must not be relied upon as having been
authorized by Perpetual Trustee Company Limited, Securitisation Advisory
Services Pty 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:
. 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
. any other information supplied in connection with the Class A-1
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.
Perpetual Trustee Company Limited's liability to make payments of
interest and principal on the Class A-1 notes is limited to the assets of the
trust available to be applied towards those payments in accordance with the
transaction documents. All claims against Perpetual Trustee Company Limited in
relation to the Class A-1 notes may only be satisfied out of the assets of the
trust and are limited in recourse to the assets of the trust.
6
<PAGE>
Australian Disclaimers
. The Class A-1 notes do not represent deposits or other liabilities
of Commonwealth Bank of Australia or associates of Commonwealth
Bank of Australia.
. The holding of the Class A-1 notes is subject to investment risk,
including possible delays in repayment and loss of income and
principal invested.
. None of Commonwealth Bank of Australia, any associate of
Commonwealth Bank of Australia, Perpetual Trustee Company Limited,
P.T. Limited, The Bank of New York, as Class A-1 note trustee,
Class A-1 note registrar, principal paying agent, agent bank and
paying agent, Merrill Lynch Capital Services Inc., as currency
swap provider, nor any underwriter in any way stands behind the
capital value or the performance of the Class A-1 notes or the
assets of the trust except to the limited extent provided in the
transaction documents for the trust.
. None of Commonwealth Bank of Australia, in its individual capacity
and as seller, servicer, basis swap provider, fixed rate swap
provider, currency swap provider, liquidity facility provider and
standby redraw facility provider, Perpetual Trustee Company
Limited, Securitisation Advisory Services Pty Limited, as manager,
P.T. Limited, as security trustee, The Bank of New York, as Class
A-1 note trustee, Class A-1 note registrar, principal paying
agent, agent bank and paying agent, Merrill Lynch Capital Services
Inc., as currency swap provider, or any of the underwriters
guarantees the payment of interest or the repayment of principal
due on the Class A-1 notes.
. None of the obligations of Perpetual Trustee Company Limited, in
its capacity as trustee of the trust, or Securitisation Advisory
Services Pty Limited, as manager, is guaranteed in any way by
Commonwealth Bank of Australia or any associate of Commonwealth
Bank of Australia or by Perpetual Trustee Company Limited or any
associate of Perpetual Trustee Company Limited.
7
<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
<TABLE>
<C> <S>
Trust:........................... Series 2000-1G Medallion Trust
Issuer Trustee:.................. Perpetual Trustee Company Limited (ACN 000 001
007), in its capacity as trustee of the trust
Manager:......................... Securitisation Advisory Services Pty Limited
(ACN 064 133 946), Level 8, 48 Martin Place,
Sydney,
NSW 2000
612-9378 5293
Class A-1 Note Trustee:.......... The Bank of New York, New York Branch
Security Trustee:................ P.T. Limited (ACN 004 454 666)
Seller:.......................... Commonwealth Bank of Australia (ACN 123 123 124)
Servicer:........................ Commonwealth Bank of Australia
Principal Paying Agent:.......... The Bank of New York, New York Branch
Paying Agent:.................... The Bank of New York, London Branch
Agent Bank:...................... The Bank of New York, New York Branch
Class A-1 Note Registrar:........ The Bank of New York, New York Branch
Residual Unitholder:............. Commonwealth Bank of Australia
Underwriters:.................... J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith,
Incorporated Credit Suisse First Boston
Corporation
Deutsche Bank Securities Inc.
Listing Agent:................... J.P. Morgan Securities Ltd.
Liquidity Facility Provider:..... Commonwealth Bank of Australia
Standby Redraw Facility
Provider:........................ Commonwealth Bank of Australia
</TABLE>
8
<PAGE>
Mortgage Insurers:.......... Housing Loans Insurance Corporation Pty Limited
(ACN 071 466 334), GE Capital Mortgage Insurance
Corporation (Australia) Pty Limited (ACN 081 488
440) and the Commonwealth of Australia
Fixed Rate Swap Provider:... Commonwealth Bank of Australia
Basis Swap Provider:........ Commonwealth Bank of Australia
Currency Swap Providers:.... Merrill Lynch Capital Services Inc.
Commonwealth Bank of Australia
Rating Agencies:............ Fitch IBCA (Australia) Pty Limited
Moody's Investors Service, Inc.
Standard & Poor's Ratings Group
9
<PAGE>
[GRAPHIC OF STRUCTURAL DIAGRAM]
10
<PAGE>
Summary of the Notes
In addition to the Class A-1 notes, the issuer trustee will also issue
Class A-2 notes and Class B notes collateralized by the same pool of housing
loans. The Class A-2 notes and the Class B notes have not been, and will not
be, registered in the United States and are not being offered by this
prospectus. The term "notes" will mean the Class A-1 notes, the Class A-2 notes
and the Class B notes when used in this prospectus. The term "Class A notes"
will mean the Class A-1 notes and the Class A-2 notes when used in this
prospectus. The issuer trustee may in certain circumstances also issue redraw
bonds collateralized by the same pool of housing loans. The redraw bonds will
not be registered in the United States and are not being offered by this
prospectus.
<TABLE>
<CAPTION>
Class A-1 Class A-2 Class B
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Initial
Principal
Balance........ US$985,000,000 A$150,000,000 A$15,000,000
- -----------------------------------------------------------------------------------------------------------------
% of Total...... % % %
- -----------------------------------------------------------------------------------------------------------------
Anticipated
Ratings:
Fitch IBCA
(Australia) Pty
Limited......... AAA AAA AA
Moody's
Investors
Service Inc. .. Aaa Aaa Aa2
Standard &
Poor's Ratings
Group.......... AAA AAA AA
- -----------------------------------------------------------------------------------------------------------------
Interest rate up
to but
excluding the
distribution three-month Australian
date in July, three-month Australian Bank Bill Rate plus a
2007 .......... three-month LIBOR + % Bank Bill Rate plus % margin
- -----------------------------------------------------------------------------------------------------------------
Interest rate
after and
including the
distribution
date in July,
2007 unless on
or after that
distribution
date the issuer
trustee
proposes to
redeem the
notes and
redraw bonds at
their Stated
Amounts,
instead of
their Invested
Amounts, and is
unable to do so
because of a
failure to
obtain the
approval of an
Extraordinary
Resolution of
noteholders and
redraw
bondholders, in
which case the
interest rate
will be the
rate specified three-month Australian
in the line three-month Australian Bank Bill Rate plus a
above.......... three-month LIBOR + % Bank Bill Rate plus % margin
- -----------------------------------------------------------------------------------------------------------------
Interest Accrual
Method......... actual/360 actual/365
- -----------------------------------------------------------------------------------------------------------------
Distribution 12th day or, if the 12th day is not a Business Day, then the next Business Day, of each
Dates.......... of July, October, January and April beginning on July 12, 2000.
- -----------------------------------------------------------------------------------------------------------------
Final Scheduled
Distribution The distribution date falling The distribution date falling The distribution date falling
Date*.......... in April, 2018 in April, 2018 in April, 2020
- -----------------------------------------------------------------------------------------------------------------
Clearance/Settlement.. DTC/Euroclear/Clearstream,
Luxembourg Offered in Australia only
- -----------------------------------------------------------------------------------------------------------------
Cut-Off Date.... Close of business, March 18, 2000
- -----------------------------------------------------------------------------------------------------------------
Closing Date.... On or about March 27, 2000
- -----------------------------------------------------------------------------------------------------------------
Final Maturity
Date........... The distribution date falling in July, 2031
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
* Assuming that there are not prepayments on the housing loans, that the
issuer trustee is not directed to exercise its right of optional redemption
of the notes and the other modeling assumptions contained in "Prepayment and
Yield Considerations" occur.
11
<PAGE>
Structural Overview
Commonwealth Bank established the Medallion Programme pursuant to a
master trust deed dated 8 October 1997 between Securitisation Advisory Services
Pty. Limited as manager and Perpetual Trustee Company Limited as issuer
trustee, as amended from time to time. The master trust deed provides the
general terms and structure for securitization under the program. A series
supplement between the issuer trustee, the manager and Commonwealth Bank, as
seller and servicer, sets out the specific details of the Series 2000-1G
Medallion Trust, 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 Series 2000-1G Medallion Trust 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 obligations of the Series 2000-1G
Medallion Trust. See "Description of the Trust."
The Series 2000-1G Medallion Trust involves the securitization of housing
loans originated by Commonwealth Bank and secured by mortgages on residential
property located in Australia. Commonwealth Bank will equitably assign the
housing loans to the trust, which will in turn issue the floating rate Class A-
1 notes, along with the Class A-2 notes and Class B notes, to fund the
acquisition of the housing loans.
The issuer trustee will grant a floating charge over all of the assets of
the trust under the security trust deed in favor of P.T. Limited, as security
trustee, to secure the trust's payment obligations to the noteholders and its
other creditors. The floating charge is a first ranking charge over the assets
of the trust subject only to a prior interest in favor of the issuer trustee to
secure payment of certain expenses of the trust. A floating charge is a
security interest on 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 an event of default occurs under the security trust
deed (but in some cases will crystalize only over the assets affected by the
event of default). While the charge is a floating charge, the issuer trustee
may deal with the assets of the trust in accordance with the transaction
documents and, if it acts contrary to its duties, may be able to deal with the
assets of the trust in such a way as to prejudice the security trustee's
interest in the assets in breach of the transaction documents. 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 except in accordance
with the transaction documents. For a description of floating charges and
crystallization 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-1 notes will be
supported by the following forms of credit enhancement:
12
<PAGE>
Subordination and Allocation of Losses
The Class B notes will always be subordinated to the Class A-1 and A-2
notes in their right to receive interest payments. Prior to the occurrence of
an event of default and enforcement of the charge under the security trust
deed, the Class B notes will be subordinated to the Class A-1 and A-2 notes in
their right to receive principal payments only in the circumstances and to the
extent described in "Description of the Class A-1 Notes--Allocation of
Principal to Class A Notes and Class B Notes." Following the occurrence of an
event of default and enforcement of the charge under the security trust deed,
the Class B notes will be fully subordinated to the Class A-1 and A-2 notes in
their right to receive principal payments.
The Class B notes will bear all losses on the housing loans before the
Class A-1 and A-2 notes. Any losses allocated to the Class A notes will be
allocated rateably between the Class A-1 and A-2 notes as described in
"Description of the Class A-1 Notes--Principal Charge-Offs." The support
provided by the Class B notes is intended to enhance the likelihood that the
Class A-1 and A-2 notes will receive expected quarterly payments of interest
and principal. The following chart describes the initial support provided by
the Class B notes:
<TABLE>
<CAPTION>
Initial
Credit Support
Classes Support Percentage
- ------- -------------- ----------
<S> <C> <C>
A-1 and A-2.......................................... Class B notes 0.85%
</TABLE>
The initial support percentage in the preceding table is the initial
balance of the Class B notes, as a percentage of the aggregate invested amount
of the notes to be issued on the closing date.
In certain circumstances, the issuer trustee may issue redraw bonds as
described in "Description of the Class A-1 Notes--Redraws and Further
Advances--Issue of Redraw Bonds." If issued, redraw bonds will, prior to the
occurrence of an event of default and enforcement of the charge under the
security trust deed, rank equally with the Class A-1 and A-2 notes in their
right to receive interest payments and will rank in priority to the Class A-1
and A-2 notes in their right to receive principal payments. Any losses
allocated to the Class A notes and redraw bonds will be allocated rateably
between the Class A-1 and A-2 notes and the redraw bonds. Following the
occurrence of an event of default and enforcement of the charge under the
security trust deed, redraw bonds will rank equally with the Class A-1 and A-2
notes in their right to receive both interest and principal payments.
Mortgage Insurance Policies
Mortgage insurance policies issued by or transferred to Housing Loans
Insurance Corporation Pty Limited and the Commonwealth of Australia will
provide full coverage for all principal due on certain of the housing loans
which are generally those which had a loan to value ratio greater than 80% at
the time of origination.
A master mortgage insurance policy issued by GE Capital Mortgage
Insurance Corporation (Australia) Pty Limited will provide full coverage for
all principal due on the balance of the housing loans.
Seller Deposit
If Commonwealth Bank is assigned a short-term deposit credit rating by
Moody's of less than P1 or is assigned a
13
<PAGE>
long term deposit credit rating by Standard & Poor's or Fitch IBCA of less than
BBB, or in each case, a lesser rating as agreed between the manager, the issuer
trustee, Commonwealth Bank and the relevant rating agency, it must deposit an
amount in an account, which may be the collections account, on account of set-
off risk determined with reference to, and which may be less than, the balances
of certain deposit accounts held by borrowers with Commonwealth Bank. The
amount of the seller deposit may be reset on each determination date and
adjusted on the following distribution date and will be reduced to zero if the
seller regains the required credit ratings. The issuer trustee may use the
seller deposit to meet liabilities of the seller in relation to amounts set-off
against the amount due on a housing loan which have not been met within 20
business days of notice from the issuer trustee or the manager.
As an alternative to making the seller deposit, Commonwealth Bank may
implement other arrangements agreed with the rating agencies so that credit
ratings of the notes by those rating agencies will not be adversely affected.
Excess Interest Collections
Any interest collections on the housing loans remaining after payments of
interest on the notes and the redraw bonds 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 Enhancement
To cover possible liquidity shortfalls in the payments of interest on the
notes and redraw bonds, the issuer trustee will, in certain circumstances, be
able to borrow funds under a liquidity facility to be provided by Commonwealth
Bank.
Redraws and Further Advances
Under the terms of each variable rate housing loan, a borrower may,
subject to certain conditions, redraw previously prepaid principal. A borrower
may redraw an amount equal to the difference between the scheduled principal
balance, being its principal balance if no amount had been prepaid, of his or
her loan and the current principal balance of the loan. Commonwealth Bank may
also agree to make further advances to a borrower in excess of the scheduled
principal balance of his or her loan. Commonwealth Bank will be reimbursed for
any redraws, and for any further advances which exceed the scheduled principal
balance of a housing loan by no more than one scheduled monthly instalment on
the housing loan, that it advances to borrowers from principal collections on
the housing loans. Thus, the trust will have less funds available to pay
principal to the notes on the next distribution date, but will have a
corresponding greater amount of assets with which to make future payments. See
"Commonwealth Bank Residential Loan Program," "Description of The Class A-1
Notes--Redraws and Further Advances" and "Description of the Transaction
Documents--The Standby Redraw Facility."
Hedging Arrangements
To hedge its interest rate and currency exposures, the issuer trustee
will enter into the following hedge arrangements:
. a basis swap to hedge the basis risk between the interest rate on the
housing loans which accrue interest at a discretionary variable rate of
interest and the floating rate obligations of the trust, including the
issuer trustee's
14
<PAGE>
payment obligations under the currency swaps;
. a fixed rate swap to hedge the basis risk between the interest rate on the
housing loans which accrue interest at a fixed rate of interest and the
floating rate obligations of the trust, including the issuer trustee's
payment obligations under the currency swaps; and
. two currency swaps to hedge the currency risk and the basis risk between
the collections on the housing loans and the amounts received by the issuer
trustee under the basis swap and the fixed rate swap, which are denominated
in Australian dollars and, in the case of the basis swap and fixed rate
swap, calculated by reference to the Australian bank bill rate, and the
obligation of the trust to pay interest and principal on the Class A-1
notes, which are denominated in U.S. dollars and, in the case of interest,
calculated by reference to LIBOR.
Optional Redemption
The issuer trustee will, if the manager directs it to do so, redeem all
of the notes and redraw bonds on any distribution date falling on or after the
earlier of the distribution date falling in July, 2007 or the date when the
current total outstanding principal balance of the housing loans is less than
10% of the total outstanding principal balance of the housing loans on March
18, 2000. If the issuer trustee redeems the Class A-1 notes, the Class A-1
noteholders will receive a payment equal to the outstanding principal balance
of the Class A-1 notes plus accrued interest on the outstanding principal
balance of the Class A-1 notes, unless noteholders and redraw bondholders
owning 75% of the aggregate outstanding principal balance of the notes and
redraw bonds consent to receiving the outstanding principal balance of the
notes and redraw bonds, as reduced by losses allocated against the notes and
redraw bonds, plus accrued interest on the outstanding principal balance of the
notes and redraw bonds. If the issuer trustee, at the direction of the manager,
proposes to exercise its option to redeem the notes and redraw bonds on a
distribution date during or after July, 2007 at the lesser amount as described
above but is unable to do so because noteholders and redraw bondholders owning
75% of the aggregate outstanding principal balance of the notes and redraw
bonds have not approved the redemption, then the margin on the Class A-1 notes
as from that distribution date will remain at, or revert to, the margin as at
the closing date.
15
<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
terms to stated maturity as of the cut-off date of no more than 30 years.
Commonwealth Bank expects the pool of housing loans to have characteristics
similar to the following:
Selected Housing Loan Pool Data as of the
Close of Business on February 23, 2000
Number of Housing Loans..................................................16,891
Housing Loan Pool Size..........................................A$1,783,124,507
Average Housing Loan Balance..........................................A$105,567
Maximum Housing Loan Balance..........................................A$637,263
Minimum Housing Loan Balance...........................................A$10,505
Total Valuation of the Properties...............................A$2,785,762,472
Maximum Remaining Term to Maturity in months................................356
Weighted Average Remaining Term to Maturity in months.......................289
Weighted Average Seasoning in months.........................................16
Weighted Average Original Loan-to-Value Ratio............................76.56%
Weighted Average Current Loan-to-Value Ratio.............................71.47%
Maximum Current Loan-to-Value Ratio.........................................95%
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 reduced in value, the original loan-
to-value ratio at the cut-off date may not reflect the 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. This addition or removal of housing loans
may result in changes in the housing loan pool characteristics shown in the
preceding table and could affect the weighted average lives and yields of the
notes. The seller will not add or remove 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.
The seller has selected the housing loans from its pool of eligible loans
based on its selection criteria.
16
<PAGE>
Withholding Tax
Payments of principal and interest on the Class A-1 notes will be reduced
by any applicable withholding taxes. The issuer trustee is not obligated to pay
any additional amounts to the Class A-1 noteholders to cover any withholding
taxes. Under present law, the Class A-1 notes will not be subject to Australian
withholding tax if they are issued in accordance with certain prescribed
conditions and they are not held by associates of the issuer trustee or
Commonwealth Bank. The issuer trustee will seek to issue the Class A-1 notes in
a manner which will satisfy the conditions for an exemption from Australian
withholding tax. One of these conditions is that the issuer trustee must not
know or have reasonable grounds to suspect that a Class A-1 note, or an
interest in a Class A-1 note, was being, or would later be, acquired directly
or indirectly by associates of the issuer trustee or Commonwealth Bank.
Accordingly, persons who are associates of the issuer trustee or the
Commonwealth Bank, for the purposes of the Australian Income Tax Assessment Act
1936, should not acquire Class A-1 notes. See "Australian Tax Matters."
If, by virtue of a change in law:
. the issuer trustee will be required to withhold or deduct amounts
from payment of principal or interest to any class of noteholders or
redraw bondholders due to taxes, duties, assessments or governmental
charges; 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, at its sole option, direct the issuer trustee to redeem all of
the notes and redraw bonds. If the issuer trustee redeems the Class A-1 notes,
the Class A-1 noteholders will receive a payment equal to the outstanding
principal balance of the Class A-1 notes plus accrued interest on the
outstanding principal balance of the Class A-1 notes, unless noteholders and
redraw bondholders owning 75% of the aggregate outstanding principal balance of
the notes and redraw bonds consent to receiving the outstanding principal
balance of the notes and redraw bonds, as reduced by losses allocated against
the notes and redraw bonds, plus accrued interest on the outstanding principal
balance of the notes and redraw bonds. However, if the withholding or deduction
relates only to the Class A-1 notes, Class A-1 noteholders owning 75% of the
aggregate outstanding principal balance of the Class A-1 notes may direct the
issuer trustee not to redeem the notes and redraw bonds. See "Description of
the Class A-1 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
manager, the Class A-1 notes will be characterized as debt for U.S. federal
income tax purposes. Each Class A-1 noteholder, by acceptance of a Class A-1
note, agrees to treat the notes as indebtedness. See "United States Federal
Income Tax Matters."
Legal Investment
The Class A-1 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
17
<PAGE>
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 your own legal advisors concerning the status of the Class A-1
notes as legal investments for you. See "Legal Investment Considerations" on
page 161.
ERISA Considerations
In general, the Class A-1 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
The Class A-1 notes will be initially issued in book-entry form only.
Persons acquiring beneficial ownership of interests in the Class A-1 notes will
hold their interests through the Depository Trust Company in the United States
or Clearstream, Luxembourg or Euroclear outside of the United States. Transfers
within the Depository Trust Company, Clearstream, Luxembourg 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 Clearstream, Luxembourg or Euroclear, on the
other hand, will take place in the Depository Trust Company through the
relevant depositories of Clearstream, Luxembourg or Euroclear.
Collections
The issuer trustee will receive for each collection period amounts, which
are known as collections, which include:
. payments of interest, principal, fees and other amounts under the
housing loans, excluding any insurance premiums and related charges
payable to Commonwealth Bank;
. proceeds from the enforcement of the housing loans and mortgages and
other securities relating to those housing loans;
. amounts received under mortgage insurance policies;
. amounts received from the seller or servicer for breaches of
representations or undertakings; and
. interest on amounts in the collections account, other than certain
excluded amounts, and income received on authorized short-term
investments of the trust.
Collections will be allocated between income and principal. Collections
attributable to interest, plus some other amounts, are known as the available
income amount. The collections attributable to principal, plus some other
amounts, are known as the available principal amount.
The available income amount is used to pay certain fees and expenses of
the trust and interest on the notes and redraw bonds. The available principal
amount is used to pay, among other things, principal on the notes and redraw
bonds. If there is an excess of available income amount after payment of such
fees, expenses and interest on the notes and redraw bonds, the excess income
will be used to reimburse any principal charge-offs on the notes, the
18
<PAGE>
redraw bonds and the standby redraw facility. Any remaining excess will be
distributed to the residual unitholder.
Interest on the Notes and Redraw Bonds
Interest on the notes and redraw bonds is payable quarterly in arrears on
each distribution date. The amount available to pay interest on the notes and
redraw bonds will be paid rateably between: the currency swap provider which in
turn will pay interest on the Class A-1 notes; the Class A-2 notes; and the
redraw bonds. Interest will be paid on the Class B notes only after the
payments of interest on the Class A-1 and Class A-2 notes and the redraw bonds
are made. Interest on each class of notes and the redraw bonds is calculated
for each accrual period as follows:
. at the note's or redraw bond's interest rate;
. on the outstanding principal balance of that note or redraw bond at
the beginning of that accrual period; and
. on the basis of the actual number of days in that accrual period and
a year of 360 days for the Class A-1 notes or a year of 365 days for
the Class A-2 notes, the Class B notes and the redraw bonds.
Principal on the Notes and Redraw Bonds
Principal on the notes and redraw bonds will be payable on each
distribution date. The amount available to be paid in respect of principal on
the notes and redraw bonds will be paid first to redraw bondholders with
priority given to redraw bonds with earlier issue dates until the outstanding
principal balance of the redraw bonds, as reduced by losses allocated against
the redraw bonds, is reduced to zero. After payments in respect of the redraw
bonds, the available principal up to a specified maximum amount will be paid
rateably to the currency swap provider, which in turn will pay principal on the
Class A-1 notes, and to the Class A-2 noteholders in respect of principal on
the Class A-2 notes until the outstanding principal balance of the Class A-1
notes and Class A-2 notes respectively, as reduced by losses allocated against
the Class A-1 and A-2 notes, is reduced to zero. The specified maximum amount
will vary in accordance with the stepdown conditions, with the result that, in
some circumstances, and to a limited extent, the Class B notes will receive
principal rateably with the Class A notes. The balance of the available
principal will be paid to Class B noteholders in respect of principal on the
Class B notes until the outstanding principal balance of the Class B notes, as
reduced by losses allocated against the Class B notes, is reduced to zero. On
each distribution date, the outstanding principal balance of each note and
redraw bond will be reduced by the amount of the principal payment made on that
date on that note or redraw bond. The outstanding principal balance of each
note and redraw bond will also be reduced by the amount of principal losses on
the housing loans allocated to that note or redraw bond. If the security trust
deed is enforced after an event of default, the proceeds from the enforcement
will be distributed rateably among all of the Class A notes and redraw bonds
and prior to any distributions to the Class B notes.
Allocation of Cash Flows
On each distribution date, the issuer trustee will pay interest and repay
principal to each noteholder and redraw bondholder to the extent of the
available income amount and available principal amount on that distribution
date available to be applied for these purposes. The charts on the next four
pages summarize the flow of payments.
19
<PAGE>
Determination of Available Income Amount on
a Distribution Date
Finance Charge Collections
Amounts received by the issuer trustee during the preceding
collection period under the housing loans in respect of
interest, fees and certain other charges.
+
Mortgage Insurance Interest Proceeds
Amounts received pursuant to a mortgage insurance policy
which the manager determines should be accounted for on the
preceding determination date in respect of a finance charge
loss.
+
Other Income
Certain other amounts received by the issuer trustee during
the preceding collection period and certain other receipts in
the nature of income (as determined by the manager) received
by the preceding determination date.
+
Liquidity Facility Advance
Any advance to be made under the liquidity facility on the
distribution date.
+
Other Amounts under Support Facilities
Other amounts received from a Support Facility provider which
the manager determines should be included in the available
income amount.
=
Available Income Amount
20
<PAGE>
Distribution of Available Income Amount on
a Distribution Date
On the first distribution date, pay the Accrued Interest
Adjustment to Commonwealth Bank.
(down arrow)
Pay or make provision for taxes of the trust, if any.
(down arrow)
Pay to the issuer trustee its quarterly fee.
(down arrow)
Pay to the security trustee its quarterly fee (if any).
(down arrow)
Pay to the manager its quarterly fee.
(down arrow)
Pay to the servicer its quarterly fee.
(down arrow)
Pay to the liquidity facility provider the quarterly
commitment fee in relation to the liquidity facility.
(down arrow)
Pay rateably to the Support Facility providers amounts due
under Support Facilities except those described above or
below. These may include interest due on the liquidity
facility and payments due under the basis swap and fixed rate
swap.
(down arrow)
Pay or make provision for all expenses of the trust except
those described above or below.
(down arrow)
Pay to the standby redraw facility provider the quarterly
commitment fee in relation to the standby redraw facility.
(down arrow)
Repay to the liquidity facility provider outstanding advances
under the liquidity facility made on prior distribution
dates.
(down arrow)
Pay rateably to:
. the currency swap provider payment under the currency swap
relating to interest due on the Class A-1 notes;
. the Class A-2 noteholders interest due on the Class A-2
notes;
. the redraw bondholders interest due on the redraw bonds.
. the standby redraw facility provider interest due on the
standby redraw facility; and
(down arrow)
Pay to Class B noteholders interest due on the Class B notes.
(down arrow)
Allocate the amount of any unreimbursed principal charge-offs
to the Available Principal Amount for distribution.
(down arrow)
Distribute any remaining amounts to the residual unitholder.
21
<PAGE>
Determination of Available Principal Amount on
a Distribution Date
Principal Collections
Amounts received by the issuer trustee during the preceding
collection period under the housing loans in respect of
principal other than as described below.
+
Mortgage Insurance Principal Proceeds
Amounts received pursuant to a mortgage insurance policy
which the manager determines should be accounted for on the
preceding determination date in respect of a principal loss.
+
Other Principal Amount
Prepayments of principal on the housing loans, amounts
rounded down from the preceding distribution date, certain
other amounts received by the issuer trustee during the
preceding collection period, certain other receipts in the
nature of principal, as determined by the manager, received
by the preceding determination date and, for the first
distribution date, the amount, if any, by which the proceeds
of issue of the notes exceeds the consideration for the
housing loans acquired by the trust.
+
Principal Charge-off Reimbursement
The amount allocated from the Available Income Amount on that
distribution date towards unreimbursed principal charge-offs.
+
Redraw Bond Amount
The proceeds of issue of any redraw bonds during the period
ending on and including the preceding determination date and
commencing on but excluding the determination date before
that.
+
Standby Redraw Facility Advance
Any advance to be made under the standby redraw facility on
the distribution date.
=
Available Principal Amount
22
<PAGE>
Distribution of Available Principal Amount on
a Distribution Date
Redraws and Further Advances
Repay to the seller any redraws and further advances under
the housing loans, other than further advances which cause
the related housing loan to be removed from the trust, made
by the seller during or prior to the preceding collection
period.
(down arrow)
Standby Redraw Facility Principal
Repay to the standby redraw facility provider the principal
outstanding under the standby redraw facility as reduced by
principal charge-offs or increased by reimbursement of
principal charge-offs.
(down arrow)
Redraw Bonds
Repay to the redraw bondholders the Stated Amount of the
redraw bonds.
(down arrow)
Class A Noteholders
Pay an amount equal to or greater than the Class A notes
proportional share of the remaining Available Principal
Amount on that distribution date rateably to:
. the currency swap provider in relation to a repayment to
the Class A-1 noteholders of the Stated Amount of the
Class A-1 notes; and
. the Class A-2 noteholders as a repayment of the Stated
Amount of the Class A-2 notes.
(down arrow)
Class B Noteholders
Repay to the Class B noteholders the Stated Amount of the
Class B notes.
(down arrow)
Residual Unitholder
Distribute any remaining amounts to the residual unitholder.
23
<PAGE>
Risk Factors
The Class A-1 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-1 notes.
There may be other unforeseen reasons why you might not receive principal or
interest on your Class A-1 notes. You should also read the detailed information
set out elsewhere in the prospectus.
<TABLE>
<C> <S>
The Class A-1 notes will be paid . The Class A-1 notes are debt
only from the assets of the trust obligations of the issuer trustee only
in its capacity as trustee of the
trust. The Class A-1 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 Class A-1 notes. The issuer
trustee's other assets will only be
available to make payments on the
Class A-1 notes if the issuer trustee
is negligent, commits fraud or in some
circumstances where the issuer trustee
fails to comply with or breaches an
obligation imposed upon it under the
documents. Therefore, if the assets of
the trust are insufficient to pay the
interest and principal on your Class
A-1 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 possibility . Although Commonwealth Bank could have
of loss because the issuer trustee legally assigned the title to the
does not hold legal title to the housing loans to the issuer trustee,
housing loans initially it will assign only
equitable title to the housing loans
to the issuer trustee. The borrowers
will not be notified of the equitable
assignment. The housing loans will be
legally assigned to the issuer trustee
only upon the occurrence of a
perfection of title 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:
</TABLE>
24
<PAGE>
<TABLE>
<C> <S>
. The issuer trustee's interest in a
housing loan and its related
securities may be impaired by the
subsequent creation of another
interest over the related housing loan
or its related securities by the
seller prior to the issuer trustee
acquiring a legal interest in the
housing loans.
. 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.
. 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.
A borrower's ability to offset may . It is likely that in the event of the
affect the return on your Class A-1 insolvency of Commonwealth Bank,
notes borrowers may be able to offset their
deposits with Commonwealth Bank
against their liability under their
housing loans. If this occurred, the
assets of the trust might be
insufficient to pay you principal and
interest in full.
The seller and servicer may . Before the seller or the servicer
commingle collections on the housing remits collections to the collections
loans with their assets account, 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.
</TABLE>
25
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<TABLE>
<C> <S>
There is no way to predict the . The rate of principal and interest
actual rate and timing of payments payments on pools of housing loans
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 Europe, and thus
will have different rates and timing
of payments from housing loans in the
United States and Europe. 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 and
the ability to redraw principal on the
housing loans will affect the rate and
timing of payments of principal and
interest on your Class A-1 notes.
Unexpected prepayment rates could have
the following negative effects:
. If you bought your Class A-1 notes for
more than their face amount, the yield
on your Class A-1 notes will drop if
principal payments occur at a faster
rate than you expect.
. If you bought your Class A-1 notes for
less than their face amount, the yield
on your Class A-1 notes will drop if
principal payments occur at a slower
rate than you expect.
Losses and delinquent payments on . If borrowers fail to make payments of
the housing loans may affect the interest and principal under the
return on your Class A-1 notes housing loans when due and the credit
enhancement described in this
prospectus is not enough to protect
your Class
A-1 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 Class A-1 notes. Consequently,
the yield on your Class A-1 notes
could be lower than you expect and you
could suffer losses.
</TABLE>
26
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<TABLE>
<C> <S>
Enforcement of the housing loans may . Substantial delays could be
cause delays in payment and losses encountered in connection with the
liquidation of a housing loan, which
may lead to shortfalls in payments to
you to the extent those shortfalls are
not covered by a mortgage insurance
policy.
. 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.
Principal on the redraw bonds will . If redraw bonds are issued they will
be paid before principal on your rank ahead of your Class A-1 notes
Class A-1 notes with respect to payment of principal
prior to enforcement of the charge
under the security trust deed, and you
may not receive full repayment of
principal on your Class A-1 notes.
The Class B notes provide only . The amount of credit enhancement
limited protection against losses provided through the subordination of
the Class B notes to the Class A notes
and redraw bonds is limited and could
be depleted prior to the payment in
full of the Class A notes and redraw
bonds. If the principal amount of the
Class B notes is reduced to zero, you
may suffer losses on your Class A-1
notes.
The mortgage insurance policies may . The mortgage insurance policies are
not be available to cover losses on subject to some exclusions from
the housing loans coverage and rights of refusal or
reduction of claims, some of which are
described in "The Mortgage Insurance
Policies." Therefore, a borrower's
payments that are expected to be
covered by the mortgage insurance
policies may not be covered because of
these exclusions, refusals or
reductions and the issuer trustee may
not have enough money to make full
payments of principal and interest on
your Class A-1 notes.
You may not be able to resell your . The underwriters are not required to
Class A-1 notes assist you in reselling your Class A-1
notes. A secondary market for your
Class A-1 notes may not develop.
</TABLE>
27
<PAGE>
<TABLE>
<C> <S>
If a secondary market does develop,
it might not continue or might not
be sufficiently liquid to allow you
to resell any of your Class A-1
notes readily or at the price you
desire. The market value of your
Class A-1 notes is likely to
fluctuate, which could result in
significant losses to you.
The termination of any of the swaps . The issuer trustee will exchange
may subject you to losses from the interest payments from the
interest rate or currency fixed rate housing loans for
fluctuations variable rate payments based upon
the three-month Australian bank
bill rate. If the fixed rate swap
is terminated or the fixed rate
swap provider fails to perform its
obligations, you will be exposed to
the risk that the floating rate of
interest payable on the Class A-1
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.
. 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, subject to
applicable laws, set the rates at
which interest set-off benefits are
calculated under the mortgage
interest saver accounts at a rate
low enough to cover the payments
owed by the trust or to zero, and
if that does not produce sufficient
income, 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 Class A-1 notes.
. The issuer trustee will receive
payments from the borrowers and the
fixed rate and basis swap providers
on the housing loans in Australian
dollars calculated, in the case of
the swap
</TABLE>
28
<PAGE>
<TABLE>
<C> <S>
providers, by reference to the
Australian bank bill rate, and
make payments to you in U.S.
dollars calculated, in the case of
interest, by reference to LIBOR.
Under the currency swap, the
currency swap providers will
exchange Australian dollar
obligations for U.S. dollars, and
in the case of interest, amounts
calculated by reference to the
Australian bank bill rate for
amounts calculated by reference to
LIBOR. If a currency swap provider
fails to perform its obligations
or if a currency swap is
terminated, the issuer trustee
might have to exchange its
Australian dollars for U.S.
dollars and its Australian bank
bill rate obligations for LIBOR
obligations at a rate that does
not provide sufficient U.S.
dollars to make payments to you in
full.
Prepayments during a collection . If a prepayment is received on a
period may result in you not housing loan during a collection
receiving your full interest period, interest on the housing
payments loan will cease 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, or will be the
subject of interest payable by the
servicer commencing 5 business
days after receipt by the
servicer, that may earn a rate of
interest lower than that paid on
the housing loan. If it is less,
and either the basis swap or the
fixed rate swap has been
terminated, the issuer trustee may
not have sufficient funds to pay
you the full amount of interest
due to you on the next
distribution date.
Payment holidays may result in you . If a borrower prepays principal on
not receiving your full interest his or her housing loan, the
payments borrower is not 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 facility does 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
Class A-1 notes on the next
distribution date.
</TABLE>
29
<PAGE>
<TABLE>
<C> <S>
The proceeds from the enforcement . If the security trustee enforces the
of the security trust deed may be security interest on the assets of the
insufficient to pay amounts due trust after an event of default under
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 Class A-1 notes
and the other secured obligations that
rank ahead of or equally with the Class
A-1 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 Class
A-1 note trustee, the principal paying
agent and any receiver, to the extent
they are owed any fees, the liquidity
facility provider to the extent of any
outstanding cash advance deposit and the
seller to the extent of any unpaid
accrued interest adjustment will
generally be entitled to receive the
proceeds of any sale of the assets of
the trust before you. 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 . If the manager directs the issuer
trustee to redeem the Class A-1 trustee to redeem the notes and redraw
notes early, you could suffer bonds early as described in "Description
losses and the yield on your of the Class A-1 Notes--Optional
Class A-1 notes could be lower Redemption of the Notes" and principal
than expected charge-offs have occurred, noteholders
and redraw bondholders owning at least
75% of the aggregate outstanding amount
of the notes and redraw bonds may
consent to receiving an amount equal to
the outstanding principal amount of the
notes and redraw bonds, less
unreimbursed principal charge-offs, plus
accrued interest. As a result, you may
not fully recover your investment. In
addition, the early retirement of your
Class A-1 notes will shorten their
average lives and potentially lower the
yield on your Class A-1 notes.
Termination payments relating to . If the issuer trustee is required to
a currency swap and the fixed make a termination payment to a currency
rate swap may reduce payments to swap provider or the fixed rate swap
you provider upon the termination of a
currency swap or the fixed rate swap,
respectively, the issuer trustee will
make the termination payment from the
assets of the trust and, prior to
enforcement of the security trust deed,
in priority to payments on
</TABLE>
30
<PAGE>
<TABLE>
<C> <S>
the Class A-1 notes. Thus, if the
issuer trustee makes a termination
payment, there may not be sufficient
funds remaining to pay interest on
your Class A-1 notes on the next
distribution date, and the principal
on your Class A-1 notes may not be
repaid in full.
The imposition of a withholding tax . If a withholding tax is imposed on
will reduce payments to you and may payments of interest on your Class A-1
lead to an early redemption of the notes, you will not be entitled to
Class A-1 notes receive grossed-up amounts to
compensate for such withholding tax.
Thus, you will receive less interest
than is scheduled to be paid on your
Class A-1 notes.
. If the option to redeem the notes and
redraw bonds early, as a result of the
imposition of a withholding or other
tax on any notes or redraw bonds or in
respect of the housing loans, is
exercised and principal charge-offs
have occurred, noteholders and redraw
bondholders owning at least 75% of the
aggregate outstanding amount of the
notes and redraw bonds may consent to
receiving an amount equal to the
outstanding principal amount of the
notes and redraw bonds, less
unreimbursed principal charge-offs,
plus accrued interest. As a result,
you may not fully recover your
investment. In addition, the early
retirement of your Class A-1 notes
will shorten their average lives and
potentially lower the yield on your
Class A-1 notes.
Commonwealth Bank's ability to set . The interest rates on the variable
the interest rate on variable rate rate housing loans are not tied to an
housing loans may lead to increased objective interest rate index, but are
delinquencies or prepayments set at the sole discretion of
Commonwealth Bank. If Commonwealth
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 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 Class A-1
notes.
</TABLE>
31
<PAGE>
<TABLE>
<C> <S>
The features of the housing loans . The features of the housing loans,
may change, which could affect including their interest rates, may be
the timing and amount of payments changed by Commonwealth Bank, either
to you on its 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.
. If Commonwealth Bank changes the
features of the housing loans or fails
to offer desirable features offered by
its competitors, borrowers might 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,
in effect the housing loan will be
repaid and a new housing loan will be
written which will not form part of
the assets of 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 Class A-1 notes.
There are limits on the amount of . If the interest collections during a
available liquidity to ensure collection period are insufficient to
payments of interest to you cover fees and expenses of the trust
and the interest payments due on the
Class A-1 notes on the next
distribution date, the issuer trustee
will request an advance under the
liquidity facility. In the event that
there is not enough money available
under the liquidity facility, you may
not receive a full payment of interest
on that distribution date, which will
reduce the yield on your Class A-1
notes.
A decline in Australian economic . The Australian economy has been
conditions may lead to losses on experiencing a prolonged period of
your Class A-1 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
</TABLE>
32
<PAGE>
<TABLE>
<C> <S>
factors, delinquencies or losses on
the housing loans might increase,
which might cause losses on your
Class A-1 notes.
Consumer protection laws may . 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
you of 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.
. 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 . To the extent that the trust contains
loans in specific geographic a high concentration of housing loans
areas may increase the secured by properties located within
possibility of loss on your a single state or region within
Class A-1 notes 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
losses 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.
</TABLE>
33
<PAGE>
<TABLE>
<C> <S>
You will not receive physical . You will not receive physical notes,
notes representing your Class A-1 except in limited circumstances. This
notes, which can cause delays in could:
receiving
distributions and hamper your . cause you to experience delays in
ability to pledge or resell your receiving payments on the Class A-1
Class A-1 notes notes because the principal paying
agent will be sending distributions on
the Class A-1 notes to DTC instead of
directly to you;
. limit or prevent you from using your
Class A-1 notes as collateral; and
. hinder your ability to resell the Class
A-1 notes or reduce the price that you
receive for them.
Australian tax reform proposals . The Australian federal government
could affect the tax treatment of proposes to reform business taxation as
the trust part of its current tax reform
programme. There are several proposed
measures, including the taxation of
trusts like companies, that, if enacted
in their current form, could impact
upon the tax treatment of the trust.
For more details you should read the
section titled "Australian Tax
Matters--Tax Reform Proposals" below.
</TABLE>
34
<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 169.
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$0.6196 = 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 February 23, 2000. 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 following table sets out the history of the Australian dollar/US
dollar exchange rates for the five most recent years based on the noon buying
rate for cable transfers in Australian dollars as certified for customs
purposes by the Federal Reserve Bank of New York.
<TABLE>
<CAPTION>
Year ended 30 June
----------------------------------
1999 1998 1997 1996 1995
------ ------ ------ ------ ------
(expressed in US dollars per A$1.00)
<S> <C> <C> <C> <C> <C> <C>
At Period End............................ 0.6611 0.6208 0.7550 0.7856 0.7108
Average Rate............................. 0.6273 0.6809 0.7814 0.7628 0.7412
High..................................... 0.6712 0.7537 0.8180 0.8026 0.7778
Low...................................... 0.5550 0.5867 0.7455 0.7100 0.7108
</TABLE>
The Issuer Trustee, Commonwealth Bank and the Manager
The Issuer Trustee
The issuer trustee was incorporated on September 28, 1886 as Perpetual
Trustee Company (Limited) under the Companies Statute of New South Wales as a
public company. The name of the issuer trustee was changed to Perpetual Trustee
Company Limited on December 14, 1971 and the issuer trustee now operates as a
limited liability public company under the Corporations Law of Australia. The
registered office of the issuer trustee is at Level 7, 39 Hunter Street,
Sydney.
The issuer trustee has 4,000,000 ordinary shares issued with a paid
amount of A$1.00 per share. The shares are held by Perpetual Trustees Australia
Limited. The issuer trustee has not agreed to issue any additional shares. As a
result of changes to the Australian Corporations Law, the issuer trustee no
longer has authorised share capital.
The principal activities of the issuer trustee are the provision of
trustee and other commercial services. The issuer trustee is an authorised
trustee corporation, and holds a securities dealers licence, under the
Corporations Law. The issuer trustee and its related companies provide a range
of services including custodial and administrative arrangements
35
<PAGE>
to the funds management, superannuation, property, infrastructure and capital
markets. The issuer trustee and its related companies are leading trustee
companies in Australia with in excess of A$100 billion under administration.
The directors of the issuer trustee are as follows:
<TABLE>
<CAPTION>
Business Principal
Name Address Activities
--------------------------------------------- ----------------- ----------
<S> <C> <C>
Michael Stefanovski.......................... 39 Hunter Street, Director
Sydney NSW 2000
Wayne Wilson................................. 39 Hunter Street, Director
Sydney NSW 2000
Phillip Vernon............................... 39 Hunter Street, Director
Sydney NSW 2000
Gai McGrath.................................. 39 Hunter Street, Director
Sydney NSW 2000
</TABLE>
Commonwealth Bank
Commonwealth Bank is described below in "The Currency Swap--Commonwealth
Bank."
The Manager
The manager, Securitisation Advisory Services Pty. Limited, is a wholly
owned subsidiary of Commonwealth Bank. Its principal business activity is the
management of securitization trusts established under Commonwealth Bank's
Medallion Programme and the management of other securitization programs
established by Commonwealth Bank or its customers. The manager's registered
office is Level 8, 48 Martin Place Sydney New South Wales, Australia.
Description of the Trust
Commonwealth Bank Securitisation Trust Programme
Commonwealth Bank established its Medallion Trust Programme pursuant to a
master trust deed for the purpose of enabling Perpetual Trustee Company
Limited, as trustee of each trust established pursuant to the Medallion Trust
Programme, to invest in pools of assets originated by or purchased from time to
time from Commonwealth 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. The Series
2000-1G Medallion Trust is established by the master trust deed and the series
supplement. The Series 2000-1G Medallion Trust is separate and distinct from
any other trust established under the master trust deed. The assets of the
Series 2000-1G Medallion Trust 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 Series 2000-1G Medallion Trust.
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<PAGE>
Series 2000-1G Medallion Trust
The detailed terms of the trust are set out in the master trust deed and
the series supplement.
The series supplement, which supplements the general framework under the
master trust deed with respect to the trust, does the following:
. specifies the details of the notes, other than for the Class A-1
notes which are contained in the Class A-1 note trust deed and the
Class A-1 note terms and conditions annexed to the Class A-1 notes;
. establishes the cash flow allocation;
. sets out the mechanism for the acquisition from Commonwealth Bank of
the pool of housing loans and contains various representations and
warranties by Commonwealth Bank in relation to the housing loans;
. contains Commonwealth Bank's appointment as initial servicer of the
housing loans and the various powers, discretions, rights,
obligations and protections of Commonwealth Bank in this role;
. specifies a number of ancillary matters associated with the operation
of the trust and the housing pool such as the arrangements regarding
the operation of the collections account, the custody of the title
documents in relation to the housing loans, the fees payable to the
issuer trustee, the manager and the servicer, the perfection of the
issuer trustee's title to the housing loans, the termination of the
trust and the limitation on the issuer trustee's liability; and
. amends the master trust deed to the extent necessary to give effect
to the specific aspects of the trust and the issue of the notes.
Other Trusts
In addition to the Series 2000-1G Medallion Trust, two other trusts are
established in relation to the issue of the Class A-1 notes as follows:
. Class A-1 Trust. The Class A-1 note trustee acts as trustee of the
Class A-1 trust under the Class A-1 note trust deed for the benefit
of Class A-1 noteholders. Under the terms of the Class A-1 note trust
deed the Class A-1 note trustee is able to enforce obligations of the
issuer trustee for the benefit of Class A-1 noteholders and will vote
on behalf of Class A-1 noteholders, based on their directions, at
meetings held under the terms of the master trust deed or the
security trust deed, including upon an event of default and
enforcement under the security trust deed.
. Security Trust. The security trustee acts as trustee of the security
trust for the benefit of noteholders, redraw bondholders and all
other Secured Creditors under the terms of the security trust deed.
The security trustee holds the charge over the assets of the trust
granted by the issuer trustee under the security trust deed for the
benefit of the Secured Creditors. If an event of default occurs under
the
37
<PAGE>
security trust deed and the charge is enforced, the security trustee,
or a receiver appointed by it, will be responsible for realizing the
assets of the trust and the security trustee will be responsible for
distributing the proceeds of realisation to Secured Creditors in the
order prescribed under the security trust deed.
Description of the Assets of the Trust
Assets of the Trust
The assets of the trust will include the following:
. the pool of housing loans, including all:
. principal payments paid or payable on the housing loans at any
time from and after the cut-off date; and
. interest payments paid or payable on the housing loans before or
after the cut-off date (other than the Accrued Interest Adjustment
which is to be paid on the first distribution date to Commonwealth
Bank as seller of the housing loans);
. rights under the mortgage insurance policies issued by or transferred
to Housing Loans Insurance Corporation Pty Limited, GE Capital
Mortgage Insurance (Australia) Pty Limited, and the Commonwealth of
Australia and the individual property insurance policies covering the
mortgaged properties relating to the housing loans;
. rights under the mortgages in relation to the housing loans;
. rights under collateral securities appearing on Commonwealth Bank's
records as securing the housing loans;
. amounts on deposit in the accounts established in connection with the
creation of the trust and the issuance of the notes, including the
collections account, and any instruments in which these amounts are
invested; and
. the issuer trustee's rights under the transaction documents.
The Housing Loans
The housing loans are secured by registered first ranking mortgages on
properties located in Australia. The housing loans are from Commonwealth
Bank's general residential mortgage product pool and have been originated by
Commonwealth Bank in the ordinary course of its business. Each housing loan
will be one of the types of products described in "Commonwealth Bank
Residential Loan Program--Commonwealth Bank's Product Types." Each housing
loan may have some or all of the features described in the "Commonwealth Bank
Residential Loan Program--Special Features of the Housing Loans." The housing
loans are either fixed rate or variable rate loans. 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.
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<PAGE>
Transfer and Assignment of the Housing Loans
The housing loans purchased by the trust on the closing date will be
specified in a sale notice from Commonwealth Bank, in its capacity as seller of
the housing loans, to the issuer trustee.
The seller will equitably assign the housing loans, the mortgages and any
collateral securities from time to time appearing in its records as securing
those housing loans, the mortgage insurance policies and its interest in any
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 the collections, subject to certain
unrelated exceptions, on the housing loans.
If the issuer trustee is actually aware of the occurrence of a Perfection
of Title Event which is subsisting then, unless each rating agency confirms
that a failure to perfect the issuer trustee's title to the housing loans will
not result in a reduction, qualification or withdrawal of the credit ratings
assigned by them to the notes and redraw bonds, the issuer trustee must declare
that a Perfection of Title Event has occurred and the issuer trustee and the
manager must as soon as practicable take steps to perfect the issuer trustee's
legal title to the housing loans. These steps will include the lodgment of
transfers of the mortgages securing the housing loans with the appropriate land
titles office in each Australian State and Territory. The issuer trustee will
hold at the closing date irrevocable powers of attorney from the seller to
enable it to execute such mortgage transfers.
Each housing loan sold to the issuer trustee is secured by an "all
moneys" mortgage, which may also secure other financial indebtedness. The
seller will also sell these other loans to the issuer trustee which will hold
these by way of a separate trust for Commonwealth Bank established under the
series supplement and known as the CBA trust. The other loans are not assets of
the Series 2000-1G Medallion Trust. The issuer trustee will hold the proceeds
of enforcement of the related mortgage, to the extent they exceed the amount
required to repay the housing loan, as trustee for the CBA trust, in relation
to that other loan. The mortgage will secure the housing loan equitably
assigned to the trust in priority to that other loan.
Because the seller's standard security documentation usually secures all
moneys owing by the provider of the security to the seller, it is possible that
a security held by the seller in relation to other facilities provided by it
could also secure a housing loan, even though in the seller's records the
particular security was not taken for this purpose. The seller will only assign
to the issuer trustee in its capacity as trustee of the trust those securities
that appear in its records as intended to secure the housing loans. Other
securities which by their terms technically secure a housing loan but which
were not taken for that purpose, will not be assigned for the benefit of the
noteholders or redraw bondholders.
39
<PAGE>
Representations, Warranties and Eligibility Criteria
The seller will make various representations and warranties to the issuer
trustee as of the cut-off date with respect to each housing loan being
equitably assigned by it to the issuer trustee, including that:
. at the time the seller entered into the related mortgage, the
mortgage complied in all material respects with applicable laws;
. at the time the seller entered into the housing loan, it did so in
good faith;
. at the time the seller entered into the housing loan, the housing
loan was originated in the ordinary course of the seller's business
and since then the seller has dealt with the housing loan in
accordance with its servicing procedures and servicing standards;
. at the time the seller entered into the housing loan, all necessary
steps were taken to ensure that the related mortgage complied with
the legal requirements applicable at that time to ensure that the
mortgage was a first ranking mortgage, subject to any statutory
charges, any prior charges of a body corporate, service company or
equivalent, whether registered or not, and any other prior security
interests which do not prevent the mortgage from being considered to
be a first ranking mortgage in accordance with the servicing
standards, secured over land, subject to stamping and registration in
due course;
. where there is a second or other mortgage in respect of the land the
subject of the related mortgage and the seller is not the mortgagee
of that second or other mortgage, the seller has ensured whether by a
priority agreement or otherwise, that the mortgage ranks ahead in
priority to the second or other mortgage on enforcement for at least
the principal amount plus accrued but unpaid interest of the housing
loan and such other amount determined in accordance with the
servicing standards;
. at the time the housing loan was approved, the seller had received no
notice of the insolvency or bankruptcy of the relevant borrower or
any notice that the relevant borrower did not have the legal capacity
to enter into the relevant mortgage;
. the seller is the sole legal and beneficial owner of the housing loan
and the related securities assigned to the issuer trustee as trustee
of the trust and, to its knowledge, subject to the above paragraph in
relation to second mortgages in respect of which the seller is not
the mortgagee, no prior ranking security interest exists in relation
to its right, title and interest in the housing loan and related
securities;
. each of the relevant mortgage documents, other than any property
insurance policies, which is required to be stamped with stamp duty
has been duly stamped;
. other than in respect of priorities granted by statute, the seller
has not received notice from any person that it claims to have a
security interest ranking in priority to or equal with the security
interest held by the seller and constituted by the relevant mortgage;
40
<PAGE>
. each housing loan is, or will on the closing date be, insured under a
mortgage insurance policy;
. except in relation to fixed rate housing loans or those which can be
converted to a fixed rate or a fixed margin relative to a benchmark
and applicable laws, binding codes and competent authorities binding
on the seller or as may be otherwise provided in the corresponding
mortgage documents, there is no limitation affecting, or consent
required from a borrower to effect, a change in the interest rate
under the housing loan; and
. as of the cut-off date the housing loan satisfies the following
eligibility criteria:
. it is from the seller's general housing loan pool;
. it is secured by a mortgage over land which has erected on or
within it a residential dwelling or unit and the terms of that
mortgage require that dwelling or unit to be insured under a
general home owner's insurance policy;
. it has a loan-to-value ratio based on the outstanding balance of
the housing loan and the most recent valuation of the mortgaged
property, at the commencement of business on the cut-off date,
less than or equal to 95%;
. the amount outstanding, assuming all due payments have been made
by the borrower, will not exceed A$750,000;
. the borrower is required to repay that loan within 30 years of the
cut-off date;
. no payment from the borrower under the housing loan is in arrears
for more than 30 consecutive days;
. the housing loan is not of a type with only interest payable
during the term and with "bullet" repayment of all principal at
the end of its term;
. it is or has been fully drawn;
. it was originated on or after 1 November, 1996;
. the borrower under the housing loan is not an employee of the
seller who is paying a concessional rate of interest under the
housing loan as a result of that employment;
. it was advanced, and is repayable, in Australian dollars.
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 of the issuer trustee involved
in the day to day administration of the trust has actual notice to the
contrary.
41
<PAGE>
Breach of Representations and Warranties
If Commonwealth Bank, the manager or the issuer trustee becomes actually
aware that a representation or warranty from Commonwealth Bank relating to any
housing loan or mortgage was incorrect when given, it must notify the others
within 5 Business Days, and provide to them sufficient details to identify the
housing loan and the reasons for believing the representation or warranty is
incorrect. None of Commonwealth Bank, the manager or the issuer trustee is
under any ongoing obligation to determine whether any representation or
warranty is incorrect when given.
If any representation or warranty is incorrect when given and notice of
this is given not later than 5 Business Days prior to 120 days after the
closing date, and the seller does not remedy the breach to the satisfaction of
the issuer trustee within 5 Business Days of the notice being given, the
housing loan and its related securities will no longer form part of the assets
of the trust and the issuer trustee will hold them for the CBA trust. The
issuer trustee will, however, retain all collections received in connection
with that housing loan from the cut-off date to the date of delivery of the
notice. Commonwealth Bank as seller must pay to the issuer trustee the
principal amount of, and interest accrued but unpaid under the housing loan as
at the date of delivery of the relevant notice within 2 Business Days of that
housing loan ceasing to form part of the trust.
During the 120 days after the closing date, the issuer trustee's sole
remedy for any of the representations or warranties being incorrect is the
right to the above payment from Commonwealth Bank and Commonwealth Bank has no
other liability for any loss or damage caused to the issuer trustee, any
noteholder or any other person, for any of the representations or warranties
being incorrect.
If the breach of a representation or warranty in relation to a housing
loan is discovered after the last day for giving notices in the period 120 days
after the closing date, Commonwealth Bank must pay damages to the issuer
trustee which will be limited to principal amount outstanding and any accrued
but unpaid interest and any outstanding fees in respect of the housing loans.
The amount of the damages must be agreed between the issuer trustee and the
seller or, failing this, be determined by the seller's external auditors.
Substitution of Housing Loan Securities
Under the series supplement, the servicer is empowered in relation to
each housing loan to, amongst other things, substitute any corresponding
mortgage, or collateral security appearing in the seller's records as intending
to secure the housing loan, as long as this is done in accordance with the
relevant mortgage insurance policy and the servicing guidelines.
Other Features of the Housing Loans
The housing loans have the following features.
. Interest is calculated daily and charged in arrears.
. 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, cheques and in most cases automatic transfer.
42
<PAGE>
. They are governed by the laws of one of the following Australian
States or Territories:
. New South Wales;
. Victoria;
. Western Australia;
. Queensland;
. South Australia;
. Northern Territory;
. Tasmania; or
. the Australian Capital Territory.
Details of the Housing Loan Pool
The information in the following tables sets 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
February 23, 2000. 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 add additional eligible housing loans or
remove housing loans.
The seller will not add or remove 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.
43
<PAGE>
Housing Loan Information
Year of Origination (Quarterly)
<TABLE>
<CAPTION>
Total Average
Security Loan
No. of Valuations Total Loan Weighted Balance % by Loan
Year of Origination Accounts (A$) Balance (A$) Average LTV(%) (A$) Balance
- ------------------------ -------- ------------- ------------- -------------- ------- ---------
<S> <C> <C> <C> <C> <C> <C>
1997 Q3................. 663 89,753,722 68,180,683 78.95% 102,837 3.82%
1997 Q4................. 817 113,794,711 88,291,702 79.99% 108,068 4.95%
1998 Q1................. 1,260 182,251,435 148,124,427 83.50% 117,559 8.31%
1998 Q2................. 3,195 538,656,175 346,743,153 72.52% 108,527 19.45%
1998 Q3................. 3,308 561,304,993 347,757,122 69.68% 105,126 19.50%
1998 Q4................. 3,397 577,237,992 343,261,474 67.35% 101,048 19.25%
1999 Q1................. 1,652 272,861,355 166,055,539 68.05% 100,518 9.31%
1999 Q2................. 1,435 242,248,845 145,779,330 67.54% 101,588 8.18%
1999 Q3................. 1,164 207,653,244 128,931,078 69.63% 110,766 7.23%
------ ------------- ------------- ------ ------- -------
Total................... 16,891 2,785,762,472 1,783,124,507 71.47% 105,567 100.00%
====== ============= ============= ====== ======= =======
</TABLE>
44
<PAGE>
Pool Profile by Geographic Distribution(/1/)
<TABLE>
<CAPTION>
Total
Security Weighted Average
No. of Valuations Total Loan Average Loan % by Loan
Region Accounts (A$) Balance (A$) LTV (%) Balance (A$) Balance
- ------------------------ -------- ------------- ------------- -------- ------------ ---------
<S> <C> <C> <C> <C> <C> <C>
Australian Capital
Territory
Metro................... 365 58,405,758 38,592,253 74.61% 105,732 2.16%
New South Wales
Metro................... 2,971 686,877,965 416,840,575 70.11% 140,303 23.38%
Other................... 2,118 313,013,622 210,206,385 73.54% 99,248 11.79%
------ ------------- ------------- ----- ------- ------
Queensland
Metro................... 1,055 183,867,095 113,594,829 69.28% 107,673 6.37%
Non Metro--Gold Coast... 300 58,182,220 32,199,350 62.50% 107,331 1.81%
Non Metro--Sunshine..... 160 26,967,305 15,228,225 63.19% 95,176 0.85%
Non Metro--Other........ 666 97,471,114 60,716,141 69.51% 91,165 3.41%
------ ------------- ------------- ----- ------- ------
Victoria
Metro................... 4,514 711,961,576 452,498,830 70.85% 100,243 25.38%
Other................... 922 103,034,859 71,018,624 73.17% 77,027 3.98%
------ ------------- ------------- ----- ------- ------
Western Australia
Metro................... 2,241 346,128,370 226,311,962 71.96% 100,987 12.69%
Other................... 307 45,590,646 31,565,431 74.34% 102,819 1.77%
------ ------------- ------------- ----- ------- ------
South Australia
Metro................... 667 82,042,288 60,803,264 78.30% 91,159 3.41%
Other................... 162 16,907,619 12,526,226 77.30% 77,322 0.70%
------ ------------- ------------- ----- ------- ------
Northern Territory
Metro................... 89 15,446,735 11,628,267 79.47% 130,655 0.65%
Other................... 32 4,581,000 3,697,393 82.10% 115,544 0.21%
------ ------------- ------------- ----- ------- ------
Tasmania
Metro................... 171 20,228,000 14,431,783 76.03% 84,396 0.81%
Other................... 151 15,056,300 11,264,969 77.10% 74,602 0.63%
------ ------------- ------------- ----- ------- ------
Total................... 16,891 2,785,762,472 1,783,124,507 71.47% 105,567 100.00%
====== ============= ============= ===== ======= ======
</TABLE>
- --------
(1) Geographic distributions are split by State or Territory and by
metropolitan (metro) or country (other). Metro areas comprise the city and
surrounding suburbs of the capital city of each State or Territory and
Other comprise all other areas.
45
<PAGE>
Pool Profile by Balance Outstanding
<TABLE>
<CAPTION>
Weighted
No. of Total Security Total Loan Average Average % by Loan
Current Loan Balance (A$) Accounts Valuations (A$) Balance (A$) LTV(%) Loan Balance (A$) Balance
- ------------------------- -------- --------------- ------------- -------- ----------------- ---------
<S> <C> <C> <C> <C> <C> <C>
0 to 50,000.00 514 76,105,454 20,930,688 41.96% 40,721 1.17%
50,000.01 to 100,000.00 8,886 1,144,881,471 666,166,548 66.88% 74,968 37.36%
100,000.01 to 150,000.00 5,053 881,628,538 612,511,317 74.71% 121,217 34.35%
150,000.01 to 200,000.00 1,589 382,786,134 270,452,080 75.07% 170,203 15.17%
200,000.01 to 250,000.00 539 166,828,387 119,408,019 75.67% 221,536 6.70%
250,000.01 to 300,000.00 198 75,611,100 53,658,763 74.77% 271,004 3.01%
300,000.01 to 350,000.00 72 32,827,888 23,176,928 73.92% 321,902 1.30%
350,000.01 to 400,000.00 20 10,667,000 7,445,450 72.72% 372,272 0.42%
400,000.01 to 450,000.00 12 7,429,000 5,128,392 72.40% 427,366 0.29%
450,000.01 to 500,000.00 4 3,380,000 1,934,980 62.61% 483,745 0.11%
500,000.01 to 550,000.00 1 950,000 505,300 53.19% 505,300 0.03%
550,000.01 to 600,000.00 2 1,707,500 1,168,779 69.26% 584,390 0.07%
600,000.01 to 650,000.00 1 960,000 637,263 66.38% 637,263 0.04%
------ ------------- ------------- ----- ------- ------
Total................... 16,891 2,785,762,472 1,783,124,507 71.47% 105,567 100.00%
====== ============= ============= ===== ======= ======
</TABLE>
46
<PAGE>
Pool Profile by Loan to Value Ratio (LTV)
<TABLE>
<CAPTION>
Total
Security Weighted Average
No. of Valuations Total Loan Average Loan % by Loan
Current LTV (%) Accounts (A$) Balance (A$) LTV(%) Balance (A$) Balance
- ------------------------ -------- ------------- ------------- -------- ------------ ---------
<S> <C> <C> <C> <C> <C> <C>
0 - 10.00............... 62 44,497,989 2,465,420 7.29% 39,765 0.14%
10.01 - 15.00........... 76 29,761,210 3,742,678 12.76% 49,246 0.21%
15.01 - 20.00........... 116 39,375,010 6,967,698 17.82% 60,066 0.39%
20.01 - 25.00........... 191 57,345,986 13,002,326 22.77% 68,075 0.73%
25.01 - 30.00........... 268 74,315,097 20,586,263 27.78% 76,814 1.15%
30.01 - 35.00........... 405 95,411,774 31,190,341 32.75% 77,013 1.75%
35.01 - 40.00........... 524 115,726,051 43,384,307 37.55% 82,794 2.43%
40.01 - 45.00........... 636 130,658,617 55,642,433 42.64% 87,488 3.12%
45.01 - 50.00........... 755 152,353,456 72,302,451 47.50% 95,765 4.05%
50.01 - 55.00........... 855 159,959,355 83,956,721 52.53% 98,195 4.71%
55.01 - 60.00........... 901 158,335,619 91,121,604 57.59% 101,134 5.11%
60.01 - 65.00........... 962 160,202,937 100,195,343 62.57% 104,153 5.62%
65.01 - 70.00........... 1,178 186,706,016 125,978,829 67.50% 106,943 7.07%
70.01 - 75.00........... 1,534 225,385,864 163,849,806 72.73% 106,812 9.19%
75.01 - 80.00........... 3,070 429,344,214 332,760,902 77.53% 108,391 18.66%
80.01 - 85.00........... 1,363 190,416,868 157,743,513 82.86% 115,733 8.85%
85.01 - 90.00........... 2,426 325,568,608 284,863,506 87.52% 117,421 15.98%
90.01 - 95.00........... 1,569 210,397,801 193,370,366 91.92% 123,244 10.84%
------ ------------- ------------- ------ ------- -------
Total................... 16,891 2,785,762,472 1,783,124,507 71.47% 105,567 100.00%
====== ============= ============= ====== ======= =======
</TABLE>
47
<PAGE>
Pool Profile by Year of Maturity
<TABLE>
<CAPTION>
Total
Security
No. of Valuations Total Loan Weighted Average Average Loan % by Loan
Maturity Year Accounts (A$) Balance (A$) LTV (%) Balance (A$) Balance
------------- -------- ------------- ------------- ---------------- ------------ ---------
<S> <C> <C> <C> <C> <C> <C>
2000.................... 1 150,000 100,450 66.97% 100,450 0.01%
2001.................... 2 248,000 182,450 73.88% 91,225 0.01%
2002.................... 4 1,135,000 230,288 23.49% 57,572 0.01%
2003.................... 19 3,348,699 1,339,131 53.29% 70,481 0.08%
2004.................... 27 5,054,500 1,805,755 43.86% 66,880 0.10%
2005.................... 33 5,065,000 2,148,936 49.90% 65,119 0.12%
2006.................... 35 6,385,500 2,354,912 45.32% 67,283 0.13%
2007.................... 57 9,399,785 4,012,007 51.19% 70,386 0.22%
2008.................... 286 54,019,249 21,931,518 48.75% 76,684 1.23%
2009.................... 189 35,296,183 14,050,893 50.58% 74,343 0.79%
2010.................... 113 17,703,255 8,842,492 57.83% 78,252 0.50%
2011.................... 120 19,446,769 9,268,588 56.18% 77,238 0.52%
2012.................... 142 22,363,642 12,020,767 62.51% 84,653 0.67%
2013.................... 609 102,112,767 52,537,909 58.61% 86,269 2.95%
2014.................... 433 72,831,166 38,713,565 59.89% 89,408 2.17%
2015.................... 160 25,624,399 14,231,155 62.49% 88,945 0.80%
2016.................... 222 38,792,879 21,265,028 62.08% 95,788 1.19%
2017.................... 411 59,664,037 39,298,870 71.24% 95,618 2.20%
2018.................... 1,301 223,646,336 129,907,321 65.39% 99,852 7.29%
2019.................... 757 131,855,018 75,234,621 63.92% 99,385 4.22%
2020.................... 223 35,718,270 21,525,840 67.43% 96,528 1.21%
2021.................... 264 41,773,796 25,543,636 68.41% 96,756 1.43%
2022.................... 524 78,100,660 52,642,822 74.36% 100,463 2.95%
2023.................... 1,933 325,703,711 204,472,407 71.22% 105,780 11.47%
2024.................... 887 151,684,573 96,515,880 69.15% 108,812 5.41%
2025.................... 257 44,697,159 28,754,903 72.96% 111,887 1.61%
2026.................... 338 56,153,748 37,714,462 72.89% 111,581 2.12%
2027.................... 1,021 151,908,217 113,779,196 78.70% 111,439 6.38%
2028.................... 4,713 756,068,858 540,951,337 77.02% 114,779 30.34%
2029.................... 1,810 309,811,296 211,747,366 74.39% 116,987 11.88%
------ ------------- ------------- ----- ------- ------
Total................... 16,891 2,785,762,472 1,783,124,507 71.47% 105,567 100.00%
====== ============= ============= ===== ======= ======
</TABLE>
48
<PAGE>
Pool Profile by Property Ownership Type
<TABLE>
<CAPTION>
Number of Total Security Total Loan Weighted Average Loan % by Loan
Loan Purpose Accounts Valuations (A$) Balance (A$) Average LTV (%) Balance (A$) Balance
------------ --------- --------------- ------------- --------------- ------------ ---------
<S> <C> <C> <C> <C> <C> <C>
Owner-occupied.......... 14,543 2,355,967,911 1,521,952,527 72.23% 104,652 85.35%
Investment.............. 2,348 429,794,561 261,171,979 67.01% 111,232 14.65%
------ ------------- ------------- ------ ------- -------
Total................... 16,891 2,785,762,472 1,783,124,507 71.47% 105,567 100.00%
====== ============= ============= ====== ======= =======
</TABLE>
Pool Profile by Amortization
<TABLE>
<CAPTION>
Number of Total Security Total Loan Weighted Average Loan % by Loan
Payment Type Accounts Valuations (A$) Balance (A$) Average LTV (%) Balance (A$) Balance
------------ --------- --------------- ------------- --------------- ------------ ---------
<S> <C> <C> <C> <C> <C> <C>
Principal and Interest.. 16,616 2,715,056,608 1,743,835,729 71.65% 104,949 97.80%
Interest only........... 275 70,705,864 39,288,778 63.30% 142,868 2.20%
------ ------------- ------------- ------ ------- -------
Total................... 16,891 2,785,762,472 1,783,124,507 71.47% 105,567 100.00%
====== ============= ============= ====== ======= =======
</TABLE>
Mortgage Insurer Distribution
<TABLE>
<CAPTION>
Number of Total Security Total Loan Weighted Average Loan % by Loan
Mortgage Insurer Accounts Valuations (A$) Balance (A$) Average LTV (%) Balance (A$) Balance
---------------- --------- --------------- ------------- --------------- ------------ ---------
<S> <C> <C> <C> <C> <C> <C>
GE Capital Mortgage
Insurance Corporation
(Australia) Pty Ltd.... 10,446 1,905,847,689 1,042,463,218 61.57% 99,795 58.46%
Housing Loans Insurance
Corporation Pty Ltd.... 6,445 879,914,783 740,661,289 85.40% 114,920 41.54%
------ ------------- ------------- ------ ------- -------
16,891 2,785,762,472 1,783,124,507 71.47% 105,567 100.00%
====== ============= ============= ====== ======= =======
</TABLE>
49
<PAGE>
Pool Profile by Product
<TABLE>
<CAPTION>
Weighted
No. of Total Security Total Loan Average Average % by Loan
Loan Type Accounts Valuations (A$) Balance (A$) LTV (%) Loan Balance (A$) Balance
- --------- -------- --------------- ------------- -------- ----------------- ---------
<S> <C> <C> <C> <C> <C> <C>
Complete Home Loan
Variable rate........... 7,994 1,309,434,476 817,193,770 70.33% 102,226 45.83%
1 yr fixed.............. 30 3,949,000 2,864,371 76.29% 95,479 0.16%
2 yr fixed.............. 411 60,965,881 42,316,082 75.93% 102,959 2.37%
3 yr fixed.............. 1,795 269,492,352 199,673,608 78.98% 111,239 11.20%
4 yr fixed.............. 328 51,493,646 35,836,898 74.97% 109,259 2.01%
5 yr fixed.............. 2,259 348,610,115 240,372,669 75.14% 106,407 13.48%
------ ------------- ------------- ----- ------- ------
Economiser Home Loan 4,074 741,817,002 444,867,109 67.47% 109,197 24.95%
Total .................. 16,891 2,785,762,472 1,783,124,507 71.47% 105,567 100%
====== ============= ============= ===== ======= ======
Distribution by Current
Interest Rates
<CAPTION>
Weighted
No. of Total Security Total Loan Average Average % by Loan
Current Rate (%) Accounts Valuations (A$) Balance (A$) LTV (%) Loan Balance (A$) Balance
- ---------------- -------- --------------- ------------- -------- ----------------- ---------
<S> <C> <C> <C> <C> <C> <C>
5.00 to 5.50............ 419 80,465,653 53,620,294 72.22% 127,972 3.01%
5.51 to 6.00............ 132 30,863,700 19,894,487 73.29% 150,716 1.12%
6.01 to 6.50............ 5,862 1,073,329,729 669,770,042 70.12% 114,256 37.56%
6.51 to 7.00............ 9,611 1,484,516,984 953,296,134 71.65% 99,188 53.46%
7.01 to 7.50............ 788 106,788,356 78,504,051 78.56% 99,624 4.40%
7.51 to 8.00............ 79 9,798,050 8,039,499 83.07% 101,766 0.45%
------ ------------- ------------- ----- ------- ------
Total .................. 16,891 2,785,762,472 1,783,124,507 71.47% 105,567 100.00%
====== ============= ============= ===== ======= ======
</TABLE>
50
<PAGE>
Commonwealth Bank Residential Loan Program
Origination Process
The housing loans to be assigned to the trust comprise a portfolio of
variable and fixed rate loans which were originated by Commonwealth Bank
through loan applications from new and existing customers. Housing loan
applications are sourced from Commonwealth Bank's branch network, its mobile
sales force, its telephone sales operation and through the internet from
Commonwealth Bank's website at "www.commbank.com.au."
Approval and Underwriting Process
When a housing loan application is received it is processed in accordance
with Commonwealth Bank's approval policies. These policies are monitored and
are subject to continuous review by Commonwealth Bank. Commonwealth 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. In
limited situations discounted interest rates are provided to retain existing
borrowers or to attract certain high income individuals. All borrowers must
satisfy Commonwealth Bank's approval criteria described in this section.
The approval process includes verifying the borrower's application
details, assessing their ability to repay the housing loan and determining the
valuation of the mortgaged property.
Verification of application details
The verification process involves borrowers providing proof of identity,
evidence of income and evidence of a savings pattern. For an employed
applicant, it includes confirming employment and income levels by way of recent
payslips or tax assessments. For a self-employed or business applicant it
includes checking annual accounts and tax assessments. Statements or records of
savings are reviewed to identify any recent additional borrowings or gifts.
Where applicants are refinancing debts from another financial institution, a
check of the last six months' statements of the existing loan is made to
determine the regularity of debt payments. The credit history of any existing
borrowings from Commonwealth Bank is also checked.
Assessing ability to repay
Based upon the application, once verified, an assessment is made of the
applicant's ability to repay the housing loan. This is primarily based on the
applicant's debt servicing to income commitment ratio along with any risk
factors identified in verifying the applicant's income, savings or credit
history. The credit decision is made using one the following processes.
. Credit scorecard. A credit scorecard system automatically and
consistently applies Commonwealth Bank's credit assessment rules
without relying on the credit experience of the inputting officer.
The credit scorecard returns a decision to approve, reject or refer
an application. An application is referred by the system
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if certain risk factors, such as loan size or a high commitment
level, are present which require the application to be assessed by an
experienced loan officer. The credit score determined by this system
is based on historical performance data of Commonwealth Bank's
housing loan portfolio.
. Credit approval authorities. Housing loan applications which are not
credit scored and those which are referred by the credit scorecard
are assessed by a loan officer. Each loan officer is allocated a
credit approval authority based on their level of experience and
past performance. Loans which have certain risk characteristics,
such as loan size or a high commitment level, are assessed by more
experienced loan officers. Commonwealth Bank monitors the quality of
lending decisions and conducts regular audits of approvals.
Borrowers in respect of housing loans may be 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.
Valuation of mortgaged property
For applications which successfully pass the credit decision process,
the maximum allowable loan-to-value ratio, being the ratio of the housing loan
amount to the value of the mortgaged property, is calculated and an offer for
finance is made conditional upon a satisfactory valuation of the mortgaged
property and any other outstanding conditions being satisfied. The amount of
the housing loan that will be approved for a successful applicant is based on
an assessment of the applicant's ability to service the proposed housing loan
and the loan-to-value ratio. For the purposes of calculating the loan-to-value
ratio, the value of a mortgaged property in relation to housing loans to be
assigned to the trust has been determined at origination by one of the
following methods.
. Valuation by valuer. Valuations by qualified professional valuers
are carried out when there is some attribute of the housing loan or
its mortgaged property which, in accordance with the Commonwealth
Bank's policies, requires a professional valuer to undertake the
assessment. These attributes include:
. mortgaged properties with a value in excess of A$1 million;
. properties in areas which are subject to landslip, subsidence or
flooding;
. housing loans which are refinancing loans from another financial
institution; and
. housing loans where mortgage insurance is required upon
origination, unless otherwise approved by a mortgage insurer.
. Valuation on contract price or rates notice. If not valued by a
valuer and for housing loan amounts of less than or equal to
A$200,000 or, for mortgaged properties in the Sydney, Melbourne or
Brisbane metropolitan areas, A$300,000, the value of the mortgaged
property is based on the purchase price under a contract for the
purchase by the borrower of the mortgaged property or on the
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value specified in a local government rates notice (that is,
generally, the unimproved value of the land assessed by a government
valuer) for the mortgaged property.
. Valuation by bank officer. In all other cases, the value of the
mortgaged property is assessed by an officer of the Commonwealth
Bank who visits the mortgaged property and compares it with recent
sales of similar properties in the same area.
The maximum loan-to-value ratio that is permitted for any loan is
determined according to Commonwealth Bank's credit policy and is dependent on
the size of the proposed loan, the nature and location of the proposed
mortgaged property and other relevant factors. Where more than one mortgaged
property is offered as security for a housing loan, the sum of the valuations
for each mortgaged property is assessed against the housing loan amount sought.
Once Commonwealth Bank's formal loan offer has been accepted by the
applicant, one of Commonwealth Bank's five loan processing centres prepares the
loan security documentation and dispatches it to the borrower for execution.
After execution, the documentation, together with signed acknowledgment that
all non-documentary conditions of approval have been met, is returned by the
business unit to the loan processing centre authorizing settlement and funding
of the housing loan to proceed. In certain circumstances, settlement and
funding are completed at the business unit level.
One of the conditions of settlement is that the borrower establish and
maintain full replacement general home owner's insurance on the mortgaged
property. Some of the housing loans have home owner's insurance provided by
Commonwealth Insurance Limited, a subsidiary of Commonwealth Bank. However,
there is no ongoing monitoring of the level of home owner's insurance
maintained by borrowers.
Commonwealth Bank's Product Types
Complete Home Loan
This type of loan is Commonwealth Bank's traditional standard mortgage
product which consists of standard variable rate and fixed rate options. The
standard variable rate set under the Complete Home Loan product is not linked
to any other variable rates in the market. However, it may fluctuate with
market conditions. Borrowers may switch to a fixed interest rate at any time
upon payment of a switching fee as described below in "Switching Interest
Rates." Some of the housing loans will be subject to fixed rates for differing
periods.
In addition, some Complete Home Loans have an interest rate which is
discounted by a fixed percentage to the standard variable rate or fixed rate.
These discounts are offered to members of certain professional groups and to
other high income individuals.
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Economiser Home Loan
This type of loan has a variable interest rate which is not linked to the
standard variable rate for the Complete Home Loan and which may fluctuate
independently of this and other standard variable rates in the market. The
Economiser Home Loan was introduced by Commonwealth Bank to allow borrowers who
did not require a full range of product features to reduce their interest rate.
The interest rate for the Economiser Home Loan historically has been less than
that for the Complete Home Loan. Of the features described below, at present
only those headed "Redraw and Further Advances," "Payment Holiday," "Interest
Offset" and "Early Repayment" are available for Economiser Home Loans. To take
advantage of other features borrowers with Economiser Home Loans must, with the
agreement of Commonwealth Bank and upon payment of a fee, switch their housing
loan to the Complete Home Loan product. However, these or other features may in
the future be offered to borrowers with Economiser Home Loans.
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, Commonwealth 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
Borrowers may elect for a fixed rate, as determined by Commonwealth Bank,
to apply to their housing loan for a period of up to 10 years. These housing
loans convert to the standard variable interest rate at the end of the agreed
fixed rate period unless the borrower elects to fix the interest rate for a
further period.
Any variable rate converting to a fixed rate product will automatically
be matched by an increase in the fixed rate swap to hedge the fixed rate
exposure.
Substitution of Security
A borrower may apply to the servicer to achieve the following:
. substitute a different mortgaged property in place of the existing
mortgaged property securing a housing loan; or
. 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. The servicer must obtain the consent of any
relevant mortgage insurer to the substitution of security or a release of a
mortgage where this is required by the terms of a mortgage insurance policy.
Redraws and Further Advances
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
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relevant housing loan is charged a variable rate of interest. Redraws must be
for at least A$2,000 per transaction. Borrowers may request a redraw at any
time subject to meeting certain credit criteria at that time. The borrower may
be required to pay a fee to Commonwealth Bank in connection with a redraw.
Currently, Commonwealth 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.
In addition, Commonwealth Bank may agree to make a further advance to a
borrower under the terms of a housing loan. Where a further advance does not
result in the previous scheduled principal balance of the housing loan being
exceeded by more than one scheduled monthly instalment, the further advance
will not result in the housing loan being removed from the trust. Where a
further advance does result in the previous scheduled principal balance of the
housing loan being exceeded by more than one scheduled monthly instalment,
Commonwealth Bank must pay to the trust the principal balance of the housing
loan and accrued and unpaid interest and fees on the housing loan. If this
occurs the housing loan will be treated as being repaid and will cease to be an
asset of the trust.
A further advance to a borrower may also be made under the terms of
another loan or as a new loan. These loans may share the same security as a
housing loan assigned to the trust but will be subordinated upon the
enforcement of that security to the housing loan.
Payment Holiday
A borrower is allowed 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 will not cause 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.
A borrower may incur break fees or receive break benefits if an early
repayment or partial prepayment of principal occurs on a fixed rate housing
loan. However, at present fixed rate loans allow for early repayment by the
borrower of up to A$5,000 in any 12 month period without any break fees or
break benefits being applicable.
Combination or "Split" Housing Loans
A borrower may elect to split a housing 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 secured by the same mortgage.
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Interest Offset
Commonwealth Bank offers borrowers an interest offset product known as a
mortgage interest saver account under which the interest accrued on the
borrower's deposit account is offset against interest on the borrower's housing
loan. Commonwealth 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. Commonwealth Bank will pay to the
trust the aggregate of all interest amounts offset. These amounts will
constitute Finance Charge Collections for the relevant period. The mortgage
interest saver account must be in the same name as the housing loan.
If, following a Perfection of Title Event, the trust obtains legal title
to a housing loan, Commonwealth Bank will no longer be able to offer an
interest offset arrangement for that housing loan.
Interest Only Periods
A borrower may also request to make payments of interest only on his or
her housing loan for a period of up to 5 years. If Commonwealth Bank agrees to
such a request it does so conditional upon higher principal repayments applying
upon expiry of the interest only period so that the housing loan is repaid
within its original term.
Additional Features
Commonwealth Bank may from time to time offer additional features in
relation to a housing loan which are not described in the preceding section or
may cease to offer features that have been previously offered and may add,
remove or vary any fees or other conditions applicable to such features.
The Mortgage Insurance Policies
General
The mortgage insurance policies consist of:
. high LTV mortgage insurance policies in relation to individual
housing loans which generally had a loan-to-value ratio of greater
than around 80% at the time that they were originated; and
. a master mortgage insurance policy to provide mortgage insurance in
relation to the balance of the housing loans.
The High LTV Mortgage Insurance Policies
High LTV mortgage insurance policies entered into before December 12,
1997 represent liabilities of the Commonwealth of Australia and are presently
managed on behalf of the Commonwealth of Australia by Housing Loans Insurance
Corporation Pty Ltd of 259 George Street, Sydney NSW Australia. High LTV
mortgage insurance policies entered into on or after December 12, 1997
represent liabilities of Housing Loans Insurance Corporation Pty Ltd only.
References in this section to the mortgage insurer in relation to the high LTV
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mortgage insurance policies entered into before December 12, 1997 are to
Housing Loans Insurance Corporation Pty Ltd acting on behalf of the
Commonwealth of Australia.
The high LTV mortgage insurance policies insure the issuer trustee
against losses in respect of housing loans which generally had a loan-to-value
ratio of greater than around 80% at the time of origination. They were usually
required to be taken out at the commencement of the housing loan and will be
equitably assigned by the seller to the issuer trustee on the closing date.
Each borrower paid a single upfront premium for their respective high LTV
mortgage insurance policy and no further premium is payable by the seller or
the issuer trustee.
Period of Cover
The issuer trustee has the benefit of the high LTV mortgage insurance
policies from the closing date until the policy is canceled by the mortgage
insurer. An individual high LTV mortgage insurance policy may be canceled by
the mortgage insurer in the following circumstances:
. the issuer trustee, without the approval of the mortgage insurer:
. approves any transfer or assignment of the mortgaged property
without a full discharge of the corresponding mortgage and all
moneys secured by that mortgage; or
. takes possession of the mortgaged property, sells it, takes
foreclosure action or appoints any receiver or manager over it;
. where the insured is not a lender approved by the mortgage
insurer, if at any time there is not a servicer approved by the
mortgage insurer; or
. where the mortgage is not a first mortgage, if the issuer trustee
refuses or fails to take action required by the mortgage insurer
to oppose any application by a prior mortgagee for foreclosure
against the mortgagor and the issuer trustee.
Cover for Losses
Under each high LTV mortgage insurance policy, the mortgage insurer
insures the issuer trustee against loss if a default occurs in relation to the
insured housing loan and if one of the events entitling a claim to be made
occurs.
No claim can be made for a loss unless:
. the issuer trustee has sold the mortgaged property;
. the issuer trustee has become the absolute owner of the mortgaged
property by foreclosure;
. the relevant mortgagor has sold the mortgaged property with the
express consent of the issuer trustee given with the prior written
approval of the mortgage insurer;
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. the mortgaged property has been compulsorily acquired or sold by any
government, semi-governmental or local government authority for
public purposes;
. where the mortgage is not a first mortgage, a prior mortgagee has
sold or become absolute owner of the mortgaged property by
foreclosure; or
. the mortgage insurer has agreed to pay a claim.
The loss in respect of a housing loan insured under a high LTV mortgage
insurance policy is calculated by:
. adding together:
. the outstanding principal of the housing loan, after taking into
account all amounts received by the issuer trustee as compensation
for the compulsory acquisition of the mortgaged property or any
rents, profits or proceeds from the mortgaged property and all
amounts received by the issuer trustee under any insurance policy
in relation to loss arising from destruction of or damage to the
mortgaged property and not applied in restoration or repair at the
earliest of:
. the date of completion of the sale or compulsory acquisition
of the mortgaged property;
. the date upon which the issuer trustee became the absolute
owner of the mortgaged property by foreclosure;
. the date upon which a claim is paid by the mortgage insurer;
and
. where the relevant mortgage is not a first mortgage and where
a prior mortgagee has sold the mortgaged property or has taken
foreclosure action, the date on which the issuer trustee
receives from the prior mortgagee so much of the proceeds of
that sale as are payable to the issuer trustee, or where no
part of these proceeds is so payable, the date on which the
issuer trustee becomes aware of completion of the sale or that
the prior mortgagee has become the absolute owner of the
mortgaged property;
. interest paid in respect of the housing loan up to and including
the earliest of the dates referred to in the previous 4 bullet
points at the non-default rate specified in the housing loan;
. amounts recoverable by the issuer trustee under the terms of the
mortgage in respect of:
. amounts properly paid or incurred by the issuer trustee in
respect of the mortgaged property for premiums on general
insurance policies, levies and other charges payable to a body
corporate under the Australian strata title system, rates,
taxes and other statutory charges up to a limit in respect of
land tax as specified by the mortgage insurer;
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. reasonable and necessary legal and other fees and
disbursements paid or incurred by the issuer trustee in
enforcing or protecting its rights under the mortgage;
. amounts not exceeding A$1,000 paid or incurred by the issuer
trustee for repair, maintenance and protection of the
mortgaged property or such greater amounts incurred with the
prior approval of the mortgage insurer; and
. costs related to the sale of the mortgaged property by the
issuer trustee;
. to the extent not otherwise included above, and the mortgage
insurer determines that they should be included, unpaid fines,
penalties, additional interest and other similar amounts which are
properly incurred by the issuer trustee under the mortgage or in
respect of the housing loan; and
. subtracting from the above the aggregate of:
. all amounts received by the issuer trustee under any related
collateral security;
. where the issuer trustee has sold the mortgaged property, the sale
price less any amount required to discharge any prior mortgage;
. where the issuer trustee or a prior mortgagee has taken
foreclosure action, the value of the issuer trustee's interest in
the mortgaged property as agreed between the mortgage insurer and
the issuer trustee; and
. any amount by which a claim may be reduced.
Reduction of Claims
There are a number of restrictions imposed on the insured under each
mortgage insurance policy which may entitle the mortgage insurer to refuse or
reduce the amount of a claim with respect to a housing loan, including:
. the failure of the servicer to be approved by the mortgage insurer;
. the failure of the housing loan contract to require that the related
mortgaged property be insured under a general insurance policy;
. the existence of an encumbrance or other interest which affects or
has priority over the related mortgage;
. the housing loan or related mortgage being materially altered or
modified without the mortgage insurer's consent; and
. the occurrence of other circumstances reducing the insured's rights
under any insured housing loan or related mortgage.
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The Master Mortgage Insurance Policy
Cover
The master mortgage insurance policy is provided by GE Capital Mortgage
Insurance Corporation (Australia) Pty Ltd of 259 George Street, Sydney NSW
Australia. The master mortgage insurance policy insures the issuer trustee
against losses in respect of housing loans which are not insured under a high
LTV mortgage insurance policy. The seller will prior to the closing date pay a
single upfront premium for the master mortgage insurance policy. No further
premium is payable by the seller or the issuer trustee.
Period of Cover
The issuer trustee has the benefit of the master mortgage insurance
policy in respect of each housing loan insured under it from the closing date
until the earliest of:
. the date the housing loan or the mortgage securing the housing loan
is assigned, transferred or mortgaged to another party without the
mortgage insurer's consent;
. the date the housing loan is repaid in full;
. the date the housing loan ceases to be secured by the relevant
mortgage other than where the mortgage is discharged by the operation
of a compulsory acquisition or sale by a government for public
purpose;
. the date the master mortgage insurance policy is canceled in respect
of the housing loan in accordance with the terms of the master
mortgage insurance policy; and
. the maturity date set out in the certificate of insurance issued by
the mortgage insurer in relation to the housing loan or as extended
with the consent of the mortgage insurer or as varied by a court
under the Australian Consumer Credit Code.
Cover for Losses
If a loss date occurs in respect of a housing loan insured under the
master mortgage insurance policy, the mortgage insurer will pay to the issuer
trustee the loss in respect of a housing loan.
A loss date means:
. if a default occurs under the insured loan and the mortgaged property
is sold pursuant to enforcement proceedings, the date on which the
sale is completed;
. if a default occurs under the insured loan and the issuer trustee or
a prior approved mortgagee becomes the absolute owner by foreclosure
of the mortgaged property, the date on which this occurs;
. if a default occurs under the insured loan and the mortgagor sells
the mortgaged property with the prior approval of the issuer trustee
and the mortgage insurer, the date on which the sale occurs;
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. if the mortgaged property is compulsorily acquired or sold by a
government for public purposes and there is a default under the
housing loan, or, where the mortgage has been discharged by the
operation of the compulsory acquisition or sale and there is a
failure in repayment of the housing loan which would have been a
default but for the occurrence of that event, the later of the date
of the completion of the acquisition or sale or 28 days after the
date of the default; or
. where the mortgage insurer has agreed to pay a claim under the master
mortgage insurance policy, the date specified in that agreement.
A "default" in respect of an insured housing loan means any event which
triggers the issuer trustee's power of sale in relation to the mortgaged
property.
The loss payable by the mortgage insurer to the issuer trustee in
respect of an insured loan is the amount outstanding, less the deductions
referred to below, in relation to the housing loan, in each case calculated as
at the loss date.
The amount outstanding under a housing loan is the aggregate of the
following:
. the principal amount outstanding together with any interest, fees or
charges outstanding as at the loss date;
. fees and charges paid or incurred by the issuer trustee; and
. other amounts, including fines or penalties, approved by the mortgage
insurer, which the issuer trustee is entitled to recover under the
housing loan or a related guarantee.
The mortgage insurer may make the following deductions:
. where the mortgaged property is sold, the sale price or where the
mortgaged property is compulsorily acquired, the amount of
compensation, less, in either case, any amount required to discharge
any approved prior mortgage;
. where foreclosure action occurs, the value of the issuer trustee's
interest in the mortgaged property, including the interest of any
unapproved prior mortgagee;
. any amount received by the issuer trustee under any collateral
security;
. any amounts paid to the issuer trustee by way of rents, profits or
proceeds in relation to the mortgaged property or under any insurance
policy not applied in restoration or repair;
. any interest that exceeds interest at the non-default interest rate
payable in relation to the housing loan;
. any fees or charges other than:
. premiums for general insurance policies, levies and other charges
payable to a body corporate under the Australian strata titles
system, rates, taxes and other statutory charges;
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. reasonable and necessary legal and other fees and disbursements of
enforcing or protecting the issuer trustee's rights under the
housing loan, up to a maximum of A$2,000, unless otherwise
approved in writing by the mortgage insurer;
. repair, maintenance and protection of the mortgaged property, up
to a maximum amount of A$1,000, unless otherwise approved in
writing by the mortgage insurer;
. reasonable costs of the sale of the mortgaged property up to a
maximum amount of A$1,000 plus selling agent's commission, unless
otherwise approved in writing by the mortgage insurer, in
addition, if any fees and charges exceed those recoverable under
the Australian Consumer Credit Code less any amount that must be
accounted for to the borrower or the relevant mortgagor they will
be excluded;
. loan establishment fees (if added to the initial amount advanced
under the housing loan); and
. all reasonable fees and costs incurred by the legal department of
the Commonwealth Bank in relation to repayment of the insured
housing loan and/or sale of the mortgaged property;
. losses arising out of damage to the mortgaged property other than:
. fair wear and tear; or
. losses recovered and applied in the restoration or repair of the
mortgaged property or losses recovered under a general insurance
policy and applied to reduce the amount outstanding under the
housing loan; and
. any amounts by which a claim may be reduced under the master mortgage
insurance policy.
Refusal or Reduction in Claim
The mortgage insurer may refuse or reduce the amount of a claim with
respect to a housing loan in certain circumstances, including:
. the mortgaged property is not insured under a general home owner's
insurance policy;
. there is not a servicer approved by the mortgage insurer;
. the housing loan has not been duly registered with the Land Titles
Office in the relevant Australian jurisdiction;
. the issuer trustee does not comply with the obligation to seek the
mortgage insurer's consent under certain circumstances;
. the issuer trustee does not comply with certain reporting
obligations; or
. any item used or relied upon by the issuer trustee is not year 2000
ready as specified in the master mortgage insurance policy.
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The mortgage insurer may also reduce its liability or cancel the master
mortgage insurance policy, in relation to a particular housing loan if the
issuer trustee has failed to comply with its reporting obligations.
Exclusions
The master mortgage insurance policy does not cover any loss arising
from:
. any war or warlike activities;
. the use, existence or escape of nuclear weapons or nuclear
contamination;
. the existence or escape of any pollution or environmentally hazardous
material;
. the fact that the housing loan or any collateral security is void or
unenforceable;
. any failure of the housing loan or collateral security to comply with
the requirements of the Australian Consumer Credit Code; or
. the failure of the issuer trustee's computer systems to be year 2000
ready as specified in the master mortgage insurance policy.
Description of the Mortgage Insurers
Housing Loans Insurance Corporation was an Australian Commonwealth
Government statutory authority established under the Housing Loans Insurance
Act, 1965 of Australia and was, prior to its abolition, Australia's leading
lenders' mortgage insurer with approximately 50% of the Australian lenders'
mortgage insurance market.
In December 1997, the Commonwealth Government:
. transferred the liabilities of the Corporation in relation to
contracts of insurance entered into by the Corporation before 12
December 1997 to the Commonwealth Government;
. appointed a new corporation, Housing Loans Insurance Corporation
Limited, ACN 071 466 334, which has since changed its name to Housing
Loans Insurance Corporation Pty Ltd, to manage these contracts of
insurance on behalf of the Commonwealth of Australia; and
. sold Housing Loans Insurance Corporation Pty Ltd to GE Capital
Australia Limited, ACN 008 562 534, is an indirect wholly owned
subsidiary of the General Electric Company, a corporation chartered
under the laws of the State of New York with its corporate
headquarters in Fairfield, Connecticut.
Housing Loans Insurance Corporation Pty Ltd changed its name to GE
Mortgage Insurance Pty Ltd as of February 14, 2000.
Housing Loans Insurance Corporation Pty Ltd currently has a claims paying
ability rating of AAA by Standard & Poor's and Fitch IBCA and Aa1 by Moody's.
As at December 31, 1998, Housing Loans Insurance Corporation Pty Ltd had
total assets of A$152,105,000, shareholder's equity of A$81,630,000 and
statutory reserves (claims equalisation reserve) of A$692,000.
The Commonwealth of Australia has a local currency rating of AAA by
Standard & Poor's and Fitch IBCA and Aaa by Moody's.
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GE Capital Mortgage Insurance Corporation (Australia) Pty Ltd (ACN 081
488 440) commenced operations in March 1998. It is a wholly owned subsidiary of
GE Capital Australia Limited, whose ultimate parent is General Electric
Company.
GE Capital Mortgage Insurance Corporation (Australia) Pty Ltd has been
given a AA claims paying rating by Standard & Poor's and by Fitch IBCA and a
Aa2 rating by Moody's.
As at December 31, 1998, GE Capital Mortgage Insurance Corporation
(Australia) Pty Ltd had total assets of A$110,641,000, shareholder's equity of
A$102,900,000 and statutory reserves (claims equalisation reserve) of A$73,000.
Housing Loans Insurance Corporation Pty Ltd's and GE Capital Mortgage
Insurance Corporation (Australia) Pty Ltd's ultimate parent is General Electric
Company, a diversified industrial and financial services company with
operations in over 100 countries. General Electric Company is rated AAA by
Standard & Poor's and Fitch IBCA and Aaa by Moody's. General Electric Company
is the indirect owner of lender's mortgage insurance business in the United
States, United Kingdom, Canada and Australia which collectively insure over
US$165 billion of loans globally.
Description of the Class A-1 Notes
General
The issuer trustee will issue the Class A-1 notes on the closing date
pursuant to a direction from the manager to the issuer trustee to issue the
Class A-1 notes and the terms of the master trust deed, the series supplement,
the Class A-1 note trust deed and the underwriting agreement. The Class A-1
notes will be governed by the laws of New South Wales. The following summary
describes the material terms of the Class A-1 notes. The summary does not
purport to be complete and is subject to the terms and conditions of the Class
A-1 notes, which are attached as an appendix to this prospectus on page I-1,
and to the terms and conditions of the Class A-1 note trust deed and the other
transaction documents. The Class A-1 noteholders are bound by, and deemed to
have notice of, all the provisions of the transaction documents. The Class A-1
note trust deed has been duly qualified under the Trust Indenture Act of 1939
of the United States.
Form of the Class A-1 Notes
Book-Entry Registration
The Class A-1 notes will be issued only in permanent book-entry format in
minimum denominations of US$100,000. While the notes are in book-entry format,
all references to actions by the Class A-1 noteholders will refer to actions
taken by the Depository Trust Company, DTC, upon instructions from its
participating organizations and all references in this prospectus to
distributions, notices, reports and statements to Class A-1 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-1 notes
in accordance with DTC's procedures.
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Class A-1 noteholders may hold their interests in the Class A-1 notes
through DTC, in the United States, or Clearstream Banking, societe anonyme,
Clearstream, Luxembourg (previously named 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-1 notes. Clearstream, Luxembourg and Euroclear
will hold omnibus positions on behalf of their respective participants, through
customers' securities accounts in Clearstream, Luxembourg 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.
DTC has advised the manager and the underwriters that it is:
. a limited-purpose trust company organized under the New York Banking
Law;
. a "banking organization" within the meaning of the New York Banking
Law;
. a member of the Federal Reserve System;
. a "clearing corporation" within the meaning of the New York Uniform
Commercial Code; and
. 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 Clearstream, Luxembourg
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 Clearstream,
Luxembourg 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.
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Clearstream, Luxembourg participants and Euroclear participants may not deliver
instructions directly to their system's depositary.
Because of time-zone differences, credits of securities in Clearstream,
Luxembourg 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 Clearstream, Luxembourg participant or Euroclear
participant on that business day. Cash received in Clearstream, Luxembourg or
Euroclear as a result of sales of securities by or through a Clearstream,
Luxembourg participant or a Euroclear participant to a DTC participant will be
received and available on the DTC settlement date.
However, it will not be available in the relevant Clearstream, Luxembourg
or Euroclear cash account until the business day following settlement in DTC.
Purchases of Class A-1 notes held through the DTC system must be made by
or through DTC participants, which will receive a credit for the Class A-1
notes on DTC's records. The ownership interest of each actual Class A-1
noteholder is in turn to be recorded on the DTC participants' and indirect
participants' records. Class A-1 noteholders will not receive written
confirmation from DTC of their purchase. However, Class A-1 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 Class A-1 noteholder entered into the
transaction. Transfers of ownership interests in the Class A-1 notes are to be
accomplished by entries made on the books of DTC participants acting on behalf
of the Class A-1 noteholders. Class A-1 noteholders will not receive notes
representing their ownership interest in offered Class A-1 notes unless use of
the book-entry system for the Class A-1 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 Class A-1 noteholders of the Class A-1 notes; DTC's records reflect only
the identity of the DTC participants to whose accounts the Class A-1 notes are
credited, which may or may not be the actual beneficial owners of the Class A-1
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-1 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 or
the security 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-1 notes are credited on the record date, identified in a
listing attached to the proxy.
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Principal and interest payments on the Class A-1 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-1 noteholders. These payments
will be the responsibility of the DTC participant and not of DTC, the issuer
trustee, the Class A-1 note trustee or the principal paying agent. Payment of
principal and interest to DTC is the responsibility of the issuer trustee,
disbursement of the payments to DTC participants is the responsibility of DTC,
and disbursement of the payments to Class A-1 noteholders is the responsibility
of DTC participants and indirect participants.
DTC may discontinue providing its services as securities depository for
the Class A-1 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.
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.
Clearstream, Luxembourg is a company with limited liability incorporated
under the laws of Luxembourg. Clearstream, Luxembourg holds securities for its
participating organizations and facilitates the clearance and settlement of
securities transactions between Clearstream, Luxembourg participants through
electronic book-entry changes in accounts of Clearstream, Luxembourg
participants, thereby eliminating the need for physical movement of notes.
Transactions may be settled by Clearstream, Luxembourg in any of 36 currencies,
including U.S. dollars.
Clearstream, Luxembourg participants are financial institutions around
the world, including underwriters, securities brokers and dealers, banks, trust
companies, and clearing corporations. Indirect access to Clearstream,
Luxembourg is also available to others, including banks, brokers, dealers and
trust companies that clear through or maintain a custodial relationship with a
Clearstream, Luxembourg 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.
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Euroclear participants include banks, including central banks, securities
brokers and dealers and other professional financial intermediaries. Indirect
access to the 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.
Clearstream, Luxembourg and Euroclear have established an electronic
bridge between their two systems across which their respective participants may
settle trades with each other.
Distributions on the Class A-1 notes held through Clearstream, Luxembourg
or Euroclear will be credited to the cash accounts of Clearstream, Luxembourg
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. Clearstream, Luxembourg or the Euroclear
operator, as the case may be, will take any other action permitted to be taken
by a Class A-1 noteholder on behalf of a Clearstream, Luxembourg 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, Clearstream, Luxembourg and Euroclear have agreed to the
foregoing procedures in order to facilitate transfers of interests in Class A-1
notes among participants of DTC, Clearstream, Luxembourg 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
Class A-1 notes issued in definitive form are referred to in this
prospectus as "definitive notes." Class A-1 notes will be issued as definitive
notes, rather than in book entry form to DTC or its nominee, only if one of the
following events occurs:
. DTC or any replacement clearing agency, advises the Class A-1 note
trustee in writing that DTC or such replacement clearing agency is no
longer willing or able to discharge properly its responsibilities as
depository for the Class A-1 notes, and the manager is not able to
locate a qualified successor;
. the manager, at its option, advises the issuer trustee, the Class A-1
note trustee and DTC or any replacement clearing agency in writing
that Class A-1 definitive notes are to be issued in replacement of
the Class A-1 book-entry notes; or
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. an event of default under the security trust deed has occurred and is
subsisting and the beneficial owners of Class A-1 notes with an
aggregate Invested Amount of greater than 50% of the aggregate
Invested Amount of all the Class A-1 notes, advise the issuer
trustee, through DTC or any replacement clearing agency, that the
continuation of a book-entry system is no longer in the best
interests of the beneficial owners of the Class A-1 notes.
If any of these events occurs, the issuer trustee, at the direction of
the manager, must within 30 days of such event instruct DTC (or its
replacement) to notify all of the beneficial owners of the Class A-1 notes of
the occurrence of the event and of the availability of definitive notes. DTC
will then surrender the Class A-1 book-entry notes and provide the relevant
registration instructions to the issuer trustee. The issuer trustee will then
issue and execute and the Class A-1 note trustee will authenticate and deliver
Class A-1 definitive notes of the same aggregate Invested Amount as those Class
A-1 book-entry notes. Class A-1 notes will be serially numbered if issued in
definitive form.
No noteholder will be entitled to receive a Class A-1 definitive note
representing its interest, except as described in the preceding paragraph.
Definitive notes will be transferable and exchangeable at the specified
offices of the Class A-1 note registrar. The Bank of New York, New York Branch
is the initial Class A-1 note registrar and its initial specified offices are
located at 101 Barclay Street, 21W, New York, New York, 10286 and c/o The Bank
of New York, London Branch, One Canada Square, Corporate Trust Services, 48th
Floor, London E14 5AL, U.K. The Class A-1 note registrar must at all times have
specified offices in London and New York. The Class A-1 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 Class A-1 note registrar will not be required to register the
transfer or exchange of definitive notes within the thirty days preceding a
distribution date or within a period, not exceeding thirty days, specified by
the Class A-1 note trustee prior to any meeting which includes Class A-1
noteholders under the master trust deed or the security trust deed.
Distributions on the Notes
Collections in respect of interest and principal will be received during
each quarterly collection period. Collections include the following:
. payments of interest, principal, fees and other amounts under the
housing loans, excluding any insurance premiums and related charges
payable to Commonwealth Bank;
. proceeds from the enforcement of the housing loans and mortgages and
other securities relating to those housing loans;
. amounts received under mortgage insurance policies;
. amounts received from the seller or servicer for breaches of
representations or undertakings; and
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. interest on amounts in the collections account, other than certain
excluded amounts, and income received on Authorized Short-Term
Investments of the trust, other than certain excluded amounts.
The issuer trustee will make its payments on a quarterly basis on each
distribution date, including payments to noteholders and redraw bondholders,
from collections received during the preceding collection period and from
amounts received under Support Facilities on or prior to the distribution date.
Certain amounts received by the issuer trustee are not distributed on a
distribution date. These amounts include cash collateral lodged with the issuer
trustee by a Support Facility provider or the seller and interest on that cash
collateral.
Key Dates and Periods
The following are the relevant dates and periods for the allocation of
cashflows and their payments.
Accrual Period................... means each period commencing on and
including a distribution date and ending
on but excluding the next distribution
date. However, the first and last accrual
periods are as follows:
. first: the period from and including
the closing date to but excluding the
first distribution date;
. last: the period from and including
the distribution date immediately
preceding the date upon which the
Class A-1 notes are redeemed to but
excluding the date upon which the
Class A-1 notes are redeemed.
Collection Period................ means, with respect to each determination
date, the period commencing on and
including the previous determination date
and ending on but excluding that
determination date. However, the first
collection period is the period from and
including the cut-off date to but
excluding the first determination date.
Determination Date............... The first day of each July, October,
January and April. The first
determination date is July 1, 2000.
Distribution Date................ The 12th day of each of July, October,
January and April, or, if the 12th day is
not a Business Day, then the next
Business Day. The first distribution date
is July 12, 2000.
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Example Calendar
The following example calendar for a quarter assumes that all relevant
days are Business Days:
Collection Period............. July 1 to September 30
Determination Date............ October 1
Distribution Date............. October 12
Accrual Period................ July 12 to October 11
Calculation of Available Income Amount
Payments of interest, fees and amounts otherwise of an income nature,
including payments of interest on the notes and redraw bonds, are made from the
available income amount.
The Available Income Amount for a determination date and the following
distribution date means the aggregate of:
. the Finance Charge Collections for the preceding collection period
which are the following amounts received by or on behalf of the
issuer trustee during that collection period:
. all amounts received in respect of interest, fees, government
charges and other amounts due under the housing loans but not
including principal and any insurance premiums or related charges
payable to the seller;
. all amounts of interest in respect of the housing loans to the
extent that the obligation to pay is discharged by a right of set-
off or right to combine accounts; and
. break costs but only to the extent that these are not paid to the
fixed rate swap provider under the fixed rate swap;
. the Mortgage Insurance Interest Proceeds for that determination date
which are amounts received by the issuer trustee under a mortgage
insurance policy which the manager determines should be accounted for
on that determination date in respect of a loss of interest, fees,
charges and certain property protection and enforcement expenses on a
housing loan;
. Other Income for that collection period which means:
. certain damages or equivalent, including amounts paid by the
seller in respect of breaches of representations or warranties in
relation to the housing loans, in respect of interest or fees on
the housing loans received from the servicer or seller during the
collection period;
. other damages received by the issuer trustee during the collection
period from the servicer, the seller or any other person and
allocated by the manager as other income;
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. amounts received upon a sale of the housing loans in respect of
interest or fees if the trust terminates as described under
"Termination of the Trust";
. interest, if any, on the collections account, other than interest
in respect of cash collateral lodged by a Support Facility
provider or the seller in the collections account, and amounts, if
any, paid by the servicer representing interest on collections
retained by the servicer for longer than 5 business days after
receipt;
. income earned on Authorized Short-Term Investments received during
the collection period other than interest in respect of cash
collateral lodged by a Support Facility provider or the seller in
an account other than the collections account;
. certain tax credits; and
. other receipts in the nature of income, as determined by the
manager, received by the determination date;
. any advance under the liquidity facility due to be made on the
distribution date in order to meet an income shortfall; and
. any other amounts received from a Support Facility provider on or
prior to the distribution date which the manager determines should be
included in the Available Income Amount.
Based upon the margins payable by Commonwealth Bank on the basis swap and
the fixed rate swap, and assuming that payments are made when due under the
housing loans, it is expected that there will be sufficient Available Income
Amount to cover all the known obligations of the trust on each distribution
date, including interest on the notes, plus a buffer.
Liquidity Facility Advance
If the manager determines on any determination date that there is an
income shortfall, the manager must direct the issuer trustee to make a drawing
under the liquidity facility in an amount equal to the lesser of the amount of
the income shortfall and the unutilized portion of the liquidity limit, if any.
An income shortfall is the amount by which the payments to be made from
the Available Income Amount, other than reimbursement of principal charge-offs
or payment to the residual unitholder, exceed the aggregate of the Finance
Charge Collections, the Mortgage Insurance Interest Proceeds and Other Income
in relation to that distribution date.
Distribution of the Available Income Amount
On each distribution date, the Available Income Amount for that
distribution date is allocated in the following order of priority:
. first, to payment of any taxes in relation to the trust including
government charges paid by the servicer for the issuer trustee;
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. second, payment of the issuer trustee's fee;
. third, payment of the security trustee's fee;
. fourth, payment of the manager's fee;
. fifth, payment of the servicer's fee;
. sixth, payment of the commitment fee payable under the liquidity
facility;
. seventh, rateably towards payment of any amounts due to a support
facility provider under a Support Facility, including interest due on
advances outstanding under the liquidity facility and payments under
the fixed rate swap and the basis swap, but not including any
payments under support facilities detailed above or below or which
are properly payable from the Principal Amount;
. eighth, payment of all costs, charges and expenses incurred by the
issuer trustee in administering the trust, other than as detailed
above or below or which are payable from the Principal Amount;
. ninth, payment of the commitment fee payable under the standby redraw
facility;
. tenth, repayment of any liquidity facility advance made on or prior
to the previous distribution date and then outstanding;
. eleventh, while a currency swap remains in place for Class A-1 notes
and payments are being made under it by the issuer trustee, rateably
between themselves:
. payment to the currency swap providers of the A$ Class A-1
Interest Amount in relation to that distribution date and any
unpaid A$ Class A-1 Interest Amounts from prior distribution dates
and interest on those unpaid amounts, in return for which the
currency swap providers will pay the principal paying agent for
distribution to the Class A-1 noteholders as described in "The
Currency Swap--Interest Payments" below;
. payment of interest in relation to the Class A-2 notes for the
accrual period ending on that distribution date and any unpaid
interest in relation to the Class A-2 notes from prior
distribution dates and interest on that unpaid interest;
. payment of interest in relation to the redraw bonds for the
accrual period ending on that distribution date and any unpaid
interest in relation to the redraw bonds from prior distribution
dates and interest on that unpaid interest; and
. payment of the interest due on that distribution date under the
standby redraw facility and any interest remaining unpaid from
prior distribution dates and interest on that unpaid interest;
. twelfth, while a currency swap remains in place for Class A-1 notes
and payments are being made under it by the issuer trustee, payment
of interest in relation to the Class B notes for the accrual period
ending on that distribution
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date and any unpaid interest in relation to the Class B notes from
prior distribution dates and interest on that unpaid interest;
. thirteenth, while a currency swap remains in place for Class A-1
notes and payments are being made under it by the issuer trustee, to
reimburse any principal charge-offs as an allocation to the Principal
Amount on that distribution date; and
. fourteenth, while a currency swap remains in place for Class A-1
notes and payments are being made under it by the issuer trustee, to
the residual unitholder.
The issuer trustee shall only make a payment under the bullet points
above to the extent that any Available Income Amount remains from which to make
the payment after amounts with priority to that payment have been distributed.
On the first distribution date, prior to any allocation or payment
described above, the issuer trustee will first apply the Available Income
Amount to pay to the seller the Accrued Interest Adjustment.
Interest on the Notes
Calculation of interest payable on the notes
The period that any notes or redraw bonds accrue interest is divided into
accrual periods. The first accrual period in respect of the notes commences on
and includes the closing date and ends on but excludes the first distribution
date. Each subsequent accrual period commences on and includes a distribution
date and ends on but excludes the following distribution date. The Class A-1
notes accrue interest from and including the closing date to but excluding the
day upon which the final accrual period ends. The final accrual period for the
Class A-1 notes will end on, but exclude, the earlier of: the date upon which
the Stated Amount of the Class A-1 notes is reduced to zero; the date upon
which the Class A-1 notes are redeemed, unless upon presentation payment is
improperly withheld in which case interest will continue to accrue until the
earlier of the day on which the noteholder receives all sums due in respect of
the Class A-1 note or the seventh day after notice is given to the noteholder
that, where this is required, upon presentation of the Class A-1 note such
payment will be made, provided that payment is in fact made; and the date upon
which the Class A-1 note is deemed to be redeemed.
Up to, but excluding, the distribution date falling in July, 2007, the
interest rate for the Class A-1 notes for each accrual period will be equal to
LIBOR for that accrual period plus %. If the issuer trustee has not redeemed
or attempted to redeem all of the Class A-1 notes by the distribution date
falling in July, 2007, then subject to the following, the interest rate for
each accrual period commencing on or after that date will be equal to LIBOR for
that accrual period plus %.
If the issuer trustee, at the direction of the manager, proposes to
exercise its option to redeem the notes and redraw bonds on a distribution date
on or after July, 2007 at their Stated Amount rather than their Invested
Amount, as described in "Optional Redemption of
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the Notes" below, but is unable to do so because, following a meeting of
noteholders and redraw bondholders convened under the provisions of the
security trust deed by the manager for this purpose, the noteholders and redraw
bondholders have not approved by an Extraordinary Resolution the redemption of
the notes and redraw bonds at their Stated Amounts, then the interest rate for
the Class A-1 notes for each accrual period commencing on or after that
distribution date will be equal to LIBOR for that accrual period plus .
The interest rates for the Class A-2 notes and the Class B notes for an
accrual period will be equal to the Bank Bill Rate for that accrual period plus
the relevant margin applicable to those notes. The margin applicable to the
Class A-2 notes will increase from the accrual period commencing on the
distribution date in July, 2007 if the Class A-2 notes have not been redeemed
by that date provided that the margin will not increase, or will revert to the
lower margin, if the issuer trustee is unable to exercise its option to redeem
the notes and redraw bonds at their Stated Amounts as described in the
preceding paragraph. If redraw bonds are issued the interest rate applicable to
them will be equal to the Bank Bill Rate plus a margin determined at the time
of their issue. The interest rates for the Class A-2 notes, the Class B notes
and the redraw bonds, if any, for each accrual period are calculated by the
manager.
With respect to any distribution date, interest on a note or any redraw
bond will be calculated as the product of:
. the Invested Amount of that note or redraw bond as of the first day
of that accrual period, after giving effect to any payments of
principal made with respect to such note or redraw bond on such day;
. the interest rate for such note or redraw bond for that accrual
period; and
. a fraction, the numerator of which is the actual number of days in
that accrual period and the denominator of which is 360 days for the
Class A-1 notes, or 365 days for the Class A-2 notes, the Class B
notes and any redraw bonds.
Interest will accrue on any unpaid interest in relation to a note or
redraw bond at the interest rate that applies from time to time to that note or
redraw bond until that unpaid interest is paid.
Calculation of LIBOR
On the second business day in London and New York before the beginning of
each accrual period, the agent bank will determine LIBOR for the next accrual
period.
Determination of the Available Principal Amount
Payments of principal, including repayment of principal on the notes and
redraw bonds, are made from the Available Principal Amount. The Available
Principal Amount for a determination date and the following distribution date
means the aggregate of:
. the Principal Collections for the preceding collection period which
are all amounts received during the collection period in respect of
principal on the
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housing loans, except as described below, and includes principal to
the extent that an obligation to pay principal on a housing loan is
discharged by a right of set-off or right to combine accounts;
. the Mortgage Insurance Principal Proceeds for the determination date
which are all amounts received by the issuer trustee under a mortgage
insurance policy which the manager determines should be accounted for
on the determination date in respect of a loss of principal and
certain property restoration expenses on a housing loan;
. Other Principal Amounts which are amounts received in respect of
principal on the housing loans including:
. proceeds of the liquidation of a housing loan following
enforcement, other than amounts included in Finance Charge
Collections, received during the collection period;
. principal prepayments under the housing loans received during the
collection period;
. certain damages or equivalent, including amounts paid by the
seller in respect of breaches of representations or warranties in
relation to the housing loans, in respect of principal received
from the servicer or the seller during the collection period;
. other damages received by the issuer trustee during the collection
period from the servicer, the seller or any other person and
allocated by the manager as Other Principal Amounts;
. amounts received upon a sale of the housing loans in respect of
principal if the trust terminates as described under "Termination
of the Trust";
. in relation to the first determination date, the amount, if any,
by which subscription proceeds of the notes exceed the aggregate
of the principal outstanding on the housing loans as at the cut-
off date;
. any amount rounded down on payments of principal on the previous
distribution date; and
. any other receipts in the nature of principal as determined by the
manager which have been received by the determination date;
. Principal Charge-Off Reimbursement which is the excess of the
Available Income Amount for the determination date available to be
applied towards unreimbursed principal charge-offs;
. Standby Redraw Facility Advance which is any advance to be made under
the standby redraw facility on that distribution date; and
. Redraw Bond Amount which is the total subscription proceeds of redraw
bonds issued on the determination date or during the collection
period, but after the immediately preceding determination date.
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Distribution of the Available Principal Amount
On each distribution date, the Available Principal Amount for that
distribution date is allocated in the following order of priority:
. first, repayment to the seller of any redraws and further advances
under the housing loans, other than further advances which cause the
related housing loan to be removed from the trust, made during or
prior to the collection period then ended and which are then
outstanding;
. second, repayment to the standby redraw facility provider of the
principal outstanding under the standby redraw facility as reduced by
any principal charge-offs or increased by any reimbursement of
principal charge-offs on or prior to that distribution date;
. third, equally amongst the redraw bonds in order of their issue until
their Stated Amounts are reduced to zero on the basis that a redraw
bond receives no principal repayment until the Stated Amount of all
earlier issued redraw bonds has been reduced to zero;
. fourth, while a currency swap remains in place for Class A-1 notes
and payments are being made under it by the issuer trustee, to the
currency swap providers in respect of principal payments on the Class
A-1 notes and amongst the Class A-2 notes and the Class B notes in
the manner described below under the heading "Allocation of Principal
to Class A Notes and Class B Notes";
. fifth, while a currency swap remains in place for Class A-1 notes and
payments are being made under it by the issuer trustee, to the
residual unitholder.
The issuer trustee shall only make a payment under the bullet points
above to the extent that any Available Principal Amount remains from which to
make the payment after amounts with priority to that payment have been
distributed.
Allocation of Principal to Class A Notes and Class B Notes
That part of the Available Principal Amount which is available on a
distribution date for repayment of the Stated Amount of the Class A and Class B
notes is applied as follows.
The amount available for repayment of the Stated Amount of the notes,
under the fourth bullet point above, is divided between Net Principal
Collections and Net Unscheduled Principal. The Net Principal Collections are
the remaining Principal Collections available after prior applications in the
preceding three bullet points and the Net Unscheduled Principal is the
remaining Mortgage Insurance Principal Proceeds, Other Principal Amounts,
Principal Charge-off Reimbursement, Standby Redraw Facility Advance and Redraw
Bond Amount after prior applications in the preceding three bullet points. This
is determined on the basis that in applying the Available Principal Amount the
issuer trustee first applies the Mortgage Insurance Principal Proceeds, the
Other Principal Amounts, the Principal Charge-off Reimbursement, the Standby
Redraw Facility Advance and the Redraw Bond Amount and then, only after these
have been applied in full, applies the Principal Collections.
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The amount to be applied towards repayment of the Stated Amount of the
Class A notes on a distribution date is determined as follows:
The amount to be applied to repayment is:
<TABLE>
<S> <C> <C> <C> <C> <C>
((NPC+NUP)X SACAN) + (NUPX SACBN XSP)
--------- ----------
SAN SAN
</TABLE>
where:
. NPC is the Net Principal Collections;
. NUP is the Net Unscheduled Principal;
. SACAN is the aggregate Stated Amount of the Class A notes on the
preceding determination date, converted, in the case of the Class A-1
notes, to Australian dollars at the A$ Exchange Rate;
. SACBN is the aggregate Stated Amount of the Class B Notes on the
preceding determination date;
. SAN is the aggregate Stated Amount of all notes on the preceding
determination date, converted, in the case of the Class A-1 notes, to
Australian dollars at the A$ Exchange Rate; and
. SP is the Stepdown Percentage.
The effect of the above calculation is that Class A noteholders receive
their proportional share of the Net Principal Collections and the Net
Unscheduled Principal (based upon the Stated Amounts of the notes) and also
receive the Stepdown Percentage (which may vary between 0% and 100%) of the
Class B noteholders' proportional share of the Net Unscheduled Principal. The
remaining part of the Available Principal Amount is applied towards repayment
of the Stated Amount of the Class B notes.
The amount to be applied towards repayment of the Stated Amount of the
Class A notes on the distribution date is applied rateably based upon the
aggregate Stated Amounts of the Class A-1 and A-2 notes converted, in the case
of the Class A-1 notes, to Australian dollars at the A$ Exchange Rate, towards:
. payment to the currency swap providers in respect of repayment of the
Stated Amount of the Class A-1 notes;
. payment equally amongst the Class A-2 notes in reduction of the
Stated Amount of the Class A-2 notes,
until the Stated Amount of the Class A notes is reduced to zero.
The balance of the Net Principal Collections and the Net Unscheduled
Principal is applied on that distribution date equally amongst the Class B
notes in reduction of the Stated Amount of the Class B notes until the Stated
Amount of the Class B notes is reduced to zero.
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Redraws and Further Advances
The seller may make redraws and further advances to borrowers under the
housing loans. The seller is entitled to be reimbursed by the issuer trustee
for redraws and further advances other than further advances which cause the
related housing loan to be removed from the trust. The seller will be
reimbursed from the Available Principal Amount including proceeds of advances
under the standby redraw facility and proceeds from the issue of redraw bonds.
Standby Redraw Facility
If the manager determines that there is a redraw shortfall on a
determination date, the manager may direct the issuer trustee in writing to
make a drawing under the standby redraw facility on a distribution date equal
to the lesser of the redraw shortfall and the unutilized portion of the redraw
limit, if any.
A redraw shortfall is the amount by which the redraws and further
advances to be repaid to the seller on that distribution date exceed the
aggregate of the Principal Collections, the Mortgage Insurance Principal
Proceeds, the Other Principal Amounts and the Principal Charge-off
Reimbursement in relation to that distribution date.
Issue of Redraw Bonds
If prior to a determination date the manager considers that the aggregate
of the Principal Collections, the Mortgage Insurance Principal Proceeds, the
Other Principal Amounts, the Principal Charge-off Reimbursement in relation to
the determination date and the Standby Redraw Facility Advance that will be
available to be made with respect to the following distribution date are likely
to be insufficient to pay in full the manager's estimate of:
. the redraws and further advances to be repaid to the seller on that
distribution date; and
. the outstanding principal under the standby redraw facility as
reduced by any principal charge-offs or increased by any
reimbursement of principal charge-offs prior to that distribution
date,
the manager may direct the issuer trustee to issue redraw bonds. The manager
must not direct the issuer trustee to issue redraw bonds unless it considers
that on the following distribution date, taking into account that issue of
redraw bonds and any repayments of principal and principal charge-offs or
reimbursement of principal charge-offs on the redraw bonds expected on that
distribution date, the aggregate Stated Amount of all redraw bonds will not
exceed on that distribution date A$50,000,000 or such other amount agreed
between the manager and the rating agencies and notified to the issuer trustee.
Before issuing any redraw bonds, the issuer trustee must receive written
confirmation from each rating agency that the proposed issue of redraw bonds
will not result in a reduction, qualification or withdrawal of any credit
rating assigned by that rating agency to a
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note or redraw bond. The redraw bonds will be denominated in Australian dollars
and issued only in Australia.
Principal Charge-offs
In certain circumstances, amounts which are unrecoverable under a housing
loan will be absorbed by reducing the Stated Amount of a note or redraw bond or
by reducing the principal outstanding in respect of the standby redraw
facility. That reduction of the Stated Amount of a note or redraw bond or the
principal outstanding of the standby redraw facility is referred to as a
principal charge-off.
Application of Principal Charge-Offs
If the manager determines on a determination date that a principal loss
should be accounted for in respect of a housing loan, after taking into account
proceeds of enforcement of that housing loan and its securities, any relevant
payments under a mortgage insurance policy or damages from the servicer or the
seller, that principal loss will be allocated in the following order:
. first, equally amongst the Class B notes until the Stated Amount of
the Class B notes is reduced to zero; and
. secondly, rateably amongst the following according to, in the case of
the notes or redraw bonds, their Stated Amount converted, in the case
of the Class A-1 notes, to Australian dollars at the A$ Exchange
Rate:
. the Class A-1 notes;
. the Class A-2 notes;
. the redraw bonds; and
. the principal outstanding of the standby redraw facility,
until the Stated Amount of the Class A-1 and A-2 notes, the redraw
bonds and the principal outstanding of the standby redraw facility is
reduced to zero.
To the extent allocated, the principal loss will reduce the Stated Amount
of the notes and redraw bonds and will reduce the principal outstanding of the
standby redraw facility as from the following distribution date. The principal
loss allocated is an Australian dollar amount. Where this is allocated to a
Class A-1 note, the Stated Amount of the Class A-1 note is reduced by an
equivalent US dollar amount converted at the US$ Exchange Rate.
Reimbursements of Principal Charge-Offs
Principal charge-offs may be reimbursed on a subsequent distribution date
where there is excess income available after payment of all fees and expenses
of the trust and interest on that distribution date. Reimbursement of principal
charge-offs will only occur to the extent that there are unreimbursed principal
charge-offs and will be allocated in the following order:
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. first rateably amongst the following according to their unreimbursed
principal charge-offs converted, in the case of the Class A-1 notes,
to Australian dollars at the A$ Exchange Rate:
. the Class A-1 notes;
. the Class A-2 notes;
. the redraw bonds; and
. the principal outstanding of the standby redraw facility,
in reduction of their unreimbursed charge-offs until these are
reduced to zero; and
. second, equally amongst the Class B notes until the unreimbursed
charge-offs of the Class B notes are reduced to zero.
A reimbursement of a principal charge-off on a note or redraw bond will
increase the Stated Amount of that note or redraw bond and a reimbursement of a
principal charge-off on the standby redraw facility will increase the principal
outstanding of the standby redraw facility but the actual funds allocated in
respect of the reimbursement will be distributed as described in "Distribution
of the Available Principal Amount" above.
The amounts allocated for reimbursement of principal charge-offs are
Australian dollar amounts. Where such an amount is allocated to a Class A-1
note, the Stated Amount of the Class A-1 note is increased by an equivalent
U.S. dollar amount converted at the US$ Exchange Rate.
The Interest Rate Swaps
Purpose of the Interest Rate Swaps
Collections in respect of interest on the variable rate housing loans
will be calculated based on the servicer's administered variable rates.
Collections in respect of interest on the fixed rate housing loans will be
calculated based on the relevant fixed rates. However, the payment obligations
of the issuer trustee on the Class A-2 notes and the Class B notes and under
the currency swaps are calculated by reference to the Bank Bill Rate. To hedge
these interest rate exposures, the issuer trustee will enter into the basis
swap with the basis swap provider and the fixed rate swap with the fixed rate
swap provider. The basis swap and the fixed rate swap will be governed by a
standard form ISDA Master Agreement, as amended by a supplementary schedule and
confirmed by written confirmations in relation to each swap. The initial basis
swap provider and fixed rate swap provider will be Commonwealth Bank of
Australia, Level 7, 48 Martin Place, Sydney NSW 2000, Australia.
Basis Swap
On each distribution date the issuer trustee will pay to the basis swap
provider an amount calculated by reference to the interest payable by borrowers
on the variable rate housing loans during the preceding collection period and
the income earned by the trust on
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the collections account and any Authorized Short-Term Investments during that
collection period.
In return the basis swap provider will pay to the issuer trustee on each
distribution date an amount calculated by reference to the aggregate principal
amount outstanding of the variable rate housing loans as at the last day of the
collection period preceding the previous distribution date and the Bank Bill
Rate plus a margin.
The basis swap will terminate if the interest rate on the Class A notes
is increased following the distribution date in July, 2007, provided that the
weighted average of the variable rates charged on the housing loans is
sufficient, assuming that all relevant parties comply with their obligations
under the housing loans and the transaction documents, to ensure that the
issuer trustee has sufficient funds to comply with its obligations under the
transaction documents as they fall due. See "Description of the Transaction
Documents--Servicing of the Housing Loans--Administer Interest Rates" in
relation to the servicer's obligations with respect to interest rates on the
variable rate housing loans if the basis swap is terminated.
Fixed Rate Swap
On each distribution date the issuer trustee will pay to the fixed rate
swap provider an amount calculated by reference to the interest payable by
borrowers on the fixed rate housing loans, other than housing loans in relation
to which the issuer trustee has entered into an individual fixed rate swap as
described below, during the preceding collection period and the income earned
by the trust on the collections account and any Authorized Short-Term
Investments during that collection period.
In return the fixed rate swap provider will pay to the issuer trustee on
each distribution date an amount calculated by reference to the aggregate
principal amount outstanding of the fixed rate housing loans as at the last day
of the collection period preceding the previous distribution date and the Bank
Bill Rate plus a margin.
In addition, if a borrower prepays a loan subject to a fixed rate of
interest, or otherwise terminates a fixed rate period under a housing loan, the
issuer trustee will normally be entitled to receive from the borrower a break
cost or the issuer trustee will be required to pay to the borrower a break
benefit.
A break cost is currently payable by the borrower to the issuer trustee
where the terminated fixed rate under the housing loan is greater than the
current equivalent fixed rate product offered by the seller for the remaining
term of the housing loan. Under the seller's current policies and procedures,
prepayments of up to $5,000 in any 12 month period may be made by a borrower
without incurring break costs, see "Commonwealth Bank Residential Loan
Program--Special Features of the Housing Loans--Early Repayment." A break
benefit is payable by the issuer trustee to the borrower where the terminated
fixed rate under the housing loan is less than the equivalent fixed rate
product offered by the seller for the remaining term of the housing loan
unless, under the seller's current policies and procedures,
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the prepayments are less than or equal to $5,000 in any 12 month period. If the
break period is not a whole year an interpolated rate is used.
While the fixed rate swap is operating the net difference between break
costs and break benefits for all housing loans for a collection period is
either paid by the fixed rate swap provider, where the difference is a negative
number, or paid to the fixed rate swap provider, where the difference is a
positive number, on each distribution date. While the fixed rate swap is
operating, break costs are not included within the Available Income Amount and
break benefits are not considered to be expenses of the trust.
The method for calculation of break costs and break benefits may change
from time to time according to the business judgment of the servicer.
Other Swaps
The issuer trustee and the fixed rate swap provider may agree to enter
into separate fixed rate swaps in relation to one or more housing loans under
which the issuer trustee will pay the fixed rate swap provider the fixed
interest payable under the housing loans and the fixed rate swap provider will
pay the issuer trustee an amount calculated by reference to the Bank Bill Rate
plus a margin determined on or before the closing date.
In addition, if the servicer offers interest rate cap products to
borrowers, the issuer trustee and the fixed rate swap provider will enter into
swaps to hedge the issuer trustee's risks in relation to such interest rate
caps.
Termination by the Basis Swap and Fixed Rate Swap Provider
The basis swap and fixed rate swap provider will each have the right to
terminate the basis swap and the fixed rate swap, respectively, in the
following circumstances:
. if the issuer trustee fails to make a payment under either swap
within 10 days after notice of failure is given to the issuer
trustee;
. if due to a change in law it becomes illegal for either party to
make or receive payments, perform its obligations under any credit
support document or comply with any other material provision of the
basis swap or the fixed rate swap. However, only a swap affected by
the illegality may be terminated and each party affected by the
illegality must make efforts to transfer its rights and obligations
to avoid this illegality; or
. in the case of the basis swap only, at any time at the election of
the basis swap provider provided that at the date of termination the
weighted average of the variable rates charged on the housing loans
is sufficient, assuming that all relevant parties comply with their
obligations under the housing loans and the transaction documents,
to ensure that the issuer trustee has sufficient funds to comply
with its obligations under the transaction documents as they fall
due.
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Termination by the Issuer Trustee
The issuer trustee will have the right to terminate the basis swap or the
fixed rate swap in the following circumstances:
. if the swap provider fails to make a payment within 10 days after
notice of failure is given to the swap provider; or
. if due to a change in law it becomes illegal for either party to
make or receive payments, perform its obligations under any credit
support document or comply with any other material provision of the
basis swap or the fixed rate swap. However, only a swap affected by
the illegality may be terminated and each party affected by the
illegality must make certain efforts to transfer its rights and
obligations to avoid this illegality.
Fixed Rate Swap Provider Downgrade
If, as a result of the withdrawal or downgrade of its credit rating by
any rating agency, on any determination date the fixed rate swap provider does
not have:
. either a short term credit rating of at least A-1+ or a long term
credit rating of AA- by Standard & Poor's;
. a long term credit rating of at least A-2 by Moody's; and
. a short term rating of at least F1+ by Fitch,
the fixed rate swap provider must:
. obtain a counterparty acceptable to the manager, the issuer trustee,
and the rating agencies to enter into a swap with the issuer trustee
on substantially the same terms as the fixed rate swap;
. lodge cash collateral in an amount determined by the relevant rating
agencies or, in certain circumstances, determined under the fixed
rate swap; or
. enter into other arrangements satisfactory to the issuer trustee and
the manager which each rating agency confirms will not result in a
reduction, qualification or withdrawal of any credit rating assigned
by it to the notes or redraw bonds.
The fixed rate swap provider may satisfy its obligations following a
withdrawal or downgrade of a credit rating in any of the above manners as it
elects from time to time.
Basis Swap Provider Downgrade
If, as a result of the withdrawal or downgrade of its credit rating by
any rating agency, on any determination date the basis swap provider does not
have:
. either a short term credit rating of at least A-1+ or a long term
credit rating of AA- by Standard & Poor's;
. a short term credit rating of at least P-1 by Moody's; and
. a short term rating of at least F1+ by Fitch,
the basis swap provider must:
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. prepay the amount that is expected to be due, as determined by the
manager, from the basis swap provider to the issuer trustee on the
next distribution date; or
. enter into other arrangements satisfactory to the issuer trustee and
the manager which each rating agency confirms will not result in a
reduction, qualification or withdrawal of any credit rating assigned
by it to the notes or redraw bonds.
The basis swap provider may satisfy its obligations following a
withdrawal or downgrade of a credit rating in either of the above manners as it
elects from time to time.
Termination Payments
Upon termination of the fixed rate swap, a termination payment will be
due from the issuer trustee to the fixed rate swap provider or from the fixed
rate swap provider to the issuer trustee.
The termination payment in respect of fixed rate swap will be determined,
if possible, on the basis of quotations from leading dealers in the relevant
market 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 fixed rate swap.
No termination payment will be payable in respect of the termination of
the basis swap.
If the basis swap terminates then, unless and until the issuer trustee
has entered into a replacement basis swap or other arrangements which the
rating agencies have confirmed will not result in a reduction, qualification or
withdrawal of the credit ratings assigned to the notes or redraw bonds, the
servicer must adjust the rates of interest on the mortgage interest saver
accounts and, if necessary, the housing loans as described in "Description of
the Transaction Documents--Servicing of the Housing Loans--Administer Interest
Rates."
The Currency Swap
Purpose of the Currency Swap
Collections on the housing loans and receipts under the basis swap and
the fixed rate swap will be denominated in Australian dollars. However, the
payment obligations of the issuer trustee on the Class A-1 notes are
denominated in United States dollars. In addition, receipts by the issuer
trustee under the basis swap and the fixed rate swap are calculated by
reference to the Bank Bill Rate but the interest obligations of the issuer
trustee with respect to the Class A-1 notes are calculated by reference to
LIBOR. To hedge this currency and interest rate exposure, the issuer trustee
will enter into a currency swap agreement with each currency swap provider.
Each currency swap will be governed by a standard form ISDA Master Agreement,
as amended by a supplementary schedule and a credit support annex and confirmed
by a written confirmation.
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Principal Payments
On the closing date, the issuer trustee will pay the currency swap
providers the U.S. dollar proceeds of issue of the Class A-1 notes. In return,
the currency swap providers will pay to the issuer trustee the Australian
dollar equivalent of the proceeds of issue of the Class A-1 notes converted at
the US$ Exchange Rate.
On each distribution date, the issuer trustee will pay to the currency
swap providers the Australian dollar amount available to be applied towards
repayment of the Stated Amount of the Class A-1 notes. In return, the currency
swap providers will pay to the principal paying agent on behalf of the issuer
trustee the U.S. dollar equivalent of that amount converted at the A$ Exchange
Rate for distribution to the Class A-1 noteholders in accordance with the
agency agreement in reduction of the Stated Amount of the Class A-1 notes.
Interest Payments
On each distribution date, the issuer trustee will pay to the currency
swap providers an aggregate amount, the A$ Class A-1 Interest Amount,
calculated by reference to the Australian dollar equivalent of the aggregate
Invested Amount of the Class A-1 notes as at the preceding distribution date
converted at the US$ Exchange Rate and the Bank Bill Rate plus a margin.
In return, the currency swap providers will pay to the principal paying
agent on behalf of the issuer trustee amounts in aggregate equal to the
interest due in respect of the Class A-1 notes on that distribution date for
distribution to Class A-1 noteholders in accordance with the agency agreement.
If the issuer trustee does not have sufficient funds under the series
supplement to pay the full amount owing to the currency swap providers in
respect of the above payment the currency swap providers are not required to
make the corresponding payments to the principal paying agent and, after the
applicable grace period, the currency swap providers may terminate the currency
swaps. The manner of determining whether the issuer trustee will have
sufficient funds to pay the currency swap providers that amount on a
distribution date is described in "Distribution of the Available Income Amount"
above. A failure of the issuer trustee to pay an amount owing under a currency
swap, if not remedied within the applicable grace period, will be an event of
default under the security trust deed.
Termination by a Currency Swap Provider
A currency swap provider will have the right to terminate the relevant
currency swap in the following circumstances:
. if the issuer trustee fails to make a payment under the currency
swap within 10 days after notice of failure is given to the issuer
trustee;
. if due to a change in or a change in interpretation of law it
becomes illegal other than as a result of the introduction of
certain exchange controls by an Australian governmental body for
either party to make or receive payments, perform its obligations
under any credit support document or comply with any other material
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provision of the currency swap. However, if the currency swap
provider is the party affected by the illegality, it must make
efforts to transfer its rights and obligations to avoid this
illegality;
. if due to any action taken by a taxation authority or a change in
tax law the currency swap provider is required to gross-up payments
on account of a non-resident withholding tax liability or receive
payments from which amounts have been withheld or deducted on
account of tax. However, the currency swap provider will only have
the right to terminate the currency swap if the Class A-1 note
trustee is satisfied that all amounts owing to Class A-1 noteholders
will be paid in full on the date on which the Class A-1 notes are to
be redeemed. In addition, whether or not the currency swap provider
can terminate the currency swap, following the occurrence of such an
event, the currency swap provider may transfer the currency swap to
another counterparty with, in certain circumstances, the consent of
the standby swap provider, as to which see "Jointly Supported
Obligations" below, provided that each rating agency has confirmed
that this will not result in there being a reduction, qualification
or withdrawal of any credit rating assigned by it to the Class A-1
notes; and
. if an event of default occurs under the security trust deed and the
security trustee has declared the Class A-1 notes immediately due and
payable.
Termination by the Issuer Trustee
The issuer trustee will have the right to terminate a currency swap in
the following circumstances:
. if the currency swap provider fails to make a payment under the
currency swap within 10 days after notice of failure is given to the
currency swap provider;
. if certain bankruptcy related events occur in relation to the
currency swap provider;
. if the currency swap provider merges with, or otherwise transfers
all or substantially all of its assets to, another entity and the
new entity does not assume all of the obligations of the currency
swap provider under the currency swap;
. if due to a change in or a change in interpretation of law it
becomes illegal other than as a result of the introduction of
certain exchange controls by an Australian governmental body for
either party to make or receive payments, perform its obligations
under any credit support document or comply with any other material
provision of the currency swap. However, if the currency swap
provider is the party affected by the illegality, it must make
efforts to transfer its rights and obligations to avoid this
illegality;
. if due to any action taken by a taxation authority or a change in
tax law the issuer trustee is required to receive payments from
which amounts have been withheld or deducted on account of tax and
no entitlement to a corresponding gross-up arises other than as a
result of its failure to perform certain tax covenants or, in
certain circumstances, a breach of its tax representations;
. if as a result of the currency swap provider merging with, or
otherwise transferring all or substantially all its assets to
another entity, the issuer trustee is
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required to receive payments from which a deduction or withholding
has been made on account of a non-resident withholding tax liability
and no entitlement to a corresponding gross-up arises other than as a
result of its failure to perform certain tax covenants, or, in
certain circumstances, a breach of its tax representations;
. if the currency swap provider fails to comply with its obligations
described in "Currency Swap Provider Downgrade" below following a
downgrade of its credit ratings, and that failure is not remedied
within 10 Business Days of notice of the failure being given to the
currency swap provider or such longer period as the issuer trustee
and the manager agree and the rating agencies confirm will not
result in a reduction, qualification or withdrawal of the credit
ratings assigned by them to the Class A-1 notes; and
. if an event of default occurs under the security trust deed and the
security trustee has declared the Class A-1 notes immediately due and
payable.
The issuer trustee may only terminate a currency swap with the prior written
consent of the Class A-1 note trustee.
Termination by the Class A-1 Note Trustee
If following an event that allows the issuer trustee to terminate a
currency swap the issuer trustee does not terminate the currency swap, the
Class A-1 note trustee may terminate the currency swap.
Currency Swap Provider Downgrade
If, as a result of the withdrawal or downgrade of its credit rating by
any rating agency, the currency swap providers do not have:
. either a long term joint credit rating of at least AA- by Standard &
Poor's or a short term joint credit rating of at least A-1+ by
Standard & Poor's;
. a long term joint credit rating of at least A2 by Moody's; and
. a long term joint credit rating of at least AA- by Fitch,
the currency swap providers must within:
. 30 Business Days, if the currency swap providers still have a long
term joint credit rating of at least A- by Standard & Poor's and a
short term joint credit rating of at least A-1 by Standard & Poor's,
and a long term joint credit rating of at least A3 by Moody's and a
long term joint credit rating of at least A- by Fitch; or
. 5 Business Days, in any other case,
or, in either case, such greater period as is agreed to in writing by the
relevant rating agency, at their cost and at their election:
. if the short term joint credit rating by Standard & Poor's is
greater than or equal to A-1 or the long term joint credit rating by
Standard & Poor's is greater than or equal to A- and the long term
joint credit rating by Fitch IBCA is greater than or equal to A-,
lodge collateral as determined under the currency swap and the
credit support annex;
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. enter into an agreement novating the currency swap to a replacement
counterparty or standby swap provider acceptable to the relevant
standby swap provider, as to which see "Jointly Supported
Obligations" below, and the manager and which each rating agency has
confirmed will not result in there being a reduction, qualification
or withdrawal of any credit rating assigned by it to the Class A-1
notes; or
. enter into other arrangements which each rating agency has confirmed
will not result in there being a reduction, qualification or
withdrawal of any credit rating assigned by it to the Class A-1
notes.
A currency swap provider may satisfy its obligations following a
withdrawal or downgrade of a credit rating in any of the above manners as it
elects from time to time.
If a currency swap provider lodges cash collateral with the issuer
trustee, any interest on that cash collateral will be paid to that currency
swap provider.
Termination Payments
Upon termination of a 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 payment in respect of a currency swap will be determined,
if possible, on the basis of quotations from leading dealers in the relevant
market 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 a currency swap is terminated prior to its scheduled termination date,
the issuer trustee may, at the direction of the manager, enter into one or more
replacement currency swaps on terms and with a counterparty which the rating
agencies confirm will not result in a reduction, qualification or withdrawal of
the credit ratings assigned by them to the Class A-1 notes. A termination
payment received by the issuer trustee upon termination of a currency swap may
be applied towards a premium payable to enter into a replacement currency swap
and a premium received by the issuer trustee upon entering into a new currency
swap may be applied towards a termination payment in respect of the terminated
currency swap.
Currency Swap Providers
The currency swap providers will be Merrill Lynch Capital Services Inc.
and Commonwealth Bank of Australia.
Merrill Lynch Capital Services Inc.
Merrill Lynch Capital Services Inc. ("MLCS") is a wholly owned subsidiary
of Merrill Lynch & Co. Inc. ("ML&Co."). ML&Co. is a holding company that,
through its subsidiaries and affiliates, provides investment, financing,
advisory, insurance and related
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services. MLCS's principal executive offices are located at 250 Vesey Street,
12th Floor, New York, New York 10281-1332 and its telephone number is 212-499-
1000. The obligations of MLCS in respect of its currency swap are guaranteed by
ML&Co. ML&Co. has a long term rating of AA from Fitch IBCA, Aa3 from Moody's
and AA- from Standard & Poor's, and a short term rating of A-1+ from Standard &
Poor's and F1+ from Fitch IBCA.
As of December 31, 1999 ML&Co. and its subsidiaries had total assets of
$328,071 million, total liabilities of $312,544 million, preferred securities
issued by subsidiaries of $2,725 million and total stockholder's equity of
$12,802 million. ML&Co. currently files periodic reports with the Securities
and Exchange Commission pursuant to the Exchange Act. The 1999 Annual Report of
ML&Co. on Form 10-K was filed with the Securities and Exchange Commission on
March 9, 2000. ML&Co. will provide without charge to each person to whom this
prospectus is delivered, on the request of any such person, a copy of the Form
10-K referred to above. Written requests should be directed to: Merrill Lynch &
Co., Inc., P.O. Box 20, Church Street Station, New York, NY 10277-1004,
Attention: Office of the Secretary.
Transfer by MLCS of Currency Swap
MLCS may transfer all its rights and obligations as currency swap
provider or standby swap provider to another entity which has the benefit of a
guarantee from ML&Co. provided the rating agencies confirm this will not cause
a reduction, qualification or withdrawal of the credit ratings of the Class A-1
notes.
Commonwealth Bank
The Commonwealth Bank of Australia was established in 1911 by an Act of
Australia's Commonwealth Parliament as a government owned enterprise to conduct
commercial and savings banking business. For a period it also operated as
Australia's central bank until this function was transferred to the Reserve
Bank of Australia in 1959. The process of privatization of the Commonwealth
Bank was commenced by Australia's Commonwealth Government in 1990 and was
completed in July 1996. The Commonwealth Bank is now a public company listed on
the Australian Stock Exchange Limited. Its registered office is at Level 1, 48
Martin Place Sydney New South Wales, Australia.
Commonwealth Bank is one of the four major banks in Australia and
provides a wide range of banking, financial and related services to over 7.7
million customers with a branch network of approximately 1,400 locations
throughout Australia and internationally.
Commonwealth Bank has a long term credit rating of AA from Fitch IBCA,
Aa3 from Moody's and AA- from Standard & Poor's and a short term credit rating
of A-1+ from Standard & Poor's.
As at June 30, 1999 Commonwealth Bank and its subsidiaries, on a
consolidated basis, had total assets of A$138.1 billion, deposits of A$93.4
billion and total regulatory capital of A$9.3 billion. Operating profit after
tax, abnormals and outside equity interests for the twelve months to June 30,
1999 was A$1.42 billion.
On March 10, 2000 Commonwealth Bank announced it had reached agreement
with Colonial Limited to merge. Colonial Limited is an Australian holding
company which owns
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banking, insurance and funds management businesses. Commonwealth Bank will
offer 7 Commonwealth Bank shares for every 20 Colonial Limited shares. The
offers are subject to a number of conditions to be more fully set out in the
documentation, including relevant regulatory approvals and an amendment to
Colonial Limited's constitution to allow the merger to proceed. Following
approval, the merger is expected to be completed by July 2000. The directors of
both companies have unanimously endorsed the merger.
Commonwealth Bank has received indications from the rating agencies that
its ratings have been affirmed following announcement of the merger.
Commonwealth Bank currently files periodic reports with the Securities
and Exchange Commission pursuant to the Exchange Act. The 1999 Annual Report of
Commonwealth Bank on Form 20-F was filed with the Securities and Exchange
Commission on September 10, 1999. Commonwealth Bank will provide without charge
to each person to whom this prospectus is delivered, on the request of any such
person, a copy of the Form 20-F referred to above. Written requests should be
directed to: Commonwealth Bank of Australia, 599 Lexington Avenue, New York, NY
10022, Attention: Executive Vice President and General Manager Americas.
The Australian banking activities of Commonwealth Bank come under the
regulatory supervision of the Australian Prudential Regulation Authority. For a
further description of the business operations of Commonwealth Bank, see "The
Servicer."
Transfer by Commonwealth Bank of Currency Swap
If an event beyond the control of Commonwealth Bank occurs so that it is
impossible for Commonwealth Bank to convert Australian dollars to U.S. dollars
through customary legal channels to fulfill its obligations under its currency
swap, Commonwealth Bank may transfer all its rights and obligations as currency
swap provider to MLCS and may terminate its obligations as standby swap
provider.
Jointly Supported Obligations
The obligations of each currency swap provider under its currency swap
are separate and several from the obligations of the other currency swap
provider under the other currency swap.
However, each currency swap provider will also act as a standby swap
provider in respect of the other currency swap provider's currency swap. If a
currency swap provider:
. defaults in making a payment in respect of its currency swap, as
described under "Principal Payments" and "Interest Payments" above;
or
. defaults in meeting its obligations following a downgrade of the
currency swap providers' joint credit ratings, as described in
"Currency Swap Provider Downgrade" above,
the issuer trustee must notify the standby swap provider and the standby swap
provider must make good the default within prescribed periods. A remedy of a
payment default must occur on the same day as the due date for the payment
provided that the standby swap provider is
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notified of the default by the issuer trustee in the manner required by the
relevant currency swap agreement.
If a standby swap provider is required to make good a default, the
defaulting currency swap provider must take certain actions, including
reimbursing or indemnifying the standby swap provider, in relation to the
default. If the defaulting currency swap provider does not take these actions
within the prescribed periods then the rights and obligations of the defaulting
currency swap provider under its currency swap will automatically transfer to
the standby swap provider.
Partial Redemption of the Class A-1 Notes on Distribution Dates
On each distribution date until the Stated Amount of the Class A-1 notes
is reduced to zero the issuer trustee must:
. pay to the currency swap provider, in accordance with the directions
of the manager, the Australian dollar amount allocated to repayment
on that distribution date of principal on the Class A-1 notes as
described in "Allocation of Principal to Class A Notes and Class B
Notes";
. direct the currency swap provider to pay on that distribution date
the U.S. dollar equivalent of that Australian dollar amount,
converted at the US$ Exchange Rate, to the principal paying agent;
and
. direct the principal paying agent to pay that amount received from
the currency swap provider rateably to the Class A-1 noteholders
towards repayment of the Stated Amounts of the Class A-1 notes in
accordance with the agency agreement and the terms and conditions of
the Class A-1 notes.
Withholding or Tax Deductions
All payments in respect of the Class A-1 notes will be made without
withholding or 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 such a withholding or deduction. In
that event the issuer trustee or the paying agent, as the case may be, shall
account to the relevant authorities for the amount so required to be withheld
or deducted. Neither the issuer trustee nor any paying agent nor the Class A-1
note trustee will be obligated to make any additional payments to holders of
the Class A-1 notes with respect to that withholding or deduction. Immediately
after becoming aware that such a withholding or deduction is or will be
required, the issuer trustee will notify the Class A-1 note trustee, the
principal paying agent and the Class A-1 noteholders.
Redemption of the Notes for Taxation or Other Reasons
If the manager satisfies the issuer trustee and the Class A-1 note
trustee, immediately before giving the notice to the Class A-1 noteholders as
described in this section, that because of a change of law in Australia or any
other jurisdiction to which the issuer trustee becomes subject either:
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. on the next distribution date the issuer trustee would be required to
deduct or withhold from any payment of principal or interest in
respect of any class of notes or redraw bonds 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 a government or authority of Australia or
such other jurisdiction; or
. the total amount payable in respect of interest in relation to the
housing loans for a collection period ceases to be receivable,
whether or not actually received, by the issuer trustee during such
collection period by reason of any present or future taxes, duties,
assessments or governmental charges of whatever nature imposed,
levied, collected, withheld or assessed by a government or authority
of Australia or such other jurisdiction,
and in each case such obligation cannot be avoided by the issuer trustee taking
reasonable measures available to it, then the issuer trustee must, when so
directed by the manager, at the manager's option, redeem all, but not some, of
the notes and redraw bonds on any subsequent distribution date at their then
Invested Amounts, subject to the following, together with accrued but unpaid
interest to but excluding the date of redemption. The issuer trustee may redeem
the notes and redraw bonds at their Stated Amounts, instead of at their
Invested Amounts, together with accrued but unpaid interest to but excluding
the date of redemption, if so approved by an Extraordinary Resolution of
noteholders and redraw bondholders together.
However, the manager will not direct the issuer trustee to, and the
issuer trustee will not, redeem the notes or redraw bonds unless it is in a
position on the relevant distribution date to repay the then Invested Amounts
or Stated Amounts, as required, of the notes and the redraw bonds together with
all accrued but unpaid interest to but excluding the date of redemption and to
discharge all its liabilities in respect of amounts which are required under
the security trust deed to be paid in priority to or equally with the notes or
redraw bonds if the charge under the security trust deed were enforced.
Class A-1 noteholders must be given notice of a redemption not more than
60 nor less than 45 days prior to the date of redemption.
If a tax, duty or other amount described above applies only to the Class
A-1 notes and the issuer trustee gives notice that it proposes to redeem the
notes and the redraw bonds, the holders of 75% of the aggregate Invested Amount
of the Class A-1 notes may elect, in accordance with the terms of the Class A-1
note trust deed, that they do not require the issuer trustee to redeem the
Class A-1 notes. Upon being notified of such an election at least 21 days
before the distribution date upon which redemption was to occur the issuer
trustee must not redeem the notes or redraw bonds.
Redemption of the Notes upon an Event of Default
If an event of default occurs under the security trust deed the security
trustee must, upon becoming aware of the event of default and subject to
certain conditions, in accordance
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with an Extraordinary Resolution of Voting Secured Creditors and the provisions
of the security trust deed, enforce the security created by the security trust
deed. That enforcement can include the sale of some or all of 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.
Optional Redemption of the Notes
The issuer trustee must, when directed by the manager, at the manager's
option, redeem all of the notes and the redraw bonds at their then Invested
Amounts, subject to the following, together with accrued but unpaid interest
to, but excluding, the date of redemption, on any distribution date falling on
or after the earlier of:
. the date on which the total principal outstanding on the housing
loans is less than 10% of the total principal outstanding on the
housing loans on March 18, 2000; and
. the distribution date falling in July, 2007,
The issuer trustee may redeem the notes and redraw bonds at their Stated
Amounts instead of at their Invested Amounts, together with accrued but unpaid
interest to but excluding the date of redemption, if so approved by an
Extraordinary Resolution of noteholders and redraw bondholders together.
However, the issuer trustee will not redeem the notes or redraw bonds unless it
is in a position on the relevant distribution date to repay the then Invested
Amounts or the Stated Amounts, as required, of the notes and the redraw bonds
together with all accrued but unpaid interest to but excluding the date of
redemption and to discharge all its liabilities in respect of amounts which are
required under the security trust deed to be paid in priority to or equally
with the notes or redraw bonds if the charge under the security trust deed were
enforced. If the issuer trustee, at the direction of the manager, proposes to
exercise its option to redeem the notes and redraw bonds on a distribution date
during or after July 2007 at their Stated Amounts rather than their Invested
Amounts, as described above, but is unable to do so because, following a
meeting of noteholders and redraw bondholders convened under the provisions of
the security trust deed by the manager for this purpose, the noteholders and
redraw bondholders have not approved by an Extraordinary Resolution the
redemption of the notes and redraw bonds at their Stated Amounts, then the
margin for the Class A-1 notes for each accrual period commencing on or after
that distribution date will remain at, or revert to, the margin applying at the
closing date.
Class A-1 noteholders must be given notice of a redemption not more than
60 nor less than 45 days prior to the date of redemption.
Final Maturity Date
Unless previously redeemed, the issuer trustee must redeem the notes and
redraw bonds by paying the Stated Amount, together with all accrued and unpaid
interest, in relation to each note and redraw bond on or by the distribution
date falling in July, 2031.
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Redemption upon Final Payment
Upon final distribution being made in respect of any notes or redraw
bonds following termination of the trust or enforcement of the charge under the
security trust deed, those notes or redraw bonds will be deemed to be redeemed
and discharged in full and any obligation to pay any accrued but unpaid
interest, the Stated Amount or the Invested Amount in relation to the notes or
redraw bonds will be extinguished in full.
No Payments of Principal in Excess of Stated Amount
No amount of principal will be repaid in respect of a note or redraw bond
in excess of its Stated Amount or, in the case of an optional redemption or
redemption for taxation reasons, its Invested Amount.
Termination of the Trust
Termination of Trust
Following the issue of the notes, the trust may only terminate prior to
the redemption of the notes if a Potential Termination Events occurs and:
. the issuer trustee determines that the Potential Termination Event
has or will have an Adverse Effect, upon which it must promptly
notify the manager, the servicer, the security trustee and the Class
A-1 note trustee;
. the servicer, the issuer trustee and the manager consult and use
their reasonable endeavors, in consultation with the security
trustee, the Class A-1 note trustee, and, if necessary, the residual
unitholder, to amend or vary the terms of the series supplement, any
other relevant transaction document and the notes and redraw bonds in
such a way so as to cure the Potential Termination Event or its
Adverse Effect; and
. such consultations do not result in the cure of the Potential
Termination Event or its Adverse Effect, with the consent of the
servicer, the issuer trustee, the manager, the security trustee and
the Class A-1 note trustee, within 60 days of notice being given by
the issuer trustee as described above.
If this occurs then the issuer trustee, in consultation with the manager,
must proceed to liquidate the assets of the trust in accordance with the series
supplement.
Sale of Housing Loans Upon Termination
Upon termination of the trust, the issuer trustee in consultation with
the manager must sell and realize the assets of the trust within 180 days of
the termination date. During this period the issuer trustee is not entitled to
sell the housing loans and their related securities, mortgage insurance
policies and other rights for less than the aggregate Fair Market Value of the
housing loans. The issuer trustee is only entitled to sell the housing loans
and their related securities, mortgage insurance policies and other rights to a
person other than the seller if the seller does not exercise its right of first
refusal. The issuer trustee must not conclude a sale to a person other than the
seller unless, among other things, any
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housing loans and their related securities, mortgage insurance policies and
other rights are assigned in equity only, except if the issuer trustee already
has legal title, and the sale is expressly subject to the servicer's right to
be retained as servicer and subject to the rights of the CBA trust and to the
rights of the seller as beneficiary of the CBA trust in respect of those
housing loans and their related securities, mortgage insurance policies and
other rights, as described in "Description of the Assets of the Trust--Transfer
and Assignment of the Housing Loans."
If the issuer trustee is unable to sell the housing loans and their
related securities and mortgage insurance policies for Fair Market Value and on
those terms during the 180 day period, it may then sell them free of the
restrictions and may perfect its legal title if necessary to obtain Fair Market
Value for the housing loans. However upon such a sale the issuer trustee must
use reasonable endeavors to include as a condition of the sale that a purchaser
will agree to the seller taking second mortgages in order to retain second
ranking security for the other loans secured by the mortgage and to entering
into a priority agreement to give the seller second priority for its second
mortgage and to use reasonable endeavours to obtain the consent of the relevant
borrowers and security providers to the seller's second mortgage.
Seller's First Right of Refusal
On the termination date of the trust, the issuer trustee is deemed to
offer to sell the housing loans and their related securities, mortgage
insurance policies and other rights to the seller for at least the aggregate
Fair Market Value of the housing loans.
The issuer trustee must not sell the housing loans and their related
securities, mortgage insurance policies and other rights unless the seller has
failed to accept that offer within 90 days of the termination date of the trust
or has failed to pay the purchase price within 180 days of the termination date
of the trust.
Distributions
The issuer trustee must deposit the proceeds of realization of the assets
of the trust into the collections account and, following the realization of all
the assets of the trust, must distribute them on a distribution date in
accordance with the order of priority described in "Description of the Class A-
1 Notes--Distribution of Available Income Amount" and "Description of the Class
A-1 Notes-- Distribution of Available Principal Amount." Upon final
distribution being made, the notes will be deemed to be redeemed and discharged
in full and the obligations of the issuer trustee with respect to the payment
of principal, interest or any other amount on the notes will be extinguished.
Prescription
A Class A-1 note will be void in its entirety if not surrendered for
final payment within ten years of the relevant date in respect of that payment
on the Class A-1 note which would have the effect of reducing the Stated Amount
of the Class A-1 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 by the principal paying agent or the Class A-1 note
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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 Class A-1 note. After the date on
which a Class A-1 note becomes void in its entirety, no claim may be made in
respect of it.
Directions by Class A-1 Noteholders
Under the Class A-1 note trust deed the Class A-1 note trustee may seek
directions from the Class A-1 noteholders from time to time including following
the occurrence of an event of default under the security trust deed.
The Class A-1 note trustee will not be responsible for acting in good
faith upon a direction given by Class A-1 noteholders holding Class A-1 notes
with an Invested Amount of greater than 50% of the aggregate Invested Amount of
all the Class A-1 notes.
If the Class A-1 note trustee is entitled under the master trust deed or
the security trust deed to vote at any meeting on behalf of Class A-1
noteholders the Class A-1 note trustee must vote in accordance with the
directions of the Class A-1 noteholders and otherwise in its absolute
discretion. In acting in accordance with the directions of Class A-1
noteholders the Class A-1 note trustee must exercise its votes for or against
any proposal to be put to a meeting in the same proportion as that of the
aggregate Invested Amounts of the Class A-1 notes held by Class A-1 noteholders
who have directed the Class A-1 note trustee to vote for or against that
proposal.
For the purposes of seeking any consent, direction or authorisation from
Class A-1 noteholders the Class A-1 note trustee may by notice to the Class A-1
noteholders specify a date not earlier than the date of the notice upon which
the persons who are the Class A-1 noteholders and the Invested Amount of the
Class A-1 notes held by them will be determined based upon the details recorded
in the Class A-1 note register as at 5.30pm on that date.
Amendments to Class A-1 Notes and Class A-1 Note Trust Deed
The issuer trustee, the manager and the Class A-1 note trustee, may
alter, add to or revoke any provision of the Class A-1 note trust deed or the
Class A-1 notes, without the consent or sanction of any Class A-1 noteholder,
subject to the limitations described below, if the alteration, addition or
revocation is not a Payment Modification and, in the opinion of the Class A-1
note trustee:
. is made to correct a manifest error or ambiguity or is of a formal,
technical or administrative nature only;
. is necessary or expedient to comply with the provisions of any law
or regulation or with the requirements of any statutory authority;
. is appropriate or expedient as a consequence of an alteration to any
law or regulation or altered requirements of the government of any
jurisdiction or any governmental agency or any decision of any court
including an alteration, addition or revocation which is appropriate
or expedient as a result of an
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alteration to Australia's tax laws or any ruling by the Australian
Commissioner or Deputy Commissioner of Taxation or any governmental
announcement or statement or any decision of any court 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 to the trust
under the Class A-1 note trust deed;
. and the issuer trustee is otherwise desirable for any reason and:
. is not in the opinion of the Class A-1 note trustee likely, upon
coming into effect, to be materially prejudicial to the interests
of the Class A-1 noteholders; or
. if it is in the opinion of the Class A-1 note trustee likely,
upon coming into effect, to be materially prejudicial to the
interests of the Class A-1 noteholders, the consent is obtained
of Class A-1 noteholders owning 75% of the aggregate Invested
Amount of the Class A-1 notes, excluding notes beneficially owned
by the issuer trustee or the manager or any person controlling or
controlled by or under common control with the issuer trustee or
the manager.
Any alteration, addition or revocation must be notified to the rating
agencies 5 Business Days in advance.
The Class A-1 note trustee will be entitled to assume that any proposed
alteration, addition or revocation, other than a Payment Modification, will
not be materially prejudicial to the interests of Class A-1 noteholders if
each of the rating agencies confirms in writing that the alteration, addition
or revocation, if effected, will not lead to a reduction, qualification or
withdrawal of the rating given to the Class A-1 notes by that rating agency.
The issuer trustee, the manager and the Class A-1 note trustee may make
or effect any Payment Modification to the Class A-1 note trust deed or the
Class A-1 notes only if the consent has first been obtained of each Class A-1
Noteholder to the Payment Modification.
Payment Modification means any alteration, addition or revocation of any
provision of the Class A-1 note trust deed, the Class A-1 notes, the master
trust deed so far as it applies to the trust, the series supplement or the
security trust deed which modifies:
. the amount, timing, currency or manner of payment of principal or
interest in respect of the Class A-1 Notes, including, without
limitation, any modification to the Stated Amount, Invested Amount,
interest rate or maturity date of the Class A-1 notes or the orders
of payment of the proceeds of the trust assets under the series
supplement, the Class A-1 notes or the security trust deed or which
would impair rights of Class A-1 Noteholders to institute suit for
enforcement of such payment;
. the manner of determining whether Class A-1 noteholders owning 75%
of the aggregate Invested Amount of the Class A-1 notes have
provided a consent or direction or the circumstances in which such a
consent or direction is required
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or to reduce the percentage of the aggregate Invested Amount of the
Class A-1 notes required for such a consent or direction;
. the provision of the security trust deed that prohibits the issuer
trustee from creating or permitting to exist any security interest,
other than the Prior Interest, over the assets of the trust; or,
. the requirements for altering, adding to or revoking any provision
of the Class A-1 note trust deed, the Class A-1 notes, the master
trust deed so far as it applies to the trust, the series supplement
or the security trust deed.
The issuer trustee must distribute to all Class A-1 noteholders a copy of
any amendment made as soon as reasonably practicable after the amendment has
been made.
Reports to Noteholders
On the Business Day immediately prior to each distribution date, the
manager will, in respect of the accrual period ending before that distribution
date, deliver to the principal paying agent, Class A-1 the note trustee, the
issuer trustee and the Class A-1 noteholders, a quarterly servicing report
containing the following information:
. the Invested Amount and the Stated Amount of each class of notes;
. the interest payments and principal distributions on each class of
notes;
. the Available Income Amount;
. the aggregate of all seller advances made during that quarterly
collection period;
. the redraw shortfall, if any;
. the income shortfall, if any;
. the liquidity facility advances, if any, for that distribution date,
together with all liquidity facility advances in relation to the
preceding determination date;
. the Available Principal Amount;
. the Principal Collections;
. the Standby Redraw Facility Advance;
. the Redraw Bond Amount;
. the principal charge-off in relation to the preceding determination
date;
. the Other Principal Amounts;
. the Principal Charge-Off Reimbursement, if any;
. the note factor for each class of notes, which with respect to a
class of notes, means the aggregate of the Invested Amount of the
class of notes less all principal payments on that class of notes to
be made on that distribution date, divided by the aggregate initial
Invested Amount for all of that class of notes;
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. the principal charge-offs for each class of notes and the standby
redraw facility principal;
. the Principal Charge-Off Reimbursement for each class of notes and
the standby redraw facility principal;
. if required, the threshold rate at that distribution date;
. the interest rates on the notes for the related accrual period;
. scheduled and unscheduled payments of principal on the housing
loans;
. aggregate outstanding principal balance of the fixed rate housing
loans and the aggregate outstanding principal balance of the
variable rate housing loans; and
. delinquency, mortgagee in possession and loss statistics with
respect to the housing loans.
Unless and until definitive Class A-1 notes are issued, beneficial owners
of the Class A-1 notes 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 or by way of information published on a
Reuters Screen or the electronic information system made available to
subscribers by Bloomberg L.P. or a similar electronic reporting service.
Unless and until definitive Class A-1 notes are issued, periodic and
annual unaudited reports containing information concerning the trust and the
Class A-1 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
Class A-1 notes in accordance with the rules, regulations and procedures
creating and affecting DTC. However, such reports will not be sent directly to
each beneficial owner while the Class A-1 notes are in book-entry form. Upon
the issuance of Class A-1 notes in definitive form such reports will be sent
directly to each Class A-1 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 June, 2001.
Description of the Transaction Documents
The following summary describes the material terms of the transaction
documents other than the underwriting agreement and the dealer agreement and
except as already described above. The summary does not purport to be complete
and is subject to the provisions of the transaction documents. The transaction
documents are governed by the laws of New South Wales, Australia. A copy of the
master trust deed 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.
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Collections Account and Authorized Short-Term Investments
The issuer trustee will establish and maintain the collections account
with an Eligible Depositary. The collections account will initially be
established with Commonwealth Bank, 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
48 Martin Place Sydney NSW 2000, Australia. The collections account shall be
opened by the issuer trustee in its name and in its capacity as trustee of the
trust. The collections account will not be used for any purpose other than for
the trust. The account will be an interest bearing account.
If the financial institution with which the collections account is held
ceases to be an Eligible Depositary the issuer trustee must establish a new
account with an Eligible Depositary as a replacement collections account. In
addition, if the Eligible Depository has a short term credit rating of A-1 from
Standard & Poor's the sum of the balance of the collections account and the
value of Authorized Short-Term Investments with a short term rating of A-1 by
Standard & Poor's must not exceed 20% of the aggregate Invested Amount of all
notes.
The manager shall have the discretion to propose to the issuer trustee,
in writing, the manner in which any moneys forming part of the trust shall be
invested in Authorized Short-Term Investments and what purchases, sales,
transfers, exchanges, realizations or other dealings with assets of the trust
shall be effected and when and how they should be effected. Provided that they
meet certain requirements, the issuer trustee must give effect to the manager's
proposals. Each investment of moneys required for the payment of liabilities of
the trust shall be in Authorized Short-Term Investments that will mature on or
before the due date for payment of those liabilities.
Modifications of the Master Trust Deed and Series Supplement
The issuer trustee and the manager, with respect to the master trust
deed, and the issuer trustee, the manager, the seller and the servicer, with
respect to the series supplement, may amend, add to or revoke any provision of
the master trust deed or the series supplement, subject to the limitations
described below, if the amendment, addition or revocation:
. in the opinion of the issuer trustee is necessary to correct a
manifest error or is of a formal, technical or administrative nature
only;
. in the opinion of the issuer trustee, or of a lawyer instructed by
the issuer trustee, is necessary or expedient to comply with the
provisions of any law or regulation or with the requirements of any
statutory authority;
. in the opinion of the issuer trustee is required by, a consequence
of, consistent with or appropriate or expedient as a consequence of
an amendment to any law or regulation or altered requirements of the
government of any jurisdiction or any governmental agency,
including, an amendment, addition or revocation which in the opinion
of the issuer trustee is appropriate or expedient as a result of an
amendment to Australia's tax laws or any ruling by the Australian
Commissioner or Deputy Commissioner of Taxation or any governmental
announcement or
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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 Medallion Programme trusts;
. in the case of the master trust deed, relates only to a Medallion
Programme trust not yet constituted;
. in the opinion of the issuer trustee, will enable the provisions of
the master trust deed or the series supplement to be more
conveniently, advantageously, profitably or economically
administered; or
. in the opinion of the issuer trustee is otherwise desirable for any
reason.
Any amendment, addition or revocation referred to in the last two of the above
paragraphs which in the opinion of the issuer trustee is likely to be
prejudicial to the interests of:
. the residual unitholder, may only be effected with the consent of
the residual unitholder;
. a class of noteholders or redraw bondholders, may only be effected
if those noteholders or redraw bondholders pass a resolution by a
majority of not less than 75% of the votes at a meeting approving
the amendment, addition or revocation or all such noteholders or
redraw bondholders sign a resolution approving the amendment,
addition or revocation, subject to the following paragraph; or
. all noteholders and redraw bondholders, may only be effected if the
noteholders and redraw bondholders pass a resolution by a majority
of not less than 75% of the votes at a meeting approving the
amendment, addition or revocation or all noteholders and redraw
bondholders sign a resolution approving the amendment, addition or
revocation. A separate resolution will not be required in relation
to any class of noteholders or redraw bondholders.
The manager must advise the rating agencies no less than 10 Sydney business
days prior to any amendment, addition or revocation of the master trust deed
or the series supplement and must certify to the issuer trustee that no rating
agency has advised that the amendment, addition or revocation will cause a
withdrawal, downgrading or qualification of the credit ratings assigned to the
notes or redraw bonds before the amendment, addition, or revocation is
effected. The issuer trustee may not amend, add to or revoke any provision of
the master trust deed or the series supplement if the consent of a party is
required under a transaction document unless that consent has been obtained.
The seller, the manager or the issuer trustee may only amend, add to or
revoke any provision of the series supplement in accordance with the master
trust deed. Any amendment, addition or revocation that effects a Payment
Modification may only be made with the consent of each Class A-1 noteholder.
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The Issuer Trustee
General Duties of Issuer Trustee
The issuer trustee is appointed as trustee of the trust on the terms set
out in the master trust deed and the series supplement.
Subject to the provisions of the master trust deed, the issuer trustee
has all the powers in respect of the assets of the trust which it could
exercise if it were the absolute and beneficial owner of the assets. The issuer
trustee agrees to act in the interests of the residual unitholder, the
noteholders and the redraw bondholders. If there is a conflict between the
interests of the residual unitholder on the one hand and the noteholders and
redraw bondholders on the other hand, the issuer trustee must act in the
interests of the noteholders and the redraw bondholders.
The issuer trustee must act honestly and in good faith 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 and the series supplement in a proper and efficient
manner and 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
noteholders, redraw bondholders and the residual unitholder.
The terms of the master trust deed and series supplement provide, amongst
other things, that:
. the obligations of the issuer trustee to the noteholders expressed
in the master trust deed or the series supplement are contractual
obligations only and do not create any relationship of trustee or
fiduciary between the issuer trustee and the noteholders;
. the issuer trustee has no duty, and is under no obligation, to
investigate whether a Manager Default, a Servicer Default or a
Perfection of Title Event has occurred in relation to the trust
other than where it has actual notice;
. unless actually aware to the contrary, the issuer trustee is
entitled to rely conclusively on, and is not required to investigate
the accuracy of any calculation by the seller, the servicer or the
manager under the series supplement, the amount or allocation of
collections or the contents of any certificate provided to the
issuer trustee by the servicer or manager under the series
supplement;
. the issuer trustee may obtain and act on the advice of experts,
whether instructed by the issuer trustee or the manager, which are
necessary, usual or desirable for the purpose of enabling the issuer
trustee to be fully and properly advised and informed and will not
be liable for acting in good faith on such advice; and
. the issuer trustee will only be considered to have knowledge or
awareness of, or notice of, a thing or grounds to believe anything
by virtue of the officers of the issuer trustee who have day-to-day
responsibility for the administration or management of the issuer
trustee's obligations in relation to the trust, having actual
knowledge, actual awareness or actual notice of that thing, or
grounds to believe that thing.
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Annual Compliance Statement
The issuer trustee will deliver to the Class A-1 note trustee annually a
written statement as to the fulfilment of the issuer trustee's obligations
under the Class A-1 note trust deed including compliance with its material
obligations under the transaction documents.
Delegation
In exercising its powers and performing its obligations and duties under
the master trust deed, the issuer trustee may delegate any or all of the
powers, discretions and authorities of the issuer trustee under the master
trust deed or otherwise in relation to the trust, to a related company of the
issuer trustee or otherwise in accordance with the master trust deed or series
supplement, including, in respect of its payment obligations in respect of the
Class A-1 notes, to the paying agents under the agency agreement. The issuer
trustee at all times remains liable for the acts or omissions of such related
company when acting as delegate.
Issuer Trustee Fees and Expenses
The issuer trustee is entitled to a quarterly fee payable in arrears on
each distribution date. The issuer trustee's fee is calculated to cover the
fees payable to the Class A-1 note trustee and the agents which are paid by the
issuer trustee from its own personal funds.
The fee payable to the issuer trustee may be varied as agreed between the
issuer trustee and the manager provided that each rating agency must be given 3
Business Day's prior notice of any variation and the fee must not be varied if
this would result in a reduction, qualification or withdrawal of the credit
rating of any note or redraw bond.
If the issuer trustee becomes liable to remit to a governmental agency an
amount of Australian goods and services tax in connection with the trust, the
issuer trustee will pay that goods and services tax on its own account and will
not be entitled to any reimbursement from the assets of the trust. However, the
fees payable to the issuer trustee may be adjusted, in accordance with the
series supplement.
At any time within 12 months after the commencement, imposition,
abolition or change in rate of a goods and services tax becomes effective, the
issuer trustee may, by written notice to the manager, require the manager to
commence negotiations to adjust the fees payable to the issuer trustee so that
it is not economically disadvantaged by the effect of the change in the goods
and services tax. Any adjustment to fees will be subject to written
confirmation from the rating agencies that the adjustment will not result in a
reduction, qualification or withdrawal of the credit ratings then assigned to
the notes.
The issuer trustee will be indemnified and is entitled to be reimbursed
out of the assets of the trust for costs, charges and expenses which it may
incur in respect of and can attribute to the trust including, amongst other
costs, disbursements in connection with the assets of the trust, the auditing
of the trust, taxes payable in respect of the trust, legal costs and amounts in
connection with the exercise of any power or discretion or the performance of
any obligation in relation to the trust approved by the manager which approval
is not to be unreasonably withheld.
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Removal of the Issuer Trustee
The issuer trustee is required to retire as issuer trustee following an
Issuer Trustee Default. If the issuer trustee refuses to retire following an
Issuer Trustee Default the manager may remove the issuer trustee immediately,
or, if the Issuer Trustee Default relates only to a change in ownership or
merger without assumption of the issuer trustee, upon 30 days notice in
writing.
The manager must use reasonable endeavors to appoint a qualified
substitute issuer trustee who is approved by the ratings agencies of all the
Medallion Programme trusts within 30 days of the retirement or removal of the
issuer trustee. Until a substitute issuer trustee is appointed, the manager
must act as issuer trustee and will be entitled to receive the issuer trustee's
fee.
If after 30 days the manager is unable to appoint a qualified substitute
issuer trustee who is approved by the ratings agencies, it must convene a
meeting of all debt security holders, including the noteholders and redraw
bondholders, and all beneficiaries, including the residual unitholder, of all
the Medallion Programme trusts under the master trust deed at which a
substitute issuer trustee may be appointed by resolution of not less than 75%
of the votes at that meeting or by a resolution in writing signed by all debt
security holders and beneficiaries.
Voluntary Retirement of the Issuer Trustee
The issuer trustee may resign on giving to the manager not less than 3
months' notice in writing, or such lesser period as the manager and the issuer
trustee may agree, of its intention to do so.
Upon retirement, the issuer trustee must appoint a qualified substitute
issuer trustee who is approved by the ratings agencies and the manager. If the
issuer trustee does not propose a substitute issuer trustee at least one month
prior to its proposed retirement, the manager may appoint a qualified
substitute issuer trustee who is approved by the ratings agencies.
If a substitute issuer trustee has not been appointed upon the expiry of
the 3 month notice period, the manager will act as issuer trustee. If the
manager is unable to appoint a qualified substitute issuer trustee within a
further 30 days, it must convene a meeting of all debt security holders,
including the noteholders and redraw bondholders, and all beneficiaries,
including the residual unitholder, of all the Medallion Programme trusts under
the master trust deed at which a substitute issuer trustee may be appointed by
resolution of not less than 75% of the votes at that meeting or by a resolution
in writing signed by all debt security holders and beneficiaries.
The retiring issuer trustee must indemnify the manager and the substitute
issuer trustee in respect of all costs incurred as a result of its removal or
retirement.
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Limitation of the Issuer Trustee's Liability
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 incurred
by the issuer trustee acting as trustee of the trust under or in connection
with the transaction documents, except with respect to the following paragraph,
is limited to and can be enforced against the issuer trustee only to the extent
to which it can be satisfied out of the assets of the trust out of which the
issuer trustee is actually indemnified for the liability. Except in the
circumstances described in the following paragraph, this limitation of the
issuer trustee's liability applies despite any other provisions 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 notes, the redraw bonds, the
master trust deed, the series supplement or any other transaction document.
Noteholders, redraw bondholders and the parties to the transaction documents
may not sue the issuer trustee in respect of liabilities incurred by it acting
as trustee of the trust in any capacity other than as trustee of the trust and
may not seek to appoint a liquidator or administrator to the issuer trustee or
to appoint a receiver to the issuer trustee, except in relation to the assets
of the trust and may not prove in any liquidation, administration or
arrangements of or affecting the issuer trustee, except in relation to the
assets of the trust.
The limitation in the previous paragraph 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 indemnification out of the
assets of the trust as a result of the issuer trustee's fraud, negligence or
wilful default or the fraud, negligence or wilful default of its officers,
employees or agents or any person for whom the issuer trustee is liable under
the terms of the transaction documents. For these purposes a wilful default
does not include a default which arises as a result of a breach of a
transaction document by any other person, other than any person for whom the
issuer trustee is liable under the terms of the transaction documents, or which
is required by law or a proper instruction or direction of a meeting of Secured
Creditors of the trust or noteholders, bondholders or other debt security
holders or beneficiaries of a Medallion Program trust.
In addition, the manager, the servicer, the agents, the Class A-1 note
trustee and other persons are responsible for performing a variety of
obligations in relation to the trust. An act or omission of the issuer trustee
will not be considered to be fraudulent, negligent or a wilful default to the
extent to which it was caused or contributed to by any failure by any such
person to fulfil its obligations relating to the trust or by any other act or
omission of such a person.
Rights of Indemnity of Issuer Trustee
The issuer trustee is indemnified out of the assets of the trust for any
liability properly incurred by the issuer trustee in performing or exercising
any of its powers or duties. This indemnity is in addition to any indemnity
allowed to the issuer trustee by law, but does not extend to any liabilities
arising from a breach of trust by the issuer trustee or from the issuer
trustee's fraud, negligence or wilful default.
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The issuer trustee is indemnified out of the assets of the trust against
certain payments it may be liable to make under the Australian Consumer Credit
Code. The servicer also indemnifies the issuer trustee in relation to such
payments in certain circumstances 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. See "Legal Aspects of the Housing Loans--Consumer
Credit Code."
The Manager
Powers
The manager's general duty is to manage the assets of the trust which are
not serviced by the servicer. In addition, the manager has a number of
specific responsibilities including making all necessary determinations to
enable the issuer trustee to make the payments and allocations required on
each distribution date in accordance with the series supplement, directing the
issuer trustee to make those payments and allocations, keeping books of
account and preparing the tax returns of the trust and monitoring support
facilities.
The manager must act honestly and in good faith 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 and the other transaction documents in a proper and
efficient manner and exercise such prudence as a prudent person of business
would exercise in performing its express functions and in exercising its
discretions under the master trust deed and the other transaction documents
having regard to the interests of noteholders, redraw bondholders and the
residual unitholder.
Delegation
The manager may, in carrying out and performing its duties and
obligations in relation to the trust, appoint any person as attorney or agent
of the manager with such powers as the manager thinks fit including the power
to sub-delegate provided that the manager may not delegate a material part of
its duties and obligations in relation to the trust. The manager remains
liable for the acts or omissions of such attorneys or agents to the extent
that the manager would itself be liable.
Manager's Fees, Expenses and Indemnification
The manager is entitled to a quarterly fee payable in arrears on each
distribution date.
The fee payable to the manager may be varied as agreed between the issuer
trustee and the manager provided that each rating agency must be given 3
Business Day's prior notice of any variation and the fee must not be varied if
this would result in a reduction, qualification or withdrawal of the credit
rating of any note or redraw bond.
If the manager becomes liable to remit to a governmental agency an amount
of Australian goods and services tax in connection with the trust, the manager
will pay goods and services tax on its own account and will not be entitled to
any reimbursement from the assets of the trust. However, the fees payable to
the manager may be adjusted, in accordance with the series supplement.
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The manager and the servicer may from time to time agree to adjust the
management fee subject to written confirmation from the rating agencies that
the adjustment will not result in a reduction, qualification or withdrawal of
the credit ratings then assigned by them to the notes. Any adjustments will be
effective following written notice of the adjustment by the manager to the
issuer trustee.
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
If the issuer trustee becomes aware that a Manager Default has occurred
and is subsisting the issuer trustee must immediately terminate the appointment
of the manager and must appoint a substitute manager in its place. The manager
indemnifies the issuer trustee in respect of all costs incurred as a result of
its replacement by the issuer trustee.
The manager may retire on giving to the issuer trustee 3 months, or such
lesser period as the manager and the issuer trustee may agree, notice in
writing of its intention to do so. Upon its retirement, the manager may appoint
another corporation approved by the issuer trustee as manager in its place. If
the manager does not propose a replacement by the date one month prior to the
date of its retirement the issuer trustee may appoint a replacement manager as
from the date of the manager's retirement.
Until a substitute manager is appointed, the issuer trustee must act as
manager and will be entitled to receive the manager's fee.
Limitation of Manager's Liability
The manager is not personally liable to indemnify the issuer trustee or
to make any payments to any other person in relation to the trust except where
arising from any fraud, negligence, wilful default or breach of duty by it in
its capacity as manager of the trust. A number of limitations on the manager's
liability are set out in full in the master trust deed and the other
transaction documents. These include the limitation that the manager will not
be liable for any loss, costs, liabilities or expenses:
. arising out of the exercise or non-exercise of its discretions under
any transaction document or otherwise in relation to the trust;
. arising out of the exercise or non-exercise of a discretion on the
part of the issuer trustee, the seller or the servicer or any act or
omission of the issuer trustee, the seller or the servicer; or
. caused by its failure to check any calculation, information,
document, form or list supplied or purported to be supplied to it by
the issuer trustee, the seller, the servicer or any other person,
except to the extent that they are caused by the manager's own fraud,
negligence or wilful default.
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Limits on Rights of Noteholders and Redraw Bondholders
Apart from the security interest arising under the security trust deed,
the noteholders and redraw bondholders do not own and have no interest in the
trust or any of its assets. In particular, no noteholder or redraw bondholder
is entitled to:
. an interest in any particular part of the trust or any asset of the
trust;
. require the transfer to it of any asset of the trust;
. interfere with or question the exercise or non-exercise of the rights
or powers of the seller, the servicer, the manager or the issuer
trustee in their dealings with the trust or any assets of the trust;
. attend meetings or take part in or consent to any action concerning
any property or corporation in which the issuer trustee has an
interest;
. exercise any rights, powers or privileges in respect of any asset of
the trust;
. lodge a caveat or other notice forbidding the registration of any
person as transferee or proprietor of or any instrument affecting any
asset of the trust or claiming any estate or interest in any asset of
the trust;
. negotiate or communicate in any way with any borrower or security
provider under any housing loan assigned to the issuer trustee or
with any person providing a support facility to the issuer trustee;
. seek to wind up or terminate the trust;
. seek to remove the servicer, manager or issuer trustee;
. interfere in any way with the trust;
. take proceedings against the issuer trustee, the manager, the seller
or the servicer or in respect of the trust or the assets of the
trust. This will not limit the right of noteholders and redraw
bondholders to compel the issuer trustee, the manager and the
security trustee to comply with their respective obligations under
the master trust deed, the series supplement, the Class A-1 note
trust deed and the security trust deed, in the case of the issuer
trustee and the manager, and the security trust deed, in the case of
the security trustee;
. have any recourse to the issuer trustee or the manager in their
personal capacity, except to the extent of fraud, negligence or
wilful default on the part of the issuer trustee or the manager
respectively; or
. have any recourse whatsoever to the seller or to the servicer in
respect of a breach by the seller or the servicer of their respective
obligations and duties under the series supplement.
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The Class A-1 Note Trustee
Appointment of Class A-1 Note Trustee
The Bank of New York, New York Branch will serve as the Class A-1 note
trustee. The Bank of New York is a banking corporation duly organized and
existing under the laws of New York. The corporate trust office of the Class A-
1 note trustee responsible for the administration of the Class A-1 note
trustee's obligations in relation to the trust is located at 101 Barclay
Street, 21W, New York, New York 10286.
Class A-1 Note Trustee's Fees and Expenses
The issuer trustee must pay the Class A-1 note trustee's fees out of its
personal funds, other than fees in respect of any additional duties outside the
scope of the Class A-1 note trustee's normal duties under the transaction
documents.
Delegation by Class A-1 Note Trustee
The Class A-1 note trustee will be entitled to delegate its duties,
powers, authorities, trusts and discretions under the Class A-1 note trust deed
to any related company of the Class A-1 note trustee or to any other person in
accordance with the Class A-1 note trust deed or as agreed by the manager.
Indemnity of Class A-1 Note Trustee
The Class A-1 note trustee will be entitled to be indemnified from the
assets of the trust against all liability, expense, costs, charges, taxes and
stamp duties other than general overhead costs and expenses properly incurred
by the Class A-1 note trustee, or its properly appointed agents or delegates,
in the performance of its obligations under the Class A-1 note trust deed or
any other transaction document.
However, the Class A-1 note trustee will not be entitled to be
indemnified against any liability for breach of trust or any liability which by
virtue of any rule of law would otherwise attach to it in respect of fraud or
wilful default of which it may be guilty in relation to its duties under the
Class A-1 note trust deed.
Qualifications of Class A-1 Note Trustee
The Class A-1 note trustee is, and 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 Class A-1 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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Removal of Class A-1 Note Trustee
The Class A-1 note trustee will retire as note trustee if:
. an Insolvency Event occurs in relation to the note trustee in its
personal capacity or in respect of its personal assets and not in its
capacity as trustee of any trust or in respect of any assets it holds
as trustee;
. it ceases to carry on business;
. it ceases to be an Eligible Trust Corporation;
. it is so directed by the Class A-1 noteholders holding no less than
75% of the aggregate Invested Amount of the Class A-1 notes;
. when required to do so by the manager or the issuer trustee by notice
in writing, it fails or neglects within 20 Business Days after
receipt of such notice to carry out or satisfy any material duty
imposed on it by the note trust deed or any transaction document; or
. there is a change in ownership of 50% or more of the issued equity
share capital of the Class A-1 note trustee from the position as at
the date of the Class A-1 note trust deed or effective control of the
Class A-1 note trustee alters from the position as at the date of the
Class A-1 note trust deed unless in either case approved by the
manager, whose approval must not be unreasonably withheld.
If any of these events occurs and the Class A-1 note trustee refuses to
retire, the manager may remove the Class A-1 note trustee from office
immediately by notice in writing. On the retirement or removal of the Class A-1
note trustee:
. the manager must promptly notify the rating agencies; and
. subject to any approval required by law, the manager must use
reasonable endeavors to appoint in writing some other Eligible Trust
Corporation approved by the rating agencies to be the substitute
Class A-1 note trustee.
Class A-1 Note Trustee May Retire
The Class A-1 note trustee may retire at any time on 3 months, or such
lesser period as the manager, the issuer trustee and the Class A-1 note trustee
agree, notice in writing to the issuer trustee, the manager and the rating
agencies, without giving any reason and without being responsible for any
liabilities incurred by reason of its retirement provided that the period of
notice may not expire within 30 days before a distribution date. Upon
retirement the Class A-1 note trustee, subject to any approval required by law,
may appoint in writing any other Eligible Trust Corporation approved by the
rating agencies and the manager, which approval must not be unreasonably
withheld by the manager, as Class A-1 note trustee. If the Class A-1 note
trustee does not propose a replacement at least one month prior to its proposed
retirement, the manager may appoint a substitute Class A-1 note trustee, which
must be an Eligible Trust Corporation approved by the rating agencies.
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Appointment by Class A-1 Noteholders
No retirement or removal of the Class A-1 note trustee will be effective
until a substitute Class A-1 note trustee has been appointed.
If a substitute Class A-1 note trustee has not been appointed at a time
when the position of Class A-1 note trustee would, but for the foregoing
requirement, become vacant, the issuer trustee must promptly advise the Class
A-1 noteholders. A special majority of Class A-1 noteholders, being Class A-1
noteholders who hold not less than 75% of the aggregate Invested Amount of all
Class A-1 notes, may appoint an Eligible Trust Corporation to act as Class A-1
note trustee.
The Security Trust Deed
General
P.T. Limited of Level 7, 39 Hunter Street, Sydney, Australia is the
security trustee. The issuer trustee will grant a 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 Secured Moneys owing to the noteholders, the redraw bondholders, the
servicer, the Class A-1 note trustee in its personal capacity and for and on
behalf of the Class A-1 noteholders, each paying agent, the seller, the
liquidity facility provider, the standby redraw facility provider and each swap
provider. These secured parties are collectively known as the Secured
Creditors.
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 chargee. Fixed charges are usually
given over real property, marketable securities and other assets which will not
be dealt with by the company.
A floating charge, like that created by the security trust deed, does not
attach to specific assets but instead "floats" over a class of assets which may
change from time to time. The company granting the floating charge may deal
with those assets and give third parties title to those assets free from any
encumbrance, provided such dealings and transfers of title are in the ordinary
course of the company's business. The issuer trustee has agreed not to dispose
of or create interests in the assets of the trust subject to the floating
charge except in accordance with the master trust deed, the series supplement
or any other transaction document and the manager has agreed not to direct the
issuer trustee to take any such actions. If, however, the issuer trustee
disposes of any of the trust assets, including any housing loan, other than in
accordance with the master trust deed, the series supplement or any other
transaction document, the person acquiring the property may nevertheless take
it free of the floating charge. The floating charge granted over the trust
assets will crystalize, which means it becomes a fixed charge, upon the
occurrence of an event of default or will become fixed over the affected assets
in the case of certain events of default. On crystallization of the floating
charge, the issuer trustee may not deal with the assets of the trust unless
permitted in accordance with the master trust deed, the series supplement or
any other transaction document.
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The Security Trustee
The security trustee is appointed to act as trustee on behalf of the
Secured Creditors and holds the benefit of the charge over the trust assets in
trust for each Secured Creditor on the terms and conditions of the security
trust deed. If, in the security trustee's opinion, there is a conflict between
the duties owed by the security trustee to any Secured Creditor or class of
Secured Creditors and the interests of noteholders and redraw bondholders as a
whole, the security trustee must give priority to the interests of the
noteholders and redraw bondholders. In addition, the security trustee must give
priority to the interests of the Class A noteholders and redraw bondholders if,
in the security trustee's opinion, there is a conflict between the interests of
Class A noteholders and redraw bondholders and the interests of the Class B
noteholders.
Duties and Liabilities of the Security Trustee
The security trustee's liability to the Secured Creditors is limited to
the amount the security trustee is entitled to recover through its right of
indemnity from the assets held on trust by it under the security trust deed.
However, this limitation will not apply to the extent that the security trustee
limits its right of indemnity as a result of its own fraud, negligence or
wilful default.
The security trust deed contains a range of other provisions regulating
the scope of the security trustee's duties and liabilities. These include the
following:
. the security trustee is not required to monitor whether an event of
default has occurred or compliance by the issuer trustee or manager
with the transaction documents or their other activities;
. the security trustee is not required to do anything unless its
liability is limited in a manner satisfactory to it;
. the security trustee is not responsible for the adequacy or
enforceability of any transaction documents;
. except as expressly stated in the security trust deed, the security
trustee need not give to the Secured Creditors information concerning
the issuer trustee or the trust which comes into the possession of
the security trustee;
. the issuer trustee gives wide ranging indemnities to the security
trustee in relation to its role as security trustee; and
. the security trustee may rely on documents and information provided
by the issuer trustee or manager.
Events of Default
Each of the following is an event of default under the security trust
deed:
. the issuer trustee retires or is removed, or is required to retire or
be removed, as trustee of the trust and is not replaced within 30
days and the manager fails within a further 20 days to convene a
meeting of debt security holders and beneficiaries of the Medallion
Program trusts in accordance with the master trust deed;
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. the security trustee has actual notice or is notified by the manager
or the issuer trustee that the issuer trustee is not entitled for any
reason to fully exercise its right of indemnity against the assets of
the trust to satisfy any liability to a Secured Creditor and the
circumstances are not rectified to the reasonable satisfaction of the
security trustee within 14 days of the security trustee requiring
this;
. the trust is not properly constituted or is imperfectly constituted
in a manner or to an extent that is regarded by the security trustee
acting reasonably to be materially prejudicial to the interests of
any class of Secured Creditor and is incapable of being, or is not
within 30 days of the discovery thereof, remedied;
. an Insolvency Event occurs in respect of the issuer trustee in its
capacity as trustee of the trust;
. distress or execution is levied or a judgment, order or encumbrance
is enforced, or becomes enforceable, over any of the assets of the
trust for an amount exceeding A$1,000,000, either individually or in
aggregate, or can be rendered enforceable by the giving of notice,
lapse of time or fulfilment of any condition;
. the charge under the security trust deed:
. is or becomes wholly or partly void, voidable or unenforceable; or
. loses its priority, subject only to the Prior Interest, as a first
ranking charge, other than as mandatorily preferred by law or by
an act or omission of the security trustee;
. subject only to the Prior Interest, the issuer trustee attempts to
create or allows to exist a security interest over the assets of the
trust otherwise than in accordance with the master trust deed, the
series supplement or the security trust deed;
. the Australian Commissioner of Taxation, or its delegate, determines
to issue a notice under section 74 of the Sales Tax Assessment Act
1992, section 34 of the Taxation Administration Act, 1953 or sections
260-5 to 260-20 of the Taxation Administration Act 1953 or section
218 or 255 of the Income Tax Assessment Act 1936 for any amount due
by the issuer trustee in respect of any tax under any such Act or any
fines and costs imposed on the issuer trustee or a governmental
agency takes any other steps which will result in an amount of tax or
an amount owing to a governmental agency ranking ahead of the charge
with respect to any charged property under a statute; and
. any Secured Moneys are not paid within 10 days of when due, other
than amounts due to the Class B noteholders.
The security trustee may determine that any event that would otherwise be an
event of default under the security trust deed will not be treated as an event
of default, where this will not in the opinion of the security trustee be
materially prejudicial to the interests of the Secured Creditors. However, it
must not do so in contravention of any prior directions in an Extraordinary
Resolution of Voting Secured Creditors. Unless the security trustee has made
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such an election, and providing that the security trustee is actually aware of
the occurrence of an event of default, the security trustee must promptly and,
in any event, within 2 business days, convene a meeting of the Voting Secured
Creditors at which it shall seek at directions from the Voting Secured
Creditors by way of Extraordinary Resolution regarding the action it should
take as a result of that event of default.
Meetings of Voting Secured Creditors
The security trust deed contains provisions for convening meetings of the
Voting Secured Creditors to enable the Voting Secured Creditors 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. Meetings may also be held of a class or classes of Voting
Secured Creditors under the security trust deed.
Voting Procedures
Every question submitted to a meeting of Voting Secured Creditors 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. A representative is a person or body corporate appointed as a
proxy for a Voting Secured Creditor or a representative of a corporate Voting
Secured Creditor under the Australian Corporations Law. 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. If at any meeting a poll
is demanded, every person who is present shall have one vote for every A$10 of
Secured Moneys owing to it, converted, in the case of the Class A-1
noteholders, to Australian dollars at either the A$ Exchange Rate or the spot
rate used for the calculation of amounts payable on the early termination of
the currency swap, whichever produces the lowest amount in Australian dollars.
A resolution of all the Voting Secured Creditors, 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 Secured Creditors.
Enforcement of the Charge
Upon a vote at a meeting of Voting Secured Creditors called following an
event of default under the security trust deed, or by a resolution in writing
signed by all Voting Secured Creditors, the Voting Secured Creditors may direct
the security trustee by Extraordinary Resolution to do any or all of the
following:
. declare all Secured Moneys immediately due and payable;
. appoint a receiver over the trust assets and determine the
remuneration to be paid to that receiver;
. sell and realize the assets of the trust and otherwise enforce the
charge; or
. take any other action as the Voting Secured Creditors may specify in
the terms of such Extraordinary Resolution.
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Any enforcement action taken by the security trustee will only relate to
the same rights in relation to the assets of the trust as are held by the
issuer trustee. This means that even after an enforcement, the security
trustee's interest in the assets of the trust will remain subject to the rights
of the seller and the servicer arising under the master trust deed and the
series supplement.
No Secured Creditor 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 Class A-1 Note Trustee as Voting Secured Creditor
If an event of default, or any event which, with the giving of notice or
lapse of time or both, would constitute an event of default, under the security
trust deed occurs and is continuing, the Class A-1 note trustee must deliver
notice of that event to each Class A-1 noteholder within 10 days, or sooner if
required by the rules of the London Stock Exchange or any other stock exchange
on which the Class A-1 notes are listed, of becoming aware of that event
provided that, except in the case of a default in payment of interest and
principal on the Class A-1 notes, the note trustee may withhold such notice if
it determines in good faith that withholding the notice is in the interests of
Class A-1 noteholders.
The rights, remedies and discretion of the Class A-1 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 Class A-1 note trustee on behalf of
the Class A noteholders except in limited circumstances as specified in the
security trust deed. The security trustee may rely on any instructions or
directions given to it by the Class A-1 note trustee as being given on behalf
of the Class A-1 noteholders without inquiry about compliance with the Class A-
1 note trust deed.
If any of the Class A-1 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-1 notes, the Class A-1 note trustee must not vote under the security trust
deed to dispose of the assets of the trust unless:
. a sufficient amount would be realized to discharge in full all
amounts owing to the Class A-1 noteholders, and any other amounts
payable by the issuer trustee ranking in priority to or equal with
the Class A-1 notes;
. the Class A-1 note trustee is of the opinion, reached after
considering at any time and from time to time the advice of a
investment bank or other financial adviser selected by the Class A-1
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; or
. the Class A-1 note trustee is so directed by the holders of 75% of
the aggregate Invested Amount of the Class A-1 notes.
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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 an Extraordinary Resolution of the Voting Secured
Creditors in accordance with the security trust deed, unless in the opinion of
the security trustee the delay required to obtain such directions would be
prejudicial to Secured Creditors as a class. The security trustee is not
obligated to act unless it obtains an indemnity from the Voting Secured
Creditors 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 Secured
Creditors, or is required by an Extraordinary Resolution to take any action
under the security trust deed, and advises the Voting Secured Creditors before
or during the meeting that it will not act in relation to the enforcement of
the security trust deed unless it is personally indemnified by the Voting
Secured Creditors 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
Secured Creditors refuse to grant the requested indemnity, and put the security
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 Secured Creditors may exercise such of those powers conferred on them by
the security trust deed as they determine by Extraordinary Resolution.
Priorities under the Security Trust Deed
The proceeds from the enforcement of the charge are to be applied in the
following order of priority, subject to any statutory or other priority which
may be given priority by law and subject to the application of proceeds of the
termination of the currency swap as described in the next paragraph:
. first, rateably to pay amounts owing or payable under the security
trust deed to indemnify the security trustee against all loss and
liability incurred by the security trustee or any receiver in acting
under the security trust deed, except the receiver's remuneration,
and in payment of the Prior Interest;
. second, to pay rateably any fees due to the security trustee, the
Class A-1 note trustee or the principal paying agent and the
receiver's remuneration;
. third, to pay rateably other outgoings and liabilities that the
receiver, the security trustee or the Class A-1 note trustee have
incurred in acting under the security trust deed, and, in the case
of the Class A-1 note trustee, under the Class A-1 note trust deed;
. fourth, to pay any security interests over the assets of the trust
of which the security trustee is aware having priority to the charge
under the security trust deed, other than the Prior Interest, in the
order of their priority;
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. fifth, to pay the Class A-1 noteholders the proceeds, if any, of any
termination payment received from a currency swap provider toward
satisfaction of any Secured Moneys owing in relation to the Class A-
1 notes;
. sixth, to pay the liquidity facility provider any unutilized cash
collateral lodged with the issuer trustee by the liquidity facility
provider and any unpaid interest on that cash collateral;
. seventh, to pay the seller any unpaid Accrued Interest Adjustment;
. eighth, to pay rateably:
. the Class A noteholders and redraw bondholders all other Secured
Moneys owing in relation to the Class A notes and redraw bonds.
For this purpose, the Secured Moneys owing in respect of the
Class A notes and redraw bonds will be calculated based on a
principal component of their Stated Amount and in the case of the
Class A-1 notes will be converted from US dollars to Australian
dollars at the A$ Exchange Rate or the spot exchange rate used
for the calculation of any termination payment upon the
termination of the currency swap, as determined by the security
trustee in each case, which ever rate produces the lesser amount
of Australian dollars. This will be applied:
. first, rateably towards all unpaid interest on the Class A
notes and redraw bonds; and
. second, rateably to reduce the Stated Amount of the Class A
notes and redraw bonds;
. any other Secured Moneys owing to the liquidity facility
provider;
. any Secured Moneys owing to the standby redraw facility provider
provided that for this purpose the Secured Moneys owing in
respect of the principal component of the standby redraw facility
will exclude unreimbursed principal charge-offs;
. rateably all Secured Moneys owing to each swap provider; and
. all unpaid redraws and further advances owing to the seller and
the seller deposit;
. ninth, to pay rateably to the Class A noteholders, the redraw
bondholders and the standby redraw facility provider all
unreimbursed principal charge-offs constituting remaining Secured
Moneys owing in respect of the Class A notes, the redraw bonds and
the standby redraw facility. For this purpose, the Secured Moneys in
respect of the Class A-1 notes will be converted from US dollars to
Australian dollars at the A$ Exchange Rate or the spot exchange rate
used for the calculation of any termination payment upon the
termination of the currency swap, as determined by the security
trustee in each case, which ever rate produces the lesser amount of
Australian dollars;
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. tenth, if there are still Secured Moneys owing in respect of the
Class A-1 notes, after the application of the preceding paragraphs,
to pay the remaining Secured Moneys owing in relation to the Class
A-1 notes;
. eleventh, equally to the Class B noteholders;
. twelfth, to pay rateably to each Secured Creditor any monetary
liabilities owing to that Secured Creditor under any transaction
document and not satisfied under the preceding paragraphs;
. thirteenth, to pay subsequent security interests over the assets of
the trust of which the security trustee is aware, in the order of
their priority; and
. fourteenth, to pay any surplus to the issuer trustee to be
distributed in accordance with the terms of the master trust deed
and the series supplement. The surplus will not carry interest as
against the security trustee.
Any proceeds from the termination of the currency swap must be applied first in
accordance with the fifth bullet point above, with any remaining proceeds to be
applied in accordance with the order of priority set out above.
Payments to Class A-1 noteholders will be effected in US$ obtained by the
security trustee either from a US$ termination payment received from a currency
swap provider or by converting the A$ available for such payments, based on the
priority set out above, at the spot exchange rate.
Upon enforcement of the security created by the security trust deed, the
net proceeds may be insufficient to pay all amounts due on redemption to the
noteholders and redraw bondholders. Any claims of the noteholders and redraw
bondholders remaining after realization of the security and application of the
proceeds shall 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 incurred in performing its duties under the
security trust deed. The security trustee shall receive a fee in the amount
agreed from time to time by the issuer trustee, the security trustee and the
manager provided that the rating agencies must be given prior notice of any
variation of the fee and the fee may not be varied if this would result in a
reduction, qualification or withdrawal of the credit rating of any note or
redraw bond.
Retirement and Removal of the Security Trustee
The security trustee must retire if:
. an Insolvency Event occurs with respect to it;
. it ceases to carry on business;
. the issuer trustee, where it is a related body corporate, retires or
is removed from office and the manager requires the security trustee
by notice in writing to retire;
. the Voting Secured Creditors require it to retire by an
Extraordinary Resolution;
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. it breaches a material duty and does not remedy the breach with 14
days notice from the manager or the issuer trustee;
. there is a change in ownership or effective control of the security
trustee without the consent of the manager; or
. in the case of the first security trustee only, its associated
company retires or is removed as trustee of the trust.
If the security trustee is removed, the issuer trustee, or failing it the
manager, may appoint a replacement security trustee which is an authorized
trustee corporation under the Australian Corporations Law with the approval of
the rating agencies.
The security trustee may retire on 3 months notice. If the security
trustee retires, it may appoint an authorized trustee corporation to act in its
place with the approval of the manager, which must not be unreasonably
withheld, and the rating agencies. If the security trustee does not propose a
replacement by one month prior to the date of its retirement, the manager is
entitled to appoint a substitute security trustee which must be an authorized
trustee corporation approved by the rating agencies.
If a substitute security trustee has not been appointed at a time when
the position of security trustee becomes vacant, the manager must act as
security trustee and must promptly convene a meeting of Voting Secured
Creditors who may by Extraordinary Resolution appoint a replacement security
trustee. While the manager acts as security trustee, it is entitled to the
security trustee's fee.
Amendment
The issuer trustee, the manager, the security trustee and the Class A-1
note trustee, may alter, add to or revoke any provision of the security trust
deed, subject to the limitations described below, if the alteration, addition
or revocation:
. in the opinion of the security trustee is made to correct a manifest
error or is of a formal, technical or administrative nature only;
. in the opinion of the security trustee, or of a lawyer instructed by
the security trustee, is necessary or expedient to comply with the
provisions of any law or regulation or with the requirements of any
statutory authority;
. in the opinion of the security trustee is appropriate or expedient
as a consequence of an alteration to any law or regulation or
altered requirements of the government of any jurisdiction or any
governmental agency or any decision of any court including an
alteration, addition or revocation which is appropriate or expedient
as a result of an alteration to Australia's tax laws or any ruling
by the Australian Commissioner or Deputy Commissioner of Taxation or
any governmental announcement or statement or any decision of any
court, 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 under the security trust deed;
. in the opinion of the security trustee is otherwise desirable for
any reason.
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If any alteration, addition or revocation referred to in the last bullet
point above, in the opinion of the Class A-1 note trustee, affects the Class A-
1 noteholders only or in a manner differently to Secured Creditors generally,
alters the terms of the Class A-1 notes or is materially prejudicial to the
interests of Class A-1 noteholders, the alteration, addition or revocation will
not be effective unless the consent of Class A-1 noteholders owning 75% of the
aggregate Invested Amount balance of the Class A-1 notes is obtained.
Any alteration, addition or revocation must be notified to the rating
agencies 5 Business Days in advance.
The Class A-1 note trustee will be entitled to assume that any proposed
alteration, addition or revocation will not be materially prejudicial to the
interests of the Class A-1 noteholders if each of the rating agencies confirms
in writing that if the alteration, addition or revocation is effected this will
not lead to a reduction, qualification or withdrawal of the then rating given
to the Class A-1 notes by the rating agency.
If any alteration, addition or revocation referred to above effects or
purports to effect a Payment Modification it will not be effective as against a
given Class A-1 noteholder unless consented to by that Class A-1 noteholder.
The Liquidity Facility
Advances and Facility Limit
Under the liquidity facility agreement, the liquidity facility provider
agrees to make advances to the issuer trustee for the purpose of meeting
shortfalls between the Finance Charge Collections, Mortgage Insurance Interest
Proceeds and Other Income on a distribution date and the payments to be made
from the Available Income Amount, other than reimbursements of principal
charge-offs or payments to the residual unitholder, on that distribution date.
The liquidity facility provider agrees to make advances to the issuer
trustee up to the liquidity limit. The liquidity limit is equal to the least
of:
. A$48 million;
. the Performing Housing Loans Amount at that time; and
. the amount agreed by the liquidity facility provider, the manager
and the rating agencies.
Conditions Precedent to Drawing
The liquidity facility provider is only obliged to make an advance if:
. no event of default under the liquidity facility exists or will
result from the provision of the advance;
. the representations and warranties by the issuer trustee and the
manager in any transaction document are true and correct as of the
date of the drawdown notice and the drawdown; and
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. other than statutory priorities, the liquidity facility provider has
not received notice of any security interest ranking in priority to
or equal with its security interest under the security trust deed.
Interest and fees under the Liquidity Facility
Interest accrues daily on the principal outstanding under the liquidity
facility at the Bank Bill Rate plus a margin, calculated on the number of days
elapsed and a 365 day year. Interest is payable quarterly in arrears on each
distribution date to the extent that funds are available for this purpose in
accordance with the series supplement. Unpaid interest will be capitalized and
will accrue interest from the date not paid.
A commitment fee with respect to the unutilized portion of the liquidity
limit accrues daily, calculated on the number of days elapsed and a 365 day
year. The commitment fee is payable quarterly in arrears on each distribution
date to the extent that funds are available for this purpose in accordance with
the series supplement.
The interest rate and the commitment fee under the liquidity facility may
be varied by agreement between the liquidity facility provider, the issuer
trustee and the manager. However, the rating agencies must be notified of any
proposed variation and the interest rate and the commitment fee will not be
varied if this would result in the reduction, qualification or withdrawal of
any credit rating of a note or redraw bond.
Repayment of Liquidity Advances
Advances under the liquidity facility are repayable on the following
distribution date from the funds available for this purpose in accordance with
the series supplement.
Downgrade of Liquidity Facility Provider
If the liquidity facility provider does not have short term credit
ratings of at least A-1+ by Standard & Poor's, P-1 by Moody's and F1+ by Fitch
IBCA, it must within 5 Business Days, or longer if agreed by the rating
agencies, deposit in the collections account an amount equal to the unutilized
portion of the liquidity limit. Following this, all drawings under the
liquidity facility will be made from that deposit. If the liquidity facility
provider regains the required credit ratings, the unutilized portion of that
deposit will be repaid to it.
Events of Default under the Liquidity Facility Agreement
The following are events of default under the liquidity facility:
. the issuer trustee fails to pay to the liquidity facility provider
any amount owing to it under the liquidity facility agreement within
10 Business Days of its due date where funds are available for this
purpose under the series supplement;
. the issuer trustee alters the priority of payments under the
transaction documents without the consent of the liquidity facility
provider; and
. an event of default occurs under the security trust deed and any
enforcement action is taken under the security trust deed.
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Consequences of an Event of Default
At any time after an event of default under the liquidity facility
agreement, the liquidity facility provider may do all or any of the following:
. declare all moneys actually or contingently owing under the
liquidity facility agreement immediately due and payable; and
. terminate the liquidity facility.
Termination
The liquidity facility will terminate upon the earlier to occur of:
. the distribution date in July, 2031;
. the date on which the liquidity facility provider declares the
liquidity facility terminated following an event of default under
the liquidity facility or where it becomes unlawful or impossible to
maintain or give effect to its obligations under the liquidity
facility;
. the date one month after all notes and redraw bonds are redeemed;
. the distribution date upon which the issuer trustee, as directed by
the manager, appoints a replacement liquidity facility provider,
provided that each rating agency has confirmed that this will not
result in a reduction, qualification or withdrawal of any credit
rating assigned by it to the notes or redraw bonds; and
. the date upon which the liquidity limit is reduced to zero by
agreement between the liquidity facility provider, the manager and
the rating agencies.
Increased Costs
If, by reason of any change in law or its interpretation or
administration or because of compliance with any request from a governmental
agency, the liquidity facility provider incurs new or increased costs, obtains
reduced payments or returns or becomes liable to make any payment based on the
amount of advances outstanding under the liquidity facility agreement, the
issuer trustee must pay the liquidity facility provider an amount sufficient to
indemnify it against that cost, increased cost, reduction or liability.
The Standby Redraw Facility
Advances and Facility Limit
Under the standby redraw facility agreement, the standby redraw facility
provider agrees to make advances to the issuer trustee for the purpose of
reimbursing redraws and further advances made by the seller to the extent that
Principal Collections, Mortgage Insurance Principal Proceeds, Other Principal
Amounts and Principal Charge-off Reimbursements are insufficient to fund such
redraws and further advances on a distribution date.
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The standby redraw facility provider agrees to make advances to the
issuer trustee up to the redraw limit. The redraw limit is equal to the lesser
of:
. A$50 million; and
. the Performing Housing Loans Amount at that time,
or such greater or lesser amount agreed by the standby redraw facility
provider, the manager and the rating agencies.
Conditions Precedent to Drawing
The standby redraw facility provider is only obliged to make an advance
if:
. no event of default under the standby redraw facility exists or will
result from the provision of the advance;
. the representations and warranties by the issuer trustee in any
transaction document are true and correct as of the date of the
drawdown notice and the drawdown; and
. other than statutory priorities, the standby redraw facility
provider has not received notice of any security interest ranking in
priority to or equal with its security under the security trust
deed.
Interest and fees under the Standby Redraw Facility
Interest accrues daily on the principal outstanding under the standby
redraw facility, adjusted for principal charge-offs and principal charge-off
reimbursements as described below, at the Bank Bill Rate plus a margin,
calculated on the number of days elapsed and a 365 day year. Interest is
payable quarterly in arrears on each distribution date to the extent that funds
are available for this purpose in accordance with the series supplement. Unpaid
interest will be capitalized and will accrue interest from the date not paid.
A commitment fee with respect to the unutilized portion of the redraw
limit accrues daily, calculated on the number of days elapsed and a 365 day
year. The commitment fee is payable quarterly in arrears on each distribution
date to the extent that funds are available for this purpose in accordance with
the series supplement.
The interest rate and the commitment fee under the standby redraw
facility may be varied by agreement between the standby redraw facility
provider, the issuer trustee and the manager. However, the rating agencies must
be notified of any proposed variation and the interest rate and the commitment
fee will not be varied if this would result in the reduction, qualification or
withdrawal of any credit rating of a note or redraw bond.
Repayment of Standby Redraw Advances
Advances under the standby redraw facility are repayable on the following
distribution date from the funds available for this purpose in accordance with
the series supplement.
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However, in certain circumstances, the principal outstanding under the
standby redraw facility will be reduced by way of principal charge-off or
increased by a reimbursement of principal charges-offs, as described in
"Description of the Class A-1 Notes--Principal Charge-offs." The amount of
principal to be repaid under the standby redraw facility on a distribution
date is the outstanding principal as reduced by any principal charge-offs or
increased by any principal charge-off reimbursements.
Events of Default under the Standby Redraw Facility Agreement
The following are events of default under the standby redraw facility:
. the issuer trustee fails to pay to the standby redraw facility
provider any amount owing under the standby redraw facility agreement
within 10 Business Days of its due date where funds are available for
this purpose under the series supplement;
. the issuer trustee alters the priority of payments under the
transaction documents without the consent of the standby redraw
facility provider; and
. an event of default occurs under the security trust deed and any
enforcement action is taken under the security trust deed.
Consequences of an Event of Default
At any time after an event of default under the standby redraw facility
agreement, the standby redraw facility provider may do all or any of the
following:
. declare all moneys actually or contingently owing under the standby
redraw facility agreement immediately due and payable; and
. terminate the standby redraw facility.
Termination
The term of the standby redraw facility is 364 days from the date of the
standby redraw facility agreement. The term may be renewed at the option of
the standby redraw facility provider if it receives a request for an extension
from the manager 60 days prior to the scheduled termination. If the standby
redraw facility provider agrees to an extension, the term of the standby
redraw facility will be extended to the date specified by the standby redraw
facility provider, which must not be more than 364 days, subject to any
further agreed extension.
The standby redraw facility will terminate upon the earlier to occur of
the following:
. the date on which the standby redraw facility provider declares the
standby redraw facility terminated following an event of default
under the standby redraw facility or where it becomes unlawful or
impossible to maintain or give effect to its obligations under the
standby redraw facility; and
. 364 days from the date of the standby redraw facility agreement or
any extension as set out above.
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Increased Costs
If by reason of any change in law or its interpretation or
administration or because of compliance with any request from a governmental
agency, the standby redraw facility provider incurs new or increased costs,
obtains reduced payments or returns or becomes liable to any payment based on
the amount of advances outstanding under the standby redraw facility
agreement, the issuer trustee must pay the standby redraw facility provider an
amount sufficient to indemnify it against that cost, increased cost, reduction
or liability.
Servicing of the Housing Loans
Appointment and Obligations of Servicer
Commonwealth Bank is appointed as servicer of the housing loans on the
terms set out in the series supplement.
The servicer is required to administer the housing loans in the
following manner:
. in accordance with the series supplement;
. in accordance with the servicer's procedures manual and policies as
they apply to those housing loans, which are under regular review
and may change from time to time in accordance with business
judgment and changes to legislation and guidelines established by
relevant regulatory bodies; and
. to the extent not covered by the preceding paragraphs, in accordance
with the standards and practices of a prudent lender in the business
of originating and servicing retail home loans.
The servicer's actions in servicing the housing loans are binding on the
issuer trustee, whether or not such actions are in accordance with the
servicer's obligations. The servicer is entitled to delegate its duties under
the series supplement however it must not delegate a material part of its
duties. The servicer at all times remains liable for the acts or omissions of
any delegate to the extent that those acts or omissions constitute a breach of
the servicer's obligations.
Powers
The function of servicing the housing loans is vested in the servicer
and it is entitled to service the housing loans to the exclusion of the issuer
trustee. The servicer has a number of express powers, which include the power:
. to release a borrower from any amount owing where the servicer has
written-off or determined to write-off that amount or where it is
required to do so by a court or other binding authority;
. subject to the preceding paragraph, to waive any right in respect of
the housing loans and their securities, except that the servicer may
not increase the term of a housing loan beyond 30 years from its
settlement date unless required to do so by a court or other binding
authority;
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. to release or substitute any security for a housing loan in
accordance with the relevant mortgage insurance policy;
. to consent to subsequent securities over a mortgaged property for a
housing loan, provided that the security for the housing loan
retains priority over any subsequent security for at least the
principal amount and accrued and unpaid interest on the housing loan
plus any extra amount determined in accordance with the servicer's
procedures manual and policies;
. to institute litigation to recover amounts owing under a housing
loan, but it is not required to do so if, based on advice from
internal or external legal counsel, it believes that the housing
loan is unenforceable or such proceedings would be uneconomical;
. to take other enforcement action in relation to a housing loan as it
determines should be taken; and
. to compromise, compound or settle any claim in respect of a mortgage
insurance policy or a general insurance policy in relation to a
housing loan or a mortgaged property for a housing loan.
Undertakings by the Servicer
The servicer has undertaken, among other things, the following:
. upon being directed by the issuer trustee following a Perfection of
Title Event, it will promptly take all action required or permitted
by law to assist the issuer trustee to perfect the issuer trustee's
legal title to the housing loans and related securities;
. to make reasonable efforts to collect all moneys due under the
housing loans and related securities and, to the extent consistent
with the series supplement, to follow such normal collection
procedures as it deems necessary and advisable;
. to comply with its material obligations under each mortgage
insurance policy;
. it will notify the issuer trustee if it becomes actually aware of
the occurrence of any Servicer Default or Perfection of Title Event;
. it will obtain and maintain all authorizations, filings and
registrations necessary to properly service the housing loans; and
. subject to the provisions of the Australian Privacy Act and its duty
of confidentiality to its clients, it will promptly make available
to the manager, the auditor of the trust and the issuer trustee any
books, reports or other oral or written information and supporting
evidence of which the servicer is aware that they reasonably request
with respect to the trust or the assets of the trust or with respect
to all matters in respect of the activities of the servicer to which
the series supplement relates.
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Administer Interest Rates
The servicer must set the interest rates to be charged on the variable
rate housing loans and the monthly instalment to be paid in relation to each
housing loan. Subject to the next paragraph, while Commonwealth Bank is the
servicer, it must charge the same interest rates on the variable rate housing
loans in the pool as it does for housing loans of the same product type which
have not been assigned to the issuer trustee.
If the basis swap has terminated while any notes or redraw bonds are
outstanding then, unless the issuer trustee has entered into a replacement
basis swap or other arrangements which the rating agencies have confirmed will
not result in a reduction, qualification or withdrawal of the credit ratings
assigned to the notes or redraw bonds, the servicer must, subject to applicable
laws, adjust the rates at which interest set-off benefits are calculated under
the mortgage interest saver accounts to rates which produce an amount of income
which is sufficient to ensure that the issuer trustee has sufficient funds to
comply with its obligations under the transaction documents as they fall due.
If rates at which such interest set-off benefits are calculated have been
reduced to zero and the amount of income produced by the reduction of the rates
on the mortgage interest saver accounts is not sufficient, the servicer must
ensure that the weighted average of the variable rates charged on the housing
loans is sufficient, subject to applicable laws, including the Australian
Consumer Credit Code, assuming that all relevant parties comply with their
obligations under the housing loans and the transaction documents, to ensure
that issuer trustee has sufficient funds to comply with its obligations under
the transaction documents as they fall due.
Collections
The servicer will receive collections on the housing loans from
borrowers. The servicer must deposit any collections into the collections
account within 5 Business Days following its receipt. However if the
collections account is permitted to be maintained with the servicer and:
. the servicer has short term credit ratings of A-1+ from Standard &
Poor's, P-1 from Moody's and F1+ from Fitch IBCA or, when the seller
is the servicer, F1 from Fitch IBCA, it may retain collections until
10:00 am on the day which is 2 Business Days before the distribution
date following the end of the relevant collection period;
. the servicer has short term credit ratings of no lower than A-1 from
Standard & Poor's, P-1 from Moody's and F1 from Fitch IBCA, it may
retain collections until 10.00 am on the Business Day which is the
earlier of 30 days from receipt and 2 Business Days before the
distribution date following the end of the relevant collection
period. However, while the sum of all collections held by the
servicer and the value of any Authorized Short-Term Investments
which are with, or issued by, a bank or financial institution which
has a short-term credit rating of A-1 from Standard & Poor's,
exceeds 20% of the aggregate of the Stated Amounts of the notes and
redraw bonds, the servicer will only be entitled to retain any
additional collections received for 2 Business Days following
receipt; and
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. the servicer has no credit ratings or has short term credit ratings
of lower than A-1 from Standard & Poor's, lower than P-1 from Moody's
or lower than F1 from Fitch IBCA, it may retain collections for 2
Business Days following receipt.
After the applicable period referred to above, the servicer must deposit
the collections into the collections account.
If collections are retained by the servicer in accordance with the first
two paragraphs above, the servicer may retain any interest and other income
derived from those collections but must when depositing the collections into
the collections account also deposit interest on the collections retained
equal to the interest that would have been earned on the collections if they
had been deposited in the collections account within 5 Business Days of their
receipt by the servicer.
Servicing Compensation and Expenses
The servicer is entitled to a quarterly fee, payable in arrears on each
distribution date.
The servicer's fee may be varied by agreement between the issuer trustee,
the manager and the servicer provided that the rating agencies are notified
and the servicer's fee is not varied if it would cause a reduction,
qualification or withdrawal in the credit rating of a note or redraw bond.
If the servicer becomes liable to remit to a governmental agency an
amount of Australian goods and services tax in connection with the trust, the
servicer will pay goods and services tax on its own account and will not be
entitled to any reimbursement from the assets of the trust. However, the fees
payable to the servicer may be adjusted, in accordance with the series
supplement.
The manager and the servicer may from time to time agree to adjust the
servicing fee subject to written confirmation from the rating agencies that
the adjustment will not result in a reduction, qualification or withdrawal of
the credit ratings then assigned by them to the notes. Any adjustments will be
effective following written notice of the adjustment by the manager to the
issuer trustee.
The servicer must pay from its own funds all expenses incurred in
connection with servicing the housing loans except for expenses in connection
with the enforcement of any housing loan or its related securities, the
recovery of any amounts owing under any housing loan or any amount repaid to a
liquidator or trustee in bankruptcy pursuant to any applicable law, binding
code, order or decision of any court, tribunal or the like or based on advice
of the servicer's legal advisers, which amounts are recoverable from the
assets of the trust.
Liability of the Servicer
The servicer will not be liable for any loss incurred by any noteholder,
any redraw bondholder, any creditor of the trust or any other person except to
the extent that such loss is caused by a breach by the servicer or any
delegate of the servicer of the series supplement or any fraud, negligence or
wilful default by the servicer. In addition, the servicer will not be
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liable for any loss in respect of a default in relation to a housing loan in
excess of the amount outstanding under the housing loan at the time of default
less any amounts that the issuer trustee has received or is entitled to receive
under a mortgage insurance policy in relation to that housing loan.
Removal, Resignation and Replacement of the Servicer
If the issuer trustee has determined that the performance by the servicer
of its obligations under the series supplement is no longer lawful and there is
no reasonable action that the servicer can take to remedy this, or a Servicer
Default is subsisting, the issuer trustee must by notice to the servicer
immediately terminate the rights and obligations of the servicer and appoint
another bank or appropriately qualified organization to act in its place.
A Servicer Default occurs if:
. the servicer fails to remit any collections or other amounts received
within the time periods specified in the series supplement and that
failure is not remedied within 5 Business Days, or such longer period
as the issuer trustee may agree, of notice of that failure given by
the manager or the issuer trustee;
. the servicer fails to prepare and transmit the information required
by the manager by the date specified in the series supplement and
that failure is not remedied within 20 Business Days, or such longer
period as the issuer trustee may agree, of notice of that failure
given by the manager or the issuer trustee and has or will have an
Adverse Effect as reasonably determined by the issuer trustee;
. a representation, warranty or certification made by the servicer in a
transaction document or in any certificate delivered pursuant to a
transaction document proves incorrect when made and has or will have
an Adverse Effect as reasonably determined by the issuer trustee and
is not remedied within 60 Business Days after receipt by the servicer
of notice from the issuer trustee requiring remedy;
. an Insolvency Event occurs in relation to the servicer;
. if the servicer is the seller and is acting as custodian, it fails to
deliver all the mortgage documents to the issuer trustee following a
document transfer event in accordance with the series supplement and
does not deliver to the issuer trustee the outstanding documents
within 20 Business Days of receipt of a notice from the issuer
trustee specifying the outstanding documents;
. the servicer fails to adjust the rates on the mortgage interest saver
accounts or fails to maintain the required threshold rate on the
housing loans following termination of the basis swap and that
failure is not remedied within 20 Business Days of its occurrence; or
. the servicer breaches its other obligations under a transaction
document and that breach has or will have an Adverse Effect as
reasonably determined by the issuer trustee and:
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. the breach is not remedied within 20 Business Days after receipt
of notice from the trustee or manager requiring its remedy; and
. the servicer has not paid satisfactory compensation to the issuer
trustee.
The servicer may voluntarily retire if it gives the issuer trustee 3
months' notice in writing or such lesser period as the servicer and the issuer
trustee agree. Upon retirement the servicer may appoint in writing any other
corporation approved by the issuer trustee, acting reasonably. If the servicer
does not propose a replacement by one month prior to its proposed retirement,
the issuer trustee may appoint a replacement.
Pending the appointment of a new servicer, the issuer trustee will act as
servicer and will be entitled to the servicer's fee.
The appointment of a substitute servicer is subject to confirmation from
the rating agencies that the appointment will not cause a reduction,
qualification or withdrawal in the credit ratings of the notes or redraw bonds.
Seller Deposit
If the seller has a short-term deposit credit rating by Moody's of less
than P-1 or such other rating as is agreed between the issuer trustee, the
seller, the manager and Moody's or has a long term deposit credit rating
assigned by Standard & Poor's or Fitch IBCA of less than BBB or such other
rating as is agreed between the issuer trustee, the seller, the manager and
Standard & Poor's or Fitch IBCA, as the case may be, it must in respect of set-
off risk in relation to the trust:
. deposit or maintain in an account, which may be the collections
account provided it is held with an entity with a short term credit
rating of A-1+ by Standard & Poor's, on each distribution date, after
giving effect to the payments to be made on that distribution date,
an amount being the higher of: the amount specified by Standard &
Poor's from time to time; or the amount determined in accordance with
the series supplement or otherwise agreed by Moody's or Fitch IBCA.
This deposit may be utilized by the issuer trustee to meet any
liabilities of the seller to the issuer trustee in relation to the
exercise of set-off rights in relation to the housing loans, which
the seller has not met within 20 Business Days of notice from the
issuer trustee or the manager; or
. enter into such other arrangement from time to time agreed between
the seller and the relevant rating agency so as to ensure that rating
agency does not reduce, qualify or withdraw any credit rating
assigned by it to the notes or redraw bonds.
Custody of the Housing Loan Documents
Document Custody
The seller will retain all documents relating to the housing loans, their
securities and, where applicable, the certificates of title to property subject
to those securities, until a transfer of the housing loan documents to the
issuer trustee as described below.
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The seller's duties and responsibilities as custodian include:
. holding the housing loan documents in accordance with its standard
safe keeping practices and in the same manner and to the same extent
as it holds its own documents;
. marking and segregating the security packages containing the housing
loan documents in a manner to enable easy identification by the
issuer trustee when the issuer trustee is at the premises where the
housing loan documents are located with a letter provided by the
seller explaining how those security packages are marked or
segregated;
. maintaining reports on movements of the housing loan documents;
. providing to the issuer trustee prior to the closing date and on each
distribution date computer diskettes containing certain information
in relation to the storage of the housing loan documents and the
borrower, mortgaged property and housing loan account number in
relation to each housing loan; and
. curing any deficiencies noted by the auditor in a document custody
auditor report.
Audit
The seller will be audited by the auditor of the trust on an annual basis
in relation to its compliance with its obligations as custodian of the housing
loan documents and will be instructed to provide a document custody audit
report. The document custody audit report will grade the seller from "A" (good)
to "D" (adverse). If the seller receives an adverse document custody audit
report, the issuer trustee must instruct the auditor to conduct a further
document custody audit report.
Transfer of Housing Loan Documents
If:
. an adverse document custody audit report is provided by the auditor
and a further report, conducted no earlier than one month nor later
than two months after the first report, is also an adverse report;
. the issuer trustee replaces Commonwealth Bank as the servicer when
entitled to do so; or
. the long term debt rating of the seller is downgraded below BBB by
Standard & Poor's or Fitch IBCA or Baa2 by Moody's or such other
rating as is agreed between the manager, the servicer and the
relevant rating agency,
the seller, upon notice from the issuer trustee, must transfer custody of the
housing loan documents to the issuer trustee. This obligation will be satisfied
if the seller delivers the housing loan documents in relation to 90% by number
of the housing loans within 5 Business Days of that notice and the balance
within 10 Business Days of that notice.
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In addition, if:
. the issuer trustee declares that a Perfection of Title Event has
occurred other than a Servicer Default referred to in the next bullet
point; or
. the issuer trustee considers in good faith that a Servicer Default
has occurred as a result of a breach of certain of the servicer's
obligations which has or will have an Adverse Effect which is not
remedied within the required period, and the issuer trustee serves a
notice on the servicer identifying the reasons why it believes that
has occurred,
the seller must, immediately following notice from the issuer trustee, transfer
custody of the mortgage documents to the issuer trustee.
The seller is not required to deliver housing loan documents that are
lodged with a governmental agency or lost but must provide a list of these to
the issuer trustee and deliver them upon receipt or take steps to replace them,
as applicable.
Reappointment of Seller as Custodian
The issuer trustee may, following a transfer of housing loan documents,
reappoint the seller as custodian of the housing loan documents provided that
the rating agencies confirm that this will not cause a reduction, qualification
or withdrawal in the credit rating of any note or redraw bond.
Clean-Up and Extinguishment
The seller will have certain rights to extinguish the issuer trustee's
interest in the housing loans and their related securities, mortgage insurance
policies and other rights, or to otherwise regain the benefit of the housing
loans and their related securities, mortgage insurance policies and other
rights, if:
. the date on which the total principal outstanding on the housing
loans is less than 10% of the total principal outstanding on the
housing loans on March 18, 2000 has occurred or is expected to occur
on or before the next distribution date; or
. both of the following events occur:
. the next distribution date is the distribution date falling in
July, 2007 or the issuer trustee will be entitled to redeem the
notes and redraw bonds because of the imposition of a withholding
or other tax; and
. the seller has previously notified the manager that the Australian
Prudential Regulation Authority will permit the seller to exercise
its rights to extinguish the issuer trustee's interest in the
housing loans notwithstanding that the total principal outstanding
on the housing loans is greater than 10% of the total principal
outstanding on the housing loans on March 18, 2000.
The seller may only exercise those rights by paying to the issuer trustee on a
distribution date the amount determined by the manager to be the aggregate of
the Fair Market Value as at the last day of the immediately preceding accrual
period of the housing loans. If any notes or redraw bonds are outstanding the
seller will not be able to exercise those rights unless the
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amount to be paid by the seller to the issuer trustee will be sufficient to
redeem the notes and redraw bonds in full. In addition, the seller may not
exercise those rights where the issuer trustee's right to redeem the notes and
redraw bonds arises from the imposition of a tax or duty applicable only to the
Class A-1 notes and the holders of 75% of the aggregate Invested Amount of the
Class A-1 notes have elected that they do not require the issuer trustee to
redeem the Class A-1 notes.
The Servicer
Servicing of Housing Loans
Under the series supplement, Commonwealth 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 Commonwealth Bank's loan processing
centers, presently located in Sydney, Melbourne, Brisbane, Perth and Adelaide,
and at Commonwealth Bank's retail branches and telephone banking and marketing
centers. Servicing procedures undertaken by loan processing centres include
partial loan security discharges, loan security substitutions, consents for
subsequent mortgages and arrears management. Customer enquiries are dealt with
by the retail branches and telephone banking and marketing centers. For a
further description of the duties of the servicer, see "Description of the
Transaction Documents--The Servicing of the Housing Loans."
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. A borrower may elect to make his
or her repayments weekly or fortnightly so long as the equivalent of the
minimum monthly repayment is received on or before the monthly installment due
date. Borrowers often select repayment dates to coincide with receipt of their
salary or other income. In addition to payment to a retail branch by cash or
cheque, housing loan repayments may be made by direct debit to a nominated bank
account or direct credit from the borrower's salary by their employer. At
present over 90% of scheduled repayments on the housing loans are made by way
of direct debits to a nominated bank account.
Commonwealth 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 housing loan account.
A housing loan is subject to action in relation to arrears of payment
whenever the monthly repayment is not paid by the monthly installment due date.
However, under the terms of the housing loans, borrowers may prepay amounts
which are additional to their required monthly repayments to build up a "credit
buffer," being the difference between the total amount paid by them and the
total of the monthly repayments required to be made by them. If a borrower
subsequently fails to make some or all of a required monthly repayment, the
servicing system will apply the amount not paid against the credit buffer until
the total amount of missed payments exceeds the credit buffer. The housing loan
will be considered to be arrears only in relation to that excess. See
"Commonwealth Bank Residential Loan Program--Payment Holidays."
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Commonwealth Bank's automated collections system identifies all housing
loan accounts which are in arrears and produces lists of those housing loans.
The collection system allocates overdue loans to designated collection officers
within Commonwealth Bank who take action in relation to the arrears.
Actions taken by Commonwealth Bank in relation to delinquent accounts
will vary depending on a number of elements, including the following and, if
applicable, with the input of a mortgage insurer:
. arrears history;
. equity in the property; and
. arrangements made with the borrower to meet overdue payments.
If satisfactory arrangements cannot be made to rectify a delinquent housing
loan, legal notices are issued and recovery action is initiated by Commonwealth
Bank. This includes, if Commonwealth Bank obtains possession of the mortgaged
property, ensuring that the mortgaged property supporting the housing loan
still has adequate general home owner's insurance and that the upkeep of the
mortgaged property is maintained. Recovery action is arranged by experienced
collections staff in conjunction with internal or external legal advisers. A
number of sources of recovery are pursued including the following:
. voluntary sale by the mortgagor;
. guarantees;
. government assistance schemes;
. mortgagee sale; and
. claims on mortgage insurance.
It should be noted that Commonwealth Bank reports all actions that it takes on
overdue housing loans to the relevant mortgage insurer where required in
accordance with the terms of the mortgage insurance policies.
Collection and Enforcement Process
When a housing loan is more than 7 days delinquent a call to the borrower
is made to seek full and immediate clearance of all arrears. In the absence of
successful call contact arrears follow-up letters to the borrower are sent. If
the housing loans have a direct debit payment arrangement, a sweep of the
nominated account is made to rectify the arrears.
When a housing loan reaches 60 days delinquent, a default notice is sent
advising the borrower that if the matter is not rectified within a period of 30
days, Commonwealth Bank is entitled to commence enforcement proceedings without
further notice. Normally a further notice will be issued to a borrower on an
account which is 90 days delinquent advising the borrower that failure to
comply within 30 days will result in Commonwealth Bank exercising its power of
sale. At 120 days delinquent, a letter of demand and notice to vacate is issued
to the borrower, followed by a statement of claim at 150 days delinquent. Once
a
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statement of claim is served, Commonwealth Bank can then enter judgement in the
Supreme Court. The borrower is given up to 40 days to file a notice of
appearance and defense and, failing this, Commonwealth Bank will then have
judgment entered and will apply for a writ of possession whereby the sheriff
will set an eviction date. Appraisals and valuations are ordered and a reserve
price is set for sale by way of auction or private treaty. These time frames
assume that the borrower has either taken no action or has not honored any
commitments made in relation to the delinquency to the satisfaction of the
Commonwealth Bank and the mortgage insurers.
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.
The collection and enforcement procedures may change from time to time in
accordance with business judgment and changes to legislation and guidelines
established by the relevant regulatory bodies.
Servicer Delinquency Experience
The following table summarizes the delinquency and loss experience of
Commonwealth Bank's home loan portfolio. All loans were originated and are
serviced by Commonwealth Bank.
Commonwealth Bank One-to-Four-Family Residential Loans
<TABLE>
<CAPTION>
June June June June June December
30, 1995 30, 1996 30, 1997 30, 1998 30, 1999 31, 1999
-------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Outstanding Balance
(A$m) 26,690 30,335 35,833 40,196 44,974 47,384
Number of Loans 502,148 549,789 624,585 642,919 651,753 654,637
% Arrears by Number
30-59 days 0.54% 0.60% 0.61% 0.51% 0.40% 0.38%
60-89 days 0.29% 0.29% 0.27% 0.20% 0.15% 0.13%
90-119 days 0.18% 0.18% 0.14% 0.13% 0.08% 0.06%
120+days 0.60% 0.58% 0.41% 0.36% 0.23% 0.17%
<CAPTION>
-------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Total 1.61% 1.65% 1.43% 1.20% 0.86% 0.74%
<CAPTION>
-------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
% Arrears by Balances
30-59 days 0.62% 0.73% 0.74% 0.63% 0.45% 0.40%
60-89 days 0.35% 0.37% 0.36% 0.25% 0.18% 0.14%
90-119 days 0.22% 0.24% 0.19% 0.17% 0.11% 0.07%
120+days 0.76% 0.81% 0.58% 0.45% 0.29% 0.20%
<CAPTION>
-------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Total 1.95% 2.15% 1.87% 1.50% 1.03% 0.81%
<CAPTION>
-------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Net Losses (A$m) 6.4 5.1 8.6 10.0 8.8 3.9
Net Losses as % of
Average Balances 0.026% 0.018% 0.026% 0.026% 0.021% 0.017%
<CAPTION>
======== ======== ======== ======== ======== ========
</TABLE>
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Loan losses for each period are net of recoveries including claims under
mortgage insurance policies in respect of loans with an LTV of greater than
80%. Percentage losses are calculated based on the average outstanding balance
for the period and annualized for the half year ending 31 December 1999.
The servicer does not have available details of its foreclosure
experience. It is the servicer's policy on enforcement of a housing loan to
enter into possession of the mortgaged property as mortgagee in possession
rather than to foreclose on the mortgage. See "The Servicer--Collection and
Enforcement Process". The servicer has undertaken to collect details of its
mortgagee in possession experience for the housing loans in the pool on an
ongoing basis.
There can be no assurance that the delinquency and loss experience with
respect to the housing loans comprising the housing loan pool will correspond
to the delinquency and loss experience of the servicer's mortgage portfolio set
forth in the foregoing table. The statistics shown in the preceding table
represent the delinquency and loss experience for the total residential
mortgage portfolio for each of the years presented, whereas the aggregate
delinquency and loss experience on the housing loans will depend on the results
obtained over the life of the housing loan pool. In addition, the foregoing
statistics include housing loans with a variety of payment and other
characteristics that may not correspond to those of the housing loans
comprising the housing loan pool. Moreover, if the residential 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 losses 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, 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. The Reserve Bank of
Australia has increased interest rates by 0.75% since October, 1999. If
interest rates were to rise significantly, it is likely that the rate of
delinquencies and losses would increase.
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Prepayment and Yield Considerations
The following information is given solely to illustrate the effect of
prepayments of the housing loans on the weighted average life of the notes
under the stated assumptions and is not a prediction of the prepayment rate
that might actually be experienced.
General
The rate of principal payments and aggregate amount of distributions on
the notes and the yield to maturity of the notes will relate to the rate and
timing of payments of principal on the housing loans. The rate of principal
payments on the housing loans will in turn be affected by the amortization
schedules of the housing loans and by the rate of principal prepayments,
including for this purpose prepayments resulting from refinancing, liquidations
of the housing loans due to defaults, casualties, condemnations and repurchases
by the seller. Subject, in the case of fixed rate housing loans, to the payment
of applicable fees, the housing loans may be prepaid by the mortgagors at any
time.
Prepayments
Prepayments, liquidations and purchases of the housing loans, including
optional purchase of the remaining housing loans in connection with the
termination of the trust, will result in early distributions of principal
amounts on the notes. Prepayments of principal may occur in the following
situations:
. refinancing by mortgagors with other financiers;
. receipt by the issuer trustee of enforcement proceeds due to a
mortgagor having defaulted on its housing loan;
. receipt by the issuer trustee of insurance proceeds in relation to a
claim under a mortgage insurance policy in respect of a housing loan;
. repurchase by the seller as a result of a breach by it of certain
representations, if any;
. repurchase by the seller upon a further advance being made which
exceeds the then scheduled balance of the housing loan by more than
one scheduled monthly installment;
. repurchase of the housing loans as a result of an optional
termination or a redemption for taxation or other reasons;
. receipt of proceeds of enforcement of the security trust deed prior
to the final maturity date of the notes; and
. 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
. repurchased by Commonwealth Bank under its right of first refusal;
or
. sold to a third party.
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The prepayment amounts described above are reduced by repayment to the
seller of redraws and further advances as described in "Commonwealth Bank
Residential Loan Programme--Special Features of the Housing Loans--Redraws and
Further Advances."
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:
. the degree to which a note is purchased at a discount or premium; and
. 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
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characteristics of the actual housing loans and the assumed housing loans may
have an effect upon the percentages of the principal balances outstanding and
weighted average lives of the notes set forth in the tables. Furthermore, since
these discrepancies exist, principal payments on the notes may be made earlier
or later than the tables indicate.
For the purpose of the following tables, it is assumed that:
. the housing loan pool consists of fully-amortizing housing loans;
. the cut-off date is the close of business on March 18, 2000;
. closing date for the notes is March 27, 2000;
. a weighted average interest rate on housing loans of 6.56%;
. a weighted average remaining term to maturity of housing loans of 289
months;
. payments on the notes are made on the quarterly payment date,
regardless of the day on which payment actually occurs, commencing in
July 2000 and are made in accordance with the priorities described in
this prospectus;
. the housing loans' prepayment rates are equal to the respective
percentages of constant prepayment rate indicated in the tables;
. 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 March, in which case, payments are
calculated based on a rateable share of one month's collections,
assuming a start date of the close of business March 18, 2000, with
no defaults;
. there are no redraws, substitutions or payment holidays with respect
to the housing loans;
. all prepayments are prepayments in full received on the last day of
each month and include 30 days' interest on the prepayment;
. principal collections are distributed according to the rules of
distribution set forth in this prospectus;
. all payments under the swaps are made as scheduled;
. 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
. the exchange rate is US$ 0.6180=A$1.00
It is not likely that the housing loans will pay at any assumed constant
prepayment rate to maturity or that all housing loans will prepay at the same
rate. In addition, the diverse remaining terms to maturity of the housing loans
could produce slower or faster distributions of principal than indicated in the
tables at the assumed constant prepayment rate specified, even if the weighted
average remaining term to maturity of the housing loans is the same as the
weighted average remaining term to maturity of the assumptions described in
this
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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:
. multiplying the amount of each payment of principal thereof by the
number of years from the date of issuance to the related payment
date,
. summing the results, and
. 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
<TABLE>
<CAPTION>
Date 0% 10% 15% 20% 22% 25% 35% 45%
- ---- ------ ----- ----- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Initial Percent................ 100% 100% 100% 100% 100% 100% 100% 100%
22-April-01.................... 99% 91% 87% 83% 82% 79% 71% 63%
22-April-02.................... 97% 80% 73% 65% 62% 58% 45% 34%
22-April-03.................... 95% 71% 60% 51% 48% 43% 29% 18%
22-April-04.................... 93% 62% 50% 40% 36% 31% 18% 10%
22-April-05.................... 90% 55% 41% 31% 27% 23% 11% 5%
22-April-06.................... 88% 48% 34% 24% 21% 17% 7% 3%
22-April-07.................... 86% 42% 28% 19% 16% 12% 5% 1%
22-April-08.................... 83% 36% 23% 15% 12% 9% 3% 1%
22-April-09.................... 80% 31% 19% 11% 9% 6% 2% 0%
22-April-10.................... 77% 27% 16% 9% 7% 5% 1% 0%
22-April-11.................... 73% 23% 13% 7% 5% 3% 1% 0%
22-April-12.................... 70% 20% 10% 5% 4% 2% 0% 0%
22-April-13.................... 66% 17% 8% 4% 3% 2% 0% 0%
22-April-14.................... 62% 14% 7% 3% 2% 1% 0% 0%
22-April-15.................... 58% 12% 5% 2% 1% 1% 0% 0%
22-April-16.................... 53% 10% 4% 2% 1% 1% 0% 0%
22-April-17.................... 48% 8% 3% 1% 1% 0% 0% 0%
22-April-18.................... 43% 7% 2% 1% 1% 0% 0% 0%
22-April-19.................... 37% 5% 2% 1% 0% 0% 0% 0%
22-April-20.................... 31% 4% 1% 0% 0% 0% 0% 0%
22-April-21.................... 25% 3% 1% 0% 0% 0% 0% 0%
22-April-22.................... 18% 2% 1% 0% 0% 0% 0% 0%
22-April-23.................... 11% 1% 0% 0% 0% 0% 0% 0%
22-April-24.................... 3% 0% 0% 0% 0% 0% 0% 0%
22-April-25.................... 0% 0% 0% 0% 0% 0% 0% 0%
22-April-26.................... 0% 0% 0% 0% 0% 0% 0% 0%
Weighted Average Life--
To Maturity (Years).......... 15.263 7.134 5.330 4.164 3.811 3.369 2.376 1.787
To Call (Years).............. 6.587 4.768 4.078 3.502 3.299 3.022 2.170 1.623
</TABLE>
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Use of Proceeds
The net proceeds from the sale of the Class A-1 notes, after being
exchanged pursuant to the currency swap, will amount to A$ and will be used
by the issuer trustee, along with the proceeds from the issue of the Class A-2
notes and the Class B notes, to acquire from the seller equitable title to the
housing loans and related securities.
Legal Aspects of the Housing Loans
The following discussion is a summary of the material legal aspects of
Australian retail housing loans and mortgages. It is not an exhaustive analysis
of the relevant law. Some of the legal aspects are governed by the law of the
applicable State or Territory. Laws may differ between States and Territories.
The summary does not reflect the laws of any particular jurisdiction or cover
all relevant laws of all jurisdictions in which a mortgaged property may be
situated, although it reflects the material aspects of the laws of New South
Wales (except where it expressly provides otherwise), without referring to any
specific legislation of that State.
General
There are two parties to a mortgage. The first party is the mortgagor,
who is either the borrower 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 in respect of the mortgaged property over all other mortgages
granted by the relevant borrower or guarantor and over all unsecured creditors
of the borrower or guarantor, except in respect of certain statutory rights
such as some rates and taxes, which are granted statutory priority. 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 Commonwealth 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." Each housing loan in
the pool will be secured by Torrens title land.
"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,
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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," "stratum title" or "residential
Crown leasehold."
Strata title and Stratum title
"Strata title" and "stratum title" were developed to enable the creation
of, and dealings with, apartment units which are similar to condominiums in the
United States, and are governed by the legislation of the State or Territory in
which the property is situated. Under both strata title and stratum 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" or a "service company" for the
benefit of the individual proprietors. All proprietors are members of the body
corporate or service company, which is vested with the control, management and
administration of the common property and the strata scheme generally, for the
benefit of the proprietors. In general, the body corporate or service company
will have a charge (either registered or created by statute) over the units of
its members to secure fees payable by the members or will have rights
enforceable against any assignee of a member. This charge, or those rights as a
matter of practice, will take priority over the mortgage securing the housing
loan.
Only Torrens title land can be the subject of strata or stratum 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 or
stratum proprietor.
Residential Crown 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 Crown
leasehold. Mortgaged residential property in that jurisdiction comprises a
Crown lease and developments on the land are subject to the terms of that
lease. Any such lease:
. cannot have a term exceeding 99 years, although the term can be
extended in effect under a straightforward administrative process,
whereby the existing lease is surrendered and a new lease is granted
for a term not exceeding 99 years, unless the Commonwealth or
Australian Capital Territory Government considers that the land is
required for a public purpose; and
. is subject to a nominal rent of 5 cents per annum on demand.
As with other Torrens title land, the mortgagor's leasehold interest in
the land is entered in a central register and, subject to some exceptions, the
mortgagor may deal with its residential 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.
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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.
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.
Commonwealth Bank as Mortgagee
Commonwealth Bank is, and until a Perfection of Title 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.
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Prior to any Perfection of Title Event, Commonwealth Bank, as servicer,
will undertake any necessary enforcement action with respect to defaulted
housing loans and mortgages. Following a Perfection of Title Event, the issuer
trustee is entitled, under an irrevocable power of attorney granted to it by
Commonwealth Bank, to be registered as mortgagee of the mortgages. Until that
registration is achieved, the issuer trustee or the manager is entitled to
lodge caveats on the register publicly to notify its interest in the mortgages
(and must do so if it has not commenced to take all necessary steps to perfect
its legal title within 30 Business Days of its declaration that a Perfection of
Title Event has occurred).
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:
. 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.
. The mortgagee may, in limited circumstances, lease the property to
third parties.
. The mortgagee may foreclose on the property. Under foreclosure
procedures, the mortgagee 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.
. 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.
. 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
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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 Australian Consumer Credit Code 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. A default interest rate will not
be a penalty if the amount payable on default is a genuine pre-estimate of the
loss that the lender will suffer as a result of the default. The Consumer
Credit Code 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, where a
company is being wound up, a loan is voidable if it is an unfair loan. A loan
will only be unfair if the interest or charges on the loan were extortionate
when the loan was made or have become extortionate because of a variation.
The Consumer Credit Code requires that certain fees or charges to be
levied by the lender must be provided for in the contract, otherwise they
cannot be levied. The regulations under the Consumer Credit Code may also from
time to time prohibit certain fees and charges. There are none currently so
prohibited. The Consumer Credit Code also requires that establishment fees,
early termination fees and prepayment fees must not be unconscionable
otherwise they may be reduced or set aside.
Bankruptcy and Insolvency
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:
. the disposition was made to defraud creditors; or
. the disposition was made by an insolvent debtor within a prescribed
period and that disposition had the effect of giving a creditor a
preference, priority or advantage over other creditors.
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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 housing loan or a
mortgage which is voidable under the Corporations Law because it is an
uncommercial transaction, or an unfair preference to a creditor and that
transaction occurs:
. when the company is insolvent, or an act is done, or an omission is
made, to give effect to the transaction when the company is
insolvent, or the company becomes insolvent because of, or because of
matters including, the entering into of the transaction or the doing
of an act, or the making of an omission, to give effect to the
transaction; and
. within a prescribed period prior to the commencement of the winding
up of the company.
A liquidator may also avoid a housing loan if it is an unfair loan being
a loan in relation to which an extortionate interest rate or charges are
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 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 intended to mitigate insolvency risk. For
example, the equitable assignment of the housing loans by Commonwealth Bank to
the issuer trustee should ensure that the housing loans are not assets
available to the liquidator or creditors of Commonwealth Bank in the event of
the insolvency of Commonwealth Bank. Similarly, the assets in the trust should
not be available to other creditors of the issuer trustee in its
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personal capacity or as trustee of any other trust in the event of the
insolvency of the issuer trustee.
If any Insolvency Event occurs with respect to the issuer trustee in its
capacity as trustee of the trust, the security trust deed may be enforced by
the security trustee at the direction of the Voting Secured Creditors. 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
or is a creditor of the trust with a right of subrogation to the issuer
trustee's lien over the assets of the trust. 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-1 notes in full,
some or all of the Class A-1 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 Code
Under the Australian Consumer Credit Code, a borrower has the right to
apply to a court to do the following, among other things:
. vary the terms of a housing loan on the grounds of hardship or that
it is an unjust contract;
. reduce or cancel any interest rate payable on a housing loan if the
interest rate is changed in a way which is unconscionable;
. have certain provisions of a housing loan which are in breach of the
legislation declared unenforceable;
. 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
. obtain restitution or compensation from the seller in relation to
breaches of the Consumer Credit Code in relation to a housing loan.
The issuer trustee will become liable for compliance with the Consumer
Credit Code if it acquires legal title to the housing loans. It will take this
legal title subject to any breaches of the Consumer Credit Code 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 Code. Any order
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under the Consumer Credit Code 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 Class A-1 notes. The servicer will indemnify the
issuer trustee against any liability under the Consumer Credit Code in relation
to the trust where the events giving rise to that liability occur before a
Perfection of Title Event and against any such liability where the events
giving rise to that liability occur after a Perfection of Title Event to the
extent that they arise from a Servicer Default or a failure of the servicer to
comply with its obligations under any transaction document.
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-1
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 manager, 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-1 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-1 notes by investors
that are given special treatment under the United States federal income tax
laws, including:
. banks and thrifts;
. insurance companies;
. regulated investment companies;
. dealers in securities;
. 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;
. foreign investors;
. trusts and estates; and
. pass-through entities, the equity holders of which are any of the
foregoing.
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Additionally, the discussion regarding the Class A-1 notes is limited to
the United States federal income tax consequences to the initial investors and
not to a purchaser in the secondary market and is limited to investors who will
hold the Class A-1 notes as "capital assets" within the meaning of Section 1221
of the Code.
It is suggested that prospective investors consult their own tax advisors
about the United States federal, state, local, foreign and any other tax
consequences to them of the purchase, ownership and disposition of the Class A-
1 notes, including the advisability of making any election discussed under
"Market Discount."
The issuer trustee will be reimbursed for any United States federal
income taxes imposed on it in its capacity as trustee of the trust out of the
assets 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-1 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-1 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-1 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-1 note. Your
adjusted tax basis in a note will equal your cost for the Class A-1 note,
decreased by any amortized premium and any payments other than interest made on
the Class A-1 note and increased by any market discount or original issue
discount previously included in 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-1
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-1 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.
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In the case of a sale or other disposition of a Class A-1 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-1 note subject to
the market discount rules, Section 1276 of the Code requires that the payment
be 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-1 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:
. 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
. 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-1 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.
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Premium
In the opinion of Mayer, Brown & Platt, you will generally be considered
to have acquired a Class A-1 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-1 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-1 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, should be
followed for the amortization of such premium. We suggest that you consult your
tax advisor as to the applicability and operation of the rules regarding
amortization of premium.
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-1 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-1 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-1 noteholders of holding
Class A-1 notes and are based on advice received by the manager. It is
suggested that purchasers of Class A-1 notes should consult their own tax
advisers concerning the consequences, in their particular circumstances under
Australian tax laws and the laws of any other taxing jurisdiction, of the
ownership of or any dealing in the Class A-1 notes.
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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:
. 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
. 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-1 notes and interests
in any global Class A-1 note in a way that will satisfy the public offer test
and otherwise meet the requirements of section 128F of the Income Tax
Assessment Act including by listing the Class A-1 notes.
The public offer test will not be satisfied if the issuer trustee knew or
had reasonable grounds to suspect that the Class A-1 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, its associated companies, the
beneficiaries of the trust, and any "associates" of those beneficiaries. Thus
the relevant associates of the issuer trustee in the present case will be the
associates of Perpetual Trustee Company Limited, Commonwealth Bank as the
residual unitholder of the trust and the associates of Commonwealth Bank 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 unitholder, 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
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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:
. the United States resident beneficial owner's permanent
establishment, at or through which it carries on business in
Australia; or
. the United States resident beneficial owner's fixed base, situated in
Australia, from which it performs independent 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:
. the notes are not held, and the sale or disposal does not occur, as
part of a business carried on, at or through a permanent
establishment in Australia; and
. 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 would not be expected to have an
Australian source.
However, there are specific withholding tax rules that can apply to treat
a portion of the sale price of notes as interest for withholding tax purposes
and which amounts are not covered by the exemption conditions in section 128F
of the Income Tax Assessment Act. These rules can apply when:
. 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 a 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
. notes are sold to an Australian resident in connection with a
"washing arrangement" as defined in section 128A (1AB) of the Income
Tax Assessment Act.
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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 supply on or after July 1, 2000, it will have
to pay goods and services tax equal to 1/11th of the total value of the
consideration for that supply. However, on the basis of the current goods and
services tax legislation and regulations, the issue of the Class A-1 notes and
the payment of interest or principal on the Class A-1 notes to you will not be
taxable supplies.
If the supply is
. ""GST 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
. ""input taxed," which includes financial supplies, the issuer trustee
does not pay a goods and services tax on the supply, but is
restricted in its ability to claims to goods and services tax credits
for amounts, including goods and services tax, paid to acquire things
relating to the making of that supply.
The services which are provided to the issuer trustee are expected to be
taxable supplies for goods and services tax purposes. Where this is the case,
it will be the service provider who is liable to pay goods and services tax in
respect of that supply. The service provider must rely on a contractual
provision to recoup the amount of that goods and services tax from the issuer
trustee. Under the series supplement, the issuer trustee's fee will only be
able to be increased by reference to the issuer's trustee goods and services
tax liability, if any, if:
. the issuer trustee and the manager agree or, failing agreement, the
issuer trustee's goods and services tax liability is determined by an
expert; and
. the increase will not result in the reduction, qualification or
withdrawal of the credit rating of any notes or redraw bonds.
The manager and the servicer may agree to adjust the manager's fee and
the servicer's fee provided that the adjustment will not result in the
reduction, qualification or withdrawal of the credit rating of any notes or
redraw bonds.
If amounts payable by the issuer trustee are treated as the consideration
for a taxable supply under the goods and services tax legislation or are
increased by reference to the relevant supplier's goods and services tax
liability, the issuer trustee may be restricted in its ability to claim an
input tax credit for that increase and the expenses of the trust will increase,
resulting in a decrease in the funds available to the trust to pay you.
However, the issuer trustee may be entitled to a reduced input tax credit
for some of the supplies made to the issuer trustee by service providers. Where
available, the amount of the reduced input tax credit is currently 75% of the
GST which is payable by the service provider on the taxable supplies made to
the issuer trustee. The availability of reduced input tax credits will reduce
the extent to which the expenses of the trust will increase.
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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 Commonwealth 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 a 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 existing 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:
. the property is no longer being used as a residence; or
. the property is used as commercial residential premises such as a
hostel or boarding house; or
. the borrower is the first vendor of the property--the borrower built
the property; or
. the borrower has undertaken substantial renovation of the property;
or
. the mortgaged property has not been used predominantly as a
residence.
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.
Tax Reform Proposals
The Australian federal government proposes to reform business taxation as
part of its current tax reform programme. The committee appointed to consult
with business on the reform of business taxation, the Review of Business
Taxation, released its final report together with draft legislation in respect
of certain aspects of the report by way of a press release on September 21,
1999. In addition, the federal government released its second response to the
report on November 11, 1999.
There are several measures contained within the final report of the
Review of Business Taxation and, more importantly, within the federal
government responses which, if enacted in their current form, will impact upon
the tax treatment of the trust.
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In particular, the federal government reaffirmed its proposal for trusts
to be taxed in the same manner as companies (this reform was initially proposed
as part of the federal government's tax reform package released in August
1998). However, the new taxation of entities regime will not commence until
July 1, 2001 (with some exceptions which should not be relevant to the trust).
The proposal for the taxation of trusts like companies, if enacted in the
form proposed, could significantly impact upon the tax treatment of the trust.
However, the proposal is still the subject of extensive review and debate and
may not be enacted in its current form. In addition, if it is enacted, it is
not clear whether an exemption will be granted for securitization vehicles such
as the trust.
At this point it is anticipated that the new regime will commence on the
announced date on July 1, 2001. While no assurance can be given regarding any
changes to the announced proposals, in line with past practice in relation to
tax reform, it would be anticipated that any variations from the announced
measures will take effect only from the date of announcement.
If the trust is taxed as a company, it is likely that the trust will
become liable to pay tax based on a calculation of the taxable income of the
trust, and that distributions to the residual unitholder will be assessable in
accordance with a "profits first" rule. When paid out of after-tax profits,
such distributions may be "franked", which would entitle the residual
unitholder to a credit for the tax paid by the trust. Excess franking credits
will be refundable. The announced entity tax rate that will apply from July 1,
2001 is 30%.
The amount of the tax will be a first priority allocation from the
Available Income Amount. It is expected that if such tax is payable, it will
reduce the amount distributed to the residual unitholder with no overall
substantive effect on the position of the Class A-1 noteholders. For further
details on the priority of tax payments see "Description of the Class A-1
Notes--Distribution of the Available Income Amount".
Following recommendations by the Review of Business Taxation, the
Australian Government is presently considering a withholding tax regime
relating to Australian source income, and gains on the disposal of assets
subject to Australian tax, derived by non-residents without a permanent
establishment in Australia. If introduced, the regime will apply only to
amounts outside existing withholding taxes where non-residents are currently
subject to Australian taxation. No announcement has been made concerning the
details of the measures or their implementation date.
Each of the master trust deed, the series supplement, the security trust
deed and the Class A-1 note trust deed may be amended in certain circumstances
including where this is appropriate or expedient as a consequence of any
amendment to the tax laws. This power may be exercised with regard to the
implementation of the tax reform proposals depending upon their impact on the
trust.
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Other Taxes
No stamp, issue, registration or similar taxes are payable in Australia
in connection with the issue of the Class A-1 notes. Furthermore, a transfer
of, or agreement to transfer, notes executed outside of Australia will not be
subject to Australian stamp duty.
Enforcement of Foreign Judgments in Australia
Securitisation Advisory Services Pty Limited is an Australian proprietary
company registered 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 Securitisation Advisory Services Pty 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 Securitisation Advisory Services Pty
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:
. the proceedings in New York State or United States Federal Court, as
applicable, involved a denial of the principles of natural justice;
. the judgment is contrary to the public policy of the relevant
Australian jurisdiction;
. the judgment was obtained by fraud or duress or was based on a clear
mistake of fact;
. the judgment is a penal or revenue judgment; or
. 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. Securitisation Advisory Services Pty 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. Securitisation Advisory
Services Pty Limited has appointed Commonwealth Bank of Australia, 599
Lexington Avenue, New York, New York 10022, as its agent upon whom process may
be served in any such action.
All of the directors and executive officers of Securitisation Advisory
Services Pty 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 Class A-1 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. Securitisation Advisory Services Pty
Limited has been advised by its Australian
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counsel Clayton Utz, 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:
. the Government of Iraq or its agencies or nationals;
. the authorities of the Federal Republic of Yugoslavia (Serbia and
Montenegro); or
. the Government of Libya or any public authority or controlled entity
of the Government of Libya;
. the Taliban, also called the Islamic Emirate of Afghanistan, or any
undertaking owned or controlled, directly or indirectly, by the
Taliban; or
. the National Union for the Total Independence of Angola (UNITA) or
senior officials, or adult members of the immediate families of
senior officials of UNITA.
ERISA Considerations
Subject to the considerations discussed in this section, the Class A-1
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
Class A-1 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
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than an instrument which is treated as indebtedness under applicable local law
and which has no substantial equity features. Although there can be no
assurances in this regard, it appears, at the time of their initial issuance
that the Class A-1 notes should be treated as debt without substantial equity
features for purposes of the regulation and that the Class A-1 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 Class A-1 notes are treated as an
equity interest for these purposes, the acquisition or holding of the Class A-1
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 Class A-1 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:
. Prohibited Transaction Class Exemption 96-23, regarding transactions
effected by "in-house asset managers";
. Prohibited Transaction Class Exemption 90-1, regarding investments
by insurance company pooled separate accounts;
. Prohibited Transaction Class Exemption 95-60, regarding transactions
effected by "insurance company general accounts";
. Prohibited Transaction Class Exemption 91-38, regarding investments
by bank collective investment funds; and
. Prohibited Transaction Class Exemption 84-14, regarding transactions
effected by "qualified professional asset managers."
By your acquisition of a Class A-1 note, you shall be deemed to represent
and warrant that your purchase and holding of the Class A-1 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 Class
A-1 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-1 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.
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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-1 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-1 notes as legal investments for you.
Available Information
Securitisation Advisory Services Pty Limited, as manager, has filed with
the SEC a registration statement under the Securities Act with respect to the
Class A-1 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."
Ratings of the Notes
The issuance of the Class A-1 and Class A-2 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 AA by Standard & Poor's, Aa2 by Moody's and AA 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 Class A-1 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-1 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-1 and A-2 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. None of the rating agencies have been involved in the preparation of
this prospectus.
162
<PAGE>
Plan of Distribution
Underwriting
Under the terms and subject to the conditions contained in the
underwriting agreement among Commonwealth Bank, the issuer trustee, the manager
and J.P. Morgan as the representative of the underwriters, the issuer trustee
has agreed to sell to the underwriters the following respective principal
amounts of the Class A-1 notes:
<TABLE>
<CAPTION>
Principal Amount
of Class A-1
Underwriter Notes (US$)
----------- ----------------
<S> <C>
J.P. Morgan Securities Inc............................... $
Merrill Lynch, Pierce Fenner & Smith, Incorporated....... $
Credit Suisse First Boston Corporation................... $
Deutsche Bank Securities Inc............................. $
</TABLE>
The underwriting agreement provides that the underwriters are obligated,
subject to certain conditions in the underwriting agreement, to purchase all of
the Class A-1 notes if any are purchased. The underwriting agreement may be
terminated if there is a default by the underwriters.
The underwriters propose to initially offer the Class A-1 notes 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 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.
<TABLE>
<CAPTION>
Selling Reallowance
Concessions Discount
----------- -----------
<S> <C> <C>
Class A-1 notes................................... % %
</TABLE>
Commonwealth Bank estimates that the out-of-pocket expenses for this
offering will be approximately US$1.5 million.
J.P. Morgan has informed Commonwealth 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-1 notes.
Commonwealth 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
transactions that stabilize, maintain or otherwise affect the price of the
Class A-1 notes. The underwriters may engage in over-allotment, stabilizing
transactions, syndicate covering transactions and penalty bids in accordance
with Regulation M under the Exchange Act.
. Over-allotment involves syndicate sales in excess of the offering
size, which creates a syndicate short position;
163
<PAGE>
. Stabilizing transactions permit bids to purchase the underlying
security so long as the stabilizing bids do not exceed a specified
maximum;
. Syndicate covering transactions involve purchases of the Class A-1
notes in the open market after the distribution has been completed
in order to cover syndicate short positions;
. Penalty bids permit the underwriters to reclaim a selling concession
from a syndicate member when the Class A-1 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-1 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.
Pursuant to the underwriting agreement, the manager, Commonwealth Bank
and the issuer trustee have agreed to indemnify the underwriters against
certain liabilities, including civil liabilities under the Securities Act, or
contribute to certain payments which the underwriters may be responsible for.
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 Commonwealth Bank and its
affiliates.
Offering Restrictions
United Kingdom
Each underwriter has severally represented and agreed with the issuer
trustee that:
. it has not offered or sold and will not offer or sell any Class A-1
notes to persons in the United Kingdom prior to admission of the
Class A-1 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 (as amended) or the Financial Services Act;
. 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-1 notes in, from or otherwise involving the
United Kingdom; and
. 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-1 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
164
<PAGE>
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-1 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-1 notes it:
. 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-1 notes;
. 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-1 notes; and
. 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 an
associate of the issuer trustee or Commonwealth Bank, 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 the issuer trustee and Commonwealth Bank
respectively.
Other Jurisdictions
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 Class A-1 notes in any
country or jurisdiction. The Class A-1 notes may be offered non-publicly in
other jurisdictions. The Class A-1 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.
Listing and General Information
Listing
An application has been made to the London Stock Exchange Limited to
admit the Class A-1 notes to the Official List. This prospectus, including
Appendix I, constitutes listing particulars with regard to the issuer trustee
and the Class A-1 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-1 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-1 notes on the London
Stock Exchange will be granted on or about
165
<PAGE>
March 22, 2000, subject to the issuance of the Class A-1 notes. The Class A-1
notes will be issued in the form of one or more book-entry notes.
In May 1998, the European Commission presented to the Council of
Ministers of the European Union a proposal to oblige Member States to adopt
either a "withholding tax system" or an "information reporting system" in
relation to interest, discounts and premiums. It is unclear whether this
proposal will be adopted, and if it is adopted, whether it will be adopted in
its current form. The "withholding tax system" would require a paying agent
established in a Member State to withhold tax at a minimum rate of 20 percent
from any interest, discount or premium paid to an individual resident in
another Member State who is the beneficial owner thereof, unless such an
individual presents a certificate obtained from the tax authorities of the
Member State in which he is resident confirming that those authorities are
aware of the payment due to that individual. The "information reporting system"
would require a Member State to supply, to the other Member States, details of
any payment of interest, discount or premium made by paying agents within its
jurisdiction to an individual resident in another Member State who is the
beneficial owner thereof. For these purposes, the term "paying agent" is widely
defined and includes an agent who collects interest, discounts or premiums on
behalf of an individual beneficially entitled thereto.
Authorization
The issuer trustee has obtained all necessary consents, approvals and
authorizations in connection with the issue and performance of the Class A-1
notes. The issue of the Class A-1 notes has been authorized by the resolutions
of the board of directors of Perpetual Trustee Company Limited passed on March
16, 2000.
Litigation
The issuer trustee is not, and has not been, involved in any litigation
or arbitration proceedings that may have, or have had during the twelve months
preceding the date of this prospectus, a significant effect on its financial
position nor, so far as it is aware, are any such litigation or arbitration
proceedings pending or threatened.
Euroclear and Clearstream, Luxembourg
The Class A-1 notes have been accepted for clearance through Euroclear
and Clearstream, Luxembourg with the following CUSIP numbers and ISIN Common
Codes:
<TABLE>
<CAPTION>
ISIN
CUSIP Common Code
--------- ------------
<S> <C> <C>
Class A-1.......................................... 81747XAA3 US81747XAA37
</TABLE>
166
<PAGE>
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 The Bank of New York, London Branch, One Canada
Square, 48th Floor, London E14 5AL, U.K. during the period of fourteen days
from the date of this prospectus:
. the constitution of the issuer trustee;
. the master trust deed among the issuer trustee and the manager,
dated October 8, 1997 as amended by a deed dated October 17, 1997;
. the following, which, prior to the closing date, will be in draft
form:
. the series supplement among the issuer trustee, the manager, the
seller and the servicer, dated on or about March 18, 2000;
. the security trust deed among the issuer trustee, the manager,
the security trustee and the Class A-1 note trustee, dated on or
about March 18, 2000;
. the Class A-1 note trust deed among the issuer trustee, the
manager and the Class A-1 note trustee, dated on or about March
21, 2000;
. the agency agreement among the issuer trustee, the manager, the
Class A-1 note trustee, the principal paying agent, the agent
bank, the Class A-1 note registrar and the paying agent dated on
or about March 21, 2000;
. the standby redraw facility agreement among the issuer trustee,
the manager and the standby redraw facility provider, dated on or
about March 18, 2000;
. the liquidity facility agreement among the issuer trustee, the
manager and the liquidity facility provider, dated on or about
March 18, 2000;
. the basis swap and fixed rate swap among the issuer trustee, the
manager, the basis swap provider and the fixed rate swap
provider, together with the related schedule and confirmations,
dated on or about March 18, 2000;
. the currency swaps between the issuer trustee, the manager, the
standby swap providers and the currency swap providers, together
with the related schedules, credit support annexes and
confirmations, dated on or about March 21, 2000;
. the mortgage insurance policy among Commonwealth Bank, the issuer
trustee and GE Capital Mortgage Insurance Corporation (Australia)
Pty Limited, dated on or about March 23, 2000;
. the powers of attorney from Commonwealth Bank, dated on or about
March 21, 2000;
. the underwriting agreement among Commonwealth Bank, the manager,
the issuer trustee and the underwriters, dated on or about March
21, 2000;
. the opinion of Clayton Utz dated on or about March 14, 2000; and
. the opinion of Mayer, Brown & Platt dated on or about March 14,
2000.
167
<PAGE>
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 17 and 150 through 153 and has authorized the
content of its opinion for the purposes of section 152(1)(e) of the Financial
Services Act.
Clayton Utz, Australian counsel to Commonwealth Bank and the manager, 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 153
through 159 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:
. the Class A-1 notes will initially be issued in the form of book-
entry notes and will be held by Cede & Co., as nominee of DTC;
. in connection with the issue, DTC will confer rights in the Class A-
1 notes to the noteholders and will record the existence of those
rights; and
. as a result of the issue of the Class A-1 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-1 notes, including the material U.S.
federal income tax matters, for Commonwealth Bank and Securitisation Advisory
Services Pty Limited. Clayton Utz, Sydney, Australia, will pass upon some legal
matters, including the material Australian tax matters, with respect to the
Class A-1 notes for Commonwealth Bank and Securitisation Advisory Services Pty
Limited. Skadden, Arps, Slate, Meagher & Flom, New York, New York, will pass
upon some legal matters with respect to the Class A-1 notes for the
underwriters.
168
<PAGE>
Glossary
<TABLE>
<C> <S>
A$ Class A-1 Interest Amount..... see page 86.
A$ Exchange Rate................. means a rate of A$1.00 = US$ .
Accrued Interest Adjustment...... means the amount of interest accrued on the
housing loans for, and any fees in relation
to the housing loans falling due for
payment during, the period commencing on
and including the date on which interest is
debited to the relevant housing loan
accounts by the servicer for that housing
loan immediately prior to the cut-off date
and ending on but excluding the closing
date and any accrued interest and fees due
but unpaid in relation to the housing loan
prior to the date that interest is debited
to the relevant housing loan accounts.
Adverse Effect................... means any event which, determined by the
manager unless specifically provided
otherwise, materially and adversely affects
the amount or timing of any payment due to
any noteholder or redraw bondholder.
Authorized Short-Term
Investments..................... means:
. bonds, debentures, stock or treasury
bills issued by or notes or other
securities issued by the Commonwealth of
Australia or the government of any State
or Territory of the Commonwealth of
Australia;
. deposits with, or the acquisition of
certificates of deposit issued by, an
Australian bank;
. bills of exchange, which at the time of
acquisition have a maturity date of not
more than 200 days accepted, drawn on or
endorsed with recourse by an Australian
bank; or
. debentures or stock of any public
statutory body constituted under the
laws of the Commonwealth of Australia or
any State or Territory of the
Commonwealth where the repayment of the
principal secured and the interest
payable on that principal is guaranteed
by the Commonwealth or the State or
Territory, in each case denominated
</TABLE>
169
<PAGE>
<TABLE>
<C> <S>
in Australian dollars and having a short
term credit rating of P1 from Moody's, A-1+
from Standard & Poor's and F1+, or where
the Authorized Short-Term Investment is at
call, F1, from Fitch IBCA or in each case
such other rating as is agreed between the
issuer trustee, the manager and the
relevant rating agency.
Available Income Amount.......... see page 71.
Available Principal Amount....... see page 75.
Average Delinquent Percentage....
in relation to a determination date means
the amount (expressed as a percentage)
calculated as follows:
</TABLE>
SDP
---
ADP = 12
<TABLE>
<C> <S>
where:
</TABLE>
<TABLE>
<C> <C> <S> <C>
ADP = the Average Delinquent Percentage; and
SDP = the sum of the Delinquent Percentages for
the 12 collection periods immediately
preceding or ending (as the case may be) on
the determination date,
</TABLE>
<TABLE>
<C> <S>
provided that if on that determination date
there has not yet been 12 collection
periods the Average Delinquent Percentage
in relation to that determination date
means the amount (expressed as a
percentage) calculated as follows:
</TABLE>
ADP = SDP
---
N
<TABLE>
<C> <S>
where:
</TABLE>
<TABLE>
<C> <C> <S> <C>
ADP = the Average Delinquent Percentage;
SDP = the sum of the Delinquent Percentages for
all of the collection periods preceding or
ending on the determination date; and
N = the number of collection periods preceding
the determination date.
</TABLE>
170
<PAGE>
<TABLE>
<C> <S>
Bank Bill Rate................... in relation to an accrual period means the
rate appearing at approximately 10.00 am
Sydney time on the first day of that
accrual period on the Reuters Screen page
"BBSW" as being the average of the mean
buying and selling rates appearing on that
page for a bill of exchange having a tenor
of three months. If:
. on the first day of an accrual period
fewer than 4 banks are quoted on the
Reuters Screen page "BBSW"; or
. for any other reason the rate for that
day cannot be determined in accordance
with the foregoing procedures,
then Bank Bill Rate means the rate
specified by the manager having regard to
comparable indices then available. However,
the Bank Bill Rate for the initial accrual
period will be determined by straight line
interpolation between the Bank Bill Rate
determined as above for a bill of exchange
having a tenor of three months and the Bank
Bill Rate determined as above for a bill of
exchange having a tenor of four months.
Business Day..................... means any day on which banks are open for
business in Sydney, New York City and
London other than a Saturday, a Sunday or a
public holiday in Sydney, New York City or
London.
Class B Available Support........ in relation to a determination date means
an amount (expressed as a percentage)
calculated as follows:
</TABLE>
<TABLE>
<S> <C> <C>
SAB
CBAS =
----------
ASA + SRFL
</TABLE>
<TABLE>
<C> <S>
where:
</TABLE>
<TABLE>
<C> <C> <S> <C>
CBAS = the Class B Available Support;
SAB = the aggregate Stated Amount for the Class
B notes on that determination date;
ASA = the aggregate of the of the Stated
Amounts of the Class A-1 notes converted
to Australian dollars at the A$ Exchange
Rate, and the Stated Amounts of all other
notes and redraw bonds on that
determination date; and
</TABLE>
171
<PAGE>
<TABLE>
<C> <C> <S> <C>
SRFL = the redraw limit under the standby redraw
facility on that determination date.
</TABLE>
<TABLE>
<C> <S>
Class B Required Support......... in relation to a determination date means
the amount (expressed as a percentage)
calculated as follows:
</TABLE>
IIA
-----
CBRS = AIIA
<TABLE>
<C> <S>
where:
</TABLE>
<TABLE>
<C> <C> <S> <C>
CBRS = the Class B Required Support;
IIA = the aggregate Invested Amount of the
Class B notes upon the issue of the Class
B notes; and
AIIA = the aggregate of the Invested Amounts of
the Class A-1 notes upon the issue of the
Class A-1 notes converted to Australian
dollars at the A$ Exchange Rate and the
Invested Amounts of all other notes and
redraw bonds on that determination date.
</TABLE>
<TABLE>
<C> <S>
Consumer Credit Code............. means, as applicable, the Consumer Credit
Code set out in the Appendix to the
Consumer Credit (Queensland) Act 1995 as in
force or applied as a law of any
jurisdiction in Australia, the provisions
of the Code set out in the Appendix to the
Consumer Credit (Western Australia) Act
1996 or the provisions of the Code set out
in the Appendix to the Consumer Credit
(Tasmania) Act 1996.
Delinquent Percentage............ in relation to a collection period means
the amount (expressed as a percentage)
calculated as follows:
</TABLE>
DP = DMLP
----
AMLP
<TABLE>
<C> <S>
where:
</TABLE>
<TABLE>
<C> <C> <S> <C>
DP = the Delinquent Percentage;
DMLP = the aggregate, on the last day of the
collection period, of the principal
outstanding with respect to those housing
loans in relation to which a payment due
from the borrower has been in arrears (on
that day) by more than 60 days; and
</TABLE>
172
<PAGE>
<TABLE>
<C> <C> <S> <C>
AMLP = the aggregate principal outstanding in
relation to the housing loans on the last
day of the collection period.
</TABLE>
<TABLE>
<C> <S>
Eligible Depository.............. means a financial institution which has
assigned to it short term credit ratings
equal to or higher than A-1 by Standard &
Poor's, P-1 by Moody's and F1+ by Fitch
IBCA and includes the servicer to the
extent that:
. it is rated in this manner, provided
that if the servicer is the seller and
the servicer is an authorized deposit
taking institution under the Banking
Act 1959 of Australia the rating
requirement of Fitch IBCA will be F1,
or higher; or
</TABLE>
<TABLE>
<C> <S>
. the rating agencies confirm that the
rating of the servicer at a lower level
will not result in a reduction,
qualification or withdrawal of the
ratings given by the rating agencies to
the notes or redraw bonds.
</TABLE>
<TABLE>
<C> <S>
Eligible Trust Corporation....... means any person eligible for appointment
as an institutional trustee under an
indenture to be qualified pursuant to the
Trust Indenture Act of 1939 of the United
States of America as prescribed in section
310(a) of the Trust Indenture Act.
Extraordinary Resolution......... in relation to Voting Secured Creditors or
a class of Voting Secured Creditors means a
resolution passed at a duly convened
meeting of the Voting Secured Creditors or
a class of Voting Secured Creditors under
the security trust deed by a majority
consisting of not less than 75% of the
votes of such Voting Secured Creditors or
their representatives present and voting
or, if a poll is demanded, by such Voting
Secured Creditors holding or representing
between them Voting Entitlements comprising
in aggregate not less than 75% of the
aggregate number of votes comprised in the
Voting Entitlements held or represented by
all the persons present and voting at the
meeting or a written resolution signed by
all the Voting Secured Creditors or the
class of Voting Secured Creditors (as the
case may be).
</TABLE>
173
<PAGE>
<TABLE>
<C> <S>
Fair Market Value................ in relation to a housing loan means the
fair market value for that housing loan
determined by the seller's external
auditors and which value reflects the
performing or non-performing status, as
determined by the servicer, of that housing
loan and any benefit which the intended
purchaser will have in respect of such
housing loan under any relevant Support
Facility.
Finance Charge Collections....... see page 71.
Insolvency Event................. means, in relation to:
. the issuer trustee in its capacity as
trustee of the trust:
. an application is made and not dismissed
or stayed on appeal within 30 days or an
order is made that the issuer trustee be
wound up or dissolved;
</TABLE>
<TABLE>
<C> <S>
. an application for an order is made and
not dismissed or stayed on appeal within
30 days appointing a liquidator, a
provisional liquidator, a receiver or a
receiver and manager in respect of the
issuer trustee or one of them is
appointed;
. except on terms approved by the security
trustee, the issuer trustee enters into,
or resolves to enter into, a scheme of
arrangement, deed of company arrangement
or composition with, or assignment for
the benefit of, all or any class of its
creditors, or it proposes a
reorganisation, moratorium or other
administration involving any of them;
</TABLE>
<TABLE>
<C> <S>
. the issuer trustee resolves to wind
itself up, or otherwise dissolve itself,
or gives notice of intention to do so,
except to reconstruct or amalgamate
while solvent on terms approved by the
security trustee or is otherwise wound
up or dissolved;
. the issuer trustee is or states that it
is unable to pay its debts when they
fall due;
. as a result of the operation of section
459F(1) of the Australian Corporations
Law, the issuer trustee is taken to have
failed to comply with a statutory
demand;
</TABLE>
174
<PAGE>
<TABLE>
<C> <S>
. the issuer trustee is or makes a
statement from which it may be
reasonably deduced by the security
trustee that the issuer trustee is, the
subject of an event described in section
459C(2)(b) or section 585 of the
Australian Corporations Law;
. the issuer trustee takes any step to
obtain protection or is granted
protection from its creditors, under any
applicable legislation or an
administrator is appointed to the issuer
trustee or the board of directors of the
issuer trustee propose to appoint an
administrator to the issuer trustee or
the issuer trustee becomes aware that a
person who is entitled to enforce a
charge on the whole or substantially the
whole of the issuer trustee's property
proposes to appoint an administrator to
the issuer trustee; and
. anything analogous or having a
substantially similar effect to any of
the events specified above happens under
the law of any applicable jurisdiction.
. any other body corporate and the issuer
trustee in its personal capacity, each
of the following events:
. an order is made that the body corporate
be wound up;
. a liquidator, provisional liquidator,
controller or administrator is appointed
in respect of the body corporate or a
substantial portion of its assets
whether or not under an order;
. except to reconstruct or amalgamate on
terms reasonably approved by the issuer
trustee (or in the case of a
reconstruction or amalgamation of the
issuer trustee, on terms reasonably
approved by the manager), the body
corporate enters into, or resolves to
enter into, a scheme of arrangement,
deed of company arrangement or
composition with, or assignment for the
benefit of, all or any class of its
creditors;
</TABLE>
175
<PAGE>
<TABLE>
<C> <S>
. the body corporate resolves to wind
itself up, or otherwise dissolve itself,
or gives notice of its intention to do
so, except to reconstruct or amalgamate
on terms reasonably approved by the
issuer trustee (or in the case of a
reconstruction or amalgamation of the
issuer trustee, except on terms
reasonably approved by the manager) or
is otherwise wound up or dissolved;
. the body corporate is or states that it
is insolvent;
. as a result of the operation of section
459F(1) of the Australian Corporations
Law, the body corporate is taken to have
failed to comply with a statutory
demand;
. the body corporate takes any step to
obtain protection or is granted
protection from its creditors, under any
applicable legislation;
. any writ of execution, attachment,
distress or similar process is made,
levied or issued against or in relation
to a substantial portion of the body
corporate's assets and is not satisfied
or withdrawn or contested in good faith
by the body corporate within 21 days; or
. anything analogous or having a
substantially similar effect to any of
the events specified above happens under
the law of any applicable jurisdiction.
Invested Amount.................. means in relation to a note or a redraw
bond, the principal amount of that note or
redraw bond upon issue less the aggregate
of all principal payments made on that note
or redraw bond.
Issuer Trustee Default........... means:
. the issuer trustee fails within 20
Sydney business days, or such longer
period as the manager may agree to,
after notice from the manager to carry
out or satisfy any material duty or
obligation imposed by the master trust
deed or any other transaction document
in respect of a Medallion Program trust;
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. an Insolvency Event occurs with respect
to the issuer trustee in its personal
capacity;
. the issuer trustee ceases to carry on
business;
. the issuer trustee merges or
consolidates into another entity, unless
approved by the manager, which approval
will not be withheld if, in the
manager's reasonable opinion, the
commercial reputation and standing of
the surviving entity will not be less
than that of the issuer trustee prior to
such merger or consolidation, and unless
the surviving entity assumes the
obligations of the issuer trustee under
the transaction documents in respect of
a Medallion Program trust; or
. there is a change in the ownership of 50
per cent or more of the issued equity
share capital of the issuer trustee from
the position as at the date of the
master trust deed, or effective control
of the issuer trustee alters from the
position as at the
date of the master trust deed, unless in
either case approved by the manager,
which approval will not be withheld if,
in the manager's reasonable opinion, the
change in ownership or control of the
issuer trustee will not result in a
lessening of the commercial reputation
and standing of the issuer trustee.
LIBOR............................ means:
. the rate for three-month deposits in US
dollars which appears on Telerate Page
3750 as of 11.00 am, London time on the
second London and New York Business Day
before the beginning of the accrual
period;
. if that rate does not appear, the USD-
LIBOR-BBA for that accrual period will
be determined as if the issuer trustee
and the agent bank had specified "USD-
LIBOR-Reference Banks" as the applicable
Floating Rate Option under the
Definitions of the International Swaps
and Derivates Association, Inc.
The USD-LIBOR-BBA for the first accrual
period will be determined by linear
interpolation calculated with reference to
the duration of the first accrual period.
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Manager Default.................. means:
. an Insolvency Event occurs in relation
to the manager;
. the manager does not instruct the
issuer trustee to pay the required
amounts to the noteholders within the
time periods specified in the series
supplement and that failure is not
remedied within 10 Business Days, or
such longer period as the issuer
trustee may agree, of notice of
failure being delivered to the manager
by the issuer trustee;
. the manager does not prepare and
transmit to the issuer trustee the
quarterly certificates or any other
reports required to be prepared by the
manager and such failure is not
remedied within 10 Business Days, or
such longer period as the issuer
trustee may agree, of notice being
delivered to the manager by the issuer
trustee. Such a failure by the manager
does not constitute a Manager Default
if it is as a result of a Servicer
Default referred to in the second
paragraph of the definition of that
term provided that, if the servicer
subsequently provides the information
to the manager, the manager prepares
and submits to the issuer trustee the
outstanding quarterly certificates or
other reports within 10 Business Days,
or such longer period as the issuer
trustee may agree to, of receipt of
the required information from the
servicer;
. any representation, warranty,
certification or statement made by the
manager in a transaction document or
in any document provided by the
manager under or in connection with a
transaction document proves to be
incorrect when made or is incorrect
when repeated, in a manner which as
reasonably determined by the issuer
trustee has an Adverse Effect and is
not remedied to the issuer trustee's
reasonable satisfaction within 60
Business Days of notice to the manager
by the issuer trustee;
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. the manager has breached its other
obligations under a transaction document
or any other deed, agreement or
arrangement entered into by the manager
under the master trust deed and relating
to the trust or the notes or redraw
bonds, other than an obligation which
depends upon information provided by, or
action taken by, the servicer and the
servicer has not provided the
information or taken the action, and
that breach has had or, if continued,
will have an Adverse Effect as
reasonably determined by the issuer
trustee, and either:
. such breach is not remedied so that it
no longer has or will have to such an
Adverse Effect, within 20 Business Days
of notice delivered to the manager by
the issuer trustee; or
. the manager has not within 20 Business
Days of receipt of such notice paid
compensation to the issuer trustee for
its loss from such breach in an amount
satisfactory to the issuer trustee
acting reasonably.
The issuer trustee must, in such notice,
specify the reasons why it believes an
Adverse Effect has occurred, or will occur,
as the case may be.
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Mortgage Insurance Interest
Proceeds........................ see page 71.
Mortgage Insurance Principal
Proceeds........................ see page 76.
Net Principal Collections........ see page 77.
Net Unscheduled Principal........ see page 77.
Other Income..................... see page 71.
Other Principal Amounts.......... see page 76.
Payment Modification............. see page 98.
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Perfection of Title Event........ means:
. the seller makes any representation or
warranty under a transaction document
that proves to be incorrect when made,
other than a representation or warranty
in respect of which damages have been
paid or for which payment is not yet
due, for breach, or breaches any
covenant or undertaking given by it in a
transaction document, and that has or,
if continued will have, an Adverse
Effect and:
. the same is not satisfactorily remedied
so that it no longer has or will have,
an Adverse Effect, within 20 Business
Days of notice being delivered to the
seller by the manager or the issuer
trustee; or
. if the preceding paragraph is not
satisfied, the seller has not within 20
Business Days of such notice paid
compensation to the issuer trustee for
its loss from that breach in an amount
satisfactory to the issuer trustee
acting reasonably. Such compensation
cannot exceed the aggregate of the
principal amount outstanding in respect
of the corresponding housing loan and
any accrued or unpaid interest in
respect of the housing loan, calculated
in both cases at the time of payment of
the compensation.
The issuer trustee must, in such notice,
specify the reasons why it believes an
Adverse Effect has occurred, or will
occur;
. if the seller is the servicer, a
Servicer Default occurs;
. an Insolvency Event occurs in relation
to the seller;
. if the seller is the swap provider under
a fixed rate swap or an interest rate
basis cap, the seller fails to make any
payment due under a swap or cap and that
failure:
. has or will have an Adverse Effect as
reasonably determined by the issuer
trustee; and
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. is not remedied by the seller within 20
Business Days, or such longer period as
the issuer trustee agrees, of notice to
the seller by the manager or the issuer
trustee;
. a downgrading in the long term debt
rating of the seller below BBB by
Standard & Poor's, Baa2 by Moody's or
BBB by Fitch IBCA or such other rating
in respect of the seller as is agreed
between the manager, the seller and the
rating agency which had assigned the
relevant rating.
Performing Housing Loans Amount.. means the aggregate of the following:
. the amount outstanding under housing
loans under which no payment due from
the borrower has been in arrears by more
than 90 days; and
. the amount outstanding under housing
loans under which a payment due from the
borrower has been in arrears by more
than 90 days and which are insured under
a mortgage insurance policy.
Potential Termination Event...... means:
. it is or becomes unlawful for the issuer
trustee, and would also be unlawful for
any new issuer trustee, to carry out any
of its obligations under the series
supplement, the master trust deed (in so
far as it relates to the trust), the
Class A-1 note trust deed, the Class A-1
notes or the security trust deed; or
. all or any part of the series
supplement, the master trust deed (in so
far as it relates to the trust) the
Class A-1 note trust deed, the Class
A-1 notes or the security trust deed is
or has become void, illegal,
unenforceable or of limited force and
effect.
Principal Charge-off
Reimbursement................... see page 76.
Principal Collections............ see page 75.
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Prior Interest................... means the issuer trustee's lien over, and
right of indemnification from, the assets
of the trust calculated in accordance with
the master trust deed for fees and expenses
payable to the issuer trustee, other than
the Secured Moneys, which are unpaid, or
paid by the issuer trustee but not
reimbursed to the issuer trustee from the
assets of the trust.
Redraw Bond Amount............... see page 76.
Secured Creditor................. see page 112.
Secured Moneys................... means the aggregate of all moneys owing to
the security trustee or to a Secured
Creditor under any of the transaction
documents whether such amounts are
liquidated or not or are contingent or
presently accrued due, and including rights
sounding in damages only, provided that the
amount owing by the issuer trustee in
relation to the principal component of a
note or redraw bond is to be calculated by
reference to the Invested Amount of that
note or redraw bond, the amount owing by
the issuer trustee in relation to the
principal component of the standby redraw
facility will include any unreimbursed
principal charge-offs in respect of the
standby redraw facility and the Secured
Moneys do not include any fees or value
added tax payable to the Class A-1 note
trustee for which the issuer trustee is
personally liable.
Servicer Default................. see page 130.
Standby Redraw Facility Advance.. see page 76.
Stated Amount.................... for a note or a redraw bond means:
. the principal amount of that note or
redraw bond upon issue; less
. the aggregate of principal payments
previously made on that note or redraw
bond; less
. the aggregate of all then unreimbursed
principal charge-offs on that note or
redraw bond.
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Stepdown Conditions.............. are satisfied on a determination date if:
. the following applies:
. the Class B Available Support on the
determination date is equal to or
greater than two times the Class B
Required Support on the determination
date;
. the aggregate Stated Amount for the
Class B notes on the determination date
is equal to or greater than 0.25% of the
aggregate Invested Amount of the Class B
notes upon the issue of the Class B
notes;
. either:
. the Average Delinquent Percentage on the
determination date does not exceed 2%
and the aggregate of all unreimbursed
principal charge-offs on the
determination date does not exceed 30%
of the aggregate of the Invested Amounts
of the Class B notes upon the issue of
the Class B notes; or
. the Average Delinquent Percentage on the
determination date does not exceed 4%
and the aggregate of all unreimbursed
principal charge-offs on the
determination date not exceed 10% of the
aggregate of the Invested Amounts of the
Class B notes upon the issue of the
Class B notes; and
. the total principal outstanding on the
housing loans is not, and is not
expected to be on or prior to the next
distribution date, less than 10% of the
total principal outstanding on the
housing loans on March 18, 2000;
. the following applies:
. the determination date falls on or after
the fifth anniversary of the closing
date;
. the Average Delinquent Percentage on the
determination date does not exceed 2%;
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. the aggregate Stated Amount for the
Class B notes on the determination date
is equal to or greater than 0.25% of the
aggregate Invested Amount of the Class B
notes upon the issue of the Class B
notes; and
. the aggregate of all unreimbursed
principal charge-offs on the
determination date does not exceed, if
the determination date falls on or after
the:
. fifth but prior to the sixth anniversary
of the closing date, 30% of the
aggregate of the initial Invested
Amounts of the Class B notes;
. sixth but prior to the seventh
anniversary of the closing date, 35% of
the aggregate of the initial Invested
Amounts of the Class B notes;
. seventh but prior to the eighth
anniversary of the closing date, 40% of
the aggregate of the initial Invested
Amounts of the Class B notes;
. eighth but prior to the ninth
anniversary of the closing date, 45% of
the aggregate of the initial Invested
Amounts of the Class B notes; or
. ninth anniversary of the closing date,
50% of the aggregate of the initial
Invested Amounts of the Class B notes.
Stepdown Percentage.............. on a determination date is determined as
follows.
If the Stepdown Conditions are not
satisfied on that determination date, the
Stepdown Percentage is 100%.
If the Stepdown Conditions are satisfied on
that determination date, the Stepdown
Percentage is 100% unless the following
apply:
. if the determination date falls prior to
the third anniversary of the closing
date the Stepdown Percentage is 50%;
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. if:
. the determination date falls on or after
the third anniversary of the closing
date but prior to the tenth anniversary
of the closing date; and
. the Class B Available Support on the
determination date is equal to or
greater than two times the Class B
Required Support on the determination
date;
the Stepdown Percentage is 0%;
. if:
. the preceding paragraph does not apply;
. the determination date falls on or after
the fifth anniversary of the closing
date but prior to the tenth anniversary
of the closing date; and
. the Class B Available Support on the
determination date is equal to or
greater than the Class B Required
Support on the determination date;
then if the determination date falls on or
after the:
. fifth but prior to the sixth anniversary
of the closing date, the Stepdown
Percentage is 70%;
. sixth but prior to the seventh
anniversary of the closing date, the
Stepdown Percentage is 60%;
. seventh but prior to the eighth
anniversary of the closing date, the
Stepdown Percentage is 40%;
. eighth but prior to the ninth
anniversary of the closing date, the
Stepdown Percentage is 20%; or
. ninth but prior to the tenth anniversary
of the closing date, the Stepdown
Percentage is 0%; or
. if the determination date falls on or
after the tenth anniversary of the
closing date, the Stepdown Percentage is
0%.
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Support Facility................. means the currency swap, the basis swap,
the fixed rate swap, the liquidity
facility, the standby redraw facility and
the mortgage insurance policies.
US$ Exchange Rate................ means a rate of US$1.00 = A$ .
Voting Entitlements.............. on a particular date means the number of
votes which a Voting Secured Creditor would
be entitled to exercise if a meeting of
Voting Secured Creditors were held on that
date, being the number calculated by
dividing the Secured Moneys owing to that
Voting Secured Creditor by 10 and rounding
the resultant figure down to the nearest
whole number. If the Class A-1 note trustee
is a Voting Secured Creditor it will have a
Voting Entitlement equal to the aggregate
Voting Entitlement for all Class A-1
noteholders.
Secured Moneys in respect of the Class A-1
notes will be converted to Australian
dollars from US dollars at either the A$
Exchange Rate or the spot rate used for the
calculation of amounts payable on the early
termination of the currency swap, whichever
produces the lowest amount in Australian
dollars.
Voting Secured Creditors......... means:
. for so long as the Secured Moneys of the
noteholders, converted, in the case of
the Class A-1 notes, to Australian
dollars in the manner described in the
definition of "Voting Entitlements" and
the redraw bondholders are 75% or more
of the then total Secured Moneys:
. if any Class A-1 note then remains
outstanding, the Class A-1 note trustee,
or, if the Class A-1 note trustee has
become bound to notify, or seek
directions from, the Class A-1
noteholders or take steps and/or to
proceed under the Class A-1 note trust
deed and fails to do so when required by
the Class A-1 note trustee and such
failure is continuing, the Class A-1
noteholders; if any Class A-2 notes
remain outstanding, the Class A-2
noteholders; and if any redraw bonds
remain outstanding, the redraw
bondholders; or
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. if none of the above securities then
remain outstanding, the Class B
noteholders; and
. otherwise:
. if any Class A-1 note remains
outstanding, the Class A-1 note trustee,
or, if the Class A-1 note trustee has
become bound to take steps and/or to
proceed under the Class A-1 note trust
deed and fails to do so when required by
the Class A-1 note trustee and such
failure is continuing, the Class A-1
noteholders; and
. each other then Secured Creditor other
than the Class A-1 note trustee and the
Class A-1 noteholders.
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APPENDIX I
Terms and Conditions of the Class A-1 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-1 Notes, substantially as they will appear on the reverse of any Class
A-1 Notes. Class A-1 Notes will initially be issued in book entry form. Class
A-1 Notes in definitive form will only be issued in limited circumstances.
While the Class A-1 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-1 Notes in definitive form. A summary of the provisions applicable
to the Class A-1 Notes while in book entry form, including the circumstances in
which Class A-1 Notes in definitive form will be issued, is set out in
"Description of the Class A-1 Notes--Form of the Class A-1 Notes" of this
prospectus.
Sections in italics are included by way of explanation only and do not
constitute part of the terms and conditions of the Class A-1 Notes.
1. General
The issue of the US$1,000,000,000 Class A-1 Mortgage Backed Floating Rate
Notes due 12 July 2031 (the "Class A-1 Notes"), the A$300,000,000 Class A-2
Mortgage Backed Floating Rate Notes due 12 July 2031 (the "Class A-2 Notes" and
together with the Class A-1 Notes, the "Class A Notes") and the A$15,000,000
Class B Mortgage Backed Floating Rate Notes due 12 July 2031 (the "Class B
Notes") (together the "Notes") by Perpetual Trustee Company Limited, ACN 000
001 007, ("Perpetual") in its capacity as trustee of the Series 2000-1G
Medallion Trust (the "Series Trust") (Perpetual in such capacity, the "Issuer")
was authorised by a resolution of the board of directors of Perpetual passed on
March 16, 2000.
The Class A-1 Notes: (a) are constituted by a Class A-1 Note Trust Deed
(the "Class A-1 Note Trust Deed") dated on or about March 21, 2000 made between
the Issuer, Securitisation Advisory Services Pty Limited, ACN 064 133 946, (the
"Manager") and The Bank of New York, New York Branch (the "Class A-1 Note
Trustee") as trustee for the several persons who are for the time being
registered holders of the Class A-1 Notes (each a "Class A-1 Noteholder" and
together the "Class A-1 Noteholders"); and (b) are issued subject to, and with
the direct or indirect benefit of, amongst other things (i) a Master Trust Deed
(the "Master Trust Deed") dated 8 October 1997 made between the Manager and
Perpetual, as amended from time to time; (ii) a Series Supplement (the "Series
Supplement") dated on or about March 18, 2000 made between Commonwealth Bank of
Australia, ACN 123 123 124 (generally the "Bank" and in its respective
capacities under the Series Supplement the "Seller" and the initial
"Servicer"), the Manager and the Issuer; (iii) a Security Trust Deed (the
"Security Trust Deed") dated on or about March 18, 2000 made between the
Issuer, the Manager, the Class A-1 Note Trustee and P.T. Limited, ACN 004 454
666 (the "Security Trustee"); (iv) the Class A-1 Note Trust Deed; (v) these
terms and conditions (the "Conditions"); and (vi) the Agency Agreement (as
defined below).
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Certain provisions of these Conditions (including the definitions herein)
are summaries of the Transaction Documents (as defined in Condition 3) and are
subject to the detailed provisions of the Transaction Documents, a copy of
which may be inspected as indicated in Condition 3.
Payments of interest and principal, and the calculation of certain
amounts and rates, under these Conditions in respect of the Class A-1 Notes
will be made pursuant to an Agency Agreement (the "Agency Agreement") dated on
or about March 21, 2000 made between the Issuer, the Class A-1 Note Trustee,
the Manager, The Bank of New York, New York Branch, as the initial principal
paying agent (the "Principal Paying Agent") (together with any other paying
agent appointed from time to time under the Agency Agreement, the "Paying
Agents"), as the initial agent bank (the "Agent Bank") and as the initial Class
A-1 note registrar (the "Class A-1 Note Registrar") and The Bank of New York,
London Branch and as an initial paying agent.
The Issuer has entered into ISDA Master Agreements (each a "Currency Swap
Agreement") with Merrill Lynch Capital Services Inc. and Commonwealth Bank of
Australia (each a "Currency Swap Provider") and the Manager, each together with
a schedule and a credit support annex and a confirmation relating thereto in
respect of the Class A-1 Notes (each such confirmation documenting a "Class A-1
Currency Swap").
The Class A-1 Notes will on issue be listed on the London Stock Exchange
Limited (the "London Stock Exchange").
"US$" means the lawful currency for the time being of the United States
of America and "A$" means the lawful currency for the time being of the
Commonwealth of Australia.
2. Definitions and Interpretation
2.1 Incorporated Definitions and other Provisions
Where in these Conditions a word or expression is defined by reference to
its meaning in another Transaction Document or there is a reference to another
Transaction Document or to a provision of another Transaction Document, any
amendment to the meaning of that word or expression, to that other Transaction
Document or to that provision (as the case may be) will be of no effect for the
purposes of these Conditions unless and until the amendment: (a) if it does not
effect a Payment Modification (as defined in Condition 10.3) is either: (i) if
the Class A-1 Note Trustee is of the opinion that the amendment will not be
materially prejudicial to the interests of the Class A-1 Noteholders, consented
to by the Class A-1 Note Trustee; or (ii) otherwise, approved by a Special
Majority (as defined in Condition 10.3) of the Class A-1 Noteholders under the
Class A-1 Note Trust Deed; or (b) if the amendment does effect a Payment
Modification (as defined in Condition 10.3), is consented to by each Class A-1
Noteholder.
2.2 Interpretation
In these Conditions, unless the context otherwise requires: (a) a
reference to a party includes that party's executors, administrators,
successors, substitutes and assigns, including any person replacing that party
by way of novation; (b) a reference to any regulation or to
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any section or provision thereof includes any statutory modification or re-
enactment or any statutory provision substituted therefor and all ordinances,
by-laws, regulations and other statutory instruments issued thereunder; (c)
subject to Condition 2.1, a reference to any document or agreement is a
reference to such document or agreement as amended, varied, supplemented or
replaced from time to time; (d) words importing the singular include the plural
(and vice versa); (e) words denoting a given gender include all other genders;
and (f) headings are for convenience only and do not affect the interpretation
of these Conditions.
2.3 Calculations
Except as expressly provided otherwise in these Conditions, all
calculations in a given currency under these Conditions will be rounded down to
the nearest cent in that currency and all other calculations and percentages
determined hereunder will be rounded down to the nearest 4 decimal places.
3. Class A-1 Noteholders Bound
The Class A-1 Noteholders are bound by, and are deemed to have notice of,
all the provisions of the Transaction Documents. A copy of each Transaction
Document is available for inspection during normal business hours on New York
business days at the registered office for the time being of the Class A-1 Note
Trustee (which is, at the date of these Conditions, 101 Barclay Street, 21W,
New York, New York, 10286).
"Transaction Documents" means the Master Trust Deed in so far as it
relates to the Series Trust, the Series Supplement, the Currency Swap
Agreements, the Interest Rate Swap Agreement, the Liquidity Facility Agreement,
the Standby Redraw Facility Agreement, the GEMICO Mortgage Insurance Policies,
the Security Trust Deed, the Dealer Agreement, the Underwriting Agreement, the
Class A-1 Note Trust Deed, these Conditions, the Agency Agreement and any other
document which is agreed by the Manager and the Issuer to be a Transaction
Document in relation to the Series Trust.
"Dealer Agreement", "GEMICO Mortgage Insurance Policies", "Interest Rate
Swap Agreement", "Liquidity Facility Agreement", "Standby Redraw Facility
Agreement" and "Underwriting Agreement" have the same respective meanings as in
the Series Supplement. Further details of these documents are contained in "The
Mortgage Insurance Policies", "Description of the Class A-1 Notes--The Interest
Rate Swaps", "Description of the Transaction Documents--The Liquidity
Facility,--The Standby Redraw Facility", "Plan of Distribution" and "Listing
and General Information--Transaction Documents Available for Inspection" of
this prospectus.
4. Form, Denomination and Title of and to, and the issue of definitive, Class
A-1 Notes
4.1 Form and Denomination
The Class A-1 Notes will be issued in registered form, without
interest coupons, in minimum denominations of US$100,000 or integral
multiples thereof. The initial principal amount of each Class A-1 Note
(the "Initial Invested Amount" in relation to that Class A-1 Note) will be
stated on its face.
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4.2 Title
Title to the Class A-1 Notes will only be shown on, and will only pass by
registration in, the register (the "Class A-1 Note Register") maintained by the
Class A-1 Note Registrar in accordance with the Agency Agreement. Class A-1
Notes may be transferred, or may be exchanged for other Class A-1 Notes in any
authorised denominations and a like Invested Amount (as defined in Condition
6.4), upon the surrender of the Class A-1 Notes to be transferred or exchanged
duly endorsed with or accompanied by a written instrument of transfer and
exchange duly executed (with such execution guaranteed by an eligible guarantor
institution) and the provision of such other documents as the Class A-1 Note
Registrar may reasonably require, to a specified office of the Class A-1 Note
Registrar (as set out at the end of these Conditions or otherwise notified to
Class A-1 Noteholders) subject to and in accordance with the Agency Agreement.
No service charge may be made for any transfer or exchange, but the Class A-1
Note Registrar may require payment by the Class A-1 Noteholder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Class A-1 Notes. The Class A-1 Note
Registrar need not register transfers or exchanges of Class A-1 Notes for a
period of 30 days preceding the due date for any payment with respect to the
Class A-1 Notes or for a period, not exceeding 30 days, specified by the Class
A-1 Note Trustee prior to any meeting which includes Class A-1 Noteholders
under the Master Trust Deed or the Security Trust Deed. The Issuer, the Class
A-1 Note Trustee, the Manager, the Agent Bank and each Paying Agent may accept
the correctness of the Class A-1 Note Register and any information provided to
it by the Class A-1 Note Registrar and is not required to enquire into its
authenticity. None of the Issuer, the Class A-1 Note Trustee, the Manager, the
Agent Bank, any Paying Agent or the Class A-1 Note Registrar is liable for any
mistake in the Class A-1 Note Register or in any purported copy except to the
extent that the mistake is attributable to its own fraud, negligence or wilful
default.
5. Status, Security and Relationship between the Class A-1 Notes, the Class A-2
Notes, the Class B Notes and the Redraw Bonds
5.1 Status of the Securities
The Notes and the Redraw Bonds (as defined in Condition 5.6) (together
the "Securities") are direct, secured (as described in Condition 5.2) limited
recourse (as described in Condition 5.3) obligations of the Issuer.
5.2 Security
The obligations of the Issuer under the Securities are (amongst the other
payment obligations of the Issuer comprising the Secured Moneys (as defined
below)) secured, pursuant to the Security Trust Deed, in favour of the Security
Trustee as trustee for the Secured Creditors (as defined below), by a floating
charge (the "Charge") over all of the assets and property, real and personal
(including choses in action and other rights), tangible and intangible, present
or future, of the Series Trust (the "Charged Property"). The Charged Property
includes an equitable interest in certain mortgage loans, and related
mortgages, acquired by the Issuer from the Seller. The Charge is a first
ranking security, subject only to the Prior Interest in the Charged Property.
Further details regarding the Charged Property are contained in
"Description of the Assets of the Trust" of this prospectus
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"Class A Noteholders" means the Class A-1 Noteholders and the Class A-2
Noteholders (as defined in the Series Supplement).
"Invested Amount" in relation to a Class A-1 Note is defined in Condition
6.4 and in relation to a Class A-2 Note, Class B Note or Redraw Bond means (as
defined in the Series Supplement) A$100,000 less the aggregate of all amounts
previously paid in relation to that Note or Redraw Bond on account of principal
pursuant to clause 10.3(c) of the Series Supplement.
"Prior Interest" means the lien over, and right of indemnification from,
the Charged Property held by the Issuer under, and calculated in accordance
with, the Master Trust Deed for the fees, costs, charges and expenses incurred
by or payable to the Issuer (in its capacity as trustee of the Series Trust) in
accordance with the Master Trust Deed and the Series Supplement (other than the
Secured Moneys) which are unpaid or paid by the Issuer but not reimbursed to
the Issuer from the assets and property of the Series Trust.
"Secured Creditors" means the Class A-1 Note Trustee (in its personal
capacity and as trustee of the Class A-1 Trust established under the Class A-1
Note Trust Deed), each Paying Agent, each Securityholder, each Hedge Provider,
the Liquidity Facility Provider (as defined in the Series Supplement), the
Standby Redraw Facility Provider (as defined in the Series Supplement), the
Servicer and the Seller.
"Secured Moneys" means, without double counting, the aggregate of all
moneys owing to the Security Trustee or to a Secured Creditor under any of the
Transaction Documents, whether such amounts are liquidated or not or are
contingent or presently accrued due, and includes all rights sounding in
damages only provided that:
(a)the amount owing by the Issuer in relation to the principal component of
a Security is to be calculated by reference to the Invested Amount of
that Security;
(b) the amount owing by the Issuer in relation to the principal component
of the Standby Redraw Facility Agreement is to be calculated by
reference to the aggregate of the Standby Redraw Facility Principal and
the Unreimbursed Principal Charge-offs in relation to the Standby
Redraw Facility Principal; and
(c)the Secured Moneys do not include any fees or value added tax payable to
the Class A-1 Note Trustee or an Agent referred to in clause 12.7 of
the Class A-1 Note Trust Deed or Clause 12.6 of the Agency Agreement.
"Securityholders" means the Class A Noteholders, the Class B Noteholders
(as defined in the Series Supplement) and the Redraw Bondholders (as defined in
the Series Supplement).
5.3 Limited Recourse
The liability of the Issuer to make interest and principal payments on
the Class A-1 Securities is limited, except in certain circumstances described
in Condition 12, to the assets and property of the Series Trust available for
this purpose in accordance with, and subject to the order of priority of
payments in, the Series Supplement (prior to enforcement of the Charge) or the
Security Trust Deed (following enforcement of the Charge).
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The net proceeds of realisation of the assets and property of the Series
Trust (including following enforcement of the Charge) may be insufficient to
pay all amounts due to the Class A-1 Noteholders and any other amounts ranking
in priority to or equally with amounts due to the Class A-1 Noteholders. Except
in the limited circumstances described in Condition 12, the assets of Perpetual
held in its personal capacity will not be available for payment of any
shortfall arising and all claims in respect of such shortfall will be
extinguished. The assets of Perpetual held in its capacity as trustee of any
other trust (including any other series trust established pursuant to the
Master Trust Deed) will not in any circumstances be available to pay any
amounts due to Class A-1 Noteholders.
None of the Bank, the Manager, the Class A-1 Note Trustee, the Security
Trustee, any Agent, each Currency Swap Provider or the Managers (as defined in
the Underwriting Agreement), amongst others, has any obligation to any Class A-
1 Noteholder for payment of any amount owed by the Issuer in respect of the
Class A-1 Notes.
5.4 No Preference within the Class A-1 Notes
The Class A-1 Notes rank equally and rateably and without any preference
or priority among themselves.
5.5 Ranking of Class A-1 and Class A-2 Notes
Prior to the enforcement of the Charge, under the Series Supplement the
Class A-1 Notes and Class A-2 Notes will rank equally and rateably in relation
to the payment of interest and the repayment of principal (the amounts payable
by the Issuer under the Series Supplement in relation to the Class A-1 Notes
will be calculated by reference to the applicable Australian dollar amounts
payable by the Issuer to the Currency Swap Providers, which rank equally and
rateably with amounts payable in respect of the Class A-2 Notes, which in turn
will be applied to meet the payment of interest and the repayment of principal
(as applicable) on the Class A-1 Notes as explained, respectively, in
Conditions 6.9 and 7.2). Following enforcement of the Charge, under the
Security Trust Deed the payment of amounts owing in relation to the Class A-1
Notes and the Class A-2 Notes will rank rateably (the amounts owing in respect
of the Class A-1 Notes will, for the purposes of determining distributions to,
and allocations between, the Class A-1 Noteholders, the Class A-2 Noteholders
and the other Secured Creditors, be converted into A$ in accordance with the
Security Trust Deed).
5.6 Issue of Redraw Bonds
Under the Series Supplement, the Issuer is entitled to issue debt
securities ("Redraw Bonds") from time to time at the direction of the Manager.
If prior to a Determination Date, the Manager considers that the aggregate of:
(a) the Principal Collections, the Principal Charge-Off Reimbursements (as
defined in Condition 7.10) and the Other Principal Amounts for the
Collection Period ending on the Determination Date; and
(b) the Standby Redraw Facility Advance (as hereinafter defined) (if any)
to be made on the next Distribution Date (as defined in Condition 6.2),
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as estimated by the Manager are likely to be insufficient to meet in full
the aggregate of:
(c) the Seller Advances; and
(d) the Standby Redraw Facility Principal,
that the Manager estimates will be outstanding on the Determination Date, the
Manager may direct the Issuer to issue Redraw Bonds for a principal amount
specified in the direction. The maximum Stated Amount (as hereinafter defined)
of the Redraw Bonds outstanding on any Distribution Date (after taking into
account any expected repayment of principal on the Redraw Bonds on that
Distribution Date) must not exceed the Redraw Bond Principal Limit.
"Collection Period", "Determination Date", "Other Principal Amount",
"Principal Collections", "Redraw Bond Principal Limit", "Seller Advance",
"Standby Redraw Facility Advance", "Standby Redraw Facility Principal" and
"Stated Amount" in relation to the Redraw Bonds have the same respective
meanings as in the Series Supplement. For a description of these, see
"Description of the Class A-1 Notes--Key Dates and Periods,--Determination of
the Available Principal Amount and--Redraws" and "Glossary" of this prospectus.
Prior to the enforcement of the Charge, under the Series Supplement: (i)
the payment of interest on the Redraw Bonds will rank equally and rateably with
the payment of interest on the Class A Notes (or, in the case of the Class A-1
Notes, equally and rateably with the payment of the relevant A$ amount by the
Issuer to the Currency Swap Providers which in turn will be applied to meet the
payment of interest on the Class A-1 Notes as explained in Condition 6.9); and
(ii) the repayment of principal on the Redraw Bonds will rank ahead of the
repayment of principal on the Class A Notes (or, in the case of the Class A-1
Notes, ahead of the payment of the relevant A$ amount by the Issuer to the
Currency Swap Providers which in turn will be applied to meet the repayment of
principal on the Class A-1 Notes as explained in Condition 7.2).
Following the enforcement of the Charge, under the Security Trust Deed
the payment of amounts owing in relation to the Redraw Bonds will rank rateably
with the payment of amounts owing in relation to the Class A Notes (the amounts
owing in respect of the Class A-1 Notes will, for the purposes of determining
distributions to, and allocations between, the Class A-1 Noteholders and Redraw
Bondholders and other Secured Creditors, be converted into A$ in accordance
with the Security Trust Deed).
5.7 Subordination of Class B Notes
Prior to the enforcement of the Charge, the payment of interest in
relation to the Class B Notes is subordinated to, amongst other things, the
payment of interest on the Class A Notes and the Redraw Bonds in accordance
with the Series Supplement; and the repayment of the principal on the Class B
Notes is, to a certain extent, subordinated to, amongst other things, the
repayment of the principal on the Class A Notes and the Redraw Bonds in
accordance with the calculations to be made of the amounts to be paid by the
Issuer under the Series Supplement (in the case of the Class A-1 Notes, the
subordination of
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the Class B Notes is in respect of the relevant A$ amounts payable by the
Issuer to the Currency Swap Providers which in turn will be applied to meet the
payment of interest and the repayment of principal on the Class A-1 Notes as
explained, respectively, in Conditions 6.9 and 7.2.). For a description of the
order of application of available proceeds under the Series Trust, the
consequent subordination of the payment of interest and repayment of principal
on the Class B Notes, see "Description of the Class A-1 Notes--Distribution of
the Available Income Amount,--Distribution of the Available Principal Amount
and--Allocation of Principal to Class A Notes and Class B Notes" of this
prospectus.
Following the enforcement of the Charge, in the distribution of the net
proceeds (if any) arising from the enforcement of the Charge, any payment in
relation to the Class B Notes will be subordinated to, amongst other things,
payment of all amounts due in relation to the Class A Notes and the Redraw
Bonds (the amounts owing in respect of the Class A-1 Notes will, for the
purposes of determining distributions to, and allocations between, the Class A-
1 Noteholders, and Class B Noteholders and other Secured Creditors, be
converted into A$ in accordance with the Security Trust Deed). For a
description of the order of application of the proceeds of the enforcement of
the Charge under the Security Trust Deed, see "Description of the Transaction
Documents--The Security Trust Deed--Priorities under the Security Trust Deed"
of this prospectus.
The Security Trust Deed contains provisions requiring the Security
Trustee, subject to other provisions of the Security Trust Deed, to give
priority to the interests of the Class A Noteholders and the Redraw Bondholders
if there is a conflict between the interests of the Class A Noteholders and the
Redraw Bondholders (on the one hand) and any other Secured Creditor, including
the Class B Noteholders (on the other hand). In determining the interests of
the Class A-1 Noteholders, the Security Trustee may rely on a determination of
the Class A-1 Note Trustee.
5.8 The Securities Rank Equally Except as Provided in the Transaction
Documents
The Securities enjoy the same rights, entitlements, benefits and
restrictions except as expressly provided in the Transaction Documents.
6. Interest
6.1 Period of Accrual
Each Class A-1 Note accrues interest from (and including) March 27, 2000
(the "Closing Date") and ceases to accrue interest on (but excluding) the
earliest of:
(a) the date on which the Stated Amount (as hereinafter defined) of the
Class A-1 Note is reduced to zero and all accrued but previously
unpaid interest, is paid in full;
(b) the date on which the Class A-1 Note is redeemed or repaid in full
in accordance with Condition 7 (other than Condition 7.6) unless,
upon presentation, payment is improperly withheld or refused in
which case the Class A-1 Note will continue to bear interest in
accordance with this Condition 6
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(both before and after judgment) until (but excluding) whichever is
the earlier of:
(i) the day on which all sums due in respect of the Class A-1
Note up to that day are received by or on behalf of the
Class A-1 Noteholder; and
(ii) the seventh day after notice is given to the Class A-1
Noteholder (either in accordance with Condition 11.1 or
individually) that, where required by Condition 8.2, upon
presentation thereof being duly made, such payment will be
made, provided that upon such presentation payment is in
fact made; and
(c) the date on which the Class A-1 Note is deemed to be redeemed in
accordance with Condition 7.6.
"Stated Amount" in relation to:
(a) a Class A-1 Note at any given time means the Initial Invested Amount
of that Class A-1 Note less the sum of:
(i) the aggregate of all amounts previously paid in relation to
that Class A-1 Note on account of principal pursuant to
Condition 7.2(c); and
(ii) the aggregate of all then Unreimbursed Principal Charge-
offs (as defined in Condition 7.10) in relation to that
Class A-1 Note; and
(b) any other Security at any given time means (as defined in the Series
Supplement) A$100,000 less the sum of:
(i) the aggregate of all amounts previously paid in relation to
that A$ Security on account of principal pursuant to clause
10.3 of the Series Supplement; and
(ii) the aggregate of all then Unreimbursed Principal Charge-
Offs (as defined in the Series Supplement) in relation to
that A$ Security.
For a description of how the Stated Amount is determined for the
Securities see "Description of the Class A-1 Notes--Distribution of the
Available Principal Amounts--Allocations of Principal to Class A Notes and
Class B Notes and--Principal Charge-Off" and "Glossary" of this prospectus.
6.2 Accrual Periods
The period that a Class A-1 Note accrues interest in accordance with
Condition 6.1 is divided into periods (each an "Accrual Period"). The first
Accrual Period for a ClassA-1 Note commences on (and includes) the Closing
Date and ends on (but does not include) the first Distribution Date
thereafter. Each succeeding Accrual Period for a Class A-1 Note commences on
(and includes) a Distribution Date and ends on (but does not include) the next
Distribution Date. The final Accrual Period for a Class A-1 Note ends on (but
does not include) the date on which interest ceases to accrue on the Class A-1
Note pursuant to Condition 6.1.
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"Distribution Date" means the 12th day of July, October, January and
April in each year (or, if such a day is not a Business Day, the next Business
Day). The first Distribution Date is 12 July 2000 (or, if that day is not a
Business Day, the next Business Day).
"Business Day" means any day on which banks are open for business in
Sydney, New York City and London other than a Saturday, a Sunday or a public
holiday in Sydney, New York City or London.
6.3 Interest Rate for the Class A-1 Notes
The rate of interest ("Interest Rate") payable from time to time in
respect of a Class A-1 Note and an Accrual Period is the aggregate of USD-
LIBOR-BBA (as hereinafter defined) for that Accrual Period and the Issue Margin
(as hereinafter defined) in relation to the Class A-1 Note.
"USD-LIBOR-BBA" for an Accrual Period will be calculated by the Agent
Bank in accordance with paragraph (a) (or, if applicable, paragraph (b)) below
(subject, in the case of the first Accrual Period, to paragraph (c) below):
(a) on the second Banking Day before the beginning of the Accrual Period
(a "Rate Set Date") the Agent Bank will determine the rate "USD-LIBOR-
BBA" as the applicable Floating Rate Option under the Definitions of
the International Swaps and Derivatives Association, Inc. ("ISDA")
(the "ISDA Definitions") being the rate applicable to any Accrual
Period for three-month deposits in US dollars in the London inter-bank
market which appears on the Rate Page (as hereinafter defined) as of
11.00am, London time, on the Rate Set Date;
(b) if such rate does not appear on the Rate Page at that time, the USD-
LIBOR-BBA for that Accrual Period will be determined as if the Issuer
and the Agent Bank had specified "USD-LIBOR-Reference Banks" as the
applicable Floating Rate Option under the ISDA Definitions. For this
purpose "USD-LIBOR-Reference Banks" means that the rate for an Accrual
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 determined by the Agent Bank) at
approximately 11.00am, London time, on the Rate Set Date to prime
banks in the London interbank market for a period of three months
commencing on the first day of the Accrual Period and in a
Representative Amount (as defined in the ISDA Definitions). The Agent
Bank will request the principal London office of each of the Reference
Banks to provide a quotation of its rate. If at least two such
quotations are provided, the USD-LIBOR-BBA for that Accrual Period
will be the arithmetic mean of the quotations. If fewer than two
quotations are provided as requested, the USD-LIBOR-BBA for that
Accrual Period will be the arithmetic mean of the rates quoted by not
less than two major banks in New York City, selected by the Agent Bank
and the Currency Swap Providers, at approximately 11.00am, New York
City time, on that Rate Set Date for loans in US dollars to leading
European banks for a period of three months commencing on the first
day of the Accrual Period and in a Representative Amount. If no such
rates are
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available in New York City, then the USD-LIBOR-BBA for such Accrual
Period will be the most recently determined rate in accordance with
paragraph (a); and
(c) the USD-LIBOR-BBA for the first Accrual Period will be the rate
determined by linear interpolation calculated in accordance with
paragraph (a) or, if applicable, paragraph (b) above with
reference to the duration of the first Accrual Period.
"Banking Day" means any day on which banks are open for business in
London and New York City, other than a Saturday, a Sunday or a public holiday
in London or New York City.
"Rate Page" means Telerate Page 3750 or, if Telerate Page 3750 ceases to
quote the relevant rate, such other page, section or part of Telerate as
quotes the relevant rate and is selected by the Agent Bank or, if there is no
such page, section or part of such other page, section or part of a different
screen information service as quotes the relevant rate selected by the Agent
Bank and approved by the Class A-1 Note Trustee.
"Issue Margin" in relation to a Class A-1 Note means, subject to the
following:
(a) for the period from, and including, the Closing Date to, but
excluding, the Call Date (as defined in Condition 7.3), % per
annum; and
(b)for the period from, and including, the Call Date to, but
excluding, the date on which that Class A-1 Note ceases to
accrue interest in accordance with Condition 6.1, % per annum.
If on or after the Call Date the Issuer, at the direction of the
Manager, proposes to exercise its option to redeem the Securities at their
Stated Amount in accordance with Condition 7.3 on a Distribution Date but is
unable to do so because, following a meeting of Securityholders convened under
the provisions of the Security Trust Deed by the Manager for this purpose, the
Securityholders have not approved by an Extraordinary Resolution (as defined
in Condition 9.1) the redemption of the Securities at their Stated Amount,
then the Issue Margin in relation to each Class A-1 Note from, and including,
that Distribution Date to, but excluding, the date on which that Class A-1
Note ceases to accrue interest in accordance with Condition 6.1, is % per
annum.
There is no maximum or minimum Interest Rate for the Class A-1 Notes.
6.4 Calculation of Interest on the Class A-1 Notes
Interest on each Class A-1 Note for an Accrual Period (the "Class A-1
Interest Amount") is calculated by applying the Interest Rate for that Class
A-1 Note for that Accrual Period to the Invested Amount of that Class A-1 Note
on the first day of the Accrual Period (after taking into account any
reductions in the Invested Amount of that Class A-1 Note on that day), by then
multiplying such product by the actual number of days in the Accrual Period
divided by 360 and rounding the resultant figure down to the nearest cent.
"Invested Amount" in relation to a Class A-1 Note means the Initial
Invested Amount of that Class A-1 Note less the aggregate of all amounts
previously paid in relation to that Class A-1 Note on account of principal
pursuant to Condition 7.2(c).
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6.5 Determination of Interest Rate and Class A-1 Interest Amount
The Agent Bank will, as soon as practicable after 11.00am (London
time or, if applicable, New York City time) on each Rate Set Date,
determine the Interest Rate in relation to the Class A-1 Notes, and
calculate the Class A-1 Interest Amount, for the immediately succeeding
Accrual Period in accordance with, respectively, Conditions 6.3 and 6.4.
The determination of the Interest Rate, and the calculation of the Class
A-1 Interest Amount, by the Agent Bank in accordance with, respectively,
Conditions 6.3 and 6.4 will (in the absence of manifest error, wilful
default or bad faith) be final and binding upon all parties.
6.6 Notification and Publication of Interest Rate and Class A-1 Interest
Amount
The Agent Bank will cause the Interest Rate and the Class A-1
Interest Amount for each Accrual Period, and the date of the next
Distribution Date, to be notified to the Issuer, the Manager, the Class A-
1 Note Trustee, the Currency Swap Providers, the Paying Agents and the
London Stock Exchange (for so long as the Class A-1 Notes are listed on
the Official List of the London Stock Exchange) on or as soon as practical
after the Agent Bank has determined the Interest Rate and calculated the
Class A-1 Interest Amount or on such earlier date as the London Stock
Exchange may require (for so long as the Class A-1 Notes are listed on the
Official List of the London Stock Exchange) and will cause the same to be
published in accordance with Condition 11.2 as soon as practical after
that notification. The Class A-1 Interest Amount and the Distribution Date
may subsequently be amended (or appropriate alternative arrangements made
by way of adjustment) without notice in the event of an extension or
shortening of the Accrual Period. If following the occurrence of an Event
of Default (as defined in Condition 9.1), the Security Trustee declares in
accordance with the Security Trust Deed that the Class A-1 Notes are
immediately due and payable, the Class A-1 Interest Amount and the
Interest Rate in respect of the Class A-1 Notes will nevertheless continue
to be calculated by the Agent Bank in accordance with this Condition, but
no publication of the Class A-1 Interest Amount or the Interest Rate so
calculated or the Distribution Dates needs to be made unless, in the case
of the Class A-1 Interest Amount or the Interest Rate, the Class A-1 Note
Trustee otherwise requires.
For a description of the expression "Event of Default" see
"Description of the Transaction Documents--The Security Trust Deed" and
"Glossary" of this prospectus.
6.7 Determination or Calculation by the Class A-1 Note Trustee
If the Agent Bank at any time for any reason does not determine the
Interest Rate in respect of the Class A-1 Notes, or calculate the Class A-
1 Interest Amount, in accordance with this Condition 6, the Class A-1 Note
Trustee will do so and each such determination or calculation by the Class
A-1 Note Trustee will be as if made by the Agent Bank. In doing so, the
Class A-1 Note Trustee will apply the foregoing provisions of this
Condition 6, with any necessary consequential amendments, to the extent
that it can and in all other respects it will do so in such a manner as it
considers to be fair and reasonable in all the circumstances.
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6.8 Agent Bank
The Issuer will procure that, for so long as any of the Class A-1 Notes
remain outstanding, there will at all times be an Agent Bank. The Issuer, at
the direction of the Manager, may with the prior written approval of the Class
A-1 Note Trustee, terminate the appointment of the Agent Bank immediately on
the occurrence of certain events specified in the Agency Agreement in relation
thereto or, otherwise, by giving not less than 60 days' notice in writing to,
amongst others, the Agent Bank. Notice of that termination will be given by the
Issuer to the Class A-1 Noteholders in accordance with Condition 11.1. If any
person is unable or unwilling to continue to act as the Agent Bank, or if the
appointment of the Agent Bank is terminated, the Issuer, at the direction of
the Manager, will appoint a successor Agent Bank to act as such in its place,
provided that neither the resignation nor removal of the Agent Bank will take
effect until a successor approved by the Class A-1 Note Trustee has been
appointed and notice of the appointment of the successor has been given by the
Issuer to the Class A-1 Noteholders in accordance with Condition 11.1. The
initial Agent Bank and its specified office are set out at the end of these
Conditions.
6.9 Payment of the Class A-1 Interest Amount
The Class A-1 Interest Amount for each Accrual Period in relation to a
Class A-1 Note is payable in arrear in US$ on the Distribution Date which is
the last day of the Accrual Period. On each Distribution Date prior to the
enforcement of the Charge, the Issuer must:
(a) to the extent that there are funds available for this purpose in
accordance with the Series Supplement pay, in accordance with the
directions of the Manager, the A$ Class A-1 Interest Amount and any A$
Class A-1 Unpaid Interest Amount in relation to that Distribution Date
rateably to the Currency Swap Providers in accordance with the Class
A-1 Currency Swaps;
(b) direct each Currency Swap Provider (which direction may be contained
in the relevant Class A-1 Currency Swap) to pay the Class A-1 Interest
Payments on each Distribution Date to the Principal Paying Agent in
accordance with the Agency Agreement; and
(c) direct the Principal Paying Agent (which direction may be contained in
the Agency Agreement) to pay the Class A-1 Interest Payments received
by it from the Currency Swap Providers on a Distribution Date rateably
amongst the Class A-1 Notes based on their Stated Amounts towards the
Class A-1 Interest Amount in relation to each Class A-1 Note in
relation to the Accrual Period ending on that Distribution Date and
any then Class A-1 Unpaid Interest Amount (as defined in Condition
6.10) in relation to each Class A-1 Note (to the extent included in
the Class A-1 Interest Payment) in accordance with, and subject to,
these Conditions and the Agency Agreement.
"A$ Class A-1 Interest Amount" , "A$ Class A-1 Unpaid Interest Amount"
and "Class A-1 Interest Payment" have the same respective meanings as in the
Series Supplement. The method for calculating these, the order of application
of available funds
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for payment of the A$ Class A-1 Interest Amount and A$ Class A-1 Unpaid
Interest Amount on a Distribution Date and other payments ranking in priority
to or equally with payment of those amounts on a Distribution Date under the
Series Supplement are explained in "Description of the Class A-1 Notes--
Distribution of the Available Income Amount and--the Currency Swap--Interest
Payments" of this prospectus.
6.10 Interest on unpaid Interest Amounts
If interest is not paid in respect of a Class A-1 Note on the date when
due and payable, that unpaid interest will itself bear interest at the Interest
Rate in relation to the Class A-1 Notes applicable from time to time until (but
excluding the date of payment) the unpaid interest, and interest on it, is paid
in accordance with Condition 6.9 (the unpaid interest and interest on that
unpaid interest, in relation to a Class A-1 Note, is a "Class A-1 Unpaid
Interest Amount").
7. Redemption of the Class A-1 Notes
7.1 Final redemption of the Class A-1 Notes
Unless previously redeemed (or deemed to be redeemed) in full, the Issuer
will redeem the Class A-1 Notes at their then Stated Amount, together with all
then accrued but unpaid interest, on the Distribution Date occurring in July
2030 (the "Scheduled Maturity Date").
7.2 Part Redemption of Class A-1 Notes
Subject to Conditions 7.3, 7.4 and 7.6, on each Distribution Date prior
to the enforcement of the Charge until the Stated Amount of the Class A-1 Notes
is reduced to zero the Issuer must :
(a) pay, in accordance with the directions of the Manager, the A$ Class A-
1 Principal Amount (if any) in relation to that Distribution Date to
the Currency Swap Providers in accordance with the Class A-1 Currency
Swaps;
(b) direct each Currency Swap Providers (which instruction may be
contained in the relevant Class A-1 Currency Swap) to pay on each
Distribution Date to the Principal Paying Agent in accordance with the
Agency Agreement the US$ Equivalent of the amount of the A$ Class A-1
Principal Amount (such US$ Equivalent of the A$ Class A-1 Principal
Amount being the "Class A-1 Principal Amount") received by the
Currency Swap Provider from the Issuer on that Distribution Date; and
(c) direct the Principal Paying Agent (which direction may be contained in
the Agency Agreement) to pay Class A-1 Principal Amount received from
the Currency Swap Providers equally amongst the Class A-1 Notes
towards the repayment of the Stated Amount on the Class A-1 Notes in
accordance with, and subject to, these Conditions and the Agency
Agreement. Such a payment of the Stated Amount on a Class A-1 Note
will constitute a redemption of the Class A-1 Note in part to the
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extent of such repayment and, upon such repayment, the obligation of
the Issuer with respect to the Class A-1 Note will be discharged to
the extent of such repayment.
"A$ Class A-1 Principal Amount" and "US$ Equivalent" have the same
respective meanings as in the Series Supplement. The method for calculating
these and the other payments ranking in priority to or equally with the
payment of the A$ Class A-1 Principal Amount on a Distribution Date under the
Series Supplement are described in "Description of Class A-1 Notes--
Distribution of the Available Principal Amount,--Allocation of Principal to
Class A Notes and Class B Notes and--The Currency Swap--Principal Payments of
this prospectus.
7.3 Call Option
The Issuer will, subject to the other provisions of this Condition 7 and
prior to the enforcement of the Charge, when directed by the Manager (at the
Manager's option), redeem all, but not some only, of the Securities at their
then Invested Amount, subject to the following, together with all accrued but
unpaid interest in respect of the Securities to (but excluding) the date of
redemption, on any Distribution Date falling on or after the earlier of:
(a) the date on which the aggregate Mortgage Loan Principal (as defined in
the Series Supplement) expressed as a percentage of the aggregate
Mortgage Loan Principal at the beginning of business (Sydney time) on
March 18, 2000 falls below 10%; and
(b) the Distribution Date falling in July 2007 (the "Call Date").
Notwithstanding the foregoing, the Issuer may redeem the Securities at
their Stated Amount, instead of at their Invested Amount, together with
accrued but unpaid interest in respect of the Securities to (but excluding)
the date of redemption, if so approved by an Extraordinary Resolution (as
defined in Condition 9.1) of the Securityholders together.
The Manager will not direct the Issuer to, and the Issuer will not, so
redeem the Securities on such a Distribution Date unless the Issuer is in a
position on the Distribution Date to repay in respect of the Securities their
then Invested Amount or Stated Amount, as required, together with all accrued
but unpaid interest to (but excluding) the date of redemption and to discharge
all its liabilities in respect of amounts which are required under the
Security Trust Deed to be paid in priority to or equally with the Securities
of all classes if the Charge were enforced.
The Issuer will give not more than 60 nor less than 45 days' notice
(which will be irrevocable) of the Distribution Date on which a proposed
redemption under this Condition 7.3 will occur to the Seller, the Class A-1
Note Trustee, the Principal Paying Agent, the Agent Bank and to the Class A-1
Noteholders in accordance with Condition 11.1.
7.4 Redemption for Taxation or Other Reasons
If the Manager satisfies the Issuer and the Class A-1 Note Trustee
immediately prior to giving the notice referred to below that by virtue of a
change in law of the Commonwealth of Australia or any of its political
subdivisions or any of its authorities or
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any other jurisdiction to which the Issuer becomes subject (or the application
or official interpretation thereof) (a "Relevant Jurisdiction") from that in
effect on the Closing Date, either:
(a) on the next Distribution Date the Issuer will be required to deduct or
withhold from any payment of principal or interest in respect of the
Class A-1 Notes or any other class of the Securities 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 a Relevant Jurisdiction; or
(b) the total amount payable in respect of interest in relation to any of
the Mortgage Loans (as defined in the Series Supplement) for a
Collection Period ceases to be receivable (whether or not actually
received) by the Issuer during such Collection Period by reason of any
present or future taxes, duties, assessments or governmental charges
of whatever nature imposed, levied, collected, withheld or assessed by
a Relevant Jurisdiction,
and, in each case, such obligation cannot be avoided by the Issuer taking
reasonable measures available to it, the Issuer must, when so directed by the
Manager (at the Manager's option), redeem all, but not some only, of the
Securities on any subsequent Distribution Date at their then Invested Amount,
subject to the following, together with accrued but unpaid interest in respect
of the Securities to (but excluding) the date of redemption. Notwithstanding
the foregoing, the Issuer may redeem the Securities at their Stated Amount,
instead of at their Invested Amount, together with accrued but unpaid interest
in respect of the Securities to (but excluding) the date of redemption, if so
approved by an Extraordinary Resolution (as defined in Condition 9.1) of the
Securityholders together.
The Manager will not direct the Issuer to, and the Issuer will not, so
redeem the Securities unless the Issuer is in a position on such Distribution
Date to repay in respect of the Securities their then Invested Amount or Stated
Amount, as required, together with all accrued but unpaid interest to (but
excluding) the date of redemption and to discharge all its liabilities in
respect of amounts which are required under the Security Trust Deed to be paid
in priority to or equally with the Securities of all classes if the Charge were
enforced.
The Issuer will give not more than 60 nor less than 45 days' notice
(which will be irrevocable) of the Distribution Date on which a proposed
redemption under this Condition 7.4 will occur to the Class A-1 Note Trustee,
the Seller, the Principal Paying Agent, the Class A-1 Note Registrar, the Agent
Bank and the Class A-1 Noteholders in accordance with Condition 11.1.
If an event referred to in paragraph (a) of this Condition 7.4 occurs in
respect of only the Class A-1 Notes (and not any other Securities) and as a
result thereof the Issuer gives notice in accordance with this Condition 7.4
that it proposes to redeem all of the Securities on the Distribution Date
referred to in that notice, the Class A-1 Noteholders may by a Special Majority
(as defined in Condition 10.3) in accordance with the Class A-1 Note Trust Deed
elect that they do not require the Issuer to redeem the Class A-1 Notes. If the
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Class A-1 Noteholders make such an election they (or the Class A-1 Note Trustee
on their behalf) must notify the Issuer and the Manager not less than 21 days
before the proposed Distribution Date for the redemption of the Class A-1
Notes. Upon receipt of such a notice, the Issuer must not so redeem the
Securities.
7.5 Certification
For the purpose of any redemption made under Condition 7.3 or 7.4, the
Issuer and the Class A-1 Note Trustee may rely on any certificate of an
Authorised Officer (as defined in the Master Trust Deed) of the Manager that
the Issuer will be in a position to repay in respect of the Securities their
then Invested Amount or Stated Amount, as applicable, together with all accrued
but unpaid interest to (but excluding) the date of redemption and to discharge
all its liabilities in respect of amounts required under the Security Trust
Deed to be paid in priority to or equally with the Securities if the Charge
were enforced.
7.6 Redemption on Final Payment
Upon a final distribution being made in respect of the Class A-1 Notes
under clause 26.12 of the Series Supplement or clause 13.1 of the Security
Trust Deed, the Class A-1 Notes will thereupon be deemed to be redeemed and
discharged in full and any obligation to pay any accrued but then unpaid Class
A-1 Interest Amount or any Class A-1 Unpaid Interest Amount or any then unpaid
Invested Amount, Stated Amount or other amounts in relation to the Class A-1
Notes will be extinguished in full.
For a description of the circumstances in which a final distribution will
be made in respect of the Class A-1 Notes see "Description of the Class A-1
Notes--Termination of the Trust" and "Description of the Transaction
Documents--The Security Trust Deed" of this prospectus.
7.7 Cancellation
All Class A-1 Notes redeemed in full (or deemed to be redeemed in full)
pursuant to the above Conditions will be cancelled and may not be resold or
reissued.
7.8 No Payment in excess of Stated Amount
Subject to Conditions 7.3 and 7.4, no amount of principal will be repaid
in respect of a Class A-1 Note in excess of the Stated Amount of the Class A-1
Note.
7.9 Application of Principal Charge-offs
If on a Determination Date (as hereinafter defined) any Principal Charge-
off is allocated to the Class A-1 Notes in accordance with the Series
Supplement, it will reduce the Stated Amount of the Class A-1 Notes (equally
and rateably according to their Stated Amount) by an amount equal to the US$
Equivalent of the amount so allocated until the Stated Amount of the Class A-1
Notes is reduced to zero. A reduction in the Stated Amount of a Class A-1 Note
in accordance with the foregoing will take effect on the next Distribution
Date.
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"Determination Date" and "Principal Charge-off" have the same respective
meanings as in the Series Supplement. These expressions, the method of
calculating a Principal Charge-off and the application of a Principal Charge-
off amongst the Securities (and others) are explained in "Description of the
Class A-1 Notes--Key Dates and Periods and--Principal Charge-offs" of this
prospectus.
7.10 Principal Charge-offs Reimbursement
If on a Determination Date any Principal Charge-off Reimbursement is
allocated to the Class A-1 Notes in accordance with the Series Supplement, it
will reduce the Unreimbursed Principal Charge-offs of the Class A-1 Notes
(rateably according to their amount of Unreimbursed Principal Charge-offs) by
an amount equal to the US$ Equivalent of the amount so allocated until the
Unreimbursed Principal Charge-offs in respect of the Class A-1 Notes are
reduced to zero. A reduction in the Unreimbursed Principal Charge-offs in
respect of the Class A-1 Notes in accordance with the foregoing, and the
resultant increase in the Stated Amount of the Class A-1 Notes, will take
effect on the next Distribution Date.
"Principal Charge-off Reimbursement" has the same meaning as in the
Series Supplement. This expression, the method of calculating a Principal
Charge-off Reimbursement and the allocation of a Principal Charge-off
Reimbursement amongst the Securities (and others) is explained in "Description
of the Class A-1 Notes--Principal Charge-offs" of this prospectus.
"Unreimbursed Principal Charge-offs" in relation to a Class A-1 Note at
any time means the aggregate of the US$ Equivalent of the Principal Charge-offs
up to and including that time allocated to the Class A-1 Note in accordance
with Condition 7.9 less the aggregate of the US$ Equivalent of the Principal
Charge-off Reimbursements prior to that time allocated to the Class A-1 Note in
accordance with this Condition 7.10.
7.11 Calculation of Class A-1 Principal Amounts, Stated Amounts and other
amounts
(a) No later than two Business Days prior to each Distribution Date,
the Manager will determine: (i) the amount of any Class A-1
Principal Amount payable in respect of each Class A-1 Note on
the Distribution Date; (ii) the Stated Amount and Invested
Amount of each Class A-1 Note as at the first day of the Accrual
Period commencing on the Distribution Date (after deducting any
Class A-1 Principal Amounts due to be paid in respect of such
Class A-1 Note on that Distribution Date and after making any
other adjustments to the Stated Amount or the Invested Amount
(as the case may be) of the Class A-1 Note in accordance with
these Conditions on or with effect from that Distribution Date);
(iii) the Class A-1 Note Factor (as defined below) as at that
Distribution Date; and (iv) the amount of the Class A-1 Interest
Payment to be made on the Distribution Date applicable to each
Class A-1 Note.
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(b) The Manager will notify the Issuer, the Class A-1 Note Trustee,
the Principal Paying Agent, the Agent Bank, the Class A-1 Note
Registrar and the London Stock Exchange (for so long as the
Class A-1 Notes are listed on the Official List of the London
Stock Exchange) as soon as practical (and in any event by not
later than two Business Days prior to the Distribution Date or
on such earlier date as the London Stock Exchange may require
(for so long as the Class A-1 Notes are listed on the Official
List of the London Stock Exchange)) of each determination of an
amount or percentage referred to in Condition 7.11(a) and will
cause details of each of those determinations to be published in
accordance with Condition 11.2 as soon as practical after that
notification. If no Class A-1 Principal Amount is due to be paid
on the Class A-1 Notes on any Distribution Date the Manager will
cause a notice to be given in accordance with Condition 11.2 as
soon as practicable (and in any event by no later than the
relevant Distribution Date).
(c) If the Manager does not at any time for any reason determine a
Class A-1 Principal Amount, the Invested Amount or the Stated
Amount applicable to the Class A-1 Notes in accordance with this
Condition, the Class A-1 Principal Amount, the Invested Amount
and the Stated Amount will be determined by the Agent Bank (or,
failing the Agent Bank, the Class A-1 Note Trustee) in
accordance with this Condition (but based on the information in
its possession) and each such determination will be deemed to
have been made by the Manager.
"Class A-1 Note Factor" at a given time means the percentage calculated
as follows:
CA1NF = A
--
B
where:
CA1NF = the Class A-1 Note Factor;
A = the aggregate Invested Amount of the Class A-1 Notes on the last day
of the just ended Accrual Period; and
B = the aggregate Initial Invested Amount of the Class A-1 Notes.
8. Payments
8.1 Method of Payment
Any instalment on account of interest or principal payable on any Class
A-1 Note which is punctually paid or duly provided for by or on behalf of or at
the direction of the Issuer to the Principal Paying Agent on the applicable
Distribution Date shall be paid to the person in whose name such Class A-1 Note
is registered on the relevant Record Date (as defined below), by wire transfer
in immediately available funds to the account designated by such person or, if
such person so requests in writing, by cheque mailed first-class, postage
prepaid, to such person's address as it appears on the Class A-1 Note Register
on such Record Date.
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"Record Date" in relation to a Distribution Date or any other date for
any payment to be made in respect of a Class A-1 Note means the day which is
the last day of the prior calendar month.
8.2 Surrender on Final Payment
Prior to a final distribution being made in respect of the Class A-1
Notes under clause 26.12 of the Series Supplement or clause 13.1 of the
Security Trust Deed the ClassA-1 Note Trustee must notify the persons in whose
names the Class A-1 Notes are registered on the relevant Record Date of the
date upon which the Class A-1 Note Trustee expects that final distribution to
be made and specify if that such final distribution will be payable only upon
surrender of the relevant Class A-1 Note to a Paying Agent at its specified
office. No such final distribution will be made other than upon the surrender
of the relevant Class A-1 Notes and none of the Issuer, the Class A-1 Note
Trustee, the Security Trustee or any Paying Agent will be liable to pay any
additional amount to any Class A-1 Noteholder as a result of any delay in
payment due to a Class A-1 Note not having been surrendered in accordance with
this Condition 8.2.
For a description of the circumstances in which a final distribution will
be made in respect of the Class A-1 Notes see "Description of the Class A-1
Notes--Termination of the Trust" and "Description of the Transaction
Documents--The Security Trust Deed" of this prospectus.
8.3 Paying Agents
The initial Paying Agents and their respective specified offices are set
out at the end of these Conditions.
The Issuer, at the direction of the Manager, may with the prior written
approval of the Class A-1 Note Trustee terminate the appointment of the
Principal Paying Agent and appoint additional or other Paying Agents, provided
that it will at all times maintain a Paying Agent having a specified office in
London and 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 11.1.
8.4 Taxation
All payments in respect of the Class A-1 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 any applicable law to make such a withholding or deduction. In that
event the Issuer or that Paying Agent (as the case may be) will, after making
such withholding or deduction, account to the relevant authorities for the
amount so required to be withheld or deducted. Neither the Issuer nor any
Paying Agent nor the Class A-1 Note Trustee will be obliged to make any
additional payments in respect of the relevant Class A-1 Notes in relation to
that withholding or deduction. Immediately after becoming aware that such a
withholding or deduction is or will be required, the Issuer will notify the
Class A-1 Note Trustee, the Principal Paying Agent and the Class A-1
Noteholders in accordance with Condition 11.1, thereof.
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8.5 Prescription
A Class A-1 Note will become void in its entirety unless surrendered for
payment within a period of 10 years from the Relevant Date in respect of any
payment thereon the effect of which would be to reduce the Stated Amount of
that Class A-1 Note to zero. After the date on which a Class A-1 Note becomes
void in its entirety, no claim can be made in respect of it.
"Relevant Date" in respect of a Class A-1 Note means the date on which a
payment in respect thereof first becomes due or (if the full amount of the
moneys payable in respect of the Class A-1 Notes due on or before that date has
not been duly received by the Principal Paying Agent or the Class A-1 Note
Trustee on or prior to such date) the date on which, the full amount of such
moneys having been so received and notice to that effect is duly given to the
Class A-1 Noteholders in accordance with Condition 11.1.
8.6 Notify Late Payments
In the event of the unconditional payment to the Principal Paying Agent
or the Class A-1 Note Trustee of any sum due in respect of the Class A-1 Notes
or any of them being made after the due date for payment thereof, the Issuer
will forthwith give or procure to be given notice to the Class A-1 Noteholders
in accordance with Condition 11.1 that such payment has been made.
8.7 Rounding of Payments
All payments in respect of the Class A-1 Notes will be rounded down
to the nearest cent.
9. Enforcement following occurrence of Event of Default
9.1 Enforcement
The Security Trust Deed provides that at any time after the Security
Trustee becomes actually aware of the occurrence of an Event of Default, the
Security Trustee will (subject to Condition 10.4 and subject to being
appropriately indemnified), if so directed by an Extraordinary Resolution of
the Voting Secured Creditors, declare the Securities immediately due and
payable (in which case, subject to Condition 12, the Stated Amount of, and all
accrued but unpaid interest in relation to, the Class A-1 Notes will become
immediately due and payable) and enforce the Charge.
Subject to being indemnified in accordance with the Security Trust Deed
and to the provisions of Condition 9.2, the Security Trustee will take all
action necessary to give effect to any direction in accordance with the
foregoing and will comply with all such directions.
"Event of Default", "Extraordinary Resolution" and "Voting Secured
Creditors" have the same respective meanings as in the Security Trust Deed. For
a description of these expressions, see "Description of the Transaction
Documents--The Security Trust Deed" and "Glossary" of this prospectus.
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9.2 Security Trustee May Enforce Charge Without Direction
After the Security Trustee becomes actually aware of the occurrence of an
Event of Default, provided that it has been indemnified to its satisfaction in
accordance with the Security Trust Deed, the Security Trustee must enforce the
Security Trust Deed without an Extraordinary Resolution of the Voting Secured
Creditors if in its opinion, the delay required to obtain the consent of the
Voting Secured Creditors would be prejudicial to the interests of the Secured
Creditors as a class.
9.3 Priority of Payments from Proceeds from the enforcement of the Charge
Following the enforcement of the Charge, all moneys received in
connection with the Security Trust Deed by the Security Trustee or by any
receiver appointed in relation to the Charged Property pursuant to the
provisions of the Security Trust Deed are to be applied, subject to the
Security Trust Deed, in accordance with the order of priority contained in the
Security Trust Deed For a description of the order of priority contained in the
Security Trust Deed and the payment of amounts that rank in priority to or
equally with the Class A-1 Notes, see "Description of the Transaction
Documents--The Security Trust Deed--Priorities under the Security Trust Deed"
of this prospectus.
9.4 Security Trustee and Class A-1 Note Trustee Not Liable for Loss on
enforcement
Except in the case of fraud, negligence or wilful default (in the case of
the Security Trustee) and, subject to the mandatory provisions of the Trust
Indenture Act, fraud, negligence (except as specifically provided in the Trust
Indenture Act), wilful default or breach of trust (in the case of the Class A-1
Note Trustee), neither the Class A-1 Note Trustee nor the Security Trustee is
liable for any decline in the value, nor any loss realised upon any sale or
other disposition made under the Security Trust Deed of any Charged 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-1 Notes or relating in any way to the
Charged Property. Without limitation, neither the Class A-1 Note Trustee nor
the Security Trustee will 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 based on advice received by it in accordance with the
applicable requirements of the Class A-1 Note Trust Deed (and the Trust
Indenture Act) or the Security Trust Deed, as the case may be.
"Trust Indenture Act" means the Trust Indenture Act 1939 of the United
States of America as in force at the date of the Class A-1 Note Trust Deed.
9.5 Directions from Class A-1 Noteholders to Class A-1 Note Trustee
following Event of Default
If an Event of Default or Potential Event of Default has occurred and is
known to the Class A-1 Note Trustee, the Class A-1 Note Trustee must: (a)
notify each Class A-1 Noteholder of the Event of Default or Potential Event of
Default, as the case may be, within 10 days (or such shorter period as may be
required by the rules of the London Stock
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Exchange, if the Class A-1 Notes are listed on the London Stock Exchange, or
the rules of any other stock exchange on which the Class A-1 Notes are listed)
after becoming aware of the Event of Default or Potential Event of Default,
provided that except in the case of a default in payment of principal or
interest on any Class A-1 Note, the Class A-1 Note Trustee may withhold such
notice if and so long as the board of directors, the executive committee or a
trust committee of its directors and/or its authorised officers under the Class
A-1 Note Trust Deed in good faith determine that withholding the notice is in
the interest of Class A-1 Noteholders; (b) if a meeting of Voting Secured
Creditors is to be held under the Security Trust Deed, determine whether it
proposes to seek directions from Class A-1 Noteholders as to how to vote at
that meeting and, if so, whether it proposes to instruct the Security Trustee
to delay the holding of that meeting while it obtains such directions from the
Class A-1 Noteholders; and (c) vote at any meeting of Voting Secured Creditors
held under the Security Trust Deed in accordance, where applicable, with the
directions of the Class A-1 Noteholders (whether or not solicited and whether
or not all Class A-1 Noteholders have provided such directions) and otherwise
in its absolute discretion. In acting in accordance with the directions of
Class A-1 Noteholders the Class A-1 Note Trustee must exercise its votes for or
against any proposal to be put to a meeting of Voting Secured Creditors under
the Security Trust Deed in the same proportion as that of the aggregate
Invested Amounts of the Class A-1 Notes held by Class A-1 Noteholders who have
directed the Class A-1 Note Trustee to vote for or against such a proposal.
If any of the Class A-1 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-1 Notes, the Class A-1 Note Trustee must not vote at a meeting of Voting
Secured Creditors under the Security Trust Deed, or otherwise direct the
Security Trustee, to dispose of the Charged Property unless: (a) a sufficient
amount would be realised to discharge in full all amounts owing to the Class A-
1 Noteholders in respect of the Class A-1 Notes and any other amounts owing by
the Issuer to any other person ranking in priority to or with the Class A-1
Notes; (b) the Class A-1 Note Trustee is of the opinion, reached after
considering at any time and from time to time the advice of an investment bank
or other financial adviser selected by the Class A-1 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 (a); or (c) the Class A-1 Note Trustee is
so directed by a Special Majority (as defined in Condition 10.3) of Class A-1
Noteholders.
Subject to the mandatory provisions of the Trust Indenture Act and
provisions in the Class A-1 Note Trust Deed relating to the deemed receipt of
notices, the Class A-1 Note Trustee will only be considered to have knowledge
or awareness of, or notice of, an Event of Default or Potential Event of
Default by virtue of the officers of the Class A-1 Note Trustee (or any related
body corporate of the Class A-1 Note Trustee) which have the day to day
responsibility for the administration or management of the Class A-1 Note
Trustee's (or a related body corporate of the Class A-1 Note Trustee's)
obligations in relation to the Series Trust, the trust created under the Class
A-1 Note Trust Deed or the Class A-1 Note Trust
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Deed, having actual knowledge, actual awareness or actual notice of the
occurrence of the events or circumstances constituting an Event of Default or
Potential Event of Default, as the case may be, or grounds or reason to believe
that such events or circumstances have occurred.
"Potential Event of Default" means an event which, with the giving of
notice or the lapse of time or both, would constitute an Event of Default.
9.6Only Security Trustee May Enforce Charge
Only the Security Trustee may enforce the Charge and neither the Class A-
1 Note Trustee nor any Class A-1 Noteholder (nor any other Secured Creditor) 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-1 Note Trust
Deed, the Class A-1 Notes or any other applicable Transaction Document, except
as provided for in the Security Trust Deed, the Class A-1 Note Trust Deed, the
Master Trust Deed and the Series Supplement. The Security Trustee is not
required to act in relation to the enforcement of the Charge unless its
liability is limited in a manner reasonably satisfactory to it or, if required
by the Security Trustee (in its absolute discretion), it is adequately
indemnified from the Charged Property or the Security Trustee receives from the
Voting Secured Creditors an indemnity in a form reasonably satisfactory to the
Security Trustee (which may be by way of an Extraordinary Resolution of the
Voting Secured Creditors) and is put in funds to the extent necessary.
9.7Exercise of Class A-1 Noteholder Rights by Class A-1 Note Trustee
The rights, remedies and discretions of the Class A-1 Noteholders under
the Security Trust Deed including all rights to vote or to give an instruction
or consent can only be exercised by the Class A-1 Note Trustee on behalf of the
Class A-1 Noteholders in accordance with the Security Trust Deed. The Security
Trustee may rely on any instructions or directions given to it by the Class A-1
Note Trustee as being given on behalf of the Class A-1 Noteholders from time to
time and need not inquire whether any such instructions or directions are in
accordance with the Class A-1 Note Trust Deed, whether the Class A-1 Note
Trustee or the Class A-1 Noteholders from time to time have complied with any
requirements under the Class A-1 Note Trust Deed or as to the reasonableness or
otherwise of the Class A-1 Note Trustee.
10. Meetings of Voting Secured Creditors, directions of Class A-1 Noteholders,
modifications, consents, waivers and indemnities
10.1Meetings of Voting Secured Creditors
The Security Trust Deed contains provisions for convening meetings of the
Voting Secured Creditors to, among other things, enable the Voting Secured
Creditors 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
Secured Creditors, following the occurrence of an Event of Default, to direct
the Security Trustee to declare the Securities immediately due and payable
and/or to enforce the Charge.
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10.2Directions of Class A-1 Noteholders
Under the Class A-1 Note Trust Deed the Class A-1 Note Trustee may seek
directions from the Class A-1 Noteholders from time to time including following
the occurrence of an Event of Default. The Class A-1 Note Trustee will not be
responsible for acting in good faith upon a direction given, or purporting to
be given, by Class A-1 Noteholders holding Class A-1 Notes with an Invested
Amount of greater than 50% of the aggregate Invested Amount of all the Class A-
1 Notes.
If the Class A-1 Note Trustee is entitled under the Master Trust Deed or
the Security Trust Deed to vote at any meeting on behalf of Class A-1
Noteholders the Class A-1 Note Trustee must vote in accordance with the
directions of the Class A-1 Noteholders and otherwise in its absolute
discretion. In acting in accordance with the directions of Class A-1
Noteholders the Class A-1 Note Trustee must exercise its votes for or against
any proposal to be put to a meeting in the same proportion as that of the
aggregate Invested Amounts of the Class A-1 Notes held by Class A-1 Noteholders
who have directed the Class A-1 Note Trustee to vote for or against that
proposal.
For the purposes of seeking any consent, direction or authorisation from
Class A-1 Noteholders the Class A-1 Note Trustee may by notice to the Class A-1
Noteholders specify a date, not earlier than the date of the notice, upon which
the persons who are the Class A-1 Noteholders and the Invested Amount of the
Class A-1 Notes held by them will be determined based upon the details recorded
in the Class A-1 Note Register as at 5.30pm on that date.
10.3Amendments to Class A-1 Note Trust Deed and the Class A-1 Notes
Pursuant, and subject, to the Class A-1 Note Trust Deed and subject to
any approval required by law, the Class A-1 Note Trustee, the Manager and the
Issuer may together agree, without the consent or sanction of any Class A-1
Noteholder, by way of supplemental deed to alter, add to or revoke (each a
"modification") any provision of the Class A-1 Note Trust Deed or the Class A-1
Notes (including these Conditions) so long as such modification is not a
Payment Modification (as defined below) and such modification in the opinion of
the Class A-1 Note Trustee:
(a) is necessary or expedient to comply with the provisions of any statute
or regulation or with the requirements of any governmental agency;
(b) is made to correct a manifest error or ambiguity or is of a formal,
technical or administrative nature only;
(c) is appropriate or expedient as a consequence of an amendment to any
statute or regulation or altered requirements of any governmental
agency or any decision of any court (including, without limitation, a
modification which is in the opinion of the Class A-1 Note Trustee
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 or any decision
of any court, in any
I-25
<PAGE>
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 Series
Trust or the trust constituted under the Class A-1 Note Trust Deed);
or
(d) and the Issuer is otherwise desirable for any reason and:
(i) is not in the opinion of the Class A-1 Note Trustee likely, upon
coming into effect, to be materially prejudicial to the interests
of Class A-1 Noteholders; or
(ii) if it is in the opinion of the Class A-1 Note Trustee likely,
upon coming into effect, to be materially prejudicial to the
interests of Class A-1 Noteholders the consent of a Special
Majority (as hereinafter defined) of Class A-1 Noteholders is
obtained.
For the purpose of determining whether a Special Majority of Class A-1
Noteholders has consented to a modification, Class A-1 Notes which are
beneficially owned by the Issuer or the Manager or by any person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer or the Manager, will be disregarded. The Manager must
give the Rating Agencies 5 Business Days prior notice of any such
modification. The Class A-1 Note Trustee will be entitled to assume that any
proposed modification, other than a Payment Modification, will not be
materially prejudicial to the interest of Class A-1 Noteholders if each of the
Rating Agencies confirms in writing that if the modification is effected this
will not lead to a reduction, qualification or withdrawal of the then rating
given to the Class A-1 Notes by that Rating Agency.
Pursuant to the Class A-1 Note Trust Deed, the Class A-1 Note Trustee
may concur with the Issuer and the Manager in making or effecting any Payment
Modification if and only if the consent has first been obtained of each Class
A-1 Noteholder to such Payment Modification.
Any supplemental deed that effects any such modifications must conform
to the requirements of the Trust Indenture Act and copies of any such
supplemental deed must be distributed by the Issuer to the Class A-1
Noteholders in accordance with Condition 11.1 as soon as reasonably
practicable after the modifications have been made.
"Payment Modification" means any alteration, addition or revocation of
any provision of the Class A-1 Note Trust Deed or the Class A-1 Notes
(including the Conditions) which modifies: (a) the amount, timing, place,
currency or manner of payment of principal or interest in respect of the Class
A-1 Notes including, without limitation, any modification to the Stated
Amount, Invested Amount, Interest Rate or Scheduled Maturity Date in respect
of the Class A-1 Notes or to Conditions 6.9 and 7.2, clause 10 of the Series
Supplement or clause 13 of the Security Trust Deed or which would impair the
rights of Class A-1 Noteholders to institute suit for enforcement of such
payment on or after the due date for such payment; (b) the definition of the
term "Special Majority", clause 21.4 of the Class A-1 Note Trust Deed or the
circumstances in which the consent or direction of a Special Majority of Class
A-1 Noteholders is required; (c) clause 6.1(a) of the Security Trust Deed; or
(d) the requirements for altering, adding to or revoking any provision of the
Class A-1 Note Trust Deed or the Class A-1 Notes (including the Conditions).
I-26
<PAGE>
"Rating Agency" has the same meaning as in the Series Supplement.
"Special Majority" in relation to the Class A-1 Noteholders means Class
A-1 Noteholders holding Class A-1 Notes with an aggregate Invested Amount of no
less than 75% of the aggregate Invested Amount of all the Class A-1 Notes.
For a further description of the modifications which constitute a Payment
Modification see "Description of the Class A-1 Notes--Amendments to Class A-1
Notes and Class A-1 Note Trust Deed" of this prospectus
10.4Waivers etc
The Security Trustee may, in accordance with the Security Trust Deed and
without the consent or sanction of the Voting Secured Creditors (but not in
contravention of an Extraordinary Resolution of the Voting Secured Creditors),
waive or authorise any breach or proposed breach or determine that any event
that would otherwise be an Event of Default will not be treated as such if and
in so far as in its opinion the interests of the Secured Creditors will not be
materially prejudiced. Any such waiver, authorisation or determination shall be
binding on the Secured Creditors and, if, but only if, the Security Trustee so
requires, any such waiver, authorisation or determination will be notified to
the Secured Creditors by the Manager in accordance with the Security Trust
Deed.
The Class A-1 Note Trustee may, and if directed to do so by a Majority of
Class A-1 Noteholders must, on such terms and conditions as it may deem
reasonable, without the consent of any of the Class A-1 Noteholders, and
without prejudice to its rights in respect of any subsequent breach, agree to
any waiver or authorisation of any breach or proposed breach of any of the
terms and conditions of the Transaction Documents by the Issuer, the Manager or
any other person which, unless the Class A-1 Note Trustee is acting on the
direction of a Majority of Class A-1 Noteholders, is not, in the opinion of the
Class A-1 Note Trustee, materially prejudicial to the interests of the Class A-
1 Noteholders as a class. No such waiver, authorisation or determination may be
made in contravention of any prior directions by a Majority (as hereinafter
defined) of the Class A-1 Noteholders. Any such waiver, authorisation or
determination will, if the Class A-1 Note Trustee so requires, be notified to
the Class A-1 Noteholders in accordance with Condition 11.1 by the Issuer as
soon as practicable after it is made.
"Majority" in relation to the Class A-1 Noteholders means Class A-1
Noteholders holding Class A-1 Notes with an aggregate Invested Amount of
greater than 50% of the aggregate Invested Amount of all the Class A-1 Notes.
10.5 Indemnification and Exoneration of the Class A-1 Note Trustee and the
Security Trustee
The Class A-1 Note Trust Deed and the Security Trust Deed contain
provisions for the indemnification of the Class A-1 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 Securities unless
I-27
<PAGE>
indemnified to their satisfaction. Each of the Class A-1 Note Trustee and the
Security Trustee is entitled, subject in the case of the Class A-1 Note Trustee
to the mandatory provisions of the Trust Indenture Act, 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.
Subject to the mandatory provisions of the Trust Indenture Act, the Class
A-1 Note Trustee shall not be responsible for any loss, expense or liability
occasioned to the Charged Property or any other property or in respect of all
or any of the moneys which may stand to the credit of the Collections Account
(as defined in the Series Supplement) from time to time however caused
(including, without limitation, where caused by an act or omission of the
Security Trustee) unless that loss is occasioned by the fraud, negligence,
wilful default or breach of trust of the Class A-1 Note Trustee. The Security
Trustee is not, nor is any receiver appointed in relation to the Charged
Property pursuant to the provisions of the Security Trust Deed, liable or
otherwise accountable for any omission, delay or mistake or any loss or
irregularity in or about the exercise, attempted exercise, non-exercise or
purported exercise of any of the powers of the Security Trustee or of the
receiver under the Security Trust Deed except for fraud, negligence or wilful
default.
Except in the case of fraud, negligence (except as specifically provided
in the Trust Indenture Act), wilful default or breach of trust, and subject to
the mandatory provisions of the Trust Indenture Act, the Class A-1 Note Trustee
may act on the opinion or advice of, or information obtained from, any lawyer,
valuer, banker, broker, accountant or other expert appointed by the Class A-1
Note Trustee, or by a person other than Class A-1 Note Trustee, where that
opinion, advice or information is addressed to the Class A-1 Note Trustee or by
its terms is expressed to be capable of being relied upon by the Class A-1 Note
Trustee. Except as provided above, the Class A-1 Note Trustee will not be
responsible to any Class A-1 Noteholder, amongst others, for any loss
occasioned by so acting in reliance on such advice. Any such opinion, advice or
information may be sent or obtained by letter, telex or facsimile transmission
and the Class A-1 Note Trustee will not be liable to any Class A-1 Noteholder,
amongst others, for acting on any opinion, advice or information conforming
with any applicable requirements of the Class A-1 Note Trust Deed or the Trust
Indenture Act and purporting to be conveyed by such means even though it
contains some error which is not a manifest error or is not authentic.
11. Notices
11.1General
All notices, other than notices given in accordance with the following
paragraph and Condition 11.2, to Class A-1 Noteholders will be deemed given if
in writing and mailed, first-class, postage prepaid to each Class A-1
Noteholder, at his or her address as it appears on the Class A-1 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-1
Noteholders is given by mail, neither the failure to mail such notice nor any
defect in any
I-28
<PAGE>
notice so mailed to any particular Class A-1 Noteholder will affect the
sufficiency of such notice with respect to other Class A-1 Noteholders, and any
notice that is mailed in the manner herein provided will conclusively be
presumed to have been duly given.
A notice may be waived in writing by the relevant Class A-1 Noteholder,
either before or after the event, and such waiver will be the equivalent of
such notice. Waivers of notice by Class A-1 Noteholders will be filed with the
Class A-1 Note Trustee but such filing will not be a condition precedent to the
validity of any action taken in reliance upon such a waiver.
Any such notice will 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 is impractical to mail
notice of any event to Class A-1 Noteholders when such notice is required to be
given, then any manner of giving such notice as the Issuer directs the Class A-
1 Note Trustee will be deemed to be a sufficient giving of such notice.
11.2 Class A-1 Note Information
Any notice specifying a Distribution Date, a Interest Rate in relation to
the Class A-1 Notes, a Class A-1 Interest Amount, a Class A-1 Principal Amount
(or the absence of a Class A-1 Principal Amount), an Invested Amount, a Stated
Amount, a Class A-1 Note Factor in relation to the Class A-1 Notes, or any
other matter permitted to be given in accordance with this Condition 11.2, will
be deemed to have been duly given if the information contained in the notice
appears on the relevant page of the Reuters Screen or the electronic
information system made available to its subscribers by Bloomberg, L.P. or
another similar electronic reporting service approved by the Class A-1 Note
Trustee in writing and notified to Class A-1 Noteholders pursuant to Condition
11.1 (the "Relevant Screen"). Any such notice will 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 will be
given in accordance with Condition 11.1.
11.3 Quarterly Servicing and Other Reports
The Manager must deliver a Quarterly Servicing Report for each Accrual
Period to the Class A-1 Note Trustee, the Principal Paying Agent, the Issuer
and each Class A-1 Noteholder on the Business Day preceding the Distribution
Date on the last day of the Accrual Period in accordance with Condition 11.1
and, for so long as the Class A-1 Notes are listed on the Official List of the
London Stock Exchange file each Quarterly Servicing Report with the London
Stock Exchange as and when required by the rules of the London Stock Exchange.
The Issuer and the Manager must, to the extent required by the rules and
regulation of the Securities and Exchange Commission, forward to Class A-1
Noteholders, and such
I-29
<PAGE>
other persons as are required by the Trust Indenture Act, such summaries of any
information, documents and reports required to be filed by the Issuer or the
Manager in accordance with the Securities and Exchange Act 1934 of the United
States of America or the rules and regulations of the Securities and Exchange
Commission.
"Quarterly Servicing Report" in relation to an Accrual Period and the
Distribution Date at the end of that Accrual Period means a report which
contains the following information:
. the aggregate Invested Amounts and the aggregate Stated Amounts of
each class of Securities on the first day of the Accrual Period;
. the amounts to be applied towards payment of interest and principal
on each class of Securities on the Distribution Date;
. the Available Income Amount (as defined in the Series Supplement) on
the Distribution Date;
. the aggregate of all Seller Advances made during the preceding
Collection Period;
. the Redraw Shortfall (as defined in the Standby Redraw Facility
Agreement) in relation to the preceding Determination Date;
. the Income Shortfall (as defined in the Series Supplement) in
relation to the preceding Determination Date;
. the Liquidity Facility Advance (as defined in the Series Supplement)
in relation to that Distribution Date and the Liquidity Facility
Principal (as defined in the Series Supplement) in relation to the
preceding Determination Date;
. the Available Principal Amount (as defined in the Series Supplement)
in relation to that Distribution Date;
. the Principal Collections in relation to that Distribution Date;
. the Standby Redraw Facility Advance in relation to that Distribution
Date;
. the Redraw Bond Amount (as defined in the Series Supplement) in
relation to the preceding Determination Date;
. the Principal Charge-Off in relation to the preceding Determination
Date;
. the Other Principal Amounts (as defined in the Series Supplement) in
relation to the preceding Determination Date;
. the Principal Charge-Off Reimbursement in relation to the preceding
Determination Date;
. the Principal Charge-offs allocated to each class of Securities and
the Standby Redraw Facility Principal with effect from that
Distribution Date;
. the Principal Charge-off Reimbursement allocated to each class of
Securities and the Standby Redraw Facility Principal with effect
from that Distribution Date;
I-30
<PAGE>
. the Class A-1 Note Factor and the Note Factor (as defined below) for
each other class of Securities;
. if the Basis Swap (as defined in the Series Supplement) has
terminated, the Threshold Rate (as defined in the Series Supplement)
on the preceding Determination Date;
. the Interest Rate (as defined in the Series Supplement with respect
to the Class A-2 Notes, the Class B Notes and the Redraw Bonds)
applying to each class of Securities for that Accrual Period;
. scheduled payments of principal and prepayments of principal
received on the Mortgage Loans forming part of the Assets of the
Series Trust during the preceding Collections Period;
. aggregate outstanding principal balance of the Mortgage Loans
forming part of the Assets of the Series Trust being charged a fixed
rate of interest and the aggregate outstanding principal balance of
the Mortgage Loans forming part of the Assets of the Series Trust
being charged a variable rate of interest as at opening of business
on the preceding Determination Date;
. delinquency, mortagee in possession and loss statistics, as
determined by the Manager, with respect to the Mortgage Loans
forming part of the Assets of the Series Trust as at opening of
business on the preceding Determination Date.
"Note Factor" in relation to a class of Securities and a Distribution
Date, means the aggregate of the Invested Amount of the class of Securities
less all principal payments on that class of Securities to be made on that
Distribution Date, divided by the aggregate initial Invested Amount of that
class of Securities.
Further details of the cashflows of the Series Trust and the manner of
determination of the defined terms relevant to those cashflows and set out in
the Quarterly Servicing Report are contained in "Description of the Class A-1
Notes" of this prospectus.
11.4 Consents in Writing
All consents and approvals in these Conditions must be given in writing.
12. Limitation of Liability of the Issuer
(a) The Issuer enters into the Transaction Documents, and issues the Class
A-1 Notes, only in its capacity as trustee of the Series Trust and in
no other capacity (except where the Transaction Documents provide
otherwise). A liability arising under or in connection with the Class
A-1 Notes, the Transaction Documents or the Series Trust is limited to
and can be enforced against the Issuer only to the extent to which it
can be satisfied out of the assets and property of the Series Trust
out of which the Issuer is actually indemnified for the liability.
This limitation of the Issuer's liability applies despite any other
provision of the Transaction Documents (other than paragraph (c)
below) and extends to all liabilities and obligations of the
I-31
<PAGE>
Issuer in any way connected with any representation, warranty,
conduct, omission, agreement or transaction related to the Transaction
Documents, the Class A-1 Notes or the Series Trust.
(b) No person may sue the Issuer in respect of liabilities incurred by the
Issuer in its capacity as trustee of the Series Trust other than as
trustee of the Series Trust or seek the appointment of a receiver
(except under the Security Trust Deed), a liquidator, an administrator
or any similar person to the Issuer or prove in any liquidation,
administration or similar arrangements of or affecting the Issuer
(except in relation to the assets or property of the Series Trust).
(c) The provisions of this Condition 12 will 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 or property of the Series Trust as a result of the
Issuer's fraud, negligence or wilful default.
(d) The Relevant Parties are responsible under the Transaction Documents
for performing a variety of obligations relating to the Series Trust.
No act or omission of the Issuer (including any related failure to
satisfy its obligations under the Transaction Documents or the Class
A-1 Notes) will be considered fraud, negligence or wilful default of
the Issuer for the purpose of paragraph (c) to the extent to which the
act or omission was caused or contributed to by any failure by any
Relevant Party or any other person appointed by the Issuer under any
Transaction Document (other than a person whose acts or omissions the
Issuer is liable for in accordance with any Transaction Document) to
fulfil its obligations relating to the Series Trust or by any other
act or omission of a Relevant Party or any other such person.
(e) In exercising their powers under the Transaction Documents, each of
the Security Trustee, the Class A-1 Note Trustee and the Class A-1
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 wilful default
of the Issuer for the purpose of paragraph (c).
(f)The Issuer is not obliged to enter into any commitment or obligation
under these Conditions or any other Transaction Document unless the
Issuer's liability is limited in a manner which is consistent with
this Condition 12. The Issuer agrees and acknowledges that its
liability for any commitment or obligation it has entered into under
these Conditions is limited in a manner which is consistent with this
Condition 12.
(g) The Issuer is not obliged to enter into any commitment or obligation
contemplated by but not contained in these Conditions or any other
Transaction Document unless the Issuer's liability in relation to that
commitment or obligation is limited in a manner satisfactory to the
Issuer in its absolute discretion.
I-32
<PAGE>
"Relevant Parties" means each of the Manager, the Seller, the Servicer,
the Agent Bank, each Paying Agent, the Class A-1 Note Trustee and the Hedge
Providers (as those parties, which are not defined in these Conditions, are
defined in the Series Supplement).
The expression "fraud, negligence or wilful default" is to be construed
in accordance with the Security Trust Deed.
A summary of the definition of "wilful default" and further details of
the manner in which the Issuer's liability is limited in relation to the Class
A-1 Notes and the Series Trust are contained in "Description of the Transaction
Documents--The Issuer Trustee" of this prospectus.
13.Governing Law
The Class A-1 Notes and the Transaction Documents are governed by, and
will be construed in accordance with, the laws of the State of New South Wales
of the Commonwealth of Australia, except for the Underwriting Agreement and
each credit support annex to the Currency Swap Agreements which are governed
by, and will be construed in accordance with, New York law. Each of the Issuer
and the Manager has in the Class A-1 Note Trust Deed irrevocably agreed for the
benefit of the Class A-1 Note Trustee and the Class A-1 Noteholders that the
courts of the State of New South Wales are to have non-exclusive jurisdiction
to settle any disputes which may arise out of or in connection with the Class
A-1 Note Trust Deed and the Class A-1 Notes.
Agents
Principal Paying Agent: The Bank of New York, New York Branch
101 Barclay Street, 21W
New York, New York, 10286
Class A-1 Notes Registrar: The Bank of New York, New York Branch
101 Barclay Street, 21W
New York, New York, 10286
or
48th Floor
One Canada Square
London E14 5AL
Agent Bank: The Bank of New York, New York Branch
101 Barclay Street, 21W
New York, New York, 10286
Paying Agent: The Bank of New York, London Branch
48th Floor
One Canada Square
London E14 5AL
I-33
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Series 2000-1G Medallion Trust
US$
Mortgage Backed
Floating Rate Notes
[LOGO]
----------------
PROSPECTUS
----------------
J.P. Morgan & Co.
Merrill Lynch & Co.
Deutsche Banc Alex. Brown
Credit Suisse First Boston
March , 2000
You should rely only on the information contained in this prospectus. No
one has been authorized to provide you with any other, or different,
information.
The securities are not being offered in any state or jurisdiction where
the offer is not permitted.
Until June 22, 2000, 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.
The Class A-1 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-1 notes in
book-entry form only will be made on or about March 27, 2000.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 31. Other Expenses of Issuance and Distribution*
The following table sets forth the estimated expenses in connection with the
issuance and distribution of the notes being registered under this registration
statement, other than underwriting discounts and commissions:
<TABLE>
<S> <C>
SEC Registration Fee.......................................... $ 260,040
Printing and Engraving........................................ $ 91,000
Legal Fees and Expenses....................................... $ 721,000
Trustee Fees and Expenses..................................... $ 10,000
Rating Agency Fees............................................ $ 253,000
Accounting Fees & Expenses.................................... $ 153,000
Miscellaneous................................................. $ 30,000
----------
Total....................................................... $1,508,040
==========
</TABLE>
- --------
* All amounts except the SEC Registration Fee are estimates of expenses
incurred in connection with the issuance and distribution of the Notes.
Item 33. Recent Sales of Unregistered Securities.
The following information relates to securities of the registrant issued or
sold by the registrant that were not registered under the Securities Act:
The registrant was incorporated on 28 April 1994. Two fully paid shares
of A$1.00 each were allotted to Commonwealth Bank of Australia on 28
April 1994.
Item 34. Indemnification of Directors and Officers.
Pursuant to Article 59 of the Articles of Association of the registrant,
every director, agent, auditor, secretary and other officer for the time being
of the registrant shall be indemnified out of the assets of the registrant
against any liability incurred by him as such director, agent, auditor,
secretary or other officer in defending any proceedings whether civil or
criminal in which judgment is given in his favor or in which he is acquitted or
in connection with any application under the Corporations Law in which relief
is granted to him by the court in respect of any negligence, default, breach of
duty or breach of trust.
Item 36. Exhibits and Financial Statement Schedules.
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement.
3.1 Memorandum of Association of Registrant.*
3.2 Articles of Association of the Registrant.*
4.1 Master Trust Deed.*
4.2 Form of the Series Supplement.
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.
Opinion of Mayer, Brown & Platt as to certain tax matters (included in
8.1 Exhibit 5.1 hereof).
8.2 Opinion of Clayton Utz as to certain tax matters.
</TABLE>
II-1
<PAGE>
<TABLE>
<C> <S>
10.1 Form of the Standby Redraw Facility Agreement.
10.2 Form of the Liquidity Facility Agreement.
10.3 Form of the Interest Rate Swap
10.4 Form of the CBA Currency Swap.
10.5 Form of the MCLS Currency Swap.
23.1 Consent of Mayer, Brown & Platt (included in Exhibit 5.1 hereof).
23.2 Consent of Clayton Utz (included in Exhibit 8.2 hereof).
24.1 Power of Attorney (included on signature pages).*
25.1 Statement of Eligibility of Note Trustee.
Opinion of Clayton Utz as to Enforceability of U.S. Judgments under
99.1 Australian Law.
</TABLE>
- --------
* Previously filed.
Item 37. 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 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 Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-11 and has duly caused this Amendment No. 3
to the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Sydney, Australia, on the 13th day of
March, 2000.
Securitisation Advisory Services
Pty. Limited
By: /s/ Dominic Bruzze
----------------------------------
Name: Dominic Bruzze
Office: Company Secretary
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 3 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/ Dominic Bruzze Principal Executive March 13, 2000
___________________________________________ Officer
Dominic Bruzze
/s/ Dominic Bruzze Principal Financial March13, 2000
___________________________________________ Officer
Dominic Bruzze
/s/ Dominic Bruzze Principal Accounting March 13, 2000
___________________________________________ Officer
Dominic Bruzze
*
/s/ Dominic Bruzze Director March 13, 2000
___________________________________________
Geoffrey Michael Steel
*
/s/ Dominic Bruzze Director March 13, 2000
___________________________________________
Garry Lynton Mackrell
*
/s/ Dominic Bruzze Director March 13, 2000
___________________________________________
Craig Anthony Carland
*
/s/ Dominic Bruzze
___________________________________________
By: Dominic Bruzze
Attorney-in-fact
</TABLE>
II-3
<PAGE>
SIGNATURE OF AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of the Securities Act of 1933,
the undersigned hereby certifies that it is the agent for service of process in
the United States of the Registrant with respect to the Registration Statement
and signs this Amendment No. 3 to the Registration Statement solely in such
capacity and for the limited purpose of said Section 6(a).
/s/ Ian Phillips
-------------------------------------
Name: Ian Phillips
Address: Commonwealth Bank of
Australia
599 Lexington Avenue
New York, NY 10022
Telephone: 212-848-9241
II-4
<PAGE>
EXHIBITS INDEX
<TABLE>
<CAPTION>
Sequential
Exhibit Page
No. Description of Exhibit Number
------- ---------------------- ----------
<C> <S> <C>
1.1 Form of Underwriting Agreement.
3.1 Memorandum of Association of Registrant.*
3.2 Articles of Association of the Registrant.*
4.1 Master Trust Deed.*
4.2 Form of the Series Supplement.
4.3 Form of the Security Trust Deed.
4.4 Form of the Note Trust Deed.
4.5 Form of Agency Agreement.
Opinion of Mayer, Brown & Platt as to legality of the
5.1 Notes.
8.1 Opinion of Mayer, Brown & Platt as to certain tax matters
(included in Exhibit 5.1 hereof).
8.2 Opinion of Clayton Utz as to certain tax matters.
10.1 Form of the Standby Redraw Facility Agreement.
10.2 Form of the Liquidity Facility Agreement.
10.3 Form of the Interest Rate Swap.
10.4 Form of the CBA Currency Swap.
10.5 Form of the MLCS Currency Swap.
23.1 Consent of Mayer, Brown & Platt (included in Exhibit 5.1
hereof).
23.2 Consent of Clayton Utz (included in Exhibit 8.2 hereof).
24.1 Power of Attorney (included on signature pages).*
25.1 Statement of Eligibility of Note Trustee.
Opinion of Clayton Utz as to Enforceability of U.S.
99.1 Judgments under Australian Law.
</TABLE>
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* Previously filed.
II-5
<PAGE>
Exhibit 1.1
UNDERWRITING AGREEMENT
US$[985,000,000]
Perpetual Trustee Company Limited
SERIES 2000 -- 1G MEDALLION TRUST
% Mortgage Backed Floating Rate Notes Due 2030, Class A-1
UNDERWRITING AGREEMENT
----------------------
March [24], 2000
J.P. Morgan Securities Inc.
("J.P. Morgan")
As Representative of the
Several Underwriters Listed
in Schedule I
60 Wall Street
New York, New York 10260-0060
Ladies and Gentlemen:
Perpetual Trustee Company Limited, ACN 000 001 007, a company incorporated
in New South Wales, Australia ("Perpetual"), acting in its capacity as trustee
of the Series 2000-1G Medallion Trust (the "Trust", and Perpetual in that
capacity being the "Issuer Trustee"), acting at the direction of Securitisation
Advisory Services Pty Limited, ACN 064 133 946, a company incorporated in New
South Wales, Australia, as manager of the Trust (the "Manager"), proposes to
sell to the several Underwriters listed in Schedule I to this Agreement (the
"Underwriters"), for whom J.P. Morgan is acting as representative (the
"Representative"), US$[985,000,000] aggregate principal amount of Class A-1
Mortgage Backed Floating Rate Notes due 2030 (the "Class A-1 Notes") issued by
the Issuer Trustee. The Manager is a wholly-owned subsid-
-1-
<PAGE>
iary of Commonwealth Bank of Australia, ACN 123 123 124, a company incorporated
in the Australian Capital Territory, Australia ("CBA").
The Class A-1 Notes will be secured by the assets of the Trust in
accordance with the Security Trust Deed. The assets of the Trust means all
assets and property, real and personal, (including choses in action and other
rights), tangible and intangible, present or future, held by the Issuer Trustee
from time to time, as trustee of the Trust including, among other things: (i)
rights specified in the Security Trust Deed and the Note Trust Deed in a pool of
variable and fixed rate residential mortgage loans (the "Mortgage Loans") (such
rights, the "Mortgage Loan Rights" (as defined on the next page)) and certain
moneys received under the Mortgage Loans after March [18], 2000 (the "Cutoff
Date"), (ii) the benefits of all covenants, agreements, undertakings,
representations, warranties and other choses in action in favor of the Issuer
Trustee under the Transaction Documents (as defined in the Series Supplement),
(iii) the Collection Account and (iv) all other assets that comprise the Charged
Property (as defined in the Security Trust Deed). The Mortgage Loans will be
sold to the Issuer Trustee by CBA (in such capacity, the "Seller") and will be
serviced for the Issuer Trustee by CBA (in such capacity, the "Servicer"). The
Class A-1 Notes will be issued in an aggregate principal amount of
US$[985,000,000], which is equal to approximately ___% of the aggregate balance
of the Mortgage Loans as of the Cutoff Date.
The Trust was created pursuant to a master trust deed dated October 8,
1997, as amended from time to time (the "Master Trust Deed") between the Manager
and Perpetual and a series supplement to be dated March [ ], 2000 (the "Series
Supplement"), between CBA (as Seller and Servicer), the Manager and the Issuer
Trustee, which describes, among other things, the Trust and the underlying cash
flow relating to the Class A-1 Notes. The Class A-1 Notes will be issued
pursuant to a Note Trust Deed to be dated March [27], 2000 among the Issuer
Trustee, the Manager and The Bank of New York, New York branch (the "Class A-1
Note Trustee").
Concurrently with the sale of the Class A-1 Notes, the Issuer Trustee will
also issue A$[150,000,000] in aggregate principal amount of Class A-2 Notes
(together with the Class A-1 Notes, the "Class A Notes"), and A$[15,000,000] in
aggregate principal amount of Class B Notes". The Class A-2 Notes will be equal
to ___% of the aggregate principal amount of Mortgage Loans as of the Cutoff
Date, and the Class B Notes will be equal to % of the aggregate principal amount
of the Mortgage Loans as of the Cutoff Date. The assets of the Trust will also
secure under the Security Trust Deed, among other things, any Redraw Bonds (as
defined in the
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<PAGE>
Series Supplement) that may be issued after the date of this Agreement and the
Issuer Trustee's obligations under the Liquidity Facility. The Class A-2 Notes,
the Class B Notes and the Redraw Bonds are collectively referred to as the "A$
Securities." The Class A-1 Notes and the A$ Securities are collectively referred
to as the "Notes."
The Manager has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement, including a prospectus, relating to the Class A-1 Notes. The
registration statement as amended at the time when it shall become effective,
or, if a post-effective amendment is filed with respect thereto, as amended by
such post-effective amendment at the time of its effectiveness, including in
each case information (if any) deemed to be part of the registration statement
at the time of effectiveness pursuant to Rule 430 or Rule 430A under the
Securities Act, is referred to in this Agreement as the "Registration
Statement", and the prospectus in the form first used to confirm sales of Class
A-1 Notes is referred to in this Agreement as the "Prospectus".
When used in this Agreement, "Basic Documents" shall mean collectively: the
Master Trust Deed (in so far as it applies to the Trust), the Series Supplement,
the Notes, the Security Trust Deed, the Note Trust Deed, the Agency Agreement,
the Dealer Agreement, the Liquidity Facility Agreement, the Standby Redraw
Facility Agreement, the Currency Swap Agreement, the Interest Rate Swap
Agreement, the Mortgage Insurance Policies, any other document which is agreed
to by the Manager and the Issuer Trustee to be a Transaction Document in
relation to the Trust under clause 1.6(a)(v) of the Series Supplement, the DTC
Letter of Representations, any undertakings given to Euroclear or Clearstream
Banking, societe anonyme ("Clearstream") in connection with the Book Entry
Notes, any agreement, instrument or undertaking entered into by the Issuer
Trustee or any CBA Party in connection with the listing of the Class A-1 Notes
on the London Stock Exchange, and [any other contract, agreement or instrument
which is specified in the closing memo]. CBA and the Manager are each a "CBA
Party" and collectively are referred to as the "CBA Parties." To the extent not
defined herein, capitalized terms used herein have the meanings assigned to such
terms in the Series Supplement.
In this Agreement, a reference to the Issuer Trustee is a reference to the
Issuer Trustee in its capacity as trustee of the Trust only, and in no other
capacity and reference to the assets, business, property or undertaking of the
Issuer Trustee, unless otherwise stated, is a reference to the Issuer Trustee in
that capacity only.
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<PAGE>
Each of the CBA Parties and the Issuer Trustee hereby agrees with the
Underwriters as follows:
1. Purchase and Sale. The Issuer Trustee, at the direction of the Manager,
agrees to sell, and the Manager agrees to direct the Issuer Trustee to sell, the
Class A-1 Notes to the several Underwriters as hereinafter provided, and each
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees to purchase,
severally and not jointly, from the Issuer Trustee, the respective principal
amounts of Class A-1 Notes set forth opposite such Underwriter's name in
Schedule I hereto at a price equal to ______% of their principal amount.
2. Offering. The CBA Parties and the Issuer Trustee understand that the
Underwriters intend to make a public offering of their respective portions of
the Class A-1 Notes upon the terms set forth in the Prospectus as soon after (A)
the Registration Statement has become effective and (B) the parties hereto have
executed and delivered this Agreement, as in the judgment of J.P. Morgan is
advisable.
3. Delivery and Payment. Payment for the Class A-1 Notes shall be made by
wire transfer in immediately available funds to the account specified by the
Issuer Trustee to J.P. Morgan no later than 12:00 noon, New York City time on
, 2000, or at such other time on the same or such other date, not later than
the fifth Business Day thereafter, as J.P. Morgan and the Manager may agree upon
in writing. The time and date of such payment are referred to herein as the
"Closing Date". As used herein, the term "Business Day" means any day other than
a day on which banks are permitted or required to be closed in New York City,
Sydney and London.
Payment for the Class A-1 Notes shall be made against delivery to the
nominee of the Depository Trust Company for the account of J.P. Morgan and for
the respective accounts of the several Underwriters of [three] or more fully
registered global book-entry notes (the "Book-Entry Notes") representing
$[985,000,000] in aggregate Principal Amount of Class A-1 Notes, with any
transfer taxes payable in connection with the transfer to the Underwriters of
the Class A-1 Notes duly paid by the Issuer Trustee. The Book-Entry Notes will
be made available for inspection by J.P. Morgan at the offices of Mayer, Brown &
Platt at 1675 Broadway, New York, New York 10019 not later than 1:00 P.M., New
York City time, on the Business Day prior to the Closing Date. Interests in any
Book Entry Notes will be held only in Book Entry form through DTC, except in
limited circumstances described in the Prospectus.
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<PAGE>
4. Representations and Warranties of the Issuer Trustee and the CBA
Parties.
I. The Issuer Trustee represents and warrants to each Underwriter and the
CBA Parties as of the date of this Agreement and as of the Closing Date, and
agrees with each Underwriter and the CBA Parties, that:
(a) since the respective dates as of which information is
provided in the Registration Statement and the Prospectus, there has not been
any material adverse change or any development involving a prospective material
adverse change in or affecting the general affairs, business, prospects,
management, or results of operations, condition (financial or otherwise) of
Perpetual or the Trust except as disclosed in the Prospectus which is material
in the context of performing the Issuer Trustee's obligations and duties under
the Notes and each Basic Document to which it is or is to be party;
(b) Perpetual has been duly incorporated and is validly
existing as a corporation under the laws of New South Wales, with power and
authority (corporate and other) to conduct its business as described in the
Prospectus, and to enter into and perform the Issuer Trustee's obligations under
this Agreement and the Basic Documents and Perpetual been duly qualified for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the transactions
contemplated herein or in the Basic Documents;
(c) Perpetual has duly authorized, executed and delivered this
Agreement;
(d) the Notes have been duly authorized by Perpetual, and,
when the Class A-1 Notes have been issued (and duly authenticated by the Class
A-1 Note Trustee), delivered and paid for pursuant to this Agreement, they will
constitute valid and binding obligations of the Issuer Trustee entitled to the
benefits of the Note Trust Deed and the Security Trust Deed, subject as to
enforceability to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation or other similar laws affecting the
enforcement of creditors rights generally and to general equitable principles.
(e) the execution, delivery and performance by Perpetual of
each of the Basic Documents to which it either is, or is to be, a party and this
Agreement
-5-
<PAGE>
has been duly authorized by Perpetual and, when executed and delivered by it and
the other parties thereto, each of the Basic Documents will constitute a legal,
valid and binding obligation of the Issuer Trustee, enforceable against it in
accordance with its terms, subject as to enforceability to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation or other similar laws affecting the enforcement of creditors rights
generally and to general equitable principles;
(f) Perpetual is not, nor with the giving of notice or lapse
of time or both will be, in violation of or in default under: (i) its
constitution or (ii) any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which either is a party or by which it or any
of its properties is bound, except in the case of (ii), for violations and
defaults which individually and in the aggregate would not have a material
adverse effect on the transactions contemplated in or in the Basic Documents;
the issue and sale of the Notes and the performance by it of all of the
provisions of the Issuer Trustee's obligations under the Notes, the Basic
Documents and this Agreement and the consummation of the transactions herein and
therein contemplated will not (I) conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any of it's property or
assets is subject, (II) result in any violation of the provisions of it's
constitution or any applicable law or statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over it, or any
of its properties; or (III) result in the creation or imposition of any lien or
encumbrance upon any of its property pursuant to the terms of any indenture,
mortgage, contract or other instrument other than pursuant to the Basic
Documents; and no consent, approval, authorization, order, license, registration
or qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Notes or the consummation by the Issuer
Trustee of the transactions contemplated by this Agreement or the Basic
Documents, except such consents, approvals, authorizations, orders, licenses,
registrations or qualifications as have been obtained under the Securities Act
and the Trust Indenture Act of 1939, as amended, and the rules and regulations
of the Commission thereunder (the latter, including such applicable rules and
regulations, the "Trust Indenture Act") and as may be required under state
securities or "Blue Sky" Laws in connection with the purchase and distribution
of the Class A-1 Notes by the Underwriters;
(g) other than as set forth in or contemplated by the
Prospectus, there are no legal or governmental investigations, actions, suits or
proceedings
-6-
<PAGE>
pending or, to its knowledge, threatened against or affecting it or the Trust or
to which it is or may be a party or to which it is or may be the subject: (i)
asserting the invalidity of this Agreement or of any of the Basic Documents,
(ii) seeking to prevent the issuance of the Notes or the consummation of any of
the transactions contemplated by this Agreement or any of the Basic Documents by
the Issuer Trustee, (iii) that may adversely affect the US Federal or Australian
Federal or state income, excise, franchise or similar tax attributes of the
Class A-1 Notes, (iv) that could materially and adversely affect the Issuer
Trustee's performance of its obligations under, or the validity or
enforceability against the Issuer Trustee of, this Agreement or any of the Basic
Documents or (v) which could individually or in the aggregate reasonably be
expected to have a material adverse effect on the interests of the holders of
any of the Class A-1 Notes; and there are no contracts or other documents to
which it is party or bound that are required to be filed as an exhibit to the
Registration Statement or laws, contracts or other documents required to be
described in the Registration Statement or the Prospectus which are not filed or
described as required;
(h) the representations and warranties of the Issuer Trustee
contained in the Basic Documents are true and correct in all material respects;
(i) it has not done or omitted to do anything that might
reduce, limit or otherwise adversely affect the right of the Issuer Trustee to
be indemnified from the assets of the Trust under Clause 16 of the Master Trust
Deed;
(j) the Prospectus complies with the Listing Rules of the
London Stock Exchange Limited (the "London Stock Exchange"), and any preliminary
prospectus and the Prospectus (in the case of the Prospectus), as of the date of
this Agreement and in the case of any preliminary prospectus, as of its date)
(i) contains all the information required by section 146 of the Financial
Services Act 1986 (the "Financial Services Act"); and (ii) in the context of
offers and sales of the Class A-1 Notes to any person (A) who is outside the
"United States" (as defined in Regulation S under the Securities Act) or (B) who
is not a "U.S. person" (as defined in Regula tion S under the Securities Act),
is accurate in all material respects and does not contain any untrue statement
of a material fact or omit to state any material fact necessary to make the
information therein, in the light of the circumstances under which it is given,
not misleading and all reasonable inquiries have been made by or on behalf of
the Issuer Trustee to ascertain the accuracy of all such information;
-7-
<PAGE>
(k) Perpetual has not taken any corporate action and (to the
best of its knowledge and belief having made reasonable inquiry and
investigation) no other step have been taken or legal proceedings been started
or threatened against it for its winding-up, dissolution or reorganization or
for the appointment of a receiver, receiver and manager, administrator,
provisional liquidator or similar officer of it or of any or all its assets;
(l) no stamp or other duty is assessable or payable in, and
subject only to compliance with Section 128F of the Income Tax Assessment Act
1936 (the "Australian Tax Act") in relation to interest payments under the Class
A-1 Notes, no withholding or deduction for any taxes, duties, assessments or
governmental charges of whatever nature will be imposed or made for or on
account of any income, registration transfer or turnover taxes, customs or other
duties or taxes of any kind, levied, collected, withheld or assessed by or
within, the Commonwealth of Australia or any sub-division of or authority
therein or thereof having power to tax in such jurisdiction, in connection with
(i) the authorization, execution or delivery or any of the Basic Documents to
which it is or is to be a party or with the authorization, execution, issue,
sale or delivery of the Class A-1 Notes under this Agreement, (ii) the sale and
delivery of the Class A-1 Notes by the Underwriters contemplated in this
Agreement and the Prospectus or (iii) the execution, delivery or performance by
the Issuer Trustee of any of the Basic Documents to which it is or is to be a
party or the Class A-1 Notes; except, in the case of sub clause (iii), for any
of the Basic Documents on which nominal stamp duty is payable or any other
document executed in connection with the perfection of the Issuer's Trustee's
legal title to the Mortgage Loans on which stamp duties or registration fees may
be payable;
(m) the Class A-1 Notes and the obligations of the Issuer
Trustee under the Note Trust Deed will be secured (pursuant to the Security
Trust Deed) by a first floating charge over the assets of the Trust, subject to
the Prior Interest (as defined in the Security Trust Deed); and
(n) no event has occurred or circumstances arisen which, had
the Notes already been issued, would (whether or not with the giving of notice
or direction and/or the passage of time and/or fulfillment of any other
requirement) oblige it to retire as Issuer Trustee or constitute grounds for its
removal as Issuer Trustee under any Basic Document or constitute an Event of
Default (as defined in the Security Trust Deed).
-8-
<PAGE>
II. Each CBA Party severally represents and warrants to each
Underwriter and the Issuer Trustee as of the date of this Agreement and as of
the Closing Date that:
(a) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been any
material adverse change, or any development involving a prospective material
adverse change, in or affecting (x) the general affairs, business, prospects,
management, financial position, stockholders' equity or results of operations of
the CBA Parties taken as a whole or (y) the general affairs, business,
prospects, condition (financial or otherwise) of the Trust otherwise than as set
forth or contemplated in the Prospectus;
(b) it has been duly incorporated and is validly existing as a
corporation under the laws of (in the case of CBA) the Australian Capital
Territory and (in the case of the Manager) New South Wales, with power and
authority (corporate and other) to own its properties and conduct its business
as described in the Prospectus and to enter into and perform its obligations
under this Agreement and the Basic Documents, and, in each case, has been duly
qualified or licensed for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification, other than where
the failure to be so qualified or in good standing would not have a material
adverse effect on the transactions contemplated in this Agreement or in the
Basic Documents;
(c) this Agreement has been duly authorized, executed and
delivered by it;
(d) each of the Basic Documents to which it is or is to be a
party has been duly authorized by it and, upon effectiveness of the Registration
Statement, the Note Trust Deed will have been duly qualified under the Trust
Indenture Act and each of the Basic Documents, when executed and delivered by
each CBA Party that is a party to it and the other parties thereto, will
constitute a legal, valid and binding obligation of it, enforceable against it
in accordance with its terms, subject as to enforceability to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation or other similar laws affecting the enforcement of creditors rights
generally and to general equitable principles; and, in the case of the Manager
only, the Class A-1 Notes and the Basic Documents each will conform to the
descriptions thereof in the Prospectus;
-9-
<PAGE>
(e) it is not, nor with the giving of notice or lapse of time
or both would it be, in violation of or in default under, its constitution or
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it or any of its properties is
bound, except for violations and defaults which individually and in the
aggregate would not have a material adverse effect on the transactions
contemplated in this Agreement or in the Basic Documents; the issue and sale of
the Notes and the performance by it of all or any obligations it has under the
Notes, the Basic Documents and this Agreement and the consummation of the
transactions herein and therein contemplated will not (i) conflict with or
result in a breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which it is a party or by which it is bound or to which any of
its property or assets of any it is subject, (ii) result in any violation of the
provisions of the constitution of a CBA Party or any applicable law or statute
or any order, rule or regulation of any court or governmental agency or body
having jurisdiction over a CBA Party, or any of its properties or (iii) result
in the creation or imposition of any lien, charge or encumbrance upon any of its
property pursuant to the terms of any such indenture, mortgage, contract, or
other instrument other than pursuant to the Basic Documents; and no consent,
approval, authorization, order, license, registration or qualification of or
with any such court or governmental agency or body is required for the issue and
sale of the Class A-1 Notes or the consummation by it of the transactions
contemplated by this Agreement or the Basic Documents, except such consents,
approvals, authorizations, orders, licenses, registrations or qualifications as
have been obtained under the Securities Act, the Trust Indenture Act and as may
be required under state securities or Blue Sky Laws of the United States in
connection with the purchase and distribution of the Class A-1 Notes by the
Underwriters and the registration of the Charge with the ASIC on the Closing
Date;
(f) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental investigations, actions, suits or proceedings
pending or, to its knowledge, threatened against or affecting it or its
properties, the Trust or the Trust's properties or, to which it or the Trust is
or may be a party or to which it, the Trust or any property of it or the Trust
is or may be the subject, (i) asserting the invalidity of this Agreement or of
any of the Basic Documents, (ii) seeking to prevent the issuance of the Notes or
the consummation of any of the transactions contemplated by this Agreement or
any of the Basic Documents, (iii) that may adversely affect the U.S. federal or
Australian federal or state income, excise, franchise, stamp duty or similar tax
attributes of the Class A-1 Notes, (iv) that could materially and adversely
affect its performance of its obligations under, or the
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<PAGE>
validity or enforceability of, this Agreement or any of the Basic Documents or
(v) which could individually or in the aggregate reasonably be expected to have
a material adverse effect on the interests of the holders of the Class A-1 Notes
or the marketability of the Class A-1 Notes; and there are no statutes,
regulations, contracts or other documents that are required to be filed as an
exhibit to the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed or described as
required;
(g) its representations and warranties contained in the Basic
Documents are true and correct in all material respects;
(h) it owns, possesses or has obtained all licenses, permits,
certificates, consents, orders, approvals and other authorizations from, and has
made all declarations and filings with, all Australian and United States
federal, state, local and other governmental authorities (including United
States regulatory agencies), all self-regulatory organizations and all courts
and other tribunals, domestic or foreign, necessary to perform its obligations
under this Agreement and the Basic Documents, and it has not received any actual
notice of any proceeding relating to revocation or modification of any such
license, permit, certificate, consent, order, approval or other authorization;
and it is in compliance with all laws and regulations necessary for the
performance of its obligations under this Agreement and the Basic Documents;
(i) the Prospectus complies with the Listing Rules of the
London Stock Exchange, and any preliminary prospectus and the Prospectus (in the
case of the Prospectus), as of the date hereof and in the case of any
preliminary prospectus, as of its date) (i) contains all the information
required by section 146 of the Financial Services Act; and (ii) in the context
of offers and sales of the Class A-1 Notes to any person (A) who is outside the
"United States" (as defined in Regulation S under the Securities Act) or (B) who
is not a "U.S. person" (as defined in Regulation S under the Securities Act), is
accurate in all material respects and does not contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
information therein, in the light of the circumstances under which it is given,
not misleading and all reasonable inquiries have been made to by the CBA Parties
ascertain the accuracy of all such information;
(j) it has not taken any corporate action and (to the best of
its knowledge and belief having made reasonable inquiry and investigation) no
other steps been taken or legal proceedings been started or threatened against
it for its winding-up, dissolution or reorganization or for the appointment of a
receiver,
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<PAGE>
receiver and manager, administrator, provisional liquidator or similar officer
of it or of any or all of its assets (other than enforcement action taken by CBA
over its assets);
(k) no stamp or other duty is assessable or payable in, and
subject only to compliance with Section 128F of the Australian Tax Act in
relation to payments under the Class A-1 Notes, no withholding or deduction for
any taxes, duties, assessments or governmental charges of whatever nature is
imposed or made for or on account of any income, registration, transfer or
turnover taxes, customs or other duties or taxes of any kind, levied, collected,
withheld or assessed by or within, the Commonwealth of Australia or any
sub-divisions of or authority therein or thereof having power to tax in such
jurisdiction, in connection with (i) the authorization, execution or delivery
of the Basic Documents to which it is, or is to be, a party or with the
authorization, execution, issue, sale or delivery of the Class A-1 Notes and
(ii) the execution, delivery or performance by each CBA Party of the Basic
Documents to which it is or is to be a party or the Class A-1 Notes; except, in
the case of sub clause (ii), for any of the Basic Documents on which nominal
stamp duty is payable or any other document executed in connection with the
perfection of the Issuer's Trustee's legal title to the Mortgage Loans on which
stamp duties or registration fees may be payable;
(l) no event has occurred or circumstances arisen which had
the Notes already been issued, would (whether or not with the giving of notice
and/or the passage of time and/or the fulfillment of any other requirement)
constitute a Manager Default (as defined in the Master Trust Deed) or a Servicer
Default (as defined in the Series Supplement); and
(m) with respect to the A$ Securities: (A) none of the CBA
Parties, any "affiliate" (as defined in Rule 144(a)(1), each an "Affiliate") of
a CBA Party or any person acting on behalf of a CBA Party or an Affiliate of a
CBA Party has engaged or will engage in any "directed selling efforts" (within
the meaning of Regulation S), (B) each of the CBA Parties, each Affiliate of a
CBA Party and any person acting on behalf of a CBA Party or an Affiliate of a
CBA Party has offered and sold, and will offer and sell, the A$ Securities only
in "offshore transactions" (within the meaning of Regulation S) in compliance
with Regulation S and (C) each of the CBA Parties, each Affiliate of a CBA Party
and any person acting on behalf of a CBA Party or an Affiliate of a CBA Party
has complied and will comply with the offering restrictions requirement of
Regulation S.
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<PAGE>
III The Manager represents and warrants to each Underwriter and the
Issuer Trustee as of the date of this Agreement and as of the Closing Date,
that:
(a) no order preventing or suspending the use of any
preliminary prospectus has been issued by the Commission, and each preliminary
prospectus filed as part of the Registration Statement as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material respects with the
Securities Act, and did not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information relating to any Underwriter furnished to a CBA Party in writing
by such Underwriter through J.P. Morgan expressly for use therein;
(b) the Registration Statement has been declared effective by
the Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceeding
for that purpose has been instituted or, to the knowledge of the Manager,
threatened by the Commission; and the Registration Statement and Prospectus (as
amended or supplemented if the Manager shall have furnished any amendments or
supplements thereto) comply, or will comply, as the case may be, in all material
respects with the Securities Act and the Trust Indenture Act and do not and will
not, as of the applicable effective date of the Registration Statement and any
amendment thereto and as of the date of the Prospectus and any amendment or
supplement thereto, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Prospectus, as amended or
supplemented, if applicable, at the Closing Date will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; except that the foregoing representations and warranties
shall not apply to (i) that part of the Registration Statement which constitutes
the Statement of Eligibility and Qualification (Form T-1) of the Trustee under
the Trust Indenture Act, and (ii) statements or omissions in the Registration
Statement or the Prospectus made in reliance upon and in conformity with
information relating to any Underwriter furnished to any CBA Party in writing by
such Underwriter through J.P. Morgan expressly for use therein;
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(c) Ernst & Young LLP are independent public accountants with
respect to CBA and the Manager within the meaning of the Securities Act;
(d) to the knowledge of the Manager, no event has occurred
that would entitle the Manager to direct the Issuer Trustee to retire as trustee
of the Trust under clause 19.2 of the Master Trust Deed;
(e) the Trust is not and (i) upon the issuance and sale of the
Notes as contemplated in this Agreement, (ii) the application of the net
proceeds therefrom as described in the Prospectus, (iii) the performance by the
parties to the Basic Documents of their respective obligations under the Basic
Documents, and (iv) the consummation of the transactions contemplated by the
Basic Documents, the Trust will not be required to be registered as an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended; and
(f) application has been made to the London Stock Exchange for
the Class A-1 Notes to be admitted to the Official List and all relevant
requirements of the Listing Rules will have been complied with.
5. Covenants and Agreements.
I. The Issuer Trustee covenants and agrees with each of the several
Underwriters and each of the CBA Parties as follows:
(a) to use the net proceeds received by the Issuer Trustee
from the sale of the Class A-1 Notes pursuant to this Agreement in the manner
specified in the Prospectus under the caption "Use of Proceeds";
(b) to notify the Representative and the CBA Parties promptly
after it becomes actually aware of any matter which would make any of its
representations and warranties in this Agreement untrue if given at any time
prior to payment being made to the Issuer Trustee on the Closing Date and take
such steps as may be reasonably requested by the Representative to remedy the
same;
(c) to pay any stamp duty or other issue, transaction, value
added, goods and services or similar tax, fee or duty (including court fees) in
relation to the execution of, or any transaction carried out pursuant to, the
Agreements or in connection with the issue and distribution of the Class A-1
Notes or the enforcement or delivery of this Agreement;
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<PAGE>
(d) to use all reasonable endeavors to procure satisfaction on
or before the Closing Date of the conditions referred to in Section 6 below
which relate to the Issuer Trustee and, in particular (i) the Issuer Trustee
shall execute those of the Basic Documents not executed on the date hereof on or
before the Closing Date, and (ii) the Issuer Trustee will assist the
Representative to make arrangements with DTC, Euroclear and Clearstream
concerning the issue of the Class A-1 Notes and related matters;
(e) to provide reasonable assistance to the CBA Parties to
procure that the charges created by or contained in the Security Trust Deed are
registered within all applicable time limits in all appropriate registers;
(f) to perform all of its obligations under each of the Basic
Documents to which it is a party which are required to be performed prior to or
simultaneously with closing on the Closing Date;
(g) not to take, or cause to be taken, any action or knowingly
permit any action to be taken which it knows or has reason to believe would
result in the Class A-1 Notes not being assigned the ratings referred to in
Section 6(q) below;
(h) not, prior to or on the Closing Date, amend the terms of
any Basic Document nor execute any of the Basic Documents other than in the
agreed form without the consent of the Underwriters;
(i) it will:
(i) sign and deliver to the London Stock Exchange a
listing application and copies of the Prospectus on or prior
to the Closing Date;
(ii) ensure that the Prospectus shall be approved as
listing particulars by or on behalf of the London Stock
Exchange as required by Section 144(2) of the Financial
Services Act and the Listing Rules; and
(iii) ensure that two copies of the Prospectus shall
be delivered to the Registrar of Companies in England and
Wales for
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registration as required by Section 149 of the Financial
Services Act, on or before the date of publication thereof;
(j) to procure that if, after the Prospectus has been
published and following the admission of the Class A-1 Notes to the Official
List of the London Stock Exchange:
(i) there is a significant change affecting any
matter contained in the Prospectus the inclusion of which was
required by Section 146 of the Financial Services Act or by
the Listing Rules or by the London Stock Exchange; or
(ii) a significant new matter arises the inclusion of
information in respect of which would have been so required
if it had arisen when the Prospectus was prepared,
to notify the Representative on behalf of the Underwriters as soon as reasonably
practicable and, in accordance with the Listing Rules, to submit to the London
Stock Exchange for its approval and, if approved, publish a supplement to the
Offering Circular of the change or new matter;
(k) for the purposes of section 128F(3)(c) of the Australian
Tax Act, it will, before it issues any Class A-1 Note, seek a listing of the
Class A-1 Notes on the London Stock Exchange, and use its best efforts to
maintain such listing for as long as any of the Class A-1 Notes are outstanding;
provided, however, if such listing becomes impossible, to use their best efforts
to obtain, and will thereafter use its best efforts to maintain a quotation for,
or listing of, the Class A-1 Notes on such other exchange as is commonly used
for the quotation or listing of debt securities as they may, with the approval
of J.P. Morgan, decide; and
(l) in connection with the initial distribution of the Class
A-2 Notes and the Class B Notes, it and each person acting on its behalf (other
than the CBA Parties, each Affiliate of a CBA Party and the Managers (as defined
in the Dealer Agreement):
(i) before the commencement of Schedule 1 of the
Corporations Law Economic Reform Program Act 1999:
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<PAGE>
(A) has not (directly or indirectly) offered
for subscription or purchase issued invitations to
subscribe for or buy nor has it sold any Class A-2
Notes or any Class B Notes;
(B) will not (directly or indirectly) offer
for subscription or purchase or issue invitations to
subscribe for or buy nor will it sell any Class A-2
Notes or any Class B Notes; and
(C) has not distributed and will not
distribute any draft, preliminary or definitive
prospectus, offering memorandum, advertisement or
other offering material relating to the Class A-2
Notes or any Class B Notes,
in the Commonwealth of Australia, its territories or
possessions, unless, the consideration payable by each person
to whom an offer or sale is made or to whom an invitation is
issued is a minimum amount of A$500,000 or the offer or
invitation is otherwise an excluded offer or excluded
invitation for the purposes of the Corporations Law (within
the meaning of the Corporations Act 1989 of Australia) and the
Corporations Regulations made under the Corporations Law; and
(ii) after the commencement of Schedule 1 of the
Corporations Law Economic Reform Program Act 1999, has not
and will not offer for issue, or invite applications for the
issue of, the Class A-2 Notes and the Class B Notes or offer
the Class A-2 Notes and the Class B Notes for sale or invite
offers to purchase the Class A-2 Notes and the Class B Notes
to a person, where the offer or invitation is received by that
person in Australia, unless the minimum amount payable for the
Class A-2 Notes or the Class B Notes (as the case may be)
(after disregarding any amount lent by any of the CBA Parties
or any associate (as determined under sections 10 to 17 of the
Corporations Law) of any CBA Party) on acceptance of the
offer by that person is at least A$500,000 or the offer or
invitation otherwise does not require disclosure to investors
in accordance with Part 6D.2 of the Corporations Law.
II. The CBA Parties severally covenant and agree with each of the
several Underwriters and the Issuer Trustee as follows:
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<PAGE>
(a) in the case of the Manager only, to use its best efforts
to cause the Registration Statement to become effective at the earliest possible
time and, if required, to file the final Prospectus with the Commission within
the time periods specified by Rule 424(b) and Rule 430A under the Securities
Act, and to furnish copies of the Prospectus to the Underwriters in New York
City prior to 10:00 a.m., New York City time, on the Business Day next
succeeding the date of this Agree ment in such quantities as the Representative
may reasonably request;
(b) in the case of the Manager only, to deliver, at the
expense of the Manager, to the Representative, signed copies of the Registration
Statement (as originally filed) and each amendment thereto, in each case
including exhibits, and to each other Underwriter a conformed copy of the
Registration Statement (as originally filed) and each amendment thereto, in each
case without exhibits and, during the period mentioned in paragraph (e) below,
to each of the Underwriters as many copies of the Prospectus (including all
amendments and supplements thereto and documents incorporated by reference
therein) as the Representative may reasonably request;
(c) in the case of the Manager only, before filing any
amendment or supplement to the Registration Statement or the Prospectus, whether
before or after the time the Registration Statement becomes effective, to
furnish to the Representative a copy of the proposed amendment or supplement
for review and not to file any such proposed amendment or supplement to which
the Representative reason ably objects;
(d) in the case of the Manager only, to advise the
Representative promptly, and to confirm such advice in writing, (i) when the
Registration Statement has become effective, (ii) when any amendment to the
Registration Statement has been filed or becomes effective, (iii) when any
supplement to the Prospectus or any amendment to the Prospectus has been filed
and to furnish the Representative with copies thereof, (iv) of any request by
the Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for any additional information, (v) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus or the Prospectus or the initia tion or threatening of
any proceeding for that purpose, and (vi) of the occurrence of any event, within
the period referenced in paragraph (e) below, as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the
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<PAGE>
statements therein, in light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading and to use its best efforts to prevent
the issuance of any such stop order, or of any order preventing or suspending
the use of any preliminary prospectus or the Prospectus, or of any order
suspending and such qualification of the Class A-1 Notes, or notification of any
such order thereof and, if issued, to obtain as soon as possible the withdrawal
thereof;
(e) to advise the Representative promptly, and to confirm such
advice in writing of the receipt by a CBA Party of any notification with respect
to any suspension of the qualification of the Class A-1 Notes for offer and sale
in any jurisdiction or the initiation or threatening of any proceeding for such
purpose;
(f) in the case of the Manager only, if, during such period of
time after the first date of the public offering of the Class A-1 Notes as in
the opinion of counsel for the Underwriters a prospectus relating to the Class
A-1 Notes is required by law to be delivered in connection with sales by an
Underwriter or a dealer, any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement the
Prospectus to comply with law, forthwith to prepare and furnish, at the expense
of the CBA Parties, to the Underwriters and to the dealers (whose names and
addresses the Representative will furnish to CBA) to which Class A-1 Notes may
have been sold by the Representative on behalf of the Underwriters and to any
other dealers upon request, such amendments or supplements to the Prospectus as
may be necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will comply
with law;
(g) in the case of the Manager only, to endeavor to qualify
the Class A-1 Notes for offer and sale under the securities or Blue Sky laws of
such jurisdictions as the Representative shall reasonably request and to
continue such qualification in effect so long as reasonably required for
distribution of the Class A-1 Notes; provided that the Manager shall not be
required to file a general consent to service of process in any jurisdiction;
(h) in the case of the Manager only, to make generally
available to the holders of the Class A-1 Notes and to the Representative as
soon as practicable an earnings statement covering a period of at least twelve
months beginning with the
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<PAGE>
first fiscal quarter of the Trust occurring after the effective date of the
Registration Statement, which shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 of the Commission promulgated thereunder;
(i) in the case of the Manager only, so long as the Class A-1
Notes are outstanding, to furnish to the Representative (i) copies of each
certificate, the annual statement of compliance and the annual independent
certified public accountant's audit report on the financial statements furnished
to the Issuer Trustee pursuant to the Basic Documents by first class mail as
soon as practicable after such statements and reports are furnished to the
Issuer Trustee, (ii) copies of each amendment to any of the Basic Documents,
(iii) on each Determination Date or as soon thereafter as practicable, notice by
telex or facsimile to the Representative of the Pool Factor as of the related
Record Date, (iv) copies of all reports or other communications (financial or
other) furnished to holders of the Class A-1 Notes, and copies of any reports
and financial statements furnished to or filed with the Commission, any
governmental or regulatory authority or any national securities exchange, and
(v) from time to time such other information concerning the Trust or the CBA
Parties as the Representative may reasonably request;
(j) to the extent, if any, that the ratings provided with
respect to the Class A-1 Notes by the Rating Agencies are conditional upon the
furnishing of documents or the taking of any other action by a CBA Party or the
Issuer Trustee, the relevant CBA Party shall use its best efforts to furnish
such documents and take any other such action or, in the case of the Issuer
Trustee, it will use its best efforts to procure the Issuer Trustee to do so;
(k) it will on behalf of the Issuer Trustee: (i) for the
purposes of 128F of the Australian Tax Act, seek a listing of the Class A-1
Notes on the London Stock Exchange before the Issuer Trustee issues any Class
A-1 Note, (ii) ensure that the Issuer Trustee will not offer, issue or sell the
Class A-1 Notes to the Underwriters, until the Class A-1 Notes have been
admitted to the Official List of the London Stock Exchange or the
Representative, on behalf of the Underwriters, is satisfied that the Class A-1
Notes will be admitted after the Closing Date and (iii) it will, use its best
efforts to maintain such listing for as long as any of the Class A-1 Notes are
outstanding; provided, however, if such listing becomes impossible, to use their
best efforts to obtain, and will thereafter use its best efforts to maintain a
quotation for, or listing of, the Class A-1 Notes on such other exchange as is
commonly used for the quotation or listing of debt securities as they may, with
the approval of J.P. Morgan, decide;
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<PAGE>
(l) to furnish from time to time copies of the Prospectus and
any and all documents, instruments, information and undertakings (in addition to
any already published or lodged with the London Stock Exchange) and publish all
advertisements or other material and to comply with any other requirements of
the London Stock Exchange that may be necessary in order to effect and maintain
such listing;
(m) not to take, or cause to be taken, any action and will not
knowingly permit any action to be taken which it knows or has reason to believe
would result in the Class A-1 Notes not being assigned the rating referred to in
Section 6(q) below;
(n) in the case of the Manager only, to assist J.P. Morgan in
making arrangements with DTC, Euroclear and Clearstream concerning the issue of
the Book-Entry Notes and related matters;
(o) in the case of the Manager only, if required, to register
the Class A-1 Notes pursuant to the Securities Exchange Act of 1934, as amended,
as soon as reasonably practicable as such requirement comes into effect but no
later that when such registration may become required by law;
(p) in the case of CBA only, whether or not the transactions
contemplated in this Agreement are consummated or this Agreement is terminated,
to pay, or cause to be paid, all fees costs and expenses incident to the
performance, including, without limiting the generality of the foregoing, all
fees, costs and expenses: (i) incident to the preparation, issuance, execution,
authentication and delivery of the Notes, including any fees, costs and expenses
of the Class A-1 Note Trustee or any transfer agent, (ii) incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement, the Prospectus and any preliminary prospectus (including in each case
all exhibits, amendments and supplements thereto), (iii) incurred in connection
with the registration or qualification and determination of eligibility for
investment of the Class A-1 Notes under the laws of such jurisdictions as the
Underwriters may designate (including fees of counsel for the Underwriters and
their disbursements with respect thereto), (iv) in connection with the listing
of the Notes on any stock exchange, (v) related to any filing with National
Association of Securities Dealers, Inc., (vi) in connection with the printing
(including word processing and duplication costs) and delivery of this
Agreement, the Basic Documents, the Preliminary and Supplemental Blue Sky
Memoranda and
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<PAGE>
any Legal Investment Survey and the furnishing to Underwriters and dealers of
copies of the Registration Statement and the Prospectus, including mailing and
shipping, as provided in this Agreement, (vii) the CBA Parties' counsel and
accountants and the Underwriters' counsel fees and disbursement that are
chargeable to CBA, (viii) any expenses incurred by the CBA Parties in connection
with any "roadshow" presentation to potential investors (except for up to
[A]$50,000 of those expenses to be paid by [J.P. Morgan/the Underwriters] if the
transaction contemplated by this Agreement is consummated) and (ix) payable to
rating agencies in connection with the rating of the Notes;
(q) to indemnify and hold harmless the Underwriters against
any documentary, stamp or similar issue tax, including any interest and
penalties, on the creation, issue and sale of the Class A-1 Notes in accordance
with this Agreement and on the execution and delivery of this Agreement and any
value added tax or goods and services tax payable in connection with any
concessions, commissions and other amounts payable or allowable by the Issuer
Trustee; to make all payments to be made by the CBA Parties or the Issuer
Trustee under this Agreement without withholding or deduction for or on account
of any present or future taxes, duties or governmental charges whatsoever unless
the relevant CBA Party is compelled by law to deduct or withhold such taxes,
duties or charges. In that event, the relevant CBA Party shall pay such
additional amounts as may be necessary in order that the net amounts received
after such withholding or deduction shall equal the amount that would have been
received if no withholding or deduction had been made;
(r) in the case of the Manager only, to cause the Issuer
Trustee to:
(i) sign and deliver to the London Stock Exchange a
listing application and copies of the Prospectus on or prior
to the Closing Date;
(ii) cause the Prospectus to be approved as listing
particulars by or on behalf of the London Stock Exchange as
required by Section 144(2) of the Financial Services Act and
the Listing Rules; and
(iii) cause two copies of the Prospectus to be
delivered to the Registrar of Companies in England and Wales
for registration as required by Section 149 of the Financial
Services Act, on or before the date of publication thereof;
and
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<PAGE>
(s) if, after the Prospectus has been published and following
the admission of the Class A-1 Notes to the Official List of the London Stock
Exchange:
(i) there is a significant change affecting any
matter contained in the Prospectus the inclusion of which was
required by Section 146 of the Financial Services Act or by
the Listing Rules or by the London Stock Exchange; or
(ii) a significant new matter arises the inclusion of
information in respect of which would have been so required
if it had arisen when the Prospectus was prepared,
to notify the Representative on behalf of the Underwriters as soon as reasonably
practicable and will, in accordance with the Listing Rules, submit to the London
Stock Exchange for its approval and, if approved, publish a supplement to the
Prospectus of the change or new matter;
(t) in connection with the initial distribution of the Class
A-2 Notes and the Class B Notes, it and each person acting on behalf of the CBA
Parties (other than the Co-Managers, each of whom has agreed and covenanted with
CBA as follows):
(i) before the commencement of Schedule 1 of the
Corporations Law Economic Reform Program Act 1999:
(A) has not (directly or indirectly) offered
for subscription or purchase issued invitations to
subscribe for or buy nor has it sold any Class A-2
Notes or any Class B Notes;
(B) will not (directly or indirectly) offer
for subscription or purchase or issue invitations to
subscribe for or buy nor will it sell any Class A-2
Notes or any Class B Notes; and
(C) has not distributed and will not
distribute any draft, preliminary or definitive
prospectus, offering memorandum, advertisement or
other offering material relating to the Class A-2
Notes or any Class B Notes,
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<PAGE>
in the Commonwealth of Australia, its territories or
possessions, unless, the consideration payable by each person
to whom an offer or sale is made or to whom an invitation is
issued is a minimum amount of A$500,000 or the offer or
invitation is otherwise an excluded offer or excluded
invitation for the purposes of the Corporations Law (within
the meaning of the Corporations Act 1989 of Australia) and the
Corporations Regulations made under the Corporations Law;
(ii) after the commencement of Schedule 1 of the
Corporations Law Economic Reform Program Act 1999, has not
and will not offer for issue, or invite applications for the
issue of, the Class A-2 Notes and the Class B Notes or offer
the Class A-2 Notes and the Class B Notes for sale or invite
offers to purchase the Class A-2 Notes and the Class B Notes
to a person, where the offer or invitation is received by that
person in Australia, unless the minimum amount payable for the
Class A-2 Notes or the Class B Notes (as the case may be)
(after disregarding any amount lent by any of the CBA Parties
or any associate (as determined under sections 10 to 17 of the
Corporations Law) of any CBA Party) on acceptance of the
offer by that person is at least A$500,000 or the offer or
invitation otherwise does not require disclosure to investors
in accordance with Part 6D.2 of the Corporations Law; and
(u) to procure that the charges created by or contained in the
Security Trust Deed are registered within all applicable time limits in all
appropriate registers.
III. Selling Restrictions
(a) No prospectus in relation to the Class A-1 Notes has been
lodged with, or registered by, the Australian Securities and Investments
Commission or the Australian Stock Exchange Limited. Accordingly, each of the
Underwriters, severally and not jointly, represents and agrees that, in
connection with the initial distribution of the Class A-1 Notes, it:
(i) has not (directly or indirectly) offered for
subscription or purchase or issued invitations to subscribe
for or buy nor has it sold the Class A-1 Notes;
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(ii) will not (directly or indirectly) offer for
subscription or purchase or issue invitations to subscribe for
or buy nor will it sell the Class A-1 Notes; and
(iii) has not distributed and will not distribute any
draft, preliminary or definitive Prospectus, offering
memorandum, advertisement or other offering material relating
to the Class A-1 Notes,
in the Commonwealth of Australia, its territories or possessions.
(b) Each Underwriter, severally and not jointly, agrees with
the Issuer Trustee that, within 30 days of the date of this Agreement, it will
have offered the Class A-1 Notes for sale, or invited or induced offers to buy
the Class A-1 Notes by:
(i) making each preliminary prospectus or the
Prospectus available for inspection on a Bloomberg source and
inviting potential investors to access the preliminary
prospectus or the Prospectus available on that Bloomberg
source; or
(ii) making hard copies of each preliminary
prospectus or the Prospectus for the Class A-1 Notes available
for collection from that Underwriter in at least its principal
office in New York City or London and, in the case of
purchasers in the United States, by sending or giving copies
of that preliminary prospectus or the Prospectus to those
purchasers.
(c) Each Underwriter agrees that it will not sell Class A-1
Notes to, or invite or induce offers for the Class A-1 Notes from:
(i) any associate of the Issuer Trustee or a CBA
Party specified in Schedule II or Schedule III; or
(ii) any other associate from time to time specified
in writing to the Underwriter by the Issuer Trustee or a CBA
Party.
(d) Each Underwriter, severally and not jointly, agrees to:
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(i) provide written advice to the Issuer Trustee and
the Manager within 40 days of the issue of the Class A-1 Notes
specifying that it has complied with section 5(III)(b); and
(ii) cooperate with reasonable requests from the
Issuer Trustee for information for the purposes of assisting
the Issuer Trustee to demonstrate that the public offer test
under section 128F of the Tax Act has been satisfied in
respect of the Class A-1 Notes,
provided that no Underwriter shall be obliged to disclose:
(x) the identity of the purchaser of any Class A-1
Note or any information from which such identity might be
capable of being ascertained; or
(y) any information the disclosure of which would be
contrary to or prohibited by any relevant law, regulation or
directive.
(e) Each Underwriter, severally and not jointly, represents
and agrees that it (i) has not offered or sold, and prior to admission of the
Class A-1 Notes to listing in accordance with Part IV of the Financial Services
Act will not offer or sell any Class A-1 Notes to persons in the United Kingdom
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 Regulation 1995, as amended, or the Financial
Services Act, (ii) has complied with 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-1 Notes, in, from or other wise involving the United
Kingdom, and (iii) has only issued or passed on and will only issue or pass on
in the United Kingdom any document received by it in connec tion with the issue
of the Class A-1 Notes, other than any document which consists of, or 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 a kind described in Article 11(3) of
the Financial Services Act (Investment Advertisements) (Exemptions) Order 1996,
as amended, or is a person to whom the document may otherwise lawfully be issued
or passed on.
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<PAGE>
(f) Each Underwriter, severally and not jointly, acknowledges
that no action has been taken to permit a public offering of the Class A-1 Notes
in any jurisdiction outside the United States where action would be required for
that purpose. Each Underwriter will comply with all applicable securities laws
and regulations in each jurisdiction in which it purchases, offer, sells or
delivers Class A-1 Notes or has in its possession or distributes the Prospectus
or any other offering material in all cases at its own expense.
IV. The Manager hereby directs the Issuer Trustee to do each of the
things (or, as the case may be, not to do the things) specified in Section 5.I.
and the Issuer Trustee acknowledges and accepts that direction.
6. Conditions to the Obligations of the Underwriters. The several
obligations of the Underwriters hereunder are subject to the performance by the
Issuer Trustee and the CBA Parties of their obligations hereunder and to the
following additional conditions:
(a) the Registration Statement shall have become effective, or
if a post-effective amendment is required to be filed under the Securities Act,
such post-effective amendment shall have become effective, not later than 5:00
P.M., New York City time, on the date hereof; and no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
shall be in effect, and no proceedings for such purpose shall be pending before
or threatened by the Commission; the Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Securities Act and in
accordance with Section 5(a) hereof; and all requests for additional information
shall have been complied with to the satisfaction of the Representative;
(b) the representations and warranties of the Issuer Trustee
and the CBA Parties contained herein are true and correct on and as of the
Closing Date as if made on and as of the Closing Date and the representations
and warranties of the Issuer Trustee and CBA Parties in the Basic Documents will
be true and correct on the Closing Date; and the Issuer Trustee and the CBA
Parties shall have complied with all agreements and all conditions on the part
of each to be performed or satisfied hereunder and under the Basic Documents at
or prior to the Closing Date;
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(c) all actions required to be taken and all filings required
to be made by the Manager or the Issuer Trustee under the Securities Act prior
to the Closing Date for the Notes shall have been duly taken or made;
(d) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date: (x) there shall not have occurred any downgrading
in any rating accorded any securities of, or guaranteed by, CBA by any
"nationally recognized statistical rating organization" (as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act) to: (i) "A2" or worse
in the case of the rating accorded by Moody's Investors Services, Inc., (ii) "A"
or worse in the case of a rating accorded by Standard & Poor's (Australia) Pty
Limited or (iii) the equivalent of "A2" or "A" or worse in the case of the
rating accorded by any other "nationally recognized statistical rating
organization" nor (y) shall any notice have been given of any intended or
potential downgrading as is referred to in subclause (x) of this paragraph (d);
(e) since the date of this Agreement, there shall not have
been any material adverse change or any development involving a prospective
material adverse change, in or affecting the general affairs, business,
prospects, management, financial position, stockholders' equity or results of
operations of the Issuer Trustee or any of the CBA Parties, taken as a whole,
otherwise than as set forth or contem plated in the Prospectus, the effect of
which in the judgment of the Representative makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Class A-1
Notes on the Closing Date on the terms and in the manner contemplated in the
Prospectus;
(f) the Representative shall have received on and as of the
Closing Date a certificate of an Authorized Officer of the Issuer Trustee and
each CBA Party, with specific knowledge about the party's financial matters,
satisfactory to the Representative to the effect set forth in subsections (a)
through (e) of this Section;
(g) the Representative shall have received letters, dated the
date of delivery thereof, of (i) Ernst & Young LLP, in form and substance
satisfactory to the Representative and counsel for the Underwriters, confirming
that they are independent public accountants within the meaning of the
Securities Act and the applicable Rules and Regulations and stating in effect
that they have performed certain specified procedures as a result of which they
determined that certain information of an accounting, financial or statistical
nature set forth in the Registration Statement and
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the Prospectus (and any amendments and supplements thereto), agrees with the
accounting records of CBA, excluding any questions of legal interpretation, and
(ii) PriceWaterhouseCoopers, in form and substance satisfactory to the
Representative and counsel for the Underwriters, stating in effect that they
have performed certain specified procedures with respect to the Mortgage Loans;
(h) Skadden, Arps, Slate, Meagher & Flom LLP, special United
States counsel to the Underwriters, shall have furnished to J.P. Morgan their
written opinion, dated the Closing Date, with respect to the Registration
Statement, the Prospectus and other related matters as J.P. Morgan may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(i) Mayer Brown & Platt, United States counsel for the CBA
Parties, shall have furnished to the Representative their written opinion, dated
the Closing Date, substantially in the form of Exhibit A and otherwise in form
and substance satisfactory to the Representative, and such counsel shall have
received such papers and information as they may reasonably request to enable
them to pass upon such matters;
(j) Mayer Brown & Platt, United States federal income tax
counsel for the CBA Parties shall have furnished to the Representative their
written opinion, dated the Closing Date, substantially in the form of Exhibit B
and otherwise in form and substance satisfactory to the Representative, and such
counsel shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(k) Clayton Utz, Australian counsel for the CBA Parties, shall
have furnished to the Representative their written opinion, dated the Closing
Date, in form and substance satisfactory to the Representative, and such counsel
shall have received such papers and information as they may reasonably request
to enable them to pass upon such matters;
(l) Clayton Utz, Australian tax counsel for the CBA Parties,
shall have furnished to the Representative their written opinion, dated the
Closing Date, in form and substance satisfactory to the Representative, and such
Australian tax counsel shall have received such papers and information as they
may reasonably request to enable them to pass upon such matters;
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(m) Mallesons Stephen Jaques, Australian counsel for the
Issuer Trustee and the Security Trustee, shall have furnished to the
Representative their written opinion, dated the Closing Date, substantially in
the form of Exhibit C and otherwise in form and substance satisfactory to the
Representative, and such counsel shall have received such papers and information
as they may reasonably request to enable them to pass upon such matters;
(n) the Chief Solicitor and General Counsel of CBA shall have
furnished to the Representative their written opinion, dated the Closing Date,
substantially in the form of Exhibit D and otherwise in form and substance
satisfactory to the Representative, and such counsel shall have received such
papers and information as they may reasonably request to enable them to pass
upon such matters;
(o) Counsel to the Interest Rate Swap Provider and Currency
Swap Providers shall have furnished to the Representative their written opinion
dated the Closing Date, in form and substance satisfactory to the
Representative, and such counsel shall have received such papers and information
as they may reasonably request to enable them to pass upon such matters;
(p) the Representative shall have received a letter or letters
from each counsel delivering any written opinion to any Rating Agency in
connection with the transaction described in this Agreement which opinion is not
otherwise described in this Agreement allowing the Representative to rely on
such opinion as if it were addressed to the Representative;
(q) the Representative shall have received copies of letters
from Moody's Investors Service, Inc. and Standard & Poor's (Australia) Pty
Limited and Fitch IBCA (the "Rating Agencies") stating that the Class A-1 Notes
have been rated AAA or its equivalent by the Rating Agencies;
(r) the Class A-1 Notes shall have been admitted to the
Official List of the London Stock Exchange or such other exchange as the parties
shall agree upon or the Representative shall be satisfied that such listing will
be granted after the Closing Date but in any event, prior to the first Payment
Date for the Class A-1 Notes;
(s) the Representative shall have received evidence
satisfactory to it and its counsel that on or prior to the Closing Date the
Class A-2 Notes and the
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Class B Notes have been duly authorized, executed, authenticated, issued and
delivered pursuant to the Basic Documents; and
(t) on or prior to the Closing Date the Issuer Trustee and the
CBA Parties shall have furnished to the Representative such further certificates
and documents as the Representative shall reasonably request.
7. (a) Indemnification and Contribution. Each of the CBA Parties agrees
jointly and severally to indemnify and hold harmless each Underwriter, each
affiliate of an Underwriter that assists such Underwriter in the distribution of
the Class A-1 Notes and each person, if any, that controls any Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against (x) any and all losses, claims, damages and
liabilities (including, without limitation, the legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the CBA Parties shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and (y) any and all legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim
asserted caused by any untrue statement or alleged untrue statement of material
fact contained in any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated in or
necessary to make the statements in not misleading, except in (i) insofar as any
such losses, claims, damages, liabilities, legal fees and other expenses are
caused by any untrue statement or omission or alleged untrue statement or
omission made (A) in reliance upon and in conformity with information relating
to any Underwriter furnished to a CBA Party in writing by such Underwriter
through J.P. Morgan expressly for use therein or (B) in the Prepayment and Yield
Information (as defined in the next paragraph); or (ii) that such indemnity with
respect to any preliminary prospectus or the Prospectus shall not inure to the
benefit of any Underwriter (or any person controlling any Underwriter) from whom
the person asserting any such loss, claim, damage or liability, purchased the
Class A-1 Notes which are the subject hereof, if such person did not receive a
copy of the Prospectus (or the Prospectus as amended or supplemented) at or
prior to the confirmation of the sale of such Class A-1 Notes to such person,
and where such delivery is required by the Securities Act and the alleged untrue
statement contained in, or omission of a material fact from (i) any preliminary
prospectus was corrected
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in the Prospectus (or the Prospectus as amended or supplemented) or (ii) the
Prospectus was corrected in the Prospectus as amended or supplemented;
For the purposes of this Agreement, the term "Prepayment and Yield
Information" means that portion of the information in any preliminary
prospectus or the Prospectus (or the Prospectus as amended or supplemented) set
forth under the sub-heading "Prepayment and Yield Considerations - Weighted
Average Lives", including the table entitled "Percent of Initial Principal
Outstanding of the Following Percentages of Constant Prepayment Rate", that is
not Pool Information; provided, however, that information set forth under that
sub-heading that is not Pool Information shall not constitute Prepayment and
Yield Information to the extent such information is inaccurate or misleading in
any material respect as a result of it being based on Pool Information that is
inaccurate or misleading in any material respect. "Pool Information" means the
information furnished by magnetic tape, diskette or any other computer readable
format, or in writing to the Underwriters by any CBA Party regarding the
Mortgage Loans.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Manager, its directors, its officers who sign
the Registration Statement, the Issuer Trustee and CBA and each person that
controls a CBA Party or the Issuer Trustee within the meaning of Section 15 of
the Securities Act and Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the CBA Parties to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the CBA
Parties in writing by such Underwriter through J.P. Morgan expressly for use in
the Registration Statement, the Prospectus, any amendment or supplement thereto,
or any preliminary prospectus.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any person in respect of which indemnity may be sought pursuant
to subsection (a) or (b) above, such person (the "Indemnified Person") shall
promptly notify the person against whom such indemnity may be sought (the
"Indemnifying Person") in writing, and the Indemnifying Person, upon request of
the Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person
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shall have mutually agreed to the contrary, (ii) the Indemnifying Person has
failed within a reasonable time to retain counsel reasonably satisfactory to the
Indemnified Person or (iii) the named parties in any such proceeding (including
any impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters,
each affiliate of any Underwriter which assists such Under writer in the
distribution of the Notes and such control persons of Underwriters shall be
designated in writing by J.P. Morgan and any such separate firm for the Manager,
its directors, its officers who sign the Registration Statement, CBA and the
Issuer Trustee and such control persons of each of the Issuer Trustee and the
CBA Parties shall be designated in writing by that party. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by the
third sentence of this subsection (c), the Indemnifying Person agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such Indemnifying Person of the aforesaid request and (ii) such
Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemni fied Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from
all liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in subsection (a) or
(b) above is unavailable to an Indemnified Person in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such subsection, in lieu of indemnifying such Indemnified Person
thereunder, shall
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contribute to the amount paid or payable by such Indemnified Person as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the CBA Parties and the
Issuer Trustee on the one hand and the Underwriters on the other hand from the
offering of the Class A-1 Notes or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the CBA Parties and the Issuer Trustee on the one
hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the CBA Parties and the Issuer Trustee on the one hand and the Underwriters
on the other shall be deemed to be in the same respective proportions as the net
proceeds from the offering (before deducting expenses) received by the CBA
Parties and the Issuer Trustee and the total underwriting discounts and the
commissions received by the Underwriters bear to the aggregate public offering
price of the Class A-1 Notes. The relative fault of the CBA Parties and the
Issuer Trustee on the one hand and the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by a CBA Party or the Issuer
Trustee or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The CBA Parties, the Issuer Trustee and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in this subsection (d)
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall an Underwriter be required to
contribute any amount in excess of the amount by which the total price at which
the Notes underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
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entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 7 are several in proportion to the respective principal amount of Class
A-1 Notes set forth opposite their names in Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(e) The indemnity and contribution agreements contained in
this Section 7 and the representations and warranties of the Issuer Trustee and
the CBA Parties set forth in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Issuer Trustee or a CBA Party, its
officers or directors or any other person controlling the Issuer Trustee or a
CBA Party and (iii) acceptance of and payment for any of the Class A-1 Notes.
(f) To the extent that any payment of damages by a CBA Party
pursuant to subsection (a) above is determined to be a payment of damages
pursuant to Prudential Statement C2- "Funds Management and Securitisation" such
payment shall be subject to the terms of Section 89 of that statement.
8. Termination. Notwithstanding anything herein contained, this
Agreement may be terminated in the absolute discretion of J.P. Morgan, by notice
given to the Issuer Trustee and each CBA Party, if after the execution and
delivery of this Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the London Stock Exchange or the Australian
Stock Exchange, (ii) trading of any securities of or guaranteed by the Issuer
Trustee or any CBA Party shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York, Sydney or London shall have been declared by either
United States Federal, New York State, Commonwealth of Australia, New South
Wales State or United Kingdom authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of J.P. Morgan, is material and adverse
and which, in the judgment of J.P. Morgan, makes it impracticable to market the
Class A-1 Notes on the terms and in the manner contem plated in the Prospectus.
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9. Effectiveness of Agreement; Default of Underwriters. This Agreement
shall become effective upon the later of (x) execution and delivery hereof by
the parties hereto and (y) release of notification of the effectiveness of the
Registration Statement (or, if applicable, any post-effective amendment) by the
Commission.
If on the Closing Date any one or more of the Underwriters shall fail
or refuse to purchase Class A-1 Notes which it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Class A-1 Notes
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate principal amount of the
Class A-1 Notes to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the principal amount of Class A-1
Notes set forth opposite their respective names in Schedule I bears to the
aggregate principal amount of Class A-1 Notes set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as J.P.
Morgan may specify, to purchase the Class A-1 Notes which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the principal amount of Class A-1 Notes
that any Underwriter has agreed to purchase pursuant to Section 1 be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such principal
amount of Class A-1 Notes without the written consent of such Underwriter. If
on the Closing Date any Underwriter or Underwriters shall fail or refuse to
purchase Class A-1 Notes which it or they have agreed to purchase hereunder on
such date, and the aggregate principal amount of Class A-1 Notes with respect to
which such default occurs is more than one-tenth of the aggregate principal
amount of Class A-1 Notes to be purchased on such date, and arrangements
satisfactory to J.P. Morgan and the Manager for the purchase of such Notes are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the CBA
Parties and the Issuer Trustee. In any such case either J.P. Morgan or the
Manager shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
10. Expenses Upon Termination. If this Agreement shall be terminated by
the Underwriters, or any of them, because of any failure or refusal on the part
of the Issuer Trustee or a CBA Party to comply with the terms or to fulfill any
of the
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conditions of this Agreement, or if for any reason the Issuer Trustee or a CBA
Party shall be unable to perform its obligations under this Agreement or any
condition of the Underwriters' obligations cannot be fulfilled, the CBA Parties
jointly and severally agree to reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and expenses of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
11. Successors. This Agreement shall inure to the benefit of and be
binding upon the CBA Parties, the Issuer Trustee, the Underwriters, each
affiliate of any Underwriter which assists such Underwriter in the distribution
of the Class A-1 Notes, any controlling persons referred to herein and their
respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of Notes from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
12. Certain Matters Relating to the Issuer Trustee.
(a) The Issuer Trustee enters into this Agreement only in its
capacity as Trustee of the Trust and in no other capacity. A liability incurred
by the Issuer Trustee acting in its capacity as Issuer Trustee of the Trust
arising under or in connection with this Agreement is limited to and can be
enforced against the Issuer Trustee only to the extent to which it can be
satisfied out of Assets of the Trust out of which the Issuer Trustee is actually
indemnified for the liability. This limitation of the Issuer Trustee's liability
applies despite any other provision of this Agreement (other than section 12(c))
to the contrary and extends to all liabilities and obligations of the Issuer
Trustee in any way connected with any representation, warranty, conduct,
omission, agreement or transaction related to this Agreement.
(b) Each Underwriter and each of the CBA Parties may not sue
the Issuer Trustee in respect of liabilities incurred by the Issuer Trustee,
acting in its capacity as Issuer Trustee of the Trust, in any capacity other
than as Issuer Trustee of the Trust including seeking the appointment of a
receiver (except in relation to the Assets of the Series Trust), or a
liquidator, an administrator or any similar person to the Issuer Trustee or
prove in any liquidation, administration or arrangements of or affecting the
Issuer Trustee (except in relation to the Assets of the Trust).
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(c) The provisions of this section 12 will not apply to any
obligation or liability of the Issuer Trustee to the extent that it is not
satisfied because under the Master Trust Deed, this Agreement or any other
Transaction Document in relation to the Trust or by operation of law there is a
reduction in the extent of the Issuer Trustee's indemnification or exoneration
out of the Assets of the Trust, as a result of the Issuer Trustee's fraud,
negligence or wilful default (as defined in the Series Supplement).
(d) It is acknowledged that the Relevant Parties (as defined
in the Series Supplement) are responsible under the Basic Documents for
performing a variety of obligations relating to the Trust. No act or omission of
the Issuer Trustee (including any related failure to satisfy its obligations and
any breach of representations and warranties under this Agreement) will be
considered fraudulent, negligent or a wilful default for the purpose of section
12(c) to the extent to which the act or omission was caused or contributed to by
any failure by any Relevant Party (other than any person for whom the Issuer
Trustee is responsible or liable for in accordance with any Transaction
Document) to fulfil its obligations relating to the Trust or by any other act or
omission of a Relevant Party or any other such person.
13. Actions by Representative; Notices. Any action by the Underwriters
hereunder may be taken by J.P. Morgan Securities Inc. on behalf of the
Underwriters, and any such action taken by J.P. Morgan Securities Inc. shall be
binding upon the Underwriters. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be given to J.P. Morgan Securities Inc., 60 Wall Street, New
York, New York 10060-0060 (Facsim ile No.: (212) 648-5909); Attention:
Structured Syndicate Desk. Notices to CBA and the Manager shall be given to it
at Commonwealth Bank of Australia, 48 Martin Place, 7th Floor, Sydney, NSW, 2000
(Facsimile No.:(612) 9312-0988); Attention: Leanne Leong, Group Treasury.
Notices to the Issuer Trustee shall be given to it at Perpetual Trustees
Australia Limited, Level 3, Hunter Street, Sydney, NSW, 2000 (Facsimile
No.:(612) 9221-7870); Attention: Manager, Securitisation.
14. Counterparts; Applicable Law. This Agreement may be signed in
counterparts, each of which shall be an original and all of which together shall
constitute one and the same instrument. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to the conflicts of laws provisions thereof.
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15. Submission to Jurisdiction. Each of the CBA Parties and the Issuer
Trustee submits to the non-exclusive jurisdiction of any Federal or State court
in the City, County and State of New York, United States of America, in any
legal suit, action or proceeding based on or arising under this Agreement and
agrees that all claims in respect of such suit or proceeding may be determined
in any such court. Each of the CBA Parties and the Issuer Trustee waives, to the
extent permitted by law, the defense of an inconvenient forum or objections to
personal jurisdiction with respect to the maintenance of such legal suit, action
or proceedings any objection to the laying of the venue of any such suit, action
or proceeding in any Federal or State court in the City, County and State of New
York, United States of America. To the extent that each of the CBA Parties and
the Issuer Trustee or any of their respective properties, assets or revenues may
have or may hereafter become entitled to, or have attributed to it, any right of
immunity from any legal action, suit or proceeding, from setoff or counterclaim,
from the jurisdiction of any court, from service of process, attachment upon or
prior to judgment, or attachment in aid of execution of judgment, or from
execution of a judgment, or other legal process or proceeding for the giving of
any relief or for the enforcement of a judgment, in any such jurisdiction, with
respect to its obligations, liabilities or any other matter under or arising out
of or in connection with the issuance of the Class A-1 Notes or this Agreement,
each of the CBA Parties and the Issuer Trustee hereby irrevocably and
unconditionally waives and agrees not to plead or claim any such immunity and
consents to such relief and enforcement.
16. Appointments of Process Agent. (a) Each of the CBA Parties hereby
designates and appoints Commonwealth Bank of Australia, 599 Lexington Avenue,
New York, NY10022 (Attention: Ian Phillips) (the "CBA Process Agent"), as its
authorized agent, upon whom process may be served in any legal suit, action or
proceeding based on or arising under or in connection with this Agreement, it
being understood that the designation and appointment of Commonwealth Bank of
Australia, 599 Lexington Avenue, New York, NY10022 (Attention: Ian Phillips) as
such authorized agent shall become effective immediately without any further
action on the part of the each of the CBA Parties. Such appointment shall be
irrevocable to the extent permitted by applicable law and subject to the
appointment of a successor agent in the United States on terms substantially
similar to those contained in this Section 16 and reasonably satisfactory to
J.P. Morgan. If the CBA Process Agent shall cease to act as agent for service of
process, each of the CBA Parties shall appoint, without unreasonable delay,
another such agent, and notify J.P. Morgan of such appointment. Each of the CBA
Parties represents to the Underwriters that it has
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notified the CBA Process Agent of such designation and appointment and that the
CBA Process Agent has accepted the same in writing. Each of the CBA Parties
hereby authorizes and directs the CBA Process Agent to accept such service. Each
of the CBA Parties further agrees that service of process upon the CBA Process
Agent and written notice of that service to it shall be deemed in every respect
effective service of process upon it in any such legal suit, action or
proceeding. Nothing in this Section 16 shall affect the right of any Underwriter
or any person controlling any Underwriter to serve process in any other manner
permitted by law.
(b) The Issuer Trustee hereby designates and appoints [ ] (the
"IT Process Agent"), as its authorized agent, upon whom process may be served in
any legal suit, action or proceeding based on or arising under or in connection
with this Agreement, it being understood that the designation and appointment of
[ ] as such authorized agent shall become effective immediately without any
further action on the part of the Issuer Trustee. Such appointment shall be
irrevocable to the extent permitted by applicable law and subject to the
appointment of a successor agent in the United States on terms substantially
similar to those contained in this Section 16 and reasonably satisfactory to
J.P. Morgan. If the IT Process Agent shall cease to act as agent for service of
process, the Issuer Trustee shall appoint, without unreasonable delay, another
such agent, and notify J.P. Morgan of such appointment. The Issuer Trustee
represents to the Underwriters that it has notified the IT Process Agent of such
designation and appointment and that the IT Process Agent has accepted the same
in writing. The Issuer Trustee hereby authorizes and directs the IT Process
Agent to accept such service. The Issuer Trustee further agrees that service of
process upon the IT Process Agent and written notice of that service to it shall
be deemed in every respect effective service of process upon it in any such
legal suit, action or proceeding. Nothing in this Section 16 shall affect the
right of any Underwriter or any person controlling any Underwriter to serve
process in any other manner permitted by law.
17. Currency Indemnity. The obligations of the parties to make payments
under this Agreement are in U.S. dollars. Such obligations shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in any currency other than U.S. dollars or any other realization in
such other currency, whether as proceeds of set-off security, guarantee,
distributions, or otherwise, except to the extent to which such tender recovery
or realization shall result in the receipt by the party which is to receive such
payment of the full amount of the U.S. dollars expressed to be payable under
this Agreement. The party liable to make such payment agrees to indemnify the
party which is to receive such payment for the
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amount (if any) by which the full amount of U.S. dollars exceeds the amount
actually received, and, in each case, such obligation shall not be affected by
judgment being obtained for any other sums due under this Agreement. The parties
agree that the rate of exchange which shall be used to determine if such tender,
recovery or realization shall result in the receipt by the party which is to
receive such payment of the full amount of U.S. dollars expressed to be payable
under this Agreement shall be the noon buying rate in New York City for cable
transfers in such foreign currency as certified for customs purposes by the
Federal Reserve Bank of New York of the business day preceding that on which the
judgment becomes a final judgment or, if such noon buying rate is not available,
the rate of exchange shall be the rate at which in accordance with normal
banking procedures J.P. Morgan Securities Inc. could purchase United States
dollars with such foreign currency on the business day preceding that on which
the judgment becomes a final judgment.
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<PAGE>
If the foregoing is in accordance with your understanding, please sign
and return the enclosed counterparts hereof.
Very truly yours,
COMMONWEALTH BANK OF
AUSTRALIA
By:_______________________
Name:
Title:
SECURITISATION ADVISORY SER
VICES PTY LIMITED
By:_______________________
Name:
Title:
PERPETUAL TRUSTEE COMPANY
LIMITED in its capacity as Trustee of
the Trust
By:_______________________
Name:
Title:
Accepted: __________, 2000
J.P. Morgan Securities Inc.
Acting on behalf of itself and the several Underwriters listed in Schedule I
hereto.
By:___________________________
Name:
Title:
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SCHEDULE I
PRINCIPAL AMOUNT OF
SECURITIES TO BE PURCHASED
Underwriter
J.P. Morgan Securities Inc...................................
Merrill Lynch, Pierce Fenner & Smith, Incorporated...........
Credit Suisse First Boston Corporation.......................
Deutsche Bank Securities Inc.................................
Total............. ===============
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SCHEDULE II
List of 128F(9) Associates of the Issuer Trustee
[Perpetual to provide]
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SCHEDULE III
List of 128F(9) Associates of the CBA Parties
[CBA to provide]
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EXHIBIT A
Form of Mayer Brown Opinions
[To be replaced by draft Mayer Brown opinions as and when agreed]
(Insert customary qualifications, exceptions and assumptions)
1. to the extent that execution and delivery of the Underwriting Agreement and
any Basic Document is a matter governed by the laws of the State of New York:
the Underwriting Agreement and each such Basic Document has been duly executed
and delivered by each of the CBA Parties and the Issuer Trustee and each such
Basic Document constitutes a valid and binding obligation of the Issuer Trustee
and each CBA Party which is party to that Basic Document and is enforceable
against each of the CBA Parties and the Issuer Trustee in accordance with its
terms, subject as to enforceability to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation or other similar laws
affecting the enforcement of creditors rights generally and to general equitable
principles; and the Note Trust Deed has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act");
2. no consent, approval, authorization, order, license, registration or
qualification of or with any court or governmental agency or body is required
for the issue and sale of the Class A-1 Notes, the performance by each CBA Party
and the Issuer Trustee of its obligations under this Agreements and the Basic
Document or the consummation of the other transactions contemplated by this
Agreement or the Basic Documents, except (a) such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as have been
obtained under the Securities Act of 1933, as amended (the "Securities Act") and
the Trust Indenture Act (as to which we express our opinion in paragraph 1) and
(b) as may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Class A-1 Notes by the Underwriters;
3. the statements in the Prospectus under "Risk Factors, "Description of the
Trust," "Description of the Transaction Documents", "Legal Aspects of the
Housing Loans" and "Description of Class A-1 Notes," insofar as such statements
constitute a summary of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to such legal
matters, documents or proceedings; the statements in the Registration Statement
and the Prospectus under the headings "United States Federal Income Tax Matters"
and "ERISA Consider-
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ations," "Legal Investment Considerations", to the extent they constitute
descriptions of matters of law or legal conclusions with respect thereto, have
been prepared or reviewed by such counsel and are correct in all material
respects;
4. the Registration Statement has become effective under the Securities Act and,
to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under the Securities
Act and no proceedings for that purpose have been instituted or threatened by
the Commission; such counsel is of the opinion that the Registration Statement
and the Prospectus and any amendments and supplements thereto (other than any
accounting, statistical or financial data included therein, as to which such
counsel need express no opinion) comply as to form in all material respects with
the requirements of the Securities Act and the Trust Indenture Act; and such
counsel believes that (other than the accounting, statistical or financial data
included therein, as to which such counsel need express no belief and other than
that part of the Registration Statement which constitutes the Form T-1 of the
Trustee under the Trust Indenture Act) the Registration Statement and the
Prospectus at the time the Registration Statement became effective did not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and that the Prospectus, as amended or supplemented, if applicable,
does not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
5. to the best of our knowledge, there are no material contracts, indentures or
other documents of a character required to be described or referred to in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement other than those referred to or described in the
Prospectus;
6. the offer, sale and delivery of the A$ Securities to the Dealers and the
initial resale of the A$ Securities by the Dealers contemplated by the Dealer
Agreement and the offer, sale, delivery and initial resale of any Redraw Bonds
(as defined in the Basic Documents) that are issued as contemplated by the Basic
Documents do not require registration under the Securities Act, it being
understood that we do not express any opinions as to any subsequent resale of
any A$ Security;
7. each of the CBA Parties and the Issuer Trustee has legally, validly and
irrevocably submitted to the non-exclusive jurisdiction of any Federal or State
court in the City, County and State of New York, United States of America in
respect of any suit arising out of or relating to the Underwriting Agreement and
has legally, validly and irrevocably appointed CT Corporation System as the
authorized agent of
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<PAGE>
each of the CBA Parties and Issuer Trustee for the purpose described in Section
of the Underwriting Agreement;
_
8. the Trust is not, and if each party to the Basic Documents performs its
obligations under the Basic Documents and consummates the transactions
contemplated by the Basic Documents, the Trust will not be an "investment
company" required to be regulated under the Investment Company Act of 1940, as
amended.
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EXHIBIT B
Form of Clayton Utz Opinion
[To be replaced by draft Clayton Utz opinions as and when agreed]
(Insert customary assumptions, qualifications and exceptions)
1. Each of CBA and the Manager have been duly incorporated and is validly
existing under the laws of the Australian Capital Territory and New South Wales,
respectively, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
2. each of the CBA Parties is capable of suing and being sued in its
corporate name;
3. each of the CBA Parties has:
(a) the corporate power to enter into and perform its
obligations under the Underwriting Agreement and each of
the Basic Documents to which it is a party and the Powers
of Attorney;
(b) taken all corporate action to authorize the execution
and delivery of, and the performance of its
obligations under, the Underwriting Agreement and
each Basic Document to which it is a party; and
(c) duly authorized, executed and delivered the Underwriting
Agreement and each Basic Document to which it is a party.
4. (a) the obligations of each CBA Party in each Basic Document
to which it is a party constitute its legal, valid and
binding obligations enforceable in competent courts of
the relevant jurisdictions.
(b) upon issue in accordance with the Master Trust Deed
and the Series Supplement, the Notes will constitute
legal, valid and binding obligations of the Issuer
Trustee, entitling the holder to the benefits
provided by the Security Trust Deed, and in the
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case of the Class A-1 Notes, the Note Trust Deed in
each case enforceable in competent courts of the
relevant jurisdictions.
(c) clause 13.1 of the Security Trust Deed, which provides
the order of application of payments, is valid and
enforceable and
(d) clause 7 of the Master Trust Deed will operate to
stop an Noteholder from seeking to wind up the
Trustee.
5. all authorizations under the laws of each relevant jurisdiction now
obtainable and required by either CBA Party in connection with the execution,
delivery, performance, validity or enforceability of the Underwriting Agreement
and the Basic Documents and to make the Underwriting Agreement and Basic
Documents admissible as evidence have been obtained or effected and are in full
force and effect. No Authorization under the laws of the relevant jurisdictions
is required for the issue or distribution of the Prospectus in the United States
of America and the United Kingdom;
6. no stamp or registration or similar taxes or charges are payable under the
laws of any relevant jurisdiction in connection with the execution, delivery,
performance and enforcement any of the Underwriting Agreement and the Basic
Documents other than nominal duty, financial institutions duty and debits tax;
7. it is not necessary under the laws of any relevant jurisdiction to file,
register or record the Underwriting Agreement or the Basic Documents, except
that it is necessary to register the Security Trust Deed under the Powers of
Attorney. We confirm that the Security Trust Deed was lodged for registration no
later than 45 days after the date it was executed;
8. CBA has full power and authority to sell and assign the Mortgage Loan Rights
to the Issuer Trustee as trustee of the Trust pursuant to the Series Supplement
and has duly authorized such sale and assignment to the Issuer Trustee as part
of the Trust by all necessary corporate action;
9. following completion of the procedures in the Sale Notice for the transfer of
Mortgage Loan Rights from CBA to the Issuer Trustee (including, without
limitation payment of the purchase price by the Trustee to CBA) (i) CBA will
transfer title in the Mortgage Loan Rights to the Trust, subject to no prior
lien, mortgage, security interest, pledge, adverse claim, change or encumbrance
and (ii) those Mortgage Loan Rights would not be considered assets of CBA in the
event CBA is wound up;
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<PAGE>
10. our searches have disclosed no registered Security Interest created by any
CBA Party that affects the Mortgage Loan Rights.
11. having regard only to the terms of the Basic Documents, we do not believe
that the Issuer Trustee or the Noteholders will be on notice that any of the
transactions contemplated by or effected, or to be effected, under the Basic
Documents are uncommercial transactions within the meaning of Section 588FB(1)
of the Corporations Law;
12. if an administrator is appointed in respect of the Issuer Trustee under Part
5.3A of the Corporations Law, the moratorium on disposal of the Issuer Trustee's
assets and enforcement of securities over the Issuer Trustee's assets will not
affect those assets held by the Issuer Trustee as trustee of the Trust;
13. there are no provisions of the Corporations Law under which payments made
by any CBA Party under and in accordance with the Basic Documents might be set
aside other than [specify any applicable exceptions];
14. we believe that it is unlikely that a liquidator of the Issuer Trustee would
characterize the Mortgage Loan Rights as satisfying any of the descriptions set
out in Division 7A of Part 5.6 of the Corporations Law or would wish to disclaim
such an asset. If, however, the liquidator sought to disclaim any of these
assets that would not affect the continued existence of that asset as security
for the Security Trustee and Mortgagees under the Security Trust Deed, it would
merely release the Issuer Trustee from any liabilities it owed as holders of the
relevant assets;
15. without limiting the above, each of the Powers of Attorney: (a) has been
granted by CBA in accordance with its constituent documents; (b) validly
empowers each attorney referred to in it to execute Transfers of Mortgage Loan
Rights in accordance with its terms; (c) is irrevocable; and (d) is enforceable
against CBA notwithstanding an insolvency, liquidation or receivership (but not
administration) of CBA;
16. other than the documents authorized to be executed pursuant to the Powers of
Attorney, there are no other documents that may need to be executed, or things
which may need to be done, at any time following the occurrence of a [Title
Perfection Event] by or on behalf of CBA, which the Issuer Trustee cannot do in
its own name, in order for the Issuer Trustee to become registered in all
relevant jurisdictions as the mortgagee or equivalent of the purchased Security
Interests;
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<PAGE>
17. the Security Trust Deed is registrable under the Corporations Law and
constitutes a valid security having a first ranking priority over any other
secured or unsecured obligations of the Issuer Trustee (including in an
insolvency of the Issuer Trustee), subject only to the Prior Interest;
18. the charge created by the Security Trust Deed is a floating charge over the
Charged Property (as defined in the Security Trust Deed);
19. if the Issuer Trustee is wound up and the Security Trust Deed is enforced,
any proceeds realized from the Charged Property (as defined in the Security
Trust Deed) will be required to be applied in the order set out in clause 13 of
the Security Trust Deed (subject to the possibility that in certain
circumstances the costs and expenses of the winding up may be charged against
the Charged Property). Subject to the qualifications in this opinion, the
secured creditors of the Issuer Trustee will be paid in priority to the
unsecured creditors of the Issuer Trustee;
20. if the Security Trustee is wound up, the Charged Property (as defined in the
Security Trust Deed) will not be available to its creditors, other than
creditors to whom debts were incurred by the Security Trustee acting in its
capacity as such and in accordance with the provisions of the Security Trust
Deed;
21. if at the time that the Issuer Trustee executes the Security Trust Deed,
none of the Secured Creditors (as defined in the Security Trust Deed) are
creditors of the Issuer Trustee, then the creation of the charge under the
Security Trust Deed will not be an unfair preference for the purposes of Section
588FA of the Corporations Law. As the Class A-1 Noteholders will be Secured
Creditors under the Security Trust Deed, it follows that the payments made by
the Issuer Trustee or the Security Trustee to the Class A-1 Noteholders will not
be unfair preferences for the purposes of Section 588FA of the Corporations Law;
22. we are not aware of any facts that would cause a court to determine that the
issue of the Class A-1 Notes constitutes an unfair loan under Section 588FD of
the Corporations Law;
23. if a liquidator is appointed in relation to the Issuer Trustee, neither the
liquidator nor any creditor claiming under that liquidation would be able to
contest successfully or avoid or have set aside: (a) the entry into the Basic
Documents by the Issuer Trustee; (b) the acquisition by the Issuer Trustee of
the Mortgage Loan Rights the subject of the Security Trust Deed; or (c) the
Charge created under the Security Trust Deed. The Charged Property (as defined
in the Security Trust Deed) would not
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be consolidated with the assets of the Issuer Trustee or CBA in the event of any
insolvency, liquidation, receivership or administration of the Issuer Trustee or
CBA;
24. the Trust and the security trust established under the Security Trust Deed
are properly constituted and the Issuer Trustee and the Security Trustee have
been properly appointed;
25. those parts of the Registration Statement and the Prospectus that describe
the Basic Documents, the effect of the Basic Documents under the laws of the
relevant jurisdictions, the status of the CBA Parties, the Issuer Trust and the
Security Trustee, the information set out in the sections headed "Australian
Disclaimers", "Description of the Assets of the Trust", "Risk Factors", "Legal
Aspects of the Housing Loans", "Certain Legal Aspects of the Mortgage Loans",
Australian Tax Matters" and "Enforcement of Foreign Judgments in Australia", are
(insofar as they relate to matters of Australian law) a fair description, and an
accurate summary, of those matters to the extent that they are relevant to the
issue, sale and purchase or other transfer or disposal of, and holding of, the
Class A-1 Notes and, to the extent they constitute descriptions of matters of
law or legal conclusions with respect thereto, have been prepared or reviewed by
us and are correct in all material respects;
26. provided that the Class A-1 Notes are listed on the London Stock Exchange,
we believe that the public offer test in section 128F of the Income Tax
Assessment Act will be satisfied and, therefore, all amounts payable by the
Issuer Trustee in respect of the Class A-1 Notes may be paid free and clear of
and without deduction for or on account of any Australian tax, duty, levy,
impost, fee or charge;
27. any final and conclusive judgment of a court of the State of New York, USA,
having jurisdiction recognized by the relevant jurisdiction, in respect of an
obligation of a CBA Party under a Basic Document, which is for a fixed sum of
money, would be enforceable by action in the courts of each relevant
jurisdiction without a re-examination of the merits of the issues determined by
the proceedings in the New York court unless: (a) the proceedings in the New
York court involved a denial of the principles of natural justice; (b) the
judgment is contrary to the public policy of the relevant jurisdiction; (c) the
judgment was obtained by fraud or duress or was based on a clear mistake of
fact; (d) the judgment is a penal or revenue judgment; or (e) there has been a
prior judgment in another court between the same parties concerning the same
issues as are dealt with in the New York judgment;
28. it is not necessary for the Note Trustee, the Representative, or any
Underwriter to be licensed, qualified or otherwise entitled to carry on business
under the laws of any relevant jurisdiction in order to enforce its rights under
the Underwriting Agree-
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ment or any Basic Document or by reason only of the execution, delivery and
performance of the Underwriting Agreement or any Basic
Document;
29. none of the Note Trustee, the Representative, nor any Underwriter will be
taken to be domiciled or resident in Australia for the purposes of the Income
Tax Assessment Act 1936 or carrying on a business in Australia solely by reason
of the execution, delivery, performance or enforcement of, or receipt of any
payment under the Underwriting Agreement or any Basic Document;
30. neither of the CBA Parties nor any of their properties or assets has any
immunity from the jurisdiction of any court or from legal process under the laws
of any relevant jurisdiction;
32. (a) Under the law of each relevant jurisdiction, the law of New
South Wales, as specified in the Basic Documents (other than
the Underwriting Agreement) will be applied to the Basic
Documents if the choice of law was made in good faith. We are
not aware that the choice of law has been made in bad faith;
(b) Under the law of each relevant jurisdiction, the law of the
State of New York will be applied to the Underwriting
Agreement and the Under writing Agreement will on execution by
each of the parties to it be enforceable in competent courts
of each relevant jurisdiction, if the choice of that law was
made in good faith, and except to the extent that:
(A) there are mandatory provisions of the law of
the relevant jurisdiction which must be
applied to the transac tion covered by;
(B) any term of or any provision of the law of
the State of New York applicable to the
Underwriting Agreement, is contrary to the
public policy of the relevant jurisdiction;
(C) the availability or enforceability of
certain rights and remedies may be governed
or affected by the procedural laws of the
relevant jurisdiction in courts of the
relevant jurisdiction; and
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(D) a court may determine the another court is a
more appropriate forum; and
(c) We are not currently aware of any mandatory provisions within
the terms of sub-paragraph (b)(A) above that affect
enforceability.
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EXHIBIT C
Form of Mallesons, Stephen Jaques Opinion
[To be replaced by draft Mallesons opinions as and when agreed]
(Insert customary assumptions, qualifications and exceptions)
1. Each of the Issuer Trustee and the Security Trustee has been duly
incorporated and is validly existing under the laws of New South Wales as a
corporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
2. Each of the Issuer Trustee and the Security Trustee is capable of
suing and being sued in its corporate name.
3. Each of the Issuer Trustee and the Security Trustee has:
(a) the corporate power to enter into and perform its
obligations under each of the Basic Documents to which it is a party and, in the
case of the Issuer Trustee, the Underwriting Agreement;
(b) taken all corporate action to authorize the
execution and delivery of, and the performance of its obligations under, each
Basic Document to which it is a party (including, in the case of the Issuer
Trustee, the Underwriting Agreement and the issue and sale of the Class A-1
Notes); and
(c) duly executed and delivered each Basic Document to
which it is a party and, in the case of the Issuer Trustee, the Underwriting
Agreement.
4. (a) the obligations of each of the Issuer Trustee and
the Security Trustee in each Basic Document to which
it is a party and in the case of the Issuer Trustee,
the Underwriting Agreement, constitutes its legal,
valid and binding obligations enforceable in
competent courts of the relevant jurisdictions.
(b) upon issue (and, in the case of any
Registered Note, entry in the Register) in
accordance with the Master Trust Deed and
the Series Supplement, the Class A-1
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Notes will constitute legal, valid and binding
obligations of the Issuer Trustee, entitling the
holder to the benefits provided by the Note Trust
Deed and the Security Trust Deed, in each case
enforceable in competent courts of the relevant
jurisdictions.
5. All Authorizations under the laws of any relevant jurisdiction now
obtainable and required by either of the Issuer Trustee or the Security Trustee
in connection with the execution, delivery, performance, validity or
enforceability of the Basic Documents and the Underwriting Agreement and to make
the Basic Documents the Underwriting Agreement admissible as evidence have been
obtained or effected and are in full force and effect. No Authorization under
the laws of the relevant jurisdictions is required for the issue or distribution
of the Prospectus in the United States of America and the United Kingdom.
6. Neither of the Issuer Trustee and the Security Trustee is, nor with
the giving of notice or lapse of time or both would either be, in violation of
or in default under its constitution or any note trust deed, mortgage, deed of
trust, loan agreement or other agreement or instrument known to us to which the
it is a party or by which it or any of its properties is bound, except for
violations and defaults which individually and in the aggregate are not material
to that party or to any holder of Class A-1 Notes.
7. The issue and sale of the Class A-1 Notes and the execution,
delivery and performance by the Issuer Trustee of the Class A-1 Notes, the
Underwriting Agreement and the Basic Documents and the consummation of the
transactions therein contemplated will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under, any note
trust deed, mortgage, deed of trust, loan agreement or other agreement or
instrument known to us to which the Issuer Trustee is a party or by which the
Issuer Trustee is bound or to which any of the property or assets of the Issuer
is subject, nor will any such action result in any violation of the provisions
of the constitution of the Issuer Trustee, the Master Trust Deed, or any
applicable law or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Issuer Trustee, or any
of its properties;
8. Each of the Issuer Trustee and the Security Trustee owns, possesses
or has obtained all licenses, permits, certificates, consents, orders, approvals
and other authorizations from, and has made all declarations and filings with,
all federal, state, local and other governmental authorities (including foreign
regulatory agencies), all self-regulatory organizations and all courts and other
tribunals, domestic or foreign, necessary to own or lease, as the case may be,
and to operate its properties and to
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carry on its business as conducted as of the date hereof, and neither the Issuer
Trustee nor the Security Trustee has received any actual notice of any
proceeding relating to revocation or modification of any such license, permit,
certificate, consent, order, approval or other authorization, except as
described in the Registration Statement and the Prospectus; and each of the
Issuer Trustee and the Security Trustee is in compliance with all laws and
regulations relating to the conduct of its business as conducted as of the date
of the Prospectus;
9. The Issuer Trustee has full power and authority to purchase the
Mortgage Loan Rights from CBA as part of the Trust pursuant to the Series
Supplement and has duly authorized such purchase from CBA as part of the Trust
by all necessary corporate action;
10. Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental investigations, actions, suits or proceedings
pending or, to the best of our knowledge, threatened in any relevant
jurisdiction against or affecting either the Issuer Trustee or the Security
Trustee or any property of the Issuer Trustee or the Security Trustee, or to
which either the Issuer Trustee or Security Trustee is or may be a party or to
which any property of the Issuer Trustee or the Security Trustee is or may be
the subject (i) asserting the invalidity of any of the Basic Documents to which
it is a party or, in the case of the Issuer Trustee, the Underwriting Agreement,
(ii) seeking to prevent the issuance of the Class A-1 Notes or the consummation
of any of the transactions contemplated by any of the Basic Documents to which
it is a party or, in the case of the Issuer Trustee, the Underwriting Agreement,
(iii) that may adversely affect the relevant jurisdiction federal or state
income, excise, franchise or similar tax attributes of the Class A-1 Notes, (iv)
that could materially and adversely affect the obligation of the Issuer Trustee
or the Security Trustee under any of the Basic Documents to which it is a party
or, in the case of the Issuer Trustee, the Underwriting Agreement or (v) which,
if determined adversely to that party, could individually or in the aggregate
reasonably be expected to have a material adverse effect on the general affairs,
business, prospects, management, financial position, stockholders' equity or
results of operations of that party and its subsidiaries taken as a whole or
that would reasonably be expected to materially adversely affect the interests
of the holders of the Class A-1 Notes;
11. the Trust, and the Security Trust established under the Security
Trust Deed, are properly constituted and the Issuer Trustee and the Security
Trustee have been properly appointed;
12. any final and conclusive judgment of a court of the State of New
York, USA, having jurisdiction recognized by the relevant jurisdiction, in
respect of an
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obligation of the Issuer Trustee or the Security Trustee under the Underwriting
Agreement or under a Basic Document, which is for a fixed sum of money, would be
enforceable by action in the courts of each relevant jurisdiction without a
re-examination of the merits of the issues determined by the proceedings in the
New York court unless: (a) the proceedings in the New York court involved a
denial of the principles of natural justice; (b) the judgment is contrary to the
public policy of the relevant jurisdiction; (c) the judgment was obtained by
fraud or duress or was based on a clear mistake of fact; (d) the judgment is a
penal or revenue judgment; or (e) there has been a prior judgment in another
court between the same parties concerning the same issues as are dealt with in
the New York judgment;
13. neither the Issuer Trustee, nor the Security Trustee, nor any
of their properties or assets has any immunity from the jurisdiction of any
court or from legal process under the laws of any relevant jurisdiction;
14. (a) under the law of each relevant jurisdiction, the law
of New South Wales, as specified in the Basic
Documents (other than the Underwriting Agreement,
will be applied to the Basic Documents if the choice
of law was made in good faith. We are not aware that
the choice of law has been made in bad faith;
(b) under the law of each relevant jurisdiction, the law
of the State of New York will be applied to the
Underwriting Agreement and the Underwriting Agreement
will on execution by each of the parties to it be
enforceable in competent courts of each relevant
jurisdiction, if the choice of that law was made in
good faith, and except to the extent that:
(A) there are mandatory provisions of the law of
the relevant jurisdiction which must be
applied to the transaction covered by;
(B) any term of or any provision of the law of
the State of New York applicable to the
Underwriting Agreement, is contrary to the
public policy of the relevant jurisdiction;
(C) the availability or enforceability of
certain rights and remedies may be governed
or affected by the procedural laws of the
relevant jurisdiction in courts of the
relevant jurisdiction; and
-59-
<PAGE>
(D) a court may determine the another court is a
more appropriate forum.
(c) We are not currently aware of any mandatory
provisions within the terms of sub-paragraph (b)(A)
above that affect enforceability.
-60-
<PAGE>
EXHIBIT D
Form of CBA Inhouse Counsel's Opinion
[To be replaced by draft opinion as and when agreed]
(Insert customary assumptions, qualifications and exceptions)
1. neither of the CBA Parties is, nor with the giving of notice or lapse of time
or both would either be, in violation of or in default under its constitution or
any note trust deed, mortgage, deed of trust, loan agreement or other agreement
or instrument known to me to which the CBA Party is a party or by which it or
any of its properties is bound, except for violations and defaults which
individually and in the aggregate are not materially adverse to the CBA Parties
taken as a whole or the consummation of any of the transactions contemplated by
the Underwriting Agreement, or any Basic Document;
2. the issue and sale of the Class A-1 Notes and the execution, delivery and
performance by the CBA Parties of their respective obligations under the Basic
Documents and the Underwriting Agreement and the consummation of the
transactions contemplated in Basic Documents and the Underwriting Agreement will
not conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, any note trust deed, mortgage, deed of trust, loan
agreement or other agreement or instrument known to me to which a CBA Party is a
party or by which the CBA Party is bound or to which any of the property or
assets of a CBA Party is subject, nor will any such action result in any
violation of the provisions of (i) the constitution of a CBA Party or (ii) any
applicable law or statute applicable to a CBSA party in Australia or any
existing order, rule or regulation of any court or governmental agency or body
in Australia having jurisdiction over a CBA Party, or any of its properties in
any federal or state jurisdiction of the Commonwealth of Australia;
3. other than as set forth or contemplated in the Prospectus, there are no legal
or governmental investigations, actions, suits or proceedings pending or, to the
best of my knowledge, threatened in any federal or state jurisdiction of the
Commonwealth of Australia against or involving any CBA Party or any property of
a CBA Party, or to which any CBA Party is or may be a party or to which any
property of a CBA Party is or may be the subject: (i) asserting the invalidity
of the Underwriting Agreement or of any of the Basic Documents, (ii) seeking to
prevent the issuance of the Class A-1 Notes or the consummation of any of the
transactions contemplated by the Underwriting Agreement or any of the Basic
Documents, (iii) that may adversely affect the federal or state income, excise,
franchise or similar tax attributes of the
-61-
<PAGE>
Class A-1 Notes, (iv) that could materially and adversely affect a CBA Party's
obligations under the Underwriting Agreement or any of the Basic Documents or
(v) which, if determined adversely to a CBA Party, could individually or in the
aggregate reasonably be expected to have a material adverse effect on the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of CBA and its subsidiaries taken
as a whole or that would reasonably be expected materially to adversely affect
the consummation of any of the transactions contemplated by the Underwriting
Agreement or any Basic Document.
-62-
<PAGE>
EXHIBIT 4.2
Draft: 9 March 2000
Series 2000-1G Medallion Trust
Series Supplement
Date:
Commonwealth Bank of Australia
Seller and Servicer
Securitisation Advisory Services Pty. Limited
Manager
Perpetual Trustee Company Limited
Trustee
CLAYTON UTZ
Lawyers
Levels 27-35
No.1 O'Connell Street
SYDNEY NSW 2000
AUSTRALIA
(C) Copyright Clayton Utz
Liability is limited by the Solicitors Scheme under the Professional Standards
Act 1994 NSW
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Clause Page
<S> <C>
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 30
1.3 Master Trust Deed Definitions 33
1.4 Business Day Convention 33
1.5 Master Trust Deed Inconsistency 33
1.6 Exclusion of Master Trust Deed Definitions and Provisions 33
1.7 Support Facilities 35
1.8 Security Trust Deed 35
1.9 Nominated Seller and Nominated Servicer 35
1.10 Binding on Securityholders and the Residual Unitholder 35
1.11 Relationship between Trustee and Securityholders 35
1.12 Incorporated Definitions and other Transaction Documents and
provisions 35
2. THE CBA TRUST 35
2.1 Constitution of CBA Trust 35
2.2 Declarations of Trust for the CBA Trust 36
2.3 Name of the CBA Trust 36
2.4 Entitlement of Seller to the CBA Trust 36
2.5 Bare Trust 36
2.6 Duration of the CBA Trust 36
2.7 Early Termination of the CBA Trust 36
2.8 Dealing with CBA Trust Assets of the Series Trust 36
2.9 Proceeds 36
2.10 CBA Trust Not Part of Assets of the Series Trust 37
2.11 Shared Securities 37
2.12 Trustee's Duties 37
2.13 Substitute Trustee 37
2.14 Transfer of the CBA Trust Assets to Seller on termination of CBA Trust 38
2.15 Seller Indemnity 38
2.16 Limitation of Liability 38
3. UNIT IN THE SERIES TRUST 38
3.1 Beneficial Interest Represented by a Single Unit 38
3.2 Initial Holder of the Residual Unit 38
3.3 Registration of CBA as Initial Residual Unitholder 39
3.4 Form of Unit Certificate 39
3.5 Form of Unit Transfer 39
3.6 No Other Relationship 39
</TABLE>
(i)
<PAGE>
<TABLE>
<CAPTION>
Clause Page
<S> <C>
4. ASSIGNMENT OF MORTGAGE LOAN RIGHTS 39
4.1 Approved Financial Assets of the Series Trust 39
4.2 Sale Notice 39
4.3 Requirements of Sale Notice 39
4.4 Mortgage Loan Schedule 40
4.5 Sale Notice Constitutes an Offer 40
4.6 Sale Notice Revocable 40
4.7 Acceptance of Offer 40
4.8 Timing of Acceptance 41
4.9 Seller Not Obliged to Make, and Trustee Not Obliged to Accept, Offer 41
4.10 Can Only Accept all Mortgage Loan Rights in Loan Pool 41
4.11 Effect of Acceptance 41
4.12 Sale in Equity Only 41
4.13 Sale Not to Amount to Assumption of Obligations 41
4.14 Future Advances 42
4.15 Future Receivables 42
4.16 Power to Acquire Mortgage Loans in Arrears 42
5. THE SECURITIES 42
5.1 Securities divided into Classes 42
5.2 Form, constituent documents and denomination of the Securities 42
5.3 Trustee must Issue the Notes 43
5.4 Issue of Redraw Bonds 43
5.5 Initial Invested Amount of the Securities 43
5.6 Interest on the Securities 43
5.7 Redemption of the Securities 44
5.8 Interest on Overdue Interest on the Securities 44
5.9 Rounding of Payments on the Securities 44
5.10 Securities Rank Equally Except for Special Rights 44
5.11 Transfer of Securities 45
6. CONDITIONS PRECEDENT TO ACCEPTANCE OF SALE NOTICE
AND ISSUE OF NOTES 45
6.1 General Conditions Precedent 45
6.2 Other Conditions Precedent 47
6.3 No Liability for Insufficient Moneys 47
6.4 Manager's Certificate 47
7. DIVISION OF MORTGAGE LOAN RIGHTS BETWEEN THE CBA
TRUST AND THE SERIES TRUST 48
7.1 CBA Trust Assets 48
7.2 Mortgages and First Layer of Collateral Securities 49
7.3 Treatment of Shared Securities 49
7.4 Trustee's duties 49
7.5 Upon Repayment of Mortgage Loan Trustee Holds for CBA Trust 50
7.6 Application Where 2 Mortgage Loans 50
7.7 Costs 50
7.8 Alternative Structure 50
8. DETERMINATIONS BY THE MANAGER 50
8.1 Applications and payments on Distribution Dates 50
8.2 Insufficient principal to meet Seller Advances 51
</TABLE>
(ii)
<PAGE>
<TABLE>
<CAPTION>
Clause Page
<S> <C>
8.3 Income Shortfall 51
8.4 Insufficient principal to meet Seller Advances and Standby Redraw
Facility Principal 51
8.5 Netting of Seller Advances and Standby Redraw Facility Advances 52
8.6 Cash Advance Deposit 52
8.7 Break Costs and Break Benefits 52
8.8 Interest Rate Swap Provider Deposit 53
9. CHARGE-OFFS 53
9.1 Allocation of Principal Charge-offs 53
9.2 Allocation of Principal Charge-off Reimbursements 54
9.3 Loss Recoveries 54
10. PAYMENTS ON DISTRIBUTION DATES BY TRUSTEE 54
10.1 Payment of Accrued Interest Adjustment on first Distribution Date 54
10.2 Application of the Available Income Amount on each Distribution Date 54
10.3 Application of the Available Principal Amount on each Distribution Date 56
10.4 Payment of Interest on the Class A-1 Notes 56
10.5 Repayment of Principal on the Securities 56
10.6 Repayment of Principal on the Class A-1 Notes 57
10.7 Inability to Comply with Order of Priority 57
10.8 No Payment in respect of Obligations ranking Equally or after Class A-1
Notes if no payment made to Currency Swap Provider 57
10.9 Payments in respect of A$ Securities 57
11. NET TAX INCOME OF THE SERIES TRUST 57
11.1 Net Tax Income of the Series Trust absolutely vested in the Residual
Unitholder 57
11.2 Excess Distribution 58
</TABLE>
(iii)
<PAGE>
<TABLE>
<CAPTION>
Clause Page
<S> <C>
12. EARLY TERMINATION OF SWAPS 58
12.1 Early Termination of a Swap 58
12.2 Servicer to Adjust Mortgage Interest Saver Accounts and Mortgage Rates
if Basis Swap terminated 59
12.3 Determination of Threshold Rate 59
12.4 Trustee to set Mortgage Rate 59
13. REPRESENTATIONS AND WARRANTIES REGARDING
MORTGAGE LOANS 60
13.1 Seller's Representations and Warranties 60
13.2 Trustee need not Test Warranties 62
14. BREACH OF REPRESENTATIONS AND WARRANTIES 62
14.1 Manager or Seller Becomes Aware of Incorrect Representations or
Warranties 62
14.2 If Trustee Becomes Aware of Incorrect Representations or Warranties 62
14.3 Remedy of Defaults during Prescribed Period 62
14.4 Holding for CBA Trust during Prescribed Period 63
14.5 Costs 63
14.6 Payment 63
14.7 Limitation on Rights of Trustee During Prescribed Period 63
14.8 Limit of Seller's Liability for Mortgage Loans 63
14.9 Seller's Liability for Damages After Prescribed Period 64
14.10 Discharge of obligations 64
14.11 Fraud 64
14.12 Trustee's Reliance 64
15. SELLER'S GENERAL UNDERTAKINGS 64
15.1 General Undertakings 64
15.2 Seller not bound by Undertaking 66
15.3 Seller Downgrade 66
15.4 Reduction or Increase of Seller Deposit 67
15.5 Interest on Seller Deposit 67
15.6 Seller Upgrade 67
15.7 Termination of Series Trust 67
15.8 Withdrawals from the Collections Account 67
15.9 Termination of Mortgage Interest Saver Accounts 68
15.10 Gross Up for Mortgage Interest Saver Accounts 68
16. SERVICING OF MORTGAGE LOAN RIGHTS 68
16.1 Appointment of Servicer 68
16.2 Obligation to Act as Servicer until Termination of
Appointment 68
16.3 General Servicing Obligation 68
16.4 Power to Service 68
16.5 Exercise of Discretions 68
16.6 Servicer's Undertaking Regarding Mortgage Loan Rights 69
16.7 Interest Rates on Mortgage Loans 69
16.8 Release or Substitution of Security 70
16.9 Variation or Relaxation of Terms of Mortgage Loans 71
16.10 Release of Debt 71
16.11 Waivers, Releases and Compromises 71
16.12 Consent to subsequent Security Interests 71
</TABLE>
(iv)
<PAGE>
<TABLE>
<CAPTION>
Clause Page
<S> <C>
16.13 Consent to Leases etc 72
16.14 Relief under Binding Provision or on Order of Competent Authority 72
16.15 Litigation 73
16.16 Enforcement Action 73
16.17 Incurring Additional Expenses 73
16.18 Mortgage Insurance and Insurance Policy Claims 73
16.19 Insurance Policy Proceeds 73
16.20 Seller Advances 74
16.21 Restrictions on Seller Advances 74
16.22 Servicer's Actions Binding on Trustee 75
16.23 Servicer to Pay its Own Expenses 75
16.24 Servicer to transmit information to Manager 75
16.25 Proposed amendments to Servicing Guidelines 75
16.26 Further Servicer Undertakings 76
16.27 Servicer holding Assets of the Series Trust 78
16.28 Servicer's Power to Delegate 78
16.29 Servicer May Replace or Suspend Attorneys 78
16.30 Servicer Remains Liable 78
17. SERVICER'S RESPONSIBILITIES AND INDEMNITIES 79
17.1 Not Liable Where Action Unlawful 79
17.2 Limitation on Servicer's Responsibility 79
17.3 Servicer's Liability 79
18. SERVICER DEFAULT AND RETIREMENT OF SERVICER 80
18.1 Servicer Default 80
18.2 Retirement of Servicer 81
18.3 Notice to Securityholders 81
18.4 Removal of Servicer 81
18.5 Retirement of Servicer 81
18.6 When appointment of Substitute Servicer effective 81
18.7 Trustee to Act as Servicer 82
18.8 Trustee May Give Discharges 82
18.9 Servicer May Accept Payment 82
18.10 Servicer and Manager to Provide Full Co-operation 82
18.11 Indemnity 82
18.12 No Liability for Servicer Default 82
19. REMUNERATION OF MANAGER, TRUSTEE, SERVICER AND
SECURITY TRUSTEE 82
19.1 Manager's Fee 82
19.2 Trustee's Fee 82
19.3 Servicer's Fee 83
19.4 Security Trustee's Fees and Expenses 83
19.5 Goods and Services Tax 83
19.6 Adjustments to fees 83
20. MANAGER DEFAULT 85
21. REPRESENTATIONS AND WARRANTIES 86
21.1 General Representations and Warranties by the Seller and
the Servicer 86
21.2 Repetition of Representations and Warranties 87
22. COLLECTIONS ACCOUNT AND INVESTMENT 87
</TABLE>
(v)
<PAGE>
<TABLE>
<CAPTION>
Clause Page
<S> <C>
22.1 Collections Account 87
22.2 Initial Collections Account 87
22.3 Replacement of Collections Account 87
22.4 Deposits into Collections Account within 5 Business Days 87
22.5 While Collections Account with Commonwealth Bank 88
22.6 Withdrawals from Collections Accounts 88
22.7 All Transactions through Collections Account 89
22.8 Title to and Control of Collections Account 89
22.9 No Deductions by Servicer 89
22.10 Prepayments under Liquidity Facility 89
22.11 Servicer May Retain Income from Collections 89
22.12 Bank Account Taxes 89
22.13 Opening of additional accounts where Collections Account is with an
Eligible Depository 89
23. CLEAN-UP AND EXTINGUISHMENT 90
23.1 Notification of Trigger Event by Manager to Seller 90
23.2 Response by Seller 90
23.3 Determination of Clean-Up Settlement Date 91
23.4 Clean-Up Settlement Price 91
23.5 Payment of Clean-Up Settlement Price 91
23.6 Effect of Payment of Clean-Up Settlement Price 92
23.7 Costs 92
23.8 Alternative Structure 92
23.9 Alternative Funding Arrangements to Permit Redemption 92
24. PERFECTION OF TITLE 92
24.1 Perfection of Title Event 92
24.2 Declaration of Perfection of Title Event 93
24.3 Perfection of Title 93
24.4 Trustee to lodge Caveats 94
24.5 Trustee to hold Legal Title or lodge Caveats 94
24.6 Powers of Attorney 94
24.7 Other Loans 94
24.8 Indemnity 94
25. SELLER AS CUSTODIAN OF THE MORTGAGE LOAN DOCUMENTS 94
25.1 Seller as Custodian 94
25.2 Application of the Balance of this Clause 94
25.3 Seller's Covenants as Custodian 94
25.4 Update of Computer Diskette 95
25.5 Indemnity in respect of Incorrect Information on
Computer Diskette 95
25.6 Document Custody Audit Report 95
25.7 Details of Document Custody Audit Report 96
25.8 Document Custody Audit Report 97
25.9 Timing of Document Custody Audit Reports 97
25.10 Adverse Document Custody Audit Report 97
25.11 Document Transfer Event 97
25.12 Failure to comply with clause . 25.11 98
25.13 Emergency Document transfer 98
25.14 Exceptions to Transfer 98
25.15 Indemnity by Seller 99
25.16 Trustee to co-operate with Servicer 99
</TABLE>
(vi)
<PAGE>
<TABLE>
<CAPTION>
Clause Page
<S> <C>
25.17 Specific performance 99
25.18 Trustee's Duty While Holding Mortgage Documents 99
25.19 Reappointment of Seller as Custodian 99
26. TERMINATION OF THE SERIES TRUST 99
26.1 Potential Termination Events 99
26.2 Determination of Termination Payment Date 100
26.3 Realisation of Assets 100
26.4 Conditions of Sale During 180 days 100
26.5 Right of Refusal to Seller 101
26.6 Sale at Lower Price 101
26.7 Conditions of Sale After 180 days 101
26.8 Further Conditions of Sale After 180 days 102
26.9 Procedures Pending Winding-Up 102
26.10 Costs on Winding-up of the Series Trust 102
26.11 Calculation of Final Distributions 103
26.12 Final Distributions 103
26.13 Insufficient Funds 103
26.14 Excess Funds 103
26.15 Distribution to Residual Unitholder in Specie 103
26.16 Terms of In Specie Distributions 103
27. GENERAL 103
27.1 Required Credit Rating 103
27.2 Distribution of information 104
27.3 Electronic Reporting of Pool Performance Data 104
27.4 Claim for Damages 104
27.5 Allocation of Damages 104
27.6 Additional Expenses 104
27.7 Form of Transfers and Certificates 105
27.8 Incur Costs Without Approval 105
27.9 Adverse Effect 105
27.10 Notification to Rating Agencies of Redemption of
Securities 105
27.11 Further Support Facilities 105
27.12 Supplementary Trustee Powers 105
27.13 Trustee's power to delegate 106
28. LIMITATION OF TRUSTEE'S DUTIES 106
28.1 Trustee May Rely 106
28.2 No Duty to Investigate 107
28.3 Trustee not Liable 107
29. TRUSTEE'S LIMITATION OF LIABILITY 107
29.1 Limitation on Trustee's liability 107
29.2 Claims against Trustee 107
29.3 Breach of trust 107
29.4 Acts or Omissions 107
29.5 No obligation 108
29.6 CBA Trust 108
30. CONSUMER CREDIT CODE 108
30.1 Breach of Consumer Credit Code 108
30.2 Right of Indemnity - Consumer Credit Code 108
</TABLE>
(vii)
<PAGE>
<TABLE>
<CAPTION>
Clause Page
<S> <C>
31. NOTICES 109
31.1 Method of Delivery 109
31.2 Deemed Receipt 109
31.3 Notice to Investors 110
32. CONFIDENTIALITY 110
32.1 General Restriction 110
32.2 Exceptions 110
33. MISCELLANEOUS 111
33.1 Amendments 111
33.2 Governing Law 111
33.3 Jurisdiction 111
33.4 Notify Rating Agencies 111
33.5 Severability of Provisions 111
33.6 Counterparts 111
33.7 No Revocation of Power of Attorney 112
33.8 Certifications 112
33.9 Payments 112
33.10 Waiver 112
33.11 Entire Understanding 112
33.12 Survival of Indemnities 112
33.13 Successors and Assigns 112
33.14 Moratorium Legislation 112
SCHEDULE 1
FORM OF SALE NOTICE 113
SCHEDULE 2
FORM OF POWER OF ATTORNEY
(other than for Queensland and Western Australia) 115
SCHEDULE 3
FORM OF POWER OF ATTORNEY
(For Queensland) 119
SCHEDULE 4
FORM OF POWER OF ATTORNEY
(For Western Australia) 123
SCHEDULE 5
ELIGIBILITY CRITERIA 127
SCHEDULE 6
FORM OF SECURITY CERTIFICATE 128
SCHEDULE 7
FORM OF SECURITY TRANSFER 130
SCHEDULE 8
QUARTERLY CERTIFICATE 133
SCHEDULE 9
FORM OF RESIDUAL UNIT CERTIFICATE 142
</TABLE>
(viii)
<PAGE>
<TABLE>
<CAPTION>
Clause Page
<S> <C>
SCHEDULE 10
STEPDOWN PERCENTAGE 144
</TABLE>
(ix)
<PAGE>
THIS SERIES SUPPLEMENT is made in on 2000
BETWEEN COMMONWEALTH BANK OF AUSTRALIA, ACN 123 123 124, a company
incorporated in the Australian Capital Territory and having an
office at Level 8, 48 Martin Place, Sydney, Australia (the "Seller"
and hereinafter included in the expression the "Servicer")
AND SECURISATION ADVISORY SERVICES PTY. LIMITED, ACN 064 133
946, a company incorporated in the State of New South Wales and
having an office at Level 8, 48 Martin Place, Sydney, Australia
(hereinafter included in the expression the "Manager")
AND PERPETUAL TRUSTEE COMPANY LIMITED, ACN 000 001 007, a company
incorporated in the State of New South Wales and having an office
at Level 3, 39 Hunter Street, Sydney, Australia (hereinafter
included in the expression the "Trustee")
RECITALS
A. This Deed relates to the Series 2000-1G Medallion Trust.
B. In accordance with the Master Trust Deed, this Deed includes, amongst other
things, the terms upon which:
(i) the Trustee may purchase Mortgage Loans from the Seller;
(ii) the Trustee may issue Securities to fund such purchase; and
(iii) the Trustee appoints the Servicer to service such Mortgage Loans
(if purchased by the Trustee).
C. This Deed also provides for the establishment of the CBA Trust.
D. The Trustee has agreed to act as trustee of the CBA Trust on the terms and
conditions of this Deed and the Master Trust Deed.
THIS DEED PROVIDES as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Deed, unless the contrary intention appears:
"A$" and "Australian dollars" means the lawful currency for the time being
of the Commonwealth of Australia.
"A$ Class A-1 Interest Amount" in relation to a Distribution Date and the
Accrual Period ending on that Distribution Date means an amount calculated
as follows:
CA1IA = ACA1IA X CA1IR X N
---
365
where:
CA1IA = the A$ Class A-1 Interest Amount for the Accrual Period;
ACA1IA = A$ Equivalent of the aggregate Invested Amounts of the
Class A-1 Notes at the close of business on the first day
of the Accrual Period;
CA1IR = the A$ Class A-1 Interest Rate for the Accrual Period; and
N = the number of days in the Accrual Period.
1.
<PAGE>
"A$ Class A-1 Interest Payment" in relation to a Distribution Date and the
Accrual Period ending on that Distribution Date means the amount paid or
available to be paid (as the case may be) on that Distribution Date
pursuant to clause 10.2(k)(i) from the Available Income Amount in
respect of that Distribution Date.
"A$ Class A-1 Interest Rate" in relation to an Accrual Period means the
aggregate of:
(a) the Bank Bill Rate for that Accrual Period; and
(b) the A$ Class A-1 Margin.
"A$ Class A-1 Margin" has the same meaning as the "Spread" specified in
paragraph 5.2 of the confirmation for each Class A-1 Currency Swap.
"A$ Class A-1 Principal Amount" in relation to a Distribution Date means
the amount referred to in clause 10.5(b)(i) in relation to that
Distribution Date.
"A$ Class A-1 Unpaid Interest Amount" in relation to a Distribution Date
means the aggregate of:
(a) any A$ Class A-1 Interest Amounts remaining unpaid pursuant to clause
10.2(k) from prior Distribution Dates; and
(b) interest on the A$ Class A-1 Interest Amounts referred to in paragraph
(a) at the A$ Class A-1 Interest Rate applicable from time to time
from the date that A$ Class A-1 Interest Amount first became payable
under clause 10.2(k) until (but not including) the date actually paid
under clause 10.2(k).
"A$ Equivalent" in relation to an amount which is calculated, determined or
expressed in US$ or which includes a component determined or expressed in
US$ means that US$ amount or US$ component (as the case may be) multiplied
by the A$ Exchange Rate.
"A$ Exchange Rate" means the "A$ Exchange Rate" specified in paragraph 7 of
the confirmation for each Class A-1 Currency Swap.
"A$ Security" means, as the context requires, a Class A-2 Note, a Class B
Note, a Redraw Bond or all of the foregoing.
"Accrual Period" means initially the period commencing on (and including)
the Closing Date and ending on (but excluding) the first Distribution Date
and, thereafter, is each successive period starting on (and including) a
Distribution Date and ending on (but excluding) the next Distribution Date.
The final Accrual Period ends on (but excludes) the Termination Payment
Date and commences on (and includes) the Distribution Date immediately
preceding the Termination Payment Date.
"Accrued Interest Adjustment" in relation to a Mortgage Loan means the
amount of interest accrued on that Mortgage Loan for, and any fees in
relation to the Mortgage Loan falling due for payment during, the period
commencing on (and including) the Monthly Anniversary Date for that
Mortgage Loan immediately prior to the Cut-Off Date and ending on (but
excluding) the Closing Date and any accrued interest and fees due but
unpaid in relation to the Mortgage Loan prior to that Monthly Anniversary
Date.
"Adverse Document Custody Audit Report" means a Document Custody Audit
Report in which the overall custodial performance of the Seller is graded D
in accordance with the grading system referred to in clause 25.8.
"Adverse Effect" means any event which (determined by the Manager unless
otherwise expressly specified in this Deed or any other Transaction
Document) materially and adversely affects the amount of any payment due to
be made to any Securityholder or materially and adversely affects the
timing of such a payment.
2.
<PAGE>
"Agency Agreement" means the Agency Agreement to be dated on or about the
Closing Date and made between the Trustee, the Manager, The Bank of New
York, New York Branch (as the initial Class A-1 Note Trustee, Principal
Paying Agent, Agent Bank and Class A-1 Note Registrar) and The Bank of New
York, London Branch (as the initial additional Paying Agent).
"Agent Bank" has the same meaning as in the Agency Agreement.
"Available Income Amount" in relation to a Distribution Date means the
aggregate of:
(a) the Preliminary Income Amount for the immediately preceding
Determination Date;
(b) any Liquidity Facility Advance due to be made on the Distribution
Date; and
(c) any other amounts received by the Trustee from a Support Facility
Provider under a Support Facility on or prior to the Distribution Date
which the Manager determines should be included in the Available
Income Amount (other than any amounts already included in paragraphs
(a) and (b)).
"Available Principal Amount" in relation to a Determination Date and the
immediately following Distribution Date means an amount calculated as
follows:
APA = PC + PCOR + OPA + RBA + SRFA
where:
APA = the Available Principal Amount as at that Determination Date;
PC = the Principal Collections for the Collection Period ending on
that Determination Date;
PCOR = the Principal Charge-off Reimbursement as at that Determination
Date;
OPA = the Other Principal Amounts as at that Determination Date;
RBA = the Redraw Bond Amount as at that Determination Date; and
SRFA = the Standby Redraw Facility Advance on the following Distribution
Date.
"Average Delinquent Percentage" in relation to a Determination Date means
the amount (expressed as a percentage) calculated as follows:
ADP = SDP
---
12
where:
ADP = the Average Delinquent Percentage; and
SDP = the sum of the Delinquent Percentages for the 12 Collection
Periods immediately preceding or ending (as the case may be) on
the Determination Date,
provided that if on that Determination Date there has not yet been 12
Collection Periods the Average Delinquent Percentage in relation to that
Determination Date means the amount (expressed as a percentage) calculated
as follows:
3.
<PAGE>
ADP = SDP
---
N
where:
ADP = the Average Delinquent Percentage;
SDP = the sum of the Delinquent Percentages for all of the Collection
Periods preceding or ending (as the case may be) on the
Determination Date; and
N = the number of Collection Periods preceding the Determination
Date.
"Bank Bill Rate" in relation to an Accrual Period means the rate appearing
at approximately 10.00 am Sydney time on the Rate Set Date for that Accrual
Period on the Reuters Screen page "BBSW" as being the average of the mean
buying and selling rates appearing on that page for a bill of exchange
having a tenor of three months. If:
(a) on the first day of an Accrual Period fewer than 4 banks are quoted on
the Reuters Screen page "BBSW"; or
(b) for any other reason the rate for that day cannot be determined in
accordance with the foregoing procedures,
then the "Bank Bill Rate" means such rate as is specified by the Manager
having regard to comparable indices then available. Notwithstanding the
foregoing, the Bank Bill Rate for the initial Accrual Period will be
determined by straight line interpolation between the Bank Bill Rate
determined as above for a bill of exchange having a tenor of 3 months and
the Bank Bill Rate determined as above for a bill of exchange having a
tenor of 4 months.
"Basis Swap" has the same meaning as in the Interest Rate Swap Agreement.
"Binding Provision" means any provision of the Code of Banking Practice
released by the Australian Bankers' Association on 3 November 1993, any
other code or arrangement binding on the Seller or the Servicer and any
laws applicable to banks or other lenders in the business of making retail
home loans.
"Borrower" in relation to a Mortgage Loan means the person or persons to
whom a loan or other financial accommodation has been provided under the
corresponding Mortgage Loan and includes, where the context requires, the
mortgagor under the corresponding Mortgage.
"Break Benefits" in relation to a Determination Date means the total break
benefits paid by or on behalf of the Trustee during the Collection Period
ending on that Determination Date to a Borrower in relation to a Mortgage
Loan which is then part of the Assets of the Series Trust arising from the
early termination of that Mortgage Loan or the early termination of a fixed
interest rate period under that Mortgage Loan.
"Break Costs" in relation to a Determination Date means the total break
costs, or amounts in respect of break costs, received by or on behalf of
the Trustee during the Collection Period ending on that Determination Date
from a Borrower, GEMICO, HLIC or any other person in relation to a Mortgage
Loan which is then part of the Assets of the Series Trust (or was
immediately prior to its Liquidation Date or the date that it was assigned
under a Mortgage Insurance Policy, an Asset of the Series Trust) arising
from the early termination of that Mortgage Loan or the early termination
of a fixed interest rate period under that Mortgage Loan.
"Business Day" means any day on which banks are open for business in
Sydney, New York City and London, other than a Saturday, a Sunday or a
public holiday in Sydney, New York City or London.
"Call Date" has the same meaning as in the Class A-1 Note Conditions.
4.
<PAGE>
"Cash Advance Deposit" has the same meaning as in the Liquidity Facility
Agreement.
"Caveat" in relation to a Mortgage forming part of the Assets of the Series
Trust or in relation to a Shared Security means a land titles office caveat
in registrable form which, upon registration, is effective to protect the
Trustee's interest as equitable assignee of the Seller's interest in the
Mortgage or, in the case of a Shared Security, is effective to protect the
Seller's interest as beneficiary of the CBA Trust in the Shared Security.
"Caveat and Transfer Details" in relation to each Mortgage forming part of
the Assets of the Series Trust means such details as may be required by the
relevant land titles office in order to lodge and obtain registration of
Caveat and/or Mortgage Transfers.
"CBA Trust" means the trust constituted in favour of the Seller pursuant
to clause 2.1.
"CBA Trust Assets" means all assets and property, real and personal
(including choses in action and other rights), tangible and intangible,
present or future, held by the Trustee as trustee of the CBA Trust from
time to time.
"Certificate of Title" in relation to a Mortgaged Property means the
certificate of title or other documents evidencing title to that Mortgaged
Property (including, if applicable, the documents forming any abstract of
that title) or where the certificate of title or other documents have been
cancelled due to the computerisation of the register, any original
registration confirmation, notification or statement which the Seller has
in its files.
"Charge" has the same meaning as in the Security Trust Deed.
"Class A-1 Charge-off Percentage" in relation to a Determination Date means
the amount (expressed as a percentage) calculated as follows:
CA1CP = CA1SA
---------------------------
CA1SA + CA2SA + RBSA + SRFP
where:
CA1CP = the Class A1 Charge-off Percentage in relation to that
Determination Date;
CA1SA = the A$ Equivalent of the aggregate Stated Amounts of the
Class A-1 Notes on that Determination Date;
CA2SA = the aggregate Stated Amounts of the Class A-2 Notes on that
Determination Date;
RBSA = the aggregate Stated Amount of the Redraw Bonds on that
Determination Date; and
SRFP = the Standby Redraw Facility Principal on that Determination
Date.
"Class A-1 Currency Swap" means the transactions defined as such in each
Currency Swap Agreement.
"Class A-1 Interest Amount" has the same meaning as in the Class A-1 Note
Conditions.
"Class A-1 Interest Payment" in relation to a Distribution Date means each
US$ Class A-1 Interest Payment (as that term is defined in the relevant
Currency Swap Agreement) paid or payable (as the case may be) by the
relevant Currency Swap Provider to or at the direction of the Trustee on
that Distribution Date in accordance with the relevant Class A-1 Currency
Swap.
"Class A-1 Note Conditions" means the terms and conditions of the Class A-1
Notes as set out in schedule 2 to the Class A-1 Note Trust Deed.
5.
<PAGE>
"Class A-1 Noteholder" has the same meaning as in the Class A-1 Note
Conditions.
"Class A-1 Note Registrar" has the same meaning as in the Agency Agreement.
"Class A-1 Notes" has the same meaning as in the Class A-1 Note Conditions.
"Class A-1 Note Trust Deed" means the Class A-1 Note Trust Deed to be dated
on or about the Closing Date and made between the Trustee, the Manager and
the Class A-1 Note Trustee.
"Class A-1 Note Trustee" means The Bank of New York, New York Branch or, if
The Bank of New York is removed or retires as the trustee for the Class A-1
Noteholders, any person appointed from time to time in its place in
accordance with the Class A-1 Note Trust Deed.
"Class A-1 Percentage" in relation to a Determination Date means the amount
(expressed as a percentage) calculated as follows:
CA1P = CA1IA
-------------
CA1IA + CA2IA
where:
CA1P = the Class A-1 Percentage;
CA1IA = the A$ Equivalent of the aggregate Invested Amount of the
Class A-1 Notes on the Determination Date; and
CA2IA = the aggregate Invested Amount of the Class A-2 Notes on the
Determination Date.
"Class A-1 Unpaid Interest Amount" has the same meaning as in the Class A-1
Note Conditions.
"Class A-2 Charge-off Percentage" in relation to a Determination Date means
the amount (expressed as a percentage) calculated as follows:
CA2CP = CA2SA
---------------------------
CA1SA + CA2SA + RBSA + SRFP
where:
CA2CP = the Class A-2 Charge-off Percentage in relation to that
Determination Date;
CA1SA = the A$ Equivalent of the aggregate Stated Amounts of the
Class A-1 Notes on that Determination Date;
CA2SA = the aggregate Stated Amounts of the Class A-2 Notes on that
Determination Date;
RBSA = the aggregate Stated Amount of the Redraw Bonds on that
Determination Date; and
SRFP = the Standby Redraw Facility Principal on that Determination
Date.
"Class A-2 Note" means a debt security issued by the Trustee, in its
capacity as trustee of the Series Trust, pursuant to the provisions of this
Deed and the Dealer Agreement and forming part of the Class of Securities
described in clause 5.1(b) as Class A-2 Notes.
"Class A-2 Noteholder" means at any time the person recorded at that time
in the Register as the holder of a Class A-2 Note.
6.
<PAGE>
"Class A-2 Percentage" in relation to a Distribution Date means 100% less
the Class A-1 Percentage for that Determination Date.
"Class A Note" means, as the context requires, a Class A-1 Note, a Class A-
2 Note or both.
"Class A Noteholder" means, as the context requires, a Class A-1
Noteholder, a Class A-2 Noteholder or both.
"Class A Percentage" in relation to a Determination Date means the amount
(expressed as a percentage) calculated as follows:
CAP = ISA
---
NSA
where:
CAP = the Class A Percentage;
SAA = the aggregate of the A$ Equivalent of the Stated Amounts for the
Class A-1 Notes, and the Stated Amounts for the Class A-2 Notes,
on that Determination Date; and
NSA = the aggregate of the A$ Equivalent of the Stated Amounts for the
Class A-1 Notes, and the Stated Amounts for the Class A-2 Notes
and the Class B Notes, on that Determination Date.
"Class A Principal Distribution" in relation to a Distribution Date means
the amount calculated as follows:
CAPD = CASPA + CAUPA + (SDP X CBUPA)
where:
CAPD = the Class A Principal Distribution;
CASPA = the Class A Scheduled Principal Amount on the preceding
Determination Date;
CAUPA = the Class A Unscheduled Principal Amount on the preceding
Determination Date;
SDP = the Stepdown Percentage on the preceding Determination Date; and
CBUPA = the Class B Unscheduled Principal Amount on the preceding
Determination Date.
"Class A Scheduled Principal Amount" in relation to a Determination Date
means the amount calculated as follows:
CASPA = CAP X NSPA
where:
CASPA = the Class A Scheduled Principal Amount;
CAP = the Class A Percentage on that Determination Date; and
NSPA = the Net Scheduled Principal Amount on that Determination Date.
"Class A Unscheduled Principal Amount" in relation to a Determination Date
means the amount calculated as follows:
7.
<PAGE>
CAUPA = CAP x NUPA
where:
CAUPA = the Class A Unscheduled Principal Amount;
CAP = the Class A Percentage on that Determination Date; and
NUPA = the Net Unscheduled Principal Amount on that Determination
Date.
"Class B Available Support" in relation to a Determination Date means an
amount (expressed as a percentage) calculated as follows:
CBAS = SAB
----------
ASA + SRFL
where:
CBAS = the Class B Available Support;
SAB = the aggregate Stated Amount for the Class B Notes on that
Determination Date;
ASA = the aggregate of the A$ Equivalent of the Stated Amounts of
the Class A-1 Notes, and the Stated Amounts for all other
Securities, on that Determination Date; and
SRFL = the Standby Redraw Facility Limit on that Determination
Date.
"Class B Note" means a debt security issued by the Trustee, in its capacity
as trustee of the Series Trust, pursuant to the provisions of this Deed and
the Dealer Agreement and forming part of the Class of Securities described
in clause 5.1(c) as Class B Notes.
"Class B Noteholder" means at any time the person recorded at that time in
the Register as the holder of a Class B Note.
"Class B Percentage" in relation to a Determination Date means 100% less
the Class A Percentage for that Determination Date.
"Class B Required Support" in relation to a Determination Date means the
amount (expressed as a percentage) calculated as follows:
CBRS = IIA
----
AIIA
where:
CBRS = the Class B Required Support;
IIA = the aggregate Initial Invested Amount for the Class B Notes;
and
AIIA = the aggregate of the A$ Equivalent of Initial Invested
Amounts of the Class A-1 Notes, and the Initial Invested
Amounts for all other Securities, on that Determination
Date.
"Class B Unscheduled Principal Amount" in relation to a Determination Date
means the amount calculated as follows:
CBUPA = CBP X NUPA
where:
8.
<PAGE>
CBUPA = the Class B Unscheduled Principal Amount;
CBP = the Class B Percentage on that Determination Date; and
NUPA = the Net Unscheduled Principal Amount on that Determination
Date.
"Clean-up Settlement Date" means the Distribution Date determined in
accordance with clause 23.3.
"Clean-up Settlement Price" means the amount calculated in accordance with
clause 23.4.
"Closing Date" means the date specified by the Seller to the Trustee and
the Manager in the Sale Notice (if any) to be the Closing Date (or such
other date as the Manager may notify the Trustee and the Seller in
accordance with the Sale Notice).
"Collateral Security" means in respect of a Mortgage Loan:
(a) any:
(i) Security Interest; or
(ii) guarantee, indemnity or other assurance,
which secures or otherwise provides for the repayment or payment
of the Mortgage Loan or an Other Loan but does not include the
Mortgage relating to the Mortgage Loan; or
(b) any Mortgage Insurance Policy or Insurance Policy in respect of
the Mortgage relating to the Mortgage Loan or the Land secured by
the Mortgage relating to the Mortgage Loan.
A Collateral Security referred to in paragraph (a) may be given under the
same document that evidences the Mortgage Loan or the Other Loan to which
that Collateral Security relates.
"Collection Period" means:
(a) with respect to the first Determination Date, the period
commencing on (and including) the Cut-Off Date and ending on (but
excluding) that Determination Date; and
(b) with respect to each subsequent Determination Date, the period
commencing on and including the previous Determination Date and
ending on (but excluding) that Determination Date.
"Collections" means Finance Charge Collections, Other Income Amounts,
Mortgage Insurance Income Proceeds, Principal Collections and Other
Principal Amounts.
"Collections Account" means the account established and maintained pursuant
to clause 22.1 or any new account established as the Collections Account
under clause 22.3.
"Competent Authority" means a court, tribunal, authority, ombudsman or
other entity whose decisions, findings, orders, judgment or determinations
(howsoever reached) are binding on the Seller or the Servicer.
"Consideration" means the aggregate Mortgage Loan Principal of the Mortgage
Loans assigned to the Trustee as at the Cut-Off Date.
"Consumer Credit Code" means, as applicable, the Consumer Credit Code set
out in the Appendix to the Consumer Credit (Queensland) Act 1995 as in
force or applied as a law of any jurisdiction in Australia, the provisions
of the Code set out in the Appendix to the
9.
<PAGE>
Consumer Credit (Western Australia) Act 1996 or the provisions of the Code
set out in the Appendix to the Consumer Credit (Tasmania) Act 1996.
"Currency Swap Agreement" means each of two ISDA Master Agreements between
the initial Currency Swap Providers, the Trustee and the Manager, together
with a schedule and a credit support annex and a confirmation relating
thereto and includes any substitute agreement in place of an existing
Currency Swap Agreement.
"Currency Swap Provider" means initially each of Merrill Lynch Capital
Services Inc and Commonwealth Bank of Australia and includes any other
person that subsequently enters into a Currency Swap Agreement with the
Trustee and the Manager.
"Cut-Off Date" means the date specified as such in the Sale Notice (or such
other date as the Manager may notify the Trustee and the Seller in
accordance with the Sale Notice).
"Dealer Agreement" means the Dealer Agreement dated on or about the date of
this Deed between the Trustee, the Manager, Commonwealth Bank of Australia
(as lead manager) and the other institutions named therein (as managers)
and pursuant to which the lead manager and such other managers agree to
subscribe for or procure subscriptions for the A$ Securities.
"Delinquent Percentage" in relation to a Collection Period means the amount
(expressed as a percentage) calculated as follows:
DP = DMLP
----
AMLP
where:
DP = the Delinquent Percentage;
DMLP = the aggregate Mortgage Loan Principal on the last day of the
Collection Period in relation to Mortgage Loans which are then
part of the Assets of the Series Trust and in relation to which a
payment due from the Borrower has been in arrears (on that day)
by more than 60 days; and
AMLP = the aggregate Mortgage Loan Principal on the last day of the
Collection Period in relation to Mortgage Loans which are then
part of the Assets of the Series Trust.
"Depository" means each organisation registered as a clearing agency
pursuant to section 17A of the United States Securities Exchange Act of
1934 that agrees with the Manager and the Trustee to hold Class A-1 Notes
(directly or through a nominee) and initially means The Depository Trust
Company.
"Determination Date" means the first day of the calendar month in which
each Distribution Date occurs. The first Determination Date is 1 July 2000.
"Distribution Date" means the 12th day of each July, October, January and
April (or if such a day is not a Business Day, the next Business Day). The
first Distribution Date is 12 July (or if that day is not a Business Day,
the next Business Day).
"Document Custody Audit Report" means a report by the Auditor of the Series
Trust in accordance with clause 25.
"Document Transfer Event" means each of the events referred to in clause
25.11.
"Eligible Depository" means a financial institution which has assigned to
it short term credit ratings equal to or higher than (as the case may be)
A-1 by S&P, P-1 by Moody's and F1+ by Fitch IBCA and includes the Servicer
to the extent that:
10.
<PAGE>
(a) it is rated in this manner (provided that if the Servicer is the
Seller or if the Servicer is an authorised deposit taking institution
under and for the purposes of the Banking Act, 1959 (Commonwealth) the
above rating requirement of Fitch IBCA will be replaced with a short-
term credit rating equal to or higher than F1); or
(b) the Rating Agencies confirm that the rating of the Servicer at a lower
level will not result in a reduction, qualification or withdrawal of
the ratings given by the Rating Agencies to the Securities.
"Eligible Deposit Account" means an account with an Eligible Depository.
"Eligibility Criteria" has the meaning set out in Schedule 5.
"Excess Distribution" in relation to a Distribution Date means the amount
(if any) payable to the Residual Unitholder on that Distribution Date
pursuant to clause 10.2(n).
"Expenses" means all amounts relating to the Series Trust referred to in
clause 16.11 of the Master Trust Deed and includes (without limiting the
generality of the foregoing and without double counting) the aggregate of:
(a) any reasonable Property Protection Expenses or Mortgage Enforcement
Expenses incurred by the Servicer in connection with the management,
maintenance or sale of any Mortgaged Property or in the enforcement of
any Mortgage Documents;
(b) the cost of registering any Caveats or Mortgage Transfers in relation
to Mortgages forming part of the Assets of the Series Trust, to the
extent not reimbursed by the Seller in accordance with this Deed;
(c) any reasonable fees, charges and moneys payable to any consultant
appointed by the Trustee, the Manager or the Servicer and all
disbursements, expenses, duties and outgoings properly chargeable in
respect of such consultant;
(d) subject to clause 8.7, any Break Benefits;
(e) the Security Trustee's Expenses; and
(f) any amount received by the Trustee or the Servicer on or after the
Cut-Off Date in respect of a Mortgage Loan forming part of the Assets
of the Series Trust, related Mortgage or related First Layer of
Collateral Security which the Servicer, pursuant to a decision,
finding, order, judgment or determination of a Competent Authority or
pursuant to a Binding Provision or based on advice from its legal
advisers (either internal or external), has repaid to the liquidator
or the trustee-in-bankruptcy (as the case may be) of a Borrower or the
grantor of a First Layer of Collateral Security as a result of the
insolvency or bankruptcy (as the case may be) of the Borrower or the
grantor of the First Layer of Collateral Security,
but does not include any amount referred to in clauses 10.2(a) - (g)
(inclusive) and (i) -(n) (inclusive) and 10.3.
"Fair Market Value" in relation to a Mortgage Loan means the fair market
value for that Mortgage Loan determined by the Seller's external auditors
and which value reflects the performing or non-performing status (as
determined by the Servicer) of that Mortgage Loan and any benefit which the
intended purchaser will have in respect of such Mortgage Loan under any
relevant Support Facility.
"Finance Charge Collections" in relation to a Collection Period means the
aggregate of the following amounts (without double counting) received by or
on behalf of the Trustee during that Collection Period in respect of the
Mortgage Loans then forming part of the Assets of the Series Trust:
11.
<PAGE>
(a) all amounts received under or in respect of the Mortgage Loans
(including Liquidation Proceeds) in respect of interest, fees,
Government Charges or other amounts due under the Mortgage Loans (less
reversals made during the period in respect of interest or other
charges in relation to any of the accounts where the original debit
entry (or part thereof) was in error) but excluding principal and any
insurance premiums and related charges payable to the Seller;
(b) all amounts of interest received under or in respect of the Mortgage
Loans and the Mortgage Loan Rights to the extent that the obligations
to pay such amounts are discharged by the exercise during that
Collection Period of a right of set-off or right to combine accounts;
and
(c) subject to clause 8.7, any Break Costs,
but does not include any Mortgage Insurance Income Proceeds or Other Income
Amounts.
"First Layer of Collateral Securities" in relation to a Mortgage Loan
means:
(a) the Collateral Securities (other than any Mortgage Insurance Policy
relating to the Mortgage Loan or any related Insurance Policies) from
time to time appearing in the records of the Seller to be intended as
security for the Mortgage Loan;
(b) any Mortgage Insurance Policy relating to the Mortgage Loan; and
(c) any related Insurance Policies,
notwithstanding that by their terms the Collateral Securities (other than
the Mortgage Insurance Policies or any Insurance Policies) may also secure
other liabilities to the Seller.
"Fitch IBCA" means Fitch IBCA (Australia) Pty Limited, ACN 081 339 184.
"Fixed Rate Swap" has the same meaning as in the Interest Rate Swap
Agreement.
"GEMI" means GE Mortgage Insurance Pty. Ltd, ACN 071 466 334.
"GEMICO" means GE Capital Mortgage Insurance Corporation (Australia) Pty.
Limited, ACN 081 488 440.
"GEMICO Mortgage Insurance Policy" means a several reference to the
policies issued by GEMICO in relation to the Mortgage Loans from time to
time forming part of the Assets of the Series Trust pursuant to a Lenders
Mortgage Insurance Master Policy dated on or about the date of this Deed by
GEMICO in favour of the Trustee and the Seller.
"Government Charges" means any amount debited to the accounts established
in the Servicer's records for the Mortgage Loans representing financial
institutions duty, bank accounts debits tax or similar tax or duty imposed
by any Governmental Agency.
"Gross Unscheduled Principal Amount" in relation to a Determination Date
means the amount calculated as follows:
GUPA = OPA + PCOR + RBA + SRFA
where:
GUPA = the Gross Unscheduled Principal Amount;
OPA = the Other Principal Amounts on that Determination Date;
PCOR = the Principal Charge-off Reimbursement on that Determination
Date;
12.
<PAGE>
RBA = the Redraw Bond Amount on that Determination Date; and
SRFA = the Standby Redraw Facility Advance to be made on the following
Distribution Date.
"GST" means the goods and services tax imposed pursuant to the GST Act.
"GST Act" means A New Tax System (Goods and Services Tax) Act, 1999.
"Hedge Provider" means an Interest Rate Swap Provider or a Currency Swap
Provider.
"HLIC" means:
(a) with respect to contracts of insurance to which Housing Loans
Insurance Corporation, a statutory authority established under the
Housing Loans Insurance Act, 1965 (Commonwealth), was a party
immediately before 12 December 1997, the Commonwealth of Australia;
and
(b) with respect to contracts of insurance entered into on or after 12
December 1997, GEMI.
"Income Loss" in relation to a Mortgage Loan, means on the Liquidation Date
for the Mortgage Loan, the aggregate of:
(a) all interest payable in respect of such Mortgage Loan up to and
including the Liquidation Date calculated at the Mortgage Rate and
otherwise in accordance with the Mortgage Documents, whether or not
such interest has been capitalised;
(b) all fees and other charges of any type whatsoever payable in respect
of such Mortgage Loan up to and including the Liquidation Date in
accordance with the Mortgage Documents, whether or not such fees and
other charges have been capitalised; and
(c) any Property Protection Expenses and Mortgage Enforcement Expenses
incurred in connection with such Mortgage Loan up to and including the
Liquidation Date,
less:
(d) any Liquidation Proceeds received in respect of such Mortgage Loan up
to and including the Liquidation Date in respect of such Mortgage Loan
provided that Liquidation Proceeds will only be included in this
paragraph (d) to the extent that the resulting Income Loss is zero or
a positive number.
"Income Shortfall" in relation to a Determination Date means the amount (if
any) by which the Required Income Amount for that Determination Date
exceeds the Preliminary Income Amount for that Determination Date.
"Initial Invested Amount" in relation to a Class A-1 Note has the meaning
given to it in clause 5.5(a) and in relation to an A$ Security has the
meaning given to it in clause 5.5(b).
"Insurance Policy" means any insurance policy (whether present or future)
under which the improvements on the Land the subject of a Mortgage or a
Collateral Security are insured against destruction or damage by events
which include fire.
"Insurance Proceeds" means the proceeds paid by an insurer pursuant to any
Insurance Policy.
"Interest Amount" in relation to an A$ Security and an Accrual Period means
the aggregate interest accrued on that A$ Security during that Accrual
Period pursuant to clause 5.6(b).
13.
<PAGE>
"Interest Rate" in relation to an A$ Security and an Accrual Period means
the aggregate of:
(a) the Bank Bill Rate for that Accrual Period; and
(b) the Issue Margin for that A$ Security.
"Interest Rate Basis Cap" has the same meaning as in the Interest Rate Swap
Agreement.
"Interest Rate Swap Agreement" means an agreement in the form of an amended
ISDA Master Agreement dated on or about the date of this Deed between the
Trustee, the Manager and the initial Interest Rate Swap Provider which
provides for each of:
(a) the Fixed Rate Swaps;
(b) the Basis Swap; and
(c) the Interest Rate Basis Cap,
and includes any substitute agreement in place of an existing Interest Rate
Swap Agreement.
"Interest Rate Swap Provider" means initially the Commonwealth Bank of
Australia and includes any other person that subsequently enters into an
Interest Rate Swap Agreement with the Trustee and the Manager.
"Interest Rate Swap Provider Deposit" means any amount deposited by the
Interest Rate Swap Provider in the Collections Account or any other account
held by the Trustee as trustee of the Series Trust by way of prepayment of
the Interest Rate Swap Provider's payment obligations under the Interest
Rate Swap Agreement.
"Invested Amount" in relation to:
(a) a Class A-1 Note at any time has the same meaning as in the Class A-1
Note Conditions; and
(b) an A$ Security at any time means the Initial Invested Amount of that
A$ Security less the aggregate of all amounts previously paid in
relation to that A$ Security on account of principal pursuant to
clause 10.3(c).
"Issue Date" in relation to a Security means the day on which the Security
is issued by the Trustee.
"Issue Margin" in relation to:
(a) a Class A-2 Note and a Class B Note means, subject to the following:
(i) in the case of a Class A-2 Note, for the period from, and
including, the Closing Date to (but excluding) the Call Date and,
in the case of a Class B Note, to (but excluding) the date on
which the Class B Note ceases to accrue interest in accordance
with clause 5.6(b), the margin expressed as a percentage per
annum applying in relation, respectively, to each Class A-2 Note
and Class B Note determined in accordance with the Dealer
Agreement and advised by the Manager to the Trustee; and
(ii) in respect of a Class A-2 Note only, for the period from, and
including, the Call Date to (but excluding) the date on which the
Class A-2 Note ceases to accrue interest in accordance with
clause 5.6(b), the aggregate of:
A. the margin referred to in paragraph (i) in relation to that
Class A-2 Note; and
B. the Step-Up Margin in relation to that Class A-2 Note,
14.
<PAGE>
provided that if on or after the Call Date the Trustee, at the
direction of the Manager, proposes to exercise its option to redeem
the Securities at their Stated Amount in accordance with Condition
7.3 of the Class A-1 Note Conditions on a Distribution Date but is
unable to do so because, following a meeting of Securityholders
convened under the provisions of the Security Trust Deed by the
Manager for this purpose, the Securityholders have not approved by an
Extraordinary Resolution the redemption of the Securities at their
Stated Amount, then the Issue Margin in relation to each Class A-2
Note from, and including that Distribution Date to, but excluding, the
date on which the Class A-2 Note ceases to accrue interest in
accordance with clause 5.6(b) will be the margin in relation to the
Class A-2 Note referred to in paragraph (i) above; and
(b) a Redraw Bond means the margin expressed as a percentage per annum
applying to the Redraw Bond determined in accordance with the Dealer
Agreement and advised by the Manager to the Trustee.
"Land" means:
(a) land (including tenements and hereditaments corporeal and incorporeal
and every estate and interest in it whether vested or contingent,
freehold or Crown leasehold, the term of which lease is expressed to
expire not earlier than 5 years after the maturity of the relevant
Mortgage, and whether at law or in equity) wherever situated and
including any fixtures to 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.
"Liquidated Mortgage Loan" means a Mortgage Loan with respect to which a
Material Default has occurred and with respect to which the Servicer has
determined that all Liquidation Proceeds likely to be recoverable have been
recovered, having regard to:
(a) any enforcement of the relevant Mortgage Documents;
(b) any sale of the relevant Mortgaged Property;
(c) any proceeds paid on the compulsory acquisition of the relevant
Mortgaged Property by any Governmental Agency;
(d) any Insurance Proceeds paid or payable under any relevant Insurance
Policy;
(e) any payments received from any relevant Borrower; and
(f) such other matters as the Servicer reasonably determines to be
relevant.
"Liquidation Date" in relation to a Mortgage Loan means the date on which
such Mortgage Loan becomes a Liquidated Mortgage Loan.
"Liquidation Proceeds" in relation to a Mortgage Loan means the amount
received by or on behalf of the Trustee in connection with the liquidation
of such Mortgage Loan including, without limitation:
(a) proceeds arising from the enforcement of the relevant Mortgage and
sale of the relevant Mortgaged Property;
(b) proceeds arising from the enforcement of the relevant Mortgage
Documents;
(c) Insurance Proceeds under any relevant Insurance Policy; and
(d) proceeds arising from any resumption or compulsory acquisition of the
relevant
15.
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Mortgaged Property by any Governmental Agency,
but does not include:
(e) any amount required pursuant to the terms of any relevant Mortgage
Document or any law to be paid to the Borrower, including any person
having an interest in the Mortgaged Property as a mortgagee;
(f) if the Trustee is a party to a Fixed Rate Swap, any Break Costs;
(g) any Mortgage Insurance Income Proceeds; and
(h) any Mortgage Insurance Principal Proceeds.
"Liquidity Facility" means a liquidity facility made available by a
Liquidity Facility Provider to the Trustee pursuant to the Liquidity
Facility Agreement.
"Liquidity Facility Advance" in relation to a Distribution Date means the
amount to be advanced to the Trustee on that Distribution Date under the
Liquidity Facility.
"Liquidity Facility Agreement" means the Liquidity Facility Agreement dated
on or about the date of this Deed between the Trustee, the Manager and the
initial Liquidity Facility Provider and includes any substitute liquidity
facility agreement entered into by the Trustee as trustee of the Series
Trust in place of an existing Liquidity Facility Agreement.
"Liquidity Facility Commitment Fee" means in relation to a Determination
Date and the immediately following Distribution Date, the commitment fee
payable to the Liquidity Facility Provider on that Distribution Date
pursuant to the Liquidity Facility Agreement.
"Liquidity Facility Interest" in relation to a Distribution Date means the
interest due on that Distribution Date pursuant to the terms of a Liquidity
Facility Agreement.
"Liquidity Facility Principal" in relation to a Determination Date and the
immediately following Distribution Date means the aggregate of all
Liquidity Facility Advances outstanding under the Liquidity Facility
Agreement at that Determination Date.
"Liquidity Facility Provider" means initially the Commonwealth Bank of
Australia and each other person who may from time to time provide a
Liquidity Facility.
"Loan Agreement" means, with respect to a Mortgage Loan, any agreement,
schedule, terms and conditions, letter, application, approval or other
document (other than the relevant Mortgage) relating to the provision of
financial accommodation by the Seller to the Borrower in connection with
such Mortgage Loan.
"Loan Files" in relation to a Mortgage Loan means such books, records,
paper and electronic files (whether originals or copies) relating to that
Mortgage Loan (other than the Mortgage Documents) which the Servicer has in
its custody.
"Loan to Value Ratio" in relation to a Mortgage Loan means the amount
(expressed as a percentage) calculated as follows:
L
-
V
where:
L = the amount of the Mortgage Loan outstanding as at the date of
determination or if at the date of determination the Mortgage
Loan has not been made, the amount of the then proposed Mortgage
Loan; and
V = the aggregate value of the Land subject to any Mortgage recorded
as securing the Mortgage Loan, as determined in accordance with
the then Servicing
16.
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Standards.
"Loss Recovery" in relation to a Liquidated Mortgage Loan means all amounts
received by or on behalf of the Trustee in respect of that Liquidated
Mortgage Loan after the relevant Liquidation Date.
"Manager" means Securitisation Advisory Services Pty. Limited or if
Securitisation Advisory Services Pty. Limited retires or is removed as
Manager of the Series Trusts (as defined in the Master Trust Deed), any
then Substitute Manager and includes the Trustee when acting as the Manager
of the Series Trusts in accordance with the terms of the Master Trust Deed.
"Manager's Fee" means the fee payable to the Manager on each Distribution
Date in accordance with clause 19.1.
"Master Trust Deed" means the Master Trust Deed dated 8 October 1997
between the Manager and the Trustee.
"Material Default" in relation to a Mortgage Loan means:
(a) a failure by the Borrower (as recognised by the Servicer's system) to
pay on the due date any amount due pursuant to the corresponding Loan
Agreement (including any amount not previously paid which remains
outstanding) where the failure continues, without remedy, for a period
of 60 days from the due date for the payment of such amount under the
relevant Loan Agreement; or
(b) an event of default, howsoever described, (other than an event of
default referred to in paragraph (a)) occurs under any relevant
Mortgage Document where the event of default continues unremedied for
60 days (or such shorter period as the Servicer may determine is
appropriate in relation to a specific event of default) unless the
Servicer reasonably determines that such event of default is of a
minor or technical nature and will not result in an Adverse Effect.
"Monthly Anniversary Date" in relation to a Mortgage Loan means the date on
which interest is debited to the Borrower's Mortgage Loan account by the
Servicer pursuant to the relevant Loan Agreement.
"Moody's" means Moody's Investors Service Inc. and its successors and
assigns.
"Mortgage" in relation to a Mortgage Loan means each registered mortgage
over Land situated in any State or Territory of Australia and appearing on
the Seller's records as securing, amongst other things, the repayment of
the Mortgage Loan and the payment of interest and all other moneys in
respect of the Mortgage Loan notwithstanding that by its terms the mortgage
may secure other liabilities to the Seller. If, at any time after the date
of the Sale Notice, a mortgage is substituted, or added as security, for an
existing Mortgage, then with effect from the date of such addition or
substitution the definition of "Mortgage" will mean the substituted
mortgage or include the additional mortgage, as the case may be.
"Mortgage Documents" in relation to a Mortgage Loan means:
(a) the Loan Agreement (if other than the Mortgage) relating to the
Mortgage Loan;
(b) the original or duplicate Mortgage documents in relation to the
Mortgage Loan (including any document evidencing any substituted or
additional Mortgage);
(c) the Certificate of Title or other indicia of title (if any) in respect
of the Land the subject of the Mortgage in relation to the Mortgage
Loan;
(d) the original or duplicate of the First Layer of Collateral Securities
documents (other than the Insurance Policies) in relation to the
Mortgage Loan;
17.
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(e) any Insurance Policy (or certificate of currency for the Insurance
Policy) held by the Seller in respect of the Mortgage or the First
Layer of Collateral Securities in relation to the Mortgage Loan;
(f) any deed of priority or its equivalent in writing entered into in
connection with the Mortgage or the First Layer of Collateral
Securities in relation to the Mortgage Loan;
(g) all other documents required to evidence the Seller's or the Trustee's
interest in the above Land, the above Mortgage and the above First
Layer of Collateral Securities; and
(h) any amendment or replacement of or to any of the foregoing such
documents which is entered into, and under which rights arise, whether
before or after the Cut-Off Date.
"Mortgage Enforcement Expenses" means all costs and expenses properly
incurred by the Servicer, the Seller or the Trustee (other than their
respective internal administrative costs) in connection with the
enforcement of any Mortgage Loan forming part of the Assets of the Series
Trust, the related Mortgage or the related First Layer of Collateral
Securities or the recovery of any amounts owing under the Mortgage Loan
including, without limitation:
(a) legal costs and disbursements (including those of in-house counsel)
charged at the usual commercial rates of the relevant legal services
provider;
(b) costs in connection with the entering into of possession or the sale
of any property secured by any related Mortgage or First Layer of
Collateral Securities and any real estate or auctioneer's fees and
expenses; and
(c) any Tax in connection with the sale of the relevant Mortgaged
Property,
provided that Mortgage Enforcement Expenses will not include Property
Protection Expenses or Restoration Expenses.
"Mortgage Insurance Income Proceeds" in relation to a Determination Date
means all amounts received by the Trustee pursuant to any Mortgage
Insurance Policy in relation to any Mortgage Loan then forming part of the
Assets of the Series Trust which the Manager determines should be accounted
for on that Determination Date in respect of an Income Loss.
"Mortgage Insurance Policy" means:
(a) the GEMICO Mortgage Insurance Policy; and
(b) any other primary mortgage insurance policy granted by HLIC in force
in respect of a Mortgage Loan, an Other Loan, a Mortgage or a
Collateral Security which forms part of the Assets of the Series
Trust.
"Mortgage Insurance Principal Proceeds" in relation to a Determination Date
means all amounts received by the Trustee pursuant to any Mortgage
Insurance Policy in relation to any Mortgage Loan then forming part of the
Assets of the Series Trust which the Manager determines should be accounted
for on that Determination Date in respect of a Principal Loss.
"Mortgage Interest Saver Account" means a deposit account maintained by a
Borrower with the Seller under which interest that would otherwise be
earned in respect of the account is off-set (to the extent thereof) against
interest that would otherwise be payable on a Mortgage Loan provided by the
Seller to the Borrower.
"Mortgage Loan" means each mortgage loan assigned or to be assigned (as the
case may be) to the Trustee and referred to in the Sale Notice (if issued).
18.
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"Mortgage Loan Principal" at any time in relation to a Mortgage Loan means
the principal outstanding at that time in respect of that Mortgage Loan.
"Mortgage Loan Rights" means each of the items (together with all rights,
title and interest in each of those items) referred to in clause 4.5
assigned, or which may be assigned, as the case may be, in accordance with
this Deed to the Trustee as trustee of the Series Trust or the CBA Trust.
"Mortgage Loan System" means the electronic and manual reporting database
and record keeping system used by the Servicer to monitor Mortgage Loans,
as updated and amended from time to time.
"Mortgage Rate" in relation to a Mortgage Loan means the rate of interest
payable on the corresponding Mortgage Loan Principal, as such rate may be
varied from time to time in accordance with the relevant Mortgage Documents
or any laws.
"Mortgage Receivables" in relation to a Mortgage Loan means all moneys,
present and future, actual or contingent, owing at any time in respect of
or in connection with the Mortgage Loan under the corresponding Mortgage
Documents, including all principal, interest, reimbursable costs and
expenses and any other amounts incurred by or payable to the Seller
(including any payments made by the Seller on behalf of the Borrower in
relation to the Mortgage Loan) irrespective of whether:
(a) such amounts become due and payable before or after the Cut-Off Date;
and
(b) such amounts relate to advances made or other financial accommodation
provided by the Seller to the Borrower before or after the Cut-Off
Date.
"Mortgage Transfer" in relation to a Mortgage means a duly executed land
titles office transfer which, upon registration, is effective to transfer
the legal title to the Mortgage to the Trustee.
"Mortgaged Property" in relation to a Mortgage means the Land and all other
property mortgaged under that Mortgage.
"Net Break Payment" in relation to a Determination Date means the amount
calculated as follows:
NBP = BC - BB
where:
NBP = the Net Break Payment;
BC = the Break Costs in relation to that Determination Date; and
BB = the Break Benefits in relation to that Determination Date,
provided that there will only be a Net Break Payment if the result of the
above calculation is greater than zero.
"Net Break Receipt" in relation to a Determination Date means the amount
calculated as follows:
NBR = BB - BC
where:
NBR = the Net Break Receipt;
BB = the Break Benefits in relation to that Determination Date; and
19.
<PAGE>
BC = the Break Costs in relation to that Determination Date,
provided that there will only be a Net Break Receipt if the result of the
above calculation is greater than zero.
"Net Scheduled Principal Amount" in relation to a Determination Date means
the amount calculated as follows:
NSPA = PC - NUPD
where:
NSPA = the Net Scheduled Principal Amount;
PC = the Principal Collections for the Collection Period ending on
that Determination Date; and
NUPD = the Net Unscheduled Principal Deduction for that Determination
Date,
provided that there will only be a Net Scheduled Principal Amount if the
result of the above calculation is greater than zero.
"Net Unscheduled Principal Amount" in relation to a Determination Date
means the amount calculated as follows:
NUPA = GUPA - SA + SRFP - RBD
where:
NUPA = the Net Unscheduled Principal Amount;
GUPA = the Gross Unscheduled Principal Amount on that Determination
Date;
SA = the Seller Advances outstanding on that Determination Date;
SRFP = the Standby Redraw Facility Principal on that Determination Date;
and
RBD = the amount (if any) to be paid with respect to the Redraw Bonds
pursuant to clause 10.5(a) on the following Distribution Date,
provided that there will only be a Net Unscheduled Principal Amount if the
result of the above calculation is greater than zero.
"Net Unscheduled Principal Deduction" in relation to a Determination Date
means the amount calculated as follows:
NUPD = SA + SRFP _ RBD - GUPA
where:
NUPD = the Net Unscheduled Principal Deduction;
GUPA = the Gross Unscheduled Principal Amount on that Determination
Date;
SA = the Seller Advances outstanding on that Determination Date;
SRFP = the Standby Redraw Facility Principal on that Determination Date;
and
RBD = the amount (if any) to be paid with respect to the Redraw Bonds
pursuant to clause 10.5(a) on the following Distribution Date,
20.
<PAGE>
provided that there will only be a Net Unscheduled Principal Deduction if
the result of the above calculation is greater than zero.
"Note" means, as the context requires, a Class A Note, a Class B Note or
both.
"Noteholder" means, as the context requires, a Class A-1 Noteholder, a
Class A-2 Noteholder, a Class B Noteholder or any combination of the
foregoing.
"Other Income Amounts" in respect of a Determination Date and a Collection
Period ending on that Determination Date means the aggregate of:
(a) any amounts received by the Trustee during the Collection Period
pursuant to clauses 14 and 16 which represent amounts in respect of
accrued but unpaid interest and fees on the Mortgage Loans;
(b) any amounts received by the Trustee during the Collection Period
pursuant to clause 26.3 which represent amounts in respect of
interest and fees on the Mortgage Loans;
(c) any damages received by the Trustee in the Collection Period (other
than pursuant to clauses 14 and 16) and allocated by the Manager as
Other Income Amounts in accordance with clause 27.5;
(d) subject to clause 22.12, interest and other investment income earned
and received on moneys standing to the credit of the Collections
Account during the Collection Period (other than interest earned on
the Collections Account during the Collection Period in respect of the
Cash Advance Deposit as calculated in accordance with clause 8.6, the
Seller Deposit as calculated in accordance with clause 15.5 or the
Interest Rate Swap Provider Deposit as calculated in accordance with
clause 8.8) and any amounts representing interest paid by the
Servicer pursuant to clause 22.5 in respect of that Collection Period;
(e) interest and other investment income earned and received on Authorised
Short-Term Investments during the Collection Period (other than
interest attributable to the Seller Deposit calculated in accordance
with clause 15.5 and the Interest Rate Swap Provider Deposit
calculated in accordance with clause 8.8);
(f) subject to clause 9.3, any other receipts in the nature of income (as
determined by the Manager) which have been received by the
Determination Date in respect of the Collection Period; and
(g) any amount of input tax credits (as defined in the GST Act) received
by the Trustee in the Collection Period in respect of the Series
Trust,
in each case which have not previously been applied in accordance with this
Deed.
"Other Loans" in relation to a Mortgage Loan means all loans, credit and
financial accommodation of whatever nature (other than the Mortgage Loan)
the payment or repayment of which is secured by a Mortgage, or by a
Collateral Security, which also secures that Mortgage Loan or another Other
Loan in relation to that Mortgage Loan.
"Other Principal Amounts" in relation to a Determination Date and the
Collection Period ending on that Determination Date means the aggregate of:
(a) any Mortgage Insurance Principal Proceeds in respect of that
Determination Date;
(b) the aggregate Liquidation Proceeds in respect of the Mortgage Loans
received during the Collection Period other than Liquidation Proceeds
included in Finance Charge Collections for that Collection Period;
(c) the Principal Prepayments with respect to the Collection Period;
21.
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(d) any amounts received by the Trustee during the Collection Period
pursuant to clauses 14 and 16 which represent amounts in respect of
principal on the Mortgage Loans;
(e) any amounts received by the Trustee during the Collection Period
pursuant to clause 26.3 which represent amounts in respect of
principal on the Mortgage Loans;
(f) any damages received by the Trustee during the Collection Period
(other than pursuant to clauses 14 and 16) and allocated by the
Manager as Other Principal Amounts in accordance with clause 27.5;
(g) in the case of the first Determination Date, the amount (if any) by
which the Subscription Proceeds exceed the Consideration;
(h) any amount remaining unpaid on the previous Distribution Date as a
result of the application of clause 5.10 in respect of principal; and
(i) any other receipts in the nature of principal (as determined by the
Manager) which have been received by the Determination Date in respect
of the Collection Period,
in each case which have not previously been applied in accordance with this
Deed.
"Paying Agent" has the same meaning as in the Agency Agreement.
"Penalty Payment" means:
(a) the amount of any liability (including, without limitation, any civil
or criminal penalty) which the Trustee is liable for under the
Consumer Credit Code;
(b) any other liability payable by the Trustee, or legal costs or other
expenses payable or incurred by the Trustee, in relation to such
liability;
(c) any amount which the Trustee agrees to pay (with the consent of the
Servicer) to a debtor or other person in settlement of any application
for an order under Part 6 of the Consumer Credit Code; and
(d) any legal costs or other costs and expenses payable or incurred by the
Trustee in relation to that application,
to the extent to which a person can be indemnified for that liability,
money or amount under the Consumer Credit Code.
"Perfection of Title Event" means each event referred to in clause 24.1.
"Pool Factor" in relation to a Security at any given time means the amount
(expressed as a percentage to 7 decimal places) calculated as follows:
PF= A
-
B
where:
PF = the Pool Factor in relation to that Security;
A = the Stated Amount for that Security as at that time; and
B = the Initial Invested Amount for that Security.
"Pool Performance Data" means performance data in respect of the Securities
on a Determination Date consisting of prepayment rates, arrears data and
default data in respect
22.
<PAGE>
of Mortgage Loans then forming part of the Assets of the Series Trust, the
Pool Factor at the last Determination Date and the Pool Factor on the
present Determination Date, the principal outstanding on the Securities,
the Interest Rates in respect of the A$ Securities, the Class A-1 Interest
Rate (as defined in the Class A-1 Note Conditions) for the Class A-1 Notes
and such other information as the Manager may consider necessary from time
to time.
"Potential Termination Event" means:
(a) as a result of the introduction, imposition or variation of any law it
is unlawful for the Trustee, and would also be unlawful for any new
Trustee, to carry out any of its obligations under this Deed, the
Master Trust Deed (in so far as it relates to the Series Trust), the
Class A-1 Note Trust Deed, the Class A-1 Notes or the Security Trust
Deed; or
(b) this Deed, the Master Trust Deed (in so far as it relates to the
Series Trust) the Class A-1 Note Trust Deed, the Class A-1 Notes or
the Security Trust Deed is or has become void, illegal, unenforceable
or of limited force and effect.
"Powers of Attorney" means the powers of attorney referred to in clause
6.1(n).
"Preliminary Income Amount" in relation to a Determination Date means the
amount calculated as follows:
PIA = FCC + MIIP + OI
where:
PIA = the Preliminary Income Amount for that Determination Date;
FCC = the Finance Charge Collections for the Collection Period ending
on that Determination Date;
MIIP = the aggregate Mortgage Insurance Income Proceeds for that
Determination Date; and
OI = any Other Income Amounts in respect of the Collection Period
ending on that Determination Date and which has not previously
been applied in accordance with this Deed.
"Prescribed Period" in relation to a Mortgage Loan means the period of 120
days (including the last day of that period) commencing on the Closing Date
or such longer period as may be agreed between the Australian Prudential
Regulation Authority, the Trustee, the Seller and the Manager.
"Principal Charge-off" in relation to a Determination Date means an amount
calculated as follows:
PCO = PL - MIPP - PD
where:
PCO = the Principal Charge-off as at that Determination Date;
PL = the total of the Principal Loss on each Mortgage Loan for which
the Manager determines a Principal Loss should be accounted for
on that Determination Date (provided that the Manager must not
account for a Principal Loss on a Mortgage Loan until the
Servicer reasonably believes that no further amounts in respect
of the Mortgage Loan constituting Mortgage Insurance Principal
Proceeds or damages under clauses 14 and 16 which are to be
treated as Other Principal Amounts will be received);
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MIPP = the total Mortgage Insurance Principal Proceeds with respect to
such Mortgage Loans as at that Determination Date; and
PD = any damages received by the Trustee from the Seller under clause
14 or from the Seller or the Servicer under clause 16 in
respect of such Mortgage Loans which are determined to be Other
Principal Amounts in accordance with clause 27.5.
"Principal Charge-off Reimbursement" in relation to a Determination Date
and the Collection Period ending on that Determination Date means an amount
calculated as follows:
PCOR = PIA - RIA
where:
PCOR = the Principal Charge-off Reimbursement as at that Determination
Date;
PIA = the Preliminary Income Amount as at such Determination Date; and
RIA = the Required Income Amount as at that Determination Date,
provided that there will only be a Principal Charge-off Reimbursement if
the result of the above calculation is greater than zero and provided
further that where the result of the above calculation exceeds the
Unreimbursed Principal Charge-offs as at the previous Determination Date
plus the Principal Charge-offs calculated as at the current Determination
Date, the Principal Charge-off Reimbursement will equal such amount.
"Principal Collections" in relation to a Collection Period means the
aggregate of the following amounts (without double counting) received by or
on behalf of the Trustee during that Collection Period in respect of the
Mortgage Loans then forming part of the Assets of the Series Trust:
(a) all amounts received under or in respect of the Mortgage Loans in
respect of principal (less reversals made during the period in respect
of interest or other charges in relation to any of the accounts where
the original debit entry (or part thereof) was in error); and
(b) all amounts of principal payable under or in respect of the Mortgage
Loans and the Mortgage Loan Rights to the extent that the obligations
to pay such amounts are discharged by the exercise during that
Collection Period of a right of set-off or right to combine accounts,
but does not include the Preliminary Income Amount or Other Principal
Amounts in relation to that Determination Date.
"Principal Loss" in relation to a Mortgage Loan and a Liquidation Date
means an amount calculated as follows:
PL = MLP + RE - BC - LP
where:
PL = the Principal Loss as at the Liquidation Date;
MLP = the Mortgage Loan Principal as at the Liquidation Date;
RE = the Restoration Expenses reasonably and necessarily incurred up
to and including the Liquidation Date;
BC = the Break Costs as at the Liquidation Date provided that Break
Costs
24.
<PAGE>
will only be included in the calculation of Principal Loss if the
Trustee is then a party to a Fixed Rate Swap; and
LP = any Liquidation Proceeds received up to and including the
Liquidation Date provided that for the purposes of this paragraph
Liquidation Proceeds will not include any Liquidation Proceeds
which have been applied against an Income Loss or are to be
applied against an Income Loss on the Liquidation Date,
provided that there will only be such a Principal Loss if the result of the
above calculation is greater than zero.
"Principal Paying Agent" has the same meaning as in the Agency Agreement.
"Principal Prepayments" in relation to a Collection Period means all
amounts received by or on behalf of the Trustee during that Collection
Period under or in respect of the Mortgage Loans then forming part of the
Assets of the Series Trust in respect of principal prepayments made by or
on behalf of the Borrower in relation to that Mortgage Loan (less reversals
made during the period in respect of interest or other charges in relation
to any of the accounts where the original debit entry (or part thereof) was
in error) to the extent that the amount exceeds the then scheduled monthly
instalment of principal that would be payable under that Mortgage Loan
(including previous unpaid instalments of principal) during that Collection
Period.
"Privacy Act" means the Privacy Act 1988 (Commonwealth).
"Property Protection Expenses" in relation to a Mortgage Loan means the
aggregate amount of any costs or expenses actually paid or incurred by the
Servicer, the Seller or the Trustee in connection with the maintenance,
preservation and protection of the corresponding Mortgaged Property in its
existing state of repair at its existing value, including, without
limitation:
(a) any real estate property Taxes, statutory charges or other outgoings
payable in connection with the corresponding Mortgaged Property; and
(b) any insurance premiums payable under any Insurance Policy with respect
to the corresponding Mortgaged Property,
provided that Property Protection Expenses will not include any Mortgage
Enforcement Expenses or any Restoration Expenses.
"Quarterly Certificate" means the certificate prepared on each
Determination Date by the Manager pursuant to clause 27.2(a) substantially
in the form set out in Schedule 8 (or in such other form as is from time
to time agreed between the Manager and the Trustee).
"Rate Set Date" in relation to an Accrual Period means the first day of
that Accrual Period.
"Rating Agencies" means S&P, Moody's and Fitch IBCA.
"Redraw Bond" means a debt security issued by the Trustee, in its capacity
as trustee of the Series Trust, in accordance with clause 5.4 and forming
part of the Class of Securities described in clause 5.1(d) as Redraw
Bonds.
"Redraw Bond Amount" in relation to a Determination Date means the proceeds
(if any) received by the Trustee from any issue of Redraw Bonds on the
Determination Date or during the Collection Period ending on that
Determination Date (but excluding the immediately preceding Determination
Date).
"Redraw Bond Charge-off Percentage" in relation to a Determination Date
means the amount (expressed as a percentage) calculated as follows:
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RBSA
RBCP= ---------------------------
CA1SA + CA2SA + RBSA + SRFP
where:
RBCP = the Redraw Bond Charge-Off Percentage in relation to
that Determination Date;
CA1SA = the A$ Equivalent of the aggregate Stated Amounts of the
Class A-1 Notes on that Determination Date;
CA2SA = the aggregate Stated Amounts of the Class A-2 Notes on
that Determination Date;
RBSA = the aggregate Stated Amount of the Redraw Bonds on that
Determination Date; and
SRFP = the Standby Redraw Facility Principal on that
Determination Date.
"Redraw Bond Principal Limit" means [A$50] million or such other amount
from time to time agreed between the Rating Agencies and the Manager and
notified by the Manager to the Trustee.
"Redraw Bondholder" means at any time the person recorded at that time in
the Register as the holder of a Redraw Bond.
"Required Credit Rating" has the meaning specified in clause 27.1.
"Required Income Amount" in relation to a Determination Date means the
aggregate of the amounts referred to in clauses 10.2(a)-(l) inclusive for
the following Distribution Date provided that, in respect only of the first
Determination Date, the amount payable by the Trustee to the Seller under
clause 10.1 will be included in the Required Income Amount.
"Relevant Party" means each party to a Transaction Document other than the
Trustee.
"Residual Unit" means the single unit in the Series Trust referred to in
clause 3.1.
"Residual Unitholder" means initially the Commonwealth Bank of Australia
and, thereafter, the person from time to time appearing in the Register for
the Series Trust as the holder of the Residual Unit.
"Restoration Expenses" in relation to a Mortgage Loan means the aggregate
amount of any costs or expenses actually paid or incurred by the Servicer,
the Seller or the Trustee in connection with the restoration of the
corresponding Mortgaged Property including, without limitation, any costs
or expenses:
(a) in restoring the corresponding relevant Mortgaged Property to its
condition as at the date on which the Mortgage Loan was made to the
Borrower; and
(b) in connection with the reduction, elimination or clean-up of any
environmental hazard relating to the corresponding Mortgaged Property,
provided that Restoration Expenses will be calculated without reference to
the fact that the amount expended was paid from the Servicer's, the
Seller's or the Trustee's own funds or from Insurance Proceeds or from any
other source whatsoever and provided further that Restoration Expenses will
not include any Property Protection Expenses or Mortgage Enforcement
Expenses.
"S&P" means Standard & Poor's (Australia) Pty. Limited and its successors
and assigns.
"Sale Notice" means a notice from the Seller to the Trustee in or
substantially in the form of Schedule 1 (or in such other form as may be
agreed between the Seller, the Manager and
26.
<PAGE>
the Trustee).
"Scheduled Balance" in relation to a Mortgage Loan means the amount that
Borrower had made, prior to that date, the minimum payments required under
the Mortgage Loan.
"Scheduled Maturity Date" means the Distribution Date occurring on 12 July
2031 (or if this is not a Business Day, on the next succeeding Business
Day).
"Second Layer of Collateral Securities" in relation to a Mortgage Loan
means all Collateral Securities in respect of the Mortgage Loan which do
not constitute the First Layer of Collateral Securities for the Mortgage
Loan.
"Secured Creditor" has the same meaning as in the Security Trust Deed.
"Securities Act" means the United States Securities Act of 1933 as amended.
"Security" means as the context requires a Class A-1 Note, an A$ Security
or both.
"Securityholder" means a Noteholder or a Redraw Bondholder or both, as the
context may require.
"Security Register" means the system which is used by the Seller to record
Security Interests granted to the Seller to secure the repayment of a
Mortgage Loan originated by the Seller.
"Security Trust Deed" means the Security Trust Deed dated on or about the
date of this Deed between the Trustee, the Manager, the Note Trustee and
the Security Trustee.
"Security Trustee" means the person who is for the time being the trustee
under the Security Trust Deed.
"Security Trustee's Expenses" means the costs and fees to be reimbursed to
the Security Trustee on each Distribution Date in accordance with clause
19.4(b).
"Security Trustee's Fee" means the fee payable to the Security Trustee on
each Distribution Date in accordance with clause 19.4(a).
"Seller Advance" means an advance made by the Seller to a Borrower pursuant
to Clause 16.20(c) or clause 16.21(c) on or after the Cut-Off Date which
appears in the records of the Servicer or on the Security Register as
secured by a Mortgage which also secures a Mortgage Loan.
"Seller Deposit" means at any time that amount of the Set-Off Account that
comprises deposits made by the Seller in accordance with clause 15.3(a).
"Series Trust" means the trust known as the Series 2000-1G Medallion Trust
established pursuant to this Deed and the Master Trust Deed.
"Servicer" means Commonwealth Bank of Australia or if Commonwealth Bank of
Australia is removed or retires as Servicer, any then Substitute Servicer
and includes the Trustee when acting as Servicer in accordance with clause
18.7.
"Servicer Default" means the occurrence of any event specified in clause
18.1.
"Servicer's Fee" means the remuneration payable to the Servicer pursuant to
clause 19.3.
"Servicing Guidelines" means the written guidelines, policies and
procedures established by the Servicer for servicing mortgage loans
recorded on the Mortgage Loan System, including the Mortgage Loans, as
amended or updated in writing from time to time.
"Servicing Standards" at any given time means the standards and practices
set out in the
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then Servicing Guidelines and, to the extent that a servicing function is
not covered by the Servicing Guidelines, the standards and practices of a
prudent lender in the business of making retail home loans.
"Servicing Transfer" means the appointment of a new Servicer in accordance
with clause 18.
"Set-Off Account" has the meaning given to this term in clause 15.3.
"Settlement Date" in relation to a Mortgage Loan means the date on which an
agreement between the Seller and a Borrower for the making of the Mortgage
Loan was made.
"Shared Security" means any Security Interest, guarantee, indemnity or
other form of assurance that by its terms secures both (on the one hand)
the payment or repayment of any Mortgage Loan forming or to form part of
the Assets of the Series Trust and (on the other hand) any Other Loan
forming or to form part of the CBA Trust Assets.
"Specified Rating" means a long term debt rating by S&P of BBB, by Moody's
of Baa2 and by Fitch IBCA of BBB.
"Standby Redraw Charge-off Percentage" in relation to a Determination Date
means the amount (expressed as a percentage) calculated as follows:
SRFP
SRCP = ---------------------------
CA1SA + CA2SA + RBSA + SRFP
where:
SRCP = the Standby Redraw Charge-off Percentage in relation to that
Determination Date;
CA1SA = the A$ Equivalent of the aggregate Stated Amounts of the Class
A-1 Notes on that Determination Date;
CA2SA = the aggregate Stated Amounts of the Class A-2 Notes on that
Determination Date;
RBSA = the aggregate Stated Amounts of the Redraw Bonds on that
Determination Date; and
SRFP = the Standby Redraw Facility Principal on that Determination
Date.
"Standby Redraw Facility" means a standby redraw facility made available by
a Standby Redraw Facility Provider to the Trustee pursuant to the Standby
Redraw Facility Agreement.
"Standby Redraw Facility Advance" in relation to a Distribution Date means
the amount to be drawn down by the Trustee under a Standby Redraw Facility
on that Distribution Date.
"Standby Redraw Facility Agreement" means the Standby Redraw Facility
Agreement dated on or about the date of this Deed between the Trustee, the
Manager and the Standby Redraw Facility Provider and includes any
substitute standby redraw facility agreement entered into by the Trustee as
trustee of the Series Trust in place of an existing Standby Redraw Facility
Agreement.
"Standby Redraw Facility Commitment Fee" means in relation to a
Determination Date and the immediately following Distribution Date, the
commitment fee payable to the Standby Redraw Facility Provider on that
Distribution Date pursuant to the Standby Redraw Facility Agreement.
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"Standby Redraw Facility Interest" in relation to a Distribution Date means
the interest due on that Distribution Date pursuant to the terms of a
Standby Redraw Facility Agreement.
"Standby Redraw Facility Limit" means the Facility Limit from time to time
as defined in the Standby Redraw Facility Agreement.
"Standby Redraw Facility Principal" has the same meaning as in the Standby
Redraw Facility Agreement.
"Standby Redraw Facility Provider" means initially the Commonwealth Bank of
Australia and each other person who may from time to time provide a Standby
Redraw Facility.
"Stated Amount" in relation to:
(a) a Class A-1 Note at any given time has the same meaning as in the
Class A-1 Note Conditions; and
(b) an A$ Security at any given time means the Initial Invested Amount of
that A$ Security at that time less the sum of the following at that
time:
(i) the aggregate of all amounts previously paid in relation to
that A$ Security on account of principal pursuant to clause
10.3(c); and
(ii) the aggregate of all then Unreimbursed Principal Charge-offs
in relation to that A$ Security.
"Stepdown Percentage" in relation to a Determination Date means the
percentage calculated in accordance with Schedule 10 for that
Determination Date.
"Step-Up Margin" means in relation to a Class A-2 Note, [_]% per annum.
"Subscription Proceeds" means the amounts paid or to be paid by the
underwriters for the Class A-1 Notes under the Underwriting Agreement
(converted into A$ pursuant to the Class A-1 Currency Swaps) and the
amounts paid by the subscribers for the Class A-2 Notes and the Class B
Notes under the Dealer Agreement, without taking into account in reduction
of such amounts any fees or other amounts paid to such underwriters by or
on behalf of the Trustee.
"Substitute Servicer" means at any given time the entity then appointed as
Servicer under clause 18.6.
"Support Facilities" means the agreements or arrangements referred to in
clause 1.7 or such other agreement or arrangement which the Trustee and
the Manager agree is a Support Facility for the purposes of this Deed.
"Support Facility Provider" means the person or persons providing any
applicable Support Facility to the Trustee as trustee of the Series Trust.
"Swap" means, as the context requires, the Basis Swap, the Fixed Rate Swap,
the Class A-1 Currency Swap or all of the foregoing.
"Termination Date" means the earliest of the following dates:
(a) the date which is 80 years after the date of the constitution of the
Series Trust in accordance with this Deed and the Master Trust Deed;
(b) the date that the Trustee becomes obliged pursuant to clause 26.1(d)
to liquidate the Assets of the Series Trust following the occurrence
of a Potential Termination Event;
(c) if Securities have been issued by the Trustee, the date appointed by
the Manager as the Termination Date by notice in writing to the
Trustee, which must not be
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a date prior to the earlier of the following:
(i) the date that all Securities have been redeemed in full; or
(ii) if an Event of Default (as defined in the Security Trust Deed)
occurs and the Charge is enforced, the date of the final
distribution by the Security Trustee under the Security Trust
Deed; and
(d) if no Securities have been issued by the Trustee, the date appointed
by the Manager as the Termination Date by notice in writing to the
Trustee.
"Termination Payment Date" means the date declared by the Trustee to be the
Termination Payment Date of the Series Trust pursuant to clause 26.2
(subject to any substitution of another date as the Termination Payment
Date in accordance with that clause).
"Threshold Rate" means, at any time, the minimum rate of interest that must
be set on all Mortgage Loans (where permitted by the terms of the Mortgage
Loan and corresponding Loan Agreement) which will be sufficient (assuming
that all relevant parties comply with their obligations at all times under
the Transaction Documents and the Mortgage Documents), when aggregated with
the income produced by the rate of interest on all other Mortgage Loans and
the income from Short-Term Authorised Investments, to ensure that the
Trustee will have available to it sufficient Finance Charge Collections and
Other Income Amounts to enable it to comply with its obligations under the
Transaction Documents as they fall due.
"Trustee" means Perpetual Trustee Company Limited or if Perpetual Trustee
Company Limited retires or is removed as trustee of the Series Trusts (as
defined in the Master Trust Deed) and the CBA Trust, any then Substitute
Trustee and includes the Manager when acting as the Trustee in accordance
with the terms of the Master Trust Deed.
"Trustee's Fee means the fee payable to the Trustee on each Distribution
Date calculated in accordance with clause 19.2.
"Underwriting Agreement" means the Underwriting Agreement dated after the
date of this Deed between the Trustee, the Manager, Commonwealth Bank of
Australia and J.P. Morgan Securities Inc. as representative for the
Underwriters named therein pursuant to which, subject to the terms and
conditions contained therein, the Trustee will agree to issue, and each of
the Underwriters named therein will severally agree to subscribe for, the
Class A-1 Notes.
"Unpaid Interest Amount" in relation to an A$ Security and a Distribution
Date means the aggregate of any Interest Amounts in relation to that A$
Security remaining unpaid from previous Distribution Dates and any interest
accrued but remaining unpaid on that A$ Security as at that Distribution
Date pursuant to clause 5.8(b).
"Unreimbursed Principal Charge-offs" in relation to:
(a) a Class A-1 Note at any time has the same meaning as in the Class A-1
Note Conditions; and
(b) an A$ Security and the Standby Redraw Facility Principal at any time
means the aggregate of the Principal Charge-offs up to and including
that time allocated to the A$ Security or the Standby Redraw Facility
Principal (as the case may be) in accordance with clause 9.1 less the
aggregate of the Principal Charge-off Reimbursements prior to that
time allocated to the A$ Security or the Standby Redraw Facility
Principal (as the case may be) in accordance with clause 9.2.
"US$" and "US dollars" means the lawful currency for the time being of the
United States of America.
"US$ Equivalent" in relation to an amount which is calculated, determined
or expressed in A$ or which includes a component determined or expressed in
A$ means the A$ amount
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or A$ component (as the case may be) multiplied by the US$ Exchange Rate.
"US$ Exchange Rate" means "US$ Exchange Rate" specified in paragraph 7 of
the confirmation for each Class A-1 Currency Swap.
1.2 Interpretation
In this Deed, unless the contrary intention appears:
(a) a reference to this Deed includes the Recitals and the Schedules;
(b) a reference to a statute, ordinance, code or other law includes
regulations and other instruments under it and consolidations,
amendments, re-enactments or replacements of any of them;
(c) a reference to a section of a statute, ordinance, code or other law
includes any consolidation, amendment, re-enactment or replacement of
that section;
(d) the singular includes the plural and vice versa and words denoting a
gender include all other genders;
(e) the word "person" includes an individual, a body politic, a
corporation and a statutory or other authority or association
(incorporated or unincorporated);
(f) a reference to a person includes a reference to the person's
executors, administrators, successors, substitutes (including, without
limitation, persons taking by novation) and assigns;
(g) the word "corporation" means any body corporate wherever formed or
incorporated including, without limiting the generality of the
foregoing, any public authority or any instrumentality of the Crown;
(h) where a word or phrase has a defined meaning any other part of speech
or grammatical form in respect of such word or phrase has a
corresponding meaning;
(i) a reference to any thing (including, without limitation, any amount)
is a reference to the whole or any part of it and a reference to a
group of persons is a reference to any one or more of them;
(j) if an act prescribed under this Deed to be done by a party on or by a
given day is done after 5.30 p.m. on that day, it is to be taken to be
done on the following day;
(k) references to time are to Sydney time;
(l) the expression "certified" by a corporation or person means certified
in writing by 2 Authorised Officers of the Corporation or by that
person respectively and "certify" and like expressions will be
construed accordingly;
(m) a reference to extinguish includes a reference to rights and interests
being surrendered and released;
(n) a reference to a "month" is to a calendar month;
(o) the expression "owing" includes amounts that are owing whether such
amounts are liquidated or not or are contingent or presently accrued
or due and includes all rights sounding in damages only;
(p) a reference to "wilful default" in relation to the Trustee, the
Manager or the Servicer means, subject to clause 1.2(q), any wilful
failure to comply, or wilful breach, by the Trustee, the Manager or
the Servicer (as the case may be)
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of any of its obligations under any Transaction Document, other than a
failure or breach which:
(i) A. arises as a result of a breach of a Transaction Document by
a person other than the Trustee, the Manager or the
Servicer (as the case may be) or other than any person
referred to in clause 1.2(q) in relation to the Trustee,
the Manager or the Servicer (as the case may be); and
B. the performance of the action (the non-performance of which
gave rise to such breach) is a pre-condition to the
Trustee, the Manager or the Servicer (as the case may be)
performing the said obligation; or
(ii) is in accordance with a lawful court order or direction or is
required by law; or
(iii) is in accordance with a proper instruction or direction of:
A. the Secured Creditors given at a meeting (or deemed meeting)
of Secured Creditors convened under the Security Trust Deed;
or
B. the Investors given at a meeting (or deemed meeting)
convened under the Master Trust Deed;
(q) a reference to the "fraud", "negligence" or "wilful default" of the
Trustee, the Manager or the Servicer means the fraud, negligence or
wilful default of the Trustee, the Manager or the Servicer (as the
case may be) and of its officers, employees, agents or any other
person where the Trustee, the Manager or the Servicer (as the case may
be) is liable for the acts or omissions of such other person under the
terms of any Transaction Document;
(r) subject to clause 31.2, each party will only be considered to have
knowledge or awareness of, or notice of, a thing or grounds to believe
anything by virtue of the officers of that party (or any Related Body
Corporate of that party) having day to day responsibility for the
administration or management of that party's (or a Related Body
Corporate of that party's) obligations in relation to the Series Trust
or the CBA Trust, having actual knowledge, actual awareness or actual
notice of that thing, or grounds or reason to believe that thing (and
similar references will be interpreted in this way). In addition,
notice, knowledge or awareness of a Servicer Default, Manager Default,
Trustee Default or Perfection of Title Event means notice, knowledge
or awareness of the occurrence of the events or circumstances
constituting the Servicer Default, Manager Default, Trustee Default or
Perfection of Title Event (as the case may be);
(s) subject to clause 1.12 a reference to this Deed, the Master Trust
Deed or any other deed, Agreement, document or instrument includes
respectively this Deed, the Master Trust Deed or such other deed,
Agreement, document or instrument as amended, novated, supplemented or
replaced from time to time;
(t) a reference to the enforcement of the Charge means that the Security
Trustee appoints (or the Voting Secured Creditors as contemplated by
clause 8.4 of the Security Trust Deed appoint) a Receiver over any
Charged Property, or takes possession of any Charged Property,
pursuant to the Security Trust Deed (expressions used in this clause
which are not defined in this Deed have the same meanings as in the
Security Trust Deed);
(u) a reference to a clause or a Schedule is a reference to a clause or a
Schedule of this Deed; and
(v) headings are inserted for convenience and do not affect the
interpretation of this Deed.
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1.3 Master Trust Deed Definitions
Subject to clause 1.12 unless defined in this Deed, words and phrases
defined in the Master Trust Deed have the same meaning in this Deed. Where
there is any inconsistency in a definition between this Deed and the Master
Trust Deed, this Deed prevails. Where words or phrases used in this Deed
are defined in the Master Trust Deed in relation to a Series Trust (as
defined as the Master Trust Deed) and/or an Other Trust such words or
phrases are to be construed, where necessary, as being used only in
relation to the Series Trust (as defined in this Deed) and/or the CBA
Trust, as the context requires.
1.4 Business Day Convention
(a) (Next Business Day): When the date on or by which any act, matter or
thing is to be done is not a Business Day, the act, matter or thing
must (unless expressly provided otherwise) be done on the next
Business Day.
(b) (Determination Dates): Clause 1.4(a) does not apply to any act,
matter or thing to be done on a Determination Date.
1.5 Master Trust Deed Inconsistency
In accordance with clause 1.3 of the Master Trust Deed the provisions
contained in this Deed apply only in relation to the Series Trust. If there
is any conflict between the provisions of this Deed and the provisions of
the Master Trust Deed, the provisions contained in this Deed prevail over
the provisions of the Master Trust Deed in respect of the Series Trust.
Without limiting the generality of the foregoing, the provisions of the
Transaction Documents (other than the Master Trust Deed) insofar as they
apply to the Securities (as defined herein) prevail over any inconsistent
provision in the Master Trust Deed that would otherwise apply to such
Securities.
1.6 Exclusion of Master Trust Deed Definitions and Provisions
(a) (Variation of Terms): For the purposes of the Master Trust Deed (in
so far as it applies to the Series Trust):
(i) "Transaction Document" means each of the following documents:
A. the Master Trust Deed (in so far as it applies to the
Series Trust);
B. this Deed;
C. each document specified in clause 1.7 as a Support
Facility;
D. the Security Trust Deed;
E. the Dealer Agreement;
F. the Underwriting Agreement;
G. the Class A-1 Note Trust Deed;
H. the Class A-1 Notes;
I. the Agency Agreement; and
J. any other document which is agreed by the Manager and the
Trustee to be a Transaction Document in relation to the
Series Trust;
(ii) a "Security" has the same meaning as in this Deed; and
(iii) a "Securityholder" has the same meaning as in this Deed.
(b) (Meeting procedures): The procedures for convening a meeting of the
Securityholders or the Class A-1 Noteholders for the purposes of
clause 26 of the Master Trust Deed, in so far as those procedures
apply to the Securityholders or the Class A-1 Noteholders (as the
context requires), are varied as follows:
(i) if the Class A-1 Noteholders are included within the, or are
the only,
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Relevant Investors for the purposes of a meeting under clause
26 of the Master Trust Deed:
A. any notice of a meeting given or required to be given to the
Class A-1 Noteholders must also be given to the Class A-1
Note Trustee;
B. any notice given to Class A-1 Noteholders of a meeting under
clause 26 of the Master Trust Deed must be given in
accordance with Condition 11.1 of the Class A-1 Note
Conditions (in lieu of notice pursuant to clause 26.2(e) of
the Master Trust Deed); and
C. a meeting under clause 26 of the Master Trust Deed at which
the Class A-1 Note Trustee is the only Relevant Investor
pursuant to clause 1.6(b)(ii) must not, unless otherwise
agreed by the Class A-1 Note Trustee, be held until the
Class A-1 Note Trustee has had the opportunity of seeking
and obtaining directions from the Class A-1 Noteholders
regarding how the Class A-1 Note Trustee is to vote at the
meeting;
(ii) the Relevant Investors in relation to the Class A-1 Notes, for
the purposes of clause 26 of the Master Trust Deed, means the
Class A-1 Note Trustee alone, acting on behalf of the Class A-1
Noteholders under the Class A-1 Note Trust Deed or, if the Class
A-1 Note Trustee has become bound to take steps and/or to
proceed under the Class A-1 Note Trust Deed and fails to do so
within a reasonable time and such failure is continuing, the
Class A-1 Noteholders;
(iii) if the Class A-1 Note Trustee is the only Relevant Investor in
relation to the Class A-1 Notes pursuant to clause 1.6(b)(ii),
it will be regarded as a Representative holding or representing
all of the Class A-1 Notes for the purposes of determining
whether a quorum is present at such meeting, for determining the
votes to which the Class A-1 Note Trustee is entitled to cast at
such meeting and any other relevant matter relating to such
meeting;
(iv) if the Class A-1 Noteholders become entitled to attend a meeting
of Relevant Investors pursuant to clause 1.6(b)(ii), the
evidence of the entitlement of such Class A-1 Noteholders to
attend such meeting and to vote thereat, and any other relevant
matters, will be determined in accordance with the provisions of
the Class A-1 Note Trust Deed and the Agency Agreement, with
such amendments as determined by the Trustee to be necessary;
and
(v) if at a particular time the Class A-1 Note Trustee is or would
be the only Relevant Investor in respect of a meeting under
clause 26 of the Master Trust Deed, notwithstanding any other
provision of the Master Trust Deed the requirement to convene
such a meeting and put such issue to such meeting will be
satisfied if directions are sought from the Class A-1 Note
Trustee on the particular issue that would otherwise be put to
such meeting. Upon such a direction being given by the Class A-1
Note Trustee, a meeting of the Relevant Investors will be
regarded as having been duly called, convened and held and the
direction will be regarded as properly passed as an
Extraordinary Resolution of such meeting.
(c) (Master Trust Deed Provisions): The following provisions of the Master
Trust Deed will not apply to the Class A-1 Notes or the Class A-1
Noteholders: clauses 5.1(d), 6, 8.1, 9, 10, 23.1 and 24.4.
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1.7 Support Facilities
The Series Trust has the following Support Facilities:
(a) (Currency Swap Agreements): each Currency Swap Agreement (which is
also a Hedge Agreement of the Series Trust for the purposes of the
Master Trust Deed);
(b) (Interest Rate Swap Agreement): each Interest Rate Swap Agreement
(which is also a Hedge Agreement of the Series Trust for the purposes
of the Master Trust Deed);
(c) (Liquidity and Standby Redraw Facilities): each Liquidity Facility and
the Standby Redraw Facility (which are each also Liquidity Facilities
of the Series Trust for the purposes of the Master Trust Deed); and
(d) (Mortgage Insurance Policies): the Mortgage Insurance Policies (which
are also Credit Enhancements of the Series Trust for the purposes of
the Master Trust Deed).
1.8 Security Trust Deed
The obligations of the Trustee under the Securities (amongst other things)
will be secured to the Securityholders (among others) by the Security Trust
Deed which is a Security Trust Deed relating to the Series Trust for the
purposes of the Master Trust Deed.
1.9 Nominated Seller and Nominated Servicer
The Nominated Seller in relation to the Series Trust for the purposes of
the Master Trust Deed is the Seller and the Nominated Servicer in relation
to the Series Trust for the purposes of the Master Trust Deed is the
Servicer.
1.10 Binding on Securityholders and the Residual Unitholder
This Deed is binding on each Securityholder and the Residual Unitholder as
if each was originally a party to this Deed.
1.11 Relationship between Trustee and Securityholders
The obligations of the Trustee to the Securityholders expressed in this
Deed or the Master Trust Deed, in so far as the Master Trust Deed relates
to the Series Trust, are contractual obligations only and do not create
any relationship of trustee or fiduciary between the Trustee and the
Securityholders.
1.12 Incorporated Definitions and other Transaction Documents and provisions
Where in this Deed a word or expression is defined by reference to its
meaning in another Transaction Document or there is a reference to another
Transaction Document or to a provision of another Transaction Document,
any amendment to the meaning of that word or expression or to that other
Transaction Document or provision (as the case may be) will be of no
effect for the purposes of this Deed unless and until the amendment is
consented to by the parties to this Deed (construed in the absence of
clause 1.10).
2. THE CBA TRUST
2.1 Constitution of CBA Trust
The CBA Trust is constituted upon:
(a) (Execution of this Deed): the execution of this Deed by the Trustee,
the Manager, the Servicer and the Seller; and
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(b) (Payment of $100): the payment of the sum of $100 by on or behalf of
the Seller to the Trustee (the receipt of which the Trustee
acknowledges by executing this Deed).
2.2 Declarations of Trust for the CBA Trust
The Trustee declares that it will hold all the right, title and interest
in, to and under the $100 referred to in clause 2.1(b) and any further CBA
Trust Asset on trust for the Seller in accordance with this clause 2 and
subject to the trusts, terms and conditions of this Deed.
2.3 Name of the CBA Trust
The CBA Trust will be known as the "CBA Series 2000-1 Trust" or such other
name from time to time agreed between the Trustee and the Seller (subject
to any approvals required by law).
2.4 Entitlement of Seller to the CBA Trust
The beneficial interest in the CBA Trust is vested absolutely in the
Seller.
2.5 Bare Trust
The Trustee holds the CBA Trust Assets on bare trust for the Seller.
2.6 Duration of the CBA Trust
The CBA Trust commences on the date of its constitution as referred to in
this Deed and ends on its Termination Date (as if every reference in the
definition of this term in clause 1.1 of the Master Trust Deed to a Series
Trust was to the CBA Trust).
2.7 Early Termination of the CBA Trust
Immediately upon the termination of the Series Trust, the Seller must
notify the Trustee that the CBA Trust is to be terminated. Upon receipt of
that notice, the Trustee must promptly terminate the CBA Trust.
2.8 Dealing with CBA Trust Assets of the Series Trust
Subject to the terms of this Deed:
(a) (Seller may deal with CBA Trust Assets): the Seller is entitled to
deal with the CBA Trust Assets in its absolute discretion; and
(b) (Trustee may only deal with CBA Trust Assets as directed by Seller):
(i) the Trustee must not deal with the CBA Trust Assets other than in
accordance with directions given by the Seller from time to time;
and
(ii) the Trustee must act in accordance with any direction given to it
by the Seller in respect of the CBA Trust Assets,
save that, in either case, the Trustee is not obliged to act in accordance
with the directions of the Seller where to do so would be illegal or result
in the Trustee's exposure to a risk of personal liability where the Trustee
is not satisfied, in its absolute discretion, that the Seller will be able
to reimburse the Trustee in accordance with clause 2.15.
2.9 Proceeds
(a) (Seller may retain proceeds): The Seller may retain any proceeds
received by it from the CBA Trust Assets.
(b) (Trustee must pay proceeds to Seller): Subject to clause 7.3(d)(i),
the Trustee
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must immediately pay to the Seller (or otherwise pay as the Seller
directs) any proceeds the Trustee receives in respect of the CBA
Trust Assets.
(c) (Seller's receipt good discharge): The receipt of amounts by the
Seller pursuant to clauses 2.9(a) and (b) constitutes a good
discharge to the Trustee.
2.10 CBA Trust Not Part of Assets of the Series Trust
(a) (CBA Trust Assets not part of the Series Trust): The Trustee's
right, title and interest in the CBA Trust Assets do not form part
of the Assets of the Series Trust.
(b) (Trustee must account for CBA Trust Assets): The Trustee must
account for the CBA Trust Assets separately from the Assets of the
Series Trust.
(c) (Liabilities): The Trustee must not apply the Assets of the Series
Trust to meet any liabilities of the CBA Trust and the Trustee
must not apply the CBA Trust Assets to meet any Liabilities of the
Series Trust.
(d) (No co-mingling): The Trustee must not co-mingle any money held by
the Trustee in respect of the Series Trust with any money held by
the Trustee in respect of the CBA Trust (and vice versa).
2.11 Shared Securities
(a) (Not sell etc. Shared Securities): The Trustee must not, and the
Manager must not direct the Trustee to, sell, transfer or grant
any Security Interest over any Shared Security which is held by it
partly as trustee for the Series Trust and partly by it as trustee
for the CBA Trust without notifying the relevant transferee or
holder of the Security Interest of the existence of the interest
of the Seller as beneficiary of the CBA Trust in that Shared
Security.
(b) (Power to lodge Caveats): The Seller has the power to lodge a
Caveat over any Shared Security where the Trustee has sold,
transferred or granted any Security Interest or the Seller
reasonably believes that the Trustee will sell, transfer or grant
any Security Interest over any Shared Security in breach of clause
2.11(a).
2.12 Trustee's Duties
The Trustee owes no fiduciary or other duties to the Seller in respect of
the CBA Trust Assets other than pursuant to clauses 2.8, 2.9(b), 2.10
and 7.3 and, in any event, is not liable in any manner whatsoever to the
Seller for any loss to the CBA Trust Assets as a result of acting on the
direction of the Seller or for not acting as a result of the Seller
failing to give any direction to the Trustee or for otherwise acting in
accordance with this Deed.
2.13 Substitute Trustee
(a) (Substitute Trustee): Any Substitute Trustee (other than the
Manager when acting as Trustee) must be approved by the Seller
which approval is not to be unreasonably withheld or delayed.
(b) (Retirement or removal of the Trustee from the CBA Trust): The
provisions of clause 19 of the Master Trust Deed apply with
necessary modifications to the CBA Trust as if every reference in
such clause to:
(i) a Series Trust or the Series Trusts included a reference to
the CBA Trust; and
(ii) as if every reference to the "Manager" was a reference to
the Seller.
(c) (CBA Trust Assets to Vest in Substitute Trustee): Upon the
retirement or removal of the Trustee as trustee of the Series
Trust in accordance with the
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Master Trust Deed, the Trustee must vest the CBA Trust Assets, or
cause them to be vested, in the Substitute Trustee and must
deliver to the Substitute Trustee (or to the Manager if it is
acting as Trustee) all books, documents, records and other
property whatsoever in its possession (if any) relating to the CBA
Trust. The costs and expenses of this are to be paid by the
Seller.
2.14 Transfer of the CBA Trust Assets to Seller on termination of CBA Trust
On the termination of the CBA Trust, the Trustee is deemed to offer to
immediately transfer the CBA Trust Assets to the Seller. The Seller can
accept such offer only by an Authorised Officer of the Seller accepting
such offer orally (including by way of telephone) communicated to an
Authorised Officer of the Trustee. The Trustee must execute and deliver
to the Seller such instruments as the Seller reasonably requests to vest
in the Seller all right, title and interest of the Trustee in the CBA
Trust Assets of the Series Trust.
2.15 Seller Indemnity
(a) (CBA Trust): Subject to clause 2.15(b), but without limiting any
indemnity to which the Trustee is otherwise entitled at general
law, the Seller unconditionally and irrevocably indemnifies the
Trustee in respect of, and agrees to pay within 5 Business Days of
receipt of a written demand from the Trustee:
(i) any liability incurred by the Trustee as a result of the
Trustee complying with any directions by the Seller in
accordance with clause 2.8 or not acting as a result of
the Seller failing to give any direction to the Trustee;
(ii) any liability incurred by the Trustee in connection with
the transfer of any CBA Trust Asset to the Seller
(including, but not limited to, stamp duties and Taxes
payable in connection with such transfer); and
(iii) all other costs, charges, Taxes, expenses and liabilities
incurred by the Trustee in respect of the CBA Trust in
accordance with this clause 2, clause 7.7 or clause 7.8.
(b) (Limitation of Seller indemnity): The Seller's obligations under
clause 2.15(a) to indemnify and reimburse the Trustee do not
apply to the extent that such liabilities, costs, charges, Taxes,
stamp duties or expenses arise as a result of the Trustee's
negligence, fraud or wilful default.
2.16 Limitation of Liability
The Trustee enters into this Deed in its capacity as trustee of the CBA
Trust (in addition to entering into this Deed in its capacity as trustee
of the Series Trust). A liability arising under or in connection with
this Deed and the CBA Trust can be enforced against the Trustee only to
the extent to which it can be satisfied out of the CBA Trust Assets out
of which the Trustee is actually indemnified for the liability. This
clause will not apply to any obligation or liability of the Trustee in
respect of the CBA Trust to the extent that it is not satisfied because,
under this Deed or by operation of law, there is a reduction in the
extent of the Trustee's indemnification out of the CBA Trust Assets as a
result of the Trustee's fraud, negligence or wilful default.
3. UNIT IN THE SERIES TRUST
3.1 Beneficial Interest Represented by a Single Unit
The beneficial interest in the Series Trust is represented by a single
unit to be known as the Residual Unit.
3.2 Initial Holder of the Residual Unit
The initial holder of the Residual Unit in the Series Trust is the
Commonwealth Bank of Australia.
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3.3 Registration of CBA as Initial Residual Unitholder
Immediately upon the execution of this Deed, the Trustee must enter the
Commonwealth Bank of Australia into the Register of the Series Trust as
the initial Residual Unitholder in the Series Trust and must issue to the
Commonwealth Bank of Australia a Unit Certificate in respect of such
Residual Unit.
3.4 Form of Unit Certificate
The initial form of the Unit Certificate for the Residual Unit is as set
out in Schedule 9.
3.5 Form of Unit Transfer
The form of the Unit Transfer for the Residual Unit may be agreed from
time to time between the then Residual Unitholder, the Manager and the
Trustee (acting reasonably).
3.6 No Other Relationship
Nothing in this Deed constitutes either the Trustee, the Manager or the
Servicer as the agent of the Residual Unitholder nor creates any
relationship between the Residual Unitholder on the one hand and the
Manager (other than as Manager), the Servicer (other than as Servicer) or
the Trustee (other than as Trustee) on the other.
4. ASSIGNMENT OF MORTGAGE LOAN RIGHTS
4.1 Approved Financial Assets of the Series Trust
The nature of the Approved Financial Assets that may be acquired by the
Trustee for the purposes of the Master Trust Deed are Mortgage Loan
Rights.
4.2 Sale Notice
If the Seller wishes to offer to assign to the Trustee, on the terms of
this Deed, its right, title and interest in any Mortgage Loan Rights, the
Seller is only entitled to do so by giving to the Trustee (with a copy to
the Manager) a Sale Notice in relation to those Mortgage Loan Rights 5
Business Days (or such other period as the Seller has agreed with the
Trustee and the Manager) before the date specified in the Sale Notice as
the Closing Date.
4.3 Requirements of Sale Notice
A Sale Notice must:
(a) (State that it is a Sale Notice): state that it is a Sale Notice
pursuant to clause 4.2 and that it relates to the Series Trust;
(b) (Timing): not be issued:
(i) until at least 1 Business Day after the Series Trust has
been constituted; or
(ii) after the Termination Date in respect of the Series Trust;
(c) (Be delivered): be delivered to the Trustee and copied to the
Manager;
(d) (Schedule of Mortgage Loans): be accompanied by a schedule of the
Mortgage Loans offered to be assigned to the Trustee that contains
the information required by clause 4.4;
(e) (Closing Date): state the proposed Closing Date (which, unless
otherwise agreed by the Trustee in writing, must be at least 5
Business Days after the date of the receipt by the Trustee of the
Sale Notice);
(f) (Cut-Off Date): state the Cut-Off Date (which, unless otherwise
agreed by the
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Trustee in writing, must be at least 10 Business Days before the
Closing Date); and
(g) (Authorised Officer): be signed by an Authorised Officer of the
Seller.
4.4 Mortgage Loan Schedule
The schedule required by clause 4.3(d) to accompany the Sale Notice must
contain the following details in respect of each Mortgage Loan as at the
commencement of business on the Cut-Off Date:
(a) (Name and address): the name and address of the Borrower under the
Mortgage Loan (as recorded in the Seller's records in accordance
with the Servicing Standards) and the address of the property
secured by each Mortgage;
(b) (Account number): the account number of the Mortgage Loan;
(c) (Amount outstanding): the principal amount outstanding, and
accrued interest, under the Mortgage Loan; and
(d) (LVR): the Loan to Value Ratio of the Mortgage Loan.
4.5 Sale Notice Constitutes an Offer
A Sale Notice constitutes an offer by the Seller to assign to the Trustee
with effect from the commencement of business on the Cut-Off Date and
subject to the terms of this Deed and the Master Trust Deed the Seller's
entire right, title and interest in, to and under the following:
(a) (Mortgage Loans): each Mortgage Loan identified in the schedule
accompanying the Sale Notice;
(b) (Other Loans): all Other Loans in existence from time to time in
relation to the above Mortgage Loans;
(c) (Mortgages): all Mortgages in existence from time to time in
relation to the above Mortgage Loans;
(d) (Collateral Securities): all Collateral Securities in existence
from time to time in relation to the above Mortgage Loans;
(e) (Mortgage Insurance Policy): all Mortgage Insurance Policies as at
the commencement of business on the Cut-Off Date (other than the
GEMICO Mortgage Insurance Policy);
(f) (Mortgage Receivables): all Mortgage Receivables in existence from
time to time in relation to the above Mortgage Loans; and
(g) (Mortgage Documents): all Mortgage Documents in existence from
time to time in relation to the above Mortgage Loans.
4.6 Sale Notice Revocable
The Sale Notice is revocable by the Seller by notice received by the
Trustee (and copied to the Manager) prior to the close of business
(Sydney time) 4 Business Days before the proposed Closing Date. If no
such notice is received by the Trustee and the Manager by that time, the
Sale Notice is then irrevocable.
4.7 Acceptance of Offer
The offer contained in the Sale Notice may be accepted by the Trustee
only in accordance with this clause 4.
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4.8 Timing of Acceptance
(a) (Means of acceptance): The Trustee will, if so directed by the
Manager in writing, accept the offer contained in the Sale Notice
at any time after 10.00 a.m. and before 3.30 p.m. (or between such
other times as may be agreed by the Trustee and the Seller) on the
Closing Date by, and only by, the Trustee paying, or causing
payment of, the Consideration to the Seller in cleared and
immediately available funds.
(b) (No further acts required): The Trustee is not required to do any
further act, matter or thing to accept the offer contained in the
Sale Notice.
4.9 Seller Not Obliged to Make, and Trustee Not Obliged to Accept, Offer
Notwithstanding satisfaction of all relevant conditions precedent or any
negotiations undertaken between the Seller and the Trustee prior to any
acceptance by the Trustee of the offer contained in the Sale Notice:
(a) (Seller not obliged to make offer): the Seller is not obliged to
issue the Sale Notice and the Trustee is not obliged to accept the
offer contained in the Sale Notice and no contract for the sale or
purchase of any Mortgage Loan Rights will arise unless and until
the Trustee accepts the offer contained in the Sale Notice in
accordance with this clause 4; and
(b) (Trustee acquires no rights until offer irrevocable): the Trustee
acquires no rights against the Seller or the Servicer in respect
of the Mortgage Loan Rights specified in the Sale Notice until
such time as the Sale Notice (if issued) becomes irrevocable.
4.10 Can Only Accept all Mortgage Loan Rights in Loan Pool
The offer contained in the Sale Notice may only be accepted in relation
to all the Mortgage Loan Rights specified in the Sale Notice.
4.11 Effect of Acceptance
Acceptance, in accordance with this Deed, of the offer contained in the
Sale Notice constitutes an immediate assignment with effect from the
commencement of business on the Cut-Off Date of the Seller's entire
right, title and interest in the Mortgage Loan Rights. The Trustee's
right, title and interest in such Mortgage Loan Rights is at all times
subject to the terms of this Deed and the Master Trust Deed.
4.12 Sale in Equity Only
(a) (Assignment in equity): An assignment of Mortgage Loan Rights in
accordance with this Deed takes effect initially in equity only.
(b) (Trustee must not communicate, disclose or perfect title): The
Trustee must not:
(i) take any steps to perfect its legal title to the Mortgage
Loan Rights;
(ii) give any notice to, or communicate in any other way with, a
Borrower or the provider of any Collateral Security; or
(iii) disseminate or disclose any information in respect of the
assignment of the Mortgage Loan Rights,
except in accordance with the terms of this Deed.
4.13 Sale Not to Amount to Assumption of Obligations
An assignment of Mortgage Loan Rights in accordance with this Deed, and
the acceptance of the Sale Notice, does not constitute an assumption by
the Trustee, the Servicer, the
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Manager or any Securityholder of any obligation of the Seller or any
other person pursuant to, or in connection with, the Mortgage Loan Rights
or any other obligation of the Seller to the Borrower or any other party
pursuant to, or in connection with, the Mortgage Documents.
4.14 Future Advances
Without limiting the generality of clause 4.13, the Seller retains the
obligation to make such further advances or provide such other financial
accommodation as the Seller was required to make under the terms of the
relevant Mortgage Loan prior to the Cut-Off Date for that Mortgage Loan.
4.15 Future Receivables
Without limiting the effect of any assignment of any Mortgage Loan
occurring on the Trustee accepting the Sale Notice but subject to clauses
4.13 and 4.14, the Seller's right, title and interest in respect of any
Mortgage Loan Rights arising, and any Mortgage Documents entered into, on
or after the Cut-Off Date, form part of the rights assigned to the
Trustee (to be held subject to the terms of the Master Trust Deed and
this Deed) and, immediately following creation (including, without
limitation, Mortgage Loan Rights created by the making of any further
advance or the provision of any financial accommodation under the terms
of a Mortgage Loan), vest in the Trustee in accordance with the
assignment of that Mortgage Loan pursuant to this Deed.
4.16 Power to Acquire Mortgage Loans in Arrears
In accordance with clause 16.4 (v) of the Master Trust Deed, the parties
expressly agree that the Trustee has the power to acquire Mortgage Loans
as Assets of the Series Trust notwithstanding that payments due from
Borrowers under such Mortgage Loans are in arrears as at the date of
their acquisition by the Trustee.
5. THE SECURITIES
5.1 Securities divided into Classes
The Securities are divided into four Classes as follows:
(a) the Class A-1 Notes;
(b) the Class A-2 Notes;
(c) the Class B Notes; and
(d) the Redraw Bonds.
5.2 Form, constituent documents and denomination of the Securities
(a) (Class A-1 Note): The Class A-1 Notes will be in registered form,
without coupons; upon issue, will be represented by 3 or more
Class A-1 Book Entry Notes (as defined in the Class A-1 Note Trust
Deed) (and interests in such Class A-1 Book Entry Notes may be
exchanged for Class A-1 Definitive Notes (as defined in the Class
A-1 Note Trust Deed) in the circumstances set out in clause
3.4(a) of the Class A-1 Note Trust Deed); will be constituted,
issued and authenticated pursuant to the Class A-1 Note Trust Deed
and will be denominated in US dollars.
(b) (A$ Securities): The A$ Securities will, upon issue, be in the
form of registered debt securities, will be constituted pursuant
to the Master Trust Deed and this Deed and will be denominated in
Australian dollars.
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5.3 Trustee must Issue the Notes
Subject to the satisfaction of all conditions precedent in respect
thereof in the Transaction Documents, the Trustee on the Closing Date
must issue:
(a) (Class A-1 Notes): the Class A-1 Notes in accordance with the
Class A-1 Note Trust Deed and the Underwriting Agreement; and
(b) (Class A-2 and B Notes): the Class A-2 Notes and the Class B Notes
in accordance with this Deed and the Dealer Agreement.
5.4 Issue of Redraw Bonds
If the Trustee receives:
(a) (Notice under Clause 8.4): a notice from the Manager pursuant to
clause 8.4(a); and
(b) (No downgrade): written confirmation from each of the Rating
Agencies that the proposed issue of Redraw Bonds will not result
in a reduction, qualification or withdrawal of any then current
credit rating assigned by it to a Security,
the Trustee must issue Redraw Bonds up to the amount specified in the
notice on the date for issue of the Redraw Bonds referred to in the
notice.
5.5 Initial Invested Amount of the Securities
(a) (Class A-1 Notes): Each Class A-1 Note on its issue will have an
Initial Invested Amount as set out on the face of that Class A-1
Note and will be issued at par value.
(b) (A$ Securities): Each A$ Security on its issue will have an
Initial Invested Amount of A$100,000 and will be issued at par
value.
5.6 Interest on the Securities
(a) (Class A-1 Notes): Each Class A-1 Note will accrue interest, and
such interest will be payable, in accordance with the Class A-1
Note Conditions.
(b) (A$ Securities):
(i) Each A$ Security will accrue interest from (and including)
its Issue Date and will cease to accrue interest from (and
including) the earlier of:
A. the date on which the Stated Amount of the A$
Security is reduced to zero and all accrued interest
in respect of the A$ Security is paid in full; and
B. the date on which the A$ Security is deemed to be
repaid in accordance with clause 5.7(b)(iv).
(ii) The period that an A$ Security accrues interest in
accordance with clause 5.7(b)(i) will be divided into
periods (each included within the definition of an "Accrual
Period"). The first such period for an A$ Security will
commence on (and include) the Issue Date for that A$
Security and will end on (but will not include) the next
Distribution Date. Each succeeding such period will be
equal to each corresponding Accrual Period. The final such
period for an A$ Security will end on (but will not
include) the date on which interest ceases to accrue on the
A$ Security pursuant to clause 5.6(b)(i).
(iii) Interest on each A$ Security for each of its Accrual
Periods will accrue on a daily basis at the product of the
Interest Rate applicable to that A$ Security and the
Invested Amount of the A$ Security at the close of business
on the first day of that Accrual Period and will be
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calculated on a daily basis and based on a 365 day year.
(iv) Interest so calculated on an A$ Security will, subject to
this Deed, be payable in arrears on each Distribution Date.
5.7 Redemption of the Securities
(a) (Class A-1 Notes): The Class A-1 Notes will be redeemed or deemed
to be redeemed) in accordance with the Class A-1 Note Conditions.
(b) (A$ Securities):
(i) Unless previously redeemed in full, the Trustee will,
subject to this Deed, redeem each A$ Security at its then
Stated Amount, together with all accrued but unpaid
interest, on the Scheduled Maturity Date.
(ii) Subject to clauses 5.7(b)(iii) and (iv), on each
Distribution Date referred to in clause 10.5, an A$
Security will be redeemed (either in whole or in part as
the context requires) to the extent that any moneys are
applied by the Trustee pursuant to clause 10.5 to that A$
Security.
(iii) Unless previously redeemed in full, the Trustee must redeem
all, but not some only, of the A$ Securities, when required
to do so in accordance with, and for the amount required
under, Conditions 7.3 and 7.4 of the Class A-1 Note
Conditions.
(iv) Upon a final distribution being made in respect of an A$
Security under clause 26.12 of this Deed or clause 13.1
of the Security Trust Deed, each A$ Security will thereupon
be deemed to be redeemed and discharged in full and any
obligation to pay any accrued but unpaid interest and any
then unpaid, Stated Amount, Invested Amount or any other
amounts in relation to the A$ Security will be extinguished
in full.
(v) Subject to clause 5.7(b)(iii), no amount of principal will
be repaid in respect of an A$ Security in excess of the
Stated Amount of that A$ Security.
5.8 Interest on Overdue Interest on the Securities
(a) (Class A-1 Notes): If interest is not paid in respect of a Class
A-1 Note on the date when due and payable in accordance with the
Class A-1 Note Conditions, the unpaid interest will in turn bear
interest in accordance with the Class A-1 Note Conditions.
(b) (A$ Securities): If interest is not paid in respect of an A$
Security on the date when due and payable in accordance with this
Deed (but without regard to any limitation herein contained) that
unpaid interest will in turn bear interest at the Interest Rate
from time to time applicable on that A$ Security until (but
excluding) the date on which the unpaid interest, and interest on
it, is paid in accordance with clause 10.2.
5.9 Rounding of Payments on the Securities
(a) (Class A-1 Notes): All payments in respect of the Class A-1 Notes
will be rounded in accordance with the Class A-1 Note Conditions.
(b) (A$ Securities): All payments in respect of the A$ Securities
will be rounded down to the nearest cent.
5.10 Securities Rank Equally Except for Special Rights
The Securities enjoy the same rights, entitlements, benefits and
restrictions, except as expressly provided in this Deed, the Master Trust
Deed, the Class A-1 Note Trust Deed, the Class A-1 Notes and the Security
Trust Deed.
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5.11 Transfer of Securities
(a) (Master Trust Deed): Clause 10.4(a) of the Master Trust Deed
does not apply to the Securities.
(b) (Transfer of A$ Securities in accordance with Corporations Law):
A Securityholder is only entitled to transfer an A$ Security if
the offer of the A$ Security for sale, or the invitation to
purchase the A$ Security, to the proposed transferee by the
Securityholder is an offer or invitation that does not need
disclosure to investors under Part 6D.2 of Chapter 6 of the
Corporations Law and otherwise complies with the Corporations Law.
(c) (Regulation S): An A$ Security may not be offered or sold within
the United States of America or to, or for the account or benefit
of, US persons except in accordance with Regulation S under the
Securities Act or pursuant to an exemption from the registration
requirements of the Securities Act. Terms used in this clause
5.11(c) have the meaning given to them by Regulation S under the
Securities Act.
6. CONDITIONS PRECEDENT TO ACCEPTANCE OF SALE NOTICE AND ISSUE OF NOTES
6.1 General Conditions Precedent
The Trustee must receive each of the following documents before it can
accept the offer contained in the Sale Notice (if issued by the Seller)
or issue the Notes:
(a) (Standby Redraw Facility): an executed original counterpart of the
Standby Redraw Facility Agreement together with a letter from the
Standby Provider confirming that all conditions precedent to the
Standby Redraw Facility have been received in a form and substance
satisfactory to it;
(b) (Liquidity Facility): an executed original counterpart of the
Liquidity Facility Agreement, together with a letter from the
Liquidity Provider confirming that all conditions precedent to the
Liquidity Facility have been received by it in form and substance
satisfactory to it;
(c) (Interest Rate Swap Agreement): an executed original counterpart
of the Interest Rate Swap Agreement together with a letter from
the Interest Rate Swap Provider confirming that all conditions
precedent to the Interest Rate Swap Agreement have been received
in form and substance satisfactory to it;
(d) (Currency Swap Agreements): an executed original counterpart of
each initial Currency Swap Agreement, together with a letter from
each initial Currency Swap Provider confirming that all conditions
precedent to its Currency Swap Agreement have been received by it
in form and substance satisfactory to it.
(e) (Security Trust Deed): an executed original counterpart of the
Security Trust Deed;
(f) (Class A-1 Note Trust Deed): an executed original counterpart of
the Class A-1 Note Trust Deed;
(g) (Agency Agreement): an executed original counterpart of the Agency
Agreement;
(h) (Dealer Agreement and Underwriting Agreement): an executed
original counterpart of the Dealer Agreement and the Underwriting
Agreement;
(i) (Mortgage Insurance Policies): an executed original counterpart of
the GEMICO Mortgage Insurance Policy together with a letter from
GEMICO confirming that it has accepted for insurance under the
GEMICO Mortgage
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Insurance Policy the Mortgage Loans referred to in the certificate
attached to the letter and that the Seller has paid the premium in
respect of the GEMICO Mortgage Insurance Policy;
(j) (Computer diskette): a computer diskette from the Seller in a
form agreed between the Seller and the Trustee containing:
(i) a list of all of the offices at which the Mortgage
Documents relating to the Mortgage Loans are retained,
showing the street address and telephone number of the
relevant office;
(ii) the surname and address of the Borrower under each Mortgage
Loan;
(iii) the account number of each Mortgage Loan;
(iv) the street address of the Land which is the subject of the
Mortgage relating to each Mortgage Loan; and
(v) such other information in respect of the Mortgage Loans as
is agreed between the Seller and the Trustee;
(k) (Letter explaining identification methodology): a letter from the
Seller which explains (in a manner satisfactory to the Trustee)
how the security packages containing the Mortgage Documents are
marked or segregated so as to enable the Trustee to identify those
security packages when at the premises of the Seller where the
security packages are stored;
(l) (Seller letter): a letter (copied to the Rating Agencies) from the
Seller which, in a manner satisfactory to the Trustee, explains
how the Mortgage Loans are marked on the Mortgage Loan System so
that those Mortgage Loans, if necessary, can be separately
identified by the Trustee;
(m) (Confirmation from Rating Agencies): confirmation from each of the
Rating Agencies that the Class A Notes have been assigned a
provisional rating of AAA (in the case of S&P), Aaa (in the case
of Moody's) and AAA in the case of Fitch IBCA and the Class B
Notes have been assigned a provisional rating of AA (in the case
of S&P), Aa2 (in the case of Moody's) and AA (in the case of Fitch
IBCA);
(n) (Powers of attorney):
(i) 10 originals of a power of attorney from the Seller in
favour of the Trustee substantially in the form contained
in Schedule 2 or in such other form or such other number
of copies as is required to enable registration of such
power of attorney in each State and Territory of Australia
in which registration is necessary or desirable (other than
Queensland or Western Australia);
(ii) 2 originals of a power of attorney from the Seller in
favour of the Trustee substantially in the form contained
in Schedule 3 or in such other form as is required to
enable registration of such power of attorney in
Queensland; and
(iii) 2 originals of a power of attorney from the Seller in
favour of the Trustee substantially in the form contained
in Schedule 4 or in such other form as is required to
enable registration of such power of attorney in Western
Australia;
(o) (Authorised Officers): a certificate setting out in full the name
and specimen signature of each Authorised Officer of the Manager
and the Servicer (also in its capacity as Seller);
(p) (Legal opinions): legal opinions from:
(i) Clayton Utz:
A. as to, amongst other things, the validity and
enforceability of the obligations of the Seller, the
initial Servicer and the
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initial Manager under the Transaction Documents, or
those parts of the Transaction Documents, expressed
to be governed by Australian law;
B. as to the tax and stamp duty implications of the
Series Trust and the transactions contemplated by
the Transaction Documents; and
(ii) Mallesons Stephen Jaques as to the validity and
enforceability of the obligations of the Trustee and the
Security Trustee under the Transaction Documents;
(iii) Allen, Allen & Hemsley as to the validity and
enforceability of the obligations of GEMICO under the
GEMICO Mortgage Insurance Policy; and
(iv) Skadden Arps Slate Meagher & Flom as to the validity and
enforceability of the obligations under the Underwriting
Agreement of J.P. Morgan Securities Inc and each of the
other Underwriters named therein;
(v) Mayer Brown & Platt as to, amongst other things, the
validity and enforceability of the obligations of the
Seller and the Manager under the Transaction Documents, or
those parts of the Transaction Documents, expressed to be
governed by the laws of the State of New York;
(vi) [ ] as to the validity and enforceability of the
obligations of The Bank of New York under the Transaction
Documents; and
(vii) internal counsel of Merrill Lynch Capital Services Inc as
to the due execution by Merrill Lynch Capital Services Inc.
of the Currency Swap Agreements and due execution by
Merrill Lynch & Co. Inc of the guarantees related to the
Currency Swap Agreements.
(q) (Direction from the Manager): a written direction from the Manager
for the Trustee to accept the Sale Notice and to issue the Notes.
6.2 Other Conditions Precedent
Without limiting the generality of clauses 4.9 and 6.1, the Trustee must
not accept the offer contained in the Sale Notice (if issued by the
Seller) and must not issue the Notes unless it is satisfied that the form
and content of the Sale Notice complies with this Deed.
6.3 No Liability for Insufficient Moneys
If on the Closing Date the Trustee has not received each of the documents
specified in clause 6.1 or the condition specified in clause 6.2 is not
fulfilled:
(a) (No acceptance): the Trustee must not accept the offer contained
in the Sale Notice (if issued by the Seller);
(b) (No issue): the Trustee must not issue any Notes and must refund
the Subscription Proceeds (if any) received by it to the relevant
subscribers entitled to such Subscription Proceeds; and
(c) (No liability): none of the Trustee, the Manager, the Servicer or
the Seller will have any obligation or liability to any person as
a result of not issuing the Notes.
6.4 Manager's Certificate
The Manager must not issue a direction to the Trustee pursuant to clause
6.1(q) unless the Manager:
(a) (Compliance with Securities Laws): is satisfied that any offer for
the issue, or any invitation to apply for the issue, of:
(i) the Class A-2 Notes and the Class B Notes:
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A. is an offer of securities for issue, or is an
invitation to apply for the issue of securities,
which does not need disclosure to investors under
Part 6D.2 of Chapter 6 of the Corporations Law; and
B. is made pursuant to an exemption from, or is not
subject to, the registration requirements of the
Securities Act; and
(ii) the Class A-1 Notes complies with:
A. the Financial Services Act, 1986 (United Kingdom),
all regulations made under or in relation to that
Act and the Public Offers of Securities Regulations
1995; and
B. the Securities Act, all regulations made thereunder
and all other laws or regulations of any
jurisdiction of the United States of America
regulating the offer or the issue of, or the
subscription for, the Class A-1 Notes.
(The Manager in becoming satisfied as to the above matters is
entitled to rely conclusively, unless it has actual knowledge to
the contrary, on, amongst other things, legal opinions or other
advice issued to this effect to it or any representation or
undertaking made to this effect in the applicable Dealer Agreement
or Underwriting Agreement);
(b) (No breach by Seller of representations): is not actually aware
that any representation or warranty made or taken to be made by
the Seller in any Transaction Document in respect of the Series
Trust is incorrect in any material respect on the Cut-Off Date as
if repeated on that Cut-Off Date with reference to facts and
circumstances then subsisting;
(c) (Breach of obligations by Seller): is not actually aware that the
Seller is in breach in any material respect of any of its
obligations under this Deed (unless that breach has been remedied
to the satisfaction of the Manager);
(d) (Insolvency Event for Seller): is not actually aware that an
Insolvency Event has occurred in relation to the Seller (unless
that event has been remedied to the satisfaction of the Manager);
and
(e) (Other conditions precedent): is satisfied that such other
conditions precedent to the issue of the Notes and the acceptance
by the Trustee of the offer contained in the Sale Notice as are
specified in the Transaction Documents have been met.
7. DIVISION OF MORTGAGE LOAN RIGHTS BETWEEN THE CBA TRUST AND THE SERIES
TRUST
7.1 CBA Trust Assets
The Trustee will hold as trustee of the CBA Trust all its right, title
and interest in:
(a) (Other Loans): the Other Loans;
(b) (Balance of Mortgages etc.): the balance of the Mortgages, the
Mortgage Documents, the First Layer of Collateral Securities and
the Mortgage Receivables referred to in clause 7.2(b); and
(c) (Second Layer of Collateral Securities): the Second Layer of
Collateral Securities,
which are assigned to the Trustee by the Seller.
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7.2 Mortgages and First Layer of Collateral Securities
(a) (The Series Trust): The Trustee will hold as trustee of the Series
Trust all its right, title and interest in so much of any Mortgage
Loan, Mortgage, the First Layer of Collateral Securities, the
Mortgage Receivables and the Mortgage Documents for each Mortgage
Loan assigned to the Trustee (including, without limitation, the
proceeds of enforcement of such in relation to the Mortgage Loan)
as is necessary to enable the full and final repayment of all
amounts owing with respect to the Mortgage Loan.
(b) (The CBA Trust): The Trustee will hold as trustee for the CBA
Trust the balance (if any) of its right, title and interest in any
Mortgage Loan, Mortgage, First Layer of the Collateral Securities,
Mortgage Receivables and Mortgage Documents referred to in clause
7.2(a).
7.3 Treatment of Shared Securities
If:
(a) (Mortgage Loans in Series Trust): a Mortgage Loan forms part of
the Assets of the Series Trust;
(b) (Other Loans in CBA Trust): an Other Loan forms part of the CBA
Trust Assets; and
(c) (Collateral Security secures both): a Collateral Security which is
part of the First Layer of Collateral Securities or a Mortgage
which secures the Mortgage Loan also secures the Other Loan,
then:
(d) (If Seller is Servicer): where the Seller is the Servicer, the
Servicer is entitled to enforce that Collateral Security or
Mortgage (as the case may be) upon a default occurring in respect
of the Other Loan provided that the enforcement proceeds are paid
to the Trustee. Upon receipt of such proceeds the Trustee must:
(i) treat as Collections the amount of such proceeds as is
equal to all amounts outstanding under the relevant
Mortgage Loan; and
(ii) pay the excess (if any) of such proceeds to the Seller (as
beneficiary of the CBA Trust) in respect of amounts
outstanding under the Other Loan; or
(e) (If Seller is not Servicer): where the Seller is not the Servicer,
the Servicer must enforce that Collateral Security or Mortgage (as
the case may be) upon receipt of a direction to do so from the
Seller (as beneficiary of the CBA Trust) which states that the
relevant Other Loan is in default. Upon receipt of the enforcement
proceeds in respect of that Collateral Security or Mortgage (as
the case may be) the Servicer must pay to the Trustee all such
proceeds and the Trustee must:
(i) treat as Collections the amount of such proceeds as is
equal to all amounts outstanding under the relevant
Mortgage Loan; and
(ii) pay the excess (if any) of such proceeds to the Seller (as
beneficiary of the CBA Trust) in respect of amounts
outstanding under the Other Loan.
7.4 Trustee's duties
Subject to clauses 2.8(b), 2.9(b), 2.10 and 7.3, the Trustee is not
required to take any action in respect of an Other Loan or the Second
Layer of Collateral Securities or the balance of the Trustee's right,
title and interest in any Mortgage, First Layer of Collateral
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Securities and Mortgage Receivables referred to in clause 7.2(b).
7.5 Upon Repayment of Mortgage Loan Trustee Holds for CBA Trust
Subject to clause 7.6, if a Mortgage Loan has been repaid in full or is
treated as having been repaid in full pursuant to clause 16.20(b), and
the Mortgage Loan is not discharged, then the Trustee will, from the date
of repayment or treated repayment in full of the Mortgage Loan,
automatically by virtue of this Deed, and without the necessity for any
further act or instrument or other thing to be done or brought into
existence, hold the benefit of its right, title and interest in and to:
(a) (The Mortgage Loan): the Mortgage Loan;
(b) (Mortgages, etc.): any Mortgages, and the First Layer of
Collateral Securities, held in respect of that Mortgage Loan;
(c) (Mortgage Documents): any Mortgage Documents held in relation to
that Mortgage Loan; and
(d) (Mortgage Receivables): the Mortgage Receivables held in relation
to that Mortgage Loan,
as trustee of the CBA Trust.
7.6 Application Where 2 Mortgage Loans
If the Mortgages, First Layer of Collateral Securities, Mortgage
Documents, and Mortgage Receivables referred to in clause 7.5 apply to
more than one Mortgage Loan forming part of the Assets of the Series
Trust, the holding of the Trustee's interest in such as trustee of the
CBA Trust occurs only upon repayment in full of all such Mortgage Loans
secured by such Mortgages, First Layer of Collateral Securities, Mortgage
Documents and Mortgage Receivables.
7.7 Costs
The Seller must pay to, or reimburse, the Trustee immediately on demand
for all costs and expenses including, without limitation, all legal costs
charged at the usual commercial rates of the relevant legal services
provider and any stamp duty and registration fees arising out of, or
necessarily incurred in connection with, the Trustee coming to hold its
right, title and interest in any Mortgage Loan Rights for the CBA Trust
in accordance with clause 7.5.
7.8 Alternative Structure
The Trustee must co-operate with the Seller in transferring or holding
the relevant assets set out in clause 7.5 in any reasonable way other
than as set out in this clause 7 if to do so would materially reduce the
liability of the Seller to reimburse the Trustee for any of the costs and
expenses set out in clause 7.7 and provided that any proposal pursuant
to this clause is permitted in law and does not result in the Trustee
being exposed to the risk of personal liability unless the Trustee is
satisfied, in its absolute discretion, that the Seller will be able to
indemnify the Trustee in respect of such risk in accordance with clause
2.15(a).
8. DETERMINATIONS BY THE MANAGER
8.1 Applications and payments on Distribution Dates
Prior to each Distribution Date, based on information provided by the
Servicer, the Manager must make all necessary determinations to enable
the Trustee to make the payments or allocations to be made by the Trustee
on the Distribution Date pursuant to this Deed (including, for the first
Distribution Date, the aggregate of the Accrued Interest Adjustment) and
must give to the Trustee a written direction by 11am (Sydney time) on the
Business Day prior to each Distribution Date in relation to the payments
and allocations to
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be made on that Distribution Date in accordance with this Deed.
8.2 Insufficient principal to meet Seller Advances
(a) (Manager must prepare standby redraw notice): If on a
Determination Date the Manager determines that the aggregate of
the Principal Collections, the Principal Charge-off Reimbursement
and the Other Principal Amounts for the Collection Period then
ended is insufficient to meet in full the Seller Advances referred
to in clause 10.3(a), the Manager must prepare and forward to the
Trustee no later than the close of business 3 Business Days prior
to the following Distribution Date a drawdown notice under and in
accordance with the Standby Redraw Facility Agreement requesting a
drawing under the Standby Redraw Facility for an amount equal to
the lesser of the shortfall and the amount which is available for
drawing under the Standby Redraw Facility (which notice must also
specify the calculations used in determining the drawing so
requested).
(b) (Trustee must execute and serve standby redraw notice): If the
Trustee receives a drawdown notice from the Manager pursuant to
clause 8.2(a), the Trustee must promptly sign and serve the
drawdown notice on the Standby Redraw Facility Provider pursuant
to the Standby Redraw Facility Agreement requesting a drawing on
the following Distribution Date.
8.3 Income Shortfall
(a) (Manager must prepare liquidity notice): If on a Determination
Date there is an Income Shortfall, the Manager must prepare and
forward to the Trustee no later than the close of business 3
Business Days prior to the following Distribution Date a notice
under and in accordance with the Liquidity Facility Agreement
requesting a drawing under the Liquidity Facility for an amount
equal to the lesser of the Income Shortfall and the amount which
is available for drawing under the Liquidity Facility (which
notice must also specify the calculations used in determining the
drawing so requested).
(b) (Trustee must execute and deliver liquidity notice): If the
Trustee receives a notice from the Manager pursuant to clause
8.3(a) then the Trustee must immediately sign and serve the
drawdown notice on the Liquidity Facility Provider pursuant to the
Liquidity Facility Agreement requesting a drawing on the following
Distribution Date.
8.4 Insufficient principal to meet Seller Advances and Standby Redraw
Facility Principal
If, in respect of a Determination Date, the Manager considers that the
aggregate of:
(a) (Principal Collections): the Principal Collections, the Principal
Charge-off Reimbursement and the Other Principal Amounts for the
Collection Period ending on the Determination Date; and
(b) (Standby Redraw Facility Advance): the Standby Redraw Facility
Advance (if any) to be made on the following Distribution Date,
as estimated by the Manager are likely to be insufficient to meet in full
under clause 10.3 the aggregate of:
(c) (Seller Advances): the Seller Advances; and
(d) (Standby Redraw Facility Principal): the Standby Redraw Facility
Principal,
that the Manager estimates will be outstanding on the Determination Date,
the Manager may prepare and forward to the Trustee a notice directing the
Trustee to issue Redraw Bonds for a principal amount and on an issue date
(which must be no earlier than 5 Business Days from the date of receipt
of the notice by the Trustee) specified in the notice. The Manager must
not issue such a notice to the Trustee if the Manager considers that the
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Stated Amount of the Redraw Bonds at the next Distribution Date (after
including the proposed issue of Redraw Bonds and taking into account any
expected repayments of principal on the Redraw Bonds pursuant to clause
10.5) will exceed the Redraw Bond Principal Limit.
8.5 Netting of Seller Advances and Standby Redraw Facility Advances
If whilst the Standby Redraw Facility Provider is the Seller, the Standby
Redraw Facility Provider makes a Standby Redraw Facility Advance on a
Distribution Date by way of a book entry in its records pursuant to
clause 4.6 of the Standby Redraw Facility Agreement:
(a) (Standby Redraw Facility Advance to be taken into account): the
amount of the Standby Redraw Facility Advance will be taken into
account for the purpose of the calculations to be made hereunder
on the Distribution Date and the previous Determination Date; and
(b) (Seller Advance Reduced): the amount of the then outstanding
Seller Advances will be reduced by the amount of such book entry
on the Distribution Date, without the Trustee needing to make the
corresponding payment under clause 10.3(a).
8.6 Cash Advance Deposit
On each Determination Date the Manager will determine the amount (if any)
that has been received in the Collection Period just ended in respect of
interest that has been earned on the Collections Account and which is
attributable to the Cash Advance Deposit (if any) deposited in the
Collections Account and will instruct the Trustee to pay such interest to
the Liquidity Facility Provider on the next Distribution Date.
8.7 Break Costs and Break Benefits
(a) (Application of Clause): If the Trustee is party to a Fixed Rate
Swap:
(i) this clause 8.7 will apply (but otherwise shall be of no
effect); and
(ii) Break Costs will not be included in the definition of
Finance Charge Collections (except as set out in clauses
8.7(c) and (d)) and Break Benefits will not be included in
the definition of Expenses.
(b) (Payment of Break Benefits): The Servicer must pay any Break
Benefits payable to Borrowers during a Collection Period from the
Finance Charge Collections received during that Collection Period
and not yet deposited by the Servicer in the Collections Account
in accordance with clause 22. If the Finance Charge Collections
held by the Servicer and not deposited in the Collections Account
are insufficient to pay any Break Benefits due to be paid to a
Borrower, the Servicer must direct the Trustee, and upon such
direction the Trustee must pay to the Borrower, such Break
Benefits from the Finance Charge Collections in the Collections
Account received during that Collection Period to the extent of
the shortfall.
(c) (Net Break Payment): If there is a Net Break Payment on a
Determination Date, the Trustee must:
(i) pay the Break Costs in relation to the immediately
preceding Collection Period to the extent of the Net Break
Payment to the Interest Rate Swap Provider on the following
Distribution Date in accordance with the Interest Rate Swap
Agreement; and
(ii) treat the balance of the Break Costs in relation to the
immediately preceding Collection Period as Finance Charge
Collections in relation to that Collection Period.
(d) (Net Break Receipt): If there is a Net Break Receipt on a
Determination Date,
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the Trustee must:
(i) treat the Break Costs in relation to the immediately
preceding Collection Period as Finance Charge Collections
in relation to that Collection Period; and
(ii) treat any amount received from the Interest Rate Swap
Provider on the following Distribution Date in respect of
the Net Break Receipt in accordance with the Interest Rate
Swap Agreement as an Available Income Amount with respect
to that Distribution Date.
(e) (Manager to Determine): The Manager must determine on each
Determination Date the Net Break Payment or Net Break Receipt, as
the case may be, and must direct the Trustee as to the payments to
be made by the Trustee, if any, in accordance with this clause
8.7.
8.8 Interest Rate Swap Provider Deposit
On each Determination Date the Manager will determine the amount (if any)
that has been received in the Collection Period just ended in respect of
interest that has been earned on the Collections Account or any other
account held by the Trustee as trustee of the Series Trust and which is
attributable to the Interest Rate Swap Provider Deposit (if any)
deposited in the Collections Account or that other account and will
instruct the Trustee to pay such interest to the Interest Rate Swap
Provider on the next Distribution Date.
9. CHARGE-OFFS
9.1 Allocation of Principal Charge-offs
If there is a Principal Charge-off on a Determination Date prior to the
enforcement of the Charge, it will be allocated in the following order:
(a) (Class B Notes): first, amongst the Class B Notes equally in
reduction of the Stated Amount of the Class B Notes until the
Stated Amount of the Class B Notes is reduced to zero; and
(b) (Other Securities and Standby Redraw Facility Provider):
secondly, any balance of the Principal Charge-off remaining after
the application of clause 9.1(a) will be allocated as follows:
(i) the Class A-1 Charge-off Percentage of such balance
rateably amongst the Class A-1 Notes according to the
Stated Amount of each Class A-1 Note;
(ii) the Class A-2 Charge-off Percentage of such balance amongst
the Class A-2 Notes equally;
(iii) the Redraw Bond Charge-off Percentage of such balance
rateably amongst the Redraw Bonds according to the Stated
Amount of each Redraw Bond; and
(iv) the Standby Redraw Charge-off Percentage of such balance to
the Standby Redraw Facility Principal,
in reduction, respectively, of the Stated Amount of the Class A-1
Notes (in accordance with the Class A-1 Note Conditions), the
Stated Amount of the Class A-2 Notes and the Redraw Bonds and the
Standby Redraw Facility Principal, until such Stated Amounts and
the Standby Redraw Facility Principal are reduced to zero.
A reduction in the Stated Amount of a Security and the Standby Redraw
Facility Principal in accordance with the foregoing will take effect on
the next Distribution Date by the amount so allocated.
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9.2 Allocation of Principal Charge-off Reimbursements
If there is a Principal Charge-off Reimbursement on a Determination Date,
then it will be allocated in the following order:
(a) (Class A Notes, Redraw Bonds and Standby Redraw Facility
Provider): first, pro-rata (according to, in the case of the Class
A-1 Notes, the A$ Equivalent of the aggregate Unreimbursed
Principal Charge-offs on that Determination Date, in the case of
the Class A-2 Notes and the Redraw Bonds, their respective
aggregate Unreimbursed Principal Charge-offs on that Determination
Date and, in the case of the Standby Redraw Facility Principal,
its Unreimbursed Principal Charge-offs on that Determination Date)
as follows:
(i) rateably amongst the Class A-1 Notes according to the
Unreimbursed Principal Charge-off of each Class A-1 Note;
(ii) equally amongst the Class A-2 Notes;
(iii) rateably amongst the Redraw Bonds according to the
Unreimbursed Principal Charge-off of each Redraw Bond; and
(iv) the Standby Redraw Facility Principal,
in reduction of, respectively, the amount of the Unreimbursed
Principal Charge-offs on the Class A-1 Notes (in accordance with
the Class A-1 Note Conditions) and the Unreimbursed Principal
Charge-offs on the Class A-2 Notes, the Redraw Bonds and the
Standby Redraw Facility Principal, until such Unreimbursed
Principal Charge-offs are reduced to zero; and
(b) secondly, equally amongst the Class B Notes until the amount of
Unreimbursed Charge-offs on the Class B Notes are reduced to zero.
A reduction of an Unreimbursed Principal Charge-off in accordance with
the foregoing will take effect on the next Distribution Date by the
amount so allocated.
9.3 Loss Recoveries
If the Servicer receives or collects any Loss Recoveries in respect of a
Mortgage Loan for which payment has already been received by or on behalf
of the Trustee from a Support Facility Provider, then the Servicer must
pay such amount to the relevant Support Facility Provider pursuant to the
relevant Support Facility. Where the Trustee is entitled to retain any
such Loss Recoveries pursuant to such Support Facility, or receives any
Loss Recoveries from the Support Facility Provider, then such amounts
will be included in Other Income Amounts.
10. PAYMENTS ON DISTRIBUTION DATES BY TRUSTEE
10.1 Payment of Accrued Interest Adjustment on first Distribution Date
On the first Distribution Date, the Trustee must, in accordance with the
directions given to it by the Manager pursuant to clause 8.1 pay from
the Collections Account to the Seller the aggregate of the Accrued
Interest Adjustment for all Mortgage Loans then forming part of the
Assets of the Series Trust. Such aggregate sum will, for the purposes of
making the determinations pursuant to clause 8.1 on the first
Determination Date, be deducted by the Manager from the Available Income
Amount in respect of the first Distribution Date.
10.2 Application of the Available Income Amount on each Distribution Date
On each Distribution Date prior to the enforcement of the Charge, the
Trustee must, in accordance with the directions given by the Manager
pursuant to clause 8.1, apply the Available Income Amount in respect of
that Distribution Date in making the following allocations, and the
following payments from the Collections Account, in the following order
of priority:
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(a) (Taxes): first, in or towards payment of or provision for Taxes
in relation to the Series Trust (including Government Charges paid
by the Servicer on behalf of the Trustee);
(b) (Trustee's Fee): secondly, in or towards payment to the Trustee
of the Trustee's Fee due on that Distribution Date;
(c) (Security Trustee's Fee): thirdly, in or towards payment to the
Security Trustee of the Security Trustee's Fee due on that
Distribution Date;
(d) (Manager's Fee): fourthly, in or towards payment to the Manager
of the Manager's Fee due on that Distribution Date;
(e) (Servicer's Fee): fifthly, in or towards payment to the Servicer
of the Servicer's Fee due on that Distribution Date;
(f) (Liquidity Facility Commitment Fee): sixthly, in or towards
payment to the Liquidity Facility Provider of the Liquidity
Facility Commitment Fee due on that Distribution Date;
(g) (Support Facilities): seventhly, in or towards payment rateably
of any net amounts due to a Support Facility Provider under a
Support Facility on that Distribution Date, but excluding any
amounts specified in paragraph (f) above, paragraphs (i), (j) and
(k)(i) & (iv) below and clauses 9.3 and 10.3(b);
(h) (Expenses): eighthly, in or towards payment of or provision for
all Expenses in respect of the Accrual Period ending on that
Distribution Date;
(i) (Standby Redraw Facility Commitment Fee): ninthly, in or towards
payment to the Standby Redraw Facility Provider of the Standby
Redraw Facility Commitment Fee due on that Distribution Date;
(j) (Liquidity Facility Advance): tenthly, in or towards repayment to
the Liquidity Facility Provider of any outstanding Liquidity
Facility Advance made on or prior to the previous Distribution
Date;
(k) (Class A Note, Redraw Bond and Standby Redraw Facility Interest):
eleventhly, subject to clause 10.8, in payment rateably as
follows:
(i) to the Currency Swap Providers in accordance with clause
10.4 of the A$ Class A-1 Interest Amounts, and any A$
Class A-1 Unpaid Interest Amounts, in relation to that
Distribution Date;
(ii) equally amongst the Class A-2 Notes of the aggregate of the
Interest Amounts in relation to the Class A-2 Notes for the
Accrual Period ending on that Distribution Date and any
then Unpaid Interest Amounts in relation to the Class A-2
Notes;
(iii) rateably, according to the sum of the Interest Amounts for
the Accrual Period ending on that Distribution Date, and
the Unpaid Interest Amounts (if any), for each Redraw Bond,
amongst the Redraw Bonds of the aggregate of the Interest
Amounts in relation to the Redraw Bonds for the Accrual
Period ending on that Distribution Date and any then Unpaid
Interest Amounts in relation to the Redraw Bonds; and
(iv) to the Standby Redraw Facility Provider of the aggregate of
the Standby Redraw Facility Interest (if any) due on that
Distribution Date and any Standby Redraw Facility Interest
remaining unpaid from prior Distribution Dates;
(l) (Class B Interest): twelfthly, subject to clause 10.8, in payment
equally amongst the Class B Notes of the aggregate of the Interest
Amounts in relation to the Class B Notes for the Accrual Period
ending on that Distribution Date and any then Unpaid Interest
Amounts in relation to the Class B Notes;
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(m) (Principal Charge-off Reimbursement): thirteenthly, subject to
clause 10.8, the amount of the Principal Charge-off Reimbursement
for the Determination Date as an allocation to the Available
Principal Amount to be paid in accordance with clause 10.3; and
(n) (Distribution): fourteenthly, subject to clause 10.8, the
balance in payment to the Residual Unitholder, to be dealt with,
and held by, the Residual Unitholder pursuant to clause 11.1.
The obligations of the Trustee to make any payment or allocation under
each of the above paragraphs is limited in each case to the balance of
the Available Income Amount (if any) available after application in
accordance with the preceding paragraph or paragraphs.
10.3 Application of the Available Principal Amount on each Distribution Date
On each Distribution Date prior to the enforcement of the Charge, the
Trustee must in accordance with the directions given by the Manager
pursuant to clause 8.1, apply the Available Principal Amount in respect
of that Distribution Date in making the following payments from the
Collections Account in the following order of priority:
(a) (Seller Advances): first, subject to clause 8.3, in or towards
repayment to the Seller on the next Distribution Date of any
Seller Advances made by the Seller during or prior to the
Collection Period just ended and which have not previously been
repaid in accordance with this clause 10.3(a);
(b) (Standby Redraw Facility Principal): secondly, in or towards
repayment to the Standby Redraw Facility Provider of any Standby
Redraw Facility Principal;
(c) (Securityholders): thirdly, subject to clause 10.8, in accordance
with clause 10.5; and
(d) (Residual Unitholder): fourthly, subject to clause 10.8, the
balance (if any) to the Residual Unitholder.
The obligations of the Trustee to make any payment under each of the
above paragraphs is limited in each case to the balance of the Available
Principal Amount (if any) available after application in accordance with
the previous paragraph or paragraphs.
10.4 Payment of Interest on the Class A-1 Notes
On each Distribution Date that any amount is payable to a Currency Swap
Provider pursuant to clause 10.2(k)(i), the Trustee must comply with
Condition 6.9 of the Class A-1 Note Conditions in relation to that
Currency Swap Provider.
10.5 Repayment of Principal on the Securities
On each Distribution Date, prior to the enforcement of the Charge, the
Trustee must pay the amount available for distribution on that
Distribution Date in accordance with clause 10.3(c) in the following
order:
(a) (Redraw Bonds): first, amongst the Redraw Bonds (if any) as a
repayment of principal on the Redraw Bonds in the following order:
(i) first, equally amongst those Redraw Bonds with the earliest
Issue Date until the Stated Amount of those Redraw Bonds is
reduced to zero;
(ii) secondly, equally amongst those Redraw Bonds with the next
earliest Issue Date (if any) until the Stated Amount of
those Redraw Bonds is reduced to zero; and
(iii) subsequently, equally amongst each subsequent group of
Redraw Bonds (if any) with the same Issue Date until the
Stated Amount of those Redraw Bonds is reduced to zero on
the basis that a Redraw
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Bond will not be entitled to any payment in respect of
principal under this clause 10.5 until the Stated Amount of
all Redraw Bonds with an earlier Issue Date than that
Redraw Bond has been reduced to zero;
(b) (Class A Notes): secondly, subject to clause 10.8, the lesser of
the balance (if any) of the amount available for distribution and
the Class A Principal Distribution for that Distribution Date
(such lesser amount being the "Class A Available Principal
Distribution") rateably as follows:
(i) the Class A-1 Percentage of the Class A Available Principal
Distribution to the Currency Swap Providers in accordance
with clause 10.6; and
(ii) the Class A-2 Percentage of the Class A Available Principal
Distribution equally amongst the Class A-2 Notes as a
repayment of principal on the Class A-2 Notes,
until the Stated Amount of the Class A Notes is reduced to zero;
and
(c) (Class B Notes): thirdly, subject to clause 10.8, the balance (if
any) of the amount available for distribution under this clause
10.5 equally amongst the Class B Notes until the Stated Amount of
the Class B Notes is reduced to zero.
10.6 Repayment of Principal on the Class A-1 Notes
On each Distribution Date that any amount is payable to a Currency Swap
Provider pursuant to clause 10.5(b)(i), the Trustee must comply with
Condition 7.2 of the Class A-1 Note Conditions in relation to that
Currency Swap Provider.
10.7 Inability to Comply with Order of Priority
The inability of the Trustee or the Manager to comply with any order of
priority of payment specified in this Deed due to any law relating to the
rights of creditors generally or specifically does not constitute a
Trustee Default or a Manager Default and does not entitle any
Securityholder or the Residual Unitholder to take any action against the
Trustee or the Manager. Nothing in clause 8 or this clause 10 requires
the Trustee or the Manager to breach any Transaction Document or to fail
to comply with any applicable law.
10.8 No Payment in respect of Obligations ranking Equally or after Class A-1
Notes if no payment made to Currency Swap Provider
If on a given Distribution Date for whatever reason payment is not made
in full to a Currency Swap Provider in accordance with clauses
10.2(k)(i) and 10.5(b)(i), the Trustee must not make any payment or
allocation (as the case may be) pursuant to clauses 10.2(k)-(n)
(inclusive), 10.3(c) & (d) or 10.5(b) & (c) on that Distribution Date or
thereafter until and unless all amounts outstanding under clauses
10.2(k)(i) and 10.5(b) are paid to the Currency Swap Provider (or other
arrangements are entered into) that enables all amounts of interest and
principal due in respect of the Class A-1 Notes to be paid or repaid to
the Class A-1 Noteholders in full in US dollars in accordance with the
Class A-1 Notes.
10.9 Payments in respect of A$ Securities
All payments in respect of an A$ Security on a Distribution Date referred
to in this Deed must be made to the person recorded in the Register as
the holder of that A$ Security as at close of business on the Business
Day immediately preceding that Distribution Date.
11. NET TAX INCOME OF THE SERIES TRUST
11.1 Net Tax Income of the Series Trust absolutely vested in the Residual
Unitholder
The Net Tax Income of the Series Trust for each Financial Year will be
absolutely vested in the Residual Unitholder and the Residual Unitholder
will have an absolute vested interest
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in the Net Tax Income of the Series Trust for that Financial Year. To the
extent that such balance has not actually been paid to the Residual
Unitholder pursuant to clause 10.2(n) during that Financial Year, it
will constitute an amount payable by the Trustee to the Residual
Unitholder to be satisfied only from Excess Distributions otherwise
payable to the Residual Unitholder in accordance with clause 10.2(n) on
the Distribution Dates following the close of the Financial Year. If in
the last Financial Year of the Series Trust, such amount (if any) in
respect of the previous Financial Year has not been satisfied from the
Excess Distributions otherwise payable to the Residual Unitholder in
accordance with clause 10.2(n) on the Distribution Dates in the last
Financial Year, the shortfall, plus any such amount for the last
Financial Year, will be satisfied in full from, and only by, the payment
of the excess funds (if any) by the Trustee to the Residual Unitholder
pursuant to clause 26.15.
11.2 Excess Distribution
(a) (Deposit with the Residual Unitholder): A payment to the Residual
Unitholder of the Excess Distribution pursuant to clause 10.2(n)
will be held by the Residual Unitholder as a deposit by the
Trustee with the Residual Unitholder and will be dealt with in
accordance with this clause 11.2.
(b) (Application towards Net Tax Income): At the end of each
Financial Year, the Residual Unitholder will, and will be entitled
to, deduct from so much of the deposit standing to the credit of
the Trustee pursuant to clause 11.2(a), the Net Tax Income of the
Series Trust for that Financial Year absolutely vested in the
Residual Unitholder for that Financial Year pursuant to clause
11.1. To the extent that there is any surplus in the amount so
deposited over the Net Tax Income so vested, in a Financial Year,
the surplus will be dealt with in accordance with this clause
11.2(b) in the succeeding Financial Year.
12. EARLY TERMINATION OF SWAPS
12.1 Early Termination of a Swap
If at any time a Fixed Rate Swap terminates prior to its scheduled
termination date, or the Basis Swap terminates, in each case whilst there
are Securities which have not then been redeemed (or deemed to be
redeemed) in full or the Class A-1 Currency Swap terminates whilst there
are Class A-1 Notes which have not then been redeemed (or deemed to be
redeemed) in full, the Manager and the Trustee must:
(a) (Enter into Replacement Swap): (in the case of the Trustee, to the
extent that the Manager has made appropriate arrangements to
ensure that it is practicable) enter into one or more swaps which
replace the terminated Swap on terms and with a counterparty which
the Rating Agencies confirm in writing will not result in a
reduction, qualification or withdrawal of the credit ratings then
assigned by them to the Securities or the Class A-1 Notes (as the
case may be) and, in the case of the Manager, use all reasonable
endeavours to make appropriate arrangements to ensure that it is
practicable for the Trustee to enter into one or more such swaps
not later than 5 Business Days after it becomes aware of the
termination of such terminated Swap;
(b) (Termination of Basis Swap): in the case of a termination of the
Basis Swap (but without limiting the operation of paragraphs (a)
and (c) in relation to the termination of the Basis Swap), as soon
as the Trustee becomes actually aware of the termination, direct
the Servicer to ensure compliance with clause 12.2; or
(c) (Other Arrangements): enter into such other arrangements which the
Rating Agencies confirm in writing will not result in a reduction,
qualification or withdrawal of the credit ratings then assigned by
them to the Securities or the Class A-1 Notes (as the case may
be).
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12.2 Servicer to Adjust Mortgage Interest Saver Accounts and Mortgage Rates
if Basis Swap terminated
If at any time the Basis Swap terminates whilst there are any Securities
which have not been redeemed (or deemed to be redeemed) in full and it
is directed by the Manager and the Trustee pursuant to clause 12.1(b)
to comply with this clause 12.2, the Servicer must, in respect of each
Accrual Period commencing thereafter until the date on which clause
12.1(a) or (c) may be implemented:
(a) (Reduce Mortgage Interest Saver Accounts): reduce, except as may
be provided by applicable laws (including the Consumer Credit
Code), any Binding Provision and any Competent Authority, the
rates at which the interest off-set benefits under the Mortgage
Interest Saver Accounts are calculated to rates which produce an
amount of income at least equal to the lesser of:
(i) the aggregate amount of income that would be produced if
the rates at which the interest off-set benefits under the
Mortgage Interest Saver Accounts are calculated were
reduced to zero; and
(ii) the amount of income which is sufficient, when aggregated
with the amount of income produced by the rate of interest
on the Mortgage Loans, and the income from Short-Term
Authorised Investments, then forming part of the Assets of
the Series Trust to ensure that the Trustee will have
available to it sufficient Finance Charge Collections and
Other Income Amounts to enable it to comply with its
obligations under the Transaction Documents as they fall
due; and
(b) (Set Threshold Rate): if the amount of income produced pursuant to
clause 12.2(a) is not sufficient, when aggregated with the amount
of income produced by the rate of interest payable on the Mortgage
Loans, and the income from Short-Term Authorised Investments, then
forming part of the Assets of the Series Trust to ensure that the
Trustee will have sufficient Finance Charge Collections and Other
Income Amounts to enable it to meet its obligations under the
Transaction Documents as they fall due, ensure, except as may be
provided by applicable law (including the Consumer Credit Code),
any Binding Provision and any Competent Authority, that the
weighted average Mortgage Rate applicable to the Mortgage Loans
forming part of the Assets of the Series Trust on each Rate Set
Date is not lower than the Threshold Rate determined by the
Manager on that Rate Set Date pursuant to clause 12.3 and will
promptly notify the Borrower in relation to each Mortgage Loan of
any change where required in accordance with the relevant Mortgage
or Loan Agreement.
12.3 Determination of Threshold Rate
While clause 12.2(b) applies, the Manager will, on each Rate Set Date,
determine the Threshold Rate for the Accrual Period commencing on that
Rate Set Date and:
(a) (Notify Servicer): in the case of Mortgage Loans the assignment of
which to the Trustee has not been perfected by the giving of
notice to the relevant Borrower, promptly notify on that date the
Servicer of such rate; and
(b) (Notify Trustee and Servicer): in the case of Mortgage Loans the
assignment of which has been so perfected, promptly notify on that
date the Trustee and the Servicer of such rate.
12.4 Trustee to set Mortgage Rate
If:
(a) (Servicer Default): a failure by the Servicer to comply with
clause 12.2 results in the occurrence of the Servicer Default
referred to in clause 18.1(f); and
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(b) (No Substitute Servicer Appointed): a Substitute Servicer is not
appointed immediately pursuant to clause 18 of this Deed,
the Manager must immediately direct the Trustee (in its capacity as
Substitute Servicer pursuant to clause 18 of this Deed), and the Trustee
must as soon as practicable thereafter comply with such direction, to
adjust or maintain the Mortgage Rate (as the case may be) in accordance
with clause 12.2 until such time as a Substitute Servicer is appointed
in accordance with the Trust Deed.
13. REPRESENTATIONS AND WARRANTIES REGARDING MORTGAGE LOANS
13.1 Seller's Representations and Warranties
As at the Cut-Off Date, the Seller represents and warrants to the Trustee
in respect of each Mortgage Loan that:
(a) (Mortgage complied with laws): at the time that the Seller entered
into the Mortgage relating to the Mortgage Loan, the Mortgage
complied in all material respects with applicable laws including
applicable Consumer Credit Code laws;
(b) (Good faith): at the time that the Seller entered into the
Mortgage Loan, it did so in good faith;
(c) (Ordinary course of business): at the time that the Seller entered
into the Mortgage Loan, the Mortgage Loan was originated in the
ordinary course of the Seller's business and since that time the
Seller has dealt with that Mortgage Loan in accordance with the
Servicing Procedures and the Servicing Standards;
(d) (First ranking security): at the time that the Seller entered into
the Mortgage Loan, all necessary steps were taken in respect of a
Mortgage created in connection with the Mortgage Loan so that the
Mortgage complied with the legal requirements applicable at that
time to ensure that the Mortgage was a first-ranking mortgage
(subject to any statutory charges, any prior charges of a body
corporate, service company or equivalent, whether registered or
otherwise, and any other prior Security Interests which do not
prevent the Mortgage from being considered to be a first-ranking
mortgage in accordance with the Servicing Standards) secured over
Land in the jurisdiction in which the relevant Land is located
subject to stamping and registration of the relevant Mortgage in
due course;
(e) (Priority arrangements): where there is a second or other mortgage
in existence over Land the subject of a Mortgage in relation to
the Mortgage Loan and the Seller is not the mortgagee of that
second or other mortgage, the Seller has ensured (by way of a
priority agreement with the subsequent mortgagee or otherwise)
that the Mortgage will rank ahead in priority to the second or
other mortgage on enforcement for an amount not less than the
principal amount (plus accrued but unpaid interest) outstanding on
the Mortgage Loan plus such extra amount determined in accordance
with the Servicing Guidelines;
(f) (Borrower not insolvent): at the time that the Mortgage Loan was
approved, the Seller had not received any notice of the insolvency
or the bankruptcy of the corresponding Borrowers or that the
corresponding Borrowers did not have the legal capacity to enter
into the corresponding Mortgage;
(g) (Seller sole legal and beneficial owner): the Seller is the sole
legal and beneficial owner of the Mortgage Loan and the related
Mortgages and First Layer of Collateral Securities (other than the
Insurance Policies) and to its knowledge, subject to clause
13.1(d), no prior ranking Security Interest exists in relation to
its right, title and interest in that Mortgage Loan and the
related Mortgages and First Layer of Collateral Securities;
(h) (Due stamping): each of the Mortgage Documents (other than the
Insurance
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Policies in respect of Land) relating to the Mortgage Loan which
is required to be stamped with stamp duty has been duly stamped;
(i) (Mortgage Loan not discharged): the Mortgage Loan has not been
satisfied, cancelled, discharged or rescinded and the property
relating to each relevant Mortgage has not been released from the
security of that Mortgage;
(j) (Holds all documents necessary to enforce): the Seller holds, in
accordance with the Servicing Standards, all documents which,
pursuant to the Servicing Standards, it should hold to enforce the
provisions of, and the security created by, the corresponding
Mortgage and the First Layer of Collateral Securities;
(k) (Terms unqualified): other than the relevant Mortgage Documents,
there are no documents entered into between the Seller and the
Borrower or any other relevant party in relation to the Mortgage
Loan which would qualify or vary the terms of the Mortgage Loan
except as permitted by the Servicing Standards (including any
variations of a Mortgage Loan which may be made by notice to the
Borrower from the Seller) and except any documentation relating to
any corresponding Mortgage Interest Saver Account;
(l) (No notice of Security Interests): other than in respect of
priorities granted by statute, the Seller has not received notice
from any person that it claims to have a Security Interest ranking
in priority to or equal with the Security Interest held by the
Seller and constituted by any corresponding Mortgage;
(m) (LVR not exceeded): the Seller is not aware of any restrictive
covenants, licences or leases existing in respect of freehold Land
the subject of any corresponding Mortgage which would reduce the
value of the Mortgage over such Land such that the Loan to Value
Ratio determined as at the Cut-Off Date in respect of the Mortgage
Loan would exceed 95% (but retaining for this purpose the original
"V" for the Mortgage Loan under the definition of "Loan to Value
Ratio" in clause 1.1);
(n) (Mortgage Insurance Policies): the Mortgage Loan is, or will be on
and from the Closing Date, insured under a Mortgage Insurance
Policy;
(o) (Support Facility requirements): the Seller has complied with all
material requirements of each Support Facility relating to the
Mortgage Loan, except as otherwise permitted by the corresponding
Support Facility Provider;
(p) (All licences and consents): the Seller holds all consents,
licences, approvals, authorisations and exemptions from any
Governmental Agency required as at the Cut-Off Date for, or in
connection with, performance and enforceability in respect of the
Mortgage Loan which, in accordance with the Servicing Standards,
it should hold in relation to the Mortgage Loan as at the Cut-Off
Date;
(q) (Eligibility criteria): the Mortgage Loan complies with the
Eligibility Criteria as at the Cut-Off Date;
(r) (Interest rate may be varied): except in respect of a Mortgage
Loan subject to a fixed rate of interest (or a rate of interest
which can be converted into a fixed rate of interest or a fixed
margin relative to a benchmark) and except as may be provided by
applicable laws (including the Consumer Credit Code), any Binding
Provision or any Competent Authority or as may be provided in the
corresponding Mortgage Documents, the interest rate payable on the
Mortgage Loan is not subject to any limitation and no consent,
additional memoranda or other writing is required from the
relevant Borrower to give effect to a change in the interest rate
payable on the Mortgage Loan and, subject to the foregoing, any
change in the interest rate may be set at the sole discretion of
the Servicer and is effective no later than when notice is given
to the Borrower in accordance with the terms of the relevant
Mortgage Loan;
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(s) (Seller entitled to Sell): the Seller is lawfully entitled to sell
and assign its interests in the corresponding Mortgage Loan Rights
and to transfer valid and beneficial title to the Trustee free
from all Security Interests (other than as described in clause
13.1(d));
(t) (No preference): it is not aware of anything in relation to the
sale of the Mortgage Loan Rights to the Trustee which might cause
a court to hold that the sale constitutes an under-value transfer,
a fraudulent conveyance or a voidable preference under any law
relating to insolvency; and
(u) (No breach): the sale, transfer and assignment of the Seller's
interest in the Mortgage Loan Rights will not constitute a breach
of its obligations or a default under any Security Interest
binding on the Seller or its property.
13.2 Trustee need not Test Warranties
The Trustee is under no obligation to test the truth of any warranty or
representation in clause 13.1 and is entitled to accept them
conclusively at all times (unless it is actually aware of any breach).
14. BREACH OF REPRESENTATIONS AND WARRANTIES
14.1 Manager or Seller Becomes Aware of Incorrect Representations or
Warranties
If the Manager or the Seller becomes actually aware that a material
representation or warranty made pursuant to clause 13.1 was incorrect
when given in respect of a Mortgage Loan assigned to the Trustee in
accordance with this Deed it must give notice to the Trustee and the
Manager or the Seller (as the case may be) accompanied by sufficient
details to identify the relevant Mortgage Loan, and the reason the
representation or warranty is incorrect, within 5 Business Days of the
Manager or Seller (as the case may be) becoming so actually aware.
Neither the Manager nor the Seller is under any ongoing obligation
whatsoever to conduct any investigation in any manner whatsoever to
determine if a representation or warranty made pursuant to clause 13.1
is incorrect when given in respect of a Mortgage Loan.
14.2 If Trustee Becomes Aware of Incorrect Representations or Warranties
If the Trustee becomes actually aware that a material representation or
warranty made pursuant to clause 13.1 was incorrect when given in
respect of a Mortgage Loan assigned to the Trustee in accordance with
this Deed, it must give notice to the Manager and the Seller, accompanied
by sufficient details to identify the relevant Mortgage Loan and the
Trustee's reasons for believing that the representation or warranty is
incorrect, within 5 Business Days of becoming actually so aware. The
Trustee is under no obligation whatsoever to conduct any investigation in
any manner whatsoever to determine if a representation or warranty made
pursuant to clause 13.1 is incorrect when given in respect of a Mortgage
Loan.
14.3 Remedy of Defaults during Prescribed Period
If with respect to any Mortgage Loan:
(a) (Representation or warranty incorrect): any representation or
warranty made by the Seller pursuant to clause 13.1 is incorrect
when given; and
(b) (Notice given under clause 14.1 or 14.2):
(i) the Manager or the Seller gives a notice to the Trustee
pursuant to clause 14.1; or
(ii) the Seller receives a notice from the Trustee (pursuant to
clause 14.2),
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in either case, not later than 5 Business Days prior to the last
day of the Prescribed Period in relation to the Mortgage Loan,
then, if that breach is not remedied to the satisfaction of the
Trustee within 5 Business Days of the Seller or the Manager giving
or receiving the notice (as the case may be), the Mortgage Loan
Rights to which such Mortgage Loan relates will be held by the
Trustee in accordance with the terms of clause 14.4.
14.4 Holding for CBA Trust during Prescribed Period
If, in relation to a Mortgage Loan during its Prescribed Period, any
breach referred to in a notice pursuant to clause 14.3 is not remedied
within the period specified in clause 14.3, then, on the expiry of the
time period for remedying the breach specified in clause 14.3 and
without the necessity for any further act or instrument or other thing
being done or brought into existence, the Trustee automatically by virtue
of this Deed holds its entire interest in the Mortgage Loan Rights, of
which that Mortgage Loan forms part, for the CBA Trust. However, the
Trustee is entitled to retain for the Series Trust all Finance Charge
Collections and Principal Collections received by the Trustee pursuant to
the relevant Mortgage Loan from the Cut-Off Date to the date of delivery
of the relevant notice in accordance with clause 14.3.
14.5 Costs
The Seller must pay to, or reimburse, the Trustee for all costs and
expenses (including, without limitation, any legal costs charged at the
usual commercial rates of the relevant legal services provider and any
stamp duty and registration fees) arising out of or necessarily incurred
in connection with the holding by the Trustee of its interest in any
Mortgage Loan Rights in accordance with clause 14.4. Such payment (if
any) must be made on the same date as payments in respect of the relevant
Mortgage Loan must be made pursuant to clause 14.6.
14.6 Payment
Subject to clause 14.8, the Seller must pay to the Trustee, in respect
of any Mortgage Loan Rights held for the CBA Trust pursuant to clause
14.4, within 2 Business Days of the Mortgage Loan Rights becoming so
held for the CBA Trust an amount equal to the sum of:
(a) (Principal Amount): the principal amount outstanding in respect of
the relevant Mortgage Loan (as recorded on the Mortgage Loan
System) as at the date of delivery of the relevant notice in
accordance with clause 14.3; and
(b) (Accrued interest): the accrued but unpaid interest (as at the
date of delivery of the relevant notice pursuant to clause 14.3)
in respect of that Mortgage Loan.
14.7 Limitation on Rights of Trustee During Prescribed Period
The performance by the Seller of its obligations under clause 14.6 is
the sole remedy available to the Trustee during the relevant Prescribed
Period in respect of a representation or warranty being incorrect when
given by the Seller pursuant to clause 13.1 in respect of a Mortgage
Loan. The Trustee expressly acknowledges and agrees that during the
Prescribed Period, other than pursuant to clause 14.6, it has no remedy
against the Seller in respect of any representation or warranty being
incorrect when given by the Seller pursuant to clause 13.1 and which the
Trustee becomes actually aware of prior to the last day on which the
notices referred to in clause 14.3(b) can be given.
14.8 Limit of Seller's Liability for Mortgage Loans
Other than the rights of the Trustee pursuant to clause 14.6, the Seller
has no liability for any loss or damage caused to the Trustee, any
Securityholder, any Creditor or any other person in respect of any
representation or warranty being incorrect when given by the Seller
pursuant to clause 13.1 in respect of a Mortgage Loan in relation to
which a notice has been received or given pursuant to clause 14.3(b).
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14.9 Seller's Liability for Damages After Prescribed Period
(a) (Seller to indemnify the Trustee): The Seller indemnifies the
Trustee (whether for its own account or for the account of
Securityholders) against any costs, damages or loss arising from
any representation or warranty being incorrect when made by the
Seller pursuant to clause 13.1 in relation to a Mortgage Loan and
which is discovered by the Trustee after the last day on which a
notice under clause 14.3(b) can be given. The amount of such
costs, damages or loss is to be agreed between the Trustee and the
Seller. Failing such agreement the amount is to be the amount
determined by the Seller's external auditors. The amount cannot
exceed the principal amount outstanding in respect of the Mortgage
Loan (as recorded on the Mortgage Loan System) and any accrued but
unpaid interest and any outstanding fees in respect of the
Mortgage Loan (calculated at the time of agreement between the
Trustee and the Seller or determination by the Seller's external
auditors, as the case may be).
(b) (Seller to pay damages within 7 Business Days): The Seller must,
within 7 Business Days of agreement or determination (as the case
may be) pursuant to clause 14.9(a), pay the relevant sum to the
Trustee.
(c) (Limitation): The Trustee agrees and acknowledges that the
Trustee's sole remedy against the Seller for breach of any
representation or warranty in clause 13.1 of which the Trustee
has actual notice on or after the last day on which the notice
referred to in clause 14.3(b) can be given is pursuant to clause
14.9(a); and
14.10 Discharge of obligations
The compliance by the Seller with its obligations under clause 14.6 or
clause 14.9 (as the case may be) will discharge all obligations of the
Seller with respect to any breach of any representation or warranty made
in clause 13.1, regardless, in the case of clause 14.6, of whether such
breach is specified in the relevant notice referred to in clause 14.3(b)
or not.
14.11 Fraud
If the Trustee is unable to give a notice under clause 14.2 due to the
fraud, negligence or wilful default on the part of the Seller or any of
its officers, employees or agents, the Trustee may take such action
against the Seller as the Trustee will think fit.
14.12 Trustee's Reliance
The Seller acknowledges that the Trustee has relied, and will if it
accepts the offer contained in the Sale Notice rely, on the
representations and warranties made or to be made by it pursuant to
clause 13.1.
15. SELLER'S GENERAL UNDERTAKINGS
15.1 General Undertakings
The Seller undertakes to the Trustee and the Manager that, on or after
the Closing Date the Seller will, in addition to any of its other
undertakings under this Deed and in respect of those Mortgage Loan Rights
which then form part of the Assets of the Series Trust, at its own
expense:
(a) (Deliver Mortgage Documents): if a Perfection of Title Event
occurs, promptly deliver to the Trustee all Mortgage Documents not
otherwise provided to the Trustee in accordance with clause 25
and (subject to any restrictions imposed by any law) promptly
provide such evidence in its possession or control as may be
required by the Trustee to support any claim in respect of a
Mortgage Loan Right;
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(b) (Execute further instruments): following the occurrence of a
Perfection of Title Event and the request in writing of the
Trustee, promptly execute, acknowledge and deliver or cause to be
executed, acknowledged and delivered such amendments to this Deed
and such further instruments and take such further action as may
be reasonably necessary to preserve and protect the interest of
the Trustee in and the value of the Mortgage Loan Rights and
assist and co-operate with the Trustee, the Servicer and the
Manager in the Trustee obtaining legal title to the Mortgage Loan
Rights following a Perfection of Title Event;
(c) (Give notice of adverse claim): following receipt of actual notice
of a claim by a third party with respect to or a challenge to the
sale and/or assignment of any Mortgage Loan Right, promptly:
(i) give notice in writing of such action or claim to the
Trustee and, if the Seller is not the Servicer, the
Servicer;
(ii) give notice in writing to the third party claimant of the
Trustee's beneficial ownership of the Mortgage Loan Right,
with a copy to the Trustee;
(iii) give notice in writing to the court (if any) in which such
claim was filed of the Trustee's interest in the Mortgage
Loan, with a copy to the Trustee; and
(iv) pay to, or reimburse, the Trustee immediately upon demand
all reasonable costs and expenses, including, without
limitation, any stamp duty and registration fees,
necessarily incurred by the Trustee in maintaining its
interest in the Mortgage Loan Rights or with respect to
giving any related notices to any Borrower or other party
to any Transaction Document;
(d) (Assist Servicer:) take such action as the Servicer may from time
to time reasonably request in connection with the management,
maintenance and enforcement of the Mortgage Loan Rights;
(e) (Give notice of Security Interests): promptly notify the Trustee
after it becomes aware of the creation or existence of any
Security Interest in relation to any Mortgage Loan Rights
competing with its interest or the interest of the Trustee in any
Mortgage Loan Rights;
(f) (Retain legal title to Mortgage Loan Rights): subject to this
Deed, at all times ensure that it retains the legal ownership of
the Mortgage Loan Rights;
(g) (Execute documents of extinguishment): execute such documents and
instruments as will reasonably be requested by the Trustee to
effect the extinguishment of the Trustee's right, title and
interest in a Mortgage Loan Right pursuant to this Deed;
(h) (Pay costs of extinguishment): pay to, or reimburse, the Trustee
immediately on demand for all reasonable costs and expenses
including, without limitation, any stamp duty and registration
fees, arising out of or necessarily incurred in connection with
the extinguishment of the Trustee's right, title and interest in a
Mortgage Loan Right pursuant to this Deed;
(i) (Perform obligations): duly and punctually perform each of its
obligations under each of the Mortgage Documents to which it is a
party, including any obligation to notify a Borrower of any change
in interest rates;
(j) (Notify breaches): give notice to the Manager and to the Trustee
promptly upon becoming aware that any representation or warranty
made by the Seller in clause 13.1 was incorrect when made;
(k) (Set-off): if the Seller exercises a right of set-off or
combination in respect of any Mortgage Loan, or if any right of
set-off is exercised against the Seller in respect of any Mortgage
Loan, pay to the Trustee, subject to any laws relating
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to preferences (or the equivalent), the amount of, respectively,
any benefit accruing to the Seller as a result of the exercise of
its right of set-off or combination or the amount of any right of
set-off exercised against the Seller; and
(l) (Security Interest): not grant any Security Interest over its
remaining right, title and interest in any Mortgage Loan Right.
15.2 Seller not bound by Undertaking
If the Trustee has legal title to a Mortgage Loan Right which has been
assigned to it, the undertakings of the Seller set out in paragraphs (e),
(f), (i), (j), (k),and (l) of clause 15.1 cease to apply in respect of
that Mortgage Loan Right.
15.3 Seller Downgrade
If at any time the Seller has a short term deposit credit rating assigned
by Moody's which is lower than P1 (or such other rating as is agreed
between the Manager, the Trustee, the Seller and Moody's) or has a long
term deposit credit rating assigned by S&P which is lower than BBB (or
such other rating as is agreed between the Manager, the Trustee, the
Seller and S&P) or has a long term rating assigned by Fitch IBCA of lower
than BBB (or such other rating as is agreed between the Manager, the
Trustee, the Seller and Fitch IBCA) then (whether or not clause 15.6 has
previously applied) the Seller must:
(a) (Make a Seller Deposit): as a prepayment of its obligations
pursuant to clause 15.1(k) to pay to the Trustee the amount of
any set-off that may thereafter be exercised against the Seller,
deposit or maintain in an account (the "Set-Off Account") with an
Eligible Depository which has a short term credit rating of A-1+
from S&P (which may be the Collections Account while the holder of
the Collections Account is rated in this manner) on each
Distribution Date thereafter (after giving effect to the payments
to be made on that Distribution Date) an amount which is the
greater of the following:
(i) in the case of a lower rating by S&P, the amount from time
to time agreed with S&P or, failing agreement, the amount
from time to time specified by S&P, which is sufficient in
either case (as applicable) so as to not result in a
reduction, qualification or withdrawal of the then credit
rating assigned by S&P to the Securities; or
(ii) in the case of a lower rating by Moody's or Fitch IBCA (as
applicable), unless otherwise agreed by Moody's or Fitch
IBCA (as the case may be), an amount equal to whichever of
paragraphs (A) or (B) below applies:
A. the aggregate of the credit balances of the Mortgage
Interest Saver Accounts then existing in respect of
the Mortgage Loans that are then part of the Assets
of the Series Trust as at the preceding
Determination Date; or
B. if the Seller is no longer the legal owner of the
Mortgage Loans, the aggregate of the credit balances
of the Mortgage Interest Saver Accounts then
existing in respect of each Mortgage Loan then part
of the Assets of the Series Trust as at the date
that the Seller ceased to be the legal owner of that
Mortgage Loans.
(b) (Other Arrangements): implement such other arrangements as are
from time to time agreed between the Seller and S&P (in the case
of a lower rating by S&P), Moody's (in the case of a lower rating
by Moody's) or Fitch IBCA (in the case of a lower rating by Fitch
IBCA) (and notified by the Seller to the Trustee and the Manager)
so as to ensure that S&P, Moody's or Fitch IBCA (as the case may
be) does not reduce, qualify or withdraw the then credit rating
assigned by it to the Securities (if such other arrangements
cannot be so agreed with S&P, Moody's or Fitch IBCA (as the case
may be), the Seller must comply with clause
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15.3(a) in relation to S&P, Moody's or Fitch IBCA, as the case may
be).
15.4 Reduction or Increase of Seller Deposit
If on a Distribution Date to which clause 15.3(a) applies:
(a) (Reduction): the required amount of the Seller Deposit pursuant to
clause 15.3(a) is less than the existing amount of the Seller
Deposit, the Manager will direct the Trustee to repay (and upon
receipt of such direction the Trustee will repay on that
Distribution Date) to the Seller from the Set-Off Account the
difference between the required amount of the Seller Deposit on
that Distribution Date and the existing amount of the Seller
Deposit; and
(b) (Increase): the required amount of the Seller Deposit pursuant to
clause 15.3(a) is greater than the existing amount of the Seller
Deposit, the Seller will deposit in the Set-Off Account on that
Distribution Date the difference between the required amount of
the Seller Deposit on that Distribution Date and the existing
amount of the Seller Deposit.
15.5 Interest on Seller Deposit
On each Determination Date, the Manager will determine the amount (if
any) that has been received in the Collection Period just ended in
respect of interest that has been earned on the Set-Off Account and which
is attributable to the Seller Deposit (if any) deposited in the Set-Off
Account and will instruct the Trustee to pay such interest to the Seller
on the next Distribution Date.
15.6 Seller Upgrade
If, following the application of clause 15.3(a), the Seller is assigned
(by the relevant Rating Agency or Rating Agencies responsible for
triggering the application of the clause) a short term deposit credit
rating by Moody's of at least P1 (or such other rating as is agreed
between the Manager, the Trustee, the Seller and Moody's), a long term
deposit credit rating by S&P of at least BBB (or such other rating as is
agreed between the Manager, the Trustee, the Seller and S&P) or a long
term rating by Fitch IBCA of BBB (or such other rating as is agreed
between the Manager, the Trustee, the Seller and Fitch IBCA), or if
alternative arrangements referred to in clause 15.3(b) are agreed (with
the relevant Rating Agency or Rating Agencies referred to therein) which
do not require the maintenance of a Seller Deposit, the Manager will
direct the Trustee to repay (and within 2 Business Days of receipt of
such direction the Trustee will repay) to the Seller from the Set-Off
Account the then Seller Deposit (which has not previously been utilised
in accordance with clause 15.8(b)) together with all accrued, but
unpaid, interest on that amount determined in accordance with clause
15.5.
15.7 Termination of Series Trust
On the Termination Payment Date the Manager will direct the Trustee to
repay (and upon receipt of such direction the Trustee will repay) to the
Seller from the Set-Off Account the then Seller Deposit (which has not
previously been utilised in accordance with clause 15.8(b)) together
with all accrued, but unpaid, interest on that amount determined in
accordance with clause 15.5.
15.8 Withdrawals from the Collections Account
The Manager may only direct the Trustee to, and the Trustee may only,
make withdrawals from the Seller Deposit in the Set-Off Account as
follows:
(a) (Repay Seller Deposit): to repay to the Seller the Seller Deposit
pursuant to clauses 15.4(a), 15.6 and 15.7; or
(b) (Meet Seller obligations) to meet any obligation of the Seller (in
that capacity) to make any payment to the Trustee pursuant to
clause 15.1(k) in relation to
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the amount of any right of set-off exercised against the Seller
referred to therein, provided that the Seller has failed to make
such payment within 20 Business Days of receipt by the Seller of
notice from the Trustee or the Manager that such payment is due
and unpaid.
15.9 Termination of Mortgage Interest Saver Accounts
The Seller will, following notice by the Trustee to the relevant
Borrowers pursuant to clause 24.3(b) after the occurrence of a
Perfection of Title Event, subject to any contractual notice requirements
by which the Seller is bound, promptly withdraw all interest off-set
benefits (if any) that would otherwise be available to Borrowers under
the terms of their Mortgage Interest Saver Accounts.
15.10 Gross Up for Mortgage Interest Saver Accounts
The Seller must pay the Servicer (as part of the Collections to be
deposited by the Servicer into the Collections Account in accordance with
clause 22) any amount which would otherwise be received by the Servicer
as a Collection to the extent that the obligation to pay such amounts is
discharged or reduced by virtue of the terms of a Mortgage Interest Saver
Account. Such payment must be made on the day that the relevant amount
would otherwise have been received.
16. SERVICING OF MORTGAGE LOAN RIGHTS
16.1 Appointment of Servicer
The Servicer is hereby appointed and agrees to act as the Servicer of the
Mortgage Loan Rights (with effect on and from the Cut-Off Date) which,
from time to time, form part of the Assets of the Series Trust, on the
terms and conditions of this Deed.
16.2 Obligation to Act as Servicer until Termination of Appointment
The Servicer's duties and obligations contained in this Deed continue
until the date of the Servicer's retirement or removal as Servicer in
accordance with this Deed.
16.3 General Servicing Obligation
The Servicer must ensure that the servicing of the Mortgage Loan Rights
which from time to time form part of the Assets of the Series Trust
(including the exercise of the express powers set out in this clause 16)
is:
(a) (In compliance with this clause 16): in compliance with the
express limitations in this clause 16 (unless the prior written
consent of the Manager and the Trustee is obtained); and
(b) (In accordance with Servicing Standards): to the extent that this
clause 16 does not provide otherwise, in accordance with the
Servicing Standards.
16.4 Power to Service
(a) (Servicing functions vested in Servicer): The function of
servicing the Mortgage Loan Rights which at any given time form
part of the Assets of the Series Trust is vested in the Servicer
and it is entitled to undertake the servicing of those Mortgage
Loan Rights to the exclusion of the Trustee (other than when
acting as Servicer in accordance with clause 18) and the Manager.
(b) (Express powers): Without limiting its general powers, the
Servicer has the express powers set out in this clause 16 in
relation to the servicing of the Mortgage Loan Rights which at any
given time form part of the Assets of the Series Trust.
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16.5 Exercise of Discretions
The Servicer must, in servicing the Mortgage Loan Rights which then form
part of the Assets of the Series Trust, exercise its power and
discretions under this Deed, the Servicing Guidelines, and the relevant
Mortgage Documents to which it is a party in accordance with standards
and practices suitable for a prudent lender in the business of making
retail home loans.
16.6 Servicer's Undertaking Regarding Mortgage Loan Rights
The Servicer undertakes for the benefit of the Trustee, that it will
either directly (including by the exercise of its delegated powers under
this Deed and the Master Trust Deed from the Trustee and the Seller) or
indirectly:
(a) (Duly stamp): promptly ensure that any Mortgage Loan Document in
relation to a Mortgage Loan following any amendment,
consolidation, supplementation, novation or substitution of a
Mortgage, is duly stamped (if liable to stamp duty) and duly
registered (where registration is required) with the relevant land
titles office to constitute, in the case of a Mortgage, a
subsisting first-ranking registered mortgage over the relevant
property;
(b) (Notify breaches of Servicing Guidelines): promptly notify the
Trustee and the Manager of any material breach of the Servicing
Guidelines by the Servicer in relation to the servicing of the
Mortgage Loan Rights then forming part of the Assets of the Series
Trust;
(c) (Comply with Mortgage Insurance Policies): notwithstanding any
other provision in this Deed, comply with its material obligations
under any Mortgage Insurance Policy in respect of Mortgage Loans
then forming part of the Assets of the Series Trust;
(d) (Execute documents): at the Trustee's request (acting on the
direction of the Manager), execute such further documents and do
anything else (including, without limitation, executing further
powers of attorney substantially in the form of Schedules 2 and 3)
that the Trustee reasonably requires to ensure its ability to
register Mortgage Transfers and the registration of the Power of
Attorney in each jurisdiction of Australia;
(e) (Upstamp): if the Seller makes any further advance or otherwise
provides further financial accommodation to a Borrower, ensure
that any further stamp duty which becomes payable on the relevant
Mortgage Documents as a result of such further advance or
provision of financial accommodation is duly paid promptly in
accordance with any applicable laws;
(f) (Make calculations): upon receipt of notice that a Borrower
desires to repay a Mortgage Loan in full, prepare and make
available documentation and make such calculations as are
necessary to enable the repayment of the Mortgage Loan and
discharge of the corresponding Mortgage and any Collateral
Securities (provided that the Servicer is not required to
discharge a Mortgage or Collateral Securities if they also secure
another Mortgage Loan or an Other Loan);
(g) (Perform obligations): duly and punctually perform each of its
material obligations under this Deed and under each of the
Mortgage Documents and the Transaction Documents to which it is a
party;
(h) (Perfection of Title Event): assist and co-operate with the
Trustee and the Manager in the Trustee obtaining legal title to
the Mortgage Loan Rights following a Perfection of Title Event;
(i) (Write-offs): where any material amount of a Mortgage Loan has
been written off as uncollectible in accordance with the Servicing
Guidelines and this Deed and GEMI or GEMICO, as the case may be,
has rejected a claim made by the
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Servicer under the applicable Mortgage Insurance Policy,
ensure that the documentation relevant to that Mortgage Loan is
examined to determine whether the representations and warranties
made pursuant to clause 13.1 in respect of that Mortgage Loan
were correct at the Cut-Off Date. After such examination, the
Servicer must notify the Trustee if the representations and
warranties made pursuant to clause 13.1 were incorrect when given
in respect of that Mortgage Loan as at the Cut-Off Date (and if
the Servicer and the Seller are the same person such notice will
be deemed to be a notice given by the Seller under clause 14.1,
and must comply with that clause) and if this is the case the
Seller must, if the determination made by the Servicer in this
paragraph is made after the expiry of the Prescribed Period, pay
damages to the Trustee in accordance with clause 14.9;
(j) (Fixed Rate Swaps): ensure that before the Servicer agrees with a
Borrower, or allows a Borrower to elect, to vary the rate of
interest payable under a Mortgage Loan to become a fixed rate for
a given period, the Trustee and the Manager have entered into (or
have confirmed that they will enter into) a Fixed Rate Swap for
that given period in accordance with section 16 of the Interest
Rate Swap Agreement. Upon the request of the Servicer, the
Manager must enter into and must direct the Trustee to enter into
(and upon such direction the Trustee must enter into) a Fixed Rate
Swap in accordance with section 16 of the Interest Rate Swap
Agreement. The maximum term of a Fixed Rate Swap entered into
pursuant to this clause must not exceed 10 years unless the Rating
Agencies confirm that entering into a Fixed Rate Swap for a longer
period will not result in a reduction, qualification or withdrawal
in the then current credit rating of any Security. The Servicer
is not in breach of this clause 16.6(j) if the Trustee and the
Manager fail to enter into a Fixed Rate Swap in accordance with a
request of the Servicer pursuant to this clause 16.6(j); and
(k) (Basis Cap): ensure that before the Servicer agrees with a
Borrower, or allows a Borrower to elect, to cap the variable rate
of interest payable under a Mortgage Loan for a given period, the
Trustee and the Manager have entered into (or have confirmed that
they will enter into ) an Interest Rate Basis Cap for that given
period in accordance with Part 5(18) of the Schedule to the
Interest Rate Swap Agreement. Upon the request of the Servicer,
the Manager must enter into and must direct the Trustee to enter
into (and upon such direction the Trustee must enter into) an
Interest Rate Basis Cap in accordance with such Part. The maximum
term of an Interest Rate Basis Cap entered into pursuant to this
clause must not exceed 10 years unless the Rating Agencies confirm
that entering into an Interest Rate Basis Cap for a longer period
will not result in a reduction, qualification or withdrawal in the
then current credit rating of any Security. The Servicer is not
in breach of this clause 16.6(k) if the Trustee and the Manager
fail to enter into an Interest Rate Basis Cap in accordance with a
request of the Servicer pursuant to this clause 16.6(k).
16.7 Interest Rates on Mortgage Loans
The Servicer must, as part of its function of servicing the Mortgage
Loans, set the interest rate charged and the monthly instalment to be
paid by the Borrower on each Mortgage Loan forming part of the Assets of
the Series Trust. The Servicer must ensure that the monthly instalment
to be paid in relation to each Mortgage Loan is equal to or greater than
the monthly interest payable on that Mortgage Loan (but without limiting
any right of the Borrower to pay less than the monthly instalment, or no
monthly instalment, where the amount outstanding under the Mortgage Loan
is less than the Scheduled Balance of the Mortgage Loan). For so long as
the Seller is the Servicer, such interest rate must be the interest rate
which the Seller charges on the same type of mortgage loan (having
regard, among other things, to the nature of the Mortgage Loan product
and the type of borrower) which is recorded on its Mortgage Loan System
but which has not been assigned to the Trustee, unless this Deed requires
the Servicer to charge a different interest rate in respect of that
Mortgage Loan.
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16.8 Release or Substitution of Security
(a) (Substitution and release): The Servicer may in relation to a
Mortgage Loan which is then an Asset of the Series Trust, release
or substitute any corresponding Mortgage or First Layer of
Collateral Security provided that this is in accordance with the
corresponding Mortgage Insurance Policy and the Servicing
Guidelines.
(b) (Indemnity): The Servicer indemnifies the Trustee (whether on its
own account or for the account of the Securityholders of the
Series Trust) against any costs (including legal costs charged at
the usual commercial rates of the relevant legal services
provider), damages or loss it suffers as a result of any release
or substitution of any Mortgage or First Layer of Collateral
Securities which then are Assets of the Series Trust not being in
accordance with clause 16.8(a). The amount of the costs, damages
and loss is to be determined by agreement between the Trustee and
the Servicer or, failing agreement, by the Servicer's external
auditors. The amount cannot exceed the principal amount
outstanding in respect of the Mortgage Loan (as recorded on the
Mortgage Loan System) and any accrued but unpaid interest and any
outstanding fees in respect of the Mortgage Loan (calculated at
the time of Agreement between the Trustee and the Servicer or by
the Servicer's external auditors, as the case may be).
16.9 Variation or Relaxation of Terms of Mortgage Loans
(a) (Variations): Subject to clauses 16.9(b) and 16.25, the Servicer
may vary, extend or relax the time to maturity, the terms of
repayment or any other term of a Mortgage Loan and its related
Mortgage and First Layer of Collateral Securities which are then
Assets of the Series Trust.
(b) (Limitations on variations): Except as contemplated by clause
16.14 or where a Mortgage Loan is regarded as having been repaid
in full as provided in clause 16.20(b), the Servicer must not
grant any extension of the time to maturity of a Mortgage Loan
which is then an Asset of the Series Trust beyond 30 years from
the Settlement Date for the Mortgage Loan or allow any reduced
monthly payment that would result in such an extension.
16.10 Release of Debt
Subject to clause 16.14, the Servicer may not voluntarily release a
Borrower from any amount owing in respect of a Mortgage Loan, related
Mortgage or First Layer of Collateral Security unless that amount has
been written off by the Servicer, or the Servicer has determined to
write-off such amount, in either case in accordance with the Servicing
Standards.
16.11 Waivers, Releases and Compromises
Subject to clauses 16.9 and 16.10, the Servicer may:
(a) (Waive breaches): waive any breach under, or compromise, compound
or settle any claim in respect of; or
(b) (Grant releases): release any party from an obligation or claim
under,
a Mortgage Loan which is then an Asset of the Series Trust or any related
Mortgage or First Layer of Collateral Securities.
16.12 Consent to subsequent Security Interests
The Servicer may consent to the creation or existence of any Security
Interest in relation to any Land the subject of a Mortgage which is then
an Asset of the Series Trust:
(a) (Third Parties): in favour of a party, other than the Trustee or
the Seller only
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if by way of a priority agreement or otherwise the Servicer
ensures that the relevant Mortgage will rank ahead in priority to
the third party's Security Interest on enforcement for an amount
not less than the principal amount (plus accrued but unpaid
interest) outstanding on the Mortgage Loan (as recorded on the
Mortgage Loan System) plus such extra amount (if any) as is
determined in accordance with the Servicing Guidelines;
(b) (Trustee or Seller): in favour of the Trustee or the Seller in
which case the Trustee and the Seller agree that the relevant
Mortgage will rank ahead in priority to the Trustee's Security
Interest or the Seller's Security Interest (as the case may be) on
enforcement for an amount equal to the principal amount (plus
accrued but unpaid interest) outstanding on the Mortgage Loan (as
recorded on the Mortgage Loan System) plus such extra amount (if
any) as is determined in accordance with the Servicing Guidelines.
This clause will continue to bind the Trustee following its
retirement or removal pursuant to clause 19 of the Master Trust
Deed.
16.13 Consent to Leases etc
The Servicer may, in accordance with the Servicing Guidelines, consent to
the creation of any leases, licences or restrictive covenants in respect
of Land subject to a Mortgage which is then an Asset of the Series Trust.
16.14 Relief under Binding Provision or on Order of Competent Authority
(a) (Grant releases etc.): The Servicer may:
(i) release a Mortgage or a First Layer of Collateral Security
which is then an Asset of the Series Trust;
(ii) reduce the amount outstanding under, or vary the terms
(including, without limitation, in relation to repayment)
of, any Mortgage Loan, related Mortgage or First Layer of
Collateral Security which is then an Asset of the Series
Trust; or
(iii) grant other relief to a Borrower or the provider of a First
Layer of Collateral Security which are then Assets of the
Trust,
when to do so is pursuant to a Binding Provision or an order,
decision, finding, judgment or determination of a Competent
Authority.
(b) (If order or determination results from failure of Servicer): If
it is determined that the order, decision, finding, judgment or
determination referred to in clause 16.14(a) was made by the
Competent Authority as a result of the Seller or the Servicer:
(i) breaching any Binding Provision, applicable regulation,
statute or official directive at the time the Mortgage, the
First Layer of Collateral Security or the Mortgage Loan was
granted or a Seller Advance was made in respect of such
Mortgage Loan (other than a Binding Provision, regulation,
statute or official directive which provides for relief on
equitable or like grounds when paragraph (ii) is also not
satisfied); or
(ii) not acting in accordance with the standards and practices
suitable for a prudent lender in the business of making
retail home loans,
then the Servicer must notify the Trustee of the making of such an
order, decision, finding, judgment or determination and the Seller
or the Servicer (as the case may be) must pay damages to the
Trustee by 10.00 am on the Distribution Date next occurring after
such notification is given by the Servicer. The amount of such
damages will be the amount agreed between the Trustee (acting on
expert advice taken pursuant to clause 16.6 of the Master Trust
Deed, if necessary) and the Seller or the Servicer, as the case
may be (or, failing agreement, by the Seller's or the Servicer's
external auditors) as being sufficient
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to compensate the Trustee for any losses suffered by the Series
Trust as a result of the release, reduction, variation or relief
(as the case may be). The amount cannot exceed the principal
amount outstanding in respect of the relevant Mortgage Loan (as
recorded on the Mortgage Loan System) and any accrued but unpaid
interest and any outstanding fees in respect of the Mortgage Loan
(calculated in both cases at the time of Agreement between the
Trustee and the Seller or the Servicer or by the Seller's or the
Servicer's external auditors, as the case may be).
16.15 Litigation
The Servicer may institute litigation in respect of the collection of any
amount owing under a Mortgage Loan which is then an Asset of the Series
Trust but is not required to do so or to continue any litigation if the
Servicer has reasonable grounds for believing, based on advice from its
legal advisers (either internal or external), that:
(a) (Mortgage Loan unenforceable): the Servicer is, or will be, unable
to enforce the provisions of the Mortgage Loan under which such
amount is owing; or
(b) (Proceedings uneconomical): the likely proceeds from such
litigation, in light of the expenses in relation to the
litigation, do not warrant such litigation.
16.16 Enforcement Action
(a) (Servicer may take enforcement action): Subject to clause
16.26(u), the Servicer may take such action to enforce a Mortgage
Loan and any related Mortgage or First Layer of Collateral
Securities which are then Assets of the Series Trust which it
determines should be taken.
(b) (Servicer must not take or fail to take action in certain
circumstances): The Servicer must not knowingly take any action,
or knowingly fail to take any action, if that action or failure to
take action will interfere with the enforcement by the Servicer or
Trustee of any Mortgage Loan Rights which are then Assets of the
Series Trust (unless such action or failure is in accordance with
the Servicing Standards).
16.17 Incurring Additional Expenses
The Servicer may incur any Expenses referred to in paragraph (a) of that
definition in connection with the management, maintenance or sale of any
property secured by a Mortgage or a First Layer of Collateral Security
which are then Assets of the Series Trust and the Trustee must reimburse
the Servicer for such Expenses, to the extent funds are available for
this purpose pursuant to clause 10.2(h), on each Distribution Date and,
if such Expenses are not reimbursed in full on any Distribution Date,
must reimburse the balance unpaid on each subsequent Distribution Date
from the funds available for this purpose pursuant to clause 10.2(h) on
that Distribution Date.
16.18 Mortgage Insurance and Insurance Policy Claims
The Servicer may, in accordance with the Servicing Standards, compromise,
compound or settle any claim in respect of any Mortgage Insurance Policy
or any Insurance Policy which is then an Asset of the Series Trust.
16.19 Insurance Policy Proceeds
(a) (Release of insurance proceeds): Proceeds received in respect of
an Insurance Policy in respect of Land which is then an Asset of
the Series Trust may be released, on the Trustee's behalf, if:
(i) such release of proceeds is conducted in accordance with
the Servicing Standards; and
(ii) the proceeds are paid on an invoice-by-invoice basis
directly to those
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who are carrying out work to rebuild, reinstate or repair
the property to which the proceeds relate.
(b) (Application of insurance proceeds): Any proceeds referred to in
clause 16.19(a) which are not released in accordance with that
clause must be applied in compliance with the Servicing Guidelines
to the account established in the Servicer's records for the
relevant Mortgage Loan up to the principal amount outstanding in
respect of that Mortgage Loan plus accrued but unpaid interest.
(c) (Servicing Transfer): If a Servicing Transfer occurs the Servicer
must immediately pay to the Trustee all proceeds previously
retained by it under paragraph (a) and not yet released under
paragraph (a).
16.20 Seller Advances
If the Seller makes a further advance to a Borrower and:
(a) (Separate account and trusts): the Seller opens a separate account
in its records in relation to the advance, the advance is
considered for the purposes of this Deed to be an Other Loan and
upon creation, the Trustee will automatically by virtue of this
Deed, and without the necessity for any further act or thing to be
done or brought into existence, hold the benefit of its right,
title and interest in such Other Loan for the Seller as trustee of
the CBA Trust and the Trustee will hold any Mortgage and any First
Layer of Collateral Securities in respect of such Other Loan in
accordance with clause 7.2 and any Second Layer of Collateral
Securities in respect of such Other Loan in accordance with clause
7.1;
(b) (Advance leads to Scheduled Balance being exceeded): the Seller
records the advance as a debit to the account in its records for
an existing Mortgage Loan which is then part of the Assets of the
Series Trust and the advance leads to the Scheduled Balance in
respect of that Mortgage Loan (prior to the approval of the
advance) being exceeded by more than one scheduled monthly
instalment, the Mortgage Loan is, for the purposes of this Deed
only, treated as having been repaid in full by the payment by the
Seller to the Trustee of the sum necessary to repay that Mortgage
Loan. Such payment from the Seller must equal the principal
balance plus accrued but unpaid interest and fees owing in respect
of the Mortgage Loan before the advance was made and must be paid
by the Seller to the Trustee and, following such payment,
allocated by the Trustee to the Collections Account of the Series
Trust; or
(c) (Advance does not lead to Scheduled Balance being exceeded): the
Seller records the advance as a debit to the account in its
records for an existing Mortgage Loan which is then part of the
Assets of the Series Trust and this does not lead to the Scheduled
Balance in respect of that Mortgage Loan being exceeded by more
than one scheduled monthly instalment, the advance is treated as
an advance made pursuant to the terms of the relevant Mortgage
Loan and the rights to repayment of such will be a Mortgage Loan
Right forming part of the Assets of the Series Trust.
16.21 Restrictions on Seller Advances
The Seller must not:
(a) make an advance pursuant to clause 16.20(b) in relation to a
Mortgage Loan which the Servicer has determined, in accordance
with the Servicing Standards, is a non-performing loan; or
(b) make an advance pursuant to clause 16.20(c) if the then aggregate
of:
(i) (Seller Advances): all Seller Advances not repaid by the
relevant Borrower (calculated on the basis that, for this
purpose only, any payments on account of principal in
respect of a Mortgage Loan first
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reduce the amount of the Seller Advances made in relation
to that Mortgage Loan) in relation to Mortgage Loans then
part of the Assets of the Series Trust; and
(ii) (Standby Redraw Facility Principal): the then Standby
Redraw Facility Principal,
exceed, or will as a result of the advance exceed, the then
Standby Redraw Facility Limit.
If the Seller makes an advance to a Borrower in breach of this clause,
then:
(c) that advance will, for all purposes, be treated as a Seller
Advance (and as if properly made in accordance with clause
16.20(c)); and
(d) the Seller indemnifies the Trustee (whether on its own account or
for the account of the Securityholders of the Series Trust)
against any costs, damages or loss it suffers as a result of such
a breach (except to the extent to which such costs, damages or
loss is recoverable by the Trustee pursuant to a Mortgage
Insurance Policy).
16.22 Servicer's Actions Binding on Trustee
Without limiting in any way the Servicer's liability to the Trustee for
breaching the provisions of this Deed, any act by the Servicer in
servicing Mortgage Loan Rights which are Assets of the Series Trust is
binding on the Trustee whether or not such act or omission is in
compliance with this clause 16.
16.23 Servicer to Pay its Own Expenses
Subject to clause 16.17, the Servicer must pay from the amount received
under clause 19.3 all expenses incurred by it in connection with
servicing the Mortgage Loans, including expenses related to the
collection of the Mortgage Loans, the fees and disbursements of
independent accountants and all other fees and expenses which are not
expressly stated in this Deed or the Master Trust Deed to be payable by
the Trustee. The Servicer must, at least 5 Business Days before each
Distribution Date, forward to the Manager a list of expenses for the
Collection Period just ended for which it is seeking reimbursement
pursuant to this clause.
16.24 Servicer to transmit information to Manager
The Servicer must prepare and transmit to the Manager on or before the
day which is 2 Business Days before each Distribution Date the
information necessary to enable the Manager to prepare the Quarterly
Certificate and the Pool Performance Data in respect of the Collection
Period just ended. The Servicer will not be in breach of this clause
16.24 if it fails to provide the Pool Performance Data to the Manager
provided that it has used reasonable endeavours to produce the Pool
Performance Data for that Collection Period but has been unable to do so
with sufficient accuracy (as determined by the Servicer and taking into
account the likely distribution of the Pool Performance Data and uses to
be made of the Pool Performance Data).
16.25 Proposed amendments to Servicing Guidelines
The Servicer must deliver copies of all proposed material amendments to
the Servicing Guidelines which relate to the Servicer's servicing
functions in respect of the Mortgage Loan Rights then comprising Assets
of the Series Trust to each Support Facility Provider where the consent
of such Support Facility Provider to such material amendment is required
under the terms of the corresponding Support Facility. The adoption of
those amendments by the Servicer takes effect upon the consent of the
Support Facility Provider to the proposed amendment (or, where provided
under the Support Facility, upon the date that the Support Facility
Provider is deemed to have consented to the proposed amendment). The
Servicer must deliver a copy of any proposed material amendment to the
Servicing Guidelines to the Trustee, the Manager and the Rating Agencies.
The Servicer
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must not amend the Servicing Guidelines unless each Rating Agency has
either:
(a) (Confirmed No Downgrade): confirmed (either orally or in writing)
that the proposed amendment will not result in a reduction,
qualification or withdrawal of its then current rating of the
Securities; or
(b) (10 Business days after delivery): not notified the Seller of its
intention not to reaffirm the then current rating of a Security,
within 10 Business Days after the delivery to it of the proposed
amendments.
16.26 Further Servicer Undertakings
The Servicer further undertakes for the benefit of the Trustee, the
Manager, the Security holders and the Residual Unitholder that it will:
(a) (Audited accounts): give the Trustee the audited Accounts of the
Servicer for each financial year of the Servicer within 120 days
of the end of that year;
(b) (Keep proper books): keep proper and adequate books of account
(which may be kept electronically) for the Mortgage Loan Rights of
the Series Trust;
(c) (Information): subject to the provisions of the Privacy Act and
the Servicer's duty of confidentiality to its clients under
general law or otherwise, promptly make available to the Manager,
the Auditor and the Trustee any books, reports or other oral or
written information and supporting evidence of which the Servicer
is aware that they reasonably request with respect to the Series
Trust or the Assets of the Series Trust from time to time or with
respect to all matters in the possession of the Servicer in
respect of the activities of the Servicer to which this Deed
relates;
(d) (Notify material misrepresentations): notify the Manager and the
Trustee promptly if it becomes actually aware that any material
representation or warranty made or taken to be made by or on
behalf of the Seller or the Servicer in connection with a
Transaction Document in relation to the Series Trust is found to
be incorrect when made or taken to be made;
(e) (Certificate): within 5 Business Days of a request from the
Manager or the Trustee, provide the Manager or the Trustee (as the
case may be) with a certificate from the Servicer signed by 2
Authorised Officers of the Servicer on its behalf which states
whether to the best of the Servicer's knowledge and belief a
Servicer Default or a Perfection of Title Event has occurred (a
request under this clause will be made by the Trustee only once in
each 6 calendar month period, unless the Trustee when making the
request sets out reasonable grounds for believing that a Servicer
Default or a Perfection of Title Event is subsisting);
(f) (Notify Servicer Default or Perfection of Title Event): notify the
Trustee promptly after the Servicer becomes actually aware of any
Servicer Default or the occurrence of any Perfection of Title
Event and at the same time or as soon as possible thereafter
provide full details thereof;
(g) (Comply with laws): comply with the requirements of any relevant
laws in carrying out its obligations under the Transaction
Documents for the Series Trust including the Consumer Credit Code;
(h) (Authorisations): obtain and maintain all authorisations, filings
and registrations necessary to properly service the Mortgage
Loans;
(i) (Not merge without assumption): not merge or consolidate into
another entity, unless the surviving entity assumes the rights and
obligations of the Seller and the Servicer under the Transaction
Documents for the Series Trust and the Rating Agencies are
notified;
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(j) (Not enter into liquidation etc.): subject to the provisions of
the Banking Act 1959 (Commonwealth), not present any application
or pass any resolution for the liquidation of the Servicer, or,
subject to clause 16.26(i), enter into any scheme of arrangement,
merger or consolidation with any other person or enter into any
other scheme under which the Servicer ceases to exist, the assets
or liabilities of the Servicer are vested in or assumed by any
other person or either of those events occur;
(k) (Pay Tax): duly and punctually file all returns in respect of Tax
which are required to be filed and pay, or procure payment when
due, all Taxes and other outgoings payable by it as and when the
same respectively become due and payable other than outgoings
which are being contested in good faith and promptly pay or cause
to be paid those contested outgoings after the final determination
or settlement of such contest;
(l) (Not set-off): not, without the prior consent of the Trustee,
apply, transfer or set off the whole or any part of any amount
payable or owed to the Servicer or to which the Servicer is
entitled under this Deed or any other Transaction Document for the
Series Trust towards satisfaction of any obligation which is owed
by the Servicer to the Trustee or the Manager under this Deed or
any other Transaction Document for the Series Trust, other than as
contemplated under this Deed or any other Transaction Document for
the Series Trust;
(m) (Not claim Assets of Series Trust): other than as a Secured
Creditor, not claim any Security Interest, lien or other
possessory right in any of the Assets of the Series Trust;
(n) (Notify claims): following receipt of actual notice of a claim by
a third party with respect to a challenge to the sale and/or
assignment to the Trustee of any Mortgage Loan Rights forming part
of the Assets of the Series Trust, promptly give notice in writing
of such action or claim to the Trustee and the Manager;
(o) (Not Encumber Mortgage Loan Rights): not transfer, assign,
exchange or otherwise grant a Security Interest over the whole or
any part of its right, title and interest in and to any Mortgage
Loan Rights forming part of the Assets of the Series Trust;
(p) (Give accurate information to Rating Agencies): use reasonable
efforts to cause all information provided by it to any Rating
Agency in relation to the Series Trust to be complete and accurate
in all material respects;
(q) (Follow directions of Trustee after Perfection of Title Event):
upon being directed to do so by the Trustee following the
occurrence of a Perfection of Title Event, promptly take all
action required or permitted by law to assist the Trustee and the
Manager to perfect the Trustee's legal title to the Mortgage Loan
Rights forming part of the Assets of the Series Trust in
accordance with the requirements of this Deed;
(r) (Comply with other undertakings): comply with all other
undertakings given by the Servicer in this Deed or the other
Transaction Document relating to the Series Trust;
(s) (Direct receipts): subject to clause 22, take all steps to ensure
that:
(i) while the Collections Account is maintained with the
Servicer, the amounts referred to in clause 22.5 are paid
into the Collections Account in accordance with that
clause; or
(ii) if the Servicer is not an Eligible Depository, all payments
received during the corresponding Collection Period under
or in respect of the Mortgage Loans (other than insurance
premiums and related charges) are deposited into the
Collections Account no later than 5 Business Days following
receipt;
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(t) (Collect all moneys due): make reasonable efforts to collect all
moneys due under the terms and provisions of the Mortgage Loan
Rights of the Series Trust and, to the extent such efforts will be
consistent with this Deed, follow such normal collection
procedures as it deems necessary and advisable;
(u) (Enforcement of Mortgage Loans): if a Material Default has
occurred and is continuing with respect to a Mortgage Loan Right
forming part of the Assets of the Series Trust, take such action
on such basis as the Trustee and the Servicer may agree (in
accordance and in conjunction with the Servicer's normal
enforcement procedures) to enforce such Mortgage Loan Rights (but
only to the extent that the Servicer determines that enforcement
proceedings should be taken) so as to maximise the return to the
Securityholders, taking into account, inter alia, the timing of
any enforcement proceedings and any relevant terms of any Support
Facility provided that the Servicer will not be required to
institute litigation with respect to collection of any payment if
there are reasonable grounds for believing the provisions of those
Mortgage Loan Rights under which such payment is required are
unenforceable or the payment is uncollectible; and
(v) (Maintain title): take such steps as are necessary to maintain the
Trustee's title to the Mortgage Loan Rights of the Series Trust.
16.27 Servicer holding Assets of the Series Trust
The obligation of the Servicer set out in clauses 22.4 and 22.5 in
relation to the payment of amounts into the Collections Account is the
full extent of the Servicer's obligation in respect of such moneys and
the Servicer has no obligation or liability whatsoever to account to the
Trustee for any interest, income or other benefit derived in connection
with any payments received by it under or in respect of the Mortgage
Loans.
16.28 Servicer's Power to Delegate
The Servicer, for the purposes of carrying out and performing its duties
and obligations in relation to the Series Trust, may:
(a) (Appoint attorneys): by power of attorney appoint any person to be
attorney or agent of the Servicer for those purposes and with
those powers, authorities and discretions (not exceeding those
vested in the Servicer) as the Servicer thinks fit including,
without limitation, a power to sub-delegate and a power to
authorise the issue in the name of the Servicer of documents
bearing facsimile signatures of the Servicer or of the attorney or
agent either with or without proper manuscript signatures of its
officers on them; and
(b) (Appoint agents): appoint by writing any person to be agent of the
Servicer as the Servicer thinks necessary or proper and with those
powers, authorities and discretions (not exceeding those vested in
the Servicer) as the Servicer thinks fit,
provided that, in each such case, except as provided in any Transaction
Documents, the Servicer must not delegate to such third parties a
material part of its powers, duties and obligations as Servicer in
relation to Mortgage Loans forming part of the Assets of the Series
Trust.
16.29 Servicer May Replace or Suspend Attorneys
The Servicer may replace or suspend any attorney, agent or sub-agent
appointed under clause 16.28 for any cause or reason as the Servicer may
in its sole discretion think sufficient with or without assigning any
cause or reason.
16.30 Servicer Remains Liable
The Servicer at all times remains liable for:
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(a) (Acts, omissions): the acts or omissions of any person appointed
under clause 16.28, insofar as the acts or omissions constitute a
breach by the Servicer of its obligations under this Deed; and
(b) (Payment): the payment of fees to any person appointed under
clause 16.28.
17. SERVICER'S RESPONSIBILITIES AND INDEMNITIES
17.1 Not Liable Where Action Unlawful
The Servicer will not incur any liability to any person in respect of any
failure to act where such act will be hindered, prevented or forbidden by
any present or future law.
17.2 Limitation on Servicer's Responsibility
The Servicer will not be responsible to any person for any loss, damage,
claim or demand incurred as a result of:
(a) (Trustee Default): a Trustee Default (except where the Trustee is
the Servicer);
(b) (Failure to check): the failure by the Servicer to check any
document, certificate, schedule, form, list or other document
prepared or delivered to the Servicer by the Trustee or any agent
or consultant of the Trustee and reasonably believed by the
Servicer to be genuine; or
(c) (Trustee's direction): any action taken by the Servicer in
accordance with any written direction or instruction from the
Trustee or any Authorised Officer of the Trustee,
except to the extent to which such loss, damage, claim or demand is
caused by any fraud, negligence or wilful default by the Servicer.
17.3 Servicer's Liability
(a) (Liability): The Servicer shall not be liable for any loss
incurred by any Securityholder, any Creditor of the Series Trust
or any other person except, subject to clauses 17.3(b), (c), (d)
and (e), to the extent that such loss may be caused by a breach by
the Servicer of any term of this Deed, any fraud, negligence or
wilful default by the Servicer or any breach or default by any
person appointed by the Servicer to perform its obligations under
this Deed.
(b) (Damages for direct loss): The Servicer shall not be liable for
any damages in respect of any breach by the Servicer of any term
of this Deed, any fraud, negligence or wilful default by the
Servicer or any breach or default by any person appointed by the
Servicer to perform its obligations under this Deed except and to
the extent that the Trustee on account of the Securityholders has
suffered direct loss as a result of such breach or default. The
maximum amount which the Servicer will be liable to pay in respect
of such a breach or default is the amount outstanding at the time
of payment under the Mortgage Loan in respect of which such
default or breach occurred after taking into account any payment
received by the Trustee or the Trustee is entitled to receive or
claim under the Mortgage Insurance Policy relating to that
Mortgage Loan.
(c) (No consequential loss): The Servicer's liability under this
clause 17.3 with respect to a Mortgage Loan will not include any
damages in respect of consequential loss. This liability
represents the sole damages recoverable against the Servicer in
such circumstances.
(d) (Notice): The Trustee may only claim damages from the Servicer
pursuant to this clause 17.3 by written notice setting out the
grounds for claiming that a breach or default referred to in
paragraph (b) has occurred together with details of the
calculation of the loss referred to in paragraph (b).
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(e) (Payment): If a breach or default referred to in paragraph (b) has
occurred, the Servicer must pay any damages due to the Trustee
under this clause 17.3 within 7 Business Days of receipt by it of
the written notice referred to in paragraph (d), such written
notice to represent prima facie evidence of the amount of such
damages.
18. SERVICER DEFAULT AND RETIREMENT OF SERVICER
18.1 Servicer Default
A Servicer Default occurs if:
(a) (Failure to remit Collections): the Servicer fails to remit any
Collections or any other amounts received in respect of the
Mortgage Loan Rights then forming part of the Assets of the Series
Trust to the Trustee within the time periods specified in this
Deed and such failure is not remedied within 5 Business Days (or
such longer period as the Trustee may agree to) of notice of such
failure being given to the Servicer by the Manager or the Trustee;
(b) (Failure to prepare information for Manager): the Servicer fails
to prepare and transmit to the Manager the information necessary
to enable the Manager to prepare the Quarterly Certificates by the
date set out in this Deed and such failure is not remedied within
20 Business Days (or such longer period as the Trustee may agree
to) of notice being given to the Servicer by the Manager or the
Trustee and has or will have an Adverse Effect as reasonably
determined by the Trustee;
(c) (Breach of representation or warranty): any representation,
warranty or certification made by the Servicer (in its capacity as
Servicer) in a Transaction Document to which it is expressed to be
a party or in any certificate delivered by the Servicer (in its
capacity as Servicer) pursuant to such a Transaction Document
proves to have been incorrect when made in a manner which as
reasonably determined by the Trustee has or will have an Adverse
Effect and the Servicer does not remedy the same to the Trustee's
reasonable satisfaction within 60 Business Days after receipt by
the Servicer of notice in writing from the Trustee requiring it to
do so;
(d) (Insolvency Event): an Insolvency Event occurs in relation to the
Servicer;
(e) (Servicer is custodian): while the Servicer is also the Seller and
is acting as custodian of the Mortgage Documents pursuant to
clause 25, it fails to deliver all the Mortgage Documents in
accordance with clause 25 to the Trustee following the occurrence
of a Document Transfer Event and does not deliver to the Trustee
the outstanding Mortgage Documents within 20 Business Days of
receipt of a notice from the Trustee specifying the Mortgage
Documents that remain outstanding;
(f) (Fails to maintain Threshold Rate): the Servicer fails to comply
with clause 12.2, and such failure is not remedied within 20
Business Days of its occurrence; or
(g) (Breach of other obligations): the Servicer has breached its
obligations (other than those referred to in clauses 18.1(a), (b),
(c), (e) and (f)) as Servicer under a Transaction Document to
which it is expressed to be a party and such breach has or will
have an Adverse Effect as reasonably determined by the Trustee
and:
(i) that breach is not satisfactorily remedied so that it no
longer has or will have, having regard to all relevant
circumstances, such an Adverse Effect within 20 Business
Days after receipt by the Servicer of a notice in writing
(which must specify the reasons why the giver of the notice
believes that an Adverse Effect has occurred or will occur)
from the Manager or Trustee requiring it to do so; and
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(ii) the Servicer has not paid compensation to the Trustee for
its loss from such breach in an amount satisfactory to the
Trustee (acting reasonably).
18.2 Retirement of Servicer
The Servicer may retire from its obligations and duties assumed by it
pursuant to this Deed by 3 months' notice in writing to the Trustee and
the Manager (or such lesser time as the Servicer and the Trustee agree).
18.3 Notice to Securityholders
The Servicer will, within 2 Business Days after the Servicer becomes
aware of any Servicer Default, give notice of such Servicer Default to
the Trustee, the Manager, the Class A-1 Note Trustee and the Rating
Agencies, whereupon the Manager will give notice or cause such notice to
be given of such Servicer Default to the Securityholders. Upon any
retirement, termination or appointment of a Substitute Servicer pursuant
to this clause 18, the Trustee will give or cause to be given prompt
notice of that retirement, termination or appointment to the Manager, the
Class A-1 Note Trustee, the Securityholders and the Rating Agencies.
18.4 Removal of Servicer
If the Trustee has determined that:
(a) (Unlawful): the performance by the Servicer of its duties under
this Deed is no longer permissible under any applicable law and
the Trustee is satisfied that there is no reasonable action which
the Servicer could take to make the performance of its duties
under this Deed permissible under that applicable law; or
(b) (Servicer Default): a Servicer Default has occurred and is
continuing,
the Trustee must by written notice to the Servicer, immediately terminate
the rights and obligations of the Servicer and appoint another Bank or
appropriately qualified organisation to act in its place.
18.5 Retirement of Servicer
Upon its retirement, the Servicer may, subject to any approval required
by law, appoint in writing any other corporation approved by the Trustee
(acting reasonably) as Servicer in its place. If the Servicer does not
propose a replacement by the date which is 1 month prior to the date of
its proposed retirement, the Trustee is entitled to appoint a new
Servicer as of the date of the proposed retirement.
18.6 When appointment of Substitute Servicer effective
The purported appointment of a Substitute Servicer has no effect until:
(a) (Substitute Servicer executes deed of accession): the Substitute
Servicer executes a deed under which it covenants to act as
Servicer in accordance with this Deed and all other Transaction
Documents relating to the Series Trust to which the Servicer is a
party; and
(b) (Rating Agency confirmation): each Rating Agency confirms in
writing that the appointment of the proposed Substitute Servicer
will not cause a reduction, qualification or withdrawal of any
current credit rating assigned by it to the Securities.
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18.7 Trustee to Act as Servicer
Until the appointment of the Substitute Servicer is complete, the Trustee
must act as Servicer. The Trustee is entitled to receive the fee payable
in accordance with clause 19.3 for the period during which the Trustee so
acts.
18.8 Trustee May Give Discharges
The Trustee may settle with the Servicer the amount of any sums payable
by the Servicer to the Trustee or by the Trustee to the Servicer and may
give to or accept from the Servicer a discharge in respect of those sums
which will be conclusive and binding as between the Trustee and the
Servicer, as between the Servicer and the Residual Unitholder and as
between the Servicer and the Securityholders.
18.9 Servicer May Accept Payment
The Servicer may accept a payment or benefit, in connection with its
retirement or removal, from the Substitute Servicer. The Servicer is
also entitled to receive payments or benefits which have accrued to the
Servicer under this Deed prior to the date of the Servicer's retirement
or removal from office.
18.10 Servicer and Manager to Provide Full Co-operation
The Servicer and the Manager agree to provide their full co-operation in
the event of a Servicing Transfer. The Servicer and the Manager must
(subject to the Privacy Act and the Servicer's duty of confidentiality to
its customers under general law or otherwise) provide the Substitute
Servicer with copies of all paper and electronic files, information and
other materials as the Trustee or the Substitute Servicer may reasonably
request within 90 days of the removal or retirement of the Servicer in
accordance with this clause 18.
18.11 Indemnity
The Servicer indemnifies the Trustee in respect of all costs, damages,
losses and expenses incurred by the Trustee as a result of any Servicer
Default (including, without limitation, legal costs charged at the usual
commercial rates of the relevant legal services provider and the costs of
any Servicing Transfer) but excluding any costs, damages, losses and
expenses which the Servicer is not liable or responsible for in
accordance with clause 17.
18.12 No Liability for Servicer Default
Neither the Trustee nor the Manager or their respective delegates (as the
case may be) is liable for any Servicer Default except to the extent that
the Servicer Default is caused by the Trustee's or the Manager's or their
respective delegate's (as the case may be) fraud, negligence or wilful
default.
19. REMUNERATION OF MANAGER, TRUSTEE, SERVICER AND SECURITY TRUSTEE
19.1 Manager's Fee
Pursuant to clause 18.1 of the Master Trust Deed, the Manager is
entitled to receive in respect of each Accrual Period on the following
Distribution Date in accordance with the terms of this Deed the fee
agreed by the Trustee and the Manager prior to the date of this Deed or
as may otherwise be agreed by the Manager and the Trustee provided that
each Rating Agency will be given 3 Business Days' prior notice by the
Manager of any variation of the Manager's Fee and the Manager's Fee will
not be varied if such variation would result in a reduction,
qualification or withdrawal in any then current credit rating by a Rating
Agency of any Security.
19.2 Trustee's Fee
Pursuant to clause 18.2 of the Master Trust Deed, the Trustee is
entitled to receive in respect of each Accrual Period on the following
Distribution Date in accordance with the terms of this Deed the fee
agreed by the Trustee and the Seller prior to the date of this Deed or as
may otherwise be agreed by the Manager and the Trustee, provided that
each
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Rating Agency will be given 3 Business Days' prior notice by the Manager
of any variation of the Trustee's Fee and the Trustee's Fee will not be
varied if such variation would result in a reduction, qualification or
withdrawal of any then current credit rating of any Security.
19.3 Servicer's Fee
The Servicer will be entitled to receive in respect of each Accrual
Period on the following Distribution Date in accordance with the terms of
this Deed the fee agreed by the Trustee and the Servicer prior to the
date of this Deed or as may otherwise be agreed by the Trustee, the
Manager and the Servicer provided that each Rating Agency will be given 3
Business Days' prior notice by the Manager of any variation of the
Servicer's Fee and the Servicer's Fee will not be varied if such
variation would result in a reduction, qualification or withdrawal of any
then current credit rating of any Security.
19.4 Security Trustee's Fees and Expenses
The Trustee will:
(a) (Pay a fee): pay to the Security Trustee the fee agreed by the
Trustee, the Manager and the Security Trustee from time to time
provided that each Rating Agency will be given 3 Business Days'
prior notice by the Manager of any variation of the Security
Trustee's Fee and the Security Trustee's Fee will not be varied if
such variation would result in a reduction, qualification or
withdrawal of any then current credit rating of any Security; and
(b) (Reimburse): reimburse the Security Trustee its costs and expenses
incurred in performing its duties under the Security Trust Deed
calculated in accordance with the Security Trust Deed.
The fees, costs and expenses referred to in paragraphs (a) and (b) of
this clause will be paid or reimbursed, as the case may be, in accordance
with this Deed on the Distribution Date following the Accrual Period to
which such fees, costs and expenses were earned or incurred, as the case
may be.
19.5 Goods and Services Tax
Notwithstanding any other provision of this Deed or the Master Trust
Deed, if a GST is introduced or becomes effective and any of the Trustee,
the Manager, the Servicer or the Seller becomes liable to remit to a
Governmental Agency an amount of GST in connection with its supplies in
connection with the Series Trust under any Transaction Document, that GST
must be borne by the Trustee, the Manager, the Servicer or the Seller, as
the case may be, on its own account and neither the Trustee, the Manager,
the Servicer nor the Seller is entitled to any reimbursement of that GST
from the Assets of the Series Trust and the definition of "Taxes" in
clause 1.1 of the Master Trust Deed shall not include any such GST where
that definition applies in relation to the Series Trust. Nothing in the
clause prevents an adjustment, in accordance with this Deed, of the fees
payable to the Trustee, the Manager, the Servicer or the Seller as a
result of a GST Tax Change (as defined in clause 19.6).
19.6 Adjustments to fees
(a) (GST Tax Change): For the purposes of this clause, "GST Tax
Change" means:
(i) the commencement of;
(ii) the imposition or abolition of; or
(iii) an increase or decrease in the rate of,
a GST.
(b) (Effect of GST Tax Change): In ascertaining the effect of a GST
Tax Change on the Trustee, any associated abolition, reduction or
other change in Taxes
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reducing, directly or indirectly, the costs (including general
overhead costs) of the Trustee will be taken into account.
(c) (Adjustments): Following any GST Tax Change, the fees payable to
the Trustee under this clause 19 will, subject to clause 19.6(o),
be adjusted according to the procedure in this clause 19.6 so
that, from the commencement date or dates of the GST Tax Change,
the Trustee is not economically disadvantaged in relation to the
supplies provided by it under this Deed by the effect of the GST
Tax Change.
(d) (Notice): At any time within 12 months after a GST Tax Change has
come into effect, the Trustee may, by written notice to the
Manager, require the commencement of negotiations by the Manager
and the Trustee in accordance with the succeeding provisions of
this clause 19.6.
(e) (Time Bar): If the Trustee does not issue a notice under clause
19.6(d) within 12 months after a GST Tax Change has come into
effect, then the Trustee will be taken to have unconditionally and
irrevocably waived its rights under clause 19.6(c) in relation to
that GST Tax Change, and no adjustment will be made.
(f) (Negotiations): Within 28 days after receipt of a notice under
clause 19.6(d), the Manager and the Trustee will confer at least
once to negotiate in good faith with a view to agreeing on any
adjustments to the fees payable to the Trustee under this clause
19 which will satisfy the Trustee's rights under clause 19.6(d).
(g) (Manager and Trustee to give effect to outcome of negotiations):
Subject to clause 19.6(o), if the negotiations result in the
parties agreeing on any adjustments to the fees payable to the
Trustee under this clause 19, the Trustee and the Manager will,
as soon as possible, do all things necessary to give effect to the
agreement reached, including adjusting any payments of such fees
which have previously been made under this Deed after the
commencement date or dates of the relevant GST Tax Change.
(h) (Negotiations Unsuccessful): If, within 28 days after the first
conference under clause 19.6(f), the Manager and the Trustee are
unable to agree fully, the Trustee or the Manager may, by written
notice to the other, require any matter relating to the Trustee's
rights under clause 19.6(c) to be referred to expert
determination.
(i) (Appointment of Expert): The Trustee and the Manager may appoint
any independent consultant who is experienced in indirect taxation
to be the expert. If, within 28 days after receipt of a notice
under clause 19.6(h), the Trustee and the Manager are unable to
agree on an expert, then the Trustee or the Manager may request
the president for the time being of the Institute of Chartered
Accountants to appoint the expert.
(j) (Expert Determination): The expert will decide on adjustments
which will satisfy the Trustee's rights under clause 19.6(c).
The expert will act as an expert and not as an arbitrator and his
or her decision will, in the absence of fraud or bias but
notwithstanding error, be final and binding on the Trustee and the
Manager.
(k) (Procedure): The Trustee and the Manager may agree on any
procedure for the expert determination, including the adoption in
whole or part of any expert determination rules published by a
dispute resolution agency, professional body, law firm or any
other person. If the Trustee and the Manager cannot agree, the
expert will determine the procedure to be followed in the expert
determination. However, unless the Trustee and the Manager
otherwise agree:
(i) the expert may inform himself or herself in any way he or
she sees fit, including by engaging other consultants,
without being bound by
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rules of evidence;
(ii) each of the Trustee and the Manager will have the right to
present its case and to answer the case against it; and
(iii) the expert will give reasons for his or her decision.
(l) (Costs of Expert): The Trustee and the Manager will pay the costs
of the expert in equal shares.
(m) (Scott v Avery clause): The Trustee will not be entitled to
commence any action or proceeding relating to any GST Tax Change
until the procedures outlined in this clause relating to that GST
Tax Change have been completed.
(n) (Continue to Perform): Notwithstanding that the procedures
outlined in this clause are operating, the parties will continue
to perform their obligations under this Deed.
(o) (Rating Agencies Consent): Any adjustment to fees pursuant to this
clause 19.6 will be subject to confirmation in writing from the
Rating Agencies that the adjustment will not result in a
reduction, qualification or withdrawal of the credit ratings then
assigned by them to the Securities.
(p) (Management and Servicing Fees): Subject to clause 19.6(o), the
Manager and the Servicer may from time to time agree to adjust the
Servicing Fee and the Management Fee. Any adjustment to the
Servicing Fee or the Management Fee pursuant to this clause
19.6(p) will be effective following notice in writing of the same
by the Manager to the Trustee.
20. MANAGER DEFAULT
The occurrence of any of the following events constitutes a Manager
Default for the purposes of clause 20.1(b) of the Master Trust Deed:
(a) (Manager does not instruct): the Manager does not instruct the
Trustee to pay the required amounts to the Securityholders of the
Series Trust within the time periods specified in this Deed and
such failure is not remedied within 10 Business Days (or such
longer period as the Trustee may agree) of notice of such failure
being delivered to the Manager by the Trustee;
(b) (Manager does not prepare Quarterly Certificates): the Manager
does not prepare and transmit to the Trustee the Quarterly
Certificates or any other reports required to be prepared by the
Manager and such failure is not remedied within 10 Business Days
(or such longer period as the Trustee may agree) of notice being
delivered to the Manager by the Trustee. Such a failure by the
Manager does not constitute a Manager Default if it is as a result
of a Servicer Default pursuant to clause 18.1(b) provided that,
if the Servicer subsequently provides the information to the
Manager, the Manager prepares and submits to the Trustee the
outstanding Quarterly Certificates or other reports within 10
Business Days (or such longer period as the Trustee may agree to)
of receipt of the required information from the Servicer;
(c) (Breach of a Representation or Warranty): any representation,
warranty, certification or statement made by the Manager (in its
capacity as Manager) in a Transaction Document to which it is
expressed to be a party, or in any document provided by it under
or in connection with a Transaction Document, proves to have been
incorrect when made, or is incorrect when repeated, in a manner
which as reasonably determined by the Trustee has an Adverse
Effect and the Manager does not remedy the same to the Trustee's
reasonable satisfaction within 60 Business Days after receipt by
the Manager of notice in writing from the Trustee requiring it to
do so; or
(d) (Breach of other obligations): the Manager has breached its other
obligations as Manager under a Transaction Document to which it is
expressed to be a party
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or any other deed, agreement or arrangement entered into by the
Manager in relation to the Series Trust or the Securities, (other
than an obligation which depends upon information provided by, or
action taken by, the Servicer and the Manager has not received the
information, or the action has not been taken, which is necessary
for the Manager to perform the obligation) and such breach has had
or, if continued, will have an Adverse Effect as reasonably
determined by the Trustee, and either such breach is not remedied
so that it no longer has or will have such an Adverse Effect
within 20 Business Days of notice thereof delivered to the Manager
by the Trustee or the Manager has not within 20 Business Days of
receipt of such notice paid compensation to the Trustee for its
loss from such breach in an amount satisfactory to the Trustee
(acting reasonably). The Trustee must, in such notice, specify the
reasons why it believes an Adverse Effect has occurred, or will
occur, as the case may be.
21. REPRESENTATIONS AND WARRANTIES
21.1 General Representations and Warranties by the Seller and the Servicer
The Seller and the Servicer each represents and warrants in respect of
itself to the Trustee that:
(a) (Due incorporation): it has been duly incorporated as a company
limited by shares in accordance with the laws of its place of
incorporation and is validly existing under those respective laws
and has power and authority to carry on its business as it is now
being conducted;
(b) (Power to enter and observe this Deed): it has full power to enter
into and perform its obligations under this Deed and the other
Transaction Documents to which it is a party;
(c) (Separate Authority): it has in full force and effect the
authorisations necessary to authorise its execution, delivery and
performance of this Deed and the other Transaction Documents to
which it is a party;
(d) (Authorisations): it has in full force and effect all
authorisations from Governmental Agencies that are required for
the execution, delivery and performance by the Seller of this Deed
and the Transaction Documents to which it is a party as at the
date of this Deed and has filed all necessary returns with the
Australian Securities and Investments Commission;
(e) (Obligations enforceable): its obligations under this Deed are
legal, valid, binding and enforceable against it in accordance
with their terms subject to stamping and any necessary
registration, except as such enforceability may be limited by any
applicable bankruptcy, insolvency, reorganisation, moratorium or
trust law or general principles of equity or other similar laws
affecting creditors' rights generally;
(f) (This Deed does not contravene constituent documents): this Deed
does not contravene its constituent documents or any law,
regulation or official directive or any of its obligations or
undertakings by which it or any of its assets are bound or cause a
limitation on its powers or the powers of its directors to be
exceeded;
(g) (No Servicer Default): (represented and warranted by the Servicer
only) no Servicer Default continues unremedied that has not been
notified to the Trustee;
(h) (Servicing Guidelines): (represented and warranted by the Servicer
only) the Servicing Guidelines are in existence as at the date of
this Deed;
(i) (No material default): to the best of its knowledge, it is not in
default of the material requirements of any relevant laws which
would materially adversely affect its ability to carry out its
obligations under this Deed;
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(j) (No immunity from process): it has no immunity from the
jurisdiction of a court or from legal process (whether through
service of notice, attachment prior to judgment, attachment in aid
of execution, execution or otherwise);
(k) (Not Trustee): it does not enter into this Deed in the capacity of
a trustee of any trust or settlement;
(l) (No material adverse effect): it is not actually aware of any
facts which would have a material adverse effect on its ability to
perform its obligations under this Deed;
(m) (No related party transaction): no person has contravened or will
contravene section 243H or section 243ZE of the Corporations Law
by entering into or participating in the Transaction Documents or
any transaction contemplated by the Transaction Documents;
(n) (No Insolvency Event): no Insolvency Event has occurred and is
subsisting in respect of it; and
(o) (Paid Taxes): it has filed all Tax returns which are required to
be filed and has promptly paid all Taxes as shown in all
assessments received by it to the extent that such Taxes have
become due other than those Taxes the subject of a bona fide
dispute with the Australian Taxation Office or other Governmental
Agency.
21.2 Repetition of Representations and Warranties
The representations and warranties in clause 21.1 are taken to be also
made on the Closing Date.
22. COLLECTIONS ACCOUNT AND INVESTMENT
22.1 Collections Account
The Trustee will establish and maintain in New South Wales (or in such
other place as the Manager selects from time to time), in accordance with
this clause 22, an account in the name of the Trustee which must be an
Eligible Deposit Account.
22.2 Initial Collections Account
Immediately following the Closing Date, the Trustee will establish the
initial Collections Account with the Servicer if the Servicer is an
Eligible Depository.
22.3 Replacement of Collections Account
If, at any time, the Collections Account ceases to be an Eligible Deposit
Account, the Trustee (or the Manager on its behalf) will within 5
Business Days (or such longer period, as the Rating Agencies may agree)
establish a new account which is an Eligible Deposit Account and the
Trustee will transfer any cash comprising the old Collections Account to
such new account and from the date such new account is established, it
will be the Collections Account.
22.4 Deposits into Collections Account within 5 Business Days
Subject to clauses 22.5 and 22.11, the Servicer must deposit in the
Collections Account each amount comprising a Collection received by the
Servicer (or otherwise payable by the Seller or the Servicer or debited
by the Servicer as contemplated by clause 22.4(a)) within 5 Business
Days of:
(a) (Receipt or Set-off): receipt of the Collection by the Servicer
or the debiting of the Collection by the Servicer against an
account pursuant to a right of set-off or right to combine
accounts; or
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(b) (Where otherwise payable): where Collections are not received by
the Servicer but are otherwise payable by the Servicer or the
Seller in accordance with clauses 14, 15.1(k), 16, 18, 24, 25, 26
or 30 of this Deed, when they fall due for payment to the Trustee
from the Servicer or the Seller.
22.5 While Collections Account with Commonwealth Bank
If the Collections Account is permitted to be maintained with the
Servicer and:
(a) (A-1+/P1/FI Rating): the Servicer is assigned short term credit
ratings by the Rating Agencies of no lower than A-1+ (in the case
of S&P), no lower than P1 (in the case of Moody's) and no lower
than F1+ (or, when the Seller is the Servicer, no lower than F1)
(by Fitch IBCA), then the Servicer will be entitled to retain any
Collections in respect of a Collection Period until 10.00 am on
the Business Day which is two Business Days preceding the
Distribution Date for the Collection Period;
(b) (A-1/P1Rating): the Servicer does not have all the applicable
credit ratings specified in clause 22.5(a), but is assigned short
term credit ratings of no lower than A-1 (in the case of S&P), no
lower than P1 (in the case of Moody's) and no lower than F1 (in
the case of Fitch IBCA), then the Servicer will be entitled to
retain any Collections in respect of a Collection Period until
10.00 am on the Business Day which is the earlier of two Business
Days preceding the Distribution Date for the Collection Period and
30 days from receipt of such Collections, provided that while the
sum of:
(i) all Collections then held by the Servicer; and
(ii) the aggregate value of the Authorised Short-Term Investments
in relation to the Series Trust which are with, or issued by,
a bank or financial institution which then has assigned to it
by S&P a short term credit rating of A-1,
exceeds 20% of the then aggregate of the Stated Amounts of the
Securities, the Servicer will only be entitled to retain any
additional Collections received in respect of a Collections Period
until 10.00 am on the Business Day which is 2 Business Days from
the receipt of such Collections; or
(c) (Lower than A-1/P1/F1 Rating): the Servicer has no credit ratings
or is assigned a short term credit rating by the Rating Agencies
lower than A-1 (in the case of S&P), lower than P1 (in the case of
Moody's) or lower than F1 (in the case of Fitch IBCA), then the
Servicer will be entitled to retain any Collections, in respect of
a Collection Period until 10.00 am on the Business Day which is
two Business Days from receipt of such Collections,
and must at that time pay such Collections into the Collections Account
together with an amount of interest (in the case of paragraphs (a) and
(b)) equal to the amount that would have been earned had such Collections
been paid into the Collections Account within 5 Business Days of their
receipt by the Servicer.
22.6 Withdrawals from Collections Accounts
Subject to this Deed, the Trustee will withdraw funds from the
Collections Account and apply the same when necessary for the following
outgoings:
(a) (Payments to Securityholders and Residual Unitholder): making
payments to the Securityholders or the Residual Unitholder;
(b) (Eligible Investments): purchasing Authorised Short-Term
Investments in compliance with this Deed and making payments
required in connection with Authorised Short-Term Investments;
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(c) (Expenses and Taxes): paying Expenses and Taxes in accordance with
this Deed or the Master Trust Deed; and
(d) (Other payments): making payments, in accordance with the
Transaction Documents to (or at the direction of) the Trustee, the
Manager, the Servicer, the Security Trustee, any Support Facility
Provider or any other Creditor of the Series Trust.
22.7 All Transactions through Collections Account
Unless otherwise directed by the Manager, all moneys and proceeds
referred to in clauses 22.4 and 22.5 will be credited to the Collections
Account and all outgoings referred to in clause 22.6 will be paid from
the Collections Account.
22.8 Title to and Control of Collections Account
The Collections Account and all rights to it and the funds standing to
its credit from time to time is an Asset of the Series Trust. At all
times the Collections Account will be under the sole control of the
Trustee.
22.9 No Deductions by Servicer
If the Collections Account is maintained with the Servicer, the Servicer
agrees that it will 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 Collections Account
for any amount owed to the Servicer.
22.10 Prepayments under Liquidity Facility
All prepayments made to the Trustee in respect of the Liquidity Facility
Agreement must be deposited in the Collections Account. Amounts so
deposited must not be withdrawn by the Trustee other than at the
direction of the Manager in accordance with the Liquidity Facility
Agreement or to be paid into a new Collections Account opened in
accordance with clause 22.3.
22.11 Servicer May Retain Income from Collections
Subject to clause 22.5, where the Servicer has received Collections but
it is not required pursuant to this Deed to deposit those Collections
into the Collections Account until a later date, the Servicer may retain
any interest and other income derived by the Servicer from those
Collections for the period up to when the Servicer is required to deposit
them under this Deed into the Collections Account.
22.12 Bank Account Taxes
Interest earned on amounts standing to the credit of the Collections
Account shall be determined net of all Taxes levied specifically in
respect of debits or credits to or on deposit accounts.
22.13 Opening of additional accounts where Collections Account is with an
Eligible Depository
If at any time:
(a) (Collections Account with Eligible Depository): there are
Collections deposited in a Collections Account with an Eligible
Depository;
(b) (Required Rating): the then short term credit rating assigned by
the Rating Agency to the Eligible Depository is no higher than A-1
and the obligations of that Eligible Depository in respect of the
Collections Account are rated, or considered by S&P to be
equivalent to obligations rated, less than A-1+; and
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(c) (Credit balance of Collections Account): the sum of:
(i) all amounts then credited to the Collections Account; and
(ii) the aggregate value of the Authorised Short-Term Investments
in relation to the Series Trust which are with, or are
issued, endorsed (with recourse) or accepted by, a bank or
financial institution which has then assigned to it by the
Rating Agency a short term credit rating of A-1,
exceeds 20% of the Total Invested Amount of the Notes, then:
(d) (New Collections Account): the Trustee must, upon becoming
actually aware of the occurrence of that event, immediately open a
new Collections Account with another Eligible Depository which has
assigned to it a short term credit rating by S&P of A-1+;
(e) (Amounts in excess transferred): an amount equal to the excess
referred to in clause 22.13(c) must be transferred by the Trustee
from the Collections Account referred to in clause 22.13(a) to
the new Collections Account;
(f) (Subsequent deposits): all subsequent amounts received by, or
payable to, the Trustee in respect of the Series Trust must be
deposited in the Collections Account referred to in clause
22.13(a) to the extent that such amounts can be deposited in that
Collections Account in accordance with, and without breaching the
restrictions on such deposit set out in, clause 22.13(c); and
(g) (Balance transferred): the balance of the amounts received by, or
payable to, the Trustee in respect of the Series Trust must be
deposited in the new Collections Account established pursuant to
clause 22.13(d) and in accordance with clauses 22.4 and 22.5.
23. CLEAN-UP AND EXTINGUISHMENT
23.1 Notification of Trigger Event by Manager to Seller
If (unless otherwise required by the Seller):
(a) (10% Threshold): the event referred to in Condition 7.3(a) of the
Class A-1 Note Conditions has occurred or is expected to occur on
the next Distribution Date; or
(b) (Other Redemption Event): both of the following events occur:
(i) the next Distribution Date is the Call Date for the
purposes of Condition 7.3(b) of the Class A-1 Note
Conditions or an event referred to in Condition 7.4(a) or
(b) has occurred; and
(ii) the Seller has prior thereto notified the Manager that the
Australian Prudential Regulation Authority will permit the
Seller to exercise its rights under this clause 23
(notwithstanding that the event referred to in clause
23.1(a) has not occurred),
the Manager must promptly request the Seller by telephone or orally
whether the Seller wishes to exercise its rights pursuant to this clause
23.
23.2 Response by Seller
The Seller may at any time after receiving (or after it ought to receive)
a request from the Manager pursuant to clause 23.1, and prior to the
Termination Date, advise the Manager by telephone or orally, that it
requires to exercise its rights pursuant to this clause 23 and
nominating a Distribution Date as the Clean-up Settlement Date. The
Manager must then
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promptly advise the Trustee of such advice and (if applicable) such
nomination by the Seller.
23.3 Determination of Clean-Up Settlement Date
If the Seller advises the Manager pursuant to clause 23.2 that it
requires to exercise its rights pursuant to this clause 23:
(a) (Clean-Up Settlement Date to Coincide with redemption of
Securities): if any Securities have been issued and have not then
been redeemed, the Manager must, subject to clause 23.4(b), in
accordance with Conditions 7.3 or 7.4 (as applicable) of the
Class A-1 Note Conditions direct the Trustee to give a notice in
accordance with such Condition (which the Trustee must give) that
on the Distribution Date nominated by the Seller pursuant to
clause 23.2 (which must be a complying Distribution Date in
accordance with such Condition) a redemption of the Securities
will occur pursuant to such Condition (in which case, such
nominated and complying Distribution Date will be the Clean-Up
Settlement Date); or
(b) (Otherwise, date nominated by Seller): otherwise, the Clean-Up
Settlement Date will be the Distribution Date nominated by the
Seller as the Clean-Up Settlement Date pursuant to clause 23.2.
23.4 Clean-Up Settlement Price
(a) (Calculation): The Clean-Up Settlement Price will be the amount
determined by the Manager to be the aggregate of the Fair Market
Value (as at the last day of the Accrual Period ending immediately
before the proposed Clean-Up Settlement Date) of each Mortgage
Loan then forming part of the Assets of the Series Trust.
(b) (Minimum Clean-Up Settlement Price): If any Securities have been
issued and have not then been redeemed (or deemed to be redeemed)
and if the amount of the Clean-Up Settlement Price determined by
the Manager (when combined with the other Assets that will be
available to the Trustee) is not sufficient to ensure, upon
payment by the Seller to the Trustee pursuant to clause 23.5,
that the Trustee would be in a position on the proposed Clean-Up
Settlement Date to redeem the Securities in full in accordance
with Condition 7.3 or 7.4 (as applicable) of the Class A-1 Note
Conditions, the Manager must not give a direction to the Trustee
pursuant to clause 23.3(a). If such amount would be so
sufficient, the Manager's direction pursuant to clause 23.3(a)
must be accompanied by a notification to the Trustee of such
amount and the certificate referred to in Condition 7.5 of the
Class A-1 Note Conditions.
(c) (Minimum not Sufficient): If the Manager cannot issue the
direction referred to in clause 23.4(b) as a result of such
clause, nothing herein prevents the Seller issuing a further
advice to the Manager pursuant to clause 23.2 at a later date, in
which case the procedures and provisions of this clause 23 will
thereupon take effect again (including this clause 23.4(c)),
subject to the requirements herein contained.
23.5 Payment of Clean-Up Settlement Price
(a) (Payment): Subject to clause 23.5(b), the Seller must pay to the
Trustee, in immediately available funds, the Clean-Up Settlement
Price on the Clean-Up Settlement Date.
(b) (Waiver of Redemption by Class A-1 Noteholders): If a proposed
payment pursuant to clause 23.5(a) is as a result of the
occurrence of the event referred to in Condition 7.4(a) of the
Class A-1 Note Conditions in respect of only the Class A-1 Notes
and the Trustee is not required to redeem the Class A-1 Notes as a
result of an election to this effect by the Class A-1 Noteholders
in
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accordance with Condition 7.4, the Seller must not make the
proposed payment referred to in clause 23.5(a) on the proposed
Clean-Up Settlement Date (but without limiting the operation of
clause 23.4(c) in respect of any other event that has occurred or
may occur under clause 23.1).
23.6 Effect of Payment of Clean-Up Settlement Price
Upon receipt of the Clean-Up Settlement Price by the Trustee in
immediately available funds, the Trustee's entire right, title and
interest in the Mortgage Loan Rights then forming part of the Assets of
the Series Trust will be extinguished in favour of the Seller with
immediate effect from the last day of the Collection Period which ended
prior to the Clean-Up Settlement Date. The Trustee must execute whatever
documents the Seller reasonably requires to complete the extinguishment
of the Trustee's right, title and interest in the Mortgage Loan Rights.
23.7 Costs
The Seller must pay to, or reimburse, the Trustee immediately on demand
for all costs and expenses, including, without limitation, any stamp duty
and registration fees, arising out of or necessarily incurred in
connection with the exercise of the Seller's rights pursuant to this
clause 23.
23.8 Alternative Structure
The Trustee must co-operate with the Seller in implementing alternative
means to permit the Seller to have the benefit of the Mortgage Loan
Rights referred to in clause 23.6 other than as set out in this clause
23 if to do so would materially reduce the liability of the Seller to
reimburse the Trustee for any of the costs and expenses set out in clause
23.7 and provided that any proposed alternative means pursuant to this
clause is permitted in law and does not result in the Trustee being
exposed to the risk of personal liability unless the Trustee is
satisfied, in its absolute discretion, that the Seller will be able to
indemnify the Trustee in respect of such risk in accordance with clause
2.15(a).
23.9 Alternative Funding Arrangements to Permit Redemption
Nothing in this clause 23 prevents the Manager and the Trustee
exercising any other rights and powers conferred upon them by this Deed
or the Master Trust Deed (in so far as it applies to the Series Trust) to
enable the redemption of the Securities as contemplated by Conditions
7.3 and 7.4 of the Class A-1 Note Conditions.
24. PERFECTION OF TITLE
24.1 Perfection of Title Event
A Perfection of Title Event occurs if:
(a) (Breach of Seller Representations): the Seller (in its capacity as
Seller only and not as Custodian) makes any representation or
warranty under a Transaction Document to which it is expressed to
be a party that proves to be incorrect when made (other than a
representation or warranty in respect of which payment has been
made, or is not yet due to be made, in accordance with clauses
14.6 and 14.9(a)), or breaches any covenant or undertaking given
by it in such a Transaction Document, and that has or, if
continued will have, an Adverse Effect and:
(i) the same is not satisfactorily remedied so that it no
longer has or will have, an Adverse Effect, within 20
Business Days of notice thereof being delivered to the
Seller by the Manager or the Trustee; or
(ii) if paragraph (i) is not satisfied, the Seller has not
within 20 Business Days of such notice paid compensation to
the Trustee for its loss from such breach in an amount
satisfactory to the Trustee acting reasonably (such
compensation cannot exceed the aggregate of the principal
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amount outstanding in respect of the corresponding Mortgage
Loan (as recorded on the Mortgage Loan System) and any
accrued or unpaid interest in respect of the Mortgage Loan
(calculated in both cases at the time of payment of the
compensation)).
The Trustee must, in such notice, specify the reasons why it
believes an Adverse Effect has occurred, or will occur (as the
case may be);
(b) (Servicer Default): if the Seller is the then Servicer, a Servicer
Default occurs;
(c) (Seller Insolvency Event): an Insolvency Event occurs in relation
to the Seller;
(d) (Seller breach of Interest Rate Swap Agreement): if the Seller is
a then Interest Rate Swap Provider under a Fixed Rate Swap or an
Interest Rate Basis Cap, the Seller fails to make any payment due
under the corresponding Interest Rate Swap Agreement and such
failure: or
(i) has or will have, as reasonably determined by the Trustee,
an Adverse Effect; and
(ii) is not remedied by the Seller within 20 Business Days (or
such longer period as the Trustee may agree to) of notice
thereof being delivered to the Seller by the Manager or the
Trustee;
(e) (Downgrading of Seller): a downgrading in the long term debt
rating of the Seller below the Specified Rating (or such other
rating in respect of the Seller as is agreed between the Manager,
the Seller and the Rating Agency which had assigned the relevant
Specified Rating).
24.2 Declaration of Perfection of Title Event
If a Perfection of Title Event (of which the Trustee is actually aware)
is subsisting, the Trustee must, as soon as is practicable, by notice in
writing to the Seller, the Servicer, the Manager and the Rating Agencies
declare that a Perfection of Title Event has occurred unless the Rating
Agencies confirm by notice in writing to the Trustee (with a copy to the
Manager) prior to the declaration that a failure to perfect the Trustee's
title to the Mortgages in accordance with clause 24.3 will not result in
a reduction, qualification or withdrawal of the credit ratings then
assigned by them to the Securities.
24.3 Perfection of Title
If, and only if, a declaration is made by the Trustee in accordance with
clause 24.2, the Trustee and the Manager must as soon as practicable:
(a) (Perfect title): take all necessary steps to perfect in the name
of the Trustee the Trustee's legal title to the Mortgages then
forming part of the Assets of the Series Trust, including
lodgement of Mortgage Transfers (where necessary, executed under a
Power of Attorney) with the land titles office of the appropriate
jurisdiction to achieve registration of the Mortgages then forming
part of the Assets of the Series Trust;
(b) (Notify Borrowers): notify the relevant Borrowers of the sale of
the Mortgage Loans and Mortgages then forming part of the Assets
of the Series Trust including informing them (where appropriate)
that they should make payment to the Series Trust Account
specified to them by the Trustee; and
(c) (Possession of Loan Files): take possession of all Loan Files
(subject to the Privacy Act and the Seller's duty of
confidentiality to its customers under general law or otherwise).
The Trustee and the Manager may, if necessary to obtain
possession, enter into the premises of the Servicer at which the
Loan Files are stored.
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24.4 Trustee to lodge Caveats
If the Trustee does not hold the Mortgage Documents necessary to vest
fully and effectively in the Trustee the Seller's legal right, title and
interest in and to any Mortgage Loan, the Trustee must, within 5 Business
Days after the declaration by the Trustee of a Perfection of Title Event
in accordance with clause 24.2, lodge or enter, to the extent of the
information available to it, a caveat or similar instrument in respect of
the Trustee's interest in the Mortgage Loan.
24.5 Trustee to hold Legal Title or lodge Caveats
The Trustee must, in respect of each Mortgage Loan then forming part of
the Assets of the Series Trust, within 30 Business Days after the
declaration by the Trustee of a Perfection of Title Event in accordance
with clause 24.2, either have commenced to take all necessary steps to
perfect the legal title to that Mortgage Loan or have lodged or entered a
caveat or similar instrument in respect of the Trustee's interest in that
Mortgage Loan.
24.6 Powers of Attorney
The Trustee must only use the Powers of Attorney to execute Mortgage
Transfers in respect of Mortgages then forming part of the Assets of the
Series Trust and only then if it has declared a Perfection of Title Event
in accordance with clause 24.2.
24.7 Other Loans
Following a declaration in accordance with clause 24.2, the Trustee must
continue to hold its interest in the CBA Trust Assets in accordance with
this Deed.
24.8 Indemnity
The Seller indemnifies the Trustee against all loss, costs, damages,
charges and expenses incurred by the Trustee in perfecting the Trustee's
title to the Mortgages then forming part of the Assets of the Series
Trust in accordance with clause 24.3, including legal costs charged at
the usual commercial rates of the relevant legal services provider, all
registration fees, stamp duty and the cost of preparing and transmitting
all necessary documentation.
25. SELLER AS CUSTODIAN OF THE MORTGAGE LOAN DOCUMENTS
25.1 Seller as Custodian
The Seller holds the Mortgage Documents in relation to Mortgage Loans
that from time to time form part of the Assets of the Series Trust as
custodian on behalf of the Trustee from and including the Closing Date
until a Document Transfer Event occurs.
25.2 Application of the Balance of this Clause
The remaining provisions of this clause 25 only apply if and while the
Seller remains as custodian of the Mortgage Documents.
25.3 Seller's Covenants as Custodian
The Seller covenants with the Trustee that it will:
(a) (Hold documents in accordance with its normal practice): hold the
Mortgage Documents in accordance with its standard safekeeping
practices and in the same manner and to the same extent as it
holds its own documents;
(b) (Segregate documents): mark and segregate the security packages
containing the Mortgage Documents in respect of the Mortgage Loans
comprising Assets of the Series Trust in a manner to enable the
easy identification of them by the Trustee (when the Trustee is at
the premises at which the Mortgage Documents are located and in
possession of the letter delivered to it pursuant to clause
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6.1(k));
(c) (Reporting): maintain reports on movements of the Mortgage
Documents; and
(d) (Deficiencies in Document Custody Audit Report): cure any
exceptions or deficiencies noted by the Auditor of the Series
Trust in a Document Custody Audit Report.
25.4 Update of Computer Diskette
(a) (Quarterly Updates): The Seller must deliver to the Trustee on
each Distribution Date a computer diskette in a format acceptable
to the Trustee updating the information referred to in clause
6.1(j).
(b) (Adverse Document Custody Audit Report): In addition to its
obligations under clause 25.4(a), if there is an Adverse Document
Custody Audit Report the Seller must deliver to the Trustee within
20 Business Days thereafter (or such longer period as may be
agreed between the Seller and the Trustee) a computer diskette
updating the information referred to in clause 6.1(j) and
containing the Caveat and Transfer Details in respect of each
Mortgage Loan then forming part of the Assets of the Series Trust.
25.5 Indemnity in respect of Incorrect Information on Computer Diskette
If the Seller:
(a) (Fails to supply information): fails to supply adequate
information; or
(b) (Supplies incorrect information): supplies inaccurate or
incomplete information,
on the computer diskettes delivered pursuant to clause 6.1(j) or 25.4
and as a result the Trustee is unable (when entitled to do so under this
Deed) to lodge and register Caveats and Mortgage Transfers upon the
occurrence of a Document Transfer Event or a Perfection of Title Event,
then the Seller (as custodian) indemnifies the Trustee (whether for its
own account or for the account of the Securityholders) for all actions,
loss, damage, costs (including legal costs charged at the usual
commercial rates of the relevant legal services provider), charges and
expenses suffered as a result.
25.6 Document Custody Audit Report
The Manager or the Trustee (due to default by the Manager) must retain
the Auditor of the Series Trust to conduct periodic reviews (determined
in accordance with clause 25.9) in respect of the Seller's role as
custodian of the Mortgage Documents forming part of the Assets of the
Series Trust. The Auditor must review:
(a) (Custodial procedures): the custodial procedures adopted by the
Seller; and
(b) (Accuracy of information): the accuracy of information in respect
of the Mortgage Loans contained on:
(i) the Security Register; and
(ii) the most recent of the computer diskettes provided to the
Trustee pursuant to clauses 6.1(j) and 25.4.
25.7 Details of Document Custody Audit Report
(a) (Custody procedures): In respect of the review referred to in
clause 25.6(a), the Manager must instruct the Auditor of the
Series Trust that its review should consist of reporting on
whether:
(i) the Mortgage Documents forming part of the Assets of the
Series
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Trust are capable of identification and are distinguishable
from the other assets of the Seller;
(ii) controls exist such that the Mortgage Documents may not be
removed or tampered with except with appropriate
authorisation; and
(iii) an appropriate tracking system is in place such that the
location of the security packages containing the Mortgage
Documents in respect of the Mortgage Loans comprising
Assets of the Series Trust can be detected at any time and
the location of the Mortgage Documents (other than the
Mortgage Documents in relation to the First Layer of
Collateral Securities but including any Insurance Policy or
certificate of currency for an Insurance Policy in relation
to a Mortgage Loan) can be detected at any time.
(b) (Accuracy of information): In respect of the review referred to in
clause 25.6(b)(i), the Manager must instruct the Auditor of the
Series Trust to review a sample of security packets in respect of
the Mortgage Loans then forming part of the Assets of the Series
Trust to determine whether they contain the following (which
accord, where applicable, with the information contained in the
computer diskette referred to in clause 25.6(b)(ii)):
(i) an original counterpart of the corresponding Mortgage;
(ii) the Certificate of Title (if any) in respect of the Land the
subject of the Mortgage; and
(iii) (where applicable) any Mortgage Insurance Policy in respect
of the corresponding Mortgage other than the GEMICO
Mortgage Insurance Policy.
If such Security packets do not contain any of the foregoing, the
Auditor must determine if there is an adequate explanation
regarding the documents not in the Security packets or whether the
Security packets or the Seller's records indicate the location of
the missing documents.
The Manager must instruct the Auditor to confirm (after having
conducted the above reviews) the accuracy of the information in
respect of the above contained in both the Security Register and
the computer diskette referred to in clause 25.6(b)(ii).
25.8 Document Custody Audit Report
The Manager must instruct the Auditor of the Series Trust to provide a
Document Custody Audit Report in which the Auditor, based on its reviews
referred to in clause 25.7, specifies a grade of the overall custodial
performance by the Seller, based on the following grading system:
"A" Good - All control procedures and accuracy of information
in respect of Mortgage Loans testing completed
without exception.
"B" Satisfactory - Minor exceptions noted.
"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/or Testing
of the information in respect of Mortgage Loans
identified a number of minor exceptions which are
the result of non-compliance with the control
system.
"D" Adverse - Major deficiencies in internal controls were
identified. Cannot rely on the integrity of the
information in respect of Mortgage Loans on the
Security Register and the diskettes delivered
pursuant to clauses 6.1(j) and 25.4.
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25.9 Timing of Document Custody Audit Reports
The Manager (or the Trustee if the Manager fails to do so) must instruct
the Auditor of the Series Trust to prepare a Document Custody Audit
Report immediately after delivery of the computer diskette referred to in
clause 6.1(j) and annually on 31 March of each year thereafter (not
including the year in which the first Document Custody Audit Report is
prepared) (or such other period as may be agreed by the Manager, the
Trustee and the Ratings Agencies). The Manager (or the Trustee if the
Manager fails to do so) must require the Auditor to deliver a copy of
each Document Custody Audit Report to the Trustee, with a copy to the
Manager and the Seller.
25.10 Adverse Document Custody Audit Report
If the Auditor issues an Adverse Document Custody Audit Report to the
Trustee, the Trustee must instruct the Auditor to conduct a further
Document Custody Audit Report no sooner than 1 month but no later than 2
months after the date of receipt by the Trustee of the Adverse Document
Custody Audit Report. The Manager must instruct the Auditor to deliver
the further Document Custody Audit Report to the Trustee, with a copy to
the Manager and the Seller.
25.11 Document Transfer Event
Upon the occurrence of any of the following:
(a) (Further Adverse Document Custody Audit Report): a further
Document Custody Audit Report pursuant to clause 25.10 is an
Adverse Document Custody Audit Report;
(b) (Trustee as Servicer): the Trustee replaces the Commonwealth Bank
of Australia as the Servicer; or
(c) (Downgrade of Seller Rating): a downgrading in the long term debt
rating of the Seller to below the Specified Rating (or such other
rating as is agreed between the Manager, the Servicer and the
relevant Rating Agencies),
a Document Transfer Event occurs. The Trustee must immediately upon
becoming actually aware of a Document Transfer Event deliver a notice to
the Seller notifying it of the occurrence of a Document Transfer Event.
Upon receipt of such notice the Seller must transfer custody of the
Mortgage Documents then forming part of the Assets of the Series Trust
held by it to the Trustee. Subject to clause 25.14, this requirement
will be treated as being satisfied if:
(d) (Delivery of 90% of Mortgage Documents): within 5 Business Days of
the above notice being received, all Mortgage Documents in
relation to at least 90% (by number) of the Mortgage Loans then
part of the Assets of the Series Trust are delivered to the
Trustee; and
(e) (Remaining Mortgage Documents): any remaining Mortgage Documents
in relation to Mortgage Loans then part of the Assets of the
Series Trust are delivered to the Trustee within 10 Business Days
of the above notice being received.
25.12 Failure to comply with clause 25.11
If the Seller does not comply with the requirements of clause 25.11
(subject to clause 25.14) within either of the specified time limits
specified in clause 25.11(d) & (e), the Trustee must (unless the Trustee
is satisfied, in its absolute discretion, that the Seller has used its
best endeavours to deliver the Mortgage Documents and has made
appropriate arrangements for the remaining Mortgage Documents to be
delivered in accordance with clause 25.11 (subject to clause 25.14)
within a reasonable period as determined by the Trustee (but in any event
no longer than 10 Business Days from the date that they were due to be
delivered in accordance with clause 25.11 (subject to clause 25.14)
except where
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the Trustee is satisfied, in its absolute discretion, that the failure to
deliver the remaining Mortgage Documents arises from circumstances beyond
the control of the Seller)) to the extent to which it has information
available to it at the time:
(a) (Lodge Caveats): execute and lodge Caveats in respect of all Land or
Mortgages (as the case may be) for which all Mortgage Documents in
respect of the Series Trust have not been delivered; and
(b) (Bring Proceeds for Possession): initiate legal proceedings to take
possession of the Mortgage Documents in respect of the Series Trust
that have not been delivered,
and to the extent that the Trustee cannot do so, as a result of not having
information available to it to do so, the indemnity in clause 25.5
applies.
The Trustee must discontinue any legal proceedings initiated in accordance
with this clause 25.12 if the Mortgage Documents in question are
delivered to the Trustee.
25.13 Emergency Document transfer
If:
(a) (A Perfection of Title Event occurs): a Perfection of Title Event
(other than a Servicer Default referred to in clause 18.1(g)) is
declared by the Trustee in accordance with clause 24.2 and the
Trustee notifies the Seller of that fact (which the Trustee must do
immediately upon declaring any such Perfection of Title Event); or
(b) (Nominated Servicer Default): for the purposes of this clause only and
not for any other purpose under this Deed:
(i) the Trustee considers in good faith that the conditions of clause
18.1(g) have been satisfied; and
(ii) the Trustee serves a notice on the Seller identifying the reasons
why the Trustee considers that those conditions have been
satisfied and why, in the Trustee's opinion, an Adverse Effect
has or may occur as a result,
then, subject to clause 25.14, the Seller must immediately upon receipt
of a notice under paragraph (a) or (b) transfer custody of the Mortgage
Documents to the Trustee. The Trustee may, in such circumstances, commence
legal proceedings to obtain possession of the Mortgage Documents and may
enter into the premises of the Seller at which the Mortgage Documents are
stored and take away from such premises the Mortgage Documents then
forming part of the Assets of the Series Trust.
25.14 Exceptions to Transfer
The obligations of the Seller to transfer custody of the Mortgage
Documents to the Trustee pursuant to clause 25.11 or 25.13 do not extend
to such documents which the Seller can prove, to the reasonable
satisfaction of the Trustee, are deposited with a solicitor (acting on
behalf of the Servicer), a land titles office, a stamp duties office or
any other Governmental Agency. The Seller must provide a list of such
documents to the Trustee together with any which have been lost (and a
statutory declaration duly completed that the contents of the list are, to
the best of the knowledge and belief of the maker, true and correct)
within 14 days of the above notice having been received by it. In respect
of Mortgage Documents that are so deposited, the Seller must deliver these
to the Trustee immediately upon receipt from the solicitor or relevant
office and, in respect of Mortgage Documents that are lost, the Seller
must take all reasonable steps satisfactory to the Trustee to promptly
replace such Mortgage Documents.
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25.15 Indemnity by Seller
The Seller indemnifies the Trustee against all loss, costs, damages,
charges and expenses incurred by the Trustee:
(a) (Seller breach): as a result of a breach by the Seller of clause
25.11; or
(b) (Legal proceedings): in connection with the Trustee taking the action
referred to in clause 25.12 or the legal proceedings referred to in
clause 25.13,
including all registration fees, stamp duty, legal costs charged at the
usual commercial rates of the relevant legal services provider and the
cost of preparing and transmitting all necessary documentation.
25.16 Trustee to co-operate with Servicer
If the Trustee holds any Mortgage Loan Document and if the Trustee
receives from the Servicer a satisfactory undertaking, the Trustee must
release to the Servicer from time to time such Mortgage Documents as are
reasonably required by the Servicer to perform its obligations as Servicer
under this Deed.
25.17 Specific performance
If the Seller breaches it obligations under clauses 25.11 to 25.14, it is
agreed that damages alone will not be an adequate remedy for such a breach
and that the Trustee is entitled to sue the Seller for specific
performance of its obligations under clauses 25.11 to 25.14.
25.18 Trustee's Duty While Holding Mortgage Documents
While the Trustee holds any Mortgage Documents, it must hold them in
accordance with its standard safekeeping practices and in the same manner
and to the same extent as it holds equivalent mortgage documents as
trustee.
25.19 Reappointment of Seller as Custodian
If following a Document Transfer Event:
(a) the Trustee is satisfied, notwithstanding the occurrence of the
Document Transfer Event, that the Seller is an appropriate person to
act as custodian of the Mortgage Documents; and
(b) the Rating Agencies confirm that the appointment of the Seller to act
as custodian of the Mortgage Documents will not result in a reduction,
qualification or withdrawal of the credit ratings then assigned by
them to the Securities,
then the Trustee may by agreement with the Seller appoint the Seller to
act as custodian of the Mortgage Documents upon such terms as are agreed
between the Trustee and the Seller and approved by the Manager. This
clause 25 will apply following the appointment of the Seller as custodian
of the Mortgage Documents under this clause 25.19.
26. TERMINATION OF THE SERIES TRUST
26.1 Potential Termination Events
(a) (Notify Potential Termination Event): If the Trustee, the Manager or
the Servicer becomes aware of the occurrence of a Potential
Termination Event it must promptly notify in writing the others and
the Security Trustee and the Class A-1 Note Trustee.
(b) (Trustee must determine whether Potential Termination Event has
Adverse Effect): Upon becoming aware of a Potential Termination Event,
the Trustee
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must promptly determine whether in its reasonable opinion the
Potential Termination Event has or will have an Adverse Effect and
must promptly thereafter notify in writing the Manager, the Servicer,
the Security Trustee and the Class A-1 Note Trustee of its
determination.
(c) (Restructuring): If the Trustee determines pursuant to clause 26.1(b)
that a Potential Termination Event has or will have an Adverse Effect
, the Servicer, the Trustee and the Manager must consult and use their
reasonable endeavours (in consultation with the Security Trustee, the
Class A-1 Note Trustee and, if necessary the Residual Unitholder) to
amend or vary the terms of this Deed, any other relevant Transaction
Document and the Securities in respect of the Series Trust, in such a
way so as to cure the Potential Termination Event or its Adverse
Effect.
(d) (Wind up the Security Trust): If such consultations do not result in
the cure of the Potential Termination Event or its Adverse Effect
(with the consent of the Servicer, the Trustee, the Manager, the
Security Trustee and the Class A-1 Note Trustee) within 90 days of
notice being given by the Trustee pursuant to clause 26.1(b), then
the Trustee must proceed to liquidate the Assets of the Series Trust
in accordance with the remainder of this clause 26.
26.2 Determination of Termination Payment Date
The Trustee must as soon as practicable following the Termination Date of
the Series Trust, declare on the direction of the Servicer and the
Manager, a date as the Termination Payment Date (which, if Securities have
been issued and have not then been redeemed (or deemed to be redeemed) in
full, must be a Distribution Date and must not be the next Distribution
Date immediately after the declaration if the Determination Date in
relation to that Distribution Date has then passed), being a date by which
the Trustee reasonably believes that the sale and distribution of the
Assets of the Series Trust will be completed in accordance with this
clause 26. Based on the direction of the Servicer and the Manager, the
Trustee may substitute another date as the Termination Payment Date
(which, if the Securities have not then been redeemed in full, must be a
Distribution Date) if it reasonably believes that the Assets will not in
fact be sold and distributed by the then declared Termination Payment
Date.
26.3 Realisation of Assets
Upon the occurrence of the Termination Date of the Series Trust, the
Trustee, in consultation with the Manager, must sell and realise the
Assets of the Series Trust (and, in relation to the sale (other than
pursuant to clause 26.5) of any Mortgage Loan Rights forming part of the
Assets of the Series Trust, the Trustee must obtain appropriate expert
advice prior to the sale) and such sale (so far as reasonably practicable
and reasonably commercially viable) must be completed within 180 days of
the Termination Date provided that during the period of 180 days from the
Termination Date:
(a) (Fair Market Value): the Trustee must not offer to sell the Mortgage
Loan Rights for less than their Fair Market Value;
(b) (Sale in accordance with clause 26.4): the Trustee must not sell any
Mortgage Loan Rights unless the sale is on terms in accordance with
clause 26.4; and
(c) (Right of first refusal): the Trustee must not sell any Mortgage Loan
Rights unless it has offered the Mortgage Loan Rights for sale to the
Seller in accordance with clause 26.5 and the Seller has either not
accepted that offer or has accepted that offer within 90 days of that
Termination Date but not paid the consideration due by the time
required pursuant to clause 26.5.
26.4 Conditions of Sale During 180 days
The Trustee must not conclude a sale pursuant to clause 26.3 (other than
pursuant to clause 26.5) unless:
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(a) (Equitable assignment only): all Mortgage Loan Rights sold pursuant to
that sale are assigned in equity only (unless the Trustee already
holds legal title to such Mortgage Loan Rights);
(b) (Servicer's rights retained): the sale is expressly subject to the
Servicer's right to be retained as Servicer of the Mortgage Loan
Rights in accordance with the terms of this Deed; and
(c) (Sale subject to CBA Trust): the sale is expressly subject to the
rights of the CBA Trust in respect of those Mortgage Loan Rights
pursuant to this Deed and to the Seller's rights (as beneficiary of
the CBA Trust) in respect of those Mortgage Loan Rights pursuant to
this Deed.
26.5 Right of Refusal to Seller
(a) (Deemed offer to Seller): On the Termination Date of the Series Trust
the Trustee is deemed to irrevocably offer to extinguish in favour of
the Seller, its entire right, title and interest in the Mortgage Loan
Rights forming part of the Assets of the Series Trust in return for
the payment to the Trustee of an amount determined in accordance with
clause 26.3(a) as at the Termination Date.
(b) (Acceptance by Seller of Offer): The Seller may verbally accept the
offer referred to in clause 26.5(a) within 90 days after the
Termination Date of the Series Trust and, having accepted the offer,
must pay to the Trustee, in immediately available funds, the amount
referred to in clause 26.5(a) by the expiration of 180 days after the
Termination Date of the Series Trust. If the Seller makes such
payment, the Trustee must execute whatever documents the Seller
reasonably requires to complete the extinguishment of the Trustee's
right, title and interest in the Mortgage Loan Rights then forming
part of the Assets of the Series Trust.
(c) (Trustee must not sell): The Trustee must not sell any Mortgage Loan
Rights referred to in clause 26.5(a) unless the Seller has failed to
accept the offer referred to in clause 26.5(a) within 90 days after
the Termination Date or, having accepted the offer, has failed to pay
the amount referred to in clause 26.3(a) by the expiration of 180
days after the Termination Date.
26.6 Sale at Lower Price
If after the expiration of the period of 180 days from the Termination
Date of the Series Trust the Trustee has not sold any Mortgage Loan Rights
which form part of the Assets of the Series Trust for the amount
determined in accordance with clause 26.3(a), the Trustee may proceed to
sell such Mortgage Loan Rights free from the prohibitions contained in
clause 26.3 and may, if necessary, sell such Mortgage Loan Rights on the
terms set out in clause 26.7 if the terms of that clause are satisfied.
If any Mortgage Loan Rights are sold for less than the price for those
Mortgage Loan Rights determined in accordance with clause 26.3(a), then
any such shortfall must be allocated as provided for clause 26.11.
26.7 Conditions of Sale After 180 days
Upon the expiration of the period of 180 days from the Termination Date in
respect of the Series Trust, the Trustee may, if necessary (in its
reasonable opinion) to sell the Mortgage Loan Rights forming part of the
Assets of the Series Trust for at least the amount determined in
accordance with clause 26.3(a) in respect of those Mortgage Loan Rights:
(a) (Perfect title): take all necessary steps to perfect the Trustee's
legal title to the Mortgage Loan Rights as if a Perfection of Title
Event had occurred;
(b) (Terminate Servicer): terminate the rights and obligations of the
Servicer in respect of those Mortgage Loan Rights; and
(c) (Sell Mortgage Loan Rights): sell the legal and beneficial ownership
in such
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Mortgage Loan Rights to the prospective purchaser free of all rights
of the Seller to repurchase such Mortgage Loan Rights in accordance
with this Deed which rights the Seller is deemed to have waived by its
not accepting the offer made to it in accordance with clause 26.3(a).
26.8 Further Conditions of Sale After 180 days
If the Trustee sells the Mortgage Loan Rights pursuant to clause 26.7,
the Trustee must use reasonable endeavours to include as a condition of
the sale that the purchaser will:
(a) (Consent): consent to the granting in favour of the Seller of
mortgages and other Security Interests subsequent to the Mortgages and
Collateral Security assigned to the purchaser;
(b) (Enter Priority Agreements): enter into priority agreements with the
Seller, in the form then specified in the Servicing Standards,
limiting the priority of the Mortgages and Collateral Security
assigned to the purchaser over any subsequent mortgages and other
Security Interests held by the Seller to the then principal
outstanding of the relevant Mortgage Loan and any interest, fees and
expenses on this amount; and
(c) (Endeavour to obtain Borrower's consent): use reasonable endeavours to
obtain the consent of the providers of Mortgages and Collateral
Securities assigned to the purchaser, and any other relevant person,
to the grant of subsequent mortgages and other Security Interests to
the Seller.
26.9 Procedures Pending Winding-Up
During the period commencing on the Termination Date and ending on the
Termination Payment Date:
(a) (Trustee, Manager and Servicer must continue to perform duties): the
Trustee, the Servicer and the Manager must continue to perform their
respective roles in accordance with the Master Trust Deed and this
Deed in respect of the Assets of the Series Trust;
(b) (Collections to continue to be paid into Collections Account): all
Collections must continue to be deposited into the Collections Account
in accordance with this Deed;
(c) (Proceeds of sale): all proceeds arising from the sale of Assets of
the Series Trust must be deposited into the Collections Account and
must be treated for all purposes as if such proceeds were Collections
and the Manager must determine (and advise the Trustee) which of such
proceeds are to be treated as received on account of principal amounts
and which of such proceeds are to be treated as received on account of
Available Funds; and
(d) (Trustee must make payments): the Trustee must continue to make all
distributions, transfers and payments determined by the Manager as
required to be made in accordance with this Deed.
26.10 Costs on Winding-up of the Series Trust
On the Determination Date prior to the Termination Payment Date, the
Manager (in consultation with the Trustee) must in respect of the Series
Trust make provision for all Taxes, costs, charges, expenses, claims and
demands anticipated to become payable after the Termination Payment Date
in connection with or arising out of the administration or winding up of
the Series Trust, including the fees of any consultants whom the Trustee,
the Seller, the Servicer, the Security Trustee or the Manager have
employed in connection with the administration or winding up of the Series
Trust. Such costs (if any) will be treated as Expenses by the Manager in
making its determinations as to payments to be made on the Termination
Payment Date in accordance with clause 26.11.
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26.11 Calculation of Final Distributions
On the Determination Date prior to the Termination Payment Date, the
Manager must determine how the amounts standing to the credit of the
Collections Account (other than amounts, if any, in respect of Cash
Advance Deposit or Seller Deposit) are to be distributed and must make
such determination in accordance with the provisions of this Deed for
payments and allocations of principal amounts and Available Income
Amounts. As soon as practicable after making such determinations, the
Manager must notify the Trustee of the allocations and payments to be made
on the Termination Payment Date in accordance with this Deed.
26.12 Final Distributions
On the Termination Payment Date, the Trustee must make the payments that
the Manager directs it to make pursuant to clause 26.11.
26.13 Insufficient Funds
If the Trustee has insufficient funds to make the payments required to be
made under clause 26.12 to the Securityholders in full, the Trustee will
distribute the amount available to the Trustee in accordance with
(including the order of priority specified in) clause 10.3 in the case of
the capital of the Series Trust and clause 10.2 in the case of the income
of the Series Trust.
26.14 Excess Funds
If following the distribution of the amounts required to be distributed by
the Trustee to Securityholders pursuant to clause 26.12 the Trustee holds
any excess funds or other Assets of the Series Trust, the Trustee must
immediately distribute such funds or Assets to the Residual Unitholder.
26.15 Distribution to Residual Unitholder in Specie
On the occurrence of an event referred to in paragraph (c)(i) of the
definition of Termination Date, the Trustee must immediately after
deducting any amount paid or provided for pursuant to clause 26.12,
distribute the Assets of the Series Trust in full in specie to the
Residual Unitholder. The Residual Unitholder must take all steps necessary
on its part in order to enable the Trustee to comply with this clause
26.15 and will reimburse the Trustee on demand for all expenses payable
in connection with such transfer.
26.16 Terms of In Specie Distributions
Any in specie distribution pursuant to clause 26.15 will be without
recourse to the Trustee and without representation or warranty by the
Trustee.
27. GENERAL
27.1 Required Credit Rating
For the purposes of the Master Trust Deed in so far as it relates to the
Series Trust:
(a) (Moody's): the Required Credit Rating required by Moody's in respect
of Authorised Short-Term Investments of the Series Trust is a short-
term rating of P1 or such other rating as is agreed between the
Manager, the Trustee and Moody's;
(b) (S&P): the Required Credit Rating required by S&P in respect of
Authorised Short-Term Investments of the Series Trust is a short-term
rating of A-1+ or such other rating as is agreed between the Manager,
the Trustee and S&P; and
(c) (Fitch IBCA): the Required Credit Rating required by Fitch IBCA in
respect of Authorised Short-Term Investments of the Series Trust is a
short-term rating of
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F1+ (or, where the Authorised Short-Term Investment is at call, F1) or
such other rating as is agreed between the Manager, the Trustee and
Fitch IBCA.
27.2 Distribution of information
The Manager will on or before the date which is 1 Business Days before
each Distribution Date send:
(a) (To the Trustee): to the Trustee, the Principal Paying Agent and the
Class A-1 Note Trustee, the Quarterly Certificate; and
(b) (To the Rating Agencies): to the Rating Agencies, such information as
they require:
(i) from the Quarterly Certificate; and
(ii) the Pool Performance Data (if available) (and the Manager will
send the same information to the Trustee).
27.3 Electronic Reporting of Pool Performance Data
Prior to each Distribution Date, the Manager (or a person nominated by the
Manager) must prepare and arrange for the publication by Reuters and/or
Bloomberg, L.P. (or another similar electronic medium) of the Pool
Performance Data (if available) in respect of the Collection Period just
ended in a format similar to that used by other mortgage-backed securities
issuers in the Australian market. The Manager is not liable to any person
in any manner for the acts or omissions of the person nominated by the
Manager for the purposes set out in this clause 27.3.
27.4 Claim for Damages
Where this Deed provides for damages to be payable by the Seller, the
Servicer or the Manager:
(a) (Claim must be in writing): a written notice of a claim for damages
must be provided to the relevant party by the Trustee;
(b) (Claim must specify the amount of damages): such notice must specify
the amount of damages claimed and how such amount has been determined
by reference to the loss incurred as a result of the breach leading to
the claim for damages; and
(c) (Trustee must act on instructions): the Trustee in preparing a notice
in accordance with clauses 27.4(a) and (b) will act on the
instructions of the Manager (in the case of a claim against the Seller
or the Servicer) or take expert advice, if necessary (in the case of a
claim against the Manager).
27.5 Allocation of Damages
If an amount is payable to the Trustee by the Servicer, the Seller or the
Manager for a breach of a representation, warranty or obligation under the
Master Trust Deed or this Deed or for other damages, the Manager will
determine what portion of such amount is to be treated as Other Principal
Amounts and what portion of such amount is to be treated as Other Income
Amounts. On each Determination Date the Manager must notify the Trustee of
its allocation, in accordance with the foregoing, of such payment received
(if any) in the Collection Period just ended.
27.6 Additional Expenses
Pursuant to clause 16.11 of the Master Trust Deed, the Expenses are
incorporated into and form part of the expenses of the Series Trust for
which the Trustee is entitled to be indemnified out of the Assets of the
Series Trust.
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27.7 Form of Transfers and Certificates
For the purposes of the Master Trust Deed insofar as it relates to the
Series Trust:
(a) (Security Certificate): the form of the Security Certificate for A$
Securities is as specified in Schedule 6; and
(b) (Security Transfer): the form of the Security Transfer for A$
Securities is as specified in Schedule 7.
27.8 Incur Costs Without Approval
Pursuant to clause 16.26 of the Master Trust Deed, the Trustee may do
such things, take such actions and incur such expenses without the consent
of the Manager (including the appointment of advisers) as it believes
necessary (acting reasonably) in determining whether a particular event
under the Transaction Documents in relation to the Series Trust is having,
or will have, an Adverse Effect where such determination is a necessary
pre-condition for the Trustee to exercise its rights under any Transaction
Documents.
27.9 Adverse Effect
The Manager and the Servicer acknowledge that:
(a) (Determination without consent): an Adverse Effect may be determined
by the Trustee without the consent of the Manager provided such
determination is a necessary pre-condition of the Trustee exercising
its rights under a Transaction Document;
(b) (Notice): the Trustee is required to determine an Adverse Effect or to
provide the notices referred to in this Deed in respect of a
determination of Adverse Effect only if it is actually aware of the
facts giving rise to the Adverse Effect; and
(c) (Trustee may rely): in making those determinations, the Trustee will
seek and rely conclusively on advice given to it by its advisers in
the manner contemplated in clause 16.6 of the Master Trust Deed.
27.10 Notification to Rating Agencies of Redemption of Securities
The Manager will promptly notify each of the Rating Agencies of the
redemption (or deemed redemption) or discharge in full of a Class of
Securities.
27.11 Further Support Facilities
Upon the termination of a Liquidity Facility Agreement, a Standby Redraw
Facility Agreement or a Hedge Agreement, and subject to clause 29.5 of
this Deed and clause 16.5 of the Master Trust Deed, and without limiting
the Trustee's powers under clause 16 of the Master Trust Deed, the
Trustee as trustee of the Series Trust must if requested by the Manager,
with prior written confirmation from the Rating Agencies that the
following will not result in a reduction, qualification or withdrawal of
the credit ratings then assigned by them to the Securities, enter into a
substitute Liquidity Facility Agreement, Redraw Facility Agreement or
Hedge Agreement (as the case may be) with such parties and upon such terms
as are specified by the Manager.
27.12 Supplementary Trustee Powers
Without limiting the generality of clause 16.1 of the Master Trust Deed
or any other provision of the Master Trust Deed, but subject to the
limitations imposed on the Trustee pursuant to the Master Trust Deed, the
Trustee has full power to do the following (which powers are to be
construed as separate and independent powers):
(a) (Depository): to deliver or lodge the Class A-1 Notes, or arrange for
the Class
105.
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A-1 Notes to be delivered or lodged, with the Depository or its
nominee;
(b) (Payment direction): where a person owes an amount to the Trustee, to
direct that debtor to make that payment to another person on behalf of
the Trustee, including directing payments due in respect of the
Securities to be made to the Securityholders;
(c) (Currency conversion): to convert currencies on such terms and
conditions as the Manager thinks fit and that are acceptable to the
Trustee acting reasonably;
(d) (Stock exchange): to list and maintain the listing of the Class A-1
Notes on any stock exchange;
(e) (Class A-1 Note Trustee): to appoint the Class A-1 Note Trustee;
(f) (Agent Bank): to appoint the Agent Bank;
(g) (Paying Agent): to appoint the Principal Paying Agent and each other
Paying Agent;
(h) (Class A-1 Note Registrar): to appoint the Class A-1 Note Registrar;
and
(i) (Incidental Powers): with the written agreement of the Manager (which
agreement is not to be unreasonably withheld), to do all such things
incidental to or necessary or convenient to be done for, or in
connection with, any of the above powers.
27.13 Trustee's power to delegate
For the purposes of clause 16.4(p) of the Master Trust Deed, and
notwithstanding any limitation contained in the Master Trust Deed the
Trustee may delegate any obligation it has to receive or make payments
denominated in US$ to a Paying Agent notwithstanding that such obligation
may be a material obligation and, in respect of such delegation, but
subject to clause 28.3, the Trustee is not liable for the acts or
omissions of that Paying Agent.
28. LIMITATION OF TRUSTEE'S DUTIES
28.1 Trustee May Rely
(a) (Entitled to rely): The Trustee is entitled to conclusively rely on
(unless actually aware to the contrary) and is not required to
investigate the accuracy of:
(i) (Contents of Sale Notice): the contents of a Sale Notice given
to it by the Seller and any representation as to whether a
Mortgage Loan meets the Eligibility Criteria;
(ii) (Quarterly Certificate): the contents of a Quarterly
Certificate;
(iii) (Calculations): any calculations made by the Seller, the
Servicer or the Manager under this Deed including without
limitation, the calculation of amounts to be paid to, or charged
against, any Securityholder or the Seller on specified dates;
(iv (Collections): the amount of, or allocation of, Collections;
(v) (Certificates): the contents of certificates provided to the
Trustee under this Deed and any certificates given by the
Manager or the Servicer pursuant to the Quarterly Certificate or
otherwise pursuant to subsequent amendments to this Deed or the
Master Trust Deed; and
(vi) (Class A-1 Note Trustee Directions): all directions or
instructions given to it by the Class A-1 Note Trustee in
accordance with the Class A-1 Note Trust Deed.
(b) (Manager Default): The Trustee is not liable for any Manager Default
or Servicer Default or Perfection of Title Event.
106.
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28.2 No Duty to Investigate
The Trustee has no duty, and is under no obligation, to investigate
whether a Servicer Default or a Perfection of Title Event has occurred
other than where it has actual notice that such event has occurred.
28.3 Trustee not Liable
Subject to clause 16.9 of the Master Trust Deed, but notwithstanding any
other provision of the Master Trust Deed or any other Transaction
Document, the Trustee has no liability (other than in its capacity as
trustee of the Series Trust) for any act or omission by a Depository (or
any nominee of a Depository), the Class A-1 Note Trustee, the London Stock
Exchange Limited, the Class A-1 Note Registrar, the Agent Bank or any
Paying Agent except to the extent that act or omission was caused or
contributed to by the Trustee's fraud, negligence or wilful default.
29. TRUSTEE'S LIMITATION OF LIABILITY
29.1 Limitation on Trustee's liability
The Trustee enters into this Deed only in its capacity as trustee of the
Series Trust and in no other capacity. A liability incurred by the Trustee
acting in its capacity as trustee of the Series Trust arising under or in
connection with this Deed is limited to and can be enforced against the
Trustee only to the extent to which it can be satisfied out of Assets of
the Series Trust out of which the Trustee is actually indemnified for the
liability. This limitation of the Trustee's liability applies despite any
other provision of this Deed (other than clause 29.3) 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.
29.2 Claims against Trustee
The parties other than the Trustee may not sue the Trustee in respect of
liabilities incurred by the Trustee, acting in its capacity as trustee of
the Series Trust, in any capacity other than as trustee of the Series
Trust including seeking the appointment of a receiver (except in relation
to the Assets of the Series Trust), or a liquidator, an administrator or
any similar person to the Trustee or prove in any liquidation,
administration or similar arrangements of or affecting the Trustee (except
in relation to the Assets of the Series Trust).
29.3 Breach of trust
The provisions of this clause 29 will not apply to any obligation or
liability of the Trustee to the extent that it is not satisfied because
under the Master Trust Deed, this Deed or any other Transaction Document
in relation to the Series Trust or by operation of law there is a
reduction in the extent of the Trustee's indemnification out of the Assets
of the Series Trust, as a result of the Trustee's fraud, negligence or
wilful default.
29.4 Acts or Omissions
It is acknowledged that the Relevant Parties are responsible under the
Transaction Documents for performing a variety of obligations relating to
the Series Trust. No act or omission of the Trustee (including any related
failure to satisfy its obligations and any breach of representations and
warranties under this Deed) will be considered fraudulent, negligent or a
wilful default for the purpose of clause 29.3 to the extent to which the
act or omission was caused or contributed to by any failure by any
Relevant Party or any other person appointed by the Trustee under a
Transaction Document (other than a person whose acts or omissions the
Trustee is liable for in accordance with any Transaction Document) to
fulfil its obligations relating to the Series Trust or by any other act or
omission of a Relevant Party or any other such person.
107.
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29.5 No obligation
(a) (Obligations under this Deed or any Transaction Document): The Trustee
(both in its capacity as trustee of the Series Trust and trustee of
the CBA Trust) is not obliged to enter into any commitment or
obligation under this Deed or any Transaction Document unless the
Trustee's liability is limited in a manner which is consistent with
this clause 29. The Trustee (both in its capacity as trustee of the
Series Trust and trustee of the CBA Trust) agrees and acknowledges
that its liability for any commitment or obligation it has entered
into under this Deed is limited in a manner which is consistent with
this clause 29.
(b) (Obligations not contained in this Deed or any Transaction Document):
The Trustee (both in its capacity as trustee of the Series Trust and
trustee of the CBA Trust) is not obliged to enter into any commitment
or obligation contemplated by but not contained in this Deed or any
Transaction Document unless the Trustee's liability in relation to
that commitment or obligation is limited in a manner satisfactory to
the Trustee (both in its capacity as trustee of the Series Trust and
trustee of the CBA Trust) in its absolute discretion.
29.6 CBA Trust
Notwithstanding clause 29.1, the Trustee also enters into this Deed in
its capacity as trustee of the CBA Trust. Clauses 29.1 to 29.5
(inclusive) do not apply to the extent, and only to the extent, that the
Trustee enters into this Deed in its capacity as Trustee of the CBA Trust
and has liabilities in relation to the CBA Trust. The Trustee's liability
in relation to the CBA Trust is limited as set out in clause 2.16.
Nothing in this clause 29(f) shall be construed as imposing on the
Trustee any greater liability under this Deed than as is set out in
clauses 29.1 to 29.5 (inclusive) and clause 2.16.
30. CONSUMER CREDIT CODE
30.1 Breach of Consumer Credit Code
Where the Trustee is held liable for breaches under the Consumer Credit
Code, the Trustee must seek relief initially under any indemnities
provided to it by the Manager, the Servicer or the Seller before
exercising its rights to recover against any Assets of the Series Trust.
If any claim under such an indemnity is not satisfied within 3 Business
Days of it being made, the Trustee is entitled to exercise its right of
indemnity out of the Assets of the Series Trust.
30.2 Right of Indemnity - Consumer Credit Code
(a) (Trustee to be indemnified against Penalty Payments): 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 Series Trust, free of any set-off or
counterclaim, against all Penalty Payments which the Trustee is
required to pay personally or in its capacity as trustee of the Series
Trust and arising in connection with the performance of its duties or
exercise of its powers under this Deed in relation to the Series
Trust.
(b) (Indemnity not affected): The Trustee's right to be indemnified in
accordance with clause 30.2(a) applies notwithstanding any allegation
that the Trustee incurred such Penalty Payment as a result of its
negligence, fraud or wilful default or any other act or omission which
may otherwise disentitle the Trustee to be so indemnified. However,
the Trustee is not entitled to that right of indemnity to the extent
that there is a determination by a relevant court of negligence, fraud
or wilful default by the Trustee (provided that, until such
determination, the Trustee is entitled to that right of indemnity but
must, upon such determination, repay to the Series Trust any amount
paid to it under this clause 30.2). The Trustee may rely on others in
relation to compliance with the Consumer Credit Code.
108.
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(c) (Overrides other provisions): This clause 30.2 overrides any other
provision of this Deed.
(d) (Servicer to be credit provider): The Trustee nominates the Servicer
as the credit provider for the purposes of regulation 75 of the
Consumer Credit Code (Western Australia) with respect to Approved
Financial Assets acquired by the Series Trust from the Seller. The
Servicer agrees to be a credit provider for the purposes of regulation
75 of the Consumer Credit Code (Western Australia) in relation to
those Approved Financial Assets.
(e) (Servicer to indemnify prior to a Perfection of Title Event): The
Servicer indemnifies the Trustee in relation to the Series Trust, free
of any set-off or counterclaim, against all Penalty Payments which the
Trustee is required to pay personally or in its capacity as trustee of
the Series Trust and arising in connection with the performance of its
duties or exercise of its powers under this Deed in relation to the
Series Trust where the events giving rise to the Penalty Payment
occurs prior to a Perfection of Title Event.
(f) (Servicer to indemnify after a Perfection of Title Event): The
Servicer indemnifies the Trustee in relation to the Series Trust, free
of any set-off or counterclaim, against all Penalty Payments which the
Trustee is required to pay personally or in its capacity as trustee of
the Series Trust and arising in connection with the performance of its
duties or exercise of its powers under this Deed in relation to the
Series Trust to the extent that they arise as the result of a Servicer
Default (whether or not waived by the Trustee) or any other failure of
the Servicer to comply with its obligations under this Deed or a
Transaction Document where the events giving rise to the Penalty
Payment occur after a Perfection of Title Event.
(g) (Servicer indemnifies first): The Trustee will call upon the indemnity
under paragraph (e) or (f), as the case may be, before it calls upon
the indemnity in paragraph (a). If any such claim is not satisfied
within 3 Business Days of the claim being made, the Trustee may
(without prejudice to its rights under any indemnity under paragraph
(e) or (f)) exercise its right of indemnity referred to in paragraph
(a).
31. NOTICES
31.1 Method of Delivery
Subject to clause 31.3, any notice, request, certificate, approval,
demand, consent or other communication to be given under this Deed:
(a) (Execution): must be signed by an Authorised Officer of the party
giving the same;
(b) (In writing): must be in writing; and
(c) (Delivery): must be:
(i) left at the address of the addressee;
(ii) sent by prepaid ordinary post to the address of the addressee;
or
(iii) sent by facsimile to the facsimile number of the addressee,
notified by that addressee from time to time to the other parties to
this Deed as its address for service pursuant to this Deed.
31.2 Deemed Receipt
A notice, request, certificate, demand, consent or other communication
under this Deed is deemed to have been received:
109.
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(a) (Delivery): where delivered in person, upon receipt;
(b) (Post): where sent by post, on the 3rd (7th if outside Australia) day
after posting; and
(c) (Fax): where sent by facsimile, on production by the dispatching
facsimile machine of a transmission report which indicates that the
facsimile was sent in its entirety to the facsimile number of the
recipient.
However, if the time of deemed receipt of any notice is not before 5.30 pm
local time on a Business Day at the address of the recipient it is deemed
to have been received at the commencement of business on the next Business
Day.
31.3 Notice to Investors
Any notice required or permitted to be given to an Investor pursuant to
this Deed must be given, and will be deemed to be received:
(a) (Residual Unitholder and A$ Securityholder): in the case of notices to
a Residual Unitholder or to a Securityholder in respect of an A$
Security, in accordance with clause 24.4 of the Master Trust Deed;
and
(b) (Class A-1 Noteholder): in the case of notices to a Class A-1
Noteholder, in accordance with condition 11.1 of the Class A-1 Note
Conditions.
32. CONFIDENTIALITY
32.1 General Restriction
Subject to clause 32.2, the Trustee and the Servicer (if not the Seller)
and the Manager (if not a Related Body Corporate of the Seller) must at
all times keep and ensure that its officers, employees, consultants,
advisers and agents keep confidential and not divulge to any person (other
than to any of its officers, employees, consultants, advisers and agents
who require such information to enable them to properly carry out their
duties) or make or cause any public announcement or other disclosure of or
in relation to:
(a) the terms of this Deed or any other Transaction Document (including
any written or oral agreements, negotiations or information in
relation to this Deed); and
(b) any document or information provided to such party under or in
connection with this Deed which is confidential, including without
limitation any information in connection with any Mortgage Loan or any
Borrower,
without the prior written consent of the other parties, which consent may
be given or withheld or given with conditions in their discretion.
32.2 Exceptions
The limitation in clause 32.1 does not apply to the issue by the Manager
of any information memorandum, prospectus or registration statement in
respect of any Securities or to any disclosure or announcement of
information which:
(a) (Law): is required by law;
(b) (Stock Exchange): is required by any stock exchange;
(c) (Legal Proceedings): is in connection with legal proceedings relating
to this Deed, any Transaction Document or any Mortgage Document;
(d) (Information Available): is in respect of information generally and
publicly available (including the electronic reporting of Pool
Performance Data under clause 27.3);
110.
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(e) (Obligations): is required in order for the Trustee, the Servicer or
the Manager, as applicable, to perform its obligations and exercise
its powers under any Transaction Documents or any transactions entered
into as contemplated by the Transaction Documents;
(f) (APRA): is required by the Australian Prudential Regulation Authority
or any replacement prudential authority in connection with its
prudential supervision of banks; or
(g) (Rating Agencies): is reasonably required by a Rating Agency in
connection with its rating of the Securities.
33. MISCELLANEOUS
33.1 Amendments
The parties to this Deed may amend, add to or revoke any provision of this
Deed only in accordance with the provisions of clause 25 of the Master
Trust Deed provided that any amendment, addition or revocation that effects
a Payment Modification (as defined in the Class A-1 Note Trust Deed) may
not be made unless the consent has first been obtained of each Class A-1
Noteholder to such Payment Modification.
33.2 Governing Law
This Deed is governed by the laws of the State of New South Wales.
33.3 Jurisdiction
(a) (Submission to jurisdiction): Each of the Trustee, the Manager, the
Servicer, the Seller, the Residual Unitholder and each Securityholder,
irrevocably submits to and accepts, generally and unconditionally, the
non-exclusive jurisdiction of the courts and appellate courts of the
State of New South Wales with respect to any legal action or
proceedings which may be brought at any time relating in any way to
this Deed.
(b) (Waiver of inconvenient forum): Each of the Trustee, the Manager, the
Servicer, the Seller, the Residual Unitholder and each Noteholder,
irrevocably waives any objection it may now or in the future have to
the venue of any such action or proceedings and any claim it may now
or in the future have that any such action or proceeding has been
brought in an inconvenient forum.
33.4 Notify Rating Agencies
The Trustee and the Manager must promptly notify the Rating Agencies of the
occurrence of any Trustee Default, Manager Default, Servicer Default,
Perfection of Title Event or Document Transfer Event of which they are
aware.
33.5 Severability of Provisions
In the event that any provision of this Deed is prohibited or unenforceable
in any jurisdiction such provision will, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Deed or affecting the
validity or enforceability of such provision in any other jurisdiction.
33.6 Counterparts
This Deed may be executed in any number of counterparts and all of such
counterparts taken together will be deemed to constitute one and the same
instrument.
111.
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33.7 No Revocation of Power of Attorney
Each attorney, by signing this Deed, declares that he or she has not
received any notice of the revocation of the power of attorney under
which he or she signs this Deed.
33.8 Certifications
Any document or thing required to be certified by a party to the Deed
will be certified by an Authorised Officer of that party.
33.9 Payments
All payments hereunder to any party to this Deed will be made to such
account as the party to which such payment is to be made may specify in
writing to the party making such payment.
33.10 Waiver
No waiver by any party of any provision of or right of such party under
this Deed will be effective unless it is in writing signed by an
Authorised Officer of such party and such waiver will be effective only
in the specific instance and for the specific purpose for which it was
given. No failure or delay by any party to exercise any right under this
Deed or to insist on strict compliance by any other party to this Deed
with any obligation under this Deed, and no custom or practice of the
parties at variance with the terms of this Deed, will constitute a waiver
of such party's right to demand exact compliance with this Deed.
33.11 Entire Understanding
Except as specifically stated otherwise in this Deed, this Deed sets
forth the entire understanding of the parties relating to the subject
matter hereof, and all prior understandings, written or oral, are
superseded by this Deed. This Deed may not be modified, amended, waived
or supplemented or assigned except as expressly provided in this Deed.
33.12 Survival of Indemnities
The indemnities contained in this Deed are continuing obligations of the
party giving such indemnity, separate and independent from the other
obligations of such party and will survive the termination of this Deed.
33.13 Successors and Assigns
This Deed will be binding upon and inure to the benefit of the parties to
this Deed and their respective successors and assigns.
33.14 Moratorium Legislation
To the fullest extent permitted by law, the provisions of all existing or
future laws which operate or may operate directly or indirectly to lessen
or otherwise vary the obligations of any party under this Deed or to
delay, curtail or otherwise prevent or prejudicially affect the exercise
by any party of any of its rights, remedies or powers under this Deed are
expressly negatived and excluded.
112.
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SCHEDULE 1
FORM OF SALE NOTICE
To: Perpetual Trustee Company Limited, ACN 000 001 007 (the "Trustee")
Address: Level 3, 39 Hunter Street, Sydney, NSW, 2000
Attention: Manager, Securitisation Services
Copy to:
Securitisation Advisory Services Pty. Limited, ACN 064 133 946 (the "Manager")
Level 8
48 Martin Place
Sydney NSW 2000
Series 2000-1G Medallion Trust
Sale Notice
We refer to the Master Trust Deed (the "Master Trust Deed") dated 8 October 1997
between the Trustee and the Manager, as amended from time to time, and to the
Series Supplement (the "Series Supplement") dated [ ] between
Commonwealth Bank of Australia, ACN 123 123 124 (as Seller and Servicer), the
Manager and the Trustee. Terms defined in the Series Supplement have the same
meaning in this Sale Notice.
This is a Sale Notice pursuant to clause 4.2 of the Series Supplement. The
Seller hereby offers to assign to the Trustee with effect from [ ]
2000 (the "Cut-Off Date"):
(a) each Mortgage Loan identified in the schedule accompanying this Sale
Notice;
(b) the Other Loans entered into from time to time in relation to the above
Mortgage Loans;
(c) the Mortgages in relation to the above Mortgage Loans;
(d) other Mortgages granted from time to time in relation to the above
Mortgage Loans;
(e) all Collateral Securities from time to time in relation to the above
Mortgage Loans;
(f) the Mortgage Receivables from time to time in relation to the above
Mortgage Loans;
(g) the Mortgage Insurance Policies in relation to the above Mortgage Loans
(other than the GEMICO Mortgage Insurance Policy); and
(h) the Mortgage Documents from time to time in relation to the above
Mortgage Loans.
This offer may be accepted by the Trustee only by paying the Consideration to
the Seller on [ ] 2000 (the "Closing Date").
Both the Cut-Off Date and the Closing Date may be altered by the Manager giving
notice to the Trustee and the Seller, no later than 4 Business Days before the
then Closing Date, of the new date that is to be the Cut-Off Date or the Closing
Date (as the case may be). From the close of business on the Business Day which
is 4 Business Days before the then Closing Date neither the Cut-Off Date or the
Closing Date may be amended.
For and on behalf of
Commonwealth Bank of Australia
..................................
113.
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Authorised Officer
Date:
114.
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SCHEDULE 2
FORM OF POWER OF ATTORNEY
(other than for Queensland and Western Australia)
THIS POWER OF ATTORNEY is made on 2000
BY COMMONWEALTH BANK OF AUSTRALIA, ACN 123 123 124 a company incorporated
in the Australian Capital Territory and having an office at Level 8,
48 Martin Place, Sydney, NSW 2000 (the "Seller")
IN FAVOUR OF PERPETUAL TRUSTEE COMPANY LIMITED, ACN 000 001 007, a company
incorporated in the State of New South Wales and having an office at
Level 3, 39 Hunter Street, Sydney, NSW 2000 (the "Trustee").
RECITALS
A. The Trustee is the trustee, and the Manager is the manager, of the Series
Trust constituted pursuant to the Master Trust Deed and the Series
Supplement (as those terms are defined below).
B. Under the Series Supplement, the delivery to the Trustee of this Deed is a
condition of the Seller issuing an offer to assign Mortgage Loans to the
Trustee.
THIS DEED PROVIDES as follows:
1. INTERPRETATION
1.1 Definitions
In this Deed, unless the contrary intention appears:
"Attorney" means any attorney appointed by or pursuant to clause 2 and any
person who derives a right directly or indirectly from an Attorney.
"Master Trust Deed" means the Master Trust Deed dated 8 October 1997
between the Trustee as trustee of the Series Trust and the Manager, as
amended from time to time.
"Series Supplement" means the Series Supplement dated [ ] between
Commonwealth Bank of Australia, ACN 123 123 124 (as Seller and Servicer),
the Manager and the Trustee.
"Mortgage Transfer" in relation to a Mortgage means a duly executed land
titles office transfer which, upon registration, is effective to transfer
the legal title to the Mortgage to the Trustee.
1.2 Interpretation
In this Deed unless the contrary intention appears, the provisions of
clause 1.2 of the Series Supplement apply mutatis mutandis to this Deed as
if set out in this Deed in full.
1.3 Series Supplement
Unless expressly defined in this Deed or a contrary intention appears,
words and expressions used in this Deed have the same meaning as in the
Series Supplement.
2. APPOINTMENT AND POWERS
2.1 Appointment
With effect from the assignment to the Trustee of the Mortgage Loans in
accordance with
115.
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the terms of the Series Supplement, the Seller appoints the Trustee and any
Authorised Officer from time to time of the Trustee jointly and severally
as its attorney with the right, subject to clause 2.2, to do in the name of
the Seller and on its behalf everything necessary or expedient to:
(a) (Mortgage Transfers): in relation to all Mortgage Transfers:
(i) execute, deliver, lodge and register any Mortgage Transfer with
any land titles office of any relevant Australian jurisdiction;
(ii) execute, deliver, lodge and register with any land titles office
of any relevant Australian jurisdiction any other documents
which are referred to in any Mortgage Transfer or which are
ancillary or related to them or contemplated by them;
(iii) execute, deliver, lodge and register with any land titles office
of any relevant Australian jurisdiction any document or perform
any act, matter or thing at its absolute discretion in any way
relating to the Seller's involvement in the transactions
contemplated by any Mortgage Transfer; and
(iv) give effect to the transactions contemplated by any Mortgage
Transfer, including, but not limited to, completing blanks and
making amendments, alterations or additions it considers
necessary or desirable;
(b) (Mortgage Loans): in relation to any Mortgage Loan which is part of
the Assets of the Series Trust, to exercise any rights of the Seller
to vary by notice to the Borrower the rate or amount of any interest
or fees payable by the Borrower under the Mortgage Loan;
(c) (Delegate): delegate any of its rights described in this Deed
(including this right of delegation) to any person upon any terms or
conditions that it thinks fit;
(d) (Sign Documents): sign, seal, deliver and execute and do (either
unconditionally or subject to any conditions that it thinks fit) all
deeds, arrangements, documents and things in respect of any of its
rights described in this Deed; and
(e) (Do Incidental Things): do anything incidental to or conducive to the
effective and expeditious exercise of its rights described in this
Deed.
2.2 Limitation on Exercise of Powers
The power of attorney conferred by clause 2.1 will be exercisable only on
the occurrence of a Perfection of Title Event.
3. CONSIDERATION AND REVOCATION
3.1 Consideration
This Deed is executed by the Seller for good and valuable consideration,
receipt of which the Seller hereby acknowledges.
3.2 Irrevocable without Consent
Except with the prior written consent of an Authorised Officer of each of
the Trustee and the Manager, the power of attorney granted under clause 2.1
of this Deed is irrevocable by the Seller and its successors and assigns.
3.3 No Abrogation
Subject only to revocation in accordance with clause 3.2, this Deed will
remain in full force and effect notwithstanding:
(a) (Insolvency): the occurrence of an Insolvency Event with respect to
the Seller;
116.
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(b) (Amendment): any waiver, replacement, amendment or variation of the
Master Trust Deed or the Series Supplement;
(c) (Delay): any delay, laches, acquiescence, mistake, act or omission by
any Attorney (including, without limitation, any Trustee Default or
Manager Default); or
(d) (Miscellaneous): any other fact, matter, circumstance or thing
whatsoever which, but for this clause 3.3 could or might operate to
prejudice, release or otherwise affect the rights of an Attorney under
this Deed.
4. DELEGATES
4.1 Obligation
Where a delegation is made by an Attorney under clause 2, the following
will apply:
(a) (Vary, suspend etc.): the Attorney may at any time by notice in
writing vary, suspend or revoke a delegation made under clause 2;
(b) (Attorney retains any rights delegated): a right delegated by the
Attorney may continue to be exercised or performed by the Attorney
notwithstanding the delegation of that right;
(c) (Effect of acts delegated): any act or thing done within the scope of
a delegation while the delegation is in force:
(i) has the same effect as if it had been done by the Attorney; and
(ii) will not be invalidated by reason of a later revocation or
variation of the delegation; and
(d) (Opinion of delegate): if the exercise or performance of a right by
the Attorney is dependant upon the opinion, belief or state of mind of
the Attorney in relation to a matter and that right is delegated by
the Attorney, the delegate may, unless the contrary intention appears,
exercise or perform the right based upon his or her own opinion,
belief or state of mind (as the case may require) in relation to the
matter.
4.2 Revocation of nomination
The Trustee may at any time revoke or suspend any appointment of a nominee
or an Attorney pursuant to clause 2.
5. MISCELLANEOUS
5.1 Suspension of Seller's rights
The Seller must not, after being notified in writing by any Attorney that
an Attorney intends to exercise any right conferred on it by this Deed (and
provided that such right is then and remains exercisable), exercise that
right without the written consent of the Trustee.
5.2 Ratification
The Seller will at all times ratify and confirm whatever any Attorney
lawfully does, or causes to be done, in exercising its rights described in
this Deed.
5.3 Conflict of Interest
Any Attorney may exercise any right notwithstanding that it constitutes a
conflict of interest or duty.
117.
<PAGE>
5.4 Seller Bound
The Seller and any person (including, but not limited to, a substitute or
assign) claiming under the Seller are bound by anything an Attorney does in
the lawful exercise of its rights described in this Deed.
5.5 Third party dealings
In respect of dealings by any person in good faith with an Attorney:
(a) (Evidence that power not revoked): that person may accept a written
statement signed by any Attorney to the effect that the power of
attorney granted under this Deed has not been revoked as conclusive
evidence of that fact; and
(b) (No duty to enquire): if the Attorney executes any right granted to it
by this Deed, that person is not bound to enquire as to whether the
right is properly exercised or whether any circumstance has arisen to
authorise the exercise of that right.
5.6 Indemnity
The Seller will indemnify any Attorney from and against all actions, suits,
claims, demands, damages, liabilities, losses, costs and expenses that may
be made or bought against or suffered or incurred by any such Attorney
arising out of or in connection with the lawful exercise of any of its
rights described in this Deed.
5.7 Stamping and Registration
The Seller will, promptly after execution and delivery of this Deed,
properly stamp and register this Deed as required by any applicable law and
the Seller authorises any Attorney to stamp and register this Deed on
behalf of the Seller.
5.8 Costs
All reasonable costs incurred by an Attorney in connection with the
stamping and registration of this Deed in accordance with clause 5.7 will
be paid by the Seller within a reasonable time after demand for payment is
made.
6. GOVERNING LAW
This Deed is governed by and construed in accordance with the laws of the
State of New South Wales and the Seller irrevocably and unconditionally
submits to the non-exclusive jurisdiction of the courts of the State of New
South Wales and any courts of appeal from any of those courts.
EXECUTED as a deed.
THE COMMON SEAL of the )
COMMONWEALTH BANK OF )
AUSTRALIA is affixed in accordance with )
its constitution in the presence of: )
........................................ ...................................
Secretary Director
118.
<PAGE>
SCHEDULE 3
FORM OF POWER OF ATTORNEY
(For Queensland)
THIS POWER OF ATTORNEY is made on 2000
BY COMMONWEALTH BANK OF AUSTRALIA, ACN 123 123 124 a company incorporated
in the Australian Capital Territory and having an office at Level 8,
48 Martin Place, Sydney, NSW 2000 (the "Seller")
IN FAVOUR OF PERPETUAL TRUSTEE COMPANY LIMITED, ACN 000 001 007, a company
incorporated in the State of New South Wales and having an office at
Level 3, 39 Hunter Street, Sydney, NSW 2000 (the "Trustee").
THIS DEED PROVIDES as follows:
1. INTERPRETATION
In this Deed, unless the contrary intention appears:
"Attorney" means any attorney appointed by or pursuant to clause 2 and any
person who derives a right directly or indirectly from an Attorney.
"Authorised Officer" means:
(a) in relation to the Trustee, a director, secretary or any person whose
title contains the word or words "manager" or "chief executive
officer" or a person performing the functions of any of them; and
(b) in relation to the Manager, any person appointed by the Manager to act
as an Authorised Officer of the Manager for the purposes of the Deed.
"Mortgage Transfer" in relation to a mortgage means a duly executed land
titles office transfer which, upon registration, is effective to transfer
the legal title to the mortgage to the Trustee.
2. APPOINTMENT AND POWERS
2.1 Appointment
The Seller appoints the Trustee and any Authorised Officer from time to
time of the Trustee jointly and severally as its attorney with the right,
to do in the name of the Seller and on its behalf everything necessary or
expedient to:
(a) (Mortgage Transfers): In relation to all Mortgage Transfers:
(i) execute, deliver, lodge and register any Mortgage Transfer with
any land titles office of any relevant Australian jurisdiction;
(ii) execute, deliver, lodge and register with any land titles office
of any relevant Australian jurisdiction any other documents
which are referred to in any Mortgage Transfer or which are
ancillary or related to them or contemplated by them;
(iii) execute, deliver, lodge and register with any land titles office
of any relevant Australian jurisdiction any document or perform
any act, matter or thing at its absolute discretion in any way
relating to the Seller's involvement in the transactions
contemplated by any Mortgage Transfer; and
(iv) give effect to the transactions contemplated by any Mortgage
Transfer, including, but not limited to, completing blanks and
making amendments, alterations or additions it considers
necessary or
119.
<PAGE>
desirable;
(b) (Mortgage Loans): in relation to any mortgage loan which is an asset
of the Seller, to exercise any rights of the Seller to vary by notice
to the borrower with respect to the mortgage loan the rate or amount
of any interest or fees payable by that borrower under the mortgage
loan;
(c) (Delegate): delegate any of its rights described in this Deed
(including this right of delegation) to any person upon any terms or
conditions that it thinks fit;
(d) (Sign Documents): sign, seal, deliver and execute and do (either
unconditionally or subject to any conditions that it thinks fit) all
deeds, arrangements, documents and things in respect of any of its
rights described in this Deed; and
(e) (Do Incidental Things): do anything incidental to or conducive to the
effective and expeditious exercise of its rights described in this
Deed.
3. CONSIDERATION AND REVOCATION
3.1 Consideration
The Seller acknowledges that it has received good and valuable
consideration for the grant of this Deed.
3.2 Irrevocable without Consent
Except with the prior written consent of an Authorised Officer of each of
the Trustee and the Manager, the power of attorney granted under clause 2.1
of this Deed is irrevocable by the Seller and its successors and assigns.
3.3 No Abrogation
Subject only to revocation in accordance with clause 3.2, this Deed will
remain in full force and effect notwithstanding:
(a) (Insolvency): the insolvency of, or the occurrence of any other
analogous event with respect to, the Seller;
(b) (Amendment): any waiver, replacement, amendment or variation of any
document (with or without the consent of the Seller);
(c) (Delay): any delay, laches, acquiescence, mistake, act or omission
(including, without limitation, any default by the Manager or Trustee
of any obligation that either owes to any person) by any Attorney; or
(d) (Miscellaneous): any other fact, matter, circumstance or thing
whatsoever which, but for this clause, could or might operate to
prejudice, release or otherwise affect the rights of an Attorney under
this Deed.
4. DELEGATES
4.1 Obligation
Where a delegation is made by an Attorney under clause 2, the following
will apply:
(a) (Vary, suspend etc.): the Attorney may at any time by notice in
writing vary, suspend or revoke a delegation made under clause 2;
(b) (Attorney retains any rights delegated): a right delegated by the
Attorney may continue to be exercised or performed by the Attorney
notwithstanding the delegation of that right;
120.
<PAGE>
(c) (Effect of acts delegated): any act or thing done within the scope of
a delegation while the delegation is in force:
(i) has the same effect as if it had been done by the Attorney; and
(ii) will not be invalidated by reason of a later revocation or
variation of the delegation; and
(d) (Opinion of delegate): if the exercise or performance of a right by
the Attorney is dependant upon the opinion, belief or state of mind of
the Attorney in relation to a matter and that right is delegated by
the Attorney, the delegate may, unless the contrary intention appears,
exercise or perform the right based upon his or her own opinion,
belief or state of mind (as the case may require) in relation to the
matter.
4.2 Revocation of nomination
The Trustee may at any time revoke or suspend any appointment of a nominee
or an Attorney pursuant to clause 2.
5. MISCELLANEOUS
5.1 Suspension of Seller's rights
The Seller must not, after being notified in writing by any Attorney that
an Attorney intends to exercise any right conferred on it by this Deed (and
provided that such right is then and remains exercisable), exercise that
right without the written consent of the Trustee.
5.2 Ratification
The Seller will at all times ratify and confirm whatever any Attorney
lawfully does, or causes to be done, in exercising its rights described in
this Deed.
5.3 Conflict of Interest
Any Attorney may exercise any right notwithstanding that it constitutes a
conflict of interest or duty.
5.4 Seller Bound
The Seller and any person (including, but not limited to, a substitute or
assign) claiming under the Seller are bound by anything an Attorney does in
the lawful exercise of its rights described in this Deed.
5.5 Third party dealings
In respect of dealings by any person in good faith with an Attorney:
(a) (Evidence that power not revoked): that person may accept a written
statement signed by any Attorney to the effect that the power of
attorney granted under this Deed has not been revoked as conclusive
evidence of that fact; and
(b) (No duty to enquire): if the Attorney executes any right granted to it
by this Deed, that person is not bound to enquire as to whether the
right is properly exercised or whether any circumstance has arisen to
authorise the exercise of that right.
5.6 Indemnity
The Seller will indemnify any Attorney from and against all actions, suits,
claims, demands, damages, liabilities, losses, costs and expenses that may
be made or bought against or suffered or incurred by any such Attorney
arising out of or in connection with
121.
<PAGE>
the lawful exercise of any of its rights described in this Deed.
5.7 Stamping and Registration
The Seller will, promptly after execution and delivery of this Deed,
properly stamp and register this Deed as required by any applicable law and
the Seller authorises any Attorney to stamp and register this Deed on
behalf of the Seller.
5.8 Costs
All reasonable costs incurred by an Attorney in connection with the
stamping and registration of this Deed in accordance with clause 5.7 will
be paid by the Seller within a reasonable time after demand for payment is
made.
6. GOVERNING LAW
This Deed is governed by and construed in accordance with the laws of the
State of New South Wales and the Seller irrevocably and unconditionally
submits to the non-exclusive jurisdiction of the courts of the State of New
South Wales and any courts of appeal from any of those courts.
EXECUTED as a deed.
THE COMMON SEAL of the )
COMMONWEALTH BANK OF )
AUSTRALIA is affixed in accordance with )
its constitution in the presence of: )
........................................ ...................................
Secretary Director
122.
<PAGE>
SCHEDULE 4
FORM OF POWER OF ATTORNEY
(For Western Australia)
THIS POWER OF ATTORNEY is made on 2000
BY COMMONWEALTH BANK OF AUSTRALIA, ACN 123 123 124, a company
incorporated in the Australian Capital Territory and having an office
at Level 8, 48 Martin Place, Sydney, NSW 2000 (the "Grantor")
IN FAVOUR OF PERPETUAL TRUSTEE COMPANY LIMITED, ACN 000 001 007, a company
incorporated in the State of New South Wales and having an office at
Level 3, 39 Hunter Street, Sydney, NSW 2000 (the "Grantee").
THIS DEED PROVIDES as follows:
1. INTERPRETATION
In this Deed, unless the contrary intention appears:
"Attorney" means any attorney appointed by or pursuant to clause 2.
"Authorised Officer" means:
(a) in relation to the Grantee, a director, secretary or any person whose
title contains the word or words "manager" or "chief executive
officer" or a person performing the functions of any of them; and
(b) in relation to the Manager, any person appointed by the Manager to act
as an Authorised Officer of the Manager for the purposes of this Deed.
"Manager" means Securitisation Advisory Services Pty. Limited, ACN 064 133
946.
"Mortgage" means a mortgage over real property, located in the State of
Western Australia and registered under the Transfer of Land Act 1893, which
is granted in favour of the Grantor and in which the Grantee has equitable
title.
"Mortgage Transfer" in relation to a mortgage means a duly executed land
titles office transfer in respect of a Mortgage which, upon registration,
is effective to transfer the legal title to the Mortgage to the Grantee.
2. APPOINTMENT AND POWERS
2.1 Appointment
The Grantor appoints the Grantee as its attorney with the right, to do in
the name of the Grantor and on its behalf everything necessary or expedient
to:
(a) (Mortgage Transfers):
(i) sell or transfer legal title in all or any Mortgages to the
Grantee;
(ii) execute, deliver, lodge and register any Mortgage Transfer with
any land titles office of any relevant Australian jurisdiction;
(iii) execute, deliver, lodge and register with any land titles
office of any relevant Australian jurisdiction any other
documents which are referred to in any Mortgage Transfer or
which are ancillary or related to them or contemplated by them;
123.
<PAGE>
(iv) execute, deliver, lodge and register with any land titles
office of any relevant Australian jurisdiction any document or
perform any act, matter or thing at its absolute discretion in
any way relating to the Grantor's involvement in the
transactions contemplated by any Mortgage Transfer; and
(v) give effect to the transactions contemplated by any Mortgage
Transfer, including, but not limited to, completing blanks and
making amendments, alterations or additions it considers
necessary or desirable;
(b) (Sign Documents): sign, seal, deliver and execute and do (either
unconditionally or subject to any conditions that it thinks fit) all
deeds, arrangements, documents and things in respect of any of its
rights described in this Deed;
(c) (Determine interest rates): determine the interest rate to be charged
on the mortgages which are the subject of any Mortgage Transfer; and
(d) (Do Incidental Things): do anything incidental to or conducive to the
effective and expeditious exercise of its rights described in this
Deed.
3. CONSIDERATION AND REVOCATION
3.1 Consideration
The power of attorney granted under this Deed has been granted to secure a
proprietary interest of the Grantee in the Mortgages the subject of the
Mortgage Transfers and is given by the Grantor for good and valuable
consideration, receipt of which the Grantor hereby acknowledges.
3.2 Irrevocable without Consent
Except with the prior written consent of an Authorised Officer of each of
the Grantee and the Manager, the power of attorney granted under clause 2.1
of this Deed is irrevocable by the Grantor and its successors and assigns.
3.3 No Abrogation
Subject only to revocation in accordance with clause 3.2, this Deed will
remain in full force and effect notwithstanding:
(a) (Insolvency): the insolvency of, or the occurrence of any other
analogous event with respect to, the Grantor;
(b) (Amendment): any waiver, replacement, amendment or variation of any
document (with or without the consent of the Grantor);
(c) (Delay): any delay, laches, acquiescence, mistake, act or omission
(including, without limitation, any default by the Manager or Grantee
of any obligation that either owes to any person) by any Attorney; or
(d) (Miscellaneous): any other fact, matter, circumstance or thing
whatsoever which, but for this clause, could or might operate to
prejudice, release or otherwise affect the rights of an Attorney under
this Deed.
4. MISCELLANEOUS
4.1 Appointment of Sub-Attorneys
An Attorney may appoint from time to time any person or corporation as a
sub-attorney for any of the purposes of and with any of the powers and
authorities conferred by this Deed.
124.
<PAGE>
4.2 Ratification
The Grantor will at all times ratify and confirm whatever any Attorney or
sub-attorney lawfully does, or causes to be done, in exercising its rights
described in this Deed.
4.3 Conflict of Interest
Any Attorney or sub-attorney may exercise any right notwithstanding that it
constitutes a conflict of interest or duty.
4.4 Grantor Bound
The Grantor and any person (including, but not limited to, a substitute or
assign) claiming under the Grantor are bound by anything an Attorney or
sub-attorney does in the lawful exercise of its rights described in this
Deed.
4.5 Suspension of Grantor's rights
The Grantor must not, after being notified in writing by any Attorney or
sub-attorney that the Attorney or sub-attorney (as the case may be) intends
to exercise any right conferred on it by this Deed (and provided that such
right is then and remains exercisable), exercise that right without the
written consent of the Attorney or sub-attorney (as the case may be).
4.6 Third party dealings
In respect of dealings by any person in good faith with an Attorney or sub-
attorney:
(a) (Evidence that power not revoked): that person may accept a written
statement signed by any Attorney or sub-attorney (as the case may be)
to the effect that the power of attorney granted under this Deed has
not been revoked as conclusive evidence of that fact; and
(b) (No duty to enquire): if the Attorney or sub-attorney (as the case may
be) executes any right granted to it by this Deed, that person is not
bound to enquire as to whether the right is properly exercised or
whether any circumstance has arisen to authorise the exercise of that
right.
4.7 Indemnity
The Grantor will indemnify any Attorney and sub-attorney from and against
all actions, suits, claims, demands, damages, liabilities, losses, costs
and expenses that may be made or bought against or suffered or incurred by,
any Attorney or sub-attorney, arising out of or in connection with the
lawful exercise of any of its rights described in this Deed.
4.8 Stamping and Registration
The Grantor will, promptly after execution and delivery of this Deed,
properly stamp and register this Deed as required by any applicable law and
the Grantor authorises any Attorney to stamp and register this Deed on
behalf of the Grantor.
4.9 Costs
All reasonable costs incurred by an Attorney in connection with the
stamping and registration of this Deed in accordance with clause 4.8 will
be paid by the Grantor within a reasonable time after demand for payment is
made.
5. GOVERNING LAW
This Deed is governed by and construed in accordance with the laws of New
South Wales and the Grantor irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the courts of New South Wales and any courts
of appeal from any of those courts.
125.
<PAGE>
EXECUTED as a deed.
THE COMMON SEAL of the )
COMMONWEALTH BANK OF )
AUSTRALIA is affixed in accordance with )
its constitution in the presence of: )
...................................... ...................................
Secretary Director
126.
<PAGE>
SCHEDULE 5
ELIGIBILITY CRITERIA
Eligibility Criteria in relation to a Mortgage Loan means the following
standards:
. that the Mortgage Loan has a Loan to Value Ratio (based on the position
as at the commencement of business on the Cut-Off Date) of less than or
equal to 95%;
. that the Mortgage Loan has a stated term to maturity as at the Cut-Off
Date not exceeding 30 years;
. that the Mortgage Loan was originated on or after 1 November 1996;
. that the Mortgage Loan as at the Cut-Off Date has a Scheduled Balance of
less than or equal to A$750,000;
. that the Mortgage Loan is sourced from the Seller's mortgage loan
portfolio;
. that the Borrower under the Mortgage Loan is not an employee of the
Seller who is paying a concessional rate of interest under the Mortgage
Loan as a result of such employment;
. that the Mortgage Loan was advanced in, and is repayable in, Australian
dollars;
. that as at the Cut-Off Date no payment due from the Borrower under the
Mortgage Loan is in arrears by more than 30 days;
. that the Mortgage Loan is secured by a Mortgage over Land which has
erected on or within it a residential dwelling or unit and the terms of
that Mortgage require that dwelling or unit to be insured under an
Insurance Policy;
. that the Mortgage Loan is not a loan of a type with only interest
payable during the term and with a "bullet" repayment of all principal at
the end of its term; and
. that the Mortgage Loan is or has been fully drawn.
127.
<PAGE>
SCHEDULE 6
FORM OF SECURITY CERTIFICATE
A$ SECURITIES
......................................................................
THE A$ SECURITIES HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933 AS AMENDED (THE "SECURITIES ACT") AND MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, US PERSONS EXCEPT IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT
OR PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. TERMS USED IN THIS PARAGRAPH HAVE THE MEANING GIVEN TO THEM BY REGULATION
S UNDER THE SECURITIES ACT.
......................................................................
SERIES 2000-1G MEDALLION TRUST
CERTIFICATE NUMBER/S [ ]
Perpetual Trustee Company Limited
ACN 000 001 007
(the "Trustee")
Securitisation Advisory Services Pty. Limited
ACN 064 133 946
(the "Manager")
THIS IS TO CERTIFY THAT:
Securityholder: [ ]
ACN [ ]
(the "Securityholder")
ADDRESS: [ ]
appears in the Register as the holder of the A$ Securities specified below (the
"A$ Securities") issued by the Trustee as trustee of the Series 2000-1G
Medallion Trust (the "Series Trust") as constituted by a Master Trust Deed (the
"Master Trust Deed") dated 8 October 1997 between the Manager and the Trustee,
as amended from time to time, and a Series Supplement (the "Series Supplement")
dated [ ] between Commonwealth Bank of Australia, ACN 123 123 124, (as
Seller and Servicer) (the "Bank"), the Manager and the Trustee.
Unless defined in this Security Certificate or a contrary intention appears,
words and expressions used in this Security Certificate have the same meaning as
in the Series Supplement.
The Securityholder was entered on the Register as holder of the A$ Securities
described below at [ ] on [ ].
Date of Issue:
Class of A$ Security: [Class A-2 Note/Class B Note/Redraw Bond]
Numbers of A$ Securities: [ ] to [ ], inclusive
Scheduled Maturity Date of each A$ Security:
Face Value of each A$ Security:
Interest Rate of each A$ Security:
Interest Payment Dates of each A$ Security:
[A tax file number has/has not been obtained from the person named above.]
The A$ Securities are issued and held subject to the provisions of the Master
Trust Deed, the Series Supplement and a
128.
<PAGE>
Security Trust Deed (the "Security Trust Deed") dated [ ] between the
Manager, the Trustee, the Bank of New York, London Branch, and P.T. Limited, ACN
004 454 666 (as Security Trustee). A copy of the Security Trust Deed, the Master
Trust Deed and the Series Supplement are available for inspection by
Securityholders at the offices of the Trustee at Level 3, 39 Hunter Street,
Sydney, NSW, 2000.
Neither the Manager nor the Trustee is under any obligation at any time to
repurchase any A$ Securities from Securityholders.
This Security Certificate is not a Certificate of Title and the Register on
which these A$ Securities are registered is the only conclusive evidence of the
title of the abovementioned person to the A$ Securities.
The Trustee issues this Security Certificate only in its role as trustee of the
Series Trust. Any obligation or liability of the Trustee arising under or in
any way connected with the Series Trust under the Master Trust Deed, the Series
Supplement or any other Transaction Document (including any A$ Security) to
which the Trustee is a party is limited to the extent to which it can be
satisfied out of the Assets of the Series Trust out of which the Trustee is
actually indemnified for the obligation or liability. This limitation will not
apply to any obligation or liability of the Trustee only to the extent that it
is not so satisfied because of any fraud, negligence or wilful default on the
part of the Trustee. The Trustee will have no liability for any act or omission
of the Manager or of any other person (other than a person whose acts or
omissions the Trustee is liable for in accordance with any Transaction
Document).
Transfers of the A$ Securities must be pursuant to a Security Transfer as set
out in Schedule 6 to the Series Supplement. Copies of Security Transfers are
available from the Trustee at the abovementioned address. Executed Security
Transfers must be lodged with the Trustee accompanied by this Security
Certificate.
None of the Manager, the Seller, the Servicer, the Bank, any other member of the
Bank group or the Trustee guarantees the payment or repayment of any
Securityholder Entitlements in respect of the A$ Securities.
The A$ Securities do not represent deposits or other liabilities of the Manager,
the Seller, the Servicer, the Bank or any other Related Body Corporate of the
Bank. The holding of the A$ Securities is subject to investment risk, including
possible delays in payment and loss of income and principal invested. None of
the Manager, the Seller, the Servicer, the Bank or any other Related Body
Corporate of the Bank stand in any way behind the capital value and/or
performance of the A$ Securities, or the Assets held by the Series Trust.
Dated:
For and on behalf of
Perpetual Trustee Company Limited
.................................... ....................................
Authorised Officer Authorised Officer
129.
<PAGE>
SCHEDULE 7
FORM OF SECURITY TRANSFER
-------------
TO: Perpetual Trustee Company Limited, Registry Date Lodged
ACN 000 001 007 Use / /
(the "Trustee") Only
-------------
___________________________________
TRANSFEROR (the
"Transferor")
___________________________________
(Full Name, ACN (if applicable)
and Address)
___________________________________
(Please Print)
___________________________________
HEREBY APPLIES TO ASSIGN TO
___________________________________
TRANSFEREE (the
"Transferee")
___________________________________
(Full Name, ACN (if applicable)
and Address)
___________________________________
(Please Print)
___________________________________
___________________________________
the following securities (the "A$ Securities") issued by the Trustee as trustee
of the Series 2000-1G Medallion Trust (the "Series Trust"):
Date of Issue:
Class of A$ Security: [Class A-2 Note/Class B Note/Redraw Bond]
Numbers of A$ Securities: [] to [], inclusive
Face Value of each A$ Security:
Interest Payment Dates of each A$ Security:
Scheduled Maturity Date of each A$ Security: / /
and all the Transferor's property and interest in the same [and to the interest
accrued thereon.]
-------------------
Settlement Amount
$
-------------------
TRANSFEROR ____________________________________________
Signature Authorised Signatory
(See notes below) ____________________________________________
WITNESS _______________________________________ Date / /
TRANSFEREE _____________________________________________
Signature: Authorised Officer
(See notes below)
WITNESS _______________________________________ Date / /
PAYMENTS
(tick where appropriate)
130.
<PAGE>
------------------------------------------------------------------------
[_] In accordance with existing instructions (existing holders only)
[_] By cheque posted to above address
[_] By crediting the following account in Australia and in the name of
the Trustee only
------------------------------------------------------------------------
Name of Account Account No.
------------------------------------------------------------------------
Name of Financial Institution Branch
[_] Bank
[_] Building Society
------------------------------------------------------------------------
Tax File Number (if applicable):
------------------------------------------------------------------------
Authorised Officer of Transferee ________________________________ Date: / /
NOTES:
. The Transferor and the Transferee acknowledge that the transfer of the A$
Securities specified in this Security Transfer only takes effect on the
entry of the Transferee's name in the Register as the registered owner of
the A$ Securities.
. The Transferee agrees to accept the A$ Securities subject to the
provisions of a Master Trust Deed (the "Master Trust Deed") dated 8 October
1997 between Securitisation Advisory Services Pty. Limited, ACN 064 133 946
(the "Manager") and the Trustee, as amended from time to time, a Series
Supplement (the "Series Supplement") dated [ ] between
Commonwealth Bank of Australia, ACN 123 123 124 (as Seller and Servicer)
(the "Bank"), the Manager and the Trustee (as trustee of the Series Trust)
and a Security Trust Deed (the "Security Trust Deed") dated [ ]
between the Trustee as trustee of the Series Trust, the Manager, the Bank
of New York, London Branch, and P.T. Limited, ACN 004 454 666, as Security
Trustee.
. Unless expressly defined in this Security Transfer or a contrary intention
appears, words and expressions used in this Security Transfer have the same
meaning as in the Series Supplement.
. The Transferee acknowledges that it has independently and without reliance
on the Trustee, the Manager, the Seller, the Servicer, the Bank or any
other Related Body Corporate of the Bank (including without reliance on any
materials prepared or distributed by any of the foregoing) made its own
assessment and investigations regarding its investment in the A$
Securities.
. The Transferee acknowledges that:
(i) the A$ Securities do not represent deposits or other liabilities of
the Seller, the Servicer, the Bank, any other Related Body Corporate
of the Bank or the Manager;
(ii) the holding of the A$ Securities is subject to investment risk,
including possible delays in payment and loss of income and
principal invested; and
(iii) none of the Manager, the Seller, the Servicer, the Bank or, any
other Related Body Corporate of the Bank stand in any way behind the
capital value and/or performance of the A$ Securities or the assets
held by the Series Trust.
. The Trustee issues the A$ Securities only in its role as trustee of the
Series Trust. Any obligation or liability of the Trustee arising under or
in any way connected with the Series Trust under the Master Trust Deed, the
Series Supplement or any other Transaction Document (including any A$
Security) to which the Trustee is a party is limited to the extent to which
it can be satisfied out of the Assets of the Series Trust out of which the
Trustee is actually indemnified for the obligation or liability. This
limitation will not apply to any obligation or liability of the Trustee
only to the extent that it is not so satisfied because of any fraud,
negligence or wilful default on the part of the Trustee. The Trustee will
have no liability for any act or omission of the Manager or of any other
person (other than a person whose acts or omissions the Trustee is liable
for in accordance with any Transaction Document).
. Where the Transferor and/or the Transferee is a trustee, this Security
Transfer must be completed in the name of the trustee and signed by the
trustee without reference to the trust.
. Where this Transfer is executed by a corporation, it must be executed
either under common seal or under a power of attorney.
. If this Security Transfer is signed under a power of attorney, the
attorney hereby certifies that it has not received notice of revocation of
that power of attorney. A certified copy of the power of attorney must be
lodged with this Security Transfer.
. This Security Transfer must be lodged with the Trustee for registration,
accompanied by the Security Certificate to which the A$ Securities relate.
131.
<PAGE>
. The Register will be closed from 4.30 pm on the Business Day which is
prior to, and will be re-opened at the commencement of business on each
Distribution Date. The Trustee may with prior notice given in the manner
specified in the Master Trust Deed, close the Register at other times. The
total period that the Register may be closed will not exceed 35 Business
Days (or such other period agreed to by the Manager) in aggregate in any
calendar year. No Security Transfer received after 4.30pm on the day of
closure of the Register or while the Register is closed, will be registered
until the Register is re-opened.
. [If the Transferee is a non-resident for Australian taxation purposes,
withholding tax will be deducted from all interest payments unless an
exemption is provided to the Trustee.]
. A Securityholder is only entitled to transfer an A$ Security if:
(a) the offer of the A$ Security for sale, or the invitation to purchase
the A$ Security, to the proposed transferee by the Securityholder is
an offer or invitation that does not need disclosure to investors
under Part 6D.2 of Chapter 6 of the Corporations Law and otherwise
complies with the Corporations Law; and
(b) the transfer would not otherwise breach any restriction on transfer
for the A$ Security contained in the Series Supplement.
. The A$ Securities covered hereby have not been registered under the United
States Securities Act of 1933 as amended (the "Securities Act") and may not
be offered and sold within the United States or to or for the account or
benefit of United States persons:
(a) as part of their distribution at any time; or
(b) otherwise until 40 days after the completion of the distribution of the
A$ Securities, as determined and certified by the Co-Managers (as that
term is defined in the Dealer Agreement),
except in either case in accordance with Regulation S under the Securities
Act. Terms used above have the meanings given to them by Regulation S.
[Marking where clause 10.16 of the Master Trust Deed applies:]
The Trustee hereby certifies that the Transferor is noted in the Register as the
holder of A$ Securities specified in this Security Transfer and that it will not
register any transfer of such A$ Securities other than pursuant to this Security
Transfer before [insert date].
Dated:
For and on behalf of
Perpetual Trustee Company Limited
.................................. ..................................
Authorised Officer Authorised Officer]
132.
<PAGE>
SCHEDULE 8
QUARTERLY CERTIFICATE
Quarterly Summary Distribution Details
Reporting Dates
- ---------------
Closing Date
Determination Date
Notice Date
Distribution Date
Start Accrual Period
No. of Days in Collection Period
<TABLE>
<CAPTION>
Securities on Issue No. of Certificates Initial Invested Initial Invested Amount
- ------------------- ------------------- ---------------- -----------------------
Amount (US$) (A$)
------------ ----
<S> <C> <C> <C>
Class A-1 Notes
Class A-2 Notes
Class B Notes
Redraw Bond - Series 1
Redraw Bond - Series 2
US$/A$ exchange rate at issue
- -------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
Interest Rate for Accrual Period Bank Bill Rate Interest Margin Interest Rate
- ---------------------------------- -------------- --------------- -------------
<S> <C> <C> <C>
Class A-1 Notes (payable to
Currency Swap Providers)
Class A-2 Notes
Class B Notes
Redraw Bond - Series 1
Redraw Bond - Series 2
BBSW Interest & Unpaid Interest
Rate for Accrual Period
Facilities BBSW
- ----------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
Distributions Payable On Distribution Date Per Cert. Aggregate
- -------------------------------------------- --------- ---------
<S> <C> <C>
Total Interest Amount:
Class A-1 Notes
Class A-2 Notes
Class B Notes
Redraw Bond - series 1
Redraw Bond - series 2
- ------------------------------------------------------------------
Principal:
Class A-1 Notes
Class A-2 Notes
Class B Notes
Redraw Bond - Series 1
Redraw Bond - Series 2
Total:
Class A-1 Notes
Class A-2 Notes
Class B Notes
Redraw Bond - series 1
Redraw Bond - series 2
Total
- ------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
Pool Factors Last Distribution Date Current Distribution Date
- ------------ ---------------------- -------------------------
<S> <C> <C>
Class A-1 Notes
Class A-2 Notes
Class B Notes
Redraw Bond - series 1
Redraw Bond - series 2
- ---------------------------------------------------------------------------------
</TABLE>
133
<PAGE>
Quarterly Cashflow Working Sheet Per Certificate $ Aggregate $
- --------------------------------
Finance Charge Collections
Finance Charge Collections - Repurchases
Finance Charge Damages
Income due to Seller
Other Income
Preliminary Income Amount
Taxes
Trustee Fee
Security Trustee Fee
Manager Fee
Servicing Fee
Liquidity Commitment Fee
Redraw Commitment Fee
Support Facility Payments
Support Facility Receipts
Expenses
Previous Unpaid Facility Int Chg - Liquidity
Liquidity Interest Charge + Previous Unpaid
Previous Unpaid Facility Int Chg - Redraw Facility
Redraw Interest Charge + Previous Unpaid
Repayment of Liquidity Facility
Total Interest Amount - Class A-1 Notes
- Class A-2 Notes
- Class B Notes
- Redraw Bonds - Series 1
- Redraw Bonds - Series 2
Required Income Amount
Income Shortfall
Liquidity Facility Draw
Principal Chargeoff Unreimbursement
Principal Chargeoff
Total Principal Chargeoff Reimbursement Due
Payment Allocation Cascade
- --------------------------
Preliminary Income Amount
Liquidity Facility Draw
Available Income Amount
Due Available Paid
Taxes
Trustee Fee
Security Trustee Fee
Manager Fee
Servicing Fee
Liquidity Commitment Fee
Redraw Commitment Fee
Support Facility Payments
Support Facility Receipts
134
<PAGE>
Expenses
Liquidity Interest Charge
Repayment of Liquidity Facility
- --------------------------------------------------------
Interest Amount Payable - Redraw Facility
- Class A-1 Notes
- Class A-2 Notes
- Redraw Bonds - Series 1
- Redraw Bonds - Series 2
- --------------------------------------------------------
- Class B Notes
Total Principal Chargeoff Reimbursement
Excess Distribution
Unpaid Facility Int Chg - Liquidity
- Redraw
Unpaid Security Interest Amount
- Class A-1 Notes
- Class A-2 Notes
- Class B Notes
- Redraw Bonds - Series 1
- Redraw Bonds - Series 2
Facilities Outstanding
- ----------------------
Liquidity Commitment Facility Limit
Beginning Liquidity Commitment Facility
Previous Liquidity Facility Draw
Repayment of Liquidity Facility
Liquidity Facility Draw
Ending Liquidity Commitment Facility
Redraw Commitment Facility Limit
Beginning Redraw Commitment Facility
Previous Redraw Facility Draw
Previous Redraw Facility Draw - Chargeoffs
Repayment of Redraw Facility
Repayment of Unreimbursed Chargeoffs
Redraw Facility Draw - Unreimbursed Chargeoffs
Redraw Facility Available to Draw
Redraw Facility Draw
Ending Redraw Commitment Facility
Interest and Principal Distribution Worksheet Per Certificate Aggregate
- --------------------------------------------- $ $
Interest Amount
- ---------------
Class A-1 Notes
Unpaid Security Interest Amount (after last Distribution Date)
Interest on Unpaid Security Interest Amount
Security Interest Amount
Total Interest Amount
Unpaid Security Interest Amount (after last Distribution Date)
Interest on Unpaid Security Interest Amount
Security Interest Amount
Interest Amount Payable
Unpaid Security Interest Amount
135
<PAGE>
Class A-2 Notes
Unpaid Security Interest Amount (after last Distribution Date)
Interest on Unpaid Security Interest Amount
Security Interest Amount
Total Interest Amount
Unpaid Security Interest Amount (after last Distribution Date)
Interest on Unpaid Security Interest Amount
Security Interest Amount
Interest Amount Payable
Unpaid Security Interest Amount
Class B Notes
Unpaid Security Interest Amount (after last Distribution Date)
Interest on Unpaid Security Interest Amount
Security Interest Amount
Total Interest
Unpaid Security Interest Amount (after last Distribution Date)
Interest on Unpaid Security Interest Amount
Security Interest Amount
Interest Amount Payable
Unpaid Security Interest Amount
Redraw Bonds - Series 1
Unpaid Security Interest Amount (after last Distribution Date)
Interest on Unpaid Security Interest Amount
Security Interest Amount
Total Interest Amount
Unpaid Security Interest Amount (after last Distribution Date)
Interest on Unpaid Security Interest Amount
Security Interest Amount
Interest Amount Payable
Unpaid Security Interest Amount
Redraw Bonds - Series 2
Unpaid Security Interest Amount (after last Distribution Date)
Interest on Unpaid Security Interest Amount
Security Interest Amount
Total Interest Amount
Unpaid Security Interest Amount (after last Distribution Date)
Interest on Unpaid Security Interest Amount
Security Interest Amount
Interest Amount Payable
Unpaid Security Interest Amount
136
<PAGE>
Principal Amount
Principal Collections
Principal Collections - Repurchases
less Repayment of Redraw Facility
less Total Customer Redraw
plus Redraw Facility Draw
plus Redraw Bonds Issue this month
Aggregate Principal Damages from Seller & Servicer
Principal Chargeoff Reimbursement - Class B Notes
- Class A-1 Notes
- Class A-2 Notes
- Redraw Bonds - Series 1
- Redraw Bonds - Series 2
- Redraw Facility
Principal rounding b/f
Scheduled Principal Amount
Scheduled Principal Amount less redraws
Unscheduled Principal Amount - Partial Prepayment
Unscheduled Principal Amount - Full Prepayment
Unscheduled Principal Amount - less redraws + C/O Reim
Total Available Principal Amount for Redraw Bonds
Principal Distribution - Redraw Bonds - Series 1
Principal Distribution - Redraw Bonds - Series 2
Principal rounding b/f
Total Unscheduled Principal Amount
Total Scheduled Principal Amount
Total Available Principal Amount for Notes
Principal Allocation
Class A Percentage via Stepdown
Class A Available Principal Payment
Class A-1 Principal Payment
Class A-2 Principal Payment
Class B Principal Payment
Principal rounding c/f
Principal Losses
Principal Losses
Principal Draw Amount - Pool Mortgage Insurance Policy
Principal Draw Amount - Individual Mortgage Insurance Policy
Net Principal Losses
Principal Chargeoff - Class B Notes
- Class A-1 Notes
- Class A-2 Notes
- Redraw Bonds Series 1
- Redraw Bonds Series 2
- Redraw Facility
137
<PAGE>
Class A-1 Notes
Beginning Unreimbursed Principal Chargeoffs
Principal Chargeoff
Principal Chargeoff Reimbursement
Ending Unreimbursed Principal Chargeoffs
Class A-2 Notes
Beginning Unreimbursed Principal Chargeoffs
Principal Chargeoff
Principal Chargeoff Reimbursement
Ending Unreimbursed Principal Chargeoffs
Class B Notes
Beginning Unreimbursed Principal Chargeoffs
Principal Chargeoff
Principal Chargeoff Reimbursement
Ending Unreimbursed Principal Chargeoffs
Redraw Bonds - Series 1
Beginning Unreimbursed Principal Chargeoffs
Principal Chargeoff
Principal Chargeoff Reimbursement
Ending Unreimbursed Principal Chargeoffs
Redraw Bonds - Series 2
Beginning Unreimbursed Principal Chargeoffs
Principal Chargeoff
Principal Chargeoff Reimbursement
Ending Unreimbursed Principal Chargeoffs
Redraw Facility
Beginning Unreimbursed Principal Chargeoffs
Principal Chargeoff
Principal Chargeoff Reimbursement
Ending Unreimbursed Principal Chargeoffs
138
<PAGE>
Investors Balance Outstanding Worksheet Aggregate Aggregate
US$ A$
Class A-1 Notes
Initial Invested Amount
previous Principal Distribution
Principal Distribution for current period
Total Principal Distribution to date
Beginning Invested Amount
Ending Invested Amount
Unreimbursed Principal Chargeoffs
Beginning Stated Amount
Ending Stated Amount
Class A-2 Notes
Initial Invested Amount
previous Principal Distribution
Principal Distribution for current period
Total Principal Distribution to date
Beginning Invested Amount
Ending Invested Amount
Unreimbursed Principal Chargeoffs
Beginning Stated Amount
Ending Stated Amount
Class B Notes
Initial Invested Amount
previous Principal Distribution
Principal Distribution for current period
Total Principal Distribution to date
Beginning Invested Amount
Ending Invested Amount
Unreimbursed Principal Chargeoffs
Beginning Stated Amount
Ending Stated Amount
Redraw Bonds - Series 1
Previous Initial Invested Amount
Initial Invested Amount
Principal Distribution (after last Distribution Date)
Principal Distribution for current period
Total Principal Distribution to date
Beginning Invested Amount
Ending Invested Amount
Unreimbursed Principal Chargeoffs
Beginning Stated Amount
Ending Stated Amount
139
<PAGE>
Redraw Bonds - Series 2
Previous Initial Invested Amount
Initial Invested Amount
Principal Distribution (after last Distribution Date)
Principal Distribution for current period
Total Principal Distribution to date
Beginning Invested Amount
Ending Invested Amount
Unreimbursed Principal Chargeoffs
Beginning Stated Amount
Ending Stated Amount
Average Monthly Percentage
Current Balance of Arrears greater than 60 Days
Current Outstanding Loan Balance
Average Monthly Percentage
Monthly Percentage - Current Period
Monthly Percentage - Month 2
Monthly Percentage - Month 3
Monthly Percentage - Month 4
Monthly Percentage - Month 5
Monthly Percentage - Month 6
Monthly Percentage - Month 7
Monthly Percentage - Month 8
Monthly Percentage - Month 9
Monthly Percentage - Month 10
Monthly Percentage - Month 11
Monthly Percentage - Month 12
Stepdown Conditions
Years since initial Determination Date
Required Subordinated Percentage
Available Subordinated Percentage
Aggregate Unreimbursed Principal Chargeoffs
Required Class B Stated Amount Outstanding
Year less than 5, 2% Avg Mo. Perc, Unreim C/O Maximum
Year less than 5, 4% Avg Mo. Perc, Unreim C/O Maximum
5 less than = Year less than 6, Unreim C/O Maximum
6 less than = Year less than 7, Unreim C/O Maximum
7 less than = Year less than 8, Unreim C/O Maximum
8 less than = Year less than 9, Unreim C/O Maximum
9 less than = Year less than 6, Unreim C/O Maximum
Stepdown Condition less than 5 years
Stepdown Condition greater than & equal to 5 years
Year greater than = 5, 2% Avg Mo. Perc, Unreim C/O Maximum
Year - Stepdown Condition Test
5
6
7
8
9
140
<PAGE>
Year - Stepdown Class A Criteria FALSE TRUE Class A Percentage
0 1 0.5 1.00
1 1 0.5 1.00
2 1 0.5 1.00
3 1 0 1.00
4 1 0 1.00
5 1 0.7 1.00
6 1 0.6 1.00
7 1 0.4 1.00
8 1 0.2 1.00
9 1 0 1.00
10 1 0 -
Stepup Conditions
Step-up Date
Stepup margin - Class A-1 Notes
- Class A-2 Notes
141
<PAGE>
SCHEDULE 9
FORM OF RESIDUAL UNIT CERTIFICATE
RESIDUAL UNIT CERTIFICATE
Series 2000-1G Medallion Trust
Perpetual Trustee Company Limited
ACN 000 001 007
(the "Trustee")
Securitisation Advisory Services Pty. Limited
ACN 064 133 946
(the "Manager")
THIS IS TO CERTIFY THAT:
RESIDUAL UNITHOLDER: Commonwealth Bank of Australia
ACN 123 123 124
(the "Bank")
ADDRESS: Level 8,
48 Martin Place
SYDNEY NSW 2000
appears in the Register as the holder of the Residual Unit issued by the Trustee
as trustee of the Series 2000-1G Medallion Trust (the "Series Trust") as
constituted by a Master Trust Deed (the "Master Trust Deed") dated 8 October
1997 between the Manager and the Trustee, as amended from time to time, and a
Series Supplement (the "Series Supplement") dated [ ] between the Bank
(as Seller and Servicer), the Manager and the Trustee.
Unless expressly defined in this Unit Certificate or a contrary intention
appears, words and expressions used in this Unit Certificate have the same
meaning as in the Series Supplement.
The Residual Unit is issued and held by the Bank subject to the provisions of
the Master Trust Deed, the Series Supplement and a Security Trust Deed (the
"Security Trust Deed") dated [ ] between the Manager, the
Trustee, the Bank of New York, London Branch, and PT Limited, ACN 004 454 666
(as Security Trustee). A copy of the Register, the Security Trust Deed, the
Master Trust Deed and the Series Supplement are available for inspection by the
Bank at the offices of the Trustee at Level 3, 39 Hunter Street, Sydney NSW
2000.
None of the Manager, the Seller, the Servicer, the Bank, or any Related Body
Corporate of the Bank guarantees the payment of amounts (if any) payable in
respect of the Residual Unit.
Neither the Manager nor the Trustee is under any obligation at any time to
repurchase or redeem the Residual Unit.
This Unit Certificate is not a certificate of title and the Register on which
this Residual Unit is registered is the only conclusive evidence of the title of
the Bank to the Residual Unit.
The Trustee issues the Residual Unit only in its role as trustee of the Series
Trust. Any obligation or liability of the Trustee arising under or in any way
connected with the Series Trust under the Master Trust Deed, the Series
Supplement or any other Transaction Document to which the Trustee is a party is
limited to the extent to which it can be satisfied out of the Assets of the
Series Trust out of which the Trustee is actually indemnified for the obligation
or liability. This limitation will not apply to any obligation or liability of
the Trustee only to the extent that it is not so satisfied because of any fraud,
negligence or wilful default on the part of the Trustee. The Trustee will have
no liability for any act or omission of the Manager or of any other person
(other than a person whose acts or omissions the
142
<PAGE>
Trustee is liable for in accordance with any Transaction Document).
The Residual Unit does not represent a deposit or other liability of the
Manager, the Seller, the Servicer, the Bank or any Related Body Corporate of the
Bank. The Residual Unit is subject to investment risk, including possible
delays in payment and loss of income and principal invested. None of the
Manager, the Seller, the Servicer, the Bank or any Related Body Corporate of the
Bank stand in any way behind the capital value and/or performance of the Assets
held by the Series Trust.
Dated:
For and on behalf of
PERPETUAL TRUSTEE COMPANY LIMITED
as trustee of the Series Trust
.................................... ..........................
Authorised Officer Authorised Officer
143
<PAGE>
SCHEDULE 10
STEPDOWN PERCENTAGE
Determination of Stepdown Percentage
The Stepdown Percentage on a Determination Date is determined as follows.
1. If the Stepdown Conditions are not satisfied on that Determination Date,
the Stepdown Percentage is 100%.
2. If the Stepdown Conditions are satisfied on that Determination Date, the
Stepdown Percentage is 100% unless the following apply:
(a) if the Determination Date falls prior to the third anniversary of
the Closing Date the Stepdown Percentage is 50%;
(b) if:
(i) the Determination Date falls on or after the third
anniversary of the Closing Date but prior to the tenth
anniversary of the Closing Date; and
(ii) the Class B Available Support on the Determination Date is
equal to or greater than two times the Class B Required
Support on the Determination Date;
the Stepdown Percentage is 0%;
(c) if:
(i) paragraph (b) above does not apply;
(ii) the Determination Date falls on or after the fifth
anniversary of the Closing Date but prior to the tenth
anniversary of the Closing Date; and
(iii) the Class B Available Support on the Determination Date is
equal to or greater than the Class B Required Support on
the Determination Date;
then:
(i) if the Determination Date falls on or after the fifth
anniversary of the Closing Date but prior to the sixth
anniversary of the Closing Date, the Stepdown Percentage is
70%;
(ii) if the Determination Date falls on or after the sixth
anniversary of the Closing Date but prior to the seventh
anniversary of the Closing Date, the Stepdown Percentage is
60%;
(iii) if the Determination Date falls on or after the seventh
anniversary of the Closing Date but prior to the eighth
anniversary of the Closing Date, the Stepdown Percentage is
40%;
(iv) if the Determination Date falls on or after the eighth
anniversary of the Closing Date but prior to the ninth
anniversary of the Closing Date, the Stepdown Percentage is
20%; or
(v) if the Determination Date falls on or after the ninth
anniversary of the Closing Date but prior to the tenth
anniversary of the Closing Date, the Stepdown Percentage is
0%; or
(d) if the Determination Date falls on or after the tenth anniversary
of the Closing Date, the Stepdown Percentage is 0%.
Stepdown Conditions
The Stepdown Conditions are satisfied on a Determination Date if:
144
<PAGE>
1. the following applies:
(a) the Class B Available Support on the Determination Date is equal
to or greater than two times the Class B Required Support on the
Determination Date;
(b) the aggregate Stated Amount for the Class B Notes on the
Determination Date is equal to or greater than 0.25% of the
aggregate Initial Invested Amount of the Class B Notes;
(c) either:
(i) the Average Delinquent Percentage on the Determination Date
does not exceed 2% and the aggregate of all Unreimbursed
Principal Charge-offs on the Determination Date does not
exceed 30% of the aggregate of the Initial Invested Amounts
of the Class B Notes; or
(ii) the Average Delinquent Percentage on the Determination Date
does not exceed 4% and the aggregate of all Unreimbursed
Principal Charge-offs on the Determination Date does not
exceed 10% of the aggregate of the Initial Invested Amounts
of the Class B Notes; and
(d) the event referred to in Condition [ ]7.3(a) of the Class A-1 Note
Conditions has not occurred on or prior to the Determination Date
and is not expected to occur on or prior to the next Distribution
Date thereafter; or
2. the following applies:
(a) the Determination Date falls on or after the fifth anniversary of
the Closing Date;
(b) the Average Delinquent Percentage on the Determination Date does
not exceed 2%;
(c) the aggregate Stated Amount for the Class B Notes on the
Determination Date is equal to or greater than 0.25% of the
aggregate Initial Invested Amount of the Class B Notes; and
(d) the aggregate of all Unreimbursed Principal Charge-offs on the
Determination Date does not exceed:
(i) if the Determination Date falls on or after the fifth
anniversary of the Closing Date but prior to the sixth
anniversary of the Closing Date, 30% of the aggregate of
the Initial Invested Amounts of the Class B Notes;
(ii) if the Determination Date falls on or after the sixth
anniversary of the Closing Date but prior to the seventh
anniversary of the Closing Date, 35% of the aggregate of
the Initial Invested Amounts of the Class B Notes;
(iii) if the Determination Date falls on or after the seventh
anniversary of the Closing Date but prior to the eighth
anniversary of the Closing Date, 40% of the aggregate of
the Initial Invested Amounts of the Class B Notes;
(iv) if the Determination Date falls on or after the eighth
anniversary of the Closing Date but prior to the ninth
anniversary of the Closing Date, 45% of the aggregate of
the Initial Invested Amounts of the Class B Notes; or
(v) if the Determination Date falls on or after the ninth
anniversary of the Closing Date, 50% of the aggregate of
the Initial Invested Amounts of the Class B Notes.
145
<PAGE>
<TABLE>
<CAPTION>
EXECUTED as a deed.
<S> <C> <C>
SIGNED SEALED AND DELIVERED )
for and on behalf of COMMONWEALTH )
BANK OF AUSTRALIA by its Attorney )
under Power of Attorney Registered No. ) ...............................
) (Signature of Attorney)
who certifies that he or she is )
)
of Commonwealth Bank of Australia )
in the presence of: ) ...............................
(Name of Attorney in full)
...............................
(Signature of Witness)
...............................
(Name of Witness in Full)
SIGNED SEALED AND DELIVERED )
for and on behalf of SECURITISATION ) ...............................
ADVISORY SERVICES LIMITED, ) (Signature of Attorney)
ACN 064 133 946 by its Attorney under a )
Power of Attorney dated and registered number )
and who declares that he or she has not ) ...............................
received any notice of the revocation of ) (Name of Attorney in full
such Power of Attorney in the presence of: )
)
...............................
(Signature of Witness)
...............................
(Name of Witness in Full)
SIGNED SEALED AND DELIVERED )
for and on behalf of PERPETUAL )
TRUSTEE COMPANY LIMITED, ) ...............................
ACN 000 001 007 by its Attorney under a ) (Signature of Attorney)
Power of Attorney dated and registered number )
and who declares that he or she has not )
received any notice of the revocation of ) ...............................
such Power of Attorney in the presence of: ) (Name of Attorney in full)
)
...............................
(Signature of Witness)
...............................
(Name of Witness in Full)
</TABLE>
146
<PAGE>
EXHIBIT 4.3
Series 2000-1G Medallion Trust
Security Trust Deed
Date:
P.T. Limited
Security Trustee
The Bank of New York, New York Branch
Class A-1 Note Trustee
Securitisation Advisory Services Pty. Limited
Manager
Perpetual Trustee Company Limited
Trustee
CLAYTON UTZ
Lawyers
Levels 27-35
No.1 O=Connell Street
SYDNEY NSW 2000
(C)Copyright Clayton Utz
Liability is limited by the Solicitors Scheme under the Professional Standards
Act 1994 NSW
AUSTRALIA
<PAGE>
TABLE OF CONTENTS
Clause Page
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Series Supplement and Master Trust Deed Definitions 7
1.3 Interpretation 7
1.4 Incorporation of Annexure 10
1.5 Trustee=s capacity 10
1.6 Determination of Outstanding Hedge Money 10
1.7 Amounts Outstanding 10
1.8 Benefit of Covenants under this Deed 11
1.9 Obligations Several 11
1.10 Incorporated Definitions and other Provisions 11
2. THE SECURITY TRUST 11
2.1 Appointment of Security Trustee 11
2.2 Declaration of Security Trust 11
2.3 Duration of Security Trust 11
2.4 Benefit of Security Trust 11
2.5 Interested Persons Bound 12
2.6 Nature of Rights of Secured Creditors 12
2.7 Shared Securities 12
3. PAYMENT OF SECURED MONEYS 12
3.1 Covenant in Favour of Security Trustee 12
3.2 Payments to Secured Creditors 12
4. CHARGE 12
4.1 The Charge 12
4.2 Floating Charge 12
4.3 Ranking of Charge 13
4.4 Crystallisation of Floating Charge 13
4.5 Consent to Dealings 13
4.6 Re-Conversion from Fixed into Floating Charge 13
4.7 Replacement of fixed charge over Charged Property 13
4.8 Subsequent dealing 14
4.9 Limit and Prospective Liability Amount 14
5. REPRESENTATIONS AND WARRANTIES 14
5.1 By the Trustee 14
5.2 By the Manager 16
6. TRUSTEE'S AND MANAGER'S COVENANTS 17
6.1 Covenants in respect of Charged Property 17
6.2 General Covenants 17
6.3 Dealing in Accordance with Master Trust Deed, the Series Supplement
etc. 18
6.4 Manager's Undertaking 19
7. EVENTS OF DEFAULT 19
8. RIGHTS AND OBLIGATIONS OF THE SECURITY TRUSTEE
(i)
<PAGE>
FOLLOWING EVENT OF DEFAULT 20
8.1 Notify Voting Secured Creditors and Convene Meeting of Voting Secured
Creditors 20
8.2 Extraordinary Resolutions 21
8.3 Security Trustee to Act in Accordance with Directions 21
8.4 Security Trustee Must Receive Indemnity 22
8.5 Notice to Trustee 22
8.6 Manager convenes meeting 23
8.7 Notice of Event of Default 23
8.8 Notice of action to remedy Event of Default 23
9. ENFORCEMENT 23
9.1 Power to Deal with and Protection of the Charged Property 23
9.2 Restrictions on Power to Enforce 23
9.3 No Obligation to Enforce 24
9.4 Limitation on Rights of Secured Creditors 24
9.5 Immaterial Waivers 24
9.6 Acceleration of Secured Moneys following Event of Default 25
10. RECEIVERS - APPOINTMENT AND POWERS 25
10.1 Appointment of Receiver 25
10.2 Joint Receivers 25
10.3 Remuneration of Receiver 26
10.4 Indemnification of Receiver 26
10.5 Appointment over part 26
10.6 Powers of Receiver 26
10.7 Indemnity 29
11. POWERS AND PROTECTIONS FOR SECURITY TRUSTEE AND RECEIVER AND
POWER OF ATTORNEY 29
11.1 Security Trustee has Powers of Receiver 29
11.2 Act Jointly 29
11.3 No Liability for Loss 30
11.4 No Liability to Account as Mortgagee in Possession 30
11.5 No Conflict 30
11.6 Contract Involving Conflict of Duty 30
11.7 Power of Attorney 30
11.8 Security Trustee May Make Good Default 31
11.9 Notice for Exercise of Powers 32
11.10 Benefit for Receiver etc. 32
12. PROTECTION OF PERSONS DEALING WITH SECURITY TRUSTEE
OR RECEIVER 32
12.1 No Enquiry 32
12.2 Receipts 32
13. APPLICATION OF MONEYS 33
13.1 Priority of Payments 33
13.2 Moneys Received 35
13.3 Application of Moneys 35
13.4 Investment of Funds 36
13.5 Conversion into A$ of Class A-1 Notes denominated in US$ 36
13.6 Application of Class A-1 Currency Swap Termination Proceeds 37
13.7 Satisfaction of Debts 37
(ii)
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14. SUPPLEMENTAL SECURITY TRUSTEE PROVISIONS 37
14.1 Limitations on Powers and Duties of Security Trustee 37
14.2 Limitation on Security Trustee's Actions 37
14.3 Additional Powers, Protections, etc. 38
14.4 Limitation of Liability 43
14.5 Dealings with Trust 43
14.6 Discretion of Security Trustee as to Exercise of Powers 44
14.7 Delegation of Duties of Security Trustee 44
14.8 Related Body Corporate of the Security Trustee 44
15. DUTIES OF THE SECURITY TRUSTEE 44
15.1 Duties of the Security Trustee limited to duties in this Deed 44
15.2 Security Trustee's Further Duties 44
15.3 Trustee Liable for Negligence etc. 45
15.4 No Liability for Transaction Documents 45
15.5 Resolution of Conflicts 45
(iii)
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16. INDEMNITY BY TRUSTEE 46
16.1 Indemnity 46
16.2 Extent of Security Trustee=s Indemnity 46
16.3 Costs of experts 47
16.4 Non-Discharge 47
16.5 Retention of Lien 47
17. MEETINGS OF VOTING SECURED CREDITORS 48
17.1 Meetings Regulated by the Annexure 48
17.2 Limitation on Security Trustee's Powers 48
18. CONTINUING SECURITY AND RELEASES 48
18.1 Liability Preserved 48
18.2 Trustee=s Liability Not Affected 48
18.3 Waiver by Trustee 49
19. REMUNERATION AND RETIREMENT OF SECURITY TRUSTEE 49
19.1 Remuneration 49
19.2 Retirement of Security Trustee 49
19.3 Removal by Manager 50
19.4 Security Trustee May Retire 50
19.5 Retirement of Trustee under Master Trust Deed 50
19.6 Appointment of Substitute Security Trustee by Voting Secured Creditors 51
19.7 Release of Security Trustee 51
19.8 Vesting of Security Trust Fund in Substitute Security Trustee 51
19.9 Substitute Security Trustee to Execute Deed 51
19.10 Rating Agencies Advised 52
20. ASSURANCE 52
20.1 Further Assurance 52
20.2 Postponement or Waiver of Security Interests 52
20.3 Registration of Charge 53
20.4 Caveats 53
21. PAYMENTS 53
21.1 Moneys Repayable as Agreed or on Demand 53
21.2 No Set-Off or Deduction 53
22. DISCHARGE OF THE CHARGE 54
22.1 Release 54
22.2 Contingent Liabilities 54
22.3 Charge Reinstated 54
23. CLASS A-1 NOTE TRUSTEE 54
23.1 Capacity 54
23.2 Exercise of rights 55
23.3 Instructions or directions 55
23.4 Payments 55
23.5 Notices 55
23.6 Limitation of Class A-1 Note Trustee's Liability 55
(iv)
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24. AMENDMENT 55
24.1 Amendment by Security Trustee 55
24.2 Consent required Generally 56
24.3 Consent to Payment Modification in relation to Class A-1 Notes 56
24.4 No Rating Agency Downgrade 57
24.5 Distribution of Amendments 57
25. EXPENSES AND STAMP DUTIES 57
25.1 Expenses 57
25.2 Stamp Duties 57
25.3 Goods and Services Tax 58
26. GOVERNING LAW AND JURISDICTION 58
26.1 Governing Law 58
26.2 Jurisdiction 58
27. NOTICES 58
27.1 Method of Delivery 58
27.2 Deemed Receipt 59
28. TRUSTEE'S LIMITED LIABILITY 59
28.1 Limitation on Trustee's Liability 59
28.2 Claims against Trustee 60
28.3 Breach of Trustee 60
28.4 Acts or omissions 60
28.5 No Authority 60
28.6 No Obligation 60
29. MISCELLANEOUS 61
29.1 Assignment by Trustee 61
29.2 Assignment by Manager 61
29.3 Assignment by Security Trustee 61
29.4 Assignment by Class A-1 Note Trustee 61
29.5 Certificate of Security Trustee 61
29.6 Continuing Obligation 62
29.7 Settlement Conditional 62
29.8 No Merger 62
29.9 Interest on Judgment 62
29.10 No Postponement 62
29.11 Severability of Provisions 62
29.12 Remedies Cumulative 63
29.13 Waiver 63
29.14 Consents and Approvals 63
29.15 Written Waiver, Consent and Approval 63
29.16 Time of Essence 63
29.17 Moratorium Legislation 63
29.18 Debit Accounts 64
29.19 Set-Off 64
29.20 Binding on Each Signatory 64
29.21 Counterparts 64
(v)
<PAGE>
THIS SECURITY TRUST DEED is made in Sydney on 2000
BETWEEN P.T. LIMITED, ACN 004 454 666, a company incorporated in the State
of Victoria and having an office at Level 7, 39 Hunter Street,
Sydney, Australia (hereinafter included in the expression the
"Security Trustee")
AND THE BANK OF NEW YORK, NEW YORK BRANCH, a New York banking
corporation acting through its New York branch at 101 Barclay
Street, 21W, New York, New York 10286 (hereinafter included by
incorporation in the expression the "Class A-1 Note Trustee")
AND SECURITISATION ADVISORY SERVICES PTY. LIMITED, ACN 064 133 946, a
company incorporated in the State of New South Wales and having an
office at Level 8, 48 Martin Place, Sydney, Australia (hereinafter
included in the expression the "Manager")
AND PERPETUAL TRUSTEE COMPANY LIMITED, ACN 000 001 007, a company
incorporated in the State of New South Wales and having an office
at Level 7, 39 Hunter Street, Sydney, Australia in its capacity as
trustee of the Series Trust (as hereinafter defined) (the
"Trustee")
RECITALS
A. The Trustee is the trustee, and the Manager is the manager, of the Series
Trust.
B. The Trustee is authorised to enter into this Deed to charge the assets of
the Series Trust to secure the payment in full of the Secured Moneys to
the Secured Creditors of the Series Trust.
C. The Class A-1 Note Trustee has been appointed as trustee under the Class
A-1 Note Trust Deed to act on behalf of the Class A-1 Noteholders.
D. The Security Trustee has agreed to act as trustee for the benefit of the
Secured Creditors on the terms and conditions and with the powers and
authorities contained in this Deed.
THIS DEED PROVIDES as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Deed, unless the contrary intention appears:
"Authorised Officer" means:
(a) in relation to the Security Trustee, a director or secretary of
the Security Trustee or an officer of the Security Trustee whose
title contains the word or words "manager" or "counsel" or a
person performing the functions of any of them;
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(b) in relation to the Class A-1 Note Trustee, an Authorised Officer
of the Class A-1 Note Trustee for the purposes of the Class A-1
Note Trust Deed;
(c) in relation to the Trustee, an Authorised Officer of the Trustee
for the purposes of the Master Trust Deed; and
(d) in relation to the Manager, an Authorised Officer of the Manager
for the purposes of the Master Trust Deed.
"Charge" means the charge created by this Deed.
"Charged Property" means all the Assets of the Series Trust held by the
Trustee from time to time as trustee of the Series Trust and the benefit
of all covenants, agreements, undertakings, representations, warranties
and other choses in action in favour of the Trustee under the Transaction
Documents, but does not include any of the foregoing situated outside the
State of New South Wales at the time of the execution and delivery of
this Deed.
"Charge Release Date" subject to clause [ ]22.3 means the date the
Security Trustee releases the Charged Property from the Charge.
"Class A-1 Currency Swap Termination Proceeds" means the US dollars
proceeds (if any) received from a Currency Swap Provider under a Class A-
1 Currency Swap as a result of the occurrence (if any) of an "Early
Termination Date" thereunder, and includes any interest earned and
credited thereon whilst such proceeds are invested in the US dollar
interest bearing account referred to in clause [ ]13.6.
"Class A-1 Trust" has the same meaning as in the Class A-1 Note Trust
Deed.
"Class B Basic Term Modification" means an alteration, addition or
amendment to this Deed or to the terms and conditions of the Securities
which has the effect of:
(a) reducing, cancelling, postponing the date of payment, modifying
the method for the calculation or altering the order of priority
under this Deed, of any amount payable in respect of any principal
or interest in respect of the Class B Notes;
(b) altering the currency in which payments under the Class B Notes
are to be made;
(c) altering the majority required to pass an Extraordinary Resolution
under this Deed; or
(d) sanctioning any scheme or proposal for the exchange or sale of the
Class B Notes for or the conversion of the Class B Notes into or
the cancellation of the Class B Notes in consideration of shares,
stock, notes, bonds, debentures, debenture stock and/or other
obligations and/or securities of the Trustee or any other company
formed or to be formed, or for or into or in consideration of
cash, or partly for or into or in consideration of such shares,
stock, notes, bonds, debentures, debenture stock and/or other
obligations and/or securities as aforesaid and partly for or in
consideration of cash.
"Event of Default" has the meaning given to it in clause [ ]7.
"Extraordinary Resolution" of the Voting Secured Creditors or a class of
Voting Secured Creditors means:
(a) a resolution which is passed at a meeting of the then Voting
Secured Creditors or, where applicable, a class of Voting Secured
Creditors duly convened and held in accordance with the provisions
of this Deed (including the Annexure) by a majority consisting of
not less than 75% of the votes (determined in accordance with
clause [ ]7(d)(i) of the Annexure) of the persons present and
voting at the meeting who are then Voting Secured Creditors, or
Voting Secured Creditors of that class, or representing such
Voting Secured Creditors or, if a
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poll is demanded, by then Voting Secured Creditors, or Voting
Secured Creditors of that class, holding or representing between
them Voting Entitlements comprising in aggregate a number of votes
which is not less than 75% of the aggregate number of votes
comprised in the Voting Entitlements held or represented by all
the persons present at the meeting voting on such poll; or
(b) a resolution in writing in relation to all Voting Secured
Creditors or the class of Voting Secured Creditors pursuant to
clause [ ]16 of the Annexure.
"Foreign Currency" means a currency other than Australian dollars.
"Insolvency Event" in relation to the Trustee means each of the following
events:
(a) an application is made to a court (which application is not
dismissed or stayed on appeal within 30 days) for an order or an
order is made that the Trustee be wound up or dissolved;
(b) an application is made to a court for an order appointing a
liquidator, a provisional liquidator, a receiver or a receiver and
manager in respect of the Trustee (which application is not
dismissed or stayed on appeal within 30 days), or one of them is
appointed, whether or not under an order;
(c) except on terms approved by the Security Trustee, the Trustee
enters into, or resolves to enter into, a scheme of arrangement,
deed of company arrangement or composition with, or assignment for
the benefit of, all or any class of its creditors, or it proposes
a reorganisation, moratorium or other administration involving any
of them;
(d) the Trustee resolves to wind itself up, or otherwise dissolve
itself, or gives notice of intention to do so, except to
reconstruct or amalgamate while solvent on terms approved by the
Security Trustee or is otherwise wound up or dissolved;
(e) the Trustee is or states that it is unable to pay its debts when
they fall due;
(f) as a result of the operation of section 459F(1) of the
Corporations Law, the Trustee is taken to have failed to comply
with a statutory demand;
(g) the Trustee is or makes a statement from which it may be
reasonably deduced by the Security Trustee that the Trustee is,
the subject of an event described in section 459C(2)(b) or section
585 of the Corporations Law;
(h) the Trustee takes any step to obtain protection or is granted
protection from its creditors, under any applicable legislation or
an administrator is appointed to the Trustee or the board of
directors of the Trustee propose to appoint an administrator to
the Trustee or the Trustee becomes aware that a person who is
entitled to enforce a charge on the whole or substantially the
whole of the Trustee's property proposes to appoint an
administrator to the Trustee; and
(i) anything analogous or having a substantially similar effect to any
of the events specified above happens under the law of any
applicable jurisdiction.
"Insolvency Event" in relation to the Security Trustee has the same
meaning as in the Master Trust Deed (provided that any approval
thereunder must be given by the Manager rather than the Trustee as
specified therein).
"Interested Persons" means a collective reference to the Trustee, the
Secured Creditors, the Manager and all persons claiming through them and
"Interested Person" means a several reference to all Interested Persons.
"Manager" means Securitisation Advisory Services Pty. Limited or if
Securitisation Advisory Services Pty. Limited retires or is removed as
manager of the Series Trust, any
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then Substitute Manager and includes the Trustee when acting as the
Manager in accordance with the provisions of the Master Trust Deed.
"Master Trust Deed" means the Master Trust Deed dated 8 October 1997 and
made between the Trustee and the Manager, as amended from time to time.
"Outstanding Cash Advance Deposit" on a given date means the amount of
the Cash Advance Deposit on that date together with all accrued but
unpaid interest on the Cash Advance Deposit payable to the Liquidity
Facility Provider pursuant to the Liquidity Facility Agreement.
"Potential Event of Default" has the same meaning as in the Class A-1
Note Trust Deed.
"Pre-Default Action" means:
(a) an action which the Security Trustee is required or empowered to
take prior to an Event of Default under:
(i) paragraphs [ ](c), (d) and (g) of the definition of
"Insolvency Event" in this clause 1.1; and
(ii) clauses [ ]6.1, 6.2(c), 8.3, 8.4, 9.5, 11.5, 11.8, 14,
15.2, 16.1, 17.2, 19, 20.1, 20.2, 22, 24 and 29; and
(b) such action as the Security Trustee considers necessary to cause
the Trustee to comply with its obligations under clauses [ ]19.1.
"Prior Interest" means the lien over, and right of indemnification from,
the Charged Property held by the Trustee under, and calculated in
accordance with, the Master Trust Deed for Trustee Indemnity Costs (other
than the Secured Moneys) in relation to the Series Trust which are
unpaid, or paid by the Trustee but not reimbursed to the Trustee from the
Assets of the Series Trust.
"Receiver" means a receiver appointed by the Security Trustee under this
Deed and includes a receiver and manager and where more than one person
has been appointed as receiver or receiver and manager each such person
and also any servant agent or delegate of any such receiver or receiver
and manager.
"Representative" means:
(a) in relation to a Voting Secured Creditor, a person appointed as a
proxy for that Voting Secured Creditor pursuant to clause [ ]10 of
the Annexure; and
(b) without limiting the generality of paragraph (a), in relation to a
Voting Secured Creditor that is a body corporate, a person
appointed pursuant to clause [ ]11 of the Annexure by that Voting
Secured Creditor.
"Secured Creditors" means the Class A-1 Note Trustee (in its personal
capacity and as trustee of the Class A-1 Trust), each Paying Agent, each
Securityholder, each Hedge Provider, the Liquidity Facility Provider, the
Standby Redraw Facility Provider, the Servicer and the Seller and
"Secured Creditor" means each of the Secured Creditors.
"Secured Moneys" means, without double counting, the aggregate of all
moneys owing to the Security Trustee or to a Secured Creditor under any
of the Transaction Documents provided that:
(a) the amount owing by the Trustee in relation to the principal
component of a Security is to be calculated by reference to the
Invested Amount of that Security;
(b) the amount owing by the Trustee in relation to the principal
component of the Standby Redraw Facility Agreement is to be
calculated by reference to the aggregate of the Standby Redraw
Facility Principal and the Unreimbursed Principal Charge-offs in
relation to the Standby Redraw Facility Principal; and
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(c) the Secured Moneys do not include any fees or value added tax
payable to the Class A-1 Note Trustee referred to in clause
[ ]12.7 of the Class A-1 Note Trust Deed or [ ]12.6 of the Agency
Agreement.
"Security Trust" means the trust established under clause [ ]2.2 of this
Deed.
"Security Trust Fund" means any property and benefits which the Security
Trustee holds on trust for the Secured Creditors under this Deed
including, without limitation, all the right, title and interest of the
Security Trustee in connection with the Charge and any property which
represents the proceeds of sale of any such property or proceeds of
enforcement of the Charge.
"Security Trustee" means P.T. Limited or if P.T. Limited retires or is
removed as security trustee, any then Substitute Security Trustee.
"Senior Security" means a Class A-1 Note, a Class A-2 Note or a Redraw
Bond.
"Senior Securityholder" means a Class A-1 Noteholder, a Class A-2
Noteholder or a Redraw Bondholder.
"Series Supplement" means the Series Supplement dated on or about the
date of this Deed between the Commonwealth Bank of Australia, ACN 123 123
124, the Manager and the Trustee.
"Series Trust" means the trust known as the Series 2000-1G Medallion
Trust established pursuant to the Master Trust Deed and the Series
Supplement.
"Statute" means any legislation now or hereafter in force of the
Parliament of the Commonwealth of Australia or of any State or Territory
thereof and any rule regulation ordinance by-law statutory instrument
order or notice now or hereafter made under such legislation.
"Substitute Security Trustee" at any given time means the entity then
appointed as Security Trustee under clause [ ]19.
"Trustee Indemnity Costs" means the fees, costs, charges and expenses
incurred by, or payable to the Trustee (in its capacity as trustee of the
Series Trust) in accordance with the Master Trust Deed (including clause
[ ]16.11 of the Master Trust Deed) and the Series Supplement.
"Voting Entitlement" means, on a particular date the number of votes
which a Voting Secured Creditor would be entitled to exercise if a
meeting of Voting Secured Creditors were held on that date, being in
respect of a given Voting Secured Creditor and subject to clause
[ ]13.5(c), the number calculated by dividing the Secured Moneys owing to
that Voting Secured Creditor by 10 and rounding the resultant figure down
to the nearest whole number, provided that if the Class A-1 Note Trustee
is a then Voting Secured Creditor it will have a Voting Entitlement equal
to the aggregate Voting Entitlement (determined in accordance with the
foregoing) for all Class A-1 Noteholders.
"Voting Secured Creditor" means:
(a) for so long as the Secured Moneys of the Securityholders are 75%
or more of the then total Secured Moneys:
(i) if any Class A-1 Note then remains outstanding, the Class A-1
Note Trustee (or, if the Class A-1 Note Trustee has become
bound to notify, or seek directions from, the Class A-1
Noteholders or to take steps and/or to proceed under the
Class A-1 Note Trust Deed and fails to do so as and when
required by the Class A-1 Note Trust Deed and such failure is
continuing, the Class A-1 Noteholders); if any Class A-2
Notes remain outstanding, the Class A-2 Noteholders; and if
any Redraw Bonds remain outstanding, the Redraw Bondholders;
or
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(ii) if no Senior Security then remains outstanding, the Class B
Noteholders; and
(b) otherwise:
(i) if any Class A-1 Notes remain outstanding, the Class A-1
Note Trustee (or, if the Class A-1 Note Trustee has become
bound to take steps and/or to proceed under the Class A-1
Note Trust Deed and fails to do so as and when required by
the Class A-1 Note Trust Deed and such failure is
continuing, the Class A-1 Noteholders); and
(ii) each other then Secured Creditor (other than the Class A-1
Note Trustee and the Class A-1 Noteholders).
1.2 Series Supplement and Master Trust Deed Definitions
Subject to clause [ ]1.10, unless defined in this Deed, words and phrases
defined in either or both of the Master Trust Deed and the Series
Supplement have the same meaning in this Deed. Where there is any
inconsistency in a definition between this Deed (on the one hand) and the
Master Trust Deed or the Series Supplement (on the other hand), this Deed
prevails. Where there is any inconsistency in a definition between the
Master Trust Deed and the Series Supplement, the Series Supplement
prevails over the Master Trust Deed in respect of this Deed. Subject to
clause [ ]1.10, where words or phrases used but not defined in this Deed
are defined in the Master Trust Deed in relation to a Series Trust (as
defined in the Master Trust Deed) and/or an Other Trust such words or
phrases are to be construed in this Deed, where necessary, as being used
only in relation to the Series Trust (as defined in this Deed) and/or the
CBA Trust (as defined in the Series Supplement), as the context requires.
1.3 Interpretation
In this Deed unless the contrary intention appears:
(a) the expression "person" includes an individual, a corporation and a
Governmental Agency;
(b) the expression "owing" includes amounts that are owing whether such
amounts are liquidated or not or are contingent or presently accrued
due and includes all rights sounding in damages only;
(c) the expression "power" in relation to a person includes all powers,
authorities, rights, remedies, privileges and discretions conferred
upon that person by the Transaction Documents, by any other deed,
agreement, document, or instrument, by any Statute or otherwise by
law;
(d) a reference to any person includes that person=s executors,
administrators, successors, substitutes and assigns, including any
person taking by way of novation;
(e) subject to clause [ ]1.10, a reference to this Deed, the Master
Trust Deed or to any other deed, agreement, document or instrument
includes, respectively, this Deed, the Master Trust Deed or such
other deed, agreement, document or instrument as amended, novated,
supplemented, varied or replaced from time to time;
(f) a reference to any Statute or to any section or provision of any
Statute includes any statutory modification or re-enactment or any
statutory provision substituted therefor and all ordinances, by-
laws, regulations and other statutory instruments issued thereunder;
(g) a reference to a Related Body Corporate includes a corporation which
is or becomes a Related Body Corporate during the currency of this
Deed;
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(h) words importing the singular include the plural (and vice versa) and
words denoting a given gender include all other genders;
(i) headings are for convenience only and do not affect the
interpretation of this Deed;
(j) a reference to a clause is a reference to a clause of this Deed;
(k) a reference to a Schedule or an Annexure is a reference to the
Schedule or Annexure to this Deed;
(l) where any word or phrase is given a defined meaning any other part
of speech or other grammatical form in respect of such word or
phrase has a corresponding meaning;
(m) all accounting terms used in this Deed have the same meaning
ascribed to those terms under accounting principles and practices
generally accepted in Australia from time to time;
(n) a reference to a party is a reference to a party to this Deed;
(o) a reference to time is a reference to Sydney time;
(p) a reference to any thing (including, without limitation, the Secured
Money, any other amount and the Charged Property) is a reference to
the whole and each part of it and a reference to a group of persons
is a reference to all of them collectively, to any two or more of
them collectively and to each of them individually;
(q) if an act prescribed under this Deed to be done by a party on or by
a given day is done after 5.30pm on that day, it is to be taken to
be done on the following day;
(r) where any day on which a payment is due to be made or a thing is due
to be done under this Deed is not a Business Day, that payment must
be made or that thing must be done on the immediately succeeding
Business Day;
(s) a reference to "wilful default" in relation to the Trustee, the
Security Trustee or the Manager means, subject to clause [_]1.3(t),
any wilful failure to comply with, or wilful breach by, the Trustee,
the Security Trustee or the Manager (as the case may be) of any of
its obligations under any Transaction Document, other than a failure
or breach which:
(i) (A) arises as a result of a breach of a Transaction
Document by a person other than:
(1) the Trustee, the Security Trustee or the
Manager (as the case may be); or
(2) any other person referred to in clause
[_]1.3(t) in relation to the Trustee, the
Security Trustee or the Manager (as the case
may be); and
(B) the performance of the action (the non-performance
of which gave rise to such breach) is a precondition
to the Trustee, the Security Trustee or the Manager
(as the case may be) performing the said obligation;
(ii) is in accordance with a lawful court order or direction or
required by law; or
(iii) is:
(A) in accordance with any proper instruction or
direction of the Voting Secured Creditors given at a
meeting of Voting Secured Creditors convened
pursuant to this Deed; or
(B) in accordance with any proper instruction or
direction of the Investors given at a meeting
convened under the Master Trust Deed (as amended by
the Series Supplement);
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(t) a reference to the "fraud", "negligence" or "wilful default" of the
Trustee, the Security Trustee or the Manager means the fraud,
negligence or wilful default of the Trustee, the Security Trustee or
the Manager (as the case may be) and of its officers, employees,
agents and any other person where the Trustee, the Security Trustee
or the Manager (as the case may be) is liable for the acts or
omissions of such other person under the terms of any Transaction
Document;
(u) subject to clause [ ]27.2, each party will only be considered to
have knowledge or awareness of, or notice of, a thing or grounds to
believe anything by virtue of the officers of that party (or any
Related Body Corporate of that party) which have the day to day
responsibility for the administration or management of that party's
(or a Related Body Corporate of that party's) obligations in
relation to the Series Trust or this Deed, having actual knowledge,
actual awareness or actual notice of that thing, or grounds or
reason to believe that thing (and similar references will be
interpreted in this way). In addition, notice, knowledge or
awareness of an Event of Default means notice, knowledge or
awareness of the occurrence of the events or circumstances
constituting an Event of Default. The Security Trustee will be
regarded as being actually aware of an Event of Default if it
receives a written notice from the Trustee, the Manager or the Class
A-1 Note Trustee that the Trustee, the Manager or the Class A-1 Note
Trustee (as the case may be) believes, on reasonable grounds, that
the Event of Default has occurred; and
(v) a reference to prospective liabilities includes, without limitation,
the liabilities of the Trustee under the Transaction Documents.
1.4 Incorporation of Annexure
This Deed incorporates the Annexure which forms part of, and is subject
to, this Deed.
1.5 Trustee=s capacity
In this Deed, unless expressly specified otherwise:
(a) (References to Trustee): a reference to the Trustee is a reference
to the Trustee in its capacity as trustee of the Series Trust
only, and in no other capacity;
(b) (References to Assets of Trustee): a reference to the undertaking,
assets, business or money of the Trustee is a reference to the
undertaking, assets, business or money of the Trustee in the
capacity referred to in paragraph (a); and
(c) (Insolvency Event): a reference in the definition of "Insolvency
Event" in clause [ ]1.1 to the Trustee is to the Trustee only in
its capacity as trustee of the Series Trust and does not include
the Trustee personally, as trustee of any other trust fund or in
any other capacity whatsoever.
1.6 Determination of Outstanding Hedge Money
The amounts owing by the Trustee to a Hedge Provider under a Hedge
Agreement are to be determined by the Manager on the relevant date as if
an "Early Termination Date" (as defined in the relevant Hedge Agreement)
has been designated in respect of all "Transactions" (as defined in the
relevant Hedge Agreement) in accordance with the relevant Hedge Agreement
at the time of such determination.
1.7 Amounts Outstanding
For the purposes of determining whether any amount constitutes Secured
Moneys, for the purposes of clause [ ]7(g) and, for the purposes of
clause [ ]13.1 (and for these purposes only), the calculation of any
amounts owing or due by the Trustee shall be made without regard to any
limitation on the Trustee's liability that may be construed as meaning
that
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such amounts are not owing or are not due and payable.
1.8 Benefit of Covenants under this Deed
Unless the context indicates a contrary intention, the Security Trustee
holds the covenants, undertaking and other obligations and liabilities of
the Trustee and the Manager under this Deed on trust for the benefit of
the Secured Creditors on the terms and conditions of this Deed.
1.9 Obligations Several
The obligations of the parties under this Deed are several.
1.10 Incorporated Definitions and other Provisions
Where in this Deed a word or expression is defined by reference to its
meaning in another Transaction Document or there is a reference to
another Transaction Document or to a provision of another Transaction
Document, any amendment to the meaning of that word or expression, to
that Transaction Document or to that provision (as the case may be) will
be of no effect for the purposes of this Deed unless and until the
amendment is consented to by all parties to this Deed.
2. THE SECURITY TRUST
2.1 Appointment of Security Trustee
The Security Trustee is hereby appointed and agrees to act as trustee of
the Security Trust (with effect from the constitution of the Security
Trust) on the terms and conditions in this Deed.
2.2 Declaration of Security Trust
The Security Trustee declares that it holds the Security Trust Fund on
trust for those persons who are Secured Creditors at the time of
distribution of any money by the Security Trustee pursuant to clause
[ ]13.1.
2.3 Duration of Security Trust
The Security Trust commences on the date of this Deed and terminates on
the first to occur of
(a) (Charge Release Date): the Charge Release Date; and
(b) (80th anniversary): the 80th anniversary of the date of this Deed.
2.4 Benefit of Security Trust
Each Secured Creditor is entitled to the benefit of the Security Trust on
the terms and conditions contained in this Deed.
2.5 Interested Persons Bound
The provisions of this Deed, the Master Trust Deed and the Series
Supplement are binding upon every Interested Person and the Security
Trustee.
2.6 Nature of Rights of Secured Creditors
Prior to any distribution to the Secured Creditors pursuant to clause
[ ]13.1, no Secured Creditor is entitled to any equitable or proprietary
interest in the Charged Property, or any rights held by the Security
Trustee under clause [ ]1.8, and only has a mere right of action against
the Security Trustee to properly perform its covenants under this Deed
and to account to the Secured Creditors in accordance with this Deed.
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2.7 Shared Securities
The Security Trustee is bound by clause [ ]7.3 of the Series Supplement
in respect of each Shared Security notified by the Seller to the Security
Trustee in writing to be affected by the CBA Trust as if a reference
therein to the Trustee was a reference to both the Security Trustee and
the Receiver.
3. PAYMENT OF SECURED MONEYS
3.1 Covenant in Favour of Security Trustee
The Trustee covenants in favour of the Security Trustee that it will duly
and punctually pay the Secured Moneys to, or to the order of, the
Security Trustee as and when the same fall due for payment.
3.2 Payments to Secured Creditors
Notwithstanding clause [ ]3.1, every payment by the Trustee, or the
Security Trustee in accordance with this Deed, to the Secured Creditors
on account of the Secured Moneys will operate as payment by the Trustee
to the Security Trustee in satisfaction of the Trustee=s obligations in
respect of the Secured Moneys.
4. CHARGE
4.1 The Charge
The Trustee charges all its present and future, right, title and interest
in the Charged Property, subject only to the Prior Interest, to the
Security Trustee for the payment in full of all the Secured Moneys.
4.2 Floating Charge
The Charge is a floating charge over the Charged Property.
4.3 Ranking of Charge
Subject only to the Prior Interest, the Charge is a first ranking charge
having priority over all other Security Interests of the Trustee over the
Charged Property.
4.4 Crystallisation of Floating Charge
If the Charge has not otherwise taken effect as a fixed charge, it takes
effect as a fixed charge automatically and immediately over all the
Charged Property if an Event of Default occurs, other than if an Event of
Default described in clauses [ ]7(c) or (e) occurs, in which event it
takes effect as a fixed charge automatically and immediately over the
affected Charged Property. Upon the Charge becoming a fixed charge
pursuant to the foregoing provisions of this clause, the Security Trustee
is deemed to have intervened at that point in time and to have exercised
all its rights of intervention in respect of the relevant Charged
Property.
4.5 Consent to Dealings
The Trustee must not (and the Manager will not give any direction to the
Trustee to) dispose of or deal with the Charged Property, whether the
Charge is floating or fixed unless such disposition or such other dealing
is permitted by or required by and will be effected in accordance with
the terms of the Master Trust Deed, the Series Supplement or any other
Transaction Document. Without limiting the generality of the foregoing,
the Trustee or its delegates may (notwithstanding that the Charge has
taken effect as a fixed charge) discharge in accordance with the terms of
the Transaction Documents, any Mortgage Loan, Mortgage or Collateral
Security. Any Mortgage Loan, Mortgage or Collateral Security which is
discharged by the Trustee or its delegates pursuant to this
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clause will automatically, and without the need for any act on the part
of the Security Trustee, be free from and released from this Charge.
4.6 Re-Conversion from Fixed into Floating Charge
Subject to clause [ ]4.7, at any time after the Charge has taken effect
as a fixed charge over the Charged Property, the Security Trustee may
(and will, if directed by an Extraordinary Resolution of the then Voting
Secured Creditors) by notice in writing to the Trustee convert the Charge
from a fixed charge into a floating charge as regards any asset or assets
specified in such notice. Upon such notice being received by the
Trustee, the Charge as regards such specified asset or assets will
immediately become and operate as a floating charge subject to the
provisions of this Deed and will cease to be a fixed charge over such
specified asset or assets.
4.7 Replacement of fixed charge over Charged Property
If the Charge has taken effect as a fixed charge as a result of the
occurrence of the Event of Default described in clause [ ]7(a)(i) the
Security Trustee must, upon notification from the Manager that another
Authorised Trustee Corporation has been appointed as trustee of the
Series Trust, by notice in writing to the Trustee convert the charge from
a fixed charge into a floating charge as regards the Charged Property.
4.8 Subsequent dealing
From the effective date specified in a notice given under clause [ ]4.6
or 4.7:
(a) (Trustee may deal as if floating charge): the Trustee may deal with
the Charged Property the subject of the notice, if it was acquired
by the Trustee before the effective date of the notice, as if it had
always been charged by way of floating charge under this Deed;
(b) (Treat the fixing as not having occurred): the floating charge given
by this Deed in respect of Charged Property the subject of the
notice acquired by the Trustee on or after the effective date of the
notice continues to operate as a floating charge as if it had never
been a fixed charge; and
(c) (Third person may rely on notice that Charge is floating): a person
dealing with the Trustee in relation to the Charged Property the
subject of the notice may rely on a notice from the Security Trustee
as conclusive evidence that, as at the time the notice is issued,
such Charged Property is charged by way of floating charge.
4.9 Limit and Prospective Liability Amount
(a) (Amount Recoverable): The Charge is security for the whole of the
Secured Moneys, but the aggregate amount recoverable under the
Charge may not exceed A$20,000,000,000.
(b) (Fixed Priorities): For the purposes of fixing priorities between
the Charge and any subsequent charge registered under the
Corporations Law, the Charge secures a prospective liability up to a
maximum amount of A$20,000,000,000.
(c) (No Obligation): Nothing in this clause [_]4.9 creates any
obligation upon the Security Trustee to enter into any arrangement
or to advance any moneys or do any act or thing as a result whereof
if so created, entered into, advanced or done there would be Secured
Moneys, or limits or affects the provisions of section 279(2) of the
Corporations Law.
5. REPRESENTATIONS AND WARRANTIES
5.1 By the Trustee
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The Trustee represents and warrants to the Security Trustee that:
(a) (Due incorporation): it is duly incorporated and has the corporate
power to own its property and to carry on its business as is now
being conducted;
(b) (Constitution): the execution delivery and performance of each
Transaction Document to which it is expressed to be a party does not
violate its constitution;
(c) (Corporate power): it has the power and has taken all corporate and
other action required to enter into each Transaction Document to
which it is expressed to be a party and to authorise the execution
and delivery of each Transaction Document to which it is expressed
to be a party and the performance of its obligations under each
Transaction Document to which it is expressed to be a party;
(d) (Filings): all corporate notices, filings and registrations with the
Australian Securities and Investments Commission or similar office
in its jurisdiction of incorporation and in any other jurisdiction
required to be filed or effected, as applicable, by it in connection
with the execution, delivery and performance of each Transaction
Document to which it is expressed to be a party, have been filed or
effected, as applicable, and all such filings and registrations are
current, complete and accurate;
(e) (Legally binding obligation): its obligations under each Transaction
Document to which it is expressed to be a party are valid, legally
binding and enforceable obligations in accordance with the terms of
each Transaction Document to which it is expressed to be a party,
subject to stamping and any necessary registration and except as
such enforceability may be limited by any applicable bankruptcy,
insolvency, reorganisation, moratorium or trust or general
principles of equity or other similar laws affecting creditors'
rights generally;
(f) (Execution, delivery and performance): its execution, delivery and
performance of each Transaction Document to which it is expressed to
be a party does not violate any existing law or regulation or any
document or agreement to which it is a party or which is binding
upon it or any of its assets;
(g) (Authorisation): all consents, licences, approvals and
authorisations of every Governmental Agency required to be obtained
by it in connection with the execution, delivery and performance of
each Transaction Document to which it is expressed to be a party in
its personal capacity have been obtained and are valid and
subsisting;
(h) (Good title): it is the lawful owner of, and has good right to
charge in the manner provided in this Deed, the Charged Property
and, subject only to the Master Trust Deed, the Series Supplement,
this Deed and the Prior Interest, the Charged Property is free of
all other Security Interests;
(i) (Series Trust validly created): the Series Trust has been validly
created and is in existence at the date of this Deed;
(j) (Sole Trustee): it has been validly appointed as trustee of the
Series Trust and is presently the sole trustee of the Series Trust;
(k) (Master Trust Deed and the Series Supplement): the Series Trust is
solely constituted by the Master Trust Deed and the Series
Supplement;
(l) (No proceedings to remove): it has received no notice and to its
knowledge no resolution has been passed or direction or notice has
been given, removing it as trustee of the Series Trust;
(m) (Trustee's power): it has power under the Master Trust Deed and the
Series Supplement to charge the Charged Property as provided in this
Deed;
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(n) (No breach): it is not in breach of any material provision of the
Master Trust Deed or the Series Supplement;
(o) (No Insolvency Event): no Insolvency Event has occurred and is
continuing in relation to the Trustee; and
(p) (No Litigation): no litigation, arbitration, dispute or
administrative proceeding has been commenced or is pending or, to
the knowledge of the Trustee, threatened by any person which will,
or is likely to have a material and adverse affect on the ability of
the Trustee to perform its obligations under this Deed.
5.2 By the Manager
The Manager represents and warrants to the Security Trustee that:
(a) (Due incorporation): it is duly incorporated and has the corporate
power to own its property and to carry on its business as is now
being conducted;
(b) (Constitution): its execution, delivery and performance of each
Transaction Document to which it is expressed to be a party does not
violate its constitution;
(c) (Corporate power): it has the power and has taken all corporate and
other action required to enter into each Transaction Document to
which it is expressed to be a party and to authorise the execution
and delivery of each Transaction Document to which it is expressed
to be a party and the performance of its obligations under each
Transaction Document to which it is expressed to be a party;
(d) (Filings): it has filed all corporate notices and effected all
registrations with the Australian Securities and Investments
Commission or similar office in its jurisdiction of incorporation
and in any other jurisdiction as required by law and all such
filings and registrations are current, complete and accurate;
(e) (Legally binding obligation): its obligations under each Transaction
Document to which it is expressed to be a party are valid, legally
binding and enforceable obligations in accordance with the terms of
each Transaction Document to which it is expressed to be a party,
except as such enforceability may be limited by any applicable
bankruptcy, insolvency, re-organisation, moratorium or trust or
general principles of equity or other similar laws affecting
creditors' rights generally;
(f) (Execution, delivery and performance): its execution, delivery and
performance of each Transaction Document to which it is expressed to
be a party does not violate any existing law or regulation or any
document or agreement to which it is a party or which is binding
upon it or any of its assets; and
(g) (Authorisation): all consents, licences, approvals and
authorisations of every Governmental Agency required to be obtained
by the Manager in connection with the execution, delivery and
performance of each Transaction Document to which it is expressed to
be a party have been obtained and are valid and subsisting.
(h) (No Litigation); no litigation, arbitration, dispute or
administrative proceeding has been commenced or is pending or, to
the knowledge of the Manager, threatened by any person which will,
or is likely to have a material and adverse affect on the ability of
the Manager to perform its obligations under this Deed.
6. TRUSTEE'S AND MANAGER'S COVENANTS
6.1 Covenants in respect of Charged Property
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The Trustee undertakes that it will not without the prior written consent
of the Security Trustee or as otherwise permitted by this Deed, the
Master Trust Deed or the Series Supplement:
(a) (No Security Interests): subject only to the Prior Interest, attempt
to create or permit to exist any Security Interest howsoever ranking
over any part of the Charged Property; and
(b) (No sale, lease etc.): subject to clause [ ]6.3, convey, assign,
transfer, lease or otherwise dispose or part with possession of,
make any bailment over, or create or permit to exist any other
interest in any part of the Charged Property at any time such part
of the Charged Property is subject to the Charge.
1.2 General Covenants
The Trustee agrees to:
(a) (Comply with Transaction Documents): comply with its obligations and
duties under the Master Trust Deed (in so far as it applies to the
Series Trust), the Series Supplement and the other Transaction
Documents;
(b) (Copy of A$ Securityholder details): at the same time or as soon as
practical after a notice referred to in clause [ ]6.2(e) is given to
the Security Trustee by the Trustee or after the Trustee receives a
notice pursuant to clause [ ]6.4(b), provide to the Security Trustee
and the Class A-1 Note Trustee a current copy of the Register
relating to the Series Trust maintained by the Trustee under clause
[ ]9 of the Master Trust Deed and details (to the extent known by
it) of the identity, and notice details, of each Secured Creditor
and the Secured Moneys owing to each Secured Creditor;
(c) (Assistance to Security Trustee): provide to the Security Trustee,
as the Security Trustee may reasonably require to enable the
Security Trustee to perform its duties and functions under this Deed
(and which the Security Trustee has been unable to obtain from any
other party to the Transaction Documents), such information, copies
of any accounting records and other documents, statements and
reports required to be maintained by, or that are otherwise in the
possession of, the Trustee, or which the Trustee is entitled to
obtain from any person;
(d) (Documents of title): if the Charge has taken effect as a fixed
charge, deposit with the Security Trustee immediately or as soon as
the Trustee receives them:
(1) anything evidencing a Security Interest and any document of
title given to the Trustee to secure the payment of a monetary
obligation to the Trustee; and
(2) any documents of title relating to property over which the
Charge operates as a fixed charge,
where, in such case, such evidence or documents (as the case may
be) are then in the Trustee=s possession or control;
(e) (Notify Events of Default etc.): notify the Security Trustee if it
becomes aware of the occurrence of an Event of Default, a Potential
Event of Default, a Servicer Default, a Perfection of Title Event, a
Trustee Default, a Manager Default or a Potential Termination Event
and provide the Security Trustee with details of such occurrence;
(f) (Not incur unauthorised indebtedness): not give any guarantees or
incur any Borrowings (which does not include debts incurred to trade
creditors in the ordinary course of the Trustee's business as
trustee of the Series Trust) other than as permitted or contemplated
by the Transaction Documents;
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(g) (Not release obligations): not discharge or release any person from
any of their obligations under the Transaction Documents to which
the Trustee is a party save where such discharge or release is in
accordance with the Transaction Documents; and
(h) (Not engage in other activities): not engage (in its capacity as
trustee of the Series Trust) in any business or other activities
except as permitted or contemplated by the Transaction Documents.
6.3 Dealing in Accordance with Master Trust Deed, the Series Supplement etc.
The Trustee may deal with and pay or apply the Charged Property in
accordance with the provisions of the Master Trust Deed, the Series
Supplement and any other Transaction Document at any time that the
Charged Property is subject to the floating charge.
6.4 Manager's Undertaking
The Manager undertakes to the Trustee and the Security Trustee that:
(a) (No direction in breach of clause 6): it will not give any direction
to the Trustee under the Master Trust Deed or the Series Supplement
which would, if complied with, result in the Trustee breaching the
terms of this clause [ ]6; and
(b) (Notification of Events of Default etc.): it will promptly notify
the Trustee and the Security Trustee if it becomes aware of the
occurrence of an Event of Default, a Potential Event of Default, a
Servicer Default, a Perfection of Title Event, a Trustee Default, a
Manager Default or a Potential Termination Event and provide the
Trustee and the Security Trustee with details of such occurrence.
7. EVENTS OF DEFAULT
Each of the following events is an Event of Default whether or not caused
by any reason whatsoever outside the control of any Interested Person or
any other person:
(a) (i) (Trustee retires and replacement not found): the Trustee
retires or is removed, or is required to retire or be
removed, as trustee of the Series Trust in accordance with
clause [ ]19 of the Master Trust Deed, another Authorised
Trustee Corporation is not appointed as trustee of the
Series Trust within 30 days of the occurrence of that event
and the Manager fails within a further 20 days to convene a
meeting of Investors in accordance with clauses [ ]19.3 and
19.4 of the Master Trust Deed;
(ii) (Loss of indemnity): the Security Trustee becomes aware or
is notified by the Manager or the Trustee that the Trustee
is (for any reason) not entitled fully to exercise its
right of indemnity against the Assets of the Series Trust
to satisfy any liability to a Secured Creditor and the
circumstances are not rectified to the reasonable
satisfaction of the Security Trustee within 14 days of the
Security Trustee requiring the Trustee in writing to
rectify them; or
(iii) (Series Trust Imperfectly constituted): the Series Trust is
not properly constituted or is imperfectly constituted in a
manner or to an extent that is regarded by the Security
Trustee (acting reasonably) to be materially prejudicial to
the interests of any Class of Secured Creditor and is
incapable of being remedied or if it is capable of being
remedied this has not occurred to the reasonable
satisfaction of the Security Trustee within 30 days of the
discovery thereof;
(b) (Insolvency Event): an Insolvency Event occurs in relation to the
Trustee;
(c) (Enforcement of Security Interests etc.): distress or execution is
levied or a judgment, order or a Security Interest is enforced, or
becomes enforceable, over any of the Charged Property or any Asset
of the Series Trust for an amount
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exceeding (either individually or in aggregate) A$1,000,000, or can
be rendered enforceable by the giving of notice, lapse of time or
fulfilment of any condition;
(d) (Void or loss of priority): the Charge:
(i) is or becomes wholly or partly void, voidable or
unenforceable; or
(ii) at or after the date of this Deed, loses the priority which
it is expressed to have in clause [_]4.3 (other than as
mandatorily preferred by law or by an act or omission of
the Security Trustee);
(e) (Creates Security Interest): the Trustee breaches the undertaking in
clause [ ]6.1 or attempts to create or allows to exist a Security
Interest over the Charged Property otherwise than in accordance with
the Master Trust Deed, the Series Supplement or this Deed;
(f) (Tax Commissioner's determination): the Commissioner of Taxation, or
its delegate, determines to issue a notice under section 74 of the
Sales Tax Assessment Act 1992, section 34 of the Taxation
Administration Act 1953, sections 260-5 to 260-20 of the Taxation
Administration Act 1953 or section 218 or 255 of the Income Tax
Assessment Act 1936 for any amount due by the Trustee in respect of
any Tax under such Act or any fines and costs imposed on the Trustee
or a Governmental Agency takes any other steps which will result in
an amount of Tax or an amount owing to a Governmental Agency ranking
ahead of the Charge with respect to any Charged Property under any
Statute;
(g) (Failure to Pay Secured Moneys): any Secured Moneys are not paid
within 10 days of when due (other than any Secured Moneys relating
to the Class B Notes); and
(h) (Other Event of Default): any other event occurs which is described
in a Transaction Document as an Event of Default for the purposes of
this Deed.
8. RIGHTS AND OBLIGATIONS OF THE SECURITY TRUSTEE FOLLOWING EVENT OF DEFAULT
8.1 Notify Voting Secured Creditors and Convene Meeting of Voting Secured
Creditors
Without prejudice to the operation of clause [ ]9.2(b), upon becoming
aware of the occurrence of an Event of Default, the Security Trustee must
promptly (and, in any event, within 2 Business Days):
(a) (Notify Secured Creditors and the Rating Agencies): notify all then
Secured Creditors and the Rating Agencies of the Event of Default
and provide to such Secured Creditors and the Rating Agencies full
details of the Event of Default known to the Security Trustee and
the actions and procedures, of which the Security Trustee is aware,
which are being taken or will be taken by the Trustee and the
Manager to remedy the relevant Event of Default; and
(b) (Convene meeting of Voting Secured Creditors): convene a meeting of
the then Voting Secured Creditors and propose the necessary
Extraordinary Resolutions (in both cases in accordance with the
provisions of the Annexure) to seek directions by way of an
Extraordinary Resolution of the then Voting Secured Creditors
regarding the action the Security Trustee should take as a result of
such Event of Default pursuant to clause [ ]8.2.
8.2 Extraordinary Resolutions
At a meeting of the then Voting Secured Creditors referred to in clause
[ ]8.1(b) or by a resolution in writing signed by all Voting Secured
Creditors, the Voting Secured Creditors may direct the Security Trustee
by Extraordinary Resolution to:
(a) (Accelerate Secured Moneys): declare the Secured Moneys immediately
due
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and payable under clause [ ]9.6;
(b) (Appoint Receiver): appoint a Receiver in accordance with clause
[ ]10 and, if a Receiver is to be appointed, the Voting Secured
Creditors must by a further Extraordinary Resolution determine the
amount of the Receiver's remuneration;
(c) (Exercise power of sale): instruct the Security Trustee by notice in
writing to sell and realise the Charged Property and otherwise
enforce the Charge; and/or
(d) (Other action): take such other action that the Security Trustee is
permitted to take under this Deed as the Voting Secured Creditors
may specify in the terms of such Extraordinary Resolution.
8.3 Security Trustee to Act in Accordance with Directions
(a) (Must implement Extraordinary Resolution): Subject to clause [
]8.3(b), the Security Trustee must take all action necessary to give
effect to any Extraordinary Resolution of the Voting Secured
Creditors and must comply with all directions contained in or given
pursuant to any Extraordinary Resolution of the Voting Secured
Creditors.
(b) (Exceptions): The obligation of the Security Trustee pursuant to
clause [ ]8.3(a) is subject to:
(i) this Deed; and
(ii) if required by the Security Trustee (in its absolute
discretion), the Security Trustee being adequately
indemnified to its reasonable satisfaction from the Charged
Property or, if requested at any time before or during the
relevant meeting, the Security Trustee receiving from the
Voting Secured Creditors an indemnity in a form reasonably
satisfactory to the Security Trustee (which may be by way
of an Extraordinary Resolution of the Voting Secured
Creditors) against all actions, proceedings, claims and
demands to which it may render itself liable, and all
costs, charges, damages and expenses which it may incur, in
giving effect to an Extraordinary Resolution of the Voting
Secured Creditors.
(c) (Ranking of indemnities): The Security Trustee must first claim on
its indemnity from the Charged Property and if it does not receive
such indemnity from the Charged Property within 2 Business Days of
the first claim then it may claim on any indemnity from the Voting
Secured Creditors, including any indemnity provided under clause
[ ]8.4.
8.4 Security Trustee Must Receive Indemnity
If:
(a) (Security Trustee requires indemnity): the Security Trustee convenes
a meeting of the Voting Secured Creditors, or is required by an
Extraordinary Resolution of the Voting Secured Creditors to take any
action to enforce this Deed, and advises the Voting Secured
Creditors at any time before or during the meeting that the Security
Trustee will not take that action in relation to the enforcement of
this Deed unless it is personally indemnified by the Voting Secured
Creditors to its reasonable satisfaction against all actions,
proceedings, claims and demands to which it may render itself
liable, and all costs, charges, damages and expenses which it may
incur, in relation to the enforcement of this Deed and put in funds
to the extent to which it may become liable (including costs and
expenses); and
(b) (Voting Secured Creditors refuse to grant indemnity): the Voting
Secured Creditors refuse to grant the requested indemnity and put it
in funds,
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the Security Trustee will not be obliged to act in relation to the
enforcement of this Deed. In these circumstances, the Voting Secured
Creditors may then exercise such powers, and enjoy such protections and
indemnities, of the Security Trustee under this Deed, any Security
Interest or any other document or agreement at any time created or
entered into in favour of the Security Trustee as security for the
Secured Moneys or by law as they determine by Extraordinary Resolution.
The Security Trustee will not be liable in any manner whatsoever if the
Voting Secured Creditors exercise, or do not exercise, the rights given
to them in the preceding sentence.
8.5 Notice to Trustee
If the Voting Secured Creditors pass an Extraordinary Resolution referred
to in clause [ ]8.2 at a meeting convened following an Event of Default,
the Security Trustee must notify the Trustee in writing within 1 Business
Day after such Extraordinary Resolution is so passed.
8.6 Manager convenes meeting
If the Security Trustee fails to convene a meeting, or to propose the
necessary Extraordinary Resolutions, in accordance with clause [ ]8.1(b),
the Manager must convene a meeting of Voting Secured Creditors, or
propose the necessary Extraordinary Resolutions (as the case may be), in
accordance with this clause [ ]8, which meeting is to have only the same
powers as if convened by the Security Trustee and is to be conducted in
accordance with the provisions of the Annexure, in which event all
references in this Deed and the Annexure to the Security Trustee in
relation to the requirements of meetings of Voting Secured Creditors will
be read and construed, mutatis mutandis, as references to the Manager.
8.7 Notice of Event of Default
If the Security Trustee becomes aware of the occurrence of an Event of
Default, and the Trustee has not given the Security Trustee notice in
accordance with clause [ ]6.2(e) the Security Trustee must promptly give
the Trustee notice of the occurrence of the Event of Default.
8.8 Notice of action to remedy Event of Default
If the Trustee and the Manager take any action or procedures to remedy an
Event of Default, both the Trustee and the Manager must keep the Security
Trustee informed of those actions and procedures.
9. ENFORCEMENT
9.1 Power to Deal with and Protection of the Charged Property
If the Charge crystallises and becomes fixed pursuant to the provisions
of this Deed:
(a) (Power to deal with the Charged Property ceases): the Trustee=s
power to deal with the Charged Property will, subject to clauses
[ ]4.5 and 4.6, immediately cease; and
(b) (Protection of Charged Property): the Security Trustee will have
the right either in its own name or in the name of the Trustee to
immediately seek and obtain appropriate relief in relation to that
part of the Charged Property affected or threatened by the
relevant Event of Default.
9.2 Restrictions on Power to Enforce
If an Event of Default occurs, the Security Trustee must not declare the
Secured Moneys immediately due and payable under clause [ ]9.6, appoint a
Receiver under clause [ ]10 or, subject to the operation of clauses
[ ]4.4 to 4.7 (inclusive), otherwise enforce the Charge unless:
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(a) (Voting Secured Creditors authorise action): the Voting Secured
Creditors have passed an Extraordinary Resolution under or
referred to in clause [ ]8.2 or at a meeting convened pursuant to
clause [ ]8.6 or pursuant to clause [ ]2 of the Annexure; or
(b) (Delay would be prejudicial): in the opinion of the Security
Trustee, the delay required to obtain the directions of the Voting
Secured Creditors in accordance with clause [ ]8.2 would be
prejudicial to the interests of the Secured Creditors as a class
(in which case the Security Trustee must take those actions).
9.3 No Obligation to Enforce
Upon the occurrence of an Event of Default, subject to clauses [ ]8.1,
9.2 and 15.3, pending the receipt of directions from the Voting Secured
Creditors as contemplated by clauses [ ]8.2, 8.3 and 8.4, the Security
Trustee is not bound to take any action under this Deed or give any
consent or waiver or make any determination under this Deed (including,
without limiting the generality of the foregoing, to appoint any
Receiver, to declare the Charge enforceable or the Secured Moneys
immediately due and payable or to take any other proceedings). Nothing
in this clause affects the operation of clause [ ]4.4 upon the occurrence
of an Event of Default or the Charge becoming enforceable prior to the
Security Trustee receiving directions from the Voting Secured Creditors.
9.4 Limitation on Rights of Secured Creditors
Subject to clause [ ]8.4:
(a) (Powers Exercisable by Security Trustee only): the powers, rights
and remedies conferred on the Security Trustee by this Deed are
exercisable by the Security Trustee only, and no Secured Creditor is
entitled to exercise the same or any of them; and
(b) (Secured Creditors cannot enforce): without limiting the generality
of the foregoing, no Secured Creditor is entitled to enforce the
Charge or the provisions of this Deed exercisable by the Security
Trustee or to appoint a Receiver to any of the Charged Property or
otherwise to exercise any power conferred by the terms of any
applicable law on chargees.
9.5 Immaterial Waivers
The Security Trustee may, on such terms and conditions as it may deem
expedient, without the consent of the Secured Creditors, and without
prejudice to its rights in respect of any subsequent breach:
(a) (Waiver of Breaches): agree to any waiver or authorisation of any
breach or proposed breach of any of the terms and conditions of
the Transaction Documents ; and
(b) (Waiver of Events of Default): determine that any event that
would otherwise be an Event of Default will not be treated as an
Event of Default for the purpose of this Deed,
which is not, in the opinion of the Security Trustee, materially
prejudicial to the interests of the Secured Creditors as a class. No
such waiver, authorisation or determination may be made in contravention
of any prior directions contained in an Extraordinary Resolution of the
Voting Secured Creditors. Any such waiver, authorisation or
determination will, if the Security Trustee so requires, be notified to
the Secured Creditors by the Manager as soon as practicable after it is
made in accordance with this Deed.
9.6 Acceleration of Secured Moneys following Event of Default
If any Event of Default occurs, at any time thereafter if the Event of
Default is continuing, the Security Trustee may by written notice to the
Trustee and the Manager, declare in
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accordance with this Deed the Secured Moneys to be immediately due and
payable, whereupon the Secured Moneys will immediately become due and
payable (subject to the limitation contained in clause [ ]29 of the
Series Supplement or any equivalent limitation in relation to the
relevant Secured Moneys).
10. RECEIVERS - APPOINTMENT AND POWERS-
10.1 Appointment of Receiver
(a) (Conditions of appointment): Following the occurrence of an Event of
Default, if the Voting Secured Creditors pass the Extraordinary
Resolutions under or referred to in clause [ ]8.2(a), the Security
Trustee must appoint in writing a person or persons to be a receiver
or receiver and manager of the Charged Property to deal with the
Charged Property in accordance with any instructions given by the
Voting Secured Creditors by Extraordinary Resolution and may
withdraw the appointment of any such Receiver as to the Charged
Property and in case of the removal, retirement or death of any such
Receiver may appoint another person or persons in its place on
substantially the same terms as the previous Receiver.
(b) (No liability for Receiver): Neither the Trustee nor the Security
Trustee will be responsible for anything done or not done by a
Receiver. However, the Security Trustee must to the extent of a
prudent security trustee monitor the performance by any person or
persons appointed by it under clause [ ]10.1(a) of that person's or
those persons' duties as Receiver of the Charged Property.
10.2 Joint Receivers
If more than one person is appointed as a Receiver of the Charged
Property, the Security Trustee may specify whether such appointment and
the powers of each such person will at its option be joint or joint and
several and, failing such specification, such appointment and the powers
of each such person will be deemed to be joint and several.
10.3 Remuneration of Receiver
The Security Trustee must fix the remuneration of a Receiver in
accordance with the terms of the Extraordinary Resolution passed under
clause [ ]8.2(b).
10.4 Indemnification of Receiver
Without limiting the generality of clause [_]10.7, each Receiver must be
granted an indemnity for its remuneration, costs, liabilities and
expenses by the Security Trustee. However, the Security Trustee will not
be required to grant such indemnity to a Receiver unless it is reasonably
satisfied that its liability under that indemnity is limited so as not to
exceed the Security Trustee=s right of indemnity out of the Security
Trust Fund. Any moneys payable by the Security Trustee under such an
indemnity must be paid out of the Charged Property in accordance with
this Deed and will form part of the Secured Moneys.
10.5 Appointment over part
The power to appoint a Receiver over all of the Charged Property may be
exercised whether or not a Receiver has already been appointed over part
of it.
10.6 Powers of Receiver
A Receiver, without the need for any consent from the Trustee, has all of
the following powers in addition to any of the other powers conferred by
this Deed:
(a) (To take possession): to enter, take possession of, have access to,
make use of and collect and manage the Charged Property;
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(b) (To collect moneys): to convert, liquidate and reduce the Charged
Property into money and, except as provided in clause [ ]13.6, to
convert any of the Charged Property denominated in a Foreign
Currency into Australian dollars;
(c) (To carry on business): to carry on or concur in carrying on any
business then conducted by the Trustee and to effect all insurances
and do all acts which the Trustee might do in the ordinary course of
such business for the protection or improvement of the Charged
Property;
(d) (To borrow or raise money): to borrow or raise in any way from the
Security Trustee or any other person any moneys which may be
required for the purposes referred to in this Deed and in the name
of the Trustee or otherwise to secure any moneys so borrowed or
raised by the grant of any Security Interest over the Charged
Property or any part thereof so that such Security Interest ranks in
priority to, equally with or after the Charge, provided that the
Security Trustee will not be bound to enquire as to the necessity or
propriety of any such borrowing or raising nor be responsible for
the misapplication or non-application of any moneys so borrowed or
raised;
(e) (To employ): to employ managers, solicitors, auctioneers, brokers,
consultants, professional advisers, workmen, officers, agents,
employees and servants, including any person associated with a firm
or company in which the Receiver is a member or in which he is
interested and such person may charge for his services as if he had
been independently retained for all or any of the purposes in this
Deed referred to at such salaries or remuneration as the Receiver
thinks fit and without the need for further enquiry and, without
thereby incurring any liability to the Trustee, may act upon such
person's advice as to the timing of or any incident or term of any
sale including whether or not the Charged Property should be offered
for sale by auction and as to the need for and amount of any reserve
price and as to the adequacy of any rent or of any price obtainable
on sale by private treaty;
(f) (To sell property): to sell or concur in selling whether or not the
Receiver has taken possession of the Charged Property, by public
auction, private treaty or tender, for cash or on credit, in one lot
or in parcels with or without special conditions or stipulations as
to title, the time and the mode of payment of purchase moneys and
otherwise, as the Receiver thinks fit with power to allow the
purchase moneys to remain on mortgage over the property sold or on
any other security or without any security and upon such other terms
and conditions as the Receiver considers expedient with full power
to buy in and to rescind or vary any contract for sale and to resell
without being responsible for loss and to exercise all or any rights
powers and remedies of the Trustee thereunder and to execute such
contracts, deeds, agreements, transfers, assignments and assurances
of all or any part of the Charged Property in the name and on behalf
of the Trustee or otherwise and to do all other acts and things for
implementing and completing any such sale that the Receiver deems
necessary;
(g) (To give up possession): to give up possession of the Charged
Property at any time;
(h) (To invest proceeds against contingencies): if any of the Secured
Moneys are contingent, to invest deposit or hold any part of the
Charged Property in such form or in such mode of investment for the
time being as the Receiver in its absolute discretion thinks fit,
with like power to vary, transpose or re-invest such investments or
deposits from time to time until such part of the Secured Moneys
cease to be contingent;
(i) (To enter into contracts): to enter into, vary or terminate any
contract, undertaking, covenant, instrument, obligation or
arrangement with any person for any purpose connected with this Deed
or the Charged Property or in furtherance of any power in this Deed
upon such terms and conditions as the Receiver in its absolute
discretion thinks fit including, without limitation,
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granting or conferring options to in favour of or exercisable by any
person for the purpose of or in connection with the sale, purchase,
leasing or hiring of the Charged Property;
(j) (To perform contracts): to perform, observe and carry out and
enforce specific performance of, to exercise or refrain from
exercising, the Trustee=s rights and powers under, to obtain the
benefit of and to vary or rescind, all contracts and rights forming
part of the Charged Property and all instruments and arrangements
entered into or held by the Trustee;
(k) (To take proceedings): to institute, conduct or defend any
proceedings in law, equity or bankruptcy and to submit to
arbitration in the name of the Trustee or otherwise and on any terms
any proceeding, claim, question or dispute in connection with the
Charged Property or otherwise;
(l) (To compromise): to make any settlement, arrangement or compromise
regarding any action or dispute arising in connection with the
Charged Property, to grant to any person involved therein time or
other indulgence and to execute such releases or discharges in
connection therewith as the Receiver thinks expedient in the
interests of the Security Trustee;
(m) (To appeal): to appeal against or to enforce any judgment or order;
(n) (To bankrupt debtors and wind-up companies): to make debtors
bankrupt and to wind-up companies and to do all things in connection
with any bankruptcy or winding up which the Receiver thinks
necessary for the recovery or protection of the Charged Property or
any part thereof or for the security or other benefit of the
Security Trustee or the Secured Creditors;
(o) (To delegate): with the consent in writing of the Security Trustee,
to delegate to any person for such time or times as the Security
Trustee approves, any of the powers in this Deed conferred upon the
Receiver including this power of delegation;
(p) (To file): to file all certificates, registrations and other
documents and to take any and all action on behalf of the Trustee
which the Security Trustee or Receiver believes necessary to
protect, preserve or improve any or all of the Charged Property and
the rights of the Trustee and the Security Trustee in respect of any
agreement for sale and to obtain for the Security Trustee all of the
benefits of this Deed and in particular the placing of the Trustee
into liquidation or the appointment of a Receiver is deemed to be an
event against which the Security Trustee may protect its rights;
(q) (To operate bank accounts): to operate to the exclusion of the
Trustee any bank account in the name of the Trustee whether alone or
jointly and to withdraw any moneys to the credit of such account and
to sign and endorse or to authorise others to sign and endorse in
the name of the Trustee cheques, promissory notes, bills of exchange
and other negotiable instruments;
(r) (To exercise Trustee=s powers): to exercise all the powers, rights
and entitlements conferred upon the Trustee under the terms of, or
pursuant to the general law or Statute in respect of, any Charged
Property;
(s) (To do all other things necessary): to do all things necessary to
perform observe and fulfil any of the covenants on the part of the
Trustee under this Deed; and
(t) (To do such things as are expedient): to do all such other acts and
things without limitation as it thinks expedient for the interests
of the Security Trustee or the Secured Creditors,
and will have such further powers and discretions as the Security Trustee
by notice in
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writing to the Receiver confers upon the Receiver for the purposes
referred to in this clause [ ]10.6.
10.7 Indemnity
The Security Trustee may give such indemnities to the Receiver in respect
of the performance by the Receiver of his duties as are permitted by law
and if the Security Trustee is obliged to pay any moneys pursuant to any
such indemnity the same will become part of the Secured Moneys.
11. POWERS AND PROTECTIONS FOR SECURITY TRUSTEE AND RECEIVER AND POWER OF
ATTORNEY
11.1 Security Trustee has Powers of Receiver
At any time after an Event of Default occurs, the Security Trustee, in
addition to the powers conferred on it by any other provision of this
Deed or by law, may, without giving any notice, exercise all or any of
the powers conferred on a Receiver, or which would be conferred on a
Receiver if appointed by this Deed, as if the same had been expressly
conferred on the Security Trustee and the Security Trustee may itself
exercise such powers, authorities and discretions and/or may appoint an
agent or joint and/or several agents for that purpose. When any such
agent(s) are appointed the Security Trustee may:
(a) (Remuneration of agent): fix the remuneration of such agent(s)
upon the same basis that such agent(s) would have been entitled to
remuneration if appointed as Receiver(s) pursuant to the
provisions of clause [ ]10.3 or otherwise pay the reasonable
charges of such agent(s);
(b) (Withdraw appointment of agent): withdraw the appointments of any
such agent(s); and
(c) (Appoint another agent): in the case of the removal, retirement or
death of any such agent(s) may appoint another person or persons
in its place.
11.2 Act Jointly
The Security Trustee or Receiver may exercise any of the powers conferred
upon the Security Trustee or the Receiver in conjunction with the
exercise of similar powers by the holder of any other Security Interests
over the Charged Property or part thereof or by any receiver appointed by
such holder and may enter into and give effect to such agreements and
arrangements with such other holder or receiver as the Security Trustee
or Receiver thinks fit.
11.3 No Liability for Loss
The Security Trustee is not nor is any Receiver liable or otherwise
accountable for any omission, delay or mistake or any loss or
irregularity in or about the exercise, attempted exercise, non-exercise
or purported exercise of any of the powers of the Security Trustee or of
the Receiver except for fraud, negligence or wilful default.
11.4 No Liability to Account as Mortgagee in Possession
Neither the Security Trustee nor any Receiver will by reason of the
Security Trustee or the Receiver entering into possession of the Charged
Property or any part thereof be liable to account as mortgagee or chargee
in possession or for anything except actual receipts or be liable for any
loss upon realisation or for any default, omission, delay or mistake for
which a mortgagee or chargee in possession might be liable.
11.5 No Conflict
The Security Trustee and any Receiver may exercise any power under this
Deed notwithstanding that the exercise of that power involves a conflict
between any duty owed to the Trustee by the Security Trustee or such
Receiver and:
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(a) (Duty owed to others): any duty owed by the Security Trustee or
Receiver to any other person; or
(b) (Interest of others): the interests of the Security Trustee or
Receiver.
11.6 Contract Involving Conflict of Duty
Any contract which involves any such conflict of duty or interest will
not be void or voidable by virtue of any such conflict of duty or
interest nor will the Security Trustee or Receiver be liable to account
to the Trustee or any other person for any moneys because of any such
conflict of interest or duty.
11.7 Power of Attorney
The Trustee irrevocably appoints the Security Trustee, each Authorised
Officer of the Security Trustee, any Receiver and such other person or
persons as any of such Authorised Officers or Receiver (with, in the case
of the Receiver, the prior consent of the Security Trustee) may for that
purpose from time to time appoint, severally, the attorney and attorneys
of the Trustee to, upon the occurrence of an Event of Default:
(a) (Acts): do all acts and things that under this Deed or implied in
this Deed ought to be done by the Trustee;
(b) (Registration): take all such steps and proceedings and to do and
execute all such acts, deeds and things for securing, perfecting and
registering this Deed;
(c) (Further assurance): execute in favour of the Trustee all such legal
mortgages, fixed charges, transfers, assignments and other
assurances of all or any part of the Charged Property and to do at
any time all things necessary to ensure the expeditious stamping and
registration of such mortgages, charges, transfers, assignments and
other assurances;
(d) (Commence proceedings): in the name and on behalf of the Trustee or
in the name of the Security Trustee or the said attorney to ask
demand sue for recover and receive of and from all and every person
whomsoever and to give effectual receipts for all or any part of the
Charged Property;
(e) (Delegate): delegate such of its powers (including, and where
applicable, this power of delegation) as the Security Trustee would
be entitled to delegate under clause [ ]14.3(k) if it held those
powers in its own right rather than as attorney of the Trustee to
any person for any period and may revoke a delegation;
(f) (Conflicts): exercise or concur in exercising its powers even if the
attorney has a conflict of duty in exercising its powers or has a
direct or personal interest in the means or result of that exercise
of powers; and
(g) (Further acts): perform and execute all such further and other acts
deeds matters and things which will become necessary or be regarded
by the Security Trustee or the said attorney as necessary for more
satisfactorily securing the payment of the Secured Moneys or as
expedient in relation to the Charged Property,
as effectually as the Trustee could or might do and for all or any of the
purposes described in paragraphs (a) to (g) above appoint any substitute
or substitutes for any such attorney and to remove at pleasure any
attorney or substitute. The Trustee ratifies and confirms and agrees to
allow, ratify and confirm all and whatsoever its attorney lawfully does
or causes to be done under and by virtue of this power of attorney and
declares that this power of attorney is to continue to be of full force
and effect until all such acts, deeds, payments, matters and things as
the Security Trustee thinks proper to execute, perform, make, institute
or carry through have been done, made and completed notwithstanding the
determination of this Deed or of the agreements and arrangements referred
to in this Deed.
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The Trustee declares that this power of attorney is
irrevocable and is given as security.
11.8 Security Trustee May Make Good Default
If the Trustee defaults in duly performing, observing and fulfilling any
covenant on the part of the Trustee in this Deed contained or implied it
will be lawful for, but not obligatory upon the Security Trustee, without
prejudice to any other power of the Security Trustee, to do all things
and pay all moneys necessary or expedient in the opinion of the Security
Trustee to make good or to attempt to make good such default to the
satisfaction of the Security Trustee and all such moneys will form part
of the Secured Moneys.
11.9 Notice for Exercise of Powers
(a) (No notice required): The powers conferred on the Security Trustee
or the Receiver by this Deed, by any Statute or by the general law
may be exercised by the Security Trustee, the Receiver or any
attorney of the Trustee under this Deed, immediately upon or at any
time after the Charge becomes enforceable without any notice or
expiration of time being necessary.
(b) (Where notice is mandatory): 1 day is fixed as the period:
(i) for which an Event of Default must continue before the
Security Trustee may serve any notice in writing as may be
specified in any Statute affecting the Security Trustee's
powers; and
(ii) for which an Event of Default must continue after the
service of notice before any power of sale given by any
such Statute may be exercised.
11.10 Benefit for Receiver etc.
The Security Trustee will be deemed to have accepted the benefit of this
clause 11 as agent for the Receiver and any attorney, agent or other
person appointed under this Deed or by the Security Trustee who are not
parties to this Deed and the Security Trustee will hold the benefit of
such provisions on trust for the benefit of those grantees.
12. PROTECTION OF PERSONS DEALING WITH SECURITY TRUSTEE OR RECEIVER
12.1 No Enquiry
No purchaser or other person dealing with the Security Trustee, the
Receiver or any attorney appointed under this Deed or to whom is tendered
for registration an instrument executed by the Security Trustee, the
Receiver or any attorney appointed under this Deed, will be bound to
inquire as to whether any Event of Default has occurred or whether the
Charge has become enforceable or whether any Secured Moneys are owing or
payable or whether the Receiver or attorney has been properly appointed
or the propriety or regularity of the exercise or purported exercise of
any power by the Security Trustee, the Receiver or such attorney or any
other matter or thing or be affected by actual or constructive notice
that any lease, sale, dealing or instrument is unnecessary or improper
and notwithstanding any irregularity or impropriety in any lease, sale,
dealing or instrument the same will as regards the protection and title
of the lessee, purchaser or such other person be deemed to be authorised
by the aforesaid powers and will be valid and effectual accordingly.
12.2 Receipts
The receipt of the Security Trustee, the Receiver or any attorney
appointed under this Deed of any moneys or assets which come into the
hands of the Security Trustee, the Receiver or such attorney by virtue of
the powers of the Security Trustee, the Receiver or the attorney will as
to the moneys or assets paid or handed over effectually discharge the
person, other than the Trustee, paying or handing over the money or
assets from being concerned to see to the application or being answerable
or accountable for any loss or misapplication thereof and from any
liability to inquire whether the Charge has become enforceable or whether
the Secured Moneys have become payable pursuant to the provisions of this
Deed or otherwise
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as to the propriety or regularity of the appointment of such Receiver or
attorney or the propriety or regularity of the exercise of such powers by
the Security Trustee, the Receiver or the attorney (as the case may be).
13. APPLICATION OF MONEYS
13.1 Priority of Payments
Subject to clause [ ]13.6, all moneys received in connection with this
Deed by the Security Trustee or by the Receiver in relation to the
Charged Property pursuant to the provisions of this Deed are to be
applied as follows:
(a) (Security Trustee's indemnity and the Prior Interest): first,
rateably towards satisfaction of amounts which become owing or
payable under clauses [ ]16.1, 16.2 and 16.3 (except the Receiver's
remuneration) and in payment of the Prior Interest;
(b) (Fees): second, in payment rateably of any fees due to the Security
Trustee, the Class A-1 Note Trustee or the Principal Paying Agent
and the Receiver's remuneration;
(c) (Outgoings): third, in payment rateably of such other outgoings
and/or liabilities that the Receiver, the Security Trustee or the
Class A-1 Note Trustee has incurred in performing their obligations,
or exercising their powers, under this Deed and, in the case of the
Class A-1 Note Trustee, under the Class A-1 Note Trust Deed;
(d) (Payment of prior Security Interest): fourth, in payment of other
Security Interests (if any) over the Charged Property of which the
Security Trustee is aware having priority to the Charge (other than
the Prior Interest), in the order of their priority (and the
Security Trustee and the Receiver are entitled to rely upon a
certificate from the holder of the prior Security Interest as to the
amount so secured and will not be bound to enquire further as to the
accuracy of that amount or as to whether that amount or any part
thereof is validly secured by such other prior Security Interest);
(e) (Payment of Class A-1 Currency Swap Termination Proceeds to Class A-
1 Noteholders): fifth, in payment to the Class A-1 Noteholders of
the Class A-1 Currency Swap Termination Proceeds (if any) toward
satisfaction of any Secured Moneys owing in relation to the Class A-
1 Notes (such Secured Moneys for this purpose will be denominated in
US dollars);
(f) (Payment of Outstanding Cash Advance Deposit): sixth, in payment to
the Liquidity Facility Provider of the Outstanding Cash Advance
Deposit;
(g) (Payment of Accrued Interest Adjustment): seventh, in payment to the
Seller of so much of the Accrued Interest Adjustment in respect of
the Mortgage Loans forming part of the Assets of the Series Trust
that has not then been paid to the Seller;
(h) (Payment of Secured Moneys to Senior Securityholders, the Hedge
Providers, the Liquidity Facility Provider, the Standby Redraw
Facility Provider and the Seller): eighth, in payment rateably:
(i) subject to clause [ ]13.5(b) in the case of the Class A-1
Noteholders, to the Senior Securityholders of all other Secured
Moneys owing in relation to the Senior Securities (the Secured
Moneys owing in respect of the principal component of the Senior
Securities for this purpose will be calculated based on their
Stated Amount and such Secured Moneys in respect of the Class A-
1 Notes will be converted from US dollars to Australian dollars
in accordance with clause [ ]13.5(a)), to be applied amongst
them:
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A. first, towards all interest accrued but unpaid on the
Senior Securities at that time (to be distributed
rateably amongst the Senior Securities); and
B. second, in reduction of the Stated Amount in respect of
the Senior Securities at that time (to be distributed
rateably amongst the Senior Securities);
(ii) to the Liquidity Facility Provider of any other Secured Moneys
owing to the Liquidity Facility Provider under the Liquidity
Facility Agreement;
(iii) to the Standby Redraw Facility Provider of any Secured Moneys
owing to the Standby Redraw Facility Provider under the Standby
Redraw Facility Agreement (the Secured Moneys owing in respect
of the principal component of the Standby Redraw Facility
Agreement for this purpose will be calculated by reference to
the Standby Redraw Facility Principal);
(iv) to each Hedge Provider rateably of all Secured Moneys owing to
that Hedge Provider under the Hedge Agreements; and
(v) to the Seller of the amount of all then Seller Advances which
have not been repaid to the Seller in accordance with the
Series Supplement and the then Seller Deposit;
(i) (Payment of other Secured Moneys for Senior Securityholders): subject
to clause [ ]13.5(b) in the case of the Class A-1 Noteholders, to the
Senior Securityholders and the Standby Redraw Facility Provider of
all Unreimbursed Principal Charge-Offs constituting remaining Secured
Moneys owing in respect of the Senior Securities or Standby Redraw
Facility Agreement (such Secured Moneys in respect of the Class A-1
Notes will be converted from US dollars to Australian dollars in
accordance with clause [ ]13.5(a)) to be distributed rateably amongst
the Senior Securityholders and the Standby Redraw Facility Provider;
(j) (Payment of Exchange Rate differential to Class A-1 Noteholders): if
after the application of clause [ ]13.5(b) in respect of any
Australian dollar payments under clauses [ ]13.1(h) and (i), and
after the application of clause [ ]13.1(e), there are still Secured
Moneys owing in respect of the Class A-1 Notes (denominated in US
dollars), ninth in payment, subject to clause [ ]13.5(b), amongst the
Class A-1 Notes of such remaining Secured Moneys owing in relation to
the Class A-1 Notes until, after the further application of clause [
]13.5(b), all Secured Moneys owing in respect of the Class A-1 Notes
(denominated in US dollars) are paid to the Class A-1 Noteholders;
(k) (Payment of Secured Moneys to Class B Noteholders): tenth, to the
Class B Noteholders of all Secured Moneys owing in relation to the
Class B Notes to be applied amongst them:
(1) first, towards all interest accrued but unpaid on the Class B
Notes at that time (to be distributed equally amongst such Class
B Notes); and
(2) second, in reduction of the Invested Amount in respect of the
Class B Notes at that time (to be distributed equally amongst
the Class B Notes);
(l) (Other Secured Moneys): eleventh, to pay rateably to each Secured
Creditor any remaining amounts forming part of the Secured Moneys and
owing to that Secured Creditor;
(m) (Subsequent Security Interests): twelfth, in payment of subsequent
Security Interests over the Charged Property of which the Security
Trustee is aware, in the order of their priority and the Security
Trustee and the Receiver will be entitled to rely upon a certificate
from the holder of any subsequent Security Interests as to the amount
so secured and will not be bound to enquire further as to the
accuracy of that amount or as to whether that amount or any part
thereof is validly secured by the subsequent Security Interests; and
(n) (Surplus): thirteenth, to pay the surplus (if any) to the Trustee to
be distributed
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by the Trustee in accordance with the terms of the Master Trust Deed
and the Series Supplement, but will not carry interest as against the
Security Trustee.
13.2 Moneys Received
In applying any moneys towards satisfaction of the Secured Moneys, the
Trustee will be credited only with so much of the moneys available for
that purpose as the Security Trustee or the Receiver has actually
received and is not required for whatever reason to be disgorged, such
credit to date from the time of such receipt.
13.3 Application of Moneys
Notwithstanding any principle or presumption of law to the contrary or
any direction given at the time of it being received by the Security
Trustee or the Receiver, the Security Trustee and the Receiver each has,
subject to this Deed, an absolute discretion without the need to
communicate its election to any person to apply any payment or credit
received by it under this Deed in reduction of any part or parts of the
Secured Moneys, whenever and on whatever account the same became secured.
13.4 Investment of Funds
Unless expressly provided in this Deed, all moneys received by the
Security Trustee following the Charge becoming enforceable and not
required to be immediately applied under this Deed will be invested by
the Security Trustee as it thinks appropriate in Authorised Short-Term
Investments on the following terms and conditions:
(a) (May vary): the Security Trustee may from time to time vary and deal
with or dispose of such investments; and
(b) (Maturity): the Security Trustee must invest only in Authorised
Short-Term Investments that mature such that the Security Trustee is
able to distribute the proceeds of those investments in or towards
discharge of the Secured Moneys as they become due and payable.
13.5 Conversion into A$ of Class A-1 Notes denominated in US$
(a) (Conversion for the purposes of clauses [ ]13.1(h)(i) and 13.1(i)):
in calculating the amount of any Secured Moneys to be distributed to
the Class A-1 Noteholders in accordance with clauses [ ]13.1(h)(i)
and 13.1(i), the Security Trustee will convert the amount of such
Secured Moneys from US dollars to Australian dollars at the exchange
rate below which produces the lowest amount in Australian dollars:
(i) the A$ Exchange Rate; or
(ii) the spot exchange rate as advised to the Security Trustee by
the Manager between US dollars and Australian dollars used for
the calculation of any amounts payable on the occurrence of an
"Early Termination Date" (if any) under the Class A-1 Currency
Swaps (or, if different, the average of such rates).
(b) (Payments in US$): All actual payments to the Class A-1 Noteholders
by the Security Trustee pursuant to this Deed must be made in US
dollars. The Security Trustee must convert (and pay to the Class A-1
Noteholders) all Australian dollar amounts payable to the Class A-1
Noteholders under clauses [ ]13.1(h) and (i) (and, if applicable,
clause [ ]13.1(j)) at the rate that it is able to acquire US dollars
in the Australian spot foreign exchange market. It need only apply
so many Australian dollars for this purpose as is sufficient to
acquire the necessary US dollars, when combined with the US dollars
(if any) from the application of clause [ ]13.1(e), as equals the
Secured Moneys (denominated in US dollars) owing in respect of the
Class A-1 Notes. If, after the application of this clause
[ ]13.5(b), there is any surplus of Australian dollars these are to
be applied in accordance with clause [ ]13.1(h) to the other Secured
Creditors
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referred to therein (if necessary) and clauses [ ]13.1(k)-(n) (as
applicable);
(c) (Voting Entitlements): In calculating the Secured Moneys in respect
of the Class A-1 Notes for the purposes of the definitions of
"Voting Entitlements" and "Voting Secured Creditors" and the Secured
Moneys for the Annexure, such Secured Moneys will be converted to
Australian dollars from US dollars in accordance with clause
[ ]13.5(a).
13.6 Application of Class A-1 Currency Swap Termination Proceeds
Any Class A-1 Currency Swap Termination Proceeds received by the Security
Trustee must be retained by the Security Trustee in US dollars and must
be invested by it in a US dollar interest bearing account with a bank or
other financial institution selected by it and must be applied, if there
are any Secured Moneys owing in respect of the Class A-1 Notes, first in
accordance with clause [_]13.1(e). If there are no such Secured Moneys
owing in respect of the Class A-1 Notes, or only part of the Class A-1
Swap Termination Proceeds are sufficient to pay all Secured Moneys
(denominated in US dollars) owing in respect of the Class A-1 Notes, the
balance may be converted to Australian dollars for application in
accordance with clause [_]13.1.
13.7 Satisfaction of Debts
Each Secured Creditor will accept the distribution of money to it under
clause [_]13.1 in full and final satisfaction of all Secured Moneys owing
to it and any debt represented by any shortfall after any final
distribution under clause [_]13.1 will thereupon be extinguished.
14. SUPPLEMENTAL SECURITY TRUSTEE PROVISIONS
14.1 Limitations on Powers and Duties of Security Trustee
Notwithstanding any other provision of this Deed, unless and until there
is an Event of Default, the Security Trustee has no powers, rights,
duties or responsibilities other than:
(a) (To hold on Trust): the duty to hold the Security Trust Fund on
trust;
(b) (To take the benefit of the Charge): the power to take the benefit
of the Charge (but not to take any action to enforce the Charge);
and
(c) (Pre-Default Action): the power to perform a Pre-Default Action.
Prior to the Security Trustee becoming aware of the occurrence of an
Event of Default, the Security Trustee is not required to take and may
not take any action under this Deed other than Pre-Default Actions.
14.2 Limitation on Security Trustee's Actions
Notwithstanding knowledge by or notice to the Security Trustee of any
breach, anticipatory or actual, of, or default under, any covenant,
obligation, condition or provision by the Trustee or the Manager
contained in or imposed by any Transaction Document, the Security Trustee
is only required to take all such steps and do all such things as it is
empowered to do having regard to the powers, authorities and discretions
vested in it pursuant to this Deed and the obligations imposed on the
Security Trustee by this Deed.
14.3 Additional Powers, Protections, etc.
By way of supplement to any Statute regulating the Security Trust and in
addition to the powers, rights and protections which may from time to
time be vested in or available to the Security Trustee by the general
law, it is expressly declared, notwithstanding anything to the contrary
in this Deed (and subject only to clause [_]15.2) as follows:
(a) (Liability to account): The Security Trustee is under no obligation
to account to any Interested Person for any moneys received pursuant
to this Deed other than
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those received by the Security Trustee from the Trustee or received
or recovered by the Security Trustee or the Receiver under this
Deed, subject always to such deductions and withholdings by the
Security Trustee or the Receiver as are authorised by this Deed.
Subject to clauses [ ]14.4 and 15.3, the liabilities of the Security
Trustee to any Interested Person or any other person under or in
connection with this Deed can only be enforced against the Security
Trustee to the extent to which they can be satisfied out of such
moneys in accordance with this Deed.
(b) (Act on professional advice): The Security Trustee may act on the
opinion or advice of, or information obtained from, any lawyer,
valuer, banker, broker, accountant or other expert appointed by the
Security Trustee or by a person other than Security Trustee where
that opinion, advice or information is addressed to the Security
Trustee or by its terms is expressed to be capable of being relied
upon by the Security Trustee. The Security Trustee will not be
responsible to any Interested Person for any loss occasioned by so
acting. Any such opinion, advice or information may be sent or
obtained by letter, telex or facsimile transmission and the Security
Trustee will not be liable to any Interested Person for acting in
good faith on any opinion, advice or information purporting to be
conveyed by such means even though it contains some error which is
not a manifest error or is not authentic.
(c) (No enquiry): The Security Trustee is not bound to give notice to
any person of the execution of this Deed or to take any steps to
ascertain whether there has occurred any Event of Default or event
which, with the giving of notice or the lapse of time would
constitute an Event of Default or to keep itself informed about the
circumstances of the Trustee or the Manager and, until it has
knowledge or express notice to the contrary, the Security Trustee
may assume that no Event of Default has occurred and that the
Trustee and the Manager and any other party to the Transaction
Documents (other than the Security Trustee) are observing and
performing all the obligations on their part contained in the
Transaction Documents and need not inquire whether that is, in fact,
the case.
(d) (Notice of Event of Default): The Security Trustee is not obliged to
notify the Secured Creditors of the happening of any Event of
Default except in the circumstances set out in clause [ ]8.1.
(e) (Acts pursuant to resolutions): The Security Trustee will not be
responsible for having acted in good faith upon any resolution
purporting to have been passed at any meeting of the Voting Secured
Creditors in respect of which minutes have been made and signed even
though it may subsequently be found that there was some defect in
the constitution of such meeting or the passing of such resolution
or that for any reason such resolution was not valid or binding upon
the Secured Creditors or upon the Security Trustee.
(f) (Reliance): The Security Trustee is, for any purpose and at any
time, entitled to rely on, act upon, accept and regard as conclusive
and sufficient (without being in any way bound to call for further
evidence or information or being responsible for any loss that may
be occasioned by such reliance, acceptance or regard) any of the
following:
(i) any information, report, balance sheet, profit and loss
account, certificate or statement supplied by the Trustee
or the Manager or by any officer, auditor or solicitor of
the Trustee or the Manager;
(ii) all statements (including statements made or given to the
best of the maker's knowledge and belief or similarly
qualified) contained in any information, report, balance
sheet, profit and loss account, certificate or statement
given pursuant to or in relation to this Deed, the Master
Trust Deed or the Series Supplement;
(iii) all accounts supplied to the Security Trustee pursuant to
this Deed and all reports of the Auditor supplied to the
Security Trustee pursuant to this Deed; and
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(iv) notices and other information supplied to the Security
Trustee under this Deed,
save, in each case, when it is aware that the information supplied
pursuant to subclauses (i) to (iv) is incorrect or incomplete.
(g) (Director's certificates): The Security Trustee may call for and may
accept as sufficient evidence of any fact or matter or of the
expediency of any dealing, transaction, step or thing a certificate
signed by any two directors or duly authorised officers of the
Trustee or the Manager as to any fact or matter upon which the
Security Trustee may, in the exercise of any of its duties, powers,
authorities and discretions under this Deed, require to be satisfied
or to have information to the effect that in the opinion of the
person or persons so certifying any particular dealing, transaction,
step or thing is expedient and the Security Trustee will not be
bound to call for further evidence and will not be responsible for
any loss that may be occasioned by acting on any such certificate.
(h) (Custody of documents): The Security Trustee may hold or deposit
this Deed and any deed or documents relating to this Deed or to the
Transaction Documents with any banker or banking company or entity
whose business includes undertaking the safe custody of deeds or
documents or with any lawyer or firm of lawyers believed by it to be
of good repute and the Security Trustee will not be responsible for
any loss incurred in connection with any such holding or deposit and
may pay all sums to be paid on account of or in respect of any such
deposit.
(i) (Discretion): The Security Trustee, as regards all the powers,
trusts, authorities and discretions vested in it, has, subject to
any express provision to the contrary contained in this Deed,
absolute and uncontrolled discretion as to the exercise of such
powers, authorities, trusts and discretions and, in the absence of
fraud, negligence or wilful default on its part, will be in no way
responsible to any Interested Person or any other person for any
loss, costs, damages, expenses or inconvenience which may result
from the exercise or non-exercise of such powers, authorities,
trusts and discretions.
(j) (Employ agents): Wherever it considers it expedient in the interests
of the Secured Creditors, the Security Trustee may, instead of
acting personally, employ and pay an agent selected by it, whether
or not a lawyer or other professional person, to transact or
conduct, or concur in transacting or conducting any business and to
do or concur in doing all acts required to be done by the Security
Trustee (including the receipt and payment of money under this
Deed). The Security Trustee will not be responsible to any
Interested Person for any misconduct, or default on the part of any
such person appointed by it under this Deed or be bound to supervise
the proceedings or acts of any such person, provided that any such
person will be a person who is in the opinion of the Security
Trustee appropriately qualified to do any such things and is
otherwise selected with reasonable care and in good faith. Any such
agent being a lawyer, banker, broker or other person engaged in any
profession or business will be entitled to charge and be paid all
usual professional and other charges for business transacted and
acts done by him or her or any partner of his or her or by his or
her firm in connection with this Deed and also his or her reasonable
charges in addition to disbursements for all other work and business
done and all time spent by him or her or his or her partners or firm
on matters arising in connection with this Deed including matters
which might or should have been attended to in person by a trustee
not being a lawyer, banker, broker or other professional person.
(k) (Delegation): Subject to clause [ ]14.7, the Security Trustee may
whenever it thinks it expedient in the interests of Secured
Creditors, delegate to any person or fluctuating body of persons
selected by it all or any of the duties, powers, authorities, trusts
and discretions vested in the Security Trustee by this Deed provided
that, except as provided in any Transaction Documents, the Security
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Trustee may not delegate to such third parties any material part of
its powers, duties or obligations as Security Trustee. Any such
delegation may be by power of attorney or in such other manner as
the Security Trustee may think fit and may be made upon such terms
and conditions (including power to sub-delegate) and subject to such
regulations as the Security Trustee may think fit. Provided that the
Security Trustee has exercised reasonable care and good faith in the
selection of such delegate, it will not be under any obligation to
any Interested Person to supervise the proceedings or be in any way
responsible for any loss incurred by reason of any misconduct or
default on the part of any such delegate or sub-delegate.
(l) (Apply to court): The Security Trustee may, whenever it thinks it
expedient in the interests of the Secured Creditors, apply to any
court for directions in relation to any question of law or fact
arising either before or after an Event of Default and assent to, or
approve, any applications of any Secured Creditor, the Trustee or
the Manager.
(m) (Disclosure): Subject to this Deed, any applicable laws and any duty
of confidentiality owed by any Interested Person to any other
person, the Security Trustee may, for the purpose of meeting its
obligations under this Deed, disclose to any Secured Creditor any
confidential, financial or other information made available to the
Security Trustee by the Trustee, the Manager, any other Interested
Person or any other person in connection with this Deed.
(n) (Determination): The Security Trustee, as between itself and the
Secured Creditors, has full power to determine (acting reasonably
and in good faith) all questions and doubts arising in relation to
any of the provisions of this Deed and every such determination,
whether made upon such a question actually raised or implied in the
acts or proceedings of the Security Trustee, will be conclusive and
will bind the Security Trustee and the Secured Creditors.
(o) (Defect in title): The Security Trustee is not bound or concerned to
examine or enquire into nor be liable for any defect or failure in
the title of the Trustee to the Charged Property and is entitled to
accept any such title without requisition or objection.
(p) (Notice of Charge or enforcement): The Security Trustee is under no
obligation to give any notice of the Charge to any debtors of the
Trustee or to any purchaser or any other person whomsoever or,
subject to this Deed, to enforce payment of any moneys payable to
the Trustee or to realise any of the Charged Property or to take any
steps or proceedings for that purpose unless the Security Trustee
thinks fit to do so.
(q) (Give up possession of Charged Property): The Security Trustee,
acting in accordance with this Deed or the terms of any
Extraordinary Resolution passed by the Voting Secured Creditors in
accordance with this Deed, may give up possession of the Charged
Property at any time.
(r) (No duty as chargee): Nothing in this Deed imposes a duty upon the
Security Trustee to exercise its powers as chargee under this Deed
or at law in circumstances where a motion at a meeting of Voting
Secured Creditors that a receiver be appointed is put and is not
passed.
(s) (Other Security Interests): If the Security Trustee sees fit to
redeem or take any transfer of any Security Interest ranking in
priority to or pari passu with the Charge including the Prior
Interest (the "Other Security Interest") wholly or in part then,
notwithstanding any provision as to interest contained in the Other
Security Interest or any presumption of law to the contrary all
moneys expended by the Security Trustee in so doing including the
consideration paid to the holder of the Other Security Interest,
stamp duty and legal costs and disbursements will be deemed to be
principal moneys secured by the Other Security Interest, and also
part of the Secured Moneys and moneys the payment of which forms
part of
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the obligations of the Trustee under this Deed, and the provisions
of this Deed will be deemed incorporated in the Other Security
Interest and will prevail over the terms and conditions of the Other
Security Interest in the case of any inconsistency.
(t) (Liability limited): Except for the obligations imposed on it under
this Deed, the Security Trustee is not obliged to do or omit to do
any thing including enter into any transaction or incur any
liability unless the Security Trustee=s liability is limited in a
manner satisfactory to the Security Trustee in its absolute
discretion.
(u) (No duty to provide information): Subject to the express
requirements of this Deed and any requirement of applicable law, the
Security Trustee has no duty (either initially, or on a continuing
basis) to consider or provide any Secured Creditors with any
information with respect to the Trustee or the Manager (whenever
coming into its possession).
(v) (Exercise of rights subject to Extraordinary Resolution): Without
limiting its rights, powers and discretions, but subject to its
express duties or obligations under this Deed (including, without
limiting the generality of the foregoing, clause 8) the Security
Trustee will not be required to exercise any right, power or
discretion (including to require anything to be done, form any
opinion or give any notice, consent or approval) without the
specific instructions of the Voting Secured Creditors given by
Extraordinary Resolution.
(w) (No liability for acting in accordance with directions): The
Security Trustee is not to be under any liability whatsoever for
acting in accordance with any direction obtained from Voting Secured
Creditors at a meeting convened under clause [ ]8.
(x) (No liability for breach): The Security Trustee is not to be under
any liability whatsoever for a failure to take any action in respect
of any breach by the Trustee of its duties as trustee of the Series
Trust of which the Security Trustee is not aware or in respect of
any Event of Default of which the Security Trustee is not aware.
(y) (Dispute or Ambiguity): In the event of any dispute or ambiguity as
to the construction or enforceability of this Deed or any other
Transaction Document, or the Security Trustee=s powers or
obligations under or in connection with this Deed or the
determination or calculation of any amount or thing for the purpose
of this Deed or the construction or validity of any direction from
Voting Secured Creditors, provided the Security Trustee is using
reasonable endeavours to resolve such ambiguity or dispute, the
Security Trustee, in its absolute discretion, may (but will have no
obligation to) refuse to act or refrain from acting in relation to
matters affected by such dispute or ambiguity.
14.4 Limitation of Liability
Notwithstanding any other provision of this Deed, the Security Trustee
will have no liability under or in connection with this Deed or any other
Transaction Document (whether to the Secured Creditors, the Trustee, the
Manager or any other person) other than to the extent to which the
liability is able to be satisfied out of the property of the Security
Trust Fund from which the Security Trustee is actually indemnified for
the liability. This limitation will not apply to a liability of the
Security Trustee to the extent that it is not satisfied because, under
this Deed or by operation by law, there is a reduction in the extent of
the Security Trustee=s indemnification as a result of the Security
Trustee=s fraud, negligence or wilful default. Nothing in this clause
14.4 or any similar provision in any other Transaction Document limits or
adversely affects the powers of the Security Trustee, any receiver or
attorney in respect of the Charge or the Charged Property.
14.5 Dealings with Trust
None of the:
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(a) (Security Trustee): Security Trustee in any capacity;
(b) (Related Bodies Corporate): Related Bodies Corporate of the Security
Trustee;
(c) (Directors etc.): directors or officers of the Security Trustee or
its Related Bodies Corporate; or
(d) (Shareholders): shareholders of the Security Trustee or its Related
Bodies Corporate,
is prohibited from:
(e) (Subscribing for): subscribing for, purchasing, holding, dealing in
or disposing of Securities;
(f) (Contracting with): at any time:
(i) contracting with;
(ii) acting in any capacity as representative or agent for; or
(iii) entering into any financial, banking, agency or other
transaction with,
any other of them or any Secured Creditor; or
(g) (Being interested in): being interested in any contract or
transaction referred to in paragraphs (e) or (f).
None of the persons mentioned is liable to account to the Secured
Creditors for any profits or benefits (including, without limitation,
bank charges, commission, exchange brokerage and fees) derived in
connection with any contract or transaction referred to in paragraphs (e)
or (f). The preceding provisions of this clause [_]14.5 only apply if
the relevant person, in connection with the action, contract or
transaction, acts in good faith to all Secured Creditors.
14.6 Discretion of Security Trustee as to Exercise of Powers
Subject to any express provision to the contrary contained in this Deed,
the Security Trustee will, as regards all the powers, authorities and
discretions vested in it by this Deed have absolute discretion as to the
exercise of them in all respects and, in the absence of fraud, negligence
or wilful default on its part, the Security Trustee will not be in any
way responsible for any loss, costs, damages, claims or obligations that
may result from the exercise or non-exercise of them.
14.7 Delegation of Duties of Security Trustee
The Security Trustee must not delegate to any person any of its trusts,
duties, powers, authorities or discretions under this Deed except:
(a) (To Manager, Servicer, Seller, Trustee): to the Manager, the
Servicer, the Seller or the Trustee in accordance with the
provisions of this Deed or any other Transaction Document;
(b) (Related Body Corporate): subject to clause [ ]14.8, to a Related
Body Corporate of the Security Trustee; or
(c) (As otherwise permitted): in accordance with the provisions of this
Deed.
14.8 Related Body Corporate of the Security Trustee
Where the Security Trustee delegates any of its trusts, duties, powers,
authorities and discretions to any person who is a Related Body Corporate
of the Security Trustee, the Security Trustee at all times remains liable
for the acts or omissions of such Related Body
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Corporate and for the payment of fees of that Related Body Corporate when
acting as delegate.
15. DUTIES OF THE SECURITY TRUSTEE
15.1 Duties of the Security Trustee limited to duties in this Deed
The Security Trustee has no duties or responsibilities in its capacity as
trustee other than those expressly set out in this Deed.
15.2 Security Trustee's Further Duties
Subject to clause [_]14.1, the Security Trustee must comply with the
duties and responsibilities imposed on it by this Deed and must:
(a) (Act continuously): act continuously as trustee of the Security
Trust until the Security Trust is terminated in accordance with this
Deed or until it has retired or been removed in accordance with this
Deed;
(b) (Exercise diligence etc.): exercise all due diligence and vigilance
in carrying out its functions and duties and in protecting the
rights and interests of the Secured Creditors;
(c) (Have regard to the Interests of Secured Creditors): in the exercise
of all discretions vested in it by this Deed and all other
Transaction Documents, except where expressly provided otherwise,
have regard to the interest of the Secured Creditors as a class;
(d) (Retain the Trust Fund): subject to this Deed, retain the Security
Trust Fund in safe custody and hold it on trust for the Secured
Creditors upon the terms of this Deed; and
(e) (Not sell etc.): not sell, mortgage, charge or part with the
possession of any part or the whole of the Security Trust Fund (or
permit any of its officers, agents and employees to do so) except as
permitted or contemplated by this Deed.
15.3 Trustee Liable for Negligence etc.
Nothing in this Deed will in any case in which the Security Trustee has
failed to show the degree of care and diligence required of it as
Security Trustee (having regard to the provisions of this Deed conferring
on the Security Trustee any duties, powers, trusts, authorities or
discretions, including any provisions relieving the Security Trustee of
specified responsibilities) relieve or indemnify it from or against any
liability for fraud, negligence or wilful default.
15.4 No Liability for Transaction Documents
The Security Trustee has no responsibility for the form or content of
this Deed or any other Transaction Document and will have no liability
arising in connection with any inadequacy, invalidity or unenforceability
(other than as a result of a breach of this Deed by the Security Trustee)
of any provision of this Deed or any Transaction Document.
15.5 Resolution of Conflicts
(a) (Resolve Conflicts in favour of the Securityholders): Subject to the
provisions of this Deed, if there is at any time in the Security
Trustee's opinion, with respect to enforcement or the exercise of
any of the Security Trustee's duties, powers or discretions, a
conflict between the interests of any Secured Creditor or class of
Secured Creditor (on the one hand) and the interests of the
Securityholders as a whole (on the other hand), the Security Trustee
must give priority to the interests of the Securityholders as a
whole.
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(b) (Resolve Conflicts in favour of the Senior Securityholders): Subject
to the provisions of this Deed (other than clause [_]15.5(a)), the
Security Trustee must give priority to the interests only of the
Senior Securityholders as a class if, in the Security Trustee's
opinion, there is a conflict between the interests of the Senior
Securityholders (on the one hand) and the Class B Noteholders or the
other persons entitled to the benefit of the Charge (on the other
hand) (in relation to which in determining the interests of the
Class A-1 Noteholders the Security Trustee may rely on a
determination of the Class A-1 Note Trustee).
(c) (No Liability): Provided that the Security Trustee acts in good
faith, it will not incur any liability to any Secured Creditor for
giving effect to paragraph (a) or (b).
16. INDEMNITY BY TRUSTEE
16.1 Indemnity
Subject to this Deed and without prejudice to any right of indemnity
given by law, the Security Trustee, the Manager, the Class A-1 Note
Trustee, the Receiver or attorney or other person appointed under this
Deed (including, without limitation, any person appointed by the Security
Trustee, the Manager, the Class A-1 Note Trustee or the Receiver or any
person to whom any duties, powers, trusts, authorities or discretions may
be delegated by the Security Trustee, the Manager, the Class A-1 Note
Trustee or the Receiver) ("appointee") will be indemnified by the Trustee
against all loss, liabilities and expenses properly incurred by the
Security Trustee, the Manager, the Class A-1 Note Trustee, the Receiver,
attorney or appointee (as the case may be) in the execution or purported
execution of any duties, powers, trusts, authorities or discretions
vested in such persons pursuant to this Deed, including, without
limitation, all liabilities and expenses consequent upon any mistake or
oversight, error of judgment or want of prudence on the part of such
persons and against all actions, proceedings, costs, claims and demands
in respect of any matter or thing properly done or omitted in any way
relating to this Deed, unless any of the foregoing is due to actual
fraud, negligence or wilful default on the part of the Security Trustee,
the Manager, the Class A-1 Note Trustee, the Receiver, attorney or
appointee (as the case may be). The Security Trustee may in priority to
any payment to the Secured Creditors retain and pay out of any moneys in
its hands upon the trusts of this Deed all sums necessary to effect such
indemnity including, without limitation, the amount of any such
liabilities and expenses, and also any remuneration outstanding to the
Security Trustee under clause [_]19.1.
16.2 Extent of Security Trustee's Indemnity
The Security Trustee is entitled to be indemnified by the Trustee for:
(a) (Registration etc. costs): the costs, charges and expenses
(including legal costs and expenses at the usual commercial rates of
the relevant legal services provider) of the Security Trustee in
connection with the negotiation, preparation, execution, stamping,
registration and completion of this Deed, any deed amending this
Deed and the Charge;
(b) (Costs of waiver etc.): the costs, charges and expenses (including
legal costs and expenses at the usual commercial rates of the
relevant legal services provider) of the Security Trustee in
connection with any consent, exercise or non-exercise of rights or
powers or performance of obligations (including, without limitation,
in connection with the contemplated or actual enforcement or
preservation of any rights or powers or performance of obligations
under this Deed), production of title documents, waiver, variation,
release or discharge in connection with the Charge or the Charged
Property;
(c) (Taxes): Taxes and fees (including, without limitation, registration
fees) and fines and penalties in respect of fees, which may be
payable or determined to be payable in connection with this Deed or
a payment or receipt or any other transaction contemplated by this
Deed; and
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(d) (Legal costs): without limiting the generality of clause [ ]16.2(b),
all legal costs and disbursements (at the usual commercial rates of
the relevant legal services provider) and all other costs,
disbursements, outgoings and expenses of the Security Trustee in
connection with the initiation, carriage and settlement of any court
proceedings (including, without limitation, proceedings against the
Trustee arising from any neglect, breach or default by the Trustee
under this Deed) in respect of this Deed.
16.3 Costs of experts
The liabilities and expenses referred to in clause [ ]16.2 include,
without limitation, those payable to any independent consultant or other
person appointed to evaluate any matter of concern (including, without
limitation, any person consulted by the Security Trustee pursuant to
clause [ ]14.3(b)), any agent of the Security Trustee, any Receiver or
any attorney appointed under this Deed, and, in the case of the Security
Trustee, its administration costs in connection with any event referred
to in clause [ ]16.2.
16.4 Non-Discharge
Unless otherwise specifically stated in any discharge of the Security
Trust, the provisions of this clause [ ]16 will continue in full force
and effect despite such discharge.
16.5 Retention of Lien
Notwithstanding any release of the outgoing Security Trustee under this
clause, the outgoing Security Trustee will remain entitled to the benefit
of the indemnities granted by this Deed to the outgoing Security Trustee
in respect of any liability, cost or other obligation incurred by it
while acting as Security Trustee, as if it were still the Security
Trustee under this Deed.
17. MEETINGS OF VOTING SECURED CREDITORS
17.1 Meetings Regulated by the Annexure
The provisions of the Annexure will apply to all meetings of Voting
Secured Creditors and to the passing of resolutions at those meetings.
17.2 Limitation on Security Trustee's Powers
Save as provided for in this Deed, the Security Trustee will not assent
or give effect to any matter which a meeting of Voting Secured Creditors
is empowered by Extraordinary Resolution to do, unless the Security
Trustee has previously been authorised to do so by an Extraordinary
Resolution of Voting Secured Creditors. Nothing in this Deed prevents
the Security Trustee taking such action as it considers appropriate to
enforce any rights of indemnity or reimbursement.
18. CONTINUING SECURITY AND RELEASES
18.1 Liability Preserved
Notwithstanding any payout figure quoted or other form of account stated
by the Security Trustee and notwithstanding the rule in Groongal Pastoral
Company Limited (In Liquidation) v. Falkiner (35 CLR 157), no grant of
full or partial satisfaction of or discharge from this Deed by the
Security Trustee will release the Trustee under this Deed until all the
Secured Moneys have in fact been received by the Security Trustee and are
not liable for whatever reason to be disgorged notwithstanding that such
quotation or statement of account may have arisen from the mistake,
negligence, error of law or error of fact of the Security Trustee its
servants or agents.
18.2 Trustee's Liability Not Affected
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This Deed and the liability of the Trustee under this Deed will not be
affected or discharged by any of the following:
(a) (Indulgence): the granting to the Trustee or to any other person of
any time or other indulgence or consideration;
(b) (Delay in recovery): the Security Trustee failing or neglecting to
recover by the realisation of any other security or otherwise any of
the Secured Moneys;
(c) (Laches): any other laches, acquiescence, delay, act, omission or
mistake on the part of the Security Trustee or any other person; or
(d) (Release): the release, discharge, abandonment or transfer whether
wholly or partially and with or without consideration of any other
security judgment or negotiable instrument held from time to time or
recovered by the Security Trustee from or against the Trustee or any
other person.
18.3 Waiver by Trustee
The Trustee waives in favour of the Security Trustee:
(a) (All rights necessary to give effect to Deed): all rights whatsoever
against the Security Trustee and any other person estate or assets
to the extent necessary to give effect to anything in this Deed;
(b) (Promptness and diligence): promptness and diligence on the part of
the Security Trustee and any other requirement that the Security
Trustee take any action or exhaust any right against any other
person before enforcing this Deed; and
(c) (All rights inconsistent with Deed): all rights inconsistent with
the provisions of this Deed including any rights as to contribution
or subrogation which the Trustee might otherwise be entitled to
claim or enforce .
19. REMUNERATION AND RETIREMENT OF SECURITY TRUSTEE
19.1 Remuneration
Subject to clause [_]28, the Security Trustee is to be remunerated by the
Trustee for acting as trustee under this Deed whether before or after the
occurrence of an Event of Default, at the rate agreed from time to time
between the Manager, the Security Trustee and the Trustee.
19.2 Retirement of Security Trustee
The Security Trustee covenants that it will retire as Security Trustee
if:
(a) (Insolvency): an Insolvency Event occurs in relation to the Security
Trustee in its personal capacity or in respect of its personal
assets (and not in its capacity as trustee of any trust or in
respect of any assets it holds as trustee);
(b) (Ceases to carry on business): it ceases to carry on business;
(c) (Related Trustee retires): a Related Body Corporate of it retires as
trustee of the Series Trust under clause [ ]19.1, clause [ ]19.2 or
clause [ ]19.4 of the Master Trust Deed or is removed as trustee of
the Series Trust under clause [ ]19.3 of the Master Trust Deed and
the Manager requires the Security Trustee by notice in writing to
retire;
(d) (Voting Secured Creditors require retirement): an Extraordinary
Resolution requiring its retirement is passed at a meeting of Voting
Secured Creditors;
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(e) (Breach of duty): when required to do so by the Manager or the
Trustee by notice in writing, it fails or neglects within 14 days
after receipt of such notice to carry out or satisfy any material
duty imposed on it by this Deed in respect of the Security Trust; or
(f) (Change in ownership): there is a change in ownership of 50% or more
of the issued equity share capital of the Security Trustee from the
position as at the date of this Deed or effective control of the
Security Trustee alters from the position as at the date of this
Deed unless in either case approved by the Manager (whose approval
must not be unreasonably withheld).
19.3 Removal by Manager
If an event referred to in clause [_]19.2 occurs and the Security Trustee
does not retire immediately after that event, the Manager is entitled to,
and must forthwith, remove the Security Trustee from office immediately
by notice in writing to the Security Trustee. On the retirement or
removal of the Security Trustee under the provisions of clause [_]19.2 or
this clause [_]19.3:
(a) (Notify Rating Agencies): the Manager must promptly notify the
Rating Agencies and the Class A-1 Note Trustee of such retirement or
removal; and
(b) (Appoint Substitute Security Trustee): subject to any approval
required by law, the Trustee is entitled to and must use its best
endeavours to appoint in writing some other Authorised Trustee
Corporation which is approved by the Rating Agencies to be the
Substitute Security Trustee. If the Trustee does not appoint a
Substitute Security Trustee, the Manager may appoint a Substitute
Security Trustee who is approved by the Rating Agencies.
19.4 Security Trustee May Retire
The Security Trustee may retire as trustee under this Deed upon giving 3
months notice in writing to the Trustee, the Manager, the Class A-1 Note
Trustee and the Rating Agencies or such lesser time as the Manager, the
Trustee, the Security Trustee and the Class A-1 Note Trustee agree. Upon
such retirement, the Security Trustee, subject to any approval required
by law, may appoint in writing any other Authorised Trustee Corporation
who is approved by the Rating Agencies and the Manager, which approval
must not be unreasonably withheld by the Manager, as Security Trustee in
its stead. If the Security Trustee does not propose a replacement by the
date which is 1 month prior to the date of its proposed retirement, the
Manager is entitled to appoint a Substitute Security Trustee, which must
be an Authorised Trustee Company who is approved by the Rating Agencies,
as of the date of the proposed retirement.
19.5 Retirement of Trustee under Master Trust Deed
The first Security Trustee under this Deed must retire as trustee under
this Deed upon the Trustee retiring or being removed as trustee of the
Series Trust under clause [_]19 of the Master Trust Deed. The retiring
Security Trustee must use its best endeavours to appoint in writing some
other Authorised Trustee Corporation who is approved by the Manager and
the Rating Agencies as Security Trustee in its place. If the retiring
Security Trustee does not appoint a Substitute Security Trustee by the
date which is 1 month prior to the date of its proposed retirement, the
Manager may appoint a Substitute Security Trustee, which must be an
Authorised Trustee Company approved by the Rating Agencies. The
retirement of the retiring Security Trustee will take effect upon the
earlier to occur of:
(a) (Expiry of 3 month period): the expiry of a 3 month period
commencing on the retirement or removal of the trustee of the Series
Trust under the Master Trust Deed; and
(b) (Appointment of a Substitute Security Trustee): the appointment of a
Substitute Security Trustee.
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19.6 Appointment of Substitute Security Trustee by Voting Secured Creditors
If a Substitute Security Trustee has not been appointed under clauses
[ ]19.3, 19.4 or 19.5 at a time when the position of Security Trustee
becomes vacant in accordance with those clauses, the Manager must act as
Security Trustee in accordance with the terms of this Deed and must
promptly convene a meeting of Voting Secured Creditors at which Voting
Secured Creditors, holding or representing between them Voting
Entitlements comprising in aggregate a number of votes which is not less
than 75% of the aggregate number of votes comprised in the total Voting
Entitlements at the time, appoint any person nominated by any of them to
act as Security Trustee. The Manager is entitled to receive the fee
payable in accordance with clause [ ]19.1 for the period during which the
Manager acts as Security Trustee pursuant to this clause [ ]19.
19.7 Release of Security Trustee
Upon retirement or removal of the Security Trustee as trustee of the
Security Trust, the Security Trustee is released from all obligations
under this Deed arising after the date of the retirement or removal
except for its obligation to vest the Security Trust Fund in the
Substitute Security Trustee and to deliver all books and records relating
to the Security Trust to the Substitute Security Trustee (at the cost of
the Security Trust Fund). The Manager and the Trustee may settle with
the Security Trustee the amount of any sums payable by the Security
Trustee to the Manager or the Trustee or by the Manager or the Trustee to
the Security Trustee and may give to or accept from the Security Trustee
a discharge in respect of those sums which will be conclusive and binding
as between the Manager, the Trustee and the Security Trustee but not as
between the Security Trustee and the Secured Creditors.
19.8 Vesting of Security Trust Fund in Substitute Security Trustee
The Security Trustee, on its retirement or removal, must vest the
Security Trust Fund or cause it to be vested in the Substitute Security
Trustee and must deliver and assign to such Substitute Security Trustee
as appropriate all books, documents, records and other property
whatsoever relating to the Security Trust Fund.
19.9 Substitute Security Trustee to Execute Deed
Each Substitute Security Trustee must upon its appointment execute a deed
in such form as the Manager may require whereby such Substitute Security
Trustee must undertake to the Secured Creditors jointly and severally to
be bound by all the covenants on the part of the Security Trustee under
this Deed from the date of such appointment.
19.10 Rating Agencies Advised
The Manager must promptly:
(a) (Retirement): approach and liaise with the Rating Agencies in
respect of any consents required from it to the replacement of the
Security Trustee pursuant to clause [ ]19.5;
(b) (Change of ownership): notify the Rating Agencies of it becoming
aware of a change in ownership of 50% or more of the issued equity
share capital of the Security Trustee from the position as at the
date of this Deed or effective control of the Security Trustee
altering from the date of this Deed; and
(c) (Approval for change in ownership): notify the Rating Agencies and
the Class A-1 Note Trustee of any approvals given by the Manager
pursuant to clause [ ]19.2(f).
20. ASSURANCE
20.1 Further Assurance
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The Trustee will and will procure that all persons having or claiming any
estate or interest in the Charged Property will at any time now or in the
future upon the request of the Security Trustee and at the cost of the
Trustee, make, do and execute or cause to be made, done and executed all
such actions, documents and assurances which are necessary or
appropriate:
(a) (To secure the Secured Moneys): to more satisfactorily secure to the
Security Trustee the payment of the Secured Moneys;
(b) (To assure the Charged Property): to assure or more satisfactorily
assure the Charged Property to the Security Trustee;
(c) (As directed): as the Security Trustee may direct; or
(d) (Appointment of Substitute Security Trustee): for a Substitute
Security Trustee appointed under clause [ ]19 to obtain the benefit
of this Deed,
and in particular will, whenever requested by the Security Trustee,
execute in favour of the Security Trustee such legal mortgages,
transfers, assignments or other assurances of all or any part of the
Charged Property in such form and containing such powers and provisions
as the Security Trustee requires.
20.2 Postponement or Waiver of Security Interests
The Trustee will (and the Manager will give all necessary directions to
enable the Trustee to) if required by the Security Trustee immediately
cause:
(a) (Postpone other Security Interests): any Security Interest (other
than the Prior Interest) which has arisen or which arises from time
to time by operation of law over the Charged Property in favour of
any person including the Trustee to be at the Security Trustee's
option postponed in all respects after and subject to this Deed or
to be otherwise discharged released or terminated; and
(b) (Discharge of Secured Moneys): any Borrowing or other obligation
secured by any such Security Interest at the Security Trustee's
option to be waived, released, paid or performed.
20.3 Registration of Charge
The Manager will at its own expense ensure that this Deed is promptly
registered as a charge on any appropriate register to the extent and
within such time limits as may be prescribed by law so as to ensure the
full efficacy of this Deed as a security to the Security Trustee in all
jurisdictions in which any part of the Charged Property may now or at any
time during the continuance of this Deed be located, in which the Trustee
may carry on any business or in which the Trustee is or may become
resident or registered.
20.4 Caveats
The Trustee is not obliged to do anything under this clause [_]20 to
enable the Security Trustee to, and the Security Trustee must not, lodge
a caveat to record its interest in the Charged Property at the land
titles office in any State or Territory, unless the Charge has taken
effect as a fixed charge and the Trustee would, under the terms of the
Master Trust Deed, be entitled to lodge caveats.
21. PAYMENTS
21.1 Moneys Repayable as Agreed or on Demand
Unless otherwise agreed pursuant to the terms of any Secured Moneys, such
Secured Moneys are payable by the Trustee to the Security Trustee in
Australian dollars immediately upon demand by the Security Trustee.
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21.2 No Set-Off or Deduction
All payments by the Trustee of any moneys forming part of the Secured
Moneys are to be free of any set-off or counterclaim and without
deduction or withholding for any present or future Taxes unless the
Trustee is compelled by law to deduct or withhold the same, in which
event the Trustee will pay to the Security Trustee such additional
amounts necessary to enable the Security Trustee to receive after all
deductions and withholdings for such Taxes a net amount equal to the full
amount which would otherwise have been payable under this Deed had no
such deduction or withholding been required to be made.
22. DISCHARGE OF THE CHARGE
22.1 Release
Upon proof being given to the reasonable satisfaction of the Security
Trustee that all Secured Moneys have been paid in full, including that
all costs, charges, moneys and expenses incurred by or payable to or at
the direction of the Security Trustee, the Receiver or any attorney
appointed under this Deed have been paid and upon adequate provision
having been made to the reasonable satisfaction of the Security Trustee
of all costs, charges, moneys and expenses reasonably likely thereafter
to be incurred by or payable to or at the direction of the Security
Trustee, the Receiver or any attorney appointed under this Deed in
respect of the Series Trust, then the Security Trustee will at the
request of the Manager or the Trustee, and at the cost of the Trustee,
release the Charged Property from the Charge and this Deed.
22.2 Contingent Liabilities
The Security Trustee is under no obligation to grant a release of the
Charge or this Deed unless at the time such release is sought:
(a) (No Secured Moneys owing): none of the Secured Moneys are
contingently or prospectively owing except where there is no
reasonable likelihood of the contingent or prospective event
occurring; and
(b) (No liabilities): the Security Trustee has no contingent or
prospective liabilities whether or not there is any reasonable
likelihood of such liabilities becoming actual liabilities in
respect of any bills, notes, drafts, cheques, guarantees, letters of
credit or other instruments or documents issued, drawn, endorsed or
accepted by the Security Trustee for the account or at the request
of the Trustee for the Series Trust.
22.3 Charge Reinstated
If any claim is made by any person that any moneys applied in payment or
satisfaction of the Secured Moneys must be repaid or refunded under any
law (including, without limit, any law relating to preferences,
bankruptcy, insolvency or the winding up of bodies corporate) and the
Charge has already been discharged, the Trustee will, at the Trustee=s
expense, promptly do, execute and deliver, and cause any relevant person
to do, execute and deliver, all such acts and instruments as the Security
Trustee may require to reinstate this Charge. This clause will survive
the discharge of the Charge unless the Security Trustee agrees otherwise
in writing.
23. CLASS A-1 NOTE TRUSTEE
23.1 Capacity
The Class A-1 Note Trustee is a party to this Deed in its capacity as
trustee for the Class A-1 Noteholders from time to time under the Class
A-1 Note Trust Deed.
23.2 Exercise of rights
Except as otherwise provided in this Deed and in the Class A-1 Note Trust
Deed:
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(a) (Only by Class A-1 Note Trustee): the rights, remedies and
discretions of the Class A-1 Noteholders under this Deed including
all rights to vote or give instructions or consent to the Security
Trustee and to enforce any undertakings or warranties under this
Deed, may only be exercised by the Class A-1 Note Trustee on behalf
of the Class A-1 Noteholders in accordance with the Class A-1 Note
Trust Deed; and
(b) (Limited Right of Enforcement by Class A-1 Noteholders): the
Class A-1 Noteholders may only exercise enforcement rights in
respect of the Charged Property through the Class A-1 Note Trustee
and only in accordance with this Deed.
23.3 Instructions or directions
The Security Trustee may rely on any instructions or directions given to
it by the Class A-1 Note Trustee as being given on behalf of all the
Class A-1 Noteholders from time to time and need not inquire whether any
such instructions or directions are in accordance with the Class A-1 Note
Trust Deed, whether the Class A-1 Note Trustee or the Class A-1
Noteholders from time to time have complied with any requirements under
the Class A-1 Note Trust Deed or as to the reasonableness or otherwise of
the Class A-1 Note Trustee.
23.4 Payments
Any payment to be made to a Class A-1 Noteholder under this Deed may be
made to the Class A-1 Note Trustee or a Paying Agent on behalf of that
Class A-1 Noteholder.
23.5 Notices
Any notice to be given to a Class A-1 Noteholder under this Deed may be
given to the Class A-1 Note Trustee on behalf of that Class A-1
Noteholder. Any costs to the Class A-1 Note Trustee of publishing such
notice to the Class A-1 Noteholders will, subject to clause [ ]28, be
reimbursed by the Trustee to the Class A-1 Note Trustee.
23.6 Limitation of Class A-1 Note Trustee's Liability
The liability of the Class A-1 Note Trustee under this Deed is limited in
the manner and to the same extent as under the Class A-1 Note Trust Deed.
24. AMENDMENT
24.1 Amendment by Security Trustee
Subject to this clause [ ]24 and to any approval or consent required by
law (including, without limitation, the United States Trustee Indenture
Act of 1939) and under clause [ ]24.2, the Security Trustee, the
Manager, the Class A-1 Note Trustee and the Trustee may together agree by
way of supplemental deed to alter, add to or revoke any provision of this
Deed (including this clause [ ]24) so long as such alteration, addition
or revocation:
(a) (Necessary or expedient): in the opinion of the Security Trustee or
of a barrister or solicitor instructed by the Security Trustee is
necessary or expedient to comply with the provisions of any Statute
or regulation or with the requirements of any Governmental Agency;
(b) (Manifest error): in the opinion of the Security Trustee is made to
correct a manifest error or ambiguity or is of a formal, technical
or administrative nature only;
(c) (Amendment to law): in the opinion of the Security Trustee is
appropriate or expedient as a consequence of an amendment to any
Statute or regulation or altered requirements of any Governmental
Agency or any decision of any court (including, without limitation,
an alteration, addition or modification which is in
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the opinion of the Security Trustee 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 or any decision of any court, 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 Security Trust); or
(d) (Otherwise desirable): in the opinion of the Security Trustee and
the Trustee is otherwise desirable for any reason,
provided that the Security Trustee, the Manager, the Class A-1 Note
Trustee and the Trustee may not alter, add to or revoke any provision of
this Deed unless the Manager has notified the Rating Agencies and the
Class A-1 Note Trustee 5 Business Days in advance.
24.2 Consent required Generally
If any alteration, addition or revocation referred to in clause
[ ]24.1(d) would, if it were an Extraordinary Resolution of the Voting
Secured Creditors require any consent to be effective under clause [ ]14
of the Annexure, the alteration, addition or revocation may be effected
only if the relevant consent is obtained in accordance with such clause.
Nothing in this clause limits the operation of the proviso in clause
[ ]24.1.
24.3 Consent to Payment Modification in relation to Class A-1 Notes
If any alteration, addition or revocation referred to in clause [ ]24.1
effects or purports to effect a Payment Modification (as defined in the
Class A-1 Note Trust Deed) it will not be effective as against a given
Class A-1 Noteholder unless consented to by that Class A-1 Noteholder.
24.4 No Rating Agency Downgrade
The Security Trustee will be entitled to assume that any proposed
alteration, addition or revocation referred to in clause [ ]24.1 (other
than a Payment Modification) will not be materially prejudicial to the
interests of a Class of Securityholders or all Securityholders if each of
the Rating Agencies confirms in writing that if the alteration, addition
or revocation is effected this will not lead to a reduction,
qualification or withdrawal of the then rating given, respectively, to
the Class of Securities, or to each Class of the Securities, by the
Rating Agency. The Class A-1 Note Trustee will be entitled to assume
that any proposed alteration, addition or revocation will not be
materially prejudicial to the interests of Class A-1 Noteholders if each
of the Rating Agencies confirms in writing that if the alteration,
addition or revocation is effected this will not lead to a reduction,
qualification or withdrawal of the then rating given, respectively, to
the Class A-1 Notes by the Rating Agency.
24.5 Distribution of Amendments
The Manager must distribute to all Secured Creditors a copy of any
amendment made pursuant to clause [ ]24.1 as soon as reasonably
practicable after the amendment has been made.
25. EXPENSES AND STAMP DUTIES
25.1 Expenses
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Subject to clause [ ]29, the Trustee will on demand reimburse the
Security Trustee and the Class A-1 Note Trustee for and keep the Security
Trustee and the Class A-1 Note Trustee indemnified against all expenses
including legal costs and disbursements (at the usual commercial rates of
the relevant legal services provider) incurred by the Security Trustee or
the Class A-1 Note Trustee (as the case may be) in connection with:
(a) (Preparation): the preparation and execution of this Deed and any
subsequent consent, agreement, approval or waiver under this Deed or
amendment to this Deed;
(b) (Enforcement): the exercise, enforcement, preservation or attempted
exercise enforcement or preservation of any rights under this Deed
including without limitation any expenses incurred in the evaluation
of any matter of material concern to the Security Trustee or the
Class A-1 Note Trustee; and
(c) (Inquiries of Governmental Agency): any inquiry by a Governmental
Agency concerning the Trustee or the Charged Property or a
transaction or activity the subject of the Transaction Documents.
25.2 Stamp Duties
(a) (Trustee must pay): The Trustee will pay all stamp, loan,
transaction, registration and similar Taxes including fines and
penalties, financial institutions duty and federal debits tax which
may be payable to or required to be paid by any appropriate
authority or determined to be payable in connection with the
execution, delivery, performance or enforcement of this Deed or any
payment, receipt or other transaction contemplated in this Deed.
(c) (Trustee must indemnify): The Trustee will indemnify and keep
indemnified each of the Security Trustee and the Class A-1 Note
Trustee against any loss or liability incurred or suffered by it as
a result of the delay or failure by the Trustee to pay such Taxes.
25.3 Goods and Services Tax
Notwithstanding any other provision of this Deed or the Master Trust
Deed, if the Security Trustee becomes liable to remit to a Governmental
Agency an amount of GST in connection with its supplies under this Deed,
the Security Trustee is not entitled to any reimbursement of that GST
from the Trustee out of the Assets of the Series Trust or the Security
Trust Fund. Nothing in this clause [ ]25.3 prevents the time in
attendance costs of the Security Trustee charged pursuant to clause
[ ]12.4 of the Series Supplement from including a component that
represents or is referable to GST.
26. GOVERNING LAW AND JURISDICTION
26.1 Governing Law
This Deed is governed by and construed in accordance with the laws of the
State of New South Wales.
26.2 Jurisdiction
(a) (Submission to jurisdiction): The Trustee, the Security Trustee, the
Manager and each of the Secured Creditors each irrevocably submits
to and accepts generally and unconditionally the non-exclusive
jurisdiction of the Courts and appellate Courts of the State of New
South Wales with respect to any legal action or proceedings which
may be brought at any time relating in any way to this Deed.
(b) (Waiver of inconvenient forum): The Trustee, the Security Trustee,
the Manager and each of the Secured Creditors each irrevocably
waives any objection it may now or in the future have to the venue
of any such action or
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proceedings brought in such courts and any claim it may now or in
the future have that any such action or proceedings have been
brought in an inconvenient forum.
27. NOTICES
27.1 Method of Delivery
Subject to this clause, any notice, request, certificate, approval,
demand, consent or other communication to be given under this Deed must:
(a) (Authorised Officer): be signed by an Authorised Officer of the
party giving the same;
(b) (In writing): be in writing; and
(c) (Delivery): be in the case of a party to this Deed or any Secured
Creditor, other than a Securityholder:
(i) left at the address of the addressee;
(ii) sent by prepaid ordinary post to the address of the
addressee;
or
(iii) sent by facsimile to the facsimile number of the addressee,
notified by that addressee from time to time to the other parties
to this Deed as its address for service pursuant to this Deed.
Any notice, request, certificate, approval, demand, consent or other
communication to be given under this Deed to a Class A-1 Noteholder will
be effectively given if it is given to the Class A-1 Note Trustee in
accordance with this clause and to a Class A-2 Noteholder, a Class B
Noteholder or a Redraw Bondholder will be effectively given if sent to
the address thereof then appearing in the Register.
27.2 Deemed Receipt
A notice, request, certificate, demand, consent or other communication
under this Deed is deemed to have been received:
(a) (Delivery): where delivered in person, upon receipt;
(b) (Post): where sent by post, on the 3rd (7th if outside Australia)
day after posting; and
(c) (Fax): where sent by facsimile, on production by the dispatching
facsimile machine of a transmission report which indicates that the
facsimile was sent in its entirety to the facsimile number of the
recipient.
However, if the time of deemed receipt of any notice is not before 5.30
pm on a Business Day at the address of the recipient it is deemed to have
been received at the commencement of business on the next Business Day.
28. TRUSTEE'S LIMITED LIABILITY
28.1 Limitation on Trustee's Liability
The Trustee enters into this Deed only in its capacity as trustee of the
Series Trust and in no other capacity. A liability incurred by the
Trustee acting in its capacity as trustee of the Series Trust arising
under or in connection with this Deed is limited to and can be enforced
against the Trustee only to the extent to which it can be satisfied out
of Assets of the Series Trust out of which the Trustee is actually
indemnified for the liability. This limitation of the Trustee=s
liability applies despite any other provision of this Deed (other than
clause
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[ ]28.3) 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.
28.2 Claims against Trustee
The parties other than the Trustee may not sue the Trustee in respect of
liabilities incurred by the Trustee acting in its capacity as trustee of
the Series Trust in any capacity other than as trustee of the Series
Trust, including seeking the appointment of a receiver (except in
relation to Assets of the Series Trust), a liquidator, an administrator,
or any similar person to the Trustee or prove in any liquidation,
administration or similar arrangements of or affecting the Trustee
(except in relation to the Assets of the Series Trust).
28.3 Breach of Trustee
The provisions of this clause [ ]28 will not apply to any obligation or
liability of the Trustee to the extent that it is not satisfied because
under the Master Trust Deed, the Series Supplement or any other
Transaction Document or by operation of law there is a reduction in the
extent of the Trustee=s indemnification out of the Assets of the Series
Trust, as a result of the Trustee=s fraud, negligence or wilful default.
28.4 Acts or omissions
It is acknowledged that the Relevant Parties are responsible under the
Transaction Documents for performing a variety of obligations relating to
the Series Trust. No act or omission of the Trustee (including any
related failure to satisfy its obligations or any breach of
representation or warranty under this Deed) will be considered
fraudulent, negligent or a wilful default for the purpose of clause
[ ]28.3 to the extent to which the act or omission was caused or
contributed to by any failure by any Relevant Party or any other person
appointed by the Trustee under any Transaction Document (other than a
person whose acts or omissions the Trustee is liable for in accordance
with any Transaction Document) to fulfil its obligations relating to the
Series Trust or by any other act or omission of a Relevant Party or any
other such person.
28.5 No Authority
No attorney, agent, receiver or receiver and manager appointed in
accordance with this Deed has authority to act on behalf of the Trustee
in a way which exposes the Trustee to any personal liability and no act
or omission of any such person will be considered fraud, negligence or
wilful default of the Trustee for the purposes of clause [ ]28.3.
28.6 No Obligation
(a) (Obligations under this Deed or any Transaction Document): The
Trustee is not obliged to enter into any commitment or obligation
under this Deed or any Transaction Document unless the Trustee's
liability is limited in a manner which is consistent with this
clause [ ]28. For the avoidance of doubt, the Trustee agrees and
acknowledges that its liability for any commitment or obligation it
has entered into under this Deed is limited in a manner which is
consistent with this clause [ ]28.
(b) (Obligations not contained in this Deed or any Transaction
Document): The Trustee is not obliged to enter into any commitment
or obligation contemplated by but not contained in this Deed or any
Transaction Document unless the Trustee's liability in relation to
that commitment or obligation is limited in a manner satisfactory to
the Trustee in its absolute discretion.
29. MISCELLANEOUS
29.1 Assignment by Trustee
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The Trustee will not assign or otherwise transfer the benefit of this
Deed or any of its rights, duties or obligations under this Deed except
to a Substitute Trustee which is appointed as a successor trustee of the
Series Trust under and in accordance with the Master Trust Deed.
29.2 Assignment by Manager
The Manager will not assign or otherwise transfer the benefit of this
Deed or any of its rights, duties or obligations under this Deed except
to a Substitute Manager which is appointed as a successor manager of the
Series Trust under and in accordance with the Master Trust Deed.
29.3 Assignment by Security Trustee
The Security Trustee will not assign or otherwise transfer all or any
part of the benefit of this Deed or any of its rights, duties and
obligations under this Deed except to a Substitute Security Trustee which
is appointed as a successor security trustee under and in accordance with
this Deed.
29.4 Assignment by Class A-1 Note Trustee
The Class A-1 Note Trustee will not assign or otherwise transfer all or
any part of the benefit of this Deed or any of its rights, duties and
obligations under this Deed except to a successor trustee appointed under
and in accordance with the Class A-1 Note Trust Deed.
29.5 Certificate of Security Trustee
A certificate in writing signed by an Authorised Officer of the Security
Trustee certifying the amount payable by the Trustee to the Security
Trustee or to the Secured Creditors or certifying that a person
identified therein is a Secured Creditor or certifying any other act,
matter, thing or opinion relating to this Deed is conclusive and binding
on all Interested Persons in the absence of manifest error on the face of
the certificate or evidence to the contrary.
29.6 Continuing Obligation
This Deed is a continuing obligation notwithstanding any settlement of
account intervening payment express or implied revocation or any other
matter or thing whatsoever until a final discharge of this Deed has been
given to the Trustee.
29.7 Settlement Conditional
Any settlement or discharge between the Trustee and the Security Trustee
is conditional upon any security or payment given or made to the Security
Trustee by the Trustee or any other person in relation to the Secured
Moneys not being avoided repaid or reduced by virtue of any provision or
enactment relating to bankruptcy insolvency or liquidation for the time
being in force and, in the event of any such security or payment being so
avoided repaid or reduced the Security Trustee is entitled to recover the
value or amount of such security or payment avoided, repaid or reduced
from the Trustee subsequently as if such settlement or discharge had not
occurred.
29.8 No Merger
Neither this Deed nor any of the Security Trustee's or the Receiver's
powers will merge or prejudicially affect nor be merged in or
prejudicially affected by and the Trustee=s obligations under this Deed
will not in any way be abrogated or released by any other security any
judgment or order any contract any cause of action or remedy or any other
matter or thing existing now or in the future in respect of the Secured
Moneys.
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29.9 Interest on Judgment
If a liability under this Deed (other than a liability for negligence,
fraud or wilful default of the Trustee under the Transaction Documents)
becomes merged in a judgment or order then the Trustee as an independent
obligation will pay interest to the Security Trustee on the amount of
that liability at a rate being the higher of the rate payable pursuant to
the judgment or order and the highest rate payable on the Secured Moneys
from the date it becomes payable until it is paid.
29.10 No Postponement
The Security Trustee's rights under this Deed will not be discharged,
postponed or in any way prejudiced by any subsequent Security Interest
nor by the operation of the rules known as the rule in Hopkinson v. Rolt
or the rule in Claytons Case.
29.11 Severability of Provisions
Any provision of this Deed which is illegal, void or unenforceable in any
jurisdiction is ineffective in that jurisdiction to the extent only of
such illegality, voidness or unenforceability without invalidating the
remaining provisions of this Deed or the enforceability of that provision
in any other jurisdiction.
29.12 Remedies Cumulative
The rights and remedies conferred by this Deed upon the Security Trustee
and the Receiver are cumulative and in addition to all other rights or
remedies available to the Security Trustee or the Receiver by Statute or
by general law.
29.13 Waiver
A failure to exercise or enforce or a delay in exercising or enforcing or
the partial exercise or enforcement of any right, remedy, power or
privilege under this Deed by the Security Trustee will not in any way
preclude or operate as a waiver of any further exercise or enforcement of
such right, remedy, power or privilege or the exercise or enforcement of
any other right, remedy, power or privilege under this Deed or provided
by law.
29.14 Consents and Approvals
Where any act matter or thing under this Deed depends on the consent or
approval of the Security Trustee then unless expressly provided otherwise
in this Deed such consent or approval may be given or withheld in the
absolute and unfettered discretion of the Security Trustee and may be
given subject to such conditions as the Security Trustee thinks fit in
its absolute and unfettered discretion.
29.15 Written Waiver, Consent and Approval
Any waiver, consent or approval given by the Security Trustee under this
Deed will only be effective and will only be binding on the Security
Trustee if it is given in writing or given verbally and subsequently
confirmed in writing and executed by the Security Trustee or on its
behalf by an Authorised Officer for the time being of the Security
Trustee.
29.16 Time of Essence
Time is of the essence in respect of the Trustee=s obligations under this
Deed.
29.17 Moratorium Legislation
To the fullest extent permitted by law, the provisions of all Statutes
operating directly or indirectly:
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(a) (Lessen Obligations): to lessen or otherwise to vary or affect in
favour of the Trustee any obligation under this Deed; or
(b) (Delay Exercise of Powers): to delay or otherwise prevent or
prejudicially affect the exercise of any powers conferred on the
Security Trustee or the Receiver under this Deed,
are expressly waived negatived and excluded.
29.18 Debit Accounts
The Trustee authorises the Security Trustee at any time after the Charge
becomes enforceable pursuant to the provisions of this Deed, to apply
without prior notice any credit balance whether or not then due to which
the Trustee is at any time entitled on any account at any office of the
Security Trustee in or towards satisfaction of any sum then due and
unpaid from the Trustee to the Security Trustee under this Deed or on any
other account whatsoever and the Trustee further authorises the Security
Trustee without prior notice to set-off any amount owing whether present
or future actual contingent or prospective and on any account whatsoever
by the Security Trustee to the Trustee against any of the Secured Moneys.
The Security Trustee is not obliged to exercise any of its rights under
this clause, which are without prejudice and in addition to any right of
set-off, combination of accounts, lien or other right to which it is at
any time otherwise entitled whether by operation of law contract or
otherwise.
29.19 Set-Off
No Secured Creditor may set-off or apply any sum or debt in any currency
(whether or not matured) in any account comprised in the Charged Property
towards satisfaction of any amount that would otherwise form part of the
Secured Moneys.
29.20 Binding on Each Signatory
This Deed binds each of the signatories to this Deed notwithstanding that
any one or more of the named parties to this Deed does not execute this
Deed, that there is any invalidity forgery or irregularity touching any
execution of this Deed or that this Deed is or becomes unenforceable void
or voidable against any such named party.
29.21 Counterparts
This Deed may be executed in a number of counterparts and all such
counterparts taken together is deemed to constitute one and the same
instrument.
EXECUTED as a deed.
SIGNED SEALED AND DELIVERED )
for and on behalf of P.T. LIMITED, )
ACN 004 454 666, by )
its Attorney under a Power of Attorney )
dated and registered ) ................................
Book No. and who declares ) (Signature of Attorney)
that he or she has not received any )
notice of the revocation of such Power )
of Attorney in the presence of: )
................................
(Signature of Witness)
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................................
(Name of Witness in Full)
THE COMMON SEAL of THE BANK OF )
NEW YORK was affixed to this Deed )
in the presence of: )
................................
(Signature of Witness)
................................
(Name of Witness in Full)
SIGNED SEALED AND DELIVERED )
for and on behalf of SECURITISATION )
ADVISORY SERVICES PTY. LIMITED, ACN 064 )
133 946, by )
its Attorney under a Power of Attorney ) ................................
dated and registered ) (Signature of Attorney)
Book No. and who declares that )
he or she has not received any notice of )
the revocation of such Power of Attorney )
in the presence of:
................................
(Signature of Witness)
................................
(Name of Witness in Full)
SIGNED SEALED AND DELIVERED )
for and on behalf of )
PERPETUAL TRUSTEE COMPANY )
LIMITED, ACN 000 001 007, by )
its Attorney under a Power of ) ...............................
Attorney dated and registered ) (Signature of Attorney)
Book No. and who declares that )
he or she has not received any notice of )
the revocation of such Power of Attorney )
in the presence of: )
................................
(Signature of Witness)
................................
(Name of Witness in Full)
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THIS IS THE ANNEXURE REFERRED TO IN A SECURITY TRUST DEED
BETWEEN P.T. LIMITED, THE BANK OF NEW YORK, NEW YORK BRANCH, SECURITISATION
ADVISORY SERVICES PTY. LIMITED AND PERPETUAL TRUSTEE COMPANY LIMITED
CREDITORS
- --------------------------------------------------------------------------------
PROVISIONS FOR MEETINGS OF VOTING SECURED CREDITORS
1. Definitions and Incorporation of Terms
In this Annexure, unless specified otherwise or the context indicates a
contrary intention:
(a) words and expressions which are defined in or by virtue of clause
[ ]1 of the abovementioned Security Trust Deed (the "Security Trust
Deed") have the same meanings in this Annexure;
(b) a "holder" in relation to Secured Moneys will be construed as
including a Securityholder in relation to any outstanding
Securities; and
(c) references to clauses are references to clauses in this Annexure.
2. Convening of Meetings
(a) (Meeting at any time): The Security Trustee, the Trustee or the
Manager at any time may convene a meeting of the Voting Secured
Creditors.
(b) (Meeting on request): Subject to the Security Trustee being
indemnified to its reasonable satisfaction against all costs and
expenses occasioned thereby, the Security Trustee will convene a
meeting of the Voting Secured Creditors if requested to do so by
Voting Secured Creditors who hold between them Voting Entitlements
comprising an aggregate number of votes which is no less than 10% of
the aggregate number of votes comprising the Voting Entitlements of
all Voting Secured Creditors at that time.
(c) (Time and place approved by Security Trustee):
(i) Every meeting of Voting Secured Creditors will be held at such
time and place as the Security Trustee approves (or, failing
such approval by the Security Trustee within a reasonable
period, as approved by the Manager), provided that, subject to
paragraphs (ii) and (iii) and clause [ ]4, any such meeting
shall not be held until the Class A-1 Note Trustee has had, in
its opinion, sufficient time to either seek directions from the
Class A-1 Noteholders or to determine that it need not seek
those directions, in each case in accordance with clause [ ]7
of the Class A-1 Note Trust Deed.
(ii) Upon receiving notice of a meeting of the Voting Secured
Creditors, the Class A-1 Note Trustee (if applicable) will as
soon as practicable comply with clause [ ]7 of the Class A-1
Note Trust Deed.
(iii) The proviso in sub-paragraph (i) does not apply if:
A. the Class A-1 Note Trustee, in its absolute discretion,
so decides; or
B. there are then no Class A-1 Notes outstanding.
(d) (Meetings in more than one place): A meeting of Voting Secured
Creditors may, if the Security Trustee so determines, be held at two
or more meeting venues linked together by audio-visual communication
equipment which, by itself or in conjunction with other
arrangements:
(i) gives the Voting Secured Creditors in the separate venues a
reasonable opportunity to participate in the proceedings;
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(ii) enables the chairman to be aware of proceedings in each such
venue; and
(iii) enables the Voting Secured Creditors in each such venue to vote
on a show of hands and on a poll.
A Voting Secured Creditor at one of the separate meeting venues is
taken to be present at the meeting of the Voting Secured Creditors
and is entitled to exercise all rights which a Voting Secured
Creditor has under the Security Trust Deed and this Annexure in
relation to a meeting of Voting Secured Creditors. Where a
meeting of Voting Secured Creditors is held at two or more meeting
venues pursuant to this clause [_]2(d), that meeting will be
regarded as having been held at the venue determined by the
chairman of the meeting.
(e) (Meetings only in accordance with the Security Trust Deed): A
meeting of Voting Secured Creditors may only be convened in
accordance with the Security Trust Deed and this Annexure.
3. Notice of Meetings
(a) (Notice): Subject to clauses [ ]2(c)(i) and 4, at least 14 days=
notice (inclusive of the day on which the notice is given and of the
day on which the meeting is held) of a meeting of the Voting Secured
Creditors must be given to the Voting Secured Creditors.
(b) (Accidental omission does not invalidate): The accidental omission
to give notice to or the non-receipt of notice by any Voting Secured
Creditor does not invalidate the proceedings at any meeting.
(c) (Copies of notices): A copy of a notice convening a meeting must be
given by the Security Trustee to the Manager and the Trustee.
(d) (Manner of notice): Notice of a meeting must be given in the manner
provided in the Security Trust Deed.
(e) (Details to be included in notice): A notice of a meeting of the
Voting Secured Creditors must specify:
(i) the day, time and place of the proposed meeting;
(ii) the reason for the meeting being convened;
(iii) the agenda of the business to be transacted at the meeting;
(iv) the terms of any proposed resolution;
(v) that appointments of proxies must be lodged no later than 24
hours prior to the time fixed for the meeting; and
(vi) such additional information as the person giving the notice
thinks fit.
4. Shorter Notice of Meeting
A meeting of the Voting Secured Creditors may be held on shorter notice
than provided by clause [ ]3 if so agreed by a resolution of Voting
Secured Creditors at the meeting who:
(a) (Majority in number): are a majority in number of Voting Secured
Creditors (present in person or by proxy) having the right to attend
and vote at the meeting; and
(b) (95% Voting Entitlements): hold or represent between them Voting
Entitlements comprising in aggregate a number of votes which is not
less than 95% of the aggregate number of votes comprised in all
Voting Entitlements at the time.
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5. Chairman
At a meeting of Voting Secured Creditors, some person (whether or not a
Secured Creditor or a representative of the Security Trustee) nominated
in writing by the Security Trustee must preside as chairman. If no such
nomination is made or no such nominated person is present within 15
minutes after the time appointed for the holding of the meeting, the
Voting Secured Creditors present must choose one of their number to be
chairman.
6. Quorum
At any such meeting, any 2 or more persons present in person holding, or
being Representatives holding or representing between them, in the
aggregate 67% or more of the aggregate number of votes comprised in all
Voting Entitlements at that time will form a quorum for the transaction
of business and no business (other than the choosing of a chairman) is to
be transacted at any meeting unless the requisite quorum is present at
the commencement of business.
7. Adjournment
(a) (Adjournment): If within 15 minutes from the time appointed for any
such meeting a quorum is not present, the meeting must, if convened
upon the requisition of Voting Secured Creditors, be dissolved. In
any other case it must stand adjourned (unless the Security Trustee
agrees that it be dissolved) for such period, not being less than 7
days nor more than 42 days, as may be appointed by the chairman. At
such adjourned meeting, two or more persons present in person
holding, or being Representatives holding or representing between
them, Voting Entitlements comprising in aggregate a number of votes
which is not less than 50% of the aggregate number of votes
comprised in all Voting Entitlements at the time must (except for
the purpose of passing an Extraordinary Resolution) form a quorum
and will have the power to pass any resolution and to decide upon
all matters which could properly have been dealt with at the
meetings from which the adjournment took place had a quorum been
present at such meeting. The quorum at any such adjourned meeting
for passing an Extraordinary Resolution will be as specified in
clause [ ]6.
(b) (Place and time of adjourned meeting): The chairman may with the
consent of (and must if directed by) any meeting adjourn the same
from time to time and from place to place but no business may be
transacted at any adjourned meeting except business which might
lawfully have been transacted at the meeting from which the
adjournment took place.
(c) (Notice of adjourned meeting): At least 5 days' notice of any
meeting adjourned through want of a quorum is to be given in the
same manner as of an original meeting and such notice must state the
quorum required at such adjourned meeting. It will not, however,
otherwise be necessary to give any notice of an adjourned meeting.
8. Voting Procedure
(a) (Casting votes): Every question submitted to a meeting must be
decided in the first instance by a show of hands and in case of
equality of votes the chairman must both on a show of hands and on a
poll have a casting vote in addition to the vote or votes (if any)
to which he or she may be entitled as a Voting Secured Creditor or
as a Representative.
(b) (Evidence of votes): At any meeting, unless a poll is (before or on
the declaration of the result of the show of hands) demanded by the
chairman, the Trustee, the Manager, the Class A-1 Note Trustee or
the Security Trustee or by one or more persons holding, or being
Representatives holding or representing between them, in aggregate a
number of votes which is not less than 2% of the
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aggregate number of votes comprised in all Voting Entitlements at
the time, a declaration by the chairman that a resolution has been
carried by a particular majority or lost or not carried by any
particular majority will be conclusive evidence of the fact without
proof of the number or proportion of the votes recorded in favour of
or against such resolution.
(c) (Polls): If at any meeting a poll is so demanded, it must be taken
in such manner and (subject to the provisions of this Annexure)
either at once or after such an adjournment as the chairman directs
and the result of such poll will be deemed to be the resolution of
the meeting at which the poll was demanded as at the date of the
taking of the poll. The demand for a poll must not prevent the
continuance of the meeting for the transaction of any business other
than the question on which the poll has been demanded. Any poll
demanded at any meeting on the election of a chairman or on any
question of adjournment must be taken at the meeting without
adjournment.
(d) (Voting by Secured Creditors):
(i) On a show of hands every Voting Secured Creditor who is
present in person or by proxy and has the right to vote at the
relevant meeting on that resolution has one vote except that
the Class A-1 Note Trustee has one vote for each then Class A-
1 Noteholder.
(ii) On a poll every Voting Secured Creditor who is present in
person or by proxy and has the right to vote has the number of
votes comprised in their Voting Entitlement.
(e) (Person May Cast Votes Differently): Any person entitled to more
than one vote need not use or cast all of the votes to which he or
she is entitled in the same way.
(f) (Voting by corporation): A corporation being a Voting Secured
Creditor may vote by any officer or representative duly authorised
in writing who is entitled to speak, demand a poll, vote, act as a
proxy and in all other respects exercise the rights of a Voting
Secured Creditor and must be reckoned as a Voting Secured Creditor
for all purposes.
(g) (Voting by person of unsound mind): A Voting Secured Creditor of
unsound mind or in respect of whom an order has been made by any
court having jurisdiction in respect of mental health may vote
whether on a show of hands or on a poll by his committee curator
bonis or other person in the nature of a committee curator bonis
appointed by such court.
(h) (Objection to voter's qualification): No objection is to be raised
as to the qualification of any voter except at the meeting or
adjourned meeting at which the vote objected to is given or tendered
and every vote not disallowed at such meeting will be valid for all
purposes. Any such objection made in due time will be referred to
the chairman of the meeting and his decision will be final and
conclusive.
9. Right to Attend and Speak
The Trustee, the Manager and the Security Trustee (through their
respective representatives) and their respective financial and legal
advisers will be entitled to attend and speak at any meeting of Voting
Secured Creditors. No person will otherwise be entitled to attend or
vote at any meeting of the Voting Secured Creditors or to join with
others in requesting the convening of such a meeting unless he or she is
a Voting Secured Creditor or is a Representative.
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10. Appointment of Proxies
(a) (Proxy): Each appointment of a proxy must be in writing and,
together (if required by the Security Trustee) with proof
satisfactory to the Security Trustee of its due execution, must be
deposited at the registered office of the Security Trustee or at
such other place designated by the Security Trustee not less than 24
hours before the time appointed for holding the meeting or adjourned
meeting at which the named proxy proposes to vote and in default,
the appointment of proxy will not be treated as valid unless the
chairman of the meeting decides otherwise before such meeting or
adjourned meeting proceeds to business. A notarially certified copy
of proof (if applicable) of due execution must if required by the
Security Trustee be produced by the proxy at the meeting or
adjourned meeting. The Security Trustee will be under no obligation
to investigate or be concerned with the validity of, or the
authority of, the proxy named in any such appointment. The proxy
named in any appointment of proxy need not be a Voting Secured
Creditor.
(b) (Proxy valid): Any vote given in accordance with the terms of an
appointment of proxy conforming with clause [ ]10(a) will be valid
notwithstanding the previous revocation or amendment of the
appointment of proxy or of any of the Voting Secured Creditor=s
instructions pursuant to which it was executed, provided that no
intimation in writing of such revocation or amendment has been
received by the Security Trustee at its registered office or by the
chairman of the meeting in each case not less than 24 hours before
the commencement of the meeting or adjourned meeting at which the
appointment of proxy is used.
11. Corporate Representatives
A person authorised under sections 250D of the Corporations Law by a
Voting Secured Creditor being a body corporate to act for it at any
meeting will, in accordance with his or her authority until his or her
authority is revoked by the body corporate concerned, be entitled to
exercise the same powers on behalf of that body corporate as that body
corporate could exercise if it were an individual Voting Secured Creditor
and will be entitled to produce evidence of his or her authority to act
at any time before the time appointed for the holding of or at the
meeting or adjourned meeting or for the taking of a poll at which he or
she proposes to vote.
12. Rights of Representatives
A Representative has the right to demand or join in demanding a poll and
(except and to the extent to which the Representative is specially
directed to vote for or against any proposal) has power generally to act
at a meeting for the Voting Secured Creditor concerned. The Security
Trustee and any officer of the Security Trustee may be appointed a
Representative.
13. Powers of a Meeting of Voting Secured Creditors
(a) (Powers): subject to clauses [ ]13(b) and 14 and, to the extent
applicable, the mandatory provisions of the United States Trustee
Indenture Act of 1939, a meeting of Voting Secured Creditors has,
without prejudice to any rights or powers conferred on other persons
by the Security Trust Deed, power exercisable by Extraordinary
Resolution:
(i) to direct the Security Trustee in the action that should be
taken by it following the occurrence of an Event of Default;
(ii) to sanction any action that the Security Trustee or a
Receiver proposes to take to enforce the provisions of the
Security Trust Deed;
(iii) to sanction any proposal by the Manager, the Trustee or the
Security Trustee for any modification, abrogation, variation
or compromise of, or arrangement in respect of, the rights of
the Secured Creditors against the Trustee or the Manager
whether such rights arise under the
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Security Trust Deed, the other
Transaction Documents or otherwise;
(iv) to postpone the day when the Secured Moneys become payable
and to suspend or postpone for a time the payment of the
Secured Moneys;
(v) to sanction the exchange or substitution of the Secured
Moneys for, or the conversion of the Secured Moneys into,
notes or other obligations or securities of the Trustee or
any other body corporate formed or to be formed;
(vi) to assent to any modification of the provisions contained in
the Security Trust Deed or the Securities which will be
proposed by the Trustee, the Manager or the Security Trustee;
(vii) to give any authority, direction, guidance or sanction sought
by the Security Trustee from the Voting Secured Creditors;
(viii) to appoint any persons (whether Voting Secured Creditors or
not) as a committee or committees to represent the interests
of the Secured Creditors and to confer upon such committee or
committees any powers or discretions which the Voting Secured
Creditors could themselves exercise by Extraordinary
Resolution;
(ix) to approve a person proposed to be appointed as a Substitute
Security Trustee under the Security Trust Deed and power to
remove any Security Trustee for the time being thereof;
(x) to discharge or exonerate the Security Trustee from any
liability in respect of any act or omission for which it may
become responsible under the Security Trust Deed;
(xi) to do any other thing which under the Security Trust Deed is
required to be given by an Extraordinary Resolution of the
Voting Secured Creditors; and
(xii) to authorise the Security Trustee or any other person to
concur in and execute and do all such documents, acts and
things as may be necessary to carry out and give effect to
any Extraordinary Resolution.
(b) (Limitations): A meeting of Voting Secured Creditors does not have power
to, nor will any resolution submitted to the meeting propose or have the
effect of:
(i) removing the Security Trustee or the Manager from office, other than
in accordance with the terms of the Security Trust Deed or the
Series Supplement;
(ii) interfering with the management of the Series Trust;
(iii) winding up or terminating the Series Trust; or
(iv) disposing of, or otherwise dealing with, the Assets of the Series
Trust.
(c) No Extraordinary Resolution of a separate meeting of the Class B
Noteholders (other than one referred to in clause [ ]14(a)) shall be
effective for any purpose unless:
(i) there are then no Senior Securities outstanding;
(ii) it has been sanctioned by an Extraordinary Resolution of the Voting
Secured Creditors representing or being the Senior Securityholders;
or
(iii) the Security Trustee is of the opinion that its becoming effective
will not be materially prejudicial to the interests of the Senior
Securityholders or any class of Senior Securityholders.
(d) The Security Trustee is entitled to assume that a Class B Basic Term
Modification referred to in clause [ ]14(a) of this Annexure will not be
materially prejudicial to the interests of the Class B Noteholders and that
an Extraordinary Resolution of the Class B Noteholders in clause [ ]13(c)
will not be materially prejudicial to the interests of the Senior
Securityholders, if each of the Rating Agencies confirm in writing that the
Basic Term Modification or the Extraordinary Resolution (respectively) upon
coming into effect will not lead to
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a reduction, qualification or withdrawal of the then rating by that
Rating Agency of the Class B Notes or any of the Senior Securities.
14. Extraordinary Resolution Binding on Secured Creditors
Subject to clause [ ]13(b), an Extraordinary Resolution of the Voting
Secured Creditors is binding upon all Secured Creditors and each of the
Secured Creditors, the Trustee, the Manager and the Security Trustee is
bound to give effect to the Extraordinary Resolution, provided that:
(a) (Class B Basic Term Modification): an Extraordinary Resolution of
the Voting Secured Creditors to sanction a Class B Basic Term
Modification will not be effective for any purpose unless its
becoming effective has been sanctioned by an Extraordinary
Resolution of the Class B Noteholders or the Security Trustee is of
the opinion that its becoming effective will not be materially
prejudicial to the interests of the Class B Noteholders;
(b) (Extraordinary Resolution affecting Class A-1 Noteholders): subject
to clause [ ]14(c) in the case of an Extraordinary Resolution
purporting to effect a Payment Modification (as defined in the Class
A-1 Note Trust Deed), an Extraordinary Resolution which by its
terms, in the opinion of the Class A-1 Note Trustee in accordance
with, and subject to, the Class A-1 Note Trust Deed, affects the
Class A-1 Noteholders only, or in a manner different to the rights
of Secured Creditors generally, or alters the terms of the Class A-1
Notes, or is materially prejudicial to the interests of the Class A-
1 Noteholders will not be effective unless a Special Majority (as
defined in the Class A-1 Note Trust Deed) of the Class A-1
Noteholders has consented, in accordance with the Class A-1 Note
Trust Deed, to such Extraordinary Resolution of the Voting Secured
Creditors or, if the Class A-1 Noteholders have become entitled to
attend a meeting of Voting Secured Creditors, the Class A-1
Noteholders at a separate meeting pass an Extraordinary Resolution
consenting to such Extraordinary Resolution of the Voting Secured
Creditors;
(c) (Payment Modification in relation to Class A-1 Notes): an
Extraordinary Resolution which by its terms effects or purports to
effect a Payment Modification (as that expression is defined in the
Class A-1 Note Trust Deed) will not be effective as against a given
Class A-1 Noteholder unless consented to by that Class A-1
Noteholder;
(d) (Extraordinary Resolution affecting Class A-2 Noteholders): an
Extraordinary Resolution, which by its terms, in the opinion of the
Security Trustee, affects the Class A-2 Noteholders only, or in a
manner different to the rights of the Secured Creditors generally,
or alters the terms of the Class A-2 Notes, or is materially
prejudicial to the interests of the Class A-2 Noteholders will not
be effective unless the Class A-2 Noteholders at a separate meeting
pass an Extraordinary Resolution consenting to such Extraordinary
Resolution of the Voting Secured Creditors;
(e) (Extraordinary Resolution affecting Redraw Bondholders): such an
Extraordinary Resolution, which by its terms, in the opinion of the
Security Trustee, affects the Redraw Bondholders only, or in a
manner different to the rights of the Secured Creditors generally,
or alters the terms of the Redraw Bonds, or is materially
prejudicial to the interests of the Redraw Bondholders will not be
effective unless the Redraw Bondholders at a separate meeting pass
an Extraordinary Resolution consenting to such Extraordinary
Resolution of the Voting Secured Creditors.
(f) (Extraordinary Resolution affecting other Secured Creditors): such
an Extraordinary Resolution which by its terms, in the opinion of
the Security Trustee, affects the Standby Redraw Facility Provider,
the Liquidity Facility Provider, a Hedge Provider and/or the Seller
(each in its capacity as a Secured
7
<PAGE>
Creditor) (a "Relevant Secured Creditor") only, or in a manner
different to the rights of Secured Creditors generally, or is
materially prejudicial to the interests of a Relevant Secured
Creditor will not be effective unless the Relevant Secured Creditor
consents in writing to the Extraordinary Resolution.
15. Minutes and Records
Minutes of all resolutions and proceedings at every meeting must be made
and duly entered in the books to be provided for that purpose by the
Security Trustee. Any such minutes if purporting to be signed by the
chairman of the meeting at which such resolutions were passed or
proceedings transacted or by the chairman of the next succeeding meeting
(if any) of Voting Secured Creditors, are conclusive evidence of the
matters stated in them. Until the contrary is provided, every such
meeting in respect of the proceedings of which minutes have been made and
signed are deemed to have been duly convened and held and all resolutions
passed and proceedings conducted at such meetings are deemed to have been
duly passed and conducted.
16. Written Resolutions
Notwithstanding the preceding provisions of this Annexure, a resolution
of all the Voting Secured Creditors or a class of Voting Secured
Creditors (including an Extraordinary Resolution of the Voting Secured
Creditors or a class of Voting Secured Creditors) may be passed, without
any meeting or previous notice being required, by an instrument or notes
in writing which have:
(a) in the case of a resolution (including an Extraordinary Resolution)
of all the Voting Secured Creditors, been signed by all the Voting
Secured Creditors and, in the case of a resolution (including an
Extraordinary Resolution) of a class of Voting Secured Creditors,
been signed by all the Voting Secured Creditors in the class; and
(b) any such instrument shall be effective upon presentation to the
Security Trustee for entry in the records referred to in clause
[ ]15.
17. Invalid Resolutions
Any resolution of the Voting Secured Creditors which purports to direct
the Security Trustee or a Receiver to take any action which would hinder
the performance of any party under the Master Trust Deed or a Transaction
Document (except to the extent that enforcement action is taken against
the Trustee or in respect of the Charged Property) is invalid.
18. Further Procedures for Meetings
Subject to all other provisions of the Security Trust Deed, the Security
Trustee may without the consent of the Voting Secured Creditors prescribe
such further regulations regarding the holding of meetings of the Voting
Secured Creditors and attendance and voting at such meetings as the
Security Trustee may in its sole discretion determine including
particularly (but without prejudice to the generality of the foregoing)
such regulations and requirements as the Security Trustee thinks
reasonable:
(a) (Regarding entitlement to vote): so as to satisfy itself that
persons who purport to attend or vote at any meeting of Voting
Secured Creditors are entitled to do so in accordance with this
Annexure and the other provisions of the Security Trust Deed; and
(b) (Regarding Representatives): as to the form of appointment of a
Representative.
19. Class of Secured Creditors
8
<PAGE>
The provisions of this Annexure apply, mutatis mutandis, to a meeting of
any class of Voting Secured Creditors under this Annexure or the Security
Trust Deed. If the Class A-1 Noteholders become entitled to attend a
meeting of Voting Secured Creditors or to have their own separate
meeting, the evidence of the entitlement of such Class A-1 Noteholders to
attend such meeting and to vote thereat, and any other relevant matters,
will be determined in accordance with the Class A-1 Note Trust Deed and
the Agency Agreement, with such amendments as determined by the Security
Trustee.
__________________________________________
9
<PAGE>
Exhibit 4.4
Draft: 9 March 2000
Series 2000-1G Medallion Trust
Class A-1 Note Trust Deed
Date:
The Bank of New York, New York Branch
Class A-1 Note Trustee
Securitisation Advisory Services Pty. Limited
Manager
Perpetual Trustee Company Limited
Issuer
CLAYTON UTZ
Lawyers
Levels 27-35
No.1 O'Connell Street
SYDNEY NSW 2000
AUSTRALIA
(C) Copyright Clayton Utz
Liability is limited by the Solicitors Scheme under the Professional Standards
Act 1994 NSW
<PAGE>
Trust Indenture Act - Cross Reference Table
This Cross Reference Table does not, for any purpose, form part of this Class A-
1 Note Trust Deed. "N.A." means not applicable.
Trust Indenture Act Section Clause Reference
310 (a) (1) 5.3(h), 9.7, 14.2, 14.3, 14.4
(a) (2) 9.7
(a) (3) 13.2
(a) (4) N.A.
(a) (5) 14.10
(b) 9.7(c), 14.11
(c) N.A.
311 (a) 9.6
(b) 9.6
(c) N.A.
312 (a) 4.2(a), 4.2(b)
(b) 4.2(b)
(c) 4.2(c)
313 (a) 16.1
(b)(1) 16.1
(b)(2) 16.1, 21.3
(c) 16.1
(d) 16.1
314 (a)(1) 16.2(a)
(a)(2) 16.2(b)
(a)(3) 16.2(c)
(a)(4) 6.3(c)
(b) 6.3(i)
(c) 19.1(a)
(d) 19.1(b)
(e) 19.1(c)
(f) N.A.
315 (a) 9.2
(b) 7.1(a)
(c) 9.3
(d) 9.5, 8.1(e)
(e) 19.2
316 (a)(1) 19.3(a)
(a)(2) 15.2(b)
(b) 19.4
(c) 21.4
317 (a)(1) 7.3
(a)(2) 7.3
(b) 6.3(j)
318 (a) 19.5
<PAGE>
TABLE OF CONTENTS
Clause Page
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Series Supplement and Master Trust Deed Definitions 5
1.3 Interpretation 5
1.4 Issuer's capacity 8
1.5 Benefit of Covenants under this Deed 8
1.6 Obligations Several 8
1.7 Incorporated Definitions and other Provisions 8
1.8 Interpretation of Provisions Incorporated from TIA 9
2. THE CLASS A-1 TRUST 10
2.1 Appointment of Class A-1 Note Trustee 10
2.2 Declaration of Class A-1 Trust 10
2.3 Duration of Class A-1 Trust 10
2.4 Benefit of Class A-1 Trust 10
2.5 Interested Persons Bound 10
3. AMOUNT, FORM AND ISSUE OF CLASS A-1 NOTES 10
3.1 Aggregate Amount and Denomination 10
3.2 Description and Form of Class A-1 Notes 11
3.3 Initial Issue as Book-Entry Notes 11
3.4 Issue of Class A-1 Definitive Notes 13
3.5 Indemnity for Non-Issue of Class A-1 Definitive Notes 14
4. CLASS A-1 NOTE REGISTER 14
4.1 Maintenance of Class A-1 Note Registrar 14
4.2 Provision of Class A-1 Noteholder Information 14
4.3 Class A-1 Note Register Conclusive 15
5. REPRESENTATIONS AND WARRANTIES 15
5.1 By the Issuer 15
5.2 By the Manager 16
5.3 By the Class A-1 Note Trustee 17
6. COVENANTS BY ISSUER AND MANAGER 18
6.1 Covenant to Pay 18
6.2 Covenant of Compliance 18
6.3 Other Covenants 19
(i)
<PAGE>
6.4 Covenants between Issuer and Manager 21
7. ENFORCEMENT 22
7.1 Notice Following an Event of Default or Potential Event of Default 22
7.2 Restrictions on Enforcement 23
7.3 Class A-1 Note Trustee May Enforce 23
7.4 Class A-1 Note Trustee Alone May Enforce 24
8. CLASS A-1 NOTE TRUSTEE'S POWERS, PROTECTIONS ETC. 24
8.1 Class A-1 Note Trustee's Additional Powers, Protections, etc. 24
8.2 Waivers 31
8.3 Class A-1 Note Trustee's Liability 32
8.4 Dealings with Series Trust 32
8.5 Delegation of Duties of Class A-1 Note Trustee 33
8.6 Related Body Corporate of the Class A-1 Note Trustee 33
9. DUTIES OF THE CLASS A-1 NOTE TRUSTEE 33
9.1 Class A-1 Note Trustee's General Duties 33
9.2 Duties of the Class A-1 Note Trustee prior to Event of Default 33
9.3 Duties of the Class A-1 Note Trustee following an Event of Default 34
9.4 Certain Limitations of Liability where Acting in Good Faith 34
9.5 Class A-1 Note Trustee Not Relieved of Liability for Negligence etc. 34
9.6 Preferred Collection of Claims Against Issuer 34
9.7 Compliance with Section 310 of TIA 34
9.8 Voting at Meetings under Master Trust Deed or Security Trust Deed 35
9.9 Transaction Documents 35
10. APPLICATION OF MONEYS 35
10.1 Moneys Received 35
10.2 Investment of Moneys Held 35
11. CONTINUING SECURITY AND RELEASES 36
11.1 Trustee's Liability Not Affected 36
11.2 Waiver by Issuer 36
12. REMUNERATION AND EXPENSES OF CLASS A-1 NOTE
TRUSTEE 36
12.1 Payment of Fee 37
12.2 Payment of Expenses 37
12.3 Additional Duties 37
12.4 Dispute as to Additional Duties 37
12.5 Currency and VAT 38
(ii)
<PAGE>
12.6 No Other Fees or Expenses 38
12.7 Issuer Personally Liable for Fees 38
12.8 Timing of Payments 38
12.9 Non-Discharge 38
13. ADDITIONAL CLASS A-1 NOTE TRUSTEES 39
13.1 Appointment and Removal 39
13.2 Joint Exercise of Powers 39
13.3 Notice 40
14. RETIREMENT OR REMOVAL OF CLASS A-1 NOTE TRUSTEE 40
14.1 Retirement of Class A-1 Note Trustee 40
14.2 Removal by Manager 40
14.3 Class A-1 Note Trustee May Retire 41
14.4 Appointment of Substitute Class A-1 Note Trustee by Class A-1
Noteholders 41
14.5 Release of Class A-1 Note Trustee 41
14.6 Vesting of Class A-1 Trust Fund in Substitute Class A-1 Note Trustee 42
14.7 Substitute Class A-1 Note Trustee to Execute Deed 42
14.8 Rating Agencies Advised 42
14.9 Retention of Lien 42
14.10 Issuer and Manager Cannot be Appointed 42
14.11 No Limitation of TIA 42
15. AMENDMENT 43
15.1 Amendment by Class A-1 Note Trustee 43
15.2 Amendments Requiring Consent of all Class A-1 Noteholders 44
15.3 Compliance with TIA 44
15.4 No Rating Agency Downgrade 44
15.5 Distribution of Amendments 44
15.6 Amendments Binding on Class A-1 Noteholders 44
16. REPORTS 44
16.1 Reports by Class A-1 Note Trustee 44
16.2 Reports by Issuer 45
16.3 Restricted Securities 45
17. CURRENCY INDEMNITY 46
17.1 Improper currency receipts 46
17.2 Currency indemnity 46
17.3 Failure to pay proper currency 47
18. EXPENSES AND STAMP DUTIES 47
(iii)
<PAGE>
18.1 Expenses 47
18.2 Stamp Duties and other Taxes 47
19. TRUST INDENTURE ACT 48
19.1 Certificates and Opinions 48
19.2 Undertaking for Costs 49
19.3 Exclusion of Section 316(a)(1) 49
19.4 Unconditional Rights of Class A Noteholders to Receive Principal And
Interest 49
19.5 Conflict with Trust Indenture Act 50
20. GOVERNING LAW AND JURISDICTION 50
20.1 Governing Law 50
20.2 Jurisdiction 50
21 . NOTICES 50
21.1 Method of Delivery 50
21.2 Deemed Receipt 51
21.3 Notices to Class A-1 Noteholders 51
21.4 Notices from Class A-1 Noteholders 51
21.5 Issuer and Manager 52
22. ISSUER'S LIMITED LIABILITY 53
22.1 Limitation on Issuer's Liability 53
22.2 Claims against Issuer 53
22.3 Breach of Trust 53
22.4 Acts or omissions 53
22.5 No Authority 53
22.6 No Obligation 54
23. MISCELLANEOUS 54
23.1 Assignment by Issuer 54
23.2 Assignment by Manager 54
23.3 Assignment by Class A-1 Note Trustee 54
23.4 Certificate of Class A-1 Note Trustee 54
23.5 Continuing Obligation 55
23.6 Settlement Conditional 55
23.7 Interest on Judgment 55
23.8 Severability of Provisions 55
23.9 Remedies Cumulative 55
23.10 Waiver 55
23.11 Written Waiver, Consent and Approval 56
(iv)
<PAGE>
23.12 Time of Essence 56
23.13 Moratorium Legislation 56
23.14 Binding on Each Signatory 56
23.15 Counterparts 56
SCHEDULE 1 - FORM OF CLASS A-1 NOTE 58
SCHEDULE 2 - FORM OF CLASS A-1 NOTE CONDITIONS 97
(v)
<PAGE>
THIS CLASS A-1 NOTE TRUST DEED is made on 2000
BETWEEN THE BANK OF NEW YORK, NEW YORK BRANCH, a New York banking corporation
acting through its New York Branch at 101 Barclay Street, 21W, New
York, New York, 10286 (hereinafter included in the expression the
"Class A-1 Note Trustee")
AND SECURITISATION ADVISORY SERVICES PTY. LIMITED, ACN 064 133 946, a
company incorporated in the State of New South Wales and having an
office at Level 8, 48 Martin Place, Sydney, Australia (hereinafter
included by incorporation in the expression the "Manager")
AND PERPETUAL TRUSTEE COMPANY LIMITED, ACN 000 001 007, a company
incorporated in the State of New South Wales and having an office at
Level 7, 39 Hunter Street, Sydney, Australia in its capacity as
trustee of the Series Trust (as hereinafter defined) (hereinafter
included in the expression the "Issuer")
RECITALS
A. The Issuer is the trustee, and the Manager is the manager, of the Series
Trust.
B. The Issuer proposes to issue, at the direction of the Manager,
securities, including the Class A-1 Notes to be constituted, issued and
authenticated pursuant to this Deed.
C. The Class A-1 Note Trustee has agreed to act as trustee for the benefit
of the Class A-1 Noteholders on the terms of this Deed.
D. This Deed is an indenture qualified under, and subject to the mandatory
provisions of, the Trust Indenture Act 1939 of the United States of
America, which are incorporated by reference in and made part of this
Deed.
THIS DEED PROVIDES as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Deed, unless the contrary intention appears:
"Additional Note Trustee" means each person from time to time appointed
under clause [ ] 13.1 to act as a co-trustee with the Class A-1 Note
Trustee.
"Agent" has the same meaning as in the Agency Agreement.
"Authorised Officer" means:
(a) in relation to the Class A-1 Note Trustee, a responsible officer
of the
1
<PAGE>
Corporate Trust Administration department of the Class A-1 Note
Trustee;
(b) in relation to the Issuer, an Authorised Officer of the Issuer for
the purposes of the Master Trust Deed; and
(c) in relation to the Manager, an Authorised Officer of the Manager
for the purposes of the Master Trust Deed.
"Charge" has the same meaning as in the Security Trust Deed.
"Charge Release Date" has the same meaning as in the Security Trust Deed.
"Charged Property" has the same meaning as in the Security Trust Deed.
"Class A-1 Book-Entry Note" means a Class A-1 Note issued or to be
issued, as the case may be, by the Issuer in accordance with clause
[ ]3.3(a) to the Depository or its nominee or subsequently transferred
to a replacement Depositary or its nominee.
"Class A-1 Definitive Note" means a Class A-1 Note issued or to be
issued, as the case may be, by the Issuer in accordance with clause
[ ]3.4.
"Class A-1 Note" means a debt security issued by the Issuer, in its
capacity as trustee of the Series Trust, pursuant to the provisions of
this Deed (whether as a Class A-1 Book-Entry Note or a Class A-1
Definitive Note).
"Class A-1 Note Owner" means, with respect to a Class A-1 Book-Entry
Note, the person who is the beneficial owner of such Class A-1 Book-Entry
Note, as reflected in the books of the Depository or in the books of a
person maintaining an account with the Depository (directly as a Clearing
Agency Participant or as an indirect participant, in each case in
accordance with the rules of the Depository).
"Class A-1 Note Register" has the same meaning as in the Agency
Agreement.
"Class A-1 Note Registrar" has the same meaning as in the Agency
Agreement.
"Class A-1 Note Trustee" means the Bank of New York, New York Branch or
if the Bank of New York, New York Branch retires or is removed as Class
A-1 Note Trustee, any then Substitute Class A-1 Note Trustee.
"Class A-1 Noteholder" in relation to a Class A-1 Note at any given time
means the person then appearing in the Class A-1 Note Register as the
holder of the Class A-1 Note.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other person for whom from time to time the
Depository effects book-entry transfers and pledges of securities
deposited with the Depository.
"Class A-1 Trust" means the trust established under clause [ ]2.2 of this
Deed.
2
<PAGE>
"Class A-1 Trust Fund" means:
(a) the Class A-1 Note Trustee's rights, remedies and powers under
this Deed, the Security Trust Deed and each other Transaction
Document to which the Class A-1 Note Trustee is expressed to be a
party;
(b) the Class A-1 Note Trustee's right, title and interest as
beneficiary of the Security Trust; and
(c) any other property and benefits which the Class A-1 Note Trustee
holds on trust for the Class A-1 Noteholders under this Deed.
"Commission" means the Securities and Exchange Commission of the United
States of America, as from time to time constituted, created under the
Exchange Act, or if at any time after the execution of this Deed that
Commission is not existing and performing the duties now assigned to it
under the TIA, then the body performing those duties.
"Counsel's Opinion" means one or more written opinions of legal counsel
(who may, except as otherwise expressly provided in this Deed, be
employees or counsel of the Issuer or the Manager) acceptable to the
Class A-1 Note Trustee which:
(a) are addressed to the Class A-1 Note Trustee (and which may also be
addressed to other persons);
(b) are in a form satisfactory to, and are subject to such qualifications
and assumptions as are acceptable to, the Class A-1 Note Trustee; and
(c) comply, where applicable, with the TIA,
and which state, in the opinion of the legal counsel, the matter to be
opined upon.
"DTC Letter of Representations"means the DTC Letter of Representations
[dated on or about the date of this Deed] between the Issuer, the
Principal Paying Agent and The Depository Trust Company, as the initial
Depository, as amended from time to time.
"Eligible Trust Corporation" means any person eligible for appointment as
an institutional trustee under an indenture to be qualified pursuant to
the TIA as prescribed in section 310(a) of the TIA.
"Event of Default" has the meaning ascribed to that term in the Security
Trust Deed.
"Exchange Act" means the Securities Exchange Act of 1934 of the United
States of America.
"Interested Persons" means a collective reference to the Issuer, the
Class A-1 Noteholders, the Class A-1 Note Owners, the Manager and all
persons claiming through them and "Interested Person" means a several
reference to all Interested Persons.
"Issuer" means Perpetual Trustee Company Limited or if Perpetual Trustee
Company Limited retires or is removed as trustee of the Series Trusts (as
defined in the Master
3
<PAGE>
Trust Deed), any then Substitute Trustee and includes the Manager when
acting as the Trustee in accordance with the terms of the Master Trust
Deed.
"Majority" in relation to the Class A-1 Noteholders means Class A-1
Noteholders holding Class A-1 Notes with an Invested Amount of greater
than 50% of the aggregate Invested Amount of all the Class A-1 Notes.
"Master Trust Deed" means the Master Trust Deed dated 8 October 1997 and
made between the Issuer and the Manager, as amended from time to time.
"Payment Modification" means any alteration, addition or revocation of
any provision of this Deed, the Class A-1 Notes (including the Class A-1
Note Conditions), the Master Trust Deed to the extent that it applies to
the Series Trust, the Series Supplement or the Security Trust Deed which
modifies:
(a) the amount, timing, place, currency or manner of payment of
principal or interest in respect of the Class A-1 Notes including,
without limitation, any modification to the Stated Amount,
Invested Amount, interest rate or maturity date of the Class A-1
Notes or to clause [ ]10 of the Series Supplement, conditions
[ ]6.9 and 7.2 of the Class A-1 Note Conditions or clause [ ]13 of
the Security Trust Deed or which would impair the rights of Class
A-1 Noteholders to institute suit for enforcement of such payment
on or after the due date for such payment;
(b) the definition of the term "Special Majority" in this clause
[ ]1.1, clause [ ]21.4 of this Deed or the circumstances in which
the consent or direction of a Special Majority of Class A-1
Noteholders is required;
(c) clause [ ]6.1(a) of the Security Trust Deed; or
(d) the requirements for altering, adding to or revoking any provision
of the Class A-1 Note Trust Deed or the Class A-1 Notes (including
the Class A-1 Note Conditions).
"Potential Event of Default" means any event which, with the giving of
notice or the lapse of time or both, would constitute an Event of
Default.
"Secured Creditor" has the same meaning as in the Security Trust Deed.
"Security Trust" has the same meaning as in the Security Trust Deed.
"Series Supplement" means the Series Supplement dated [[ ]] between the
Commonwealth Bank of Australia, ACN 123 123 124, the Manager and the
Issuer.
"Series Trust" means the trust known as the Series 2000-1G Medallion
Trust established pursuant to the Master Trust Deed and the Series
Supplement.
"Special Majority" in relation to the Class A-1 Noteholders means Class
A-1 Noteholders holding Class A-1 Notes with an aggregate Invested Amount
of no less
4
<PAGE>
than 75% of the aggregate Invested Amount of all the Class A-1
Notes.
"Statute" means any legislation now or hereafter in force of the
Parliament of the Commonwealth of Australia or of any State or Territory
thereof or of any legislative body of any other country or political
subdivision thereof and any rule regulation ordinance by-law statutory
instrument order or notice now or hereafter made under such legislation.
"Substitute Class A-1 Note Trustee" means at any given time means the
entity then appointed as Class A-1 Note Trustee under clause [ ]14.
"TIA" means the Trust Indenture Act of 1939 of the United States of
America as in force at the date of this Deed, or, if this Deed is first
qualified under the Trust Indenture Act after the issue of Class A-1
Notes, as in force at the date of such qualification.
"UCC" means the Uniform Commercial Code of the State of New York.
"Voting Secured Creditors" has the same meaning as in the Security Trust
Deed.
1.2 Series Supplement and Master Trust Deed Definitions
Subject to clause [ ]1.7, unless defined in this Deed, words and phrases
defined in either or both of the Master Trust Deed and the Series
Supplement have the same meaning in this Deed. Where there is any
inconsistency in a definition between this Deed (on the one hand) and the
Master Trust Deed or the Series Supplement (on the other hand), this Deed
prevails. Where there is any inconsistency in a definition between the
Master Trust Deed and the Series Supplement, the Series Supplement
prevails over the Master Trust Deed in respect of this Deed. Subject to
clause [ ]1.7, where words or phrases used but not defined in this Deed
are defined in the Master Trust Deed in relation to a Series Trust (as
defined in the Master Trust Deed) and/or an Other Trust such words or
phrases are to be construed in this Deed, where necessary, as being used
only in relation to the Series Trust (as defined in this Deed) and/or the
CBA Trust (as defined in the Series Supplement), as the context requires.
1.3 Interpretation
In this Deed unless the contrary intention appears:
(a) the expression "person" includes an individual, a corporation and
a Governmental Agency;
(b) the expression "owing" includes amounts that are owing whether
such amounts are liquidated or not or are contingent or presently
accrued due and includes all rights sounding in damages only;
(c) the expression "power" in relation to a person includes all
powers, authorities, rights, remedies, privileges and discretions
conferred upon that person by the Transaction Documents, by any
other
5
<PAGE>
deed, agreement, document, or instrument, by any Statute or
otherwise by law;
(d) the expression "commencement of the enforcement of the Charge" has
same meaning as in the Series Supplement;
(e) a reference to any person includes that person's executors,
administrators, successors, substitutes and assigns, including any
person taking by way of novation;
(f) subject to clause [ ]1.7, a reference to this Deed, the Master
Trust Deed or to any other deed, agreement, document or instrument
includes respectively this Deed, the Master Trust Deed or such
other deed, agreement, document or instrument as amended, novated,
supplemented, varied or replaced from time to time;
(g) a reference to any Statute, other than the TIA, or to any section
or provision of any Statute, other than any section or provision
of the TIA, includes any statutory modification or re-enactment or
any statutory provision substituted therefor and all ordinances,
by-laws regulations and other statutory instruments issued
thereunder;
(h) a reference to a Related Body Corporate includes a corporation
which is or becomes a Related Body Corporate during the currency
of this Deed;
(i) words importing the singular include the plural (and vice versa)
and words denoting a given gender include all other genders;
(j) headings are for convenience only and do not affect the
interpretation of this Deed;
(k) a reference to a clause is a reference to a clause of this Deed;
(l) a reference to a Schedule is a reference to a Schedule to this
Deed;
(m) where any word or phrase is given a defined meaning any other part
of speech or other grammatical form in respect of such word or
phrase has a corresponding meaning;
(n) all accounting terms used in this Deed have the same meaning
ascribed to those terms under accounting principles and practices
generally accepted in Australia from time to time;
(o) a reference to a party is a reference to a party to this Deed;
(p) a reference to time is a reference to New York time;
6
<PAGE>
(q) a reference to any thing is a reference to the whole and each part
of it and a reference to a group of persons is a reference to all
of them collectively, to any two or more of them collectively and
to each of them individually;
(r) if an act prescribed under this Deed to be done by a party on or
by a given day is done after 5.30pm on that day, it is to be taken
to be done on the following day;
(s) where any day on which a payment is due to be made or a thing is
due to be done under this Deed is not a Business Day, that payment
must be made or that thing must be done on the immediately
succeeding Business Day;
(t) a reference to "wilful default" in relation to the Issuer, the
Class A-1 Note Trustee or the Manager means, subject to clause
[ ]1.3(u), any wilful failure to comply with, or wilful breach by,
the Issuer, the Class A-1 Note Trustee or the Manager (as the case
may be) of any of its obligations under any Transaction Document,
other than a failure or breach which:
(i) (A) arises as a result of a breach of a Transaction Document
by a person other than:
(1) the Issuer, the Class A-1 Note Trustee or
the Manager (as the case may be); or
(2) any other person in referred to in clause
[ ]1.3(u) in relation to the Issuer, the
Class A-1 Note Trustee or the Manager (as
the case may be); and
(B) the performance of the action (the non-performance of which
gave rise to such breach) is a precondition to the Issuer,
the Class A-1 Note Trustee or the Manager (as the case may
be) performing the said obligation;
(ii) is in accordance with a lawful court order or direction or
required by law; or
(iii) is:
(A) in accordance with any proper instruction or
direction of the Voting Secured Creditors given at a
meeting of Voting Secured Creditors convened
pursuant to the Security Trust Deed;
(B) in accordance with any proper instruction or
direction of a Majority (or a Special Majority) of
the Class A-1 Noteholders given in accordance with
this Deed; or
(C) in accordance with any proper instruction or
direction of the Investors given at a meeting
convened under the Master Trust Deed (as amended by
the Series Supplement);
(u) a reference to the "fraud", "negligence", "wilful default" or
"breach of trust" of the Issuer, the Class A-1 Note Trustee or the
Manager means the fraud, negligence, wilful default or breach of
trust of the Issuer, the Class A-1 Note Trustee or the Manager (as
the case may be) and of its officers,
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employees, agents and any other person where the Issuer, the Class
A-1 Note Trustee or the Manager (as the case may be) is liable for
the acts or omissions of such other person under the terms of any
Transaction Document;
(v) subject to the mandatory provisions of the TIA and clause [ ]21.2,
each party will only be considered to have knowledge or awareness
of, or notice of, a thing or grounds to believe anything by virtue
of the officers of that party (or any Related Body Corporate of
that party) which have the day to day responsibility for the
administration or management of that party's (or a Related Body
Corporate of that party's) obligations in relation to the Series
Trust, the Class A-1 Trust or this Deed, having actual knowledge,
actual awareness or actual notice of that thing, or grounds or
reason to believe that thing (and similar references will be
interpreted in this way). In addition, notice, knowledge or
awareness of an Event of Default, Potential Event of Default,
Servicer Default, Perfection of Title Event, Trustee Default or
Manager Default means notice, knowledge or awareness of the
occurrence of the events or circumstances constituting an Event of
Default, Potential Event of Default, Servicer Default, Perfection
of Title Event, Trustee Default or Manager Default, as the case
may be; and
(w) a reference to prospective liabilities includes, without
limitation, the liabilities of the Issuer under the Transaction
Documents.
1.4 Issuer's capacity
In this Deed, unless expressly specified otherwise:
(a) (References to Issuer): a reference to the Issuer is a reference
to the Issuer in its capacity as trustee of the Series Trust only,
and in no other capacity; and
(b) (References to Assets of Issuer): a reference to the undertaking,
assets, business or money of the Issuer is a reference to the
undertaking, assets, business or money of the Issuer in the
capacity referred to in paragraph (a).
1.5 Benefit of Covenants under this Deed
Unless the context indicates a contrary intention, the Class A-1 Note
Trustee holds the covenants, undertakings and other obligations and
liabilities of the Issuer and the Manager under this Deed on trust for
the benefit of the Class A-1 Noteholders on the terms and conditions of
this Deed.
1.6 Obligations Several
The obligations of the parties under this Deed are several.
1.7 Incorporated Definitions and other Provisions
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Where in this Deed a word or expression is defined by reference to its
meaning in another Transaction Document or there is a reference to
another Transaction Document or to a provision of another Transaction
Document, any amendment to the meaning of that word or expression, to
that Transaction Document or to that provision (as the case may be) will
be of no effect for the purposes of this Deed unless and until the
amendment:
(a) (No Payment Modification): if it does not effect a Payment
Modification is either:
(i) if the Class A-1 Note Trustee is of the opinion that the
amendment will not be materially prejudicial to the
interests of the Class A-1 Noteholders, consented to by the
Class A-1 Note Trustee; or
(ii) otherwise, approved by a Special Majority of the Class A-1
Noteholders; or
(b) (Payment Modification): if the amendment does effect a Payment
Modification, is consented to by each Class A-1 Noteholder.
1.8 Interpretation of Provisions Incorporated from TIA
Where a provision of the TIA is incorporated into this Deed in accordance
with the TIA (as described in clause [ ]19.5) the following terms used in
that provision have the following meanings in this Deed:
"Commission" has the meaning given to that term in clause [ ]1.1.
"default" means an Event of Default.
"indenture securities" means the Class A-1 Notes.
"indenture security holder" means a Class A-1 Noteholder.
"indenture to be qualified" means this Deed.
"indenture trustee" or "institutional trustee" means the Class A-1 Note
Trustee.
"obligor upon the indenture securities" means the Issuer.
Any other term, expression or provision which is used in this Deed in
respect of a section or provision of the TIA and which is defined in the
TIA, defined in the TIA by reference to another Statute or defined by or
in any rule of or issued by the Commission, will have the meaning
assigned to it by such definitions. Any term or expression that is used
in both:
(a) (TIA): a mandatory provision of the TIA; and
(b) (This Deed): a clause of this Deed that, on its face, appears to
satisfy or reflect that mandatory provision of the TIA, will be
construed and interpreted
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as a Federal court of the United States of America would construe
and interpret the term or expression.
2. THE CLASS A-1 TRUST
2.1 Appointment of Class A-1 Note Trustee
The Class A-1 Note Trustee is hereby appointed and agrees to act as
trustee of the Class A-1 Trust (with effect from the constitution of the
Class A-1 Trust) on the terms and conditions in this Deed.
2.2 Declaration of Class A-1 Trust
The Class A-1 Note Trustee declares that it holds the Class A-1 Trust
Fund on trust for those persons who are Class A-1 Noteholders from time
to time.
2.3 Duration of Class A-1 Trust
The Class A-1 Trust commences on the date of this Deed and terminates on
the first to occur of:
(a) (Redemption of Class A-1 Notes): the date 6 months after the Class
A-1 Note Trustee has been satisfied that all moneys owing by the
Issuer or the Manager in respect of or in relation to Class A-1
Notes or this Deed have been duly paid;
(b) (Charge Release Date): the Charge Release Date; and
(c) (80th anniversary): the 80th anniversary of the date of this Deed.
2.4 Benefit of Class A-1 Trust
Each Class A-1 Noteholder is entitled to the benefit of the Class A-1
Trust on the terms and conditions contained in this Deed.
2.5 Interested Persons Bound
The provisions of this Deed, the Class A-1 Notes (including the Class A-1
Note Conditions), the Master Trust Deed, the Series Supplement and the
Security Trust Deed are binding upon every Interested Person.
3. AMOUNT, FORM AND ISSUE OF CLASS A-1 NOTES
3.1 Aggregate Amount and Denomination
The Class A-1 Notes will be issued in an aggregate principal amount of
$US[ ] and, in the case of the Class A-1 Definitive Notes, in minimum
denominations of US$100,000 or integral multiples thereof.
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3.2 Description and Form of Class A-1 Notes
(a) (Form of Class A-1 Notes): The Class A-1 Notes must be serially
numbered and typewritten or printed (in the case of Class A-1
Book-Entry Notes) or typewritten, printed, lithographed or
engraved or produced by any combination of these methods and with
or without steel borders (in the case of Class A-1 Definitive
Notes) in the form or substantially in the form set out in
Schedule [ ]1.
(b) (Signing of Class A-1 Notes): Each Class A-1 Note must be signed
by an Authorised Officer or other duly appointed representative of
the Issuer on behalf of the Issuer.
(c) (Authentication of Class A-1 Notes): Each Class A-1 Note must be
authenticated by an Authorised Officer or other duly appointed
representative of the Class A-1 Note Trustee on behalf of the
Class A-1 Note Trustee. No Class A-1 Note will be valid for any
purpose unless and until so authenticated.
(d) (Dating of Class A-1 Notes): The Class A-1 Notes must be dated
the date of their authentication.
3.3 Initial Issue as Book-Entry Notes
(a) (Issue as Book-Entry Notes): The Class A-1 Notes will upon issue
be represented by one or more book-entry notes initially
registered in accordance with clause [ ]4 in the name of Cede &
Co, as nominee of The Depositary Trust Company as the initial
Depository.
(b) (Delivery of Class A-1 Book-Entry Notes): The Issuer must on the
date of this Deed deliver or procure the delivery of the Class A-1
Book-Entry Notes to the Principal Paying Agent as agent for the
Depository.
(c) (Rights Attaching to Class A-1 Book-Entry Notes): A Class A-1
Book-Entry Note executed and authenticated in accordance with
clause [ ]3.2 will constitute binding and valid obligations of the
Issuer. Until a Class A-1 Book-Entry Note has been exchanged
pursuant to this Deed, it shall in all respects be entitled to the
same benefits as a Class A-1 Definitive Note except as
specifically provided to the contrary in this Deed or the
provisions of the Class A-1 Book-Entry Note.
(d) (Exchange etc.): Subject to this Deed, the procedures relating to
the exchange, authentication, delivery, surrender, cancellation,
presentation, marking up or down of any of a Class A-1 Book-Entry
Note and any other matters to be carried out by the relevant
parties upon exchange of any Class A-1 Book-Entry Note will be
made in accordance with the provisions of the Class A-1 Book-Entry
Notes and the normal practice of the Depositary's nominee, the
Class A-1 Note Registrar and the rules and procedures of the
Depository from time to time.
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(e) (Dealings with Depository): Unless and until the Class A-1
Definitive Notes have been issued to a Class A-1 Note Owner
pursuant to clause [ ]3.4, the following provisions apply:
(i) the Issuer, the Manager, each Agent and the Class A-1 Note
Trustee will be entitled to deal with the Depository for
all purposes whatsoever (including the payment of principal
of and interest on the Class A-1 Notes and the giving of
instructions or directions under this Deed) as the absolute
holder of the Class A-1 Notes and none of the Issuer, the
Manager, any Agent or the Class A-1 Note Trustee will be
affected by notice to the contrary;
(ii) whenever a notice or other communication to the Class A-1
Noteholders is required under this Deed or any other
Transaction Document all such notices and communications
must be given to the Depository and are not required to be
given to the Class A-1 Note Owners;
(iii) the rights of Class A-1 Note Owners may be exercised only
through the Depository and are limited to those
established by law and agreements between such Class
A-1 Note Owners and the Depository and/or the
Clearing Agency Participants;
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(iv) the Issuer, the Manager, each Agent and the Class A-1 Note
Trustee may conclusively rely upon any statement from the
Depository or any Clearing Agency Participant as to the
votes, instructions or directions it has received from
Class A-1 Note Owners and/or Clearing Agency Participants.
To the extent that the provisions of this clause [ ]3.3 conflict
with any other provisions of this Deed, the provisions of this
clause [ ]3.3 prevail.
3.4 Issue of Class A-1 Definitive Notes
(a) (Events Leading to Exchange): If:
(i) the Depository advises the Class A-1 Note Trustee in
writing that the Depository is no longer willing or able
properly to discharge its responsibilities with respect to
the Class A-1 Notes and the Manager is unable to locate a
qualified successor to act as Depository;
(ii) the Manager (at its option) advises the Issuer, the
Class A-1 Note Trustee and the Depository in writing that
Class A-1 Definitive Notes are to be issued in replacement
of the Class A-1 Book Entry Notes; or
(iii) an Event of Default has occurred and is subsisting and the
Class A-1 Note Owners representing beneficial interests
aggregating to at least a majority of the aggregate
Invested Amount of the Class A-1 Notes advise the Issuer
through the Depository in writing that the continuation of
a book entry system through the Depository is no longer in
the best interests of the Class A-1 Note Owners,
then the Issuer, on the direction of the Manager, must within 30
days of such event instruct the Depository to notify all of the
appropriate Class A-1 Note Owners of the occurrence of any such
event and of the availability of Class A-1 Definitive Notes to
such Class A-1 Note Owners requesting the same. The Class A-1 Note
Trustee must promptly advise the Issuer and the Manager upon the
occurrence of an event referred to in clause [ ]3.4(a)(i) and the
Issuer must promptly advise the Class A-1 Note Trustee and the
Manager upon the occurrence of an event referred to in clause
[ ]3.4(a)(iii).
(b) (Exchange for Class A-1 Definitive Notes): Upon the surrender of
Class A-1 Book-Entry Notes to the Issuer by the Depository
following an instruction of the Issuer pursuant to clause [
]3.4(a), and the delivery by the Depository of the relevant
registration instructions to the Issuer, the Issuer must issue and
execute and the Class A-1 Note Trustee must authenticate and
deliver Class A-1 Definitive Notes of the same aggregate Invested
Amount as those Class A-1 Book-Entry Notes, replacing those Class
A-1 Book-Entry Notes, in
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accordance with clause [ ]3.2 and the instructions of the
Depository. None of the Class A-1 Note Trustee, the Manager, the
Issuer or any Agent will be liable for any delay in delivery of
such instructions and each such person may conclusively rely on,
and will be protected in relying on, such instructions.
(c) (No Other Entitlement): No Class A-1 Note Owner will be entitled
to receive a Class A-1 Definitive Note representing such Class A-1
Note Owner's interest in a Class A-1 Note, except as provided in
this clause [ ]3.4.
3.5 Indemnity for Non-Issue of Class A-1 Definitive Notes
If the Issuer is required to issue Class A-1 Definitive Notes following
an event specified in clause [ ]3.4 but fails to do so within 30 days of
delivery to the Issuer of the Class A-1 Book-Entry Notes in accordance
with clause [ ]3.4 then the Issuer must, subject to clause [ ]22,
indemnify the Class A-1 Note Trustee, the Class A-1 Noteholders and Class
A-1 Note Owners, and keep them indemnified, against any loss or damage
incurred by any of them if the amount received by the Class A-1 Note
Trustee, the Class A-1 Noteholders or Class A-1 Note Owners,
respectively, is less than the amount that would have been received had
Class A-1 Definitive Notes been issued. If the Issuer breaches its
obligations under clause rights they may have, the Class A-1 Note
Trustee, the Class A-1 Noteholders and the Class A-1 Note Owners are
entitled to sue the Issuer for specific performance, injunctive relief or
other equitable relief to enforce the Issuer's obligations under clause
[ ]3.4.
4. CLASS A-1 NOTE REGISTER
4.1 Maintenance of Class A-1 Note Registrar
The Issuer must procure that the Class A-1 Note Register is maintained,
and that Class A-1 Notes are transferred, exchanged, replaced, redeemed
and cancelled, all in accordance with the provisions of the Class A-1
Notes (including the Class A-1 Note Conditions) and the Agency Agreement.
If at any time for any reason there ceases to be a person performing the
functions of the Class A-1 Note Registrar under the Agency Agreement, the
Issuer must act as the Class A-1 Note Registrar and perform all of the
obligations of the Class A-1 Note Registrar contained in the Agency
Agreement.
4.2 Provision of Class A-1 Noteholder Information
(a) (Provision of Information): The Issuer must provide or procure
the provision to the Class A-1 Note Trustee (if the Class A-1 Note
Trustee is not the Class A-1 Note Registrar) at intervals of not
more than 6 months (commencing as from the Closing Date), and at
such other times as the Class A-1 Note Trustee may request in
writing, all information in the possession or control of the Class
A-1 Note Registrar as to the names and addresses of the Class A-1
Noteholders, provided that the Issuer will not have any
obligations pursuant to this clause [ ]4.2(a) while the Class A-1
Notes are all
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Class A-1 Book-Entry Notes.
(b) (Class A-1 Note Trustee's Obligations): The Class A-1 Note Trustee
must preserve, in as current form as is reasonably practicable,
the names and addresses of the Class A-1 Noteholders provided to
it pursuant to clause [ ]4.2(a) or otherwise received by it in any
capacity and must comply with its obligations pursuant to section
312(b) of the TIA.
(c) (Protection): The Issuer, the Class A-1 Note Trustee and the
Class A-1 Note Registrar will have the protection of section
.312(c) of the TIA in relation to the disclosure of information in
accordance with this clause .4.2.
4.3 Class A-1 Note Register Conclusive
A Class A-1 Note is not a certificate of title and the Class A-1 Note
Register is the only conclusive evidence of title to Class A-1 Notes.
5. REPRESENTATIONS AND WARRANTIES
5.1 By the Issuer
The Issuer represents and warrants to the Class A-1 Note Trustee that:
(a) (Due incorporation): it is duly incorporated and has the corporate
power to own its property and to carry on its business as is now
being conducted;
(b) (Constitution): the execution delivery and performance of this
Deed does not violate its constitution;
(c) (Corporate power): it has the power and has taken all corporate
and other action required to enter into this Deed and to authorise
the execution and delivery of this Deed and the performance of its
obligations under this Deed;
(d) (Filings): all corporate notices and all registrations with the
Australian Securities and Investments Commission, the Commission
or similar office in its jurisdiction of incorporation and in any
other jurisdiction required to be filed or effected, as
applicable, by it in connection with the execution, delivery and
performance of this Deed have been filed or effected, as
applicable, and all such filings and registrations are current,
complete and accurate;
(e) (Legally binding obligation): its obligations under this Deed are
valid, legally binding and enforceable obligations in accordance
with the terms of this Deed except as such enforceability may be
limited by any applicable bankruptcy, insolvency, reorganisation,
moratorium or trust or general principles of equity or other
similar laws affecting creditors' rights generally;
(f) (Execution, delivery and performance): its execution, delivery and
performance of this Deed does not violate any existing law or
regulation in
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any applicable jurisdiction or any document or agreement to which
it is a party or which is binding upon it or any of its assets;
(g) (Authorisation): all consents, licences, approvals and
authorisations of every Governmental Agency required to be
obtained by it in connection with the execution, delivery and
performance of this Deed in its personal capacity have been
obtained and are valid and subsisting;
(h) (Series Trust validly created): the Series Trust has been validly
created and is in existence at the date of this Deed;
(i) (Sole Trustee): it has been validly appointed as trustee of the
Series Trust and is presently the sole trustee of the Series
Trust;
(j) (Master Trust Deed and the Series Supplement): the Series Trust is
solely constituted by the Master Trust Deed and the Series
Supplement;
(k) (No proceedings to remove): it has received no notice and to its
knowledge no resolution has been passed or direction or notice has
been given, removing it as trustee of the Series Trust; and
(l) (No breach): it is not in breach of any material provision of the
Master Trust Deed or the Series Supplement.
5.2 By the Manager
The Manager represents and warrants to the Class A-1 Note Trustee that:
(a) (Due incorporation): it is duly incorporated and has the corporate
power to own its property and to carry on its business as is now
being conducted;
(b) (Constitution): its execution, delivery and performance of this
Deed does not violate its constitution;
(c) (Corporate power): it has the power and has taken all corporate
and other action required to enter into this Deed and to authorise
the execution and delivery of this Deed and the performance of its
obligations under this Deed;
(d) (Filings): it has filed all corporate notices and effected all
registrations with the Australian Securities and Investments
Commission, the Commission or similar office in its jurisdiction
of incorporation and in any other jurisdiction as required by law
and all such filings and registrations are current, complete and
accurate;
(e) (Legally binding obligation): its obligations under this Deed are
valid, legally binding and enforceable obligations in accordance
with the terms of this Deed except as such enforceability may be
limited by any applicable bankruptcy, insolvency, re-organisation,
moratorium or trust or general principles of equity or other
similar laws affecting creditors' rights generally;
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(f) (Execution, delivery and performance): its execution, delivery and
performance of this Deed does not violate any existing law or
regulation in any applicable jurisdiction or any document or
agreement to which it is a party or which is binding upon it or
any of its assets;
(g) (Authorisation): all consents, licences, approvals and
authorisations of every Governmental Agency required to be
obtained by the Manager in connection with the execution, delivery
and performance of this Deed have been obtained and are valid and
subsisting;
(h) (Investment Company): the Series Trust is not, and, if all the
parties to the Transaction Documents perform their obligations
under the Transaction Documents, will not become, an "investment
company" as that term is defined in the Investment Company Act of
1940 of the United States of America; and
(i) (Compliance with TIA): this Deed has been duly qualified under the
TIA.
5.3 By the Class A-1 Note Trustee
The Class A-1 Note Trustee represents and warrants to the Issuer and the
Manager that:
(a) (Due incorporation): it is duly incorporated and has the corporate
power to own its property and to carry on its business as is now
being conducted;
(b) (Constitution): its execution, delivery and performance of this
Deed does not violate its constitution;
(c) (Corporate power): it has the power and has taken all corporate
and other action required to enter into this Deed and to authorise
the execution and delivery of this Deed and the performance of its
obligations under this Deed;
(d) (Filings): it has filed all corporate notices and effected all
registrations with the Commission or similar office in its
jurisdiction of incorporation and in any other jurisdiction as
required by law and all such filings and registrations are
current, complete and accurate;
(e) (Legally binding obligation): its obligations under this Deed are
valid, legally binding and enforceable obligations in accordance
with the terms of this Deed except as such enforceability may be
limited by any applicable bankruptcy, insolvency, re-organisation,
moratorium or trust or general principles of equity or other
similar laws affecting creditors' rights generally;
(f) (Execution, delivery and performance): its execution, delivery and
performance of this Deed does not violate any existing law or
regulation in any applicable jurisdiction or any document or
agreement to which it is a party or which is binding upon it or
any of its assets;
(g) (Authorisation): all consents, licences, approvals, authorisations
of and
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filings with every Governmental Agency required to be obtained or
made by the Class A-1 Note Trustee in connection with the
execution, delivery and performance of this Deed have been
obtained or made and are valid and subsisting;
(h) (Eligible Trust Corporation): it is an Eligible Trust Corporation;
(i) (No Insolvency Event): no Insolvency Event has occurred and is
continuing in relation to the Class A-1 Note Trustee; and
(j) (No Litigation): no litigation, arbitration, dispute or
administrative proceeding has been commenced or is pending or, to
the knowledge of the Class A-1 Note Trustee, threatened by any
person which will, or is likely to, have a material and adverse
affect on the ability of the Class A-1 Note Trustee to perform its
obligations under this Deed.
6. COVENANTS BY ISSUER AND MANAGER
6.1 Covenant to Pay
(a) (Covenant to Pay): Subject to and in accordance with the
provisions of this Deed, the Series Supplement and the Class A-1
Notes (including, without limitation, clauses [ ]6.1(b) and 22 and
Condition [ ]12 of the Class A-1 Note Conditions), the Issuer
covenants in favour of the Class A-1 Note Trustee that it will
duly and punctually repay the principal of and pay interest and
all other amounts owing in relation to the Class A-1 Notes to, or
to the order of, the Class A-1 Note Trustee in immediately
available funds in US Dollars as and when the same fall due for
repayment or payment.
(b) (Satisfaction of Covenant): Subject to clause [ ]6.1(b) of the
Agency Agreement, every payment by or at the direction of the
Issuer to the Principal Paying Agent or the Currency Swap Provider
made in accordance with the Agency Agreement on account of an
amount owing in relation to the Class A-1 Notes will operate as
payment by the Issuer to the Class A-1 Note Trustee in
satisfaction of the Issuer's obligations under clause [ ]6.1(a).
6.2 Covenant of Compliance
(a) (Class A-1 Notes): The Issuer and the Manager each severally
covenants in favour of the Class A-1 Note Trustee that it will
comply with all of its obligations under the Class A-1 Notes (as
if the provisions of the Class A-1 Notes, including the Class A-1
Note Conditions, were set out in full in this Deed).
(b) (Transaction Documents): The Issuer and the Manager each
severally covenants in favour of the Class A-1 Note Trustee that
it will:
(i) comply with, perform and observe all of its material
obligations under all the other Transaction Documents to
which it is a party;
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and
(ii) use reasonable endeavours to procure that each other party
to a Transaction Document (other than the Class A-1 Note
Trustee) to which it is a party complies with its material
obligations under that Transaction Document.
6.3 Other Covenants
The Issuer and the Manager each severally covenants in favour of the
Class A-1 Note Trustee that so long as any Class A-1 Notes remain
outstanding, and unless the Class A-1 Note Trustee agrees otherwise in
accordance with this Deed, it will:
(a) (Assistance to Class A-1 Note Trustee): provide to the Class A-1
Note Trustee, as the Class A-1 Note Trustee may reasonably require
to enable the Class A-1 Note Trustee to perform its duties and
functions under this Deed, such information, copies of any
accounting records and other documents, statements and reports
required to be maintained by, or that are otherwise in the
possession of, the Issuer or the Manager, as the case may be, or
which it is entitled to obtain from any person and execute such
documents and do such things, which the Issuer has the power to do
under the Master Trust Deed and Series Supplement, as may be
necessary, in the reasonable opinion of the Class A-1 Note
Trustee, to give effect to this Deed or any other Transaction
Document to which the Class A-1 Note Trustee is a party;
(b) (Notify Events of Default etc.): promptly notify the Class A-1
Note Trustee upon becoming aware of the occurrence of an Event of
Default, Potential Event of Default, Servicer Default, Perfection
of Title Event, Trustee Default, Manager Default or Potential
Termination Event and provide the Class A-1 Note Trustee with
details of such occurrence;
(c) (Certificate as to Compliance): provide to the Class A-1 Note
Trustee within 120 days after the end of each fiscal year of the
Series Trust (commencing on the fiscal year ending on June 2000):
(i) in accordance with section 314(a)(4) of the TIA, a brief
certificate from its principal executive officer, principal
financial officer or principal accounting officer as to his
or her knowledge of the activities of the Issuer and the
Manager in respect of the Series Trust during that year and
of the Issuer's or the Manager's, as the case may be,
compliance with all conditions, covenants and other
provisions under this Deed (including under clause [ ]
6.2(b) and determined without regard to any period of grace
or requirement of notice under this Deed or any other
Transaction Document) and giving reasonable details about
any non-compliance; and
(ii) a certificate (which may be part of the certificate
referred to in clause [ ]6.3(c)(i)) from an Authorised
Officer of the Issuer and from an Authorised Officer of the
Manager, as the case may be, stating whether to the best of
his or her knowledge in the period since the date of
execution of this Deed (in the case of the first
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such certificate) based on a review of the activities
referred to in clause [ ]6.3(c)(i) or since the provision
of the most recent certificate under this clause [
]6.3(c)(ii) (in the case of any other such certificate), an
Event of Default, Potential Event of Default, Perfection of
Title Event, Servicer Default, Manager Default or Trustee
Default has occurred and, if any such event has occurred,
giving reasonable details of that event;
(d) (Listing): in the case of the Manager only, procure that the
Class A-1 Notes are listed on the London Stock Exchange upon issue
and use reasonable endeavours to maintain that listing (including
by using reasonable endeavours to ensure compliance by the Issuer
with the continuing obligations of the Issuer by virtue of the
listing of the Class A-1 Notes on the London Stock Exchange)
provided that if having used reasonable endeavours it is unable to
maintain such listing, or if the maintenance of such listing is
unduly onerous, it must:
(i) use reasonable endeavours to obtain and maintain a
quotation or listing on another stock exchange or
securities market (as nominated by the Manager with the
prior written approval of the Class A-1 Note Trustee, which
approval must not be unreasonably withheld or delayed, or
if the Manager fails to make such a nomination, as
nominated by the Class A-1 Note Trustee) in lieu of the
London Stock Exchange; and
(ii) effect such amendments to this Deed, in accordance with
clause [ ]15, as are necessary, or as the Class A-1 Note
Trustee may reasonably require, in order to comply with the
requirements of any such stock exchange or securities
market;
(e) (Furnish Information to Exchange): in the case of the Manager
only, without limiting clause [ ]6.3(d), provide or procure that
there is provided to any stock exchange or securities market upon
which the Class A-1 Notes are listed or quoted all information
required to be so provided as a requirement of such listing or
quotation;
(f) (Copy Notices to Class A-1 Noteholders): provide, or procure that
there is provided, to the Class A-1 Note Trustee:
(i) a copy of each notice given to Class A-1 Noteholders by the
Issuer (at the same time as such notice is given); and
(ii) in the case of the Manager only, a copy of each document
provided to any stock exchange or securities market
pursuant to clause [ ]6.3(e);
(g) (Auditor's Report): in the case of the Manager only, provide, or
procure that there is provided, to the Class A-1 Note Trustee,
within 10 Business Days of the date of its issue, a copy of each
report issued by the Auditor pursuant to clauses [ ]21.9 and 22.3
of the Master Trust Deed;
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(h) (Access to Records): allow the Class A-1 Note Trustee, and any
person appointed by the Class A-1 Note Trustee to whom it has no
reasonable objection, access at all times during normal business
hours, upon reasonable notice, to the accounting records of the
Series Trust held by it or in its control;
(i) (Opinion as to Filing): procure that there is provided to the
Class A-1 Note Trustee in accordance with section 314(b) of the
TIA:
(i) on the Closing Date, Counsel's Opinion either stating that
the Security Trust Deed has been properly recorded and
filed so as to make effective the Security Interest
intended to be created by the Security Trust Deed, and
reciting the details of such action, or stating that no
such action is necessary to make such Security Interest
effective; and
(ii) within 120 days after the end of each fiscal year of the
Series Trust (commencing on the fiscal year ending in June
2000), Counsel's Opinion either stating that such action
has been taken with respect to the recording, filing, re-
recording and re-filing of the Security Trust Deed as is
necessary to maintain the Security Interest created by the
Security Trust Deed and reciting the details of such action
or stating that no such action is necessary to maintain
such Security Interest;
(j) (Change of Manager): in the case of the Issuer only, promptly
notify the Class A-1 Note Trustee of any retirement or replacement
of the Manager pursuant to clause 20 of the Master Trust Deed and
of the appointment of a Substitute Manager;
(k) (Transaction Documents): in the case of the Manager only, provide
to the Class A-1 Note Trustee, on or prior to the Issue Date in
respect of the Class A-1 Notes, one copy of each Transaction
Document as at that Issue Date (other than any Transaction
Document to which the Class A-1 Note Trustee is a party) and
provide to the Class A-1 Note Trustee a copy of each Transaction
Document executed after the Issue Date (other than any Transaction
Document to which the Class A-1 Note Trustee is a party) promptly
after its execution; and
(l) (Paying Agents Trust): ensure that each Paying Agent agrees, as a
term of its appointment, to hold in trust for the benefit of Class
A-1 Noteholders or the Class A-1 Note Trustee all sums held by
such Paying Agent for the payment of the principal of or interest
on the Class A-1 Notes and to promptly give to the Class A-1 Note
Trustee notice of any default by the Issuer (without regard to any
grace period) in the making of any such payment.
6.4 Covenants between Issuer and Manager
(a) (Obligations of Manager): Without limiting any other obligations
of the
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Manager pursuant to any Transaction Document, the Manager
covenants in favour of the Issuer to prepare and submit to the
Issuer all documents required to be filed with or submitted to the
Commission or the London Stock Exchange by the Issuer in relation
to the Class A-1 Notes, the Series Trust or this Deed at least,
where possible, 5 Business Days before such filing or submission
is required and to take such other actions as may reasonably be
taken by the Manager to perform or ensure the performance by the
Issuer of its obligations under the TIA, the Exchange Act or the
listing rules of the London Stock Exchange in relation to the
Class A-1 Notes, the Series Trust or this Deed. No breach by the
Issuer of any obligation under the TIA, the Exchange Act, the
listing rules of the London Stock Exchange or this Deed will be
considered to be fraudulent, negligent or wilful default for the
purposes of clause [ ]22.3 to the extent that it results from a
breach by the Manager of this clause [ ]6.4(a).
(b) (Obligation of Issuer): Subject to compliance by the Manager with
clause [ ]6.4(a), the Issuer covenants in favour of the Manager to
sign all documents and do all things reasonably requested by the
Manager in relation to the compliance by the Issuer or the Manager
of its obligations under the TIA, the Exchange Act or the listing
rules of the London Stock Exchange in relation to the Class A-1
Notes, the Series Trust or this Deed.
7. ENFORCEMENT
7.1 Notice Following an Event of Default or Potential Event of Default
If an Event of Default or Potential Event of Default has occurred and is
known to the Class A-1 Note Trustee, the Class A-1 Note Trustee must:
(a) (Notify Class A-1 Noteholders): notify each Class A-1 Noteholder
and such other persons as are specified in Section 313(c) of the
TIA of the Event of Default or Potential Event of Default, as the
case may be, within 10 days, or such shorter period as may be
required by the rules of any stock exchange on which the Class A-1
Notes are listed, after becoming aware of the Event of Default, or
Potential Event of Default provided that except in the case of a
default in payment of principal or interest on any Class A-1 Note,
the Class A-1 Note Trustee may withhold such notice if and so long
as the board of directors, the executive committee or a trust
committee of its directors and/or Authorised Officers in good
faith determine that withholding the notice is in the interest of
Class A-1 Noteholders;
(b) (Determine Whether to Seek Directions): if a meeting of Voting
Secured Creditors is to be held under the Security Trust Deed,
determine whether it proposes to seek directions from Class A-1
Noteholders as to how to vote at that meeting and, if so, whether
it proposes to instruct the Security Trustee to delay the holding
of that meeting while it obtains such directions from the Class A-
1 Noteholders; and
(c) (Vote at Meeting of Secured Creditors): subject to clause [ ]7.2,
vote at any
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meeting of Voting Secured Creditors held under the Security Trust
Deed in accordance with clause [ ]9.8.
7.2 Restrictions on Enforcement
(a) (Class A-1 Notes Outstanding): If any of the Class A-1 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-1
Notes, the Class A-1 Note Trustee must not vote at a meeting of
Voting Secured Creditors under the Security Trust Deed, or
otherwise direct the Security Trustee, to dispose of the Charged
Property unless:
(i) a sufficient amount would be realised to discharge in full
all amounts owing to the Class A-1 Noteholders in respect
of the Class A-1 Notes and any other amounts owing by the
Issuer to any other person ranking in priority to or
equally with the Class A-1 Notes;
(ii) the Class A-1 Note Trustee is of the opinion, reached after
considering at any time and from time to time the advice of
an investment bank or other financial adviser selected by
the Class A-1 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 clause [ ]7.2(a)(i); or
(iii) the Class A-1 Note Trustee is so directed by a Special
Majority of Class A-1 Noteholders.
(b) (Liability for Enforcement): Subject to clauses [ ]8.3, 9.3 and
9.5 and the mandatory provisions of the TIA, the Class A-1 Note
Trustee will not 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 Charged Property. Without limiting the
foregoing, the Class A-1 Note Trustee will not be liable for any
such decline or loss directly or indirectly arising from its
acting, or failing to act, as a consequence of an opinion reached
by it in good faith based on advice received by it in accordance
with clause [ ]7.2(a).
7.3 Class A-1 Note Trustee May Enforce
The Class A-1 Note Trustee has the power, subject to clause .22:
(a) (Enforce Following Default): in the event of a default in
repayment of the principal or payment of interest by the Issuer in
respect of any Class A-1 Note when and as the same shall become
due and payable, which default has continued for a period of 10
days, to recover judgment, in its own name and as trustee of the
Class A-1 Trust, against the Issuer upon the Class A-1 Notes for
the whole amount of such principal and interest remaining unpaid;
and
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(b) (File Proofs): to file such proofs of claim and other payments or
documents as may be necessary or advisable in order to have the
claims of the Class A-1 Note Trustee and the Class A-1 Noteholders
allowed in any judicial proceedings in relation to the Issuer upon
the Class A-1 Notes, the Creditors in relation to the Series Trust
or the Assets of the Series Trust;
(c) (Collect Moneys): to collect and receive any moneys or other
property payable or deliverable on any of those claims and to
distribute those moneys; and
(d) (Enforce Rights): if an Event of Default occurs and is subsisting,
to proceed to protect and enforce its rights and the rights of the
Class A-1 Noteholders by such appropriate judicial proceedings as
the Class A-1 Note Trustee deems most effectual to protect and
enforce any such rights, whether for the performance of any
provision of this Deed or in aid of the exercise of any power
under this Deed or to enforce any other proper remedy,
but nothing in this clause .7.3 is to be construed as requiring the Class
A-1 Note Trustee to take any such action unless it has been directed to
do so by a Special Majority of the Class A-1 Noteholders and has been
indemnified or put in funds to its satisfaction by the Class A-1
Noteholders against any liability that it may incur as a result of taking
such action. If the Class A-1 Note Trustee takes any action to enforce
any of the provisions of the Class A-1 Notes proof that as regards any
Class A-1 Note the Issuer has not paid any principal or interest due in
respect of that Class A-1 Note will (unless the contrary is proved) be
sufficient evidence that the Issuer has not paid that principal or
interest on all other Class A-1 Notes in respect of which the relevant
payment is then due.
7.4 Class A-1 Note Trustee Alone May Enforce
Subject to clause [ ]19.4 and the mandatory provisions of the TIA, only
the Class A-1 Note Trustee may enforce, or direct the Security Trustee to
enforce, the obligations of the Issuer or the Manager to the Class A-1
Noteholders under the Class A-1 Notes, this Deed or any other Transaction
Document. No Class A-1 Noteholder is entitled to proceed directly against
the Issuer or the Manager in respect of the Class A-1 Notes, this Deed or
any other Transaction Document.
8. CLASS A-1 NOTE TRUSTEE'S POWERS, PROTECTIONS ETC.
8.1 Class A-1 Note Trustee's Additional Powers, Protections, etc.
By way of supplement to any Statute regulating the Class A-1 Trust and in
addition to the powers, rights and protections which may from time to
time be vested in or available to the Class A-1 Note Trustee by the
general law it is expressly declared, notwithstanding anything to the
contrary in this Deed (subject only to clauses [ ]8.3, 9.3 and 9.5 and
the mandatory provisions of the TIA) as follows.
(a) (Liability to account): The Class A-1 Note Trustee is under no
obligation to account to any Interested Person for any moneys
received pursuant to this
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Deed or any other Transaction Document other than those received
by the Class A-1 Note Trustee from the Issuer or received or
recovered by the Class A-1 Note Trustee under this Deed or any
other Transaction Document, subject always to such deductions and
withholdings by the Class A-1 Note Trustee as are authorised by
this Deed. Obligations of the Class A-1 Note Trustee to any
Interested Person or any other person under or in connection with
this Deed can only be enforced against the Class A-1 Note Trustee
to the extent to which they can be satisfied out of such moneys in
accordance with this Deed.
(b) (Class A-1 Notes): The Class A-1 Note Trustee is not responsible
for the receipt or application of the proceeds of issue of any of
the Class A-1 Notes or (except when acting as Class A-1 Note
Registrar and to the extent specifically provided in this Deed or
the Agency Agreement) for the exchange, transfer or cancellation
of any Class A-1 Note.
(c) (Act on professional advice): Subject to clause [ ]9.2(b), the
Class A-1 Note Trustee may act on the opinion or advice of, or
information obtained from, any lawyer, valuer, banker, broker,
accountant or other expert appointed by the Class A-1 Note
Trustee, or by a person other than Class A-1 Note Trustee, where
that opinion, advice or information is addressed to the Class A-1
Note Trustee or by its terms is expressed to be capable of being
relied upon by the Class A-1 Note Trustee. Subject to clause
[ ]9.2(b), the Class A-1 Note Trustee will not be responsible to
any Interested Person for any loss occasioned by so acting and in
reliance on such advice. Any such opinion, advice or information
may be sent or obtained by letter, telex or facsimile transmission
and the Class A-1 Note Trustee will not be liable to any
Interested Person for acting on any opinion, advice or information
conforming with any applicable requirements of this Deed or the
TIA and purporting to be conveyed by such means even though it
contains some error which is not a manifest error or is not
authentic.
(d) (No enquiry): Unless specifically required under this Deed, the
Class A-1 Note Trustee is not bound to give notice to any person
of the execution of this Deed or to take any steps to ascertain
whether there has occurred any Event of Default, Potential Event
of Default, Perfection of Title Event, Servicer Default, Manager
Default or Trustee Default or event which, with the giving of
notice or the lapse of time would constitute a Perfection of Title
Event, Servicer Default, Manager Default or Trustee Default or to
keep itself informed about the circumstances of the Issuer or the
Manager and, until it has actual knowledge or express notice to
the contrary, the Class A-1 Note Trustee may assume that no Event
of Default, Potential Event of Default, Perfection of Title Event,
Servicer Default, Manager Default or Trustee Default has occurred
and that the Issuer, the Manager and each other party to the
Transaction Documents (other than the Class A-1 Note Trustee) are
observing and performing all the obligations on their part
contained in the Transaction Documents and need not inquire
whether that is, in fact, the case (but nothing in this clause
[ ]8.1(d) is to be construed as limiting the Class A-1 Note
Trustee's right to make such inquiries, in its discretion, and to
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exercise its powers under this Deed so to do).
(e) (Acts pursuant to directions): The Class A-1 Note Trustee will not
be responsible for having acted in good faith upon a direction
purporting to have been given by a Majority of the Class A-1
Noteholders even though it may subsequently be found that for any
reason such direction was not valid or binding upon the Class A-1
Note Trustee. However, for the purposes of determining whether a
Majority of Class A-1 Noteholders have given a direction which the
Class A-1 Note Trustee may rely upon in accordance with this
clause, Class A-1 Notes which the Class A-1 Note Trustee knows are
owned by the Issuer or the Manager or by any person directly or
indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or the Manager, shall be
disregarded.
(f) (Reliance): Subject to clause [ ]9.2(b), the Class A-1 Note
Trustee is, for any purpose and at any time, entitled to rely on,
act upon, accept and regard as conclusive and sufficient (without
being in any way bound to call for further evidence or information
or being responsible for any loss that may be occasioned by such
reliance, acceptance or regard) any of the following:
(i) any information, report, balance sheet, profit and loss
account, certificate or statement supplied by the Issuer,
the Security Trustee or the Manager or by any officer,
auditor or solicitor of the Issuer, the Security Trustee or
the Manager;
(ii) any information or statement provided to it in relation to
the Class A-1 Notes, the Class A-1 Noteholders or the Class
A-1 Note Owners by the Depositary or its nominee;
(iii) all statements (including statements made or given to the
best of the maker's knowledge and belief or similarly
qualified) contained in any information, report, balance
sheet, profit and loss account, certificate or statement
given pursuant to or in relation to this Deed, the Security
Trust Deed, the Master Trust Deed or the Series Supplement;
(iv) all accounts supplied to the Class A-1 Note Trustee
pursuant to this Deed and all reports of the Auditor
supplied to the Class A-1 Note Trustee pursuant to this
Deed; and
(v) notices and other information supplied to the Class A-1
Note Trustee under this Deed,
save, in each case, when it is actually aware that the information
supplied pursuant to subclauses (i) to (v) is incorrect or
incomplete.
(g) (Director's certificates): Subject to clause [ ]9.2(b), the Class
A-1 Note Trustee may call for and may accept as sufficient
evidence of any fact or matter or of the expediency of any
dealing, transaction, step or thing a certificate signed by any
two directors or Authorised Officers of the Issuer or the Manager
as to any fact or matter upon which the Class A-1 Note Trustee
may, in the exercise of any of its duties, powers, authorities and
discretions under this Deed, require to be satisfied or to have
information to
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the effect that in the opinion of the person or persons so
certifying any particular dealing, transaction, step or thing is
expedient and the Class A-1 Note Trustee will not be bound to call
for further evidence and will not be responsible for any loss that
may be occasioned by acting on any such certificate (but nothing
in this clause [ ]8.1(g) is to be construed as either limiting the
Class A-1 Note Trustee's right to call for such evidence, in its
discretion, and to exercise its powers under this Deed so to do or
permitting the Class A-1 Note Trustee to rely on evidence of
compliance with conditions precedent where such reliance is not
permitted by section 314 of the TIA).
(h) (Signatures): The Class A-1 Note Trustee may rely in good faith on
the validity of any signature on any Class A-1 Note, transfer,
form of application or other instrument or document unless the
Class A-1 Note Trustee has reason to believe that the signature is
not genuine. The Class A-1 Note Trustee is not liable to make
good out of its own funds any loss incurred by any person if a
signature is forged or otherwise fails to bind the person whose
signature it purports to be or on whose behalf it purports to be
made.
(i) (Custody of documents): The Class A-1 Note Trustee may hold or
deposit this Deed and any deed or documents relating to this Deed
or to the Transaction Documents in any part of the world, other
than the Commonwealth of Australia, and with any banker or banking
company or entity whose business includes undertaking the safe
custody of deeds or documents or with any lawyer or firm of
lawyers reasonably believed by it to be of good repute and the
Class A-1 Note Trustee will not be responsible for any loss
incurred in connection with any such holding or deposit and may
pay all sums to be paid on account of or in respect of any such
deposit.
(j) (Discretion): The Class A-1 Note Trustee, as regards all the
powers, trusts, authorities and discretions vested in it pursuant
to this Deed, any other Transaction Document or otherwise, has,
subject to any express provision to the contrary contained in this
Deed or any other Transaction Document to which it is a party,
absolute and uncontrolled discretion as to the exercise of such
powers, authorities, trusts and discretions and will be in no way
responsible to any Interested Person or any other person for any
loss, costs, damages, expenses or inconvenience which may result
from the exercise or non-exercise of such powers, authorities,
trusts and discretions. Without limiting the foregoing, any
consent or approval given by the Class A-1 Note Trustee for the
purposes of this Deed or any other Transaction Document may be
given on such terms and subject to such conditions (if any) as the
Class A-1 Note Trustee thinks fit and, notwithstanding anything to
the contrary in this Deed, may be given retrospectively.
(k) (Employ agents): Wherever it considers it expedient in the
interests of the Class A-1 Noteholders, the Class A-1 Note Trustee
may, instead of acting personally, employ and pay an agent
selected by it, whether or not a lawyer or other professional
person, to transact or conduct, or concur in transacting or
conducting any business and to do or concur in doing all acts
required to be done by the Class A-1 Note Trustee (including the
receipt and payment of
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money under this Deed). The Class A-1 Note Trustee will not be
responsible to any Interested Person for any misconduct, or
default on the part of any such person appointed by it under this
Deed or be bound to supervise the proceedings or acts of any such
person, provided that the Class A-1 Note Trustee has exercised
good faith and due care in such appointment and that any such
person will be a person who is in the opinion of the Class A-1
Note Trustee appropriately qualified to do any such things. Any
such agent being a lawyer, banker, broker or other person engaged
in any profession or business will be entitled to charge and be
paid all usual professional and other charges for business
transacted and acts done by him or her or any partner of his or
her or by his or her firm in connection with this Deed and also
his or her reasonable charges in addition to disbursements for all
other work and business done and all time spent by him or her or
his or her partners or firm on matters arising in connection with
this Deed including matters which might or should have been
attended to in person by a trustee not being a lawyer, banker,
broker or other professional person.
(l) (Delegation): Subject to clause [ ]8.5, the Class A-1 Note Trustee
may whenever it thinks it expedient in the interests of Class A-1
Noteholders, delegate to any person or fluctuating body of persons
selected by it all or any of the duties, powers, authorities,
trusts and discretions vested in the Class A-1 Note Trustee by
this Deed provided that, except as provided in any Transaction
Documents, the Class A-1 Note Trustee may not delegate to such
third parties any material part of its powers, duties or
obligations as Class A-1 Note Trustee (provided that following the
occurrence of an Event of Default the Class A-1 Note Trustee may
delegate any of its powers, duties and obligations to be exercised
or performed in Australia). Any such delegation may be by power
of attorney or in such other manner as the Class A-1 Note Trustee
may think fit and may be made upon such terms and conditions
(including power to sub-delegate) and subject to such regulations
as the Class A-1 Note Trustee may think fit. Provided that the
Class A-1 Note Trustee has exercised good faith and due care in
the selection of such delegate, and subject to clause [ ]8.6, it
will not be under any obligation to any Interested Person to
supervise the proceedings or be in any way responsible for any
loss incurred by reason of any misconduct or default on the part
of any such delegate or sub-delegate.
(m) (Apply to court): The Class A-1 Note Trustee may, whenever it
thinks it expedient in the interests of the Class A-1 Noteholders,
apply to any court for directions in relation to any question of
law or fact arising either before or after an Event of Default and
assent to or approve any applications of any Class A-1 Noteholder,
the Issuer or the Manager.
(n) (Disclosure): Subject to this Deed, any applicable laws and any
duty of confidentiality owed by any Interested Person to any other
person, the Class A-1 Note Trustee may, for the purpose of meeting
its obligations under this Deed, disclose to any Class A-1
Noteholder any confidential, financial or other information made
available to the Class A-1 Note Trustee by an Interested Person or
any other person in connection with this Deed.
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(o) (Determination): The Class A-1 Note Trustee, as between itself and
the Class A-1 Noteholders, has full power to determine (acting
reasonably and in good faith) all questions and doubts arising in
relation to any of the provisions of this Deed and every such
determination, whether made upon such a question actually raised
or implied in the acts or proceedings of the Class A-1 Note
Trustee, will be conclusive and will bind the Class A-1 Note
Trustee and the Class A-1 Noteholders.
(p) (Interests of Class A-1 Noteholders): In connection with the
exercise by it of any of its trusts, powers, authorities and
discretions under this Deed or any other Transaction Document
(including, without limitation, any modification, waiver,
authorisation or determination), the Class A-1 Note Trustee must
where it is required to have regard to the interests of the Class
A-1 Noteholders, have regard to the general interests of the Class
A-1 Noteholders as a class. The Class A-1 Note Trustee will not
incur any liability to any Class A-1 Noteholder as a result of the
Class A-1 Note Trustee giving effect to this clause [ ]8.1(p).
(q) (Assumption as to Prejudice): The Class A-1 Note Trustee is
entitled to assume, for the purposes of exercising any power,
trust, authority, duty or discretion under or in relation to the
Class A-1 Notes, this Deed or any other Transaction Document, that
such exercise will not be materially prejudicial to the interests
of the Class A-1 Noteholders if each of the Rating Agencies has
confirmed in writing that such exercise will not result in the
reduction, qualification or withdrawal of the credit rating then
assigned by it to the Class A-1 Notes (but nothing in this clause
is to be construed as requiring the Class A-1 Note Trustee to
obtain such confirmation).
(r) (Validity of Transaction Documents): The Class A-1 Note Trustee is
not responsible for the execution, delivery, legality,
effectiveness, adequacy, genuineness, validity, performance,
enforceability, admissibility in evidence, form or content of this
Deed or any other Transaction Document (other than the execution
and delivery by it of this Deed and each other Transaction
Document to which it is expressed to be a party and the
performance of those obligations expressed to be binding on it
under this Deed and such Transaction Documents) and is not liable
for any failure to obtain any licence, consent or other authority
for the execution, delivery, legality, effectiveness, adequacy,
genuineness, validity, performance, enforceability or
admissibility in evidence of this Deed or any other Transaction
Document except to the extent specifically provided in this Deed
or such Transaction Document. The Class A-1 Note Trustee is not
responsible for recitals, statements, warranties or
representations of any party (other than itself) contained in any
Transaction Document (and is entitled to assume the accuracy and
correctness thereof).
(s) (Defect in Security): The Class A-1 Note Trustee is not bound or
concerned to examine or enquire into nor is it liable for any
defect in or failure to perfect any Security Interest created or
purported to be created by the
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Security Trust Deed and the Class A-1 Note Trustee may accept
without enquiry, requisition or objection such title as the Issuer
may have to the Charged Property or any part thereof from time to
time and shall not be bound to investigate or make any enquiry
into the title of the Issuer to the Charged Property or any part
thereof from time to time.
(t) (Class A-1 Noteholders Responsible): Each Class A-1 Noteholder is
solely responsible for making its own independent appraisal of and
investigation into the financial condition, creditworthiness,
condition, affairs, status and, nature of the Issuer and the
Series Trust and the Class A-1 Note Trustee does not at any time
have any responsibility for the same and no Class A-1 Noteholder
may rely on the Class A-1 Note Trustee in respect of such
appraisal and investigation.
(u) (Limit on Obligations): No provision of this Deed or any other
Transaction Document requires the Class A-1 Note Trustee to do
anything which may be contrary to any applicable law or regulation
or to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties, or in
the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
full indemnity against such risk or liability is not assured to
it. Except for the obligations imposed on it under this Deed, the
Class A-1 Notes or any other Transaction Document, the Class A-1
Note Trustee is not obliged to do or omit to do any thing,
including entering into any transaction or incurring any liability
unless the Class A-1 Note Trustee's liability, is limited in a
manner satisfactory to the Class A-1 Note Trustee in its absolute
discretion.
(v) (No duty to provide information): Subject to the express
requirements of this Deed or otherwise as required by any law, the
Class A-1 Note Trustee has no duty (either initially, or on a
continuing basis) to consider or provide any Class A-1 Noteholders
with any confidential financial, price sensitive or other
information made available by the Issuer, the Manager or any other
person under or in connection with this Deed or any Transaction
Document (whenever coming into its possession) and no Class A-1
Noteholder is entitled to take any action to obtain from the Class
A-1 Note Trustee any such information.
(w) (No liability for breach): The Class A-1 Note Trustee is not to be
under any liability whatsoever for a failure to take any action in
respect of any breach by the Issuer of its duties as trustee of
the Series Trust of which the Class A-1 Note Trustee is not aware
or in respect of any Event of Default or Potential Event of
Default of which the Class A-1 Note Trustee is not aware.
(x) (Dispute or Ambiguity): In the event of any dispute or ambiguity
as to the construction or enforceability of this Deed or any other
Transaction Document, or the Class A-1 Note Trustee's powers or
obligations under or in connection with this Deed or the
determination or calculation of any amount or thing for the
purpose of this Deed or the construction or validity of any
direction from Class A-1 Noteholders, provided the Class A-1 Note
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Trustee is using reasonable endeavours to resolve such ambiguity
or dispute, the Class A-1 Note Trustee, in its absolute
discretion, may (but will have no obligation to) refuse to act or
refrain from acting in relation to matters affected by such
dispute or ambiguity.
(y) (Loss to Charged Property): The Class A-1 Note Trustee shall not
be responsible for any loss, expense or liability occasioned to
the Charged Property or any other property or in respect of all or
any of the moneys which may stand to the credit of the Collections
Account from time to time however caused (including, without
limitation, where caused by an act or omission of the Security
Trustee) unless that loss is occasioned by the fraud, negligence,
wilful default or breach of trust of the Class A-1 Note Trustee.
(z) (Conversion of Money): Where necessary or expedient in order to
fulfill its obligations under this Deed or any Transaction
Document the Class A-1 Note Trustee may convert any moneys forming
part of the Class A-1 Trust Fund from one currency into another at
such market exchange rate or rates as are reasonably determined by
the Class A-1 Note Trustee.
(aa) (Ratings): Except as otherwise provided in this Deed or any other
Transaction Document, the Class A-1 Note Trustee has no
responsibility for the maintenance of any rating of the Class A-1
Notes by any Rating Agency or any other person.
(bb) (No liability for tax on payments): The Class A-1 Note Trustee has
no responsibility whatsoever to any Class A-1 Noteholder or any
other person in relation to any deficiency in a payment by the
Class A-1 Note Trustee to any Class A-1 Noteholders if that
deficiency arises as a result of the Class A-1 Note Trustee or the
Issuer being subject to any Tax in respect of that payment, the
Charged Property, the Security Trust Deed, this Deed or any income
or proceeds from them.
8.2 Waivers
Subject to clause [ ]7.1(a), the Class A-1 Note Trustee may, and if
directed to do so by a Majority of Class A-1 Noteholders must, on such
terms and conditions as it may deem reasonable, without the consent of
any of the Class A-1 Noteholders, and without prejudice to its rights in
respect of any subsequent breach agree to any waiver or authorisation of
any breach or proposed breach of any of the terms and conditions of the
Transaction Documents by the Issuer, the Manager or any other person
which, unless the Class A-1 Note Trustee is acting on the direction of a
Majority of Class A-1 Noteholders, is not, in the opinion of the Class A-
1 Note Trustee, materially prejudicial to the interests of the Class A-1
Noteholders as a class. No such waiver, authorisation or determination
may be made in contravention of any prior direction by a Majority of the
Class A-1 Noteholders. No direction of the Class A-1 Noteholders shall
affect any such waiver, authorisation or determination previously given
or made. Any such waiver, authorisation or determination will, if the
Class A-1 Note Trustee so requires, be notified to the Class A-1
Noteholders by the Issuer as soon as practicable after it is made in
accordance with this Deed.
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8.3 Class A-1 Note Trustee's Liability
Nothing in this Deed or any other Transaction Document will in any case
in which the Class A-1 Note Trustee has failed to show the degree of care
and diligence required of it as trustee having regard to the provisions
of this Deed and the mandatory provisions of the TIA conferring on it any
trusts, powers, authorities or discretions exempt the Class A-1 Note
Trustee from or indemnify it against any liability for breach of trust or
any liability which by virtue of any rule of law would otherwise attach
to it in respect of fraud or wilful default of which it may be guilty in
relation to its duties under this Deed.
8.4 Dealings with Series Trust
Subject to clause [ ]9.7, none of the:
(a) (Class A-1 Note Trustee): Class A-1 Note Trustee in its personal
or any other capacity;
(b) (Related Bodies Corporate): Related Bodies Corporate of the Class
A-1 Note Trustee;
(c) (Directors etc.): directors or officers of the Class A-1 Note
Trustee or its Related Bodies Corporate; or
(d) (Shareholders): shareholders of the Class A-1 Note Trustee or its
Related Bodies Corporate,
is prohibited from:
(e) (Subscribing for): subscribing for, purchasing, holding, dealing
in or disposing of Class A-1 Notes;
(f) (Contracting with): at any time:
(i) contracting with;
(ii) acting in any capacity as representative or agent for; or
(iii) entering into any financial, banking, agency or other
transaction with,
any other of them, the Issuer, the Manager or any Secured Creditor
(including any Class A-1 Noteholder); or
(g) (Being interested in): being interested in any contract or
transaction referred to in paragraphs (e) or (f).
None of the persons mentioned is liable to account to the Class A-1
Noteholders for any profits or benefits (including, without limitation,
bank charges, commission, exchange brokerage and fees) derived in
connection with any contract or transaction referred to
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in paragraphs (e) or (f). The preceding provisions of this clause [ ]8.4
only apply if the relevant person, in connection with the action,
contract or transaction, acts in good faith to all Class A-1 Noteholders
and, in the case of the Class A-1 Note Trustee, are subject to section
311(a) of the TIA.
8.5 Delegation of Duties of Class A-1 Note Trustee
The Class A-1 Note Trustee must not delegate to any person any of its
trusts, duties, powers, authorities or discretions under this Deed
except:
(a) (Related Body Corporate): to a Related Body Corporate of the Class
A-1 Note Trustee; or
(b) (As otherwise permitted): in accordance with the provisions of
this Deed or otherwise as agreed by the Manager.
8.6 Related Body Corporate of the Class A-1 Note Trustee
Where the Class A-1 Note Trustee delegates any of its trusts, duties,
powers, authorities and discretions to any person who is a Related Body
Corporate of the Class A-1 Note Trustee, the Class A-1 Note Trustee at
all times remains liable for the acts or omissions of such Related Body
Corporate and for the payment of fees of that Related Body Corporate when
acting as delegate.
9. DUTIES OF THE CLASS A-1 NOTE TRUSTEE
9.1 Class A-1 Note Trustee's General Duties
The Class A-1 Note Trustee must comply with the duties imposed on it by
this Deed, the Class A-1 Notes (including the Class A-1 Note Conditions)
and each other Transaction Document to which it is a party and must:
(a) (Act continuously): act continuously as trustee of the Class A-1
Trust until the Class A-1 Trust is terminated in accordance with
this Deed or until it has retired or been removed in accordance
with this Deed; and
(b) (Have regard to the Interests of Class A-1 Noteholders): in the
exercise of all discretions vested in it by this Deed and all
other Transaction Documents, except where expressly provided
otherwise, have regard to the interest of the Class A-1
Noteholders as a class.
9.2 Duties of the Class A-1 Note Trustee prior to Event of Default
Prior to an Event of Default:
(a) (Class A-1 Note Trustee Not Liable): the Class A-1 Note Trustee
shall not be liable except for the performance of such duties as
are specifically set out in this Deed, the Class A-1 Notes
(including the Class A-1 Note Conditions) or any other Transaction
Document to which it is a party and no implied
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covenants or obligations on the part of the Class A-1 Note Trustee
are to be read into this Deed; and
(b) (Reliance on Certificates): the Class A-1 Note Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, in the absence of
bad faith on the part of the Class A-1 Note Trustee, upon
certificates or opinions furnished to the Class A-1 Note Trustee
and conforming to the requirements of this Deed provided that the
Class A-1 Note Trustee shall examine, where applicable, the
evidence furnished to it pursuant to any provision of this Deed to
determine whether or not such evidence conforms to the
requirements of this Deed.
9.3 Duties of the Class A-1 Note Trustee following an Event of Default
If an Event of Default has occurred and is subsisting the Class A-1 Note
Trustee shall exercise the rights and powers vested in it by this Deed
and use the same degree of care and skill in their exercise as a prudent
person would exercise or use under the circumstances in the conduct of
such person's own affairs.
9.4 Certain Limitations of Liability where Acting in Good Faith
The Class A-1 Note Trustee shall not be liable under this Deed or any
Transaction Document for any error of judgment made in good faith by an
Authorised Officer of the Class A-1 Note Trustee unless it is proved that
the Class A-1 Note Trustee was negligent in ascertaining the pertinent
facts.
9.5 Class A-1 Note Trustee Not Relieved of Liability for Negligence etc.
Subject to clauses [ ]9.2 and 9.4, nothing in this Deed will relieve the
Class A-1 Note Trustee from liability for its own negligent action, its
own negligent failure to act or its own wilful misconduct. Section
315(d)(3) of the TIA is expressly excluded by this Deed.
9.6 Preferred Collection of Claims Against Issuer
The Class A-1 Note Trustee must comply with section 311(a) of the TIA and
the rules thereunder other than with respect to any creditor relationship
excluded from the operation of section 311(a) by section 311(b) of the
TIA. Following its retirement or removal pursuant to clause [ ]14, the
Class A-1 Note Trustee will remain subject to section 311(a) of the TIA
to the extent required by the TIA.
9.7 Compliance with Section 310 of TIA
(a) (Section 310(a) of TIA): The Class A-1 Note Trustee must ensure
that it at all times satisfies the requirements of section 310(a)
of the TIA.
(b) (Capital): Without limiting the foregoing, the Class A-1 Note
Trustee must ensure that it all times has a combined capital and
surplus (as those terms are used in the TIA) of at least
US$50,000,000 as set forth in its most recent
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published annual report of condition.
(c) (Section 310(b) of TIA): The Class A-1 Note Trustee must at all
times comply with section 310(b) of the TIA, provided that any
indenture or indentures under which other securities of the Issuer
are outstanding will be excluded from the operation of section
310(b)(1) of the TIA if the requirements for such exclusion set
out in section 310(b)(1) of the TIA are met.
9.8 Voting at Meetings under Master Trust Deed or Security Trust Deed
If the Class A-1 Note Trustee is entitled under the Master Trust Deed (as
varied by clause [ ]1.6 of the Series Supplement) or the Security Trust
Deed to vote at any meeting on behalf of Class A-1 Noteholders, the Class
A-1 Note Trustee must vote in accordance, where applicable, with the
directions of the Class A-1 Noteholders (whether or not solicited and
whether or not all Class A-1 Noteholders have provided such directions)
and otherwise in its absolute discretion. In acting in accordance with
the directions of Class A-1 Noteholders the Class A-1 Note Trustee must
exercise its votes for or against any proposal to be put to a meeting in
the same proportion as that of the aggregate Invested Amounts of the
Class A-1 Notes held by Class A-1 Noteholders who have directed the Class
A-1 Note Trustee to vote for or against such a proposal.
9.9 Transaction Documents
The Class A-1 Note Trustee must make available at the Class A-1 Note
Trustee's registered office for inspection by Class A-1 Noteholders a
copy of each Transaction Document in accordance with Condition [ ]3 of
the Class A-1 Note Conditions (provided that the Class A-1 Note Trustee
will not be in default of its obligations pursuant to this clause [ ]9.9
in respect of any Transaction Document, other than a Transaction Document
to which the Class A-1 Note Trustee is a party, a copy of which has not
been provided to the Class A-1 Note Trustee).
10. APPLICATION OF MONEYS
10.1 Moneys Received
The Class A-1 Note Trustee must hold all moneys received by it under this
Deed or any other Transaction Document upon trust to apply them:
(a) (Fees and Expenses): first, towards all amounts owing to the Class
A-1 Note Trustee under this Deed (other than under clause [ ]6.1);
and
(b) (Class A-1 Noteholders): secondly, pari passu to the Class A-1
Noteholders towards repayment of principal and payment of interest
and all other amounts owing to them by the Issuer in respect of
the Class A-1 Notes.
10.2 Investment of Moneys Held
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An amount which under this Deed ought to or may be invested by the Class
A-1 Note Trustee may be invested in the name or control of the Class A-1
Note Trustee in:
(a) (Authorised Short-Term Investments): Authorised Short-Term
Investments; or
(b) (US$ Investments): any investment denominated in US dollars which
has assigned to it the highest short-term credit rating from each
Rating Agency or which is otherwise approved by that Rating
Agency,
and the Class A-1 Note Trustee may at any time vary any such investments
and is not responsible for any loss resulting from such investments
whether due to depreciation in value, fluctuations in exchange rates or
otherwise.
11. CONTINUING SECURITY AND RELEASES
11.1 Trustee's Liability Not Affected
This Deed and the liability of the Issuer under this Deed will not be
affected or discharged by any of the following:
(a) (Indulgence): the granting to the Issuer or to any other person of
any time or other indulgence or consideration;
(b) (Delay in recovery): subject to Condition [ ]8.5 of the Class A-1
Note Conditions, the Class A-1 Note Trustee failing or neglecting
to recover any amounts owing in respect of the Class A-1 Notes;
(c) (Laches): any other laches, acquiescence, delay, act, omission or
mistake on the part of the Class A-1 Note Trustee or any other
person; or
(d) (Release): the release, discharge, abandonment or transfer whether
wholly or partially and with or without consideration of any other
security judgment or negotiable instrument held from time to time
or recovered by the Class A-1 Note Trustee from or against the
Issuer or any other person.
11.2 Waiver by Issuer
The Issuer waives in favour of the Class A-1 Note Trustee:
(a) (All rights necessary to give effect to Deed): all rights
whatsoever against the Class A-1 Note Trustee and any other person
estate or assets to the extent necessary to give effect to
anything in this Deed;
(b) (All rights inconsistent with Deed): all rights inconsistent with
the provisions of this Deed.
12. REMUNERATION AND EXPENSES OF CLASS A-1 NOTE TRUSTEE
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12.1 Payment of Fee
The Issuer must pay to the Class A-1 Note Trustee during the period that
any of the Class A-1 Notes remain outstanding the fee separately agreed
by the Class A-1 Note Trustee and the Issuer (at such times and upon such
terms as to interest for overdue payments or otherwise as are agreed
between the Issuer and the Class A-1 Note Trustee). If the Class A-1 Note
Trustee retires or is removed under this Deed, the Class A-1 Note Trustee
must refund to the Issuer that proportion of the fee (if any) which
relates to the period during which the Class A-1 Note Trustee will not be
the Class A-1 Note Trustee.
12.2 Payment of Expenses
The Issuer must pay or reimburse to the Class A-1 Note Trustee all
reasonable costs, expenses, charges, stamp duties and other Taxes and
liabilities properly incurred by the Class A-1 Note Trustee, or its
properly appointed agents or delegates, in the performance of the
obligations of the Class A-1 Note Trustee under this Deed or any other
Transaction Document including, without limitation, all costs and
expenses (including legal costs and expenses) incurred by the Class A-1
Note Trustee in the enforcement of any obligations under this Deed or any
other Transaction Documents. Without limiting any right of indemnity
available by law to the Class A-1 Note Trustee, the Class A-1 Note
Trustee is entitled to be indemnified from Class A-1 Trust Fund from and
against all such the costs, expenses, charges, stamp duties and other
Taxes and liabilities. Nothing in this clause [ ]12.2 entitles or permits
the Class A-1 Note Trustee to be reimbursed or indemnified for general
overhead costs and expenses of the Class A-1 Note Trustee (including,
without limitation, rents and any amounts payable by the Class A-1 Note
Trustee to its employees in connection with their employment) incurred
directly or indirectly in connection with the business activities of the
Class A-1 Note Trustee or in the exercise of its rights, powers and
discretions or the performance of its duties and obligations under this
Deed or any Transaction Document.
12.3 Additional Duties
In the event of the occurrence of an Event of Default or the Class A Note
Trustee considering it expedient or necessary or being requested pursuant
to any Transaction Document to undertake duties which the Class A-1 Note
Trustee and the Manager agree to be of an exceptional nature or otherwise
outside the scope of the normal duties of the Class A-1 Note Trustee
under this Deed or the other Transaction Documents the Issuer must pay to
the Class A-1 Note Trustee such additional remuneration as is agreed
between the Manager and the Class A-1 Note Trustee.
12.4 Dispute as to Additional Duties
In the event of the Manager and the Class A-1 Note Trustee failing to
agree:
(a) upon the amount of any additional remuneration referred to in
clause [ ]12.3; or
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(b) upon whether duties of the Class A-1 Note Trustee are of an
exceptional nature or otherwise outside the scope of the normal
duties of the Class A-1 Note Trustee for the purposes of clause
[ ]12.3,
such matters shall be determined by a merchant or investment bank (acting
as an expert and not as an arbitrator) selected by the Class A-1 Note
Trustee and approved by the Manager or, failing such approval, nominated
(on the application of the Class A-1 Note Trustee) by the President for
the time being of The Law Society of New South Wales (the expenses
involved in such nomination and the fees of such merchant or investment
bank being payable by the Issuer as an Expense) and the determination of
any such merchant or investment bank shall be final and binding upon the
Class A-1 Note Trustee, the Manager and the Issuer.
12.5 Currency and VAT
The above fees and expenses will be paid in US Dollars. The Issuer will
in addition pay any value added tax which may be applicable.
12.6 No Other Fees or Expenses
Except as provided in clauses [ ]12.1, 12.2, 12.3, 12.4 and 12.5 or as
expressly provided elsewhere in this Deed or any other Transaction
Document, neither the Issuer nor the Manager has any liability in respect
of any fees, commissions or expenses of the Class A-1 Note Trustee in
connection with this Deed or any Transaction Document.
12.7 Issuer Personally Liable for Fees
Notwithstanding any other provision of this Deed, the Issuer must pay to
the Class A-1 Note Trustee the fees referred to in clause [ ]12.1, and
any value added tax on such fees, from its own personal funds and will
not be entitled to indemnified from the Assets of the Series Trust with
respect to such fees or value added taxes provided that if the Bank of
New York, New York Branch retires or is removed as Class A-1 Note Trustee
the Issuer will only be liable to pay the fees referred to in clause [
]12.1, and any value added tax on such fees, from its own personal funds,
to the extent that such fees and value added tax do not exceed the amount
that would have been payable to The Bank of New York, New York Branch if
it had remained as Class A-1 Note Trustee. The balance of such fees and
value added tax, if any, will be an Expense for which the Issuer is
entitled to be indemnified from the Assets of the Series Trust in
accordance with the Series Supplement.
12.8 Timing of Payments
Except as referred to in clause [ ]12.7, all payments by the Issuer to
the Class A-1 Note Trustee under this clause [ ]12 are payable on the
first Distribution Date following demand by the Class A-1 Note Trustee
from funds available for this purpose in accordance with the Series
Supplement.
12.9 Non-Discharge
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Unless otherwise specifically stated in any discharge of the Class A-1
Trust the provisions of this clause [ ]12 will continue in full force and
effect despite such discharge.
13. ADDITIONAL CLASS A-1 NOTE TRUSTEES
13.1 Appointment and Removal
The Class A-1 Note Trustee may, upon giving prior notice to the Issuer
and the Manager (but without the consent of the Issuer, the Manager or
the Class A-1 Noteholders), appoint any person (an "Additional Note
Trustee") (other than the Issuer or a Related Body Corporate of the
Issuer) established or resident in any jurisdiction (whether an Eligible
Trust Corporation or not) to act as a co-trustee jointly with the Class
A-1 Note Trustee:
(a) (Interests of Class A-1 Noteholders): if the Class A-1 Note
Trustee considers such appointment to be in the interests of the
Class A Noteholders;
(b) (Legal Requirements): for the purposes of conforming to any legal
requirements, restrictions or conditions in any jurisdiction in
which any particular act or acts is or are to be performed; or
(c) (Obtaining Judgment): for the purposes of obtaining a judgment in
any jurisdiction or the enforcement in any jurisdiction of either
a judgment already obtained or any of this Deed or any other
Transaction Document.
The Issuer, for valuable consideration, irrevocably appoints the Class
A-1 Note Trustee to be its attorney in its name and on its behalf to
execute an instrument of appointment of any such Additional Note Trustee.
Such Additional Note Trustee will (subject always to the provisions of
this ) have such trusts, powers, authorities and discretions (not
exceeding those conferred on the Class A-1 Note Trustee by this Deed or
any other Transaction Document) and such duties and obligations as are
conferred or imposed by the instrument of appointment. Such reasonable
remuneration as the Class A-1 Note Trustee may pay to any Additional Note
Trustee, together with any costs and expenses properly incurred by any
Additional Note Trustee in performing its functions as such, are expenses
of the Class A-1 Note Trustee recoverable by it pursuant to clause
[ ]12.2. The Class A-1 Note Trustee, upon giving prior notice to the
Issuer and the Manager, has the power to remove any Additional Trustee.
The Issuer, for valuable consideration, irrevocably appoints the Class
A-1 Note Trustee to be its attorney in its name and on its behalf to
execute an instrument of removal of any such Additional Note Trustee.
13.2 Joint Exercise of Powers
All rights, powers, duties and obligations conferred or imposed upon an
Additional Note Trustee are conferred or imposed upon and exercised or
performed by the Class A-1 Note Trustee and the Additional Note Trustee
jointly (it being understood that an Additional Note Trustee is not
authorised to act separately without the Class A-1 Note Trustee joining
in such act), except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed the Class A-1
Note Trustee shall
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be incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations shall be exercised and
performed singly by such Additional Note Trustee (but subject to the
direction of the Class A-1 Note Trustee).
13.3 Notice
The Class A-1 Note Trustee must promptly notify the Principal Paying
Agent, the Class A-1 Noteholders and the Rating Agencies of each
appointment or removal of an Additional Note Trustee pursuant to this
clause [ ]13.
14. RETIREMENT OR REMOVAL OF CLASS A-1 NOTE TRUSTEE
14.1 Retirement of Class A-1 Note Trustee
The Class A-1 Note Trustee covenants that it will retire as Class A-1
Note Trustee if:
(a) (Insolvency): an Insolvency Event occurs in relation to the Class
A-1 Note Trustee in its personal capacity or in respect of its
personal assets (and not in its capacity as trustee of any trust
or in respect of any assets it holds as trustee);
(b) (Ceases to carry on business): it ceases to carry on business;
(c) (Ceases to be an Eligible Trust Corporation): it ceases to be an
Eligible Trust Corporation;
(d) (Class A-1 Noteholders require retirement): it is so directed by a
Special Majority of Class A-1 Noteholders;
(e) (Breach of duty): when required to do so by the Manager or the
Issuer by notice in writing, it fails or neglects within 20
Business Days after receipt of such notice to carry out or satisfy
any material duty imposed on it by this Deed or any Transaction
Document; or
(f) (Change in ownership): there is a change in ownership of 50% or
more of the issued equity share capital of the Class A-1 Note
Trustee from the position as at the date of this Deed or effective
control of the Class A-1 Note Trustee alters from the position as
at the date of this Deed unless in either case approved by the
Manager (whose approval must not be unreasonably withheld).
14.2 Removal by Manager
If the Class A-1 Note Trustee refuses to retire the Manager is entitled
to remove the Class A-1 Note Trustee from office immediately by notice in
writing if an event referred to in clause [ ]14.1 has occurred. On the
retirement or removal of the Class A-1 Note Trustee under the provisions
of clause [ ]14.1 or this clause [ ]14.2:
(a) (Notify Rating Agencies): the Manager must promptly notify the
Rating
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Agencies of such retirement or removal; and
(b) (Appoint Substitute Class A-1 Note Trustee): subject to any
approval required by law, the Manager is entitled to and must use
reasonable endeavours to appoint in writing some other Eligible
Trust Corporation that is approved by the Rating Agencies to be
the Substitute Class A-1 Note Trustee.
14.3 Class A-1 Note Trustee May Retire
The Class A-1 Note Trustee may retire at any time as trustee under this
Deed upon giving 3 months (or such lesser time as the Manager, the Issuer
and the Class A-1 Note Trustee agree) notice in writing to the Issuer,
the Manager and the Rating Agencies, without giving any reason and
without being responsible for any liabilities incurred by reason of such
retirement provided that such retirement is in accordance with this Deed,
provided that no such period of notice of retirement may expire within
the period of 30 days preceding each Distribution Date. Upon such
retirement the Class A-1 Note Trustee, subject to any approval required
by law, may appoint in writing any other Eligible Trust Corporation that
is approved by the Rating Agencies and the Manager, which approval must
not be unreasonably withheld by the Manager, as Class A-1 Note Trustee in
its stead. If the Class A-1 Note Trustee does not propose a replacement
by the date which is 1 month prior to the date of its proposed
retirement, the Manager is entitled to appoint a Substitute Class A-1
Note Trustee, which must be an Eligible Trust Corporation that is
approved by the Rating Agencies, as of the date of the proposed
retirement.
14.4 Appointment of Substitute Class A-1 Note Trustee by Class A-1 Noteholders
Notwithstanding clauses [ ]14.1, 14.2 and 14.3, no retirement or removal
of the Class A-1 Note Trustee will be effective until a Substitute Class
A-1 Note Trustee has been appointed as in its place. If a Substitute
Class A-1 Note Trustee has not been appointed under clauses [ ]14.1, 14.2
or 14.3 at a time when the position of Class A-1 Note Trustee would, but
for this clause [ ]14.4, become vacant in accordance with those clauses,
the Issuer must promptly advise the Class A-1 Noteholders a Special
Majority of whom may appoint an Eligible Trust Corporation nominated by
any of them to act as Class A-1 Note Trustee.
14.5 Release of Class A-1 Note Trustee
Upon retirement or removal of the Class A-1 Note Trustee as trustee of
the Class A-1 Trust, the Class A-1 Note Trustee is released from all
obligations under this Deed arising after the date of the retirement or
removal except for its obligation to vest the Class A-1 Trust Fund in the
Substitute Class A-1 Note Trustee and to deliver all books and records
relating to the Class A-1 Trust to the Substitute Class A-1 Note Trustee.
The Manager and the Issuer may settle with the Class A-1 Note Trustee the
amount of any sums payable by the Class A-1 Note Trustee to the Manager
or the Issuer or by the Manager or the Issuer to the Class A-1 Note
Trustee and may give to or accept from the Class A-1 Note Trustee a
discharge in respect of those sums which will be conclusive and binding
as between the Manager, the Issuer and the Class A-1 Note
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Trustee but not as between the Class A-1 Note Trustee and the Class A-1
Noteholders.
14.6 Vesting of Class A-1 Trust Fund in Substitute Class A-1 Note Trustee
The Class A-1 Note Trustee, on its retirement or removal, must vest the
Class A-1 Trust Fund or cause it to be vested in the Substitute Class A-1
Note Trustee and must deliver and assign to such Substitute Class A-1
Note Trustee as appropriate all books, documents, records and other
property whatsoever relating to the Class A-1 Trust Fund.
14.7 Substitute Class A-1 Note Trustee to Execute Deed
Each Substitute Class A-1 Note Trustee must upon its appointment execute
a deed in such form as the Manager may require whereby such Substitute
Class A-1 Note Trustee must undertake to the Class A-1 Noteholders to be
bound by all the covenants on the part of the Class A-1 Note Trustee
under this Deed from the date of such appointment.
14.8 Rating Agencies Advised
The Manager must promptly:
(a) (Retirement): approach and liaise with each Rating Agency in
respect of any consents required from it to the replacement of the
Class A-1 Note Trustee pursuant to clauses [ ]14.2 or 14.3;
(b) (Change of ownership): notify the Rating Agencies of it becoming
aware of a change in ownership of 50% or more of the issued equity
share capital of the Class A-1 Note Trustee from the position as
at the date of this Deed or effective control of the Class A-1
Note Trustee altering from the date of this Deed; and
(c) (Approval for change in ownership): notify the Rating Agencies of
any approvals given by the Manager pursuant to clause [ ]14.1(f).
14.9 Retention of Lien
Notwithstanding any release of the outgoing Class A-1 Note Trustee under
this clause [ ]14, the outgoing Class A-1 Note Trustee will remain
entitled to the benefit of the indemnities granted by this Deed to the
outgoing Class A-1 Note Trustee in respect of any liability, cost or
other obligation incurred by it while acting as Class A-1 Note Trustee,
as if it were still the Class A-1 Note Trustee under this Deed.
14.10 Issuer and Manager Cannot be Appointed
Notwithstanding the preceding provisions of this clause .14, none of the
Manager, the Issuer, any Support Facility Provider nor any of their
Related Body Corporates may be appointed as Class A-1 Note Trustee.
14.11 No Limitation of TIA
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Nothing in this clause [ ]14 is to be construed as limiting any right of
a Class A-1 Noteholder to take any action to remove the Class A-1 Note
Trustee in accordance with section 310(b) of the TIA.
15. AMENDMENT
15.1 Amendment by Class A-1 Note Trustee
Subject to this clause [ ]15 and to any approval required by law, the
Class A-1 Note Trustee, the Manager and the Issuer may together agree,
without the consent or sanction of any Class A-1 Noteholder, by way of
supplemental deed to alter, add to or revoke any provision of this Deed
or the Class A-1 Notes (including the Class A-1 Note Conditions) so long
as such alteration, addition or revocation is not a Payment Modification
and such alteration, addition or revocation in the opinion of the
Class A-1 Note Trustee:
(a) (Necessary or expedient): is necessary or expedient to comply with
the provisions of any Statute or regulation or with the
requirements of any Governmental Agency;
(b) (Manifest error): is made to correct a manifest error or ambiguity
or is of a formal, technical or administrative nature only;
(c) (Amendment to law): is appropriate or expedient as a consequence
of an amendment to any Statute or regulation or altered
requirements of any Governmental Agency or any decision of any
court (including, without limitation, an alteration, addition or
modification which is in the opinion of the Class A-1 Note Trustee
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 or any decision of
any court, 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 Series Trust or the Class A-1 Trust); or
(d) (Otherwise desirable): in the opinion of the Class A-1 Note
Trustee and the Issuer is otherwise desirable for any reason and:
(i) is not in the opinion of the Class A-1 Note Trustee likely,
upon coming into effect, to be materially prejudicial to
the interests of Class A-1 Noteholders; or
(ii) if it is in the opinion of the Class A-1 Note Trustee
likely, upon coming into effect, to be materially
prejudicial to Class A-1 Noteholder, the consent of a
Special Majority of Class A-1 Noteholders to the
alteration, addition or resolution has been obtained. For
the purpose of determining whether a Special Majority of
Class A-1 Noteholders has consented to an alteration,
addition or revocation, Class A-1 Notes which are
beneficially owned by the Issuer or the Manager or by any
person directly or
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indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or the Manager,
shall be disregarded,
provided that the Class A-1 Note Trustee, the Manager and the Issuer may
not alter, add to or revoke any provision of this Deed or the Class A-1
Notes unless the Manager has notified the Rating Agencies 5 Business Days
in advance.
15.2 Amendments Requiring Consent of all Class A-1 Noteholders
The Class A-1 Note Trustee, the Manager and the Issuer may together agree
by way of supplemental deed to make or effect a Payment Modification to
this Deed or the Class A-1 Notes (including the Class A-1 Note
Conditions) if, and only if, the consent has first been obtained of each
Class A-1 Noteholder to such Payment Modification.
15.3 Compliance with TIA
Any supplemental deed altering, adding to or revoking any provision of
this Deed or the Class A-1 Notes (including the Class A-1 Note
Conditions) referred to in this clause [ ]15 must conform, to the extent
applicable, with the requirements of the TIA.
15.4 No Rating Agency Downgrade
The Class A-1 Note Trustee will be entitled to assume that any proposed
alteration, addition or revocation, other than a Payment Modification,
will not be materially prejudicial to the interests of Class A-1
Noteholders if each of the Rating Agencies confirms in writing that if
the alteration, addition or revocation is effected this will not lead to
a reduction, qualification or withdrawal of the then rating given to the
Class A-1 Notes by the Rating Agency.
15.5 Distribution of Amendments
The Issuer must distribute to all Class A-1 Noteholders a copy of any
amendment made pursuant to this clause [ ]15 as soon as reasonably
practicable after the amendment has been made.
15.6 Amendments Binding on Class A-1 Noteholders
Any alteration, addition or revocation of a provision of this Deed or the
Class A-1 Notes made pursuant to this clause [ ]15 is binding on all
Class A-1 Noteholders.
16. REPORTS
16.1 Reports by Class A-1 Note Trustee
If so required by section 313(a) of the TIA, the Class A-1 Note Trustee
shall provide to each Class A-1 Noteholder, and such other persons as the
Class A-1 Note Trustee is required by section 313(c) of the TIA to
provide reports to, at intervals of not more than 12 months (commencing
as from the Closing Date) a brief report of the events
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referred to in section 313(a) of the TIA that have occurred within the
preceding 12 months and shall provide such additional reports to Class A-
1 Noteholders, and such other persons as the Class A-1 Note Trustee is
required by section 313(c) of the TIA to provide reports to, as are
required by section 313(b) of the TIA at the times specified in that
section. A copy of each such report at the time of its provision to Class
A-1 Noteholders must be copied to the Issuer and the Manager and must be
filed by the Class A-1 Note Trustee with the Commission and each stock
exchange, if any, on which the Class A-1 Notes are listed.
16.2 Reports by Issuer
The Issuer and the Manager each severally covenants that it will:
(a) (Copy Securities Exchange Act Reports to Class A-1 Note Trustee):
file:
(i) with the Commission at such times as are required under the
Exchange Act; and
(ii) with the Class A-1 Note Trustee, within 15 days after it is
required to file the same with the Commission,
copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing
as the Commission may from time to time by rules and regulations
prescribe), if any, which it may be required to file with the
Commission pursuant to section 13 or 15(d) of the Exchange Act or,
if it is not required to file information, documents or reports
pursuant to either of such sections, then to file with the Class
A-1 Note Trustee and the Commission, in accordance with the rules
and regulations prescribed by the Commission, such of the
supplementary and periodic information, documents and reports
which may be required pursuant to section 13 of the Exchange Act,
in respect of a security listed and registered on a national
securities exchange as may be prescribed in such rules and
regulations;
(b) (Other Reports): file with the Class A-1 Note Trustee and the
Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such additional information,
documents and reports with respect to compliance by it with the
conditions and covenants of this Deed as may be required from time
to time by such rules and regulations; and
(c) (Summaries to Class A-1 Noteholders): transmit to Class A-1
Noteholders, and such other persons as are required by section
314(a)(3) of the TIA, such summaries of any information, documents
and reports required to be filed by the Issuer or the Manager
pursuant to clauses [ ]16.2(a) and (b) as may be required by rules
and regulations prescribed from time to time by the Commission.
16.3 Restricted Securities
The Issuer and the Manager each severally covenants that it will
forthwith notify the
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Class A-1 Note Trustee, if, at any time, after the Closing Date, any
Class A-1 Notes become "restricted securities" (as defined in Rule
144(a)(3) of Securities Act of 1933 of the United States of America) and
during any period during which the Issuer or the Manager is neither
subject to Sections 13 or 15(d) of the Exchange Act nor exempt from
reporting pursuant to Rule 12g3-2(d) under the Exchange Act, make
available to each holder of those Class A-1 Notes in connection with any
resale of those Class A-1 Notes and to any prospective purchaser of the
Class A-1 Notes from that holder, in each case upon request, the
information specified in and meeting the requirements of Rule
144(A)(d)(4) under the Securities Act.
17. CURRENCY INDEMNITY
17.1 Improper currency receipts
If any payment is made by the Issuer under this Deed or the Class A-1
Notes or if the Class A-1 Note Trustee or any Class A-1 Noteholder
receives or recovers any money under or pursuant to this Deed or the
Class A-1 Notes in a currency ("Receipt Currency") other than the
currency in which the money was payable pursuant to the terms of this
Deed or the Class A-1 Notes ("Agreed Currency"), the Issuer must, as a
separate and additional liability, pay to the recipient such additional
amount so that after conversion from the Receipt Currency into the Agreed
Currency of such money so paid, received or recovered and after the
payment of all commission and expenses in relation to such conversion the
recipient will receive net in its hands an amount in the Agreed Currency
equal to the amount of the money payable under this Deed or the Class A-1
Notes in the Agreed Currency.
17.2 Currency indemnity
If a judgment or an order is rendered by any court or tribunal for the
payment of any amount payable by the Issuer under this Deed or the Class
A-1 Notes or for the payment of damages in respect of any breach by the
Issuer of this Deed or the Class A-1 Notes or any Insolvency Event in
relation to the Issuer occurs resulting in money being payable or
receivable in respect of any proof or other claim, and such judgment,
order, proof or claim is expressed in a currency ("Judgment Currency")
other than the currency in which the money was payable pursuant to the
terms of this Deed or the Class A-1 Notes ("Agreed Currency"), the Issuer
must indemnify and hold harmless and keep indemnified the person with the
benefit of the judgment, order, proof or claim (as the case may be) (the
"Receiving Party") against any deficiency in the Agreed Currency in the
amount received by the Receiving Party arising or resulting from any
variation as between:
(a) (Judgment Rate): the rate of exchange at which the Agreed Currency
is converted to the Judgment Currency for the purposes of such
judgment, order, proof or claim; and
(b) (Actual Rate): the rate of exchange which the Receiving Party is
able to purchase the Agreed Currency with the amount of the
Judgment Currency actually received by the Receiving Party,
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and such indemnity will continue in full force and effect notwithstanding
any such judgment, order, proof or claim.
17.3 Failure to pay proper currency
Any payment purportedly pursuant to the terms of this Deed or a Class A-1
Note in a currency other than the currency in which it is required to be
paid will not discharge or satisfy the relevant obligation of the payer
to make the payment except to the extent that, and insofar as, the
currency in which the payment is required to be made is acquired by sale
of the currency in which the payment was actually made.
18. EXPENSES AND STAMP DUTIES
18.1 Expenses
Subject to clause [ ]22, the Issuer will on demand reimburse the Class
A-1 Note Trustee for and keep the Class A-1 Note Trustee indemnified
against all expenses including legal costs and disbursements (on a full
indemnity basis) incurred by the Class A-1 Note Trustee in connection
with:
(a) (Preparation): the preparation and execution of this Deed and any
subsequent consent, agreement, approval or waiver under this Deed
or amendment to this Deed;
(b) (Enforcement): the exercise, enforcement, preservation or
attempted exercise enforcement or preservation of any rights under
this Deed including without limitation any expenses incurred in
the evaluation of any matter of material concern to the Class A-1
Note Trustee; and
(c) (Governmental Agency): any enquiry by a Governmental Agency
concerning the Issuer or the Assets of the Series Trust or a
transaction or activity the subject of the Transaction Documents.
18.2 Stamp Duties and other Taxes
The Issuer must pay any stamp and other duties and Taxes, including fines
and penalties, payable in Australia, the United Kingdom, Belgium,
Luxembourg or the United States on or in connection with:
(a) (Execution of Deed): the execution, delivery and performance of
this Deed or any payment, receipt or other transaction
contemplated by this Deed;
(b) (Issue of Class A-1 Notes): the constitution and original issue
and delivery of the Class A-1 Notes; and
(c) (Proceedings): any action taken by the Class A-1 Note Trustee or
(where in accordance with this Deed or the Security Trust Deed the
Class A-1 Noteholders are entitled to do so) the Class A-1
Noteholders to enforce the provisions of the Class A-1 Notes, this
Deed, the Master Trust Deed, the
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Series Supplement or the Security Trust Deed.
The Issuer must indemnify and keep indemnified the Class A-1 Note Trustee
against any loss or liability incurred or suffered by it as a result of
the delay or failure by the Issuer to pay any such stamp and other duties
and Taxes.
19. TRUST INDENTURE ACT
19.1 Certificates and Opinions
(a) (Class A-1 Note Conditions Precedent): Upon any application or
request by the Issuer to the Class A-1 Note Trustee to take any
action under any provision of this Deed, the Issuer must furnish
to the Class A-1 Note Trustee:
(i) a certificate from two Authorised Officers of the Issuer
stating that all conditions precedent, if any, provided for
in this Deed relating to the proposed action have been
complied with;
(ii) Counsel's Opinion stating that all such conditions
precedent, if any, have been complied with; and
(iii) if required by the TIA, a certificate from an accountant
meeting the applicable requirements of section 314(c)(3) of
the TIA,
provided that in the case of any such application or request as to
which the furnishing of such documents is specifically required by
any other provision of this Deed no additional certificate or
opinion need be furnished.
(b) (Fair Value): The Issuer must furnish to the Class A-1 Note
Trustee a certificate or opinion of an engineer, appraiser or
other expert as to the fair value:
(i) of any property or securities to be released from the
Security Interest created by the Security Trust Deed, where
this is required by section 314(d)(1) of the TIA;
(ii) to the Issuer of any securities the deposit of which with
the Issuer is to be made the basis for the release of any
property or securities subject to the Security Interest
created by the Security Trust Deed, where this is required
by section 314(d)(2) of the TIA; and
(iii) to the Issuer of any property the subjection of which to
the Security Interest created by the Security Trust Deed is
to be made the basis for the release of any property or
securities subject to the Security Interest created by the
Security Trust Deed, where this is required by section
314(d)(3) of the TIA,
and every such certificate or opinion must comply with the
relevant provisions of section 314(d) of the TIA (and, except as
provided otherwise in section 314 of the TIA, may be given by an
Authorised Officer of the Issuer).
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(c) (Form of Certificates and Opinions): Every certificate or opinion
with respect to compliance with a condition or covenant provided
for in this Deed (other than the certificate referred to in clause
[ ]6.3(c)(i)) shall include:
(i) a statement that each signatory of such certificate or
opinion has read such covenant or condition and the
definitions used therein;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are
based;
(iii) a statement that, in the opinion of each such signatory,
such signatory has made such examination or investigation
as is necessary to enable such signatory to express an
informed opinion as to whether or not such covenant or
condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory such condition or covenant has been complied
with.
19.2 Undertaking for Costs
(a) (Undertaking): Subject to clause [ ]19.2(b), all parties to this
deed agree, and each Class A-1 Noteholder by such Class A-1
Noteholder's acceptance of the Class A-1 Notes are deemed to have
agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Deed, or in
any suit against the Class A-1 Note Trustee for any action taken,
suffered or omitted by it as the Class A-1 Note Trustee, the
filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion
assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defences made by such party
litigant.
(b) (Exceptions): The provisions of clause [ ]19.2(a) shall not apply
to:
(i) any suit instituted by the Class A-1 Note Trustee;
(ii) any suit instituted by any Class A-1 Noteholder, or group
of Class A-1 Noteholders, in each case holding in the
aggregate Class A-1 Notes with an Invested Amount of more
than 10% of the then aggregate Invested Amount of all Class
A-1 Notes; or
(iii) any suit instituted by any Class A-1 Noteholder for the
enforcement of the payment of principal or interest on any
Class A-1 Note on or after the respective due dates
expressed in such Class A-1 Note and in this Deed.
19.3 Exclusion of Section 316(a)(1)
Section 316(a)(1) of the TIA is expressly excluded by this Deed.
19.4 Unconditional Rights of Class A Noteholders to Receive Principal And
Interest
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Notwithstanding any other provisions in this Deed, any Class A-1
Noteholder shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest, if any, on each Class
A-1 Note held by it on or after the respective due dates thereof
expressed in such Class A-1 Note or in this Deed or to institute suit for
the enforcement of any such payment, and such right shall not be impaired
without the consent of such Class A-1 Noteholder, except to the extent
that this Deed or the Security Trust Deed contain provisions limiting or
denying the right of any Class A-1 Noteholder to institute any such suit,
if and to the extent that the institution or prosecution thereof or the
entry of judgment therein would, under applicable law, result in the
surrender, impairment, waiver, or loss of the Security Interest created
by the Security Trust Deed upon any property subject to such Security
Interest.
19.5 Conflict with Trust Indenture Act
The provisions of section 310 to 317 (inclusive) of the TIA are
incorporated into, are a part of and govern this deed, whether or not
contained in this Deed, unless expressly excluded by this Deed in
accordance with the TIA. If any provision of this Deed limits, qualifies
or conflicts with any provision that is deemed to be included in this
Deed by virtue of any of the provisions of the TIA, such provision deemed
to be included in this Deed will prevail.
20. GOVERNING LAW AND JURISDICTION
20.1 Governing Law
This Deed is governed by and construed in accordance with the laws of the
State of New South Wales.
20.2 Jurisdiction
(a) (Submission to jurisdiction): The Issuer, the Class A-1 Note
Trustee, the Manager and each of the Class A-1 Noteholders each
irrevocably submits to and accepts generally and unconditionally
the non-exclusive jurisdiction of the Courts and appellate Courts
of the State of New South Wales with respect to any legal action
or proceedings which may be brought at any time relating in any
way to this Deed.
(b) (Waiver of inconvenient forum): The Issuer, the Class A-1 Note
Trustee, the Manager and each of the Class A-1 Noteholders each
irrevocably waives any objection it may now or in the future have
to the venue of any such action or proceedings brought in such
courts and any claim it may now or in the future have that any
such action or proceedings have been brought in an inconvenient
forum.
21. NOTICES
21.1 Method of Delivery
Any notice, request, certificate, approval, demand, consent or other
communication to
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be given under this Deed other than to or by a Class A-1 Noteholder must:
(a) (Authorised Officer): be signed by an Authorised Officer of the
party giving the same;
(b) (In writing): be in writing; and
(c) (Delivery): be:
(i) left at the address of the addressee;
(ii) sent by prepaid ordinary post to the address of the
addressee; or
(iii) sent by facsimile to the facsimile number of the addressee,
notified by that addressee from time to time to the other parties
to this Deed as its address for service pursuant to this Deed.
21.2 Deemed Receipt
A notice, request, certificate, demand, consent or other communication
under this Deed other than to or by a Class A-1 Noteholder is deemed to
have been received:
(a) (Delivery): where delivered in person, upon receipt;
(b) (Post): where sent by post, on the 3rd (or 7th if posted
internationally) day after posting; and
(c) (Fax): where sent by facsimile, on production by the dispatching
facsimile machine of a transmission report which indicates that
the facsimile was sent in its entirety to the facsimile number of
the recipient.
However, if the time of deemed receipt of any notice is not before 5.30
pm on a Business Day at the address of the recipient it is deemed to have
been received at the commencement of business on the next Business Day.
21.3 Notices to Class A-1 Noteholders
Any notice, request, certificate, approval, demand, consent or other
communication to be given under this Deed to a Class A-1 Noteholder:
(a) (Delivery): will be effectively given if it is given in
accordance with Condition 11; and
(b) (Time): is deemed to have been given at the time specified in
Condition 11.
21.4 Notices from Class A-1 Noteholders
Any notice, request, certificate, approval, document, consent, direction
or other communication to be given under this Deed by a Class A-1
Noteholder to any person must:
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(a) (Signed): be signed by the Class A-1 Noteholder or an attorney of
the Class A-1 Noteholder;
(b) (In writing): be in writing;
(c) (Delivery): be:
(i) left at the address of the addressee;
(ii) sent by prepaid ordinary post to the address of the
addressee; or
(iii) sent by facsimile to the facsimile number of the addressee,
as set out in the Class A-1 Note Conditions or otherwise as
notified by that addressee to the Class A-1 Noteholders from time
to time;
(d) (Evidence): be accompanied by such evidence as to its proper
execution by the Class A-1 Noteholder as the addressee may
reasonably require,
and will only be effective upon actual receipt by the addressee. For the
purposes of seeking any consent, direction or authorisation from Class A-
1 Noteholders pursuant to this Deed, the TIA (including section 316 of
the TIA) or any Transaction Document the Class A-1 Note Trustee may by
notice to the Class A-1 Noteholders specify a date (not earlier than the
date of the notice) upon which the Class A-1 Noteholders for the purposes
of that consent, direction or authorisation will be determined and, if it
does so, the persons who are the Class A-1 Noteholders and the Invested
Amount of the Class A-1 Notes held by them will, for the purposes of that
consent, direction or authorisation, be determined based upon the details
recorded in the Class A-1 Note Register as at 5.30pm on that date.
21.5 Issuer and Manager
Each of the Issuer and the Manager must maintain an office or an agency
in each of the cities of New York and London where any legal proceedings
in respect of this Deed or the Class A-1 Notes may be served on it. The
Issuer initially appoints:
(a) (London): in London, Mallesons Stephen Jaques, London Office,
Level 2, Aldermary House, 15 Queen Street, London EC4N; and
(b) (New York): in New York, [[ ]],
as its agents for these purposes. The Manager initially appoints:
(a) (London): in London, Commonwealth Bank of Australia, London
Branch, Senator House, 85 Queen Victoria Street, London EC4V 4HA;
and
(b) (New York): in New York, Commonwealth Bank of Australia, New York
Branch, 599 Lexington Avenue, New York, New York 10022.
as its agents for these purposes.
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22. ISSUER'S LIMITED LIABILITY
22.1 Limitation on Issuer's Liability
The Issuer enters into this Deed only in its capacity as trustee of the
Series Trust and in no other capacity. A liability incurred by the Issuer
acting in its capacity as trustee of the Series Trust arising under or in
connection with this Deed is limited to and can be enforced against the
Issuer only to the extent to which it can be satisfied out of Assets of
the Series Trust out of which the Issuer is actually indemnified for the
liability. This limitation of the Trustee's liability applies despite any
other provision of this Deed (other than clauses [ ]12.7 and 22.3) 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 this Deed.
22.2 Claims against Issuer
The parties other than the Issuer may not sue the Issuer in respect of
liabilities incurred by the Issuer acting in its capacity as trustee of
the Series Trust in any capacity other than as trustee of the Series
Trust, including seeking the appointment of a receiver (except in
relation to Assets of the Series Trust), a liquidator, an administrator,
or any similar person to the Issuer or prove in any liquidation,
administration or similar arrangements of or affecting the Issuer (except
in relation to the Assets of the Series Trust).
22.3 Breach of Trust
The provisions of this clause [ ]22 will not apply to any obligation or
liability of the Issuer to the extent that it is not satisfied because
under the Master Trust Deed, the Series Supplement or any other
Transaction Document or by operation of law there is a reduction in the
extent of the Trustee's indemnification out of the Assets of the Series
Trust, as a result of the Issuer's fraud, negligence or wilful default
and will not apply to any obligation or liability of the Issuer to pay
amounts from its personal funds pursuant to clause [ ]12.7.
22.4 Acts or omissions
It is acknowledged that the Relevant Parties are responsible under the
Transaction Documents for performing a variety of obligations relating to
the Series Trust. No act or omission of the Issuer (including any related
failure to satisfy its obligations or any breach of representation or
warranty under this Deed) will be considered fraudulent, negligent or a
wilful default for the purpose of clause [ ]22.3 to the extent to which
the act or omission was caused or contributed to by any failure by any
Relevant Party or any other person appointed by the Issuer under any
Transaction Document (other than a person whose acts or omissions the
Issuer is liable for in accordance with any Transaction Document) to
fulfil its obligations relating to the Series Trust or by any other act
or omission of a Relevant Party or any other such person.
22.5 No Authority
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No attorney or agent appointed in accordance with this Deed 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 wilful default of the Issuer for the
purposes of clause [ ]22.3.
22.6 No Obligation
(a) (Obligations under this Deed or any Transaction Document): The
Issuer is not obliged to enter into any commitment or obligation
under this Deed or any Transaction Document unless the Trustee's
liability is limited in a manner which is consistent with this
clause [ ]22. For the avoidance of doubt, the Issuer agrees and
acknowledges that its liability for any commitment or obligation
it has entered into under this Deed is limited in a manner which
is consistent with this clause [ ]22.
(b) (Obligations not contained in this Deed or any Transaction
Document): The Issuer is not obliged to enter into any commitment
or obligation contemplated by but not contained in this Deed or
any Transaction Document unless the Trustee's liability in
relation to that commitment or obligation is limited in a manner
satisfactory to the Issuer in its absolute discretion.
23. MISCELLANEOUS
23.1 Assignment by Issuer
The Issuer will not assign or otherwise transfer the benefit of this Deed
or any of its rights, duties or obligations under this Deed except to a
Substitute Trustee which is appointed as a successor trustee of the
Series Trust under and in accordance with the Master Trust Deed.
23.2 Assignment by Manager
The Manager will not assign or otherwise transfer the benefit of this
Deed or any of its rights, duties or obligations under this Deed except
to a Substitute Manager which is appointed as a successor manager of the
Series Trust under and in accordance with the Master Trust Deed.
23.3 Assignment by Class A-1 Note Trustee
The Class A-1 Note Trustee will not assign or otherwise transfer all or
any part of the benefit of this Deed or any of its rights, duties and
obligations under this Deed except to a Substitute Class A-1 Note Trustee
which is appointed as a successor trustee under and in accordance with
this Deed.
23.4 Certificate of Class A-1 Note Trustee
A certificate in writing signed by an Authorised Officer of the Class A-1
Note Trustee certifying any act, matter or thing relating to this Deed is
conclusive and binding on the
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Issuer in the absence of manifest error on the face of the certificate.
23.5 Continuing Obligation
This Deed is a continuing obligation notwithstanding any settlement of
account intervening payment express or implied revocation or any other
matter or thing whatsoever until a final discharge of this Deed has been
given to the Issuer.
23.6 Settlement Conditional
Any settlement or discharge between the Issuer and the Class A-1 Note
Trustee is conditional upon any security or payment given or made to the
Class A-1 Note Trustee by the Issuer or any other person in relation to
the Secured Moneys not being avoided repaid or reduced by virtue of any
provision or enactment relating to bankruptcy insolvency or liquidation
for the time being in force and, in the event of any such security or
payment being so avoided repaid or reduced the Class A-1 Note Trustee is
entitled to recover the value or amount of such security or payment
avoided, repaid or reduced from the Issuer subsequently as if such
settlement or discharge had not occurred.
23.7 Interest on Judgment
If a liability under this Deed (other than a liability for negligence,
fraud or wilful default of the Issuer under the Transaction Documents)
becomes merged in a judgment or order then the Issuer as an independent
obligation will pay interest to the Class A-1 Note Trustee on the amount
of that liability at a rate being the higher of the rate payable pursuant
to the judgment or order and the highest rate payable on the Class A-1
Notes from the date it becomes payable until it is paid.
23.8 Severability of Provisions
Any provision of this Deed which is illegal, void or unenforceable in any
jurisdiction is ineffective in that jurisdiction to the extent only of
such illegality, voidness or unenforceability without invalidating the
remaining provisions of this Deed or the enforceability of that provision
in any other jurisdiction.
23.9 Remedies Cumulative
The rights and remedies conferred by this Deed upon the Class A-1 Note
Trustee are cumulative and in addition to all other rights or remedies
available to the Class A-1 Note Trustee by Statute or by general law.
23.10 Waiver
A failure to exercise or enforce or a delay in exercising or enforcing or
the partial exercise or enforcement of any right, remedy, power or
privilege under this Deed
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by the Class A-1 Note Trustee will not in any way preclude or operate as
a waiver of any further exercise or enforcement of such right, remedy,
power or privilege or the exercise or enforcement of any other right,
remedy, power or privilege under this Deed or provided by law.
23.11 Written Waiver, Consent and Approval
Any waiver, consent or approval given by the Class A-1 Note Trustee under
this Deed will only be effective and will only be binding on the Class A-
1 Note Trustee if it is given in writing or given verbally and
subsequently confirmed in writing and executed by the Class A-1 Note
Trustee or on its behalf by an Authorised Officer for the time being of
the Class A-1 Note Trustee.
23.12 Time of Essence
Time is of the essence in respect of the Issuer's obligations under this
Deed.
23.13 Moratorium Legislation
To the fullest extent permitted by law, the provisions of all Statutes
operating directly or indirectly:
(a) (Lessen Obligations): to lessen or otherwise to vary or affect in
favour of the Issuer any obligation under this Deed; or
(b) (Delay Exercise of Powers): to delay or otherwise prevent or
prejudicially affect the exercise of any powers conferred on the
Class A-1 Note Trustee under this Deed,
are expressly waived negatived and excluded.
23.14 Binding on Each Signatory
This Deed binds each of the signatories to this Deed notwithstanding that
any one or more of the named parties to this Deed does not execute this
Deed, that there is any invalidity forgery or irregularity touching any
execution of this Deed or that this Deed is or becomes unenforceable void
or voidable against any such named party.
23.15 Counterparts
This Deed may be executed in a number of counterparts and all such
counterparts taken together is deemed to constitute one and the same
instrument.
EXECUTED as a deed.
Executed as a deed by THE BANK OF NEW )
YORK, acting by: )
)
under the authority of that company
in the presence of:
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- ---------------------------------
(Signature of Witness)
- ---------------------------------
(Name of Witness in Full)
SIGNED SEALED AND DELIVERED )
for and on behalf of SECURITISATION )
ADVISORY SERVICES PTY. LIMITED, )
ACN 064 133 946, by )
)----------------------
its Attorney under a Power of Attorney dated )(Signature of Attorney)
and who declares that he or )
she has not received any notice of the )
revocation of such Power of Attorney in the )
presence of: )
- ---------------------------------
(Signature of Witness)
- ---------------------------------
(Name of Witness in Full)
SIGNED SEALED AND DELIVERED )
for and on behalf of )
PERPETUAL TRUSTEE COMPANY )
LIMITED, ACN 000 001 007, by )----------------------
)(Signature of Attorney)
its Attorney under a Power of Attorney dated )
and who declares that he or she )
has not received any notice of the revocation )
of such Power of Attorney in the presence of: )
- ---------------------------------
(Signature of Witness)
- ---------------------------------
(Name of Witness in Full)
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SCHEDULE 1
FORM OF CLASS A-1 NOTE
Registered CUSIP No: $[ ]
No. R- ISIN No.:
Common Code:
Unless this Class A-1 Note is presented by an authorised representative of The
Depository Trust Company, a New York corporation, ("DTC") to the Issuer (as
defined below) or its agent for registration of transfer, exchange or payment,
and any Class A-1 Note issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorised representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorised representative of DTC), any transfer, pledge or other use of the
Class A-1 Note for value or otherwise by or to any person is wrongful inasmuch
as the registered owner hereof, Cede & Co., has an interest in this Class A-1
Note.
[The above paragraph is to appear in the Class A-1 Book Entry Notes only.]
The principal of this Class A-1 Note is payable in instalments and may be
subject to charge-offs or exchange as set forth below, in the Class A-1 Note
Trust Deed and in the Class A-1 Note Conditions. Accordingly, the outstanding
principal amount of this Class A-1 Note at any time may be less than the amount
shown on the face of this Class A-1 Note.
PERPETUAL TRUSTEE COMPANY LIMITED, ACN 000 001 007
(a limited liability company incorporated under the law of New South Wales,
Australia)
in its capacity as trustee of the Series 2000-1G Medallion Trust (the "Series
Trust")
(the "Issuer")
CLASS A-1 NOTE
This Class A-1 Note is issued by the Issuer in an initial aggregate principal
amount of US$ [[ ]] (the "Class A-1 Notes") and is:
(a) constituted by a Class A-1 Note Trust Deed (the "Class A-1 Note Trust
Deed") dated [[ ]] made between the Issuer, Securitisation Advisory
Services Pty Limited, ACN 064 133 946, (the "Manager") and The Bank of
New York, New York Branch (the "Class A-1 Note Trustee"); and
(b) issued subject to, and with the benefit of, amongst other things:
(i) a Master Trust Deed (the "Master Trust Deed") dated 8 October 1997
made between the Manager and Perpetual Trustee Company Limited as
amended from time to time;
(ii) a Series Supplement (the "Series Supplement") dated [[ ]] made
between Commonwealth Bank of Australia, ACN 123 123 124, the
Manager and the Issuer;
(iii) a Security Trust Deed (the "Security Trust Deed") dated [[ ]] made
between
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the Issuer, the Manager, the Class A-1 Note Trustee and P.T.
Limited, ACN 004 454 666;
(iv) the Agency Agreement (the "Agency Agreement") dated [.] made
between the Issuer, the Class A-1 Note Trustee, the Manager, The
Bank of New York, New York Branch as Principal Paying Agent, Agent
Bank and Class A-1 Note Registrar and The Bank of New York, London
Branch as Paying Agent;
(iv) the Class A-1 Note Trust Deed; and
(v) the Class A-1 Note Conditions as set out in the Annexure to this
Class A-1 Note (the "Class A-1 Note Conditions").
Unless defined in this Class A-1 Note, words and phrases defined in either or
both of the Class A-1 Note Trust Deed and the Class A-1 Note Conditions have the
same meaning in this Class A-1 Note. Where there is any inconsistency in a
definition between the Class A-1 Note Trust Deed and the Class A-1 Note
Conditions, the Class A-1 Note Trust Deed prevails.
If this Class A-1 Note is a Class A-1 Book-Entry Note and the Issuer is obliged
to issue Class A-1 Definitive Notes under clause [ ]3.4(a) of the Class A-1 Note
Trust Deed, this Class A-1 Note will be exchangeable in whole upon its surrender
at the offices of the Class A-1 Note Registrar as specified in the Class A-1
Note Conditions or notified to Class A-1 Noteholders from time to time (or such
other place as the Class A-1 Note Trustee may agree) for Class A-1 Definitive
Notes and the Issuer shall execute and procure that the Class A-1 Note Trustee
authenticates and delivers in full exchange for this Class A-1 Note, Class A-1
Definitive Notes in aggregate principal amount equal to the then Invested Amount
of this Class A-1 Note subject to and in accordance with clause [ ]3.4(b) of the
Class A-1 Note Trust Deed. The Issuer is not obliged to issue Class A-1
Definitive Notes until 30 days after the occurrence of an event set out in
clause [ ]3.4(a) of the Class A-1 Note Trust Deed.
The Issuer, in its capacity as trustee of the Series Trust, subject to and in
accordance with this Class A-1 Note, the Class A-1 Note Conditions, the Agency
Agreement the Series Supplement and the Class A-1 Note Trust Deed, promises to
pay to [[ ]] as the registered holder of this Class A-1 Note, or to registered
assigns of this Class A-1 Note, the principal sum of US$ [[ ]] (or such part of
that amount as may become repayable under the Class A-1 Note Conditions, the
Series Supplement and the Class A-1 Note Trust Deed) on such date(s) as that
principal sum (or any part of it) becomes repayable in accordance with the Class
A-1 Note Conditions, the Series Supplement and the Class A-1 Note Trust Deed and
to pay interest in arrear on each Distribution Date on the Invested Amount of
this Class A-1 Note at rates determined in accordance with Condition 6 of the
Class A-1 Note Conditions. The Class A-1 Definitive Notes to be issued on that
exchange will be in registered form each in the denomination of US$100,000 or
integral multiples thereof. If the Issuer fails to meet its obligations to issue
Class A-1 Definitive Notes, this shall be without prejudice to the Issuer's
obligations with respect to the Class A-1 Notes under the Class A-1 Note Trust
Deed, the Master Trust Deed, the Series Supplement, the Agency Agreement and
this Class A-1 Note.
Payments of interest on this Class A-1 Note due and payable on each Distribution
Date, together with the instalment of principal, if any, shall be payable in
accordance with Condition [ ]8.1 of the Class A-1 Note Conditions and the Agency
Agreement. If this Class A-1 Note is a Class A-1 Book-Entry Note such payments
will be made to the nominee of the Depository (initially, such nominee to be
Cede & Co.) and each of the persons appearing from time to time in the records
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of DTC as the holder of a beneficial interest in a Class A-1 Note will be
entitled to receive any payment so made in respect of that Class A-1 Note only
in accordance with the respective rules and procedures of DTC. Such persons
will have no claim directly against the Issuer in respect of payments due on the
Class A-1 Notes which must be made by the holder of this Class A-1 Note, for so
long as this Class A-1 Note is outstanding.
On any payment of principal and/or interest on the Class A-1 Notes details of
that payment shall be endorsed by or on behalf of the Issuer in the Class A-1
Note Register and, in the case of payments of principal, the Invested Amount and
the Stated Amount of the Class A-1 Notes shall be reduced for all purposes by
the amount so paid and endorsed in the Class A-1 Note Register. Any such record
shall be prima facie evidence that the payment in question has been made.
This Class A-1 Note shall not become valid for any purpose unless and until the
Certificate of Authentication attached has been signed by an Authorised Officer
or other duly appointed representatives of the Class A-1 Note Trustee.
This Class A-1 Note is governed by, and shall be construed in accordance with,
the laws of New South Wales, Australia.
If this Class A-1 Note is a Class A-1 Book-Entry Note, this Class A-1 Note is a
global note.
IN WITNESS the Issuer has caused this Class A-1 Note to be signed manually by a
person duly authorised on its behalf
PERPETUAL TRUSTEE COMPANY LIMITED by:
.....................................................................
Authorised Officer/duly appointed representative
IMPORTANT NOTES:
Neither the Manager nor the Issuer is under any obligation at any time to
repurchase any Class A-1 Notes from Class A-1 Noteholders.
This Class A-1 Note is not a certificate of title and the Class A-1 Note
Register on which these Class A-1 Notes are registered is the only conclusive
evidence of the title of the abovementioned person to the Class A-1 Notes.
The Issuer issues this Class A-1 Note only in its role as trustee of the Series
Trust. Any obligation or liability of the Issuer arising under or in any way
connected with the Series Trust under the Master Trust Deed, the Series
Supplement, the Class A-1 Note Trust Deed this Class A-1 Note or any other
Transaction Document to which the Issuer is a party is limited to the extent to
which it can be satisfied out of the Assets of the Series Trust out of which the
Issuer is actually indemnified for the obligation or liability. This limitation
will not apply to any obligation or liability of the Issuer only to the extent
that it is not so satisfied because of any fraud, negligence or wilful default
on the part of the Issuer. The Issuer will have no liability for any act or
omission of the Manager or of any other person (other than a person whose acts
or omissions the Issuer is liable for in accordance with any Transaction
Document).
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Transfers of the Class A-1 Notes must be pursuant to the annexed form of
assignment and otherwise in accordance with clause [ ]5 of the Agency Agreement.
None of the Manager or the Commonwealth Bank of Australia, ACN 123 123 124 (the
"Bank") as the Seller and Servicer, or any other member of the Commonwealth Bank
group or the Issuer in its personal capacity or as trustee of any other trust
guarantees the payment or repayment of any principal, interest or other amounts
owing in respect of the Class A-1 Notes.
The Class A-1 Notes do not represent deposits or other liabilities of the
Manager, the Seller, the Servicer, the Bank or any other Related Body Corporate
of the Bank. The holding of the Class A-1 Notes is subject to investment risk,
including possible delays in payment and loss of income and principal invested.
None of the Manager, the Seller, the Servicer, the Bank or any other Related
Body Corporate of the Bank stand in any way behind the capital value and/or
performance of the Class A-1 Notes, or the Assets held by the Series Trust.
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CERTIFICATE OF AUTHENTICATION
This Class A-1 Note is authenticated by The Bank of New York, New York Branch as
Class A-1 Note Trustee and until so authenticated shall not be valid for any
purpose.
THE BANK OF NEW YORK, NEW YORK BRANCH by:
.....................................................................
Authorised Officer/duly appointed representative
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ASSIGNMENT
Social Security or taxpayer I.D., or other identifying number of assignee:
For value received, the undersigned hereby sells, assigns and transfers unto
______________________________________________________________________________
(name and address of assignee)
the within Class A-1 Note and all rights thereunder, and hereby irrevocably
constitutes and appoints _________________________, attorney, to transfer said
Class A-1 Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: ____________________ ___________________________________ *
Signature Guaranteed:
____________________________________
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Class A-1 Note Registrar, which requirements
include membership or participation in STAMP or such
other "signature guarantee program" as may be
determined by the Class A-1 Note Registrar in
addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934,
as amended.
____________________________
* Note: The signatures to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Class A-1 Note in every
particular without alteration, enlargement or any change whatsoever.
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ANNEXURE
Terms and Conditions of the Class A-1 Notes
The following, subject to amendments, are the terms and conditions of the
Class A-1 Notes, substantially as they will appear on the reverse of any
Class A-1 Notes. Class A-1 Notes will initially be issued in book entry
form. Class A-1 Notes in definitive form will only be issued in limited
circumstances. While the Class A-1 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-1 Notes in definitive form. [[ ] A
summary of the provisions applicable to the Class A-1 Notes while in book
entry form, including the circumstances in which Class A-1 Notes in
definitive form will be issued, is set out in "Description of the Class
A-1 Notes - Form of the Class A-1 Notes" of this prospectus.]
[[ ]Sections in italics are included by way of explanation only and do
not constitute part of the terms and conditions of the Class A-1 Notes.]
1. General
The issue of the US$[[ ]1,000,000,000] Class A-1 Mortgage Backed Floating
Rate Notes due [ ] July 2031 (the "Class A-1 Notes"), the A$[[
]300,000,000] Class A-2 Mortgage Backed Floating Rate Notes due [ ] July
2031 (the "Class A-2 Notes" and together with the Class A-1 Notes, the
"Class A Notes") and the A$[[ ]15,000,000] Class B Mortgage Backed
Floating Rate Notes due [ ] July 2031 (the "Class B Notes") (together the
"Notes") by Perpetual Trustee Company Limited, ACN 000 001 007,
("Perpetual") in its capacity as trustee of the Series 2000-1G Medallion
Trust (the "Series Trust") (Perpetual in such capacity, the "Issuer") was
authorised by a resolution of the board of directors of Perpetual passed
on [[ ]].
The Class A-1 Notes: (a) are constituted by a Class A-1 Note Trust Deed
(the "Class A-1 Note Trust Deed") dated [[ ]] made between the Issuer,
Securitisation Advisory Services Pty Limited, ACN 064 133 946, (the
"Manager") and The Bank of New York, New York Branch (the "Class A-1 Note
Trustee") as trustee for the several persons who are for the time being
registered holders of the Class A-1 Notes (each a "Class A-1 Noteholder"
and together the "Class A-1 Noteholders"); and (b) are issued subject to,
and with the direct or indirect benefit of, amongst other things (i) a
Master Trust Deed (the "Master Trust Deed") dated 8 October 1997 made
between the Manager and Perpetual, as amended from time to time; (ii) a
Series Supplement (the "Series Supplement") dated [[ ]] made between
Commonwealth Bank of Australia, ACN 123 123 124 (generally the "Bank" and
in its respective capacities under the Series Supplement the "Seller" and
the initial "Servicer"), the Manager and the Issuer; (iii) a Security
Trust Deed (the "Security Trust Deed") dated [[ ]] made between the
Issuer, the Manager, the Class A-1 Note Trustee and P.T. Limited, ACN 004
454 666 (the "Security Trustee"); (iv) the Class A-1 Note Trust Deed; (v)
these terms and conditions (the "Conditions"); and (vi) the Agency
Agreement (as defined below).
Certain provisions of these Conditions (including the definitions herein)
are summaries of the Transaction Documents (as defined in Condition [ ]
3) and are subject to the detailed provisions of the Transaction
Documents, a copy of which may be inspected as indicated in Condition [ ]
3.
Payments of interest and principal, and the calculation of certain
amounts and rates, under these Conditions in respect of the Class A-1
Notes will be made pursuant to an Agency Agreement (the "Agency
Agreement") dated [.] made between the Issuer, the Class A-1 Note
Trustee, the Manager, The Bank of New York, New York Branch, as the
initial principal paying agent (the "Principal Paying Agent") (together
with any other paying agent appointed from time to time under the Agency
Agreement, the "Paying Agents"), as the initial agent bank (the "Agent
Bank") and as the initial Class A-1 note registrar (the "Class A-1 Note
Registrar") and The Bank of New York, London Branch as an initial paying
agent.
The Issuer has entered into ISDA Master Agreements (each a "Currency Swap
Agreement") with Merrill Lynch Capital Services Inc. and Commonwealth
Bank of Australia (each a "Currency Swap Provider") and the Manager, each
together with a schedule and a credit support annex and a confirmation
relating thereto in respect of the Class A-1 Notes (each such
confirmation documenting a "Class A-1 Currency Swap").
The Class A-1 Notes will on issue be listed on the London Stock Exchange
Limited (the "London Stock Exchange").
"US$" means the lawful currency for the time being of the United States
of America and "A$" means the lawful currency for the time being of the
Commonwealth of Australia.
2. Definitions and Interpretation
2.1 Incorporated Definitions and other Provisions
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Where in these Conditions a word or expression is defined by reference to
its meaning in another Transaction Document or there is a reference to
another Transaction Document or to a provision of another Transaction
Document, any amendment to the meaning of that word or expression, to
that other Transaction Document or to that provision (as the case may be)
will be of no effect for the purposes of these Conditions unless and
until the amendment: (a) if it does not effect a Payment Modification (as
defined in Condition 10.3) is either: (i) if the Class A-1 Note Trustee
is of the opinion that the amendment will not be materially prejudicial
to the interests of the Class A-1 Noteholders, consented to by the Class
A-1 Note Trustee; or (ii) otherwise, approved by a Special Majority (as
defined in Condition 10.3) of the Class A-1 Noteholders under the Class
A-1 Note Trust Deed; or (b) if the amendment does effect a Payment
Modification (as defined in Condition 10.3), is consented to by each
Class A-1 Noteholder.
2.2 Interpretation
In these Conditions, unless the context otherwise requires: (a) a
reference to a party includes that party's executors, administrators,
successors, substitutes and assigns, including any person replacing that
party by way of novation; (b) a reference to any regulation or to any
section or provision thereof includes any statutory modification or re-
enactment or any statutory provision substituted therefor and all
ordinances, by-laws, regulations and other statutory instruments issued
thereunder; (c) subject to Condition [ ] 2.1, a reference to any document
or agreement is a reference to such document or agreement as amended,
varied, supplemented or replaced from time to time; (d) words importing
the singular include the plural (and vice versa); (e) words denoting a
given gender include all other genders; and (f) headings are for
convenience only and do not affect the interpretation of these
Conditions.
2.3 Calculations
Except as expressly provided otherwise in these Conditions, all
calculations in a given currency under these Conditions will be rounded
down to the nearest cent in that currency and all other calculations and
percentages determined hereunder will be rounded down to the nearest 4
decimal places.
3. Class A-1 Noteholders Bound
The Class A-1 Noteholders are bound by, and are deemed to have notice of,
all the provisions of the Transaction Documents. A copy of each
Transaction Document is available for inspection during normal business
hours on New York business days at the registered office for the time
being of the Class A-1 Note Trustee (which is, at the date of these
Conditions, 101 Barclay Street, 21W, New York, New York, 10286 ).
"Transaction Documents" means the Master Trust Deed in so far as it
relates to the Series Trust, the Series Supplement, the Currency Swap
Agreements, the Interest Rate Swap Agreement, the Liquidity Facility
Agreement, the Standby Redraw Facility Agreement, the GEMICO Mortgage
Insurance Policies, the Security Trust Deed, the Dealer Agreement, the
Underwriting Agreement, the Class A-1 Note Trust Deed, these Conditions,
the Agency Agreement and any other document which is agreed by the
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Manager and the Issuer to be a Transaction Document in relation to the
Series Trust.
"Dealer Agreement", "GEMICO Mortgage Insurance Policies", "Interest Rate
Swap Agreement", "Liquidity Facility Agreement", "Standby Redraw Facility
Agreement" and "Underwriting Agreement" have the same respective meanings
as in the Series Supplement. [[ ] Further details of these documents are
contained in "The Mortgage Insurance Policies", "Description of the Class
A-1 Notes - The Interest Rate Swaps", "Description of the Transaction
Documents - The Liquidity Facility, - The Standby Redraw Facility", "Plan
of Distribution" and "Listing and General Information - Transaction
Documents Available for Inspection" of this prospectus.]
4. Form, Denomination and Title of and to, and the issue of definitive,
Class A-1 Notes
4.1 Form and Denomination
The Class A-1 Notes will be issued in registered form, without interest
coupons, in minimum denominations of US$100,000 or integral multiples
thereof. The initial principal amount of each Class A-1 Note (the
"Initial Invested Amount" in relation to that Class A-1 Note) will be
stated on its face.
4.2 Title
Title to the Class A-1 Notes will only be shown on, and will only pass by
registration in, the register (the "Class A-1 Note Register") maintained
by the Class A-1 Note Registrar in accordance with the Agency Agreement.
Class A-1 Notes may be transferred, or may be exchanged for other Class
A-1 Notes in any authorised denominations and a like Invested Amount (as
defined in Condition [ ]6.4), upon the surrender of the Class A-1 Notes
to be transferred or exchanged duly endorsed with or accompanied by a
written instrument of transfer and exchange duly executed (with such
execution guaranteed by an eligible guarantor institution) and the
provision of such other documents as the Class A-1 Note Registrar may
reasonably require, to a specified office of the Class A-1 Note Registrar
(as set out at the end of these Conditions or otherwise notified to Class
A-1 Noteholders) subject to and in accordance with the Agency Agreement.
No service charge may be made for any transfer or exchange, but the Class
A-1 Note Registrar may require payment by the Class A-1 Noteholder of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Class A-1 Notes.
The Class A-1 Note Registrar need not register transfers or exchanges of
Class A-1 Notes for a period of 30 days preceding the due date for any
payment with respect to the Class A-1 Notes or for a period, not
exceeding 30 days, specified by the Class A-1 Note Trustee prior to any
meeting, which includes Class A-1 Noteholders, under the Master Trust
Deed or the Security Trust Deed. The Issuer, the Class A-1 Note Trustee,
the Manager, the Agent Bank and each Paying Agent may accept the
correctness of the Class A-1 Note Register and any information provided
to it by the Class A-1 Note Registrar and is not required to enquire into
its authenticity. None of the Issuer, the Class A-1 Note Trustee, the
Manager, the Agent Bank, any Paying Agent or the Class A-1 Note Registrar
is liable for any mistake in the Class A-1 Note Register or in any
purported copy except to the extent that the mistake is attributable to
its own fraud, negligence or wilful default.
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5. Status, Security and Relationship between the Class A-1 Notes, the Class
A-2 Notes, the Class B Notes and the Redraw Bonds
5.1 Status of the Securities
The Notes and the Redraw Bonds (as defined in Condition [ ] 5.6)
(together the "Securities") are direct, secured (as described in
Condition [ ] 5.2) limited recourse (as described in Condition [ ] 5.3)
obligations of the Issuer.
5.2 Security
The obligations of the Issuer under the Securities are (amongst the other
payment obligations of the Issuer comprising the Secured Moneys (as
defined below)) secured, pursuant to the Security Trust Deed, in favour
of the Security Trustee as trustee for the Secured Creditors (as defined
below), by a floating charge (the "Charge") over all of the assets and
property, real and personal (including choses in action and other
rights), tangible and intangible, present or future, of the Series Trust
(the "Charged Property"). The Charged Property includes an equitable
interest in certain mortgage loans, and related mortgages, acquired by
the Issuer from the Seller. The Charge is a first ranking security,
subject only to the Prior Interest in the Charged Property.
[[ ] Further details regarding the Charged Property are contained in
"Description of the Assets of the Trust" of this prospectus]
"Class A Noteholders" means the Class A-1 Noteholders and the Class A-2
Noteholders (as defined in the Series Supplement).
"Invested Amount" in relation to a Class A-1 Note is defined in Condition
[ ]6.4 and in relation to a Class A-2 Note, Class B Note or Redraw Bond
means (as defined in the Series Supplement) A$100,000 less the aggregate
of all amounts previously paid in relation to that Note or Redraw Bond on
account of principal pursuant to clause [ ]10.3(c) of the Series
Supplement.
"Prior Interest" means the lien over, and right of indemnification from,
the Charged Property held by the Issuer under, and calculated in
accordance with, the Master Trust Deed for the fees, costs, charges and
expenses incurred by or payable to the Issuer (in its capacity as trustee
of the Series Trust) in accordance with the Master Trust Deed and the
Series Supplement (other than the Secured Moneys) which are unpaid or
paid by the Issuer but not reimbursed to the Issuer from the assets and
property of the Series Trust.
"Secured Creditors" means the Class A-1 Note Trustee (in its personal
capacity and as trustee of the Class A-1 Trust established under the
Class A-1 Note Trust Deed), each Paying Agent, each Securityholder, each
Hedge Provider, the Liquidity Facility Provider (as defined in the Series
Supplement), the Standby Redraw Facility Provider (as defined in the
Series Supplement), the Servicer and the Seller.
"Secured Moneys" means, without double counting, the aggregate of all
moneys owing to the Security Trustee or to a Secured Creditor under any
of the Transaction
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Documents, whether such amounts are liquidated or not or are contingent
or presently accrued due, and includes all rights sounding in damages
only provided that:
(a) the amount owing by the Issuer in relation to the principal
component of a Security is to be calculated by reference to the
Invested Amount of that Security;
(b) the amount owing by the Issuer in relation to the principal
component of the Standby Redraw Facility Agreement is to be
calculated by reference to the aggregate of the Standby Redraw
Facility Principal and the Unreimbursed Principal Charge-offs in
relation to the Standby Redraw Facility Principal; and
(c) the Secured Moneys do not include any fees or value added tax
payable to the Class A-1 Note Trustee or an Agent referred to in
clause [ ]12.7 of the Class A-1 Note Trust Deed or Clause [ ]12.6
of the Agency Agreement.
"Securityholders" means the Class A Noteholders, the Class B Noteholders
(as defined in the Series Supplement) and the Redraw Bondholders (as
defined in the Series Supplement).
5.3 Limited Recourse
The liability of the Issuer to make interest and principal payments on
the Class A-1 Securities is limited, except in certain circumstances
described in Condition [ ]12, to the assets and property of the Series
Trust available for this purpose in accordance with, and subject to the
order of priority of payments in, the Series Supplement (prior to
enforcement of the Charge) or the Security Trust Deed (following
enforcement of the Charge).
The net proceeds of realisation of the assets and property of the Series
Trust (including following enforcement of the Charge) may be insufficient
to pay all amounts due to the Class A-1 Noteholders and any other amounts
ranking in priority to or equally with amounts due to the Class A-1
Noteholders. Except in the limited circumstances described in Condition
[ ]12, the assets of Perpetual held in its personal capacity will not be
available for payment of any shortfall arising and all claims in respect
of such shortfall will be extinguished. The assets of Perpetual held in
its capacity as trustee of any other trust (including any other series
trust established pursuant to the Master Trust Deed) will not in any
circumstances be available to pay any amounts due to Class A-1
Noteholders.
None of the Bank, the Manager, the Class A-1 Note Trustee, the Security
Trustee, any Agent, each Currency Swap Provider or the Managers (as
defined in the Underwriting Agreement), amongst others, has any
obligation to any Class A-1 Noteholder for payment of any amount owed by
the Issuer in respect of the Class A-1 Notes.
5.4 No Preference within the Class A-1 Notes
The Class A-1 Notes rank equally and rateably and without any preference
or priority
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among themselves.
5.5 Ranking of Class A-1 and Class A-2 Notes
Prior to the enforcement of the Charge, under the Series Supplement the
Class A-1 Notes and Class A-2 Notes will rank equally and rateably in
relation to the payment of interest and the repayment of principal (the
amounts payable by the Issuer under the Series Supplement in relation to
the Class A-1 Notes will be calculated by reference to the applicable
Australian dollar amounts payable by the Issuer to the Currency Swap
Providers, which rank equally and rateably with amounts payable in
respect of the Class A-2 Notes, which in turn will be applied to meet the
payment of interest and the repayment of principal (as applicable) on the
Class A-1 Notes as explained, respectively, in Conditions [ ] 6.9 and
7.2). Following enforcement of the Charge, under the Security Trust Deed
the payment of amounts owing in relation to the Class A-1 Notes and the
Class A-2 Notes will rank rateably (the amounts owing in respect of the
Class A-1 Notes will, for the purposes of determining distributions to,
and allocations between, the Class A-1 Noteholders, the Class A-2
Noteholders and the other Secured Creditors, be converted into A$ in
accordance with the Security Trust Deed).
5.6 Issue of Redraw Bonds
Under the Series Supplement, the Issuer is entitled to issue debt
securities ("Redraw Bonds") from time to time at the direction of the
Manager. If prior to a Determination Date, the Manager considers that
the aggregate of:
(a) the Principal Collections, the Principal Charge-Off Reimbursements
(as defined in Condition [ ] 7.10) and the Other Principal Amounts
for the Collection Period ending on the Determination Date; and
(b) the Standby Redraw Facility Advance (as hereinafter defined) (if
any) to be made on the next Distribution Date (as defined in
Condition [ ] 6.2),
as estimated by the Manager are likely to be insufficient to meet in full
the aggregate of:
(c) the Seller Advances; and
(d) the Standby Redraw Facility Principal,
that the Manager estimates will be outstanding on the Determination Date,
the Manager may direct the Issuer to issue Redraw Bonds for a principal
amount specified in the direction. The maximum Stated Amount (as
hereinafter defined) of the Redraw Bonds outstanding on any Distribution
Date (after taking into account any expected repayment of principal on
the Redraw Bonds on that Distribution Date) must not exceed the Redraw
Bond Principal Limit.
"Collection Period", "Determination Date", "Other Principal Amount",
"Principal Collections", "Redraw Bond Principal Limit", "Seller Advance",
"Standby Redraw
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Facility Advance", "Standby Redraw Facility Principal" and "Stated
Amount" in relation to the Redraw Bonds have the same respective meanings
as in the Series Supplement. [[ ] For a description of these, see
"Description of the Class A-1 Notes - Key Dates and Periods, -
Determination of the Available Principal Amount and - Redraws" and
"Glossary" of this prospectus.]
Prior to the enforcement of the Charge, under the Series Supplement: (i)
the payment of interest on the Redraw Bonds will rank equally and
rateably with the payment of interest on the Class A Notes (or, in the
case of the Class A-1 Notes, equally and rateably with the payment of the
relevant A$ amount by the Issuer to the Currency Swap Providers which in
turn will be applied to meet the payment of interest on the Class A-1
Notes as explained in Condition [ ] 6.9); and (ii) the repayment of
principal on the Redraw Bonds will rank ahead of the repayment of
principal on the Class A Notes (or, in the case of the Class A-1 Notes,
ahead of the payment of the relevant A$ amount by the Issuer to the
Currency Swap Providers which in turn will be applied to meet the
repayment of principal on the Class A-1 Notes as explained in Condition
[] 7.2).
Following the enforcement of the Charge, under the Security Trust Deed
the payment of amounts owing in relation to the Redraw Bonds will rank
rateably with the payment of amounts owing in relation to the Class A
Notes (the amounts owing in respect of the Class A-1 Notes will, for the
purposes of determining distributions to, and allocations between, the
Class A-1 Noteholders and Redraw Bondholders and other Secured Creditors,
be converted into A$ in accordance with the Security Trust Deed).
5.7 Subordination of Class B Notes
Prior to the enforcement of the Charge, the payment of interest in
relation to the Class B Notes is subordinated to, amongst other things,
the payment of interest on the Class A Notes and the Redraw Bonds in
accordance with the Series Supplement; and the repayment of the principal
on the Class B Notes is, to a certain extent, subordinated to, amongst
other things, the repayment of the principal on the Class A Notes and the
Redraw Bonds in accordance with the calculations to be made of the
amounts to be paid by the Issuer under the Series Supplement (in the case
of the Class A-1 Notes, the subordination of the Class B Notes is in
respect of the relevant A$ amounts payable by the Issuer to the Currency
Swap Providers which in turn will be applied to meet the payment of
interest and the repayment of principal on the Class A-1 Notes as
explained, respectively, in Conditions [ ] 6.9 and 7.2.). [[ ] For a
description of the order of application of available proceeds under the
Series Trust, the consequent subordination of the payment of interest and
repayment of principal on the Class B Notes, see "Description of the
Class A-1 Notes -Distribution of the Available Income Amount, -
Distribution of the Available Principal Amount and - Allocation of
Principal to Class A Notes and Class B Notes" of this prospectus]
Following the enforcement of the Charge, in the distribution of the net
proceeds (if any) arising from the enforcement of the Charge, any payment
in relation to the Class B Notes will be subordinated to, amongst other
things, payment of all amounts due in relation to the Class A Notes and
the Redraw Bonds (the amounts owing in respect of the Class A-1 Notes
will, for the purposes of determining distributions to, and
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allocations between, the Class A-1 Noteholders, and Class B Noteholders
and other Secured Creditors, be converted into A$ in accordance with the
Security Trust Deed). [[ ] For a description of the order of application
of the proceeds of the enforcement of the Charge under the Security Trust
Deed, see "Description of the Transaction Documents - The Security Trust
Deed - Priorities under the Security Trust Deed" of this prospectus.]
The Security Trust Deed contains provisions requiring the Security
Trustee, subject to other provisions of the Security Trust Deed, to give
priority to the interests of the Class A Noteholders and the Redraw
Bondholders if there is a conflict between the interests of the Class A
Noteholders and the Redraw Bondholders (on the one hand) and any other
Secured Creditor, including the Class B Noteholders (on the other hand).
In determining the interests of the Class A-1 Noteholders, the Security
Trustee may rely on a determination of the Class A-1 Note Trustee.
5.8 The Securities Rank Equally Except as Provided in the Transaction
Documents
The Securities enjoy the same rights, entitlements, benefits and
restrictions except as expressly provided in the Transaction Documents.
6. Interest
6.1 Period of Accrual
Each Class A-1 Note accrues interest from (and including) [[ ]] (the
"Closing Date") and ceases to accrue interest on (but excluding) the
earliest of:
(a) the date on which the Stated Amount (as hereinafter defined) of
the Class A-1 Note is reduced to zero and all accrued but
previously unpaid interest, is paid in full;
(b) the date on which the Class A-1 Note is redeemed or repaid in full
in accordance with Condition [ ] 7 (other than Condition [ ] 7.6)
unless, upon presentation, payment is improperly withheld or
refused in which case the Class A-1 Note will continue to bear
interest in accordance with this Condition [ ] 6 (both before and
after judgment) until (but excluding) whichever is the earlier of:
(i) the day on which all sums due in respect of the Class A-1
Note up to that day are received by or on behalf of the
Class A-1 Noteholder; and
(ii) the seventh day after notice is given to the Class A-1
Noteholder (either in accordance with Condition [ ] 11.1 or
individually) that, where required by Condition 8.2, upon
presentation thereof being duly made, such payment will be
made, provided that upon such presentation payment is in
fact made; and
(c) the date on which the Class A-1 Note is deemed to be redeemed in
accordance with Condition [ ] 7.6.
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"Stated Amount" in relation to:
(a) a Class A-1 Note at any given time means the Initial Invested
Amount of that Class A-1 Note less the sum of:
(i) the aggregate of all amounts previously paid in relation to
that Class A-1 Note on account of principal pursuant to
Condition [ ] 7.2(c); and
(ii) the aggregate of all then Unreimbursed Principal Charge-
offs (as defined in Condition [ ] 7.10) in relation to that
Class A-1 Note; and
(b) any other Security at any given time means (as defined in the
Series Supplement) A$100,000 less the sum of:
(i) the aggregate of all amounts previously paid in relation to
that A$ Security on account of principal pursuant to clause
[ ]10.3 of the Series Supplement; and
(ii) the aggregate of all then Unreimbursed Principal
Charge-Offs (as defined in the Series Supplement) in
relation to that A$Security.
[[ ] For a description of how the Stated Amount is determined for the
Securities see "Description of the Class A-1 Notes - Distribution of the
Available Principal Amounts - Allocations of Principal to Class A Notes
and Class B Notes and - Principal Charge-Off" and "Glossary" of this
prospectus.]
6.2 Accrual Periods
The period that a Class A-1 Note accrues interest in accordance with
Condition [ ] 6.1 is divided into periods (each an "Accrual Period"). The
first Accrual Period for a Class A-1 Note commences on (and includes) the
Closing Date and ends on (but does not include) the first Distribution
Date thereafter. Each succeeding Accrual Period for a Class A-1 Note
commences on (and includes) a Distribution Date and ends on (but does not
include) the next Distribution Date. The final Accrual Period for a Class
A-1 Note ends on (but does not include) the date on which interest ceases
to accrue on the Class A-1 Note pursuant to Condition [ ] 6.1.
"Distribution Date" means the 12th day of [[ ] July, October, January and
April] in each year (or, if such a day is not a Business Day, the next
Business Day). The first Distribution Date is 12 [[ ]July] 2000 (or, if
that day is not a Business Day, the next Business Day).
"Business Day" means any day on which banks are open for business in
Sydney, New York City and London other than a Saturday, a Sunday or a
public holiday in Sydney, New York City or London.
6.3 Interest Rate for the Class A-1 Notes
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The rate of interest ("Interest Rate") payable from time to time in
respect of a Class A-1 Note and an Accrual Period is the aggregate of
USD-LIBOR-BBA (as hereinafter defined) for that Accrual Period and the
Issue Margin (as hereinafter defined) in relation to the Class A-1 Note.
"USD-LIBOR-BBA" for an Accrual Period will be calculated by the Agent
Bank in accordance with paragraph (a) (or, if applicable, paragraph (b))
below (subject, in the case of the first Accrual Period, to paragraph (c)
below):
(a) on the second Banking Day before the beginning of the Accrual
Period (a "Rate Set Date") the Agent Bank will determine the rate
"USD-LIBOR-BBA" as the applicable Floating Rate Option under the
Definitions of the International Swaps and Derivatives
Association, Inc. ("ISDA") (the "ISDA Definitions") being the rate
applicable to any Accrual Period for three-month deposits in US
dollars in the London inter-bank market which appears on the Rate
Page (as hereinafter defined) as of 11.00am, London time, on the
Rate Set Date;
(b) if such rate does not appear on the Rate Page at that time, the
USD-LIBOR-BBA for that Accrual Period will be determined as if the
Issuer and the Agent Bank had specified "USD-LIBOR-Reference
Banks" as the applicable Floating Rate Option under the ISDA
Definitions. For this purpose "USD-LIBOR-Reference Banks" means
that the rate for an Accrual 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 determined by the Agent Bank) at approximately
11.00am, London time, on the Rate Set Date to prime banks in the
London interbank market for a period of three months commencing on
the first day of the Accrual Period and in a Representative Amount
(as defined in the ISDA Definitions). The Agent Bank will request
the principal London office of each of the Reference Banks to
provide a quotation of its rate. If at least two such quotations
are provided, the USD-LIBOR-BBA for that Accrual Period will be
the arithmetic mean of the quotations. If fewer than two
quotations are provided as requested, the USD-LIBOR-BBA for that
Accrual Period will be the arithmetic mean of the rates quoted by
not less than two major banks in New York City, selected by the
Agent Bank and the Currency Swap Providers, at approximately
11.00am, New York City time, on that Rate Set Date for loans in US
dollars to leading European banks for a period of three months
commencing on the first day of the Accrual Period and in a
Representative Amount. If no such rates are available in New York
City, then the USD-LIBOR-BBA for such Accrual Period will be the
most recently determined rate in accordance with paragraph (a);
and
(c) the USD-LIBOR-BBA for the first Accrual Period will be the rate
determined by linear interpolation calculated in accordance with
paragraph (a) or, if applicable, paragraph (b) above with
reference to the duration of the first Accrual Period.
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"Banking Day" means any day on which banks are open for business in
London and New York City, other than a Saturday, a Sunday or a public
holiday in London or New York City.
"Rate Page" means Telerate Page 3750 or, if Telerate Page 3750 ceases to
quote the relevant rate, such other page, section or part of Telerate as
quotes the relevant rate and is selected by the Agent Bank or, if there
is no such page, section or part of such other page, section or part of a
different screen information service as quotes the relevant rate selected
by the Agent Bank and approved by the Class A-1 Note Trustee.
"Issue Margin" in relation to a Class A-1 Note means, subject to the
following:
(a) for the period from, and including, the Closing Date to, but
excluding, the Call Date (as defined in Condition [ ] 7.3), [[ ]]%
per annum; and
(b) for the period from, and including, the Call Date to, but
excluding, the date on which that Class A-1 Note ceases to accrue
interest in accordance with Condition [ ] 6.1, [[ ]]% per annum.
If on or after the Call Date the Issuer, at the direction of the Manager,
proposes to exercise its option to redeem the Securities at their Stated
Amount in accordance with Condition 7.3 on a Distribution Date but is
unable to do so because, following a meeting of Securityholders convened
under the provisions of the Security Trust Deed by the Manager for this
purpose, the Securityholders have not approved by an Extraordinary
Resolution (as defined in Condition [ ] 9.1) the redemption of the
Securities at their Stated Amount, then the Issue Margin in relation to
each Class A-1 Note from, and including, that Distribution Date to, but
excluding, the date on which that Class A-1 Note ceases to accrue
interest in accordance with Condition 6.1, is [[ ]]% per annum.
There is no maximum or minimum Interest Rate for the Class A-1 Notes.
6.4 Calculation of Interest on the Class A-1 Notes
Interest on each Class A-1 Note for an Accrual Period (the "Class A-1
Interest Amount") is calculated by applying the Interest Rate for that
Class A-1 Note for that Accrual Period to the Invested Amount of that
Class A-1 Note on the first day of the Accrual Period (after taking into
account any reductions in the Invested Amount of that Class A-1 Note on
that day), by then multiplying such product by the actual number of days
in the Accrual Period divided by 360 and rounding the resultant figure
down to the nearest cent.
"Invested Amount" in relation to a Class A-1 Note means the Initial
Invested Amount of that Class A-1 Note less the aggregate of all amounts
previously paid in relation to that Class A-1 Note on account of
principal pursuant to Condition [ ] 7.2(c).
6.5 Determination of Interest Rate and Class A-1 Interest Amount
The Agent Bank will, as soon as practicable after 11.00am (London time
or, if
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applicable, New York City time) on each Rate Set Date, determine the
Interest Rate in relation to the Class A-1 Notes, and calculate the Class
A-1 Interest Amount, for the immediately succeeding Accrual Period in
accordance with, respectively, Conditions 6.3 and 6.4. The determination
of the Interest Rate, and the calculation of the Class A-1 Interest
Amount, by the Agent Bank in accordance with, respectively, Conditions
6.3 and 6.4 will (in the absence of manifest error, wilful default or bad
faith) be final and binding upon all parties.
6.6 Notification and Publication of Interest Rate and Class A-1 Interest
Amount
The Agent Bank will cause the Interest Rate and the Class A-1 Interest
Amount for each Accrual Period, and the date of the next Distribution
Date, to be notified to the Issuer, the Manager, the Class A-1 Note
Trustee, the Currency Swap Providers, the Paying Agents and the London
Stock Exchange (for so long as the Class A-1 Notes are listed on the
Official List of the London Stock Exchange) on or as soon as practical
after the Agent Bank has determined the Interest Rate and calculated the
Class A-1 Interest Amount or on such earlier date as the London Stock
Exchange may require (for so long as the Class A-1 Notes are listed on
the Official List of the London Stock Exchange) and will cause the same
to be published in accordance with Condition 11.2 as soon as practical
after that notification. The Class A-1 Interest Amount and the
Distribution Date may subsequently be amended (or appropriate alternative
arrangements made by way of adjustment) without notice in the event of an
extension or shortening of the Accrual Period. If following the
occurrence of an Event of Default (as defined in Condition 9.1), the
Security Trustee declares in accordance with the Security Trust Deed that
the Class A-1 Notes are immediately due and payable, the Class A-1
Interest Amount and the Interest Rate in respect of the Class A-1 Notes
will nevertheless continue to be calculated by the Agent Bank in
accordance with this Condition, but no publication of the Class A-1
Interest Amount or the Interest Rate so calculated or the Distribution
Dates needs to be made unless, in the case of the Class A-1 Interest
Amount or the Interest Rate, the Class A-1 Note Trustee otherwise
requires.
[[ ] For a description of the expression "Event of Default" see
"Description of the Transaction Documents - The Security Trust Deed" and
"Glossary" of this prospectus.]
6.7 Determination or Calculation by the Class A-1 Note Trustee
If the Agent Bank at any time for any reason does not determine the
Interest Rate in respect of the Class A-1 Notes, or calculate the Class
A-1 Interest Amount, in accordance with this Condition [ ] 6, the Class
A-1 Note Trustee will do so and each such determination or calculation by
the Class A-1 Note Trustee will be as if made by the Agent Bank. In doing
so, the Class A-1 Note Trustee will apply the foregoing provisions of
this Condition [ ] 6, with any necessary consequential amendments, to the
extent that it can and in all other respects it will do so in such a
manner as it considers to be fair and reasonable in all the
circumstances.
6.8 Agent Bank
The Issuer will procure that, for so long as any of the Class A-1 Notes
remain outstanding, there will at all times be an Agent Bank. The
Issuer, at the direction of
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the Manager, may with the prior written approval of the Class A-1 Note
Trustee, terminate the appointment of the Agent Bank immediately on the
occurrence of certain events specified in the Agency Agreement in
relation thereto or, otherwise, by giving not less than 60 days' notice
in writing to, amongst others, the Agent Bank. Notice of that termination
will be given by the Issuer to the Class A-1 Noteholders in accordance
with Condition [ ] 11.1. If any person is unable or unwilling to continue
to act as the Agent Bank, or if the appointment of the Agent Bank is
terminated, the Issuer, at the direction of the Manager, will appoint a
successor Agent Bank to act as such in its place, provided that neither
the resignation nor removal of the Agent Bank will take effect until a
successor approved by the Class A-1 Note Trustee has been appointed and
notice of the appointment of the successor has been given by the Issuer
to the Class A-1 Noteholders in accordance with Condition [ ] 11.1. The
initial Agent Bank and its specified office are set out at the end of
these Conditions.
6.9 Payment of the Class A-1 Interest Amount
The Class A-1 Interest Amount for each Accrual Period in relation to a
Class A-1 Note is payable in arrear in US$ on the Distribution Date which
is the last day of the Accrual Period. On each Distribution Date prior
to the enforcement of the Charge, the Issuer must:
(a) to the extent that there are funds available for this purpose in
accordance with the Series Supplement pay, in accordance with the
directions of the Manager, the A$ Class A-1 Interest Amount and
any A$ Unpaid Class A-1 Interest Amount in relation to that
Distribution Date rateably to the Currency Swap Providers in
accordance with the Class A-1 Currency Swaps;
(b) direct each Currency Swap Provider (which direction may be
contained in the relevant Class A-1 Currency Swap) to pay the
Class A-1 Interest Payments on each Distribution Date to the
Principal Paying Agent in accordance with the Agency Agreement;
and
(c) direct the Principal Paying Agent (which direction may be
contained in the Agency Agreement) to pay the Class A-1 Interest
Payments received by it from the Currency Swap Providers on a
Distribution Date rateably amongst the Class A-1 Notes based on
their Stated Amounts towards the Class A-1 Interest Amount in
relation to each Class A-1 Note in relation to the Accrual Period
ending on that Distribution Date and any then Class A-1 Unpaid
Interest Amount (as defined in Condition [ ] 6.10) in relation to
each Class A-1 Note (to the extent included in the Class A-1
Interest Payment) in accordance with, and subject to, these
Conditions and the Agency Agreement.
"A$ Class A-1 Interest Amount" , "A$ Class A-1 Unpaid Interest Amount"
and "Class A-1 Interest Payment" have the same respective meanings as in
the Series Supplement. [[ ] The method for calculating these, the order
of application of available funds for payment of the $A Class A-1
Interest Amount and $A Class A-1 Unpaid Interest Amount on a Distribution
Date and other payments ranking in priority to or equally with payment of
those amounts on a Distribution Date under the Series
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Supplement are explained in "Description of the Class A-1 Notes
-Distribution of the Available Income Amount and - the Currency Swap -
Interest Payments" of this prospectus].
6.10 Interest on unpaid Interest Amounts
If interest is not paid in respect of a Class A-1 Note on the date when
due and payable, that unpaid interest will itself bear interest at the
Interest Rate in relation to the Class A-1 Notes applicable from time to
time until (but excluding the date of payment) the unpaid interest, and
interest on it, is paid in accordance with Condition [ ] 6.9 (the unpaid
interest and interest on that unpaid interest, in relation to a Class A-1
Note, is a "Class A-1 Unpaid Interest Amount").
7. Redemption of the Class A-1 Notes
7.1 Final redemption of the Class A-1 Notes
Unless previously redeemed (or deemed to be redeemed) in full, the Issuer
will redeem the Class A-1 Notes at their then Stated Amount, together
with all then accrued but unpaid interest, on the Distribution Date
occurring in July 2030 (the "Scheduled Maturity Date").
7.2 Part Redemption of Class A-1 Notes
Subject to Conditions [ ] 7.3, 7.4 and 7.6, on each Distribution Date
prior to the enforcement of the Charge until the Stated Amount of the
Class A-1 Notes is reduced to zero the Issuer must :
(a) pay, in accordance with the directions of the Manager, the A$
Class A-1 Principal Amount (if any) in relation to that
Distribution Date to the Currency Swap Providers in accordance
with the Class A-1 Currency Swaps;
(b) direct each Currency Swap Providers (which instruction may be
contained in the relevant Class A-1 Currency Swap) to pay on each
Distribution Date to the Principal Paying Agent in accordance with
the Agency Agreement the US$ Equivalent of the amount of the A$
Class A-1 Principal Amount (such US$ Equivalent of the A$ Class A-
1 Principal Amount being the "Class A-1 Principal Amount")
received by the Currency Swap Provider from the Issuer on that
Distribution Date; and
(c) direct the Principal Paying Agent (which direction may be
contained in the Agency Agreement) to pay Class A-1 Principal
Amount received from the Currency Swap Providers equally amongst
the Class A-1 Notes towards the repayment of the Stated Amount on
the Class A-1 Notes in accordance with, and subject to, these
Conditions and the Agency Agreement. Such a payment of the Stated
Amount on a Class A-1 Note will constitute a redemption of the
Class A-1 Note in part to the extent of such repayment and, upon
such repayment, the obligation of the Issuer with respect to the
Class A-1 Note will be discharged to the extent of such repayment.
"A$ Class A-1 Principal Amount" and "US$ Equivalent" have the same
respective meanings as in the Series Supplement. [[ ] The method for
calculating these and the other payments ranking in priority to or
equally with the payment of the A$ Class A-1 Principal Amount on a
Distribution Date under the Series Supplement are described in
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"Description of Class A-1 Notes - Distribution of the Available Principal
Amount, - Allocation of Principal to Class A Notes and Class B Notes and
- The Currency Swap - Principal Payments of this prospectus.]
7.3 Call Option
The Issuer will, subject to the other provisions of this Condition 7 and
prior to the enforcement of the Charge, when directed by the Manager (at
the Manager's option), redeem all, but not some only, of the Securities
at their then Invested Amount, subject to the following, together with
all accrued but unpaid interest in respect of the Securities to (but
excluding) the date of redemption, on any Distribution Date falling on or
after the earlier of:
(a) the date on which the aggregate Mortgage Loan Principal (as
defined in the Series Supplement) expressed as a percentage of the
aggregate Mortgage Loan Principal at the beginning of business
(Sydney time) on [[ ]] falls below 10%; and
(b) the Distribution Date falling in [[ ]] (the "Call Date").
Notwithstanding the foregoing, the Issuer may redeem the Securities at
their Stated Amount, instead of at their Invested Amount, together with
accrued but unpaid interest in respect of the Securities to (but
excluding) the date of redemption, if so approved by an Extraordinary
Resolution (as defined in Condition [ ] 9.1) of the Securityholders
together.
The Manager will not direct the Issuer to, and the Issuer will not, so
redeem the Securities on such a Distribution Date unless the Issuer is in
a position on the Distribution Date to repay in respect of the Securities
their then Invested Amount or Stated Amount, as required, together with
all accrued but unpaid interest to (but excluding) the date of redemption
and to discharge all its liabilities in respect of amounts which are
required under the Security Trust Deed to be paid in priority to or
equally with the Securities of all classes if the Charge were enforced.
The Issuer will give not more than 60 nor less than 45 days' notice
(which will be irrevocable) of the Distribution Date on which a proposed
redemption under this Condition 7.3 will occur to the Seller, the Class
A-1 Note Trustee, the Principal Paying Agent, the Agent Bank and to the
Class A-1 Noteholders in accordance with Condition 11.1.
7.4 Redemption for Taxation or Other Reasons
If the Manager satisfies the Issuer and the Class A-1 Note Trustee
immediately prior to giving the notice referred to below that by virtue
of a change in law of the Commonwealth of Australia or any of its
political subdivisions or any of its authorities or any other
jurisdiction to which the Issuer becomes subject (or the application or
official interpretation thereof) (a "Relevant Jurisdiction") from that in
effect on the Closing Date, either:
(a) on the next Distribution Date the Issuer will be required to
deduct or withhold from any payment of principal or interest in
respect of the Class A-1 Notes
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or any other class of the Securities 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 a Relevant Jurisdiction; or
(b) the total amount payable in respect of interest in relation to any
of the Mortgage Loans (as defined in the Series Supplement) for a
Collection Period ceases to be receivable (whether or not actually
received) by the Issuer during such Collection Period by reason of
any present or future taxes, duties, assessments or governmental
charges of whatever nature imposed, levied, collected, withheld or
assessed by a Relevant Jurisdiction,
and, in each case, such obligation cannot be avoided by the Issuer taking
reasonable measures available to it, the Issuer must, when so directed by
the Manager (at the Manager's option), redeem all, but not some only, of
the Securities on any subsequent Distribution Date at their then Invested
Amount, subject to the following, together with accrued but unpaid
interest in respect of the Securities to (but excluding) the date of
redemption. Notwithstanding the foregoing, the Issuer may redeem the
Securities at their Stated Amount, instead of at their Invested Amount,
together with accrued but unpaid interest in respect of the Securities to
(but excluding) the date of redemption, if so approved by an
Extraordinary Resolution (as defined in Condition [ ] 9.1) of the
Securityholders together.
The Manager will not direct the Issuer to, and the Issuer will not, so
redeem the Securities unless the Issuer is in a position on such
Distribution Date to repay in respect of the Securities their then
Invested Amount or Stated Amount, as required, together with all accrued
but unpaid interest to (but excluding) the date of redemption and to
discharge all its liabilities in respect of amounts which are required
under the Security Trust Deed to be paid in priority to or equally with
the Securities of all classes if the Charge were enforced.
The Issuer will give not more than 60 nor less than 45 days' notice
(which will be irrevocable) of the Distribution Date on which a proposed
redemption under this Condition [ ] 7.4 will occur to the Class A-1 Note
Trustee, the Seller, the Principal Paying Agent, the Class A-1 Note
Registrar, the Agent Bank and the Class A-1 Noteholders in accordance
with Condition [ ] 11.1.
If an event referred to in paragraph (a) of this Condition 7.4 occurs in
respect of only the Class A-1 Notes (and not any other Securities) and as
a result thereof the Issuer gives notice in accordance with this
Condition 7.4 that it proposes to redeem all of the Securities on the
Distribution Date referred to in that notice, the Class A-1 Noteholders
may by a Special Majority (as defined in Condition 10.3) in accordance
with the Class A-1 Note Trust Deed elect that they do not require the
Issuer to redeem the Class A-1 Notes. If the Class A-1 Noteholders make
such an election they (or the Class A-1 Note Trustee on their behalf)
must notify the Issuer and the Manager not less than 21 days before the
proposed Distribution Date for the redemption of the Class A-1 Notes.
Upon receipt of such a notice, the Issuer must not so redeem the
Securities.
7.5 Certification
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For the purpose of any redemption made under Condition [ ] 7.3 or 7.4,
the Issuer and the Class A-1 Note Trustee may rely on any certificate of
an Authorised Officer (as defined in the Master Trust Deed) of the
Manager that the Issuer will be in a position to repay in respect of the
Securities their then Invested Amount or Stated Amount, as applicable,
together with all accrued but unpaid interest to (but excluding) the date
of redemption and to discharge all its liabilities in respect of amounts
required under the Security Trust Deed to be paid in priority to or
equally with the Securities if the Charge were enforced.
7.6 Redemption on Final Payment
Upon a final distribution being made in respect of the Class A-1 Notes
under clause [ ]26.12 of the Series Supplement or clause [ ]13.1 of the
Security Trust Deed, the Class A-1 Notes will thereupon be deemed to be
redeemed and discharged in full and any obligation to pay any accrued but
then unpaid Class A-1 Interest Amount or any Class A-1 Unpaid Interest
Amount or any then unpaid Invested Amount, Stated Amount or other amounts
in relation to the Class A-1 Notes will be extinguished in full.
[[ ] For a description of the circumstances in which a final distribution
will be made in respect of the Class A-1 Notes see "Description of the
Class A-1 Notes - Termination of the Trust" and "Description of the
Transaction Documents -The Security Trust Deed" of this prospectus.]
7.7 Cancellation
All Class A-1 Notes redeemed in full (or deemed to be redeemed in full)
pursuant to the above Conditions will be cancelled and may not be resold
or reissued.
7.8 No Payment in excess of Stated Amount
Subject to Conditions [ ]7.3 and 7.4, no amount of principal will be
repaid in respect of a Class A-1 Note in excess of the Stated Amount of
the Class A-1 Note.
7.9 Application of Principal Charge-offs
If on a Determination Date (as hereinafter defined) any Principal Charge-
off is allocated to the Class A-1 Notes in accordance with the Series
Supplement, it will reduce the Stated Amount of the Class A-1 Notes
(equally and rateably according to their Stated Amount) by an amount
equal to the US$ Equivalent of the amount so allocated until the Stated
Amount of the Class A-1 Notes is reduced to zero. A reduction in the
Stated Amount of a Class A-1 Note in accordance with the foregoing will
take effect on the next Distribution Date.
"Determination Date" and "Principal Charge-off" have the same respective
meanings as in the Series Supplement. [[ ] These expressions, the method
of calculating a Principal Charge-off and the application of a Principal
Charge-off amongst the Securities (and others) are explained in
"Description of the Class A-1 Notes - Key Dates and Periods and -
Principal Charge-offs" of this prospectus.]
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7.10 Principal Charge-offs Reimbursement
If on a Determination Date any Principal Charge-off Reimbursement is
allocated to the Class A-1 Notes in accordance with the Series
Supplement, it will reduce the Unreimbursed Principal Charge-offs of the
Class A-1 Notes (rateably according to their amount of Unreimbursed
Principal Charge-offs) by an amount equal to the US$ Equivalent of the
amount so allocated until the Unreimbursed Principal Charge-offs in
respect of the Class A-1 Notes are reduced to zero. A reduction in the
Unreimbursed Principal Charge-offs in respect of the Class A-1 Notes in
accordance with the foregoing, and the resultant increase in the Stated
Amount of the Class A-1 Notes, will take effect on the next Distribution
Date.
"Principal Charge-off Reimbursement" has the same meaning as in the
Series Supplement. [[ ] This expression, the method of calculating a
Principal Charge-off Reimbursement and the allocation of a Principal
Charge-off Reimbursement amongst the Securities (and others) is explained
in "Description of the Class A-1 Notes - Principal Charge-offs" of this
prospectus.]
"Unreimbursed Principal Charge-offs" in relation to a Class A-1 Note at
any time means the aggregate of the US$ Equivalent of the Principal
Charge-offs up to and including that time allocated to the Class A-1 Note
in accordance with Condition [ ] 7.9 less the aggregate of the US$
Equivalent of the Principal Charge-off Reimbursements prior to that time
allocated to the Class A-1 Note in accordance with this Condition [ ]
7.10.
7.11 Calculation of Class A-1 Principal Amounts, Stated Amounts and other
amounts
(a) No later than two Business Days prior to each Distribution Date,
the Manager will determine: (i) the amount of any Class A-1
Principal Amount payable in respect of each Class A-1 Note on the
Distribution Date; (ii) the Stated Amount and Invested Amount of
each Class A-1 Note as at the first day of the Accrual Period
commencing on the Distribution Date (after deducting any Class A-1
Principal Amounts due to be paid in respect of such Class A-1 Note
on that Distribution Date and after making any other adjustments
to the Stated Amount or the Invested Amount (as the case may be)
of the Class A-1 Note in accordance with these Conditions on or
with effect from that Distribution Date); (iii) the Class A-1 Note
Factor (as defined below) as at that Distribution Date; and (iv)
the amount of the Class A-1 Interest Payment to be made on the
Distribution Date applicable to each Class A-1 Note.
(b) The Manager will notify the Issuer, the Class A-1 Note Trustee,
the Principal Paying Agent, the Agent Bank, the Class A-1 Note
Registrar and the London Stock Exchange (for so long as the Class
A-1 Notes are listed on the Official List of the London Stock
Exchange) as soon as practical (and in any event by not later than
two Business Days prior to the Distribution Date or on such
earlier date as the London Stock Exchange may require (for so long
as the Class A-1 Notes are listed on the Official List of the
London Stock Exchange)) of each determination of an amount or
percentage referred to in Condition [ ] 7.11(a) and will cause
details of each of those determinations
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to be published in accordance with Condition [ ] 11.2 as soon as
practical after that notification. If no Class A-1 Principal
Amount is due to be paid on the Class A-1 Notes on any
Distribution Date the Manager will cause a notice to be given in
accordance with Condition [ ] 11.2 as soon as practicable (and in
any event by no later than the relevant Distribution Date).
(c) If the Manager does not at any time for any reason determine a
Class A-1 Principal Amount, the Invested Amount or the Stated
Amount applicable to the Class A-1 Notes in accordance with this
Condition, the Class A-1 Principal Amount, the Invested Amount and
the Stated Amount will be determined by the Agent Bank (or,
failing the Agent Bank, the Class A-1 Note Trustee) in accordance
with this Condition (but based on the information in its
possession) and each such determination will be deemed to have
been made by the Manager.
"Class A-1 Note Factor" at a given time means the percentage calculated
as follows:
A
CA1NF = ---
B
where:
CA1NF = the Class A-1 Note Factor;
A = the aggregate Invested Amount of the Class A-1 Notes on the last day
of the just ended Accrual Period; and
B = the aggregate Initial Invested Amount of the Class A-1 Notes.
8 Payments
8.1 Method of Payment
Any instalment on account of interest or principal payable on any Class
A-1 Note which is punctually paid or duly provided for by or on behalf of
or at the direction of the Issuer to the Principal Paying Agent on the
applicable Distribution Date shall be paid to the person in whose name
such Class A-1 Note is registered on the relevant Record Date (as defined
below), by wire transfer in immediately available funds to the account
designated by such person or, if such person so requests in writing, by
cheque mailed first-class, postage prepaid, to such person's address as
it appears on the Class A-1 Note Register on such Record Date.
"Record Date" in relation to a Distribution Date or any other date for
any payment to be made in respect of a Class A-1 Note means the day which
is the last day of the prior calendar month.
8.2 Surrender on Final Payment
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Prior to a final distribution being made in respect of the Class A-1
Notes under clause [ ]26.12 of the Series Supplement or clause [ ]13.1 of
the Security Trust Deed the Class A-1 Note Trustee must notify the
persons in whose names the Class A-1 Notes are registered on the relevant
Record Date of the date upon which the Class A-1 Note Trustee expects
that final distribution to be made and specify if that such final
distribution will be payable only upon surrender of the relevant Class
A-1 Note to a Paying Agent at its specified office. No such final
distribution will be made other than upon the surrender of the relevant
Class A-1 Notes and none of the Issuer, the Class A-1 Note Trustee, the
Security Trustee or any Paying Agent will be liable to pay any additional
amount to any Class A-1 Noteholder as a result of any delay in payment
due to a Class A-1 Note not having been surrendered in accordance with
this Condition 8.2.
[[ ] For a description of the circumstances in which a final distribution
will be made in respect of the Class A-1 Notes see "Description of the
Class A-1 Notes - Termination of the Trust" and "Description of the
Transaction Documents -The Security Trust Deed" of this prospectus.]
8.3 Paying Agents
The initial Paying Agents and their respective specified offices are set
out at the end of these Conditions.
The Issuer, at the direction of the Manager, may with the prior written
approval of the Class A-1 Note Trustee terminate the appointment of the
Principal Paying Agent and appoint additional or other Paying Agents,
provided that it will at all times maintain a Paying Agent having a
specified office in London and 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 [ ]
11.1.
8.4 Taxation
All payments in respect of the Class A-1 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 any applicable law to make such a withholding
or deduction. In that event the Issuer or that Paying Agent (as the case
may be) will, after making such withholding or deduction, account to the
relevant authorities for the amount so required to be withheld or
deducted. Neither the Issuer nor any Paying Agent nor the Class A-1 Note
Trustee will be obliged to make any additional payments in respect of the
relevant Class A-1 Notes in relation to that withholding or deduction.
Immediately after becoming aware that such a withholding or deduction is
or will be required, the Issuer will notify the Class A-1 Note Trustee,
the Principal Paying Agent and the Class A-1 Noteholders in accordance
with Condition [ ] 11.1, thereof.
8.5 Prescription
A Class A-1 Note will become void in its entirety unless surrendered for
payment within a period of 10 years from the Relevant Date in respect of
any payment thereon the effect of which would be to reduce the Stated
Amount of that Class A-1 Note to
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zero. After the date on which a Class A-1 Note becomes void in its
entirety, no claim can be made in respect of it.
"Relevant Date" in respect of a Class A-1 Note means the date on which a
payment in respect thereof first becomes due or (if the full amount of
the moneys payable in respect of the Class A-1 Notes due on or before
that date has not been duly received by the Principal Paying Agent or the
Class A-1 Note Trustee on or prior to such date) the date on which, the
full amount of such moneys having been so received and notice to that
effect is duly given to the Class A-1 Noteholders in accordance with
Condition [ ] 11.1.
8.6 Notify Late Payments
In the event of the unconditional payment to the Principal Paying Agent
or the Class A-1 Note Trustee of any sum due in respect of the Class A-1
Notes or any of them being made after the due date for payment thereof,
the Issuer will forthwith give or procure to be given notice to the Class
A-1 Noteholders in accordance with Condition [ ] 11.1 that such payment
has been made.
8.7 Rounding of Payments
All payments in respect of the Class A-1 Notes will be rounded down to
the nearest cent.
9 Enforcement following occurrence of Event of Default
9.1 Enforcement
The Security Trust Deed provides that at any time after the Security
Trustee becomes actually aware of the occurrence of an Event of Default,
the Security Trustee will (subject to Condition [ ] 10.4 and subject to
being appropriately indemnified), if so directed by an Extraordinary
Resolution of the Voting Secured Creditors, declare the Securities
immediately due and payable (in which case, subject to Condition 12, the
Stated Amount of, and all accrued but unpaid interest in relation to, the
Class A-1 Notes will become immediately due and payable) and enforce the
Charge.
Subject to being indemnified in accordance with the Security Trust Deed
and to the provisions of Condition [ ] 9.2, the Security Trustee will
take all action necessary to give effect to any direction in accordance
with the foregoing and will comply with all such directions.
"Event of Default", "Extraordinary Resolution" and "Voting Secured
Creditors" have the same respective meanings as in the Security Trust
Deed. [[ ] For a description of these expressions, see "Description of
the Transaction Documents - The Security Trust Deed" and "Glossary" of
this prospectus.]
9.2 Security Trustee May Enforce Charge Without Direction
After the Security Trustee becomes actually aware of the occurrence of an
Event of Default, provided that it has been indemnified to its
satisfaction in accordance with the
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Security Trust Deed, the Security Trustee must enforce the Security Trust
Deed without an Extraordinary Resolution of the Voting Secured Creditors
if in its opinion, the delay required to obtain the consent of the Voting
Secured Creditors would be prejudicial to the interests of the Secured
Creditors as a class.
9.3 Priority of Payments from Proceeds from the enforcement of the Charge
Following the enforcement of the Charge, all moneys received in
connection with the Security Trust Deed by the Security Trustee or by any
receiver appointed in relation to the Charged Property pursuant to the
provisions of the Security Trust Deed are to be applied, subject to the
Security Trust Deed, in accordance with the order of priority contained
in the Security Trust Deed [[ ] For a description of the order of
priority contained in the Security Trust Deed and the payment of amounts
that rank in priority to or equally with the Class A-1 Notes, see
"Description of the Transaction Documents - The Security Trust Deed -
Priorities under the Security Trust Deed" of this prospectus.]
9.4 Security Trustee and Class A-1 Note Trustee Not Liable for Loss on
enforcement
Except in the case of fraud, negligence or wilful default (in the case of
the Security Trustee) and, subject to the mandatory provisions of the
Trust Indenture Act, fraud, negligence (except as specifically provided
in the Trust Indenture Act), wilful default or breach of trust (in the
case of the Class A-1 Note Trustee), neither the Class A-1 Note Trustee
nor the Security Trustee is liable for any decline in the value, nor any
loss realised upon any sale or other disposition made under the Security
Trust Deed of any Charged 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-1 Notes or relating in any way to the Charged Property.
Without limitation, neither the Class A-1 Note Trustee nor the Security
Trustee will 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 based on advice received by it in accordance
with the applicable requirements of the Class A-1 Note Trust Deed (and
the Trust Indenture Act) or the Security Trust Deed, as the case may be.
"Trust Indenture Act" means the Trust Indenture Act 1939 of the United
States of America as in force at the date of the Class A-1 Note Trust
Deed.
9.5 Directions from Class A-1 Noteholders to Class A-1 Note Trustee following
Event of Default
If an Event of Default or Potential Event of Default has occurred and is
known to the Class A-1 Note Trustee, the Class A-1 Note Trustee must: (a)
notify each Class A-1 Noteholder of the Event of Default or Potential
Event of Default, as the case may be, within 10 days (or such shorter
period as may be required by the rules of the London Stock Exchange, if
the Class A-1 Notes are listed on the London Stock Exchange, or the rules
of any other stock exchange on which the Class A-1 Notes are listed)
after becoming aware of the Event of Default or Potential Event of
Default, provided that except in the case of a default in payment of
principal or interest on any Class A-1
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Note, the Class A-1 Note Trustee may withhold such notice if and so long
as the board of directors, the executive committee or a trust committee
of its directors and/or its authorised officers under the Class A-1 Note
Trust Deed in good faith determine that withholding the notice is in the
interest of Class A-1 Noteholders; (b) if a meeting of Voting Secured
Creditors is to be held under the Security Trust Deed, determine whether
it proposes to seek directions from Class A-1 Noteholders as to how to
vote at that meeting and, if so, whether it proposes to instruct the
Security Trustee to delay the holding of that meeting while it obtains
such directions from the Class A-1 Noteholders; and (c) vote at any
meeting of Voting Secured Creditors held under the Security Trust Deed in
accordance, where applicable, with the directions of the Class A-1
Noteholders (whether or not solicited and whether or not all Class A-1
Noteholders have provided such directions) and otherwise in its absolute
discretion. In acting in accordance with the directions of Class A-1
Noteholders the Class A-1 Note Trustee must exercise its votes for or
against any proposal to be put to a meeting of Voting Secured Creditors
under the Security Trust Deed in the same proportion as that of the
aggregate Invested Amounts of the Class A-1 Notes held by Class A-1
Noteholders who have directed the Class A-1 Note Trustee to vote for or
against such a proposal.
If any of the Class A-1 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-1 Notes, the Class A-1 Note Trustee must not vote at a meeting of
Voting Secured Creditors under the Security Trust Deed, or otherwise
direct the Security Trustee, to dispose of the Charged Property unless:
(a) a sufficient amount would be realised to discharge in full all
amounts owing to the Class A-1 Noteholders in respect of the Class A-1
Notes and any other amounts owing by the Issuer to any other person
ranking in priority to or with the Class A-1 Notes; (b) the Class A-1
Note Trustee is of the opinion, reached after considering at any time and
from time to time the advice of an investment bank or other financial
adviser selected by the Class A-1 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 (a); or (c) the
Class A-1 Note Trustee is so directed by a Special Majority (as defined
in Condition 10.3) of Class A-1 Noteholders.
Subject to the mandatory provisions of the Trust Indenture Act and
provisions in the Class A-1 Note Trust Deed relating to the deemed
receipt of notices, the Class A-1 Note Trustee will only be considered to
have knowledge or awareness of, or notice of, an Event of Default or
Potential Event of Default by virtue of the officers of the Class A-1
Note Trustee (or any related body corporate of the Class A-1 Note
Trustee) which have the day to day responsibility for the administration
or management of the Class A-1 Note Trustee's (or a related body
corporate of the Class A-1 Note Trustee's) obligations in relation to the
Series Trust, the trust created under the Class A-1 Note Trust Deed or
the Class A-1 Note Trust Deed, having actual knowledge, actual awareness
or actual notice of the occurrence of the events or circumstances
constituting an Event of Default or Potential Event of Default, as the
case may be, or grounds or reason to believe that such events or
circumstances have occurred.
"Potential Event of Default" means an event which, with the giving of
notice or the lapse of time or both, would constitute an Event of
Default.
9.6 Only Security Trustee May Enforce Charge
Only the Security Trustee may enforce the Charge and neither the Class A-
1 Note Trustee nor any Class A-1 Noteholder (nor any other Secured
Creditor) is entitled to proceed directly against the Issuer to enforce
the performance of any of the provisions
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of the Security Trust Deed, the Class A-1 Note Trust Deed, the Class A-1
Notes or any other applicable Transaction Document, except as provided
for in the Security Trust Deed, the Class A-1 Note Trust Deed, the Master
Trust Deed and the Series Supplement. The Security Trustee is not
required to act in relation to the enforcement of the Charge unless its
liability is limited in a manner reasonably satisfactory to it or, if
required by the Security Trustee (in its absolute discretion), it is
adequately indemnified from the Charged Property or the Security Trustee
receives from the Voting Secured Creditors an indemnity in a form
reasonably satisfactory to the Security Trustee (which may be by way of
an Extraordinary Resolution of the Voting Secured Creditors) and is put
in funds to the extent necessary.
9.7 Exercise of Class A-1 Noteholder Rights by Class A-1 Note Trustee
The rights, remedies and discretions of the Class A-1 Noteholders under
the Security Trust Deed including all rights to vote or to give an
instruction or consent can only be exercised by the Class A-1 Note
Trustee on behalf of the Class A-1 Noteholders in accordance with the
Security Trust Deed. The Security Trustee may rely on any instructions
or directions given to it by the Class A-1 Note Trustee as being given on
behalf of the Class A-1 Noteholders from time to time and need not
inquire whether any such instructions or directions are in accordance
with the Class A-1 Note Trust Deed, whether the Class A-1 Note Trustee or
the Class A-1 Noteholders from time to time have complied with any
requirements under the Class A-1 Note Trust Deed or as to the
reasonableness or otherwise of the Class A-1 Note Trustee.
10 Meetings of Voting Secured Creditors, directions of Class A-1
Noteholders, modifications, consents, waivers and indemnities
10.1 Meetings of Voting Secured Creditors
The Security Trust Deed contains provisions for convening meetings of the
Voting Secured Creditors to, among other things, enable the Voting
Secured Creditors 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 Secured Creditors, following the occurrence of an Event
of Default, to direct the Security Trustee to declare the Securities
immediately due and payable and/or to enforce the Charge.
10.2 Directions of Class A-1 Noteholders
Under the Class A-1 Note Trust Deed the Class A-1 Note Trustee may seek
directions from the Class A-1 Noteholders from time to time including
following the occurrence of an Event of Default. The Class A-1 Note
Trustee will not be responsible for acting in good faith upon a direction
given, or purporting to be given, by Class A-1 Noteholders holding Class
A-1 Notes with an Invested Amount of greater than 50% of the aggregate
Invested Amount of all the Class A-1 Notes.
If the Class A-1 Note Trustee is entitled under the Master Trust Deed or
the Security Trust Deed to vote at any meeting on behalf of Class A-1
Noteholders the Class A-1 Note Trustee must vote in accordance with the
directions of the Class A-1 Noteholders and otherwise in its absolute
discretion. In acting in accordance with the directions of Class A-1
Noteholders the Class A-1 Note Trustee must exercise its votes for or
against any proposal to be put to a meeting in the same proportion as
that of the aggregate Invested Amounts of the Class A-1 Notes held by
Class A-1 Noteholders who have directed the Class A-1 Note Trustee to
vote for or against that proposal.
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For the purposes of seeking any consent, direction or authorisation from
Class A-1 Noteholders the Class A-1 Note Trustee may by notice to the
Class A-1 Noteholders specify a date, not earlier than the date of the
notice, upon which the persons who are the Class A-1 Noteholders and the
Invested Amount of the Class A-1 Notes held by them will be determined
based upon the details recorded in the Class A-1 Note Register as at
5.30pm on that date.
10.3 Amendments to Class A-1 Note Trust Deed and the Class A-1 Notes
Pursuant, and subject, to the Class A-1 Note Trust Deed and subject to
any approval required by law, the Class A-1 Note Trustee, the Manager and
the Issuer may together agree, without the consent or sanction of any
Class A-1 Noteholder, by way of supplemental deed to alter, add to or
revoke (each a "modification") any provision of the Class A-1 Note Trust
Deed or the Class A-1 Notes (including these Conditions) so long as such
modification is not a Payment Modification (as defined below) and such
modification in the opinion of the Class A-1 Note Trustee:
(a) is necessary or expedient to comply with the provisions of any
statute or regulation or with the requirements of any governmental
agency;
(b) is made to correct a manifest error or ambiguity or is of a
formal, technical or administrative nature only;
(c) is appropriate or expedient as a consequence of an amendment to
any statute or regulation or altered requirements of any
governmental agency or any decision of any court (including,
without limitation, a modification which is in the opinion of the
Class A-1 Note Trustee 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 or any decision of any court, 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 Series Trust or
the trust constituted under the Class A-1 Note Trust Deed); or
(d) and the Issuer is otherwise desirable for any reason and:
(i) is not in the opinion of the Class A-1 Note Trustee likely,
upon coming into effect, to be materially prejudicial to
the interests of Class A-1 Noteholders; or
(ii) if it is in the opinion of the Class A-1 Note Trustee
likely, upon coming into effect, to be materially
prejudicial to the interests of Class A-1 Noteholders the
consent of a Special Majority (as hereinafter defined) of
Class A-1 Noteholders is obtained.
For the purpose of determining whether a Special Majority of Class A-1
Noteholders has consented to a modification, Class A-1 Notes which are
beneficially owned by the Issuer or the Manager or by any person directly
or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer or the Manager, will be disregarded. The
Manager must give the Rating Agencies 5 Business Days prior notice of any
such modification. The Class A-1 Note Trustee will be entitled to assume
that any proposed modification, other than a Payment Modification, will
not be materially prejudicial to the interest of Class A-1 Noteholders if
each of the Rating Agencies confirms in writing that if the modification
is effected this will not lead to a reduction, qualification or
withdrawal of the then rating given to the Class A-1 Notes by that Rating
Agency.
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Pursuant to the Class A-1 Note Trust Deed, the Class A-1 Note Trustee may
concur with the Issuer and the Manager in making or effecting any Payment
Modification if and only if the consent has first been obtained of each
Class A-1 Noteholder to such Payment Modification.
Any supplemental deed that effects any such modifications must conform to
the requirements of the Trust Indenture Act and copies of any such
supplemental deed must be distributed by the Issuer to the Class A-1
Noteholders in accordance with Condition [ ] 11.1 as soon as reasonably
practicable after the modifications have been made.
"Payment Modification" means any alteration, addition or revocation of
any provision of the Class A-1 Note Trust Deed or the Class A-1 Notes
(including the Conditions) which modifies: (a) the amount, timing,
place, currency or manner of payment of principal or interest in respect
of the Class A-1 Notes including, without limitation, any modification to
the Stated Amount, Invested Amount, Interest Rate or Scheduled Maturity
Date in respect of the Class A-1 Notes or to Conditions [ ]6.9 and 7.2,
clause [ ]10 of the Series Supplement or clause [ ]13 of the Security
Trust Deed or which would impair the rights of Class A-1 Noteholders to
institute suit for enforcement of such payment on or after the due date
for such payment; (b) the definition of the term "Special Majority",
clause [ ]21.4 of the Class A-1 Note Trust Deed or the circumstances in
which the consent or direction of a Special Majority of Class A-1
Noteholders is required; (c) clause [ ]6.1(a) of the Security Trust Deed;
or (d) the requirements for altering, adding to or revoking any provision
of the Class A-1 Note Trust Deed or the Class A-1 Notes (including the
Conditions).
"Rating Agency" has the same meaning as in the Series Supplement.
"Special Majority" in relation to the Class A-1 Noteholders means Class
A-1 Noteholders holding Class A-1 Notes with an aggregate Invested Amount
of no less than 75% of the aggregate Invested Amount of all the Class A-1
Notes.
[[ ] For a further description of the modifications which constitute a
Payment Modification see "Description of the Class A-1 Notes - Amendments
to Class A-1 Notes and Class A-1 Note Trust Deed" of this prospectus]
10.4 Waivers etc
The Security Trustee may, in accordance with the Security Trust Deed and
without the consent or sanction of the Voting Secured Creditors (but not
in contravention of an Extraordinary Resolution of the Voting Secured
Creditors), waive or authorise any breach or proposed breach or determine
that any event that would otherwise be an Event of Default will not be
treated as such if and in so far as in its opinion the interests of the
Secured Creditors will not be materially prejudiced. Any such waiver,
authorisation or determination shall be binding on the Secured Creditors
and, if, but only if, the Security Trustee so requires, any such waiver,
authorisation or determination will be notified to the Secured Creditors
by the Manager in accordance with the Security Trust Deed.
The Class A-1 Note Trustee may, and if directed to do so by a Majority of
Class A1 Noteholders must, on such terms and conditions as it may deem
reasonable, without the consent of any of the Class A-1 Noteholders, and
without prejudice to its rights in respect of any subsequent breach,
agree to any waiver or authorisation of any breach or proposed breach of
any of the terms and conditions of the Transaction Documents by the
Issuer, the Manager or any other person which, unless the Class A-1 Note
Trustee is acting on the direction of a Majority of Class A-1
Noteholders, is not, in the opinion of the Class A-1 Note Trustee,
materially prejudicial to the interests of the Class A-1 Noteholders as a
class. No such waiver, authorisation or determination may be made in
contravention of any prior directions by a Majority (as hereinafter
defined) of the Class A-1 Noteholders. Any such waiver, authorisation or
determination will, if the Class A-1 Note Trustee so requires, be
notified to the Class A-1 Noteholders in accordance with Condition 11.1
by the Issuer as soon as practicable after it is made.
"Majority" in relation to the Class A-1 Noteholders means Class A-1
Noteholders
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holding Class A-1 Notes with an aggregate Invested Amount of greater than
50% of the aggregate Invested Amount of all the Class A-1 Notes.
10.5 Indemnification and Exoneration of the Class A-1 Note Trustee and the
Security Trustee
The Class A-1 Note Trust Deed and the Security Trust Deed contain
provisions for the indemnification of the Class A-1 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 Securities unless indemnified
to their satisfaction. Each of the Class A-1 Note Trustee and the
Security Trustee is entitled, subject in the case of the Class A-1 Note
Trustee to the mandatory provisions of the Trust Indenture Act, 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.
Subject to the mandatory provisions of the Trust Indenture Act, the Class
A-1 Note Trustee shall not be responsible for any loss, expense or
liability occasioned to the Charged Property or any other property or in
respect of all or any of the moneys which may stand to the credit of the
Collections Account (as defined in the Series Supplement) from time to
time however caused (including, without limitation, where caused by an
act or omission of the Security Trustee) unless that loss is occasioned
by the fraud, negligence, wilful default or breach of trust of the Class
A-1 Note Trustee. The Security Trustee is not, nor is any receiver
appointed in relation to the Charged Property pursuant to the provisions
of the Security Trust Deed, liable or otherwise accountable for any
omission, delay or mistake or any loss or irregularity in or about the
exercise, attempted exercise, non-exercise or purported exercise of any
of the powers of the Security Trustee or of the receiver under the
Security Trust Deed except for fraud, negligence or wilful default.
Except in the case of fraud, negligence (except as specifically provided
in the Trust Indenture Act), wilful default or breach of trust, and
subject to the mandatory provisions of the Trust Indenture Act, the Class
A-1 Note Trustee may act on the opinion or advice of, or information
obtained from, any lawyer, valuer, banker, broker, accountant or other
expert appointed by the Class A-1 Note Trustee, or by a person other than
Class A-1 Note Trustee, where that opinion, advice or information is
addressed to the Class A-1 Note Trustee or by its terms is expressed to
be capable of being relied upon by the Class A-1 Note Trustee. Except as
provided above, the Class A-1 Note Trustee will not be responsible to any
Class A-1 Noteholder, amongst others, for any loss occasioned by so
acting in reliance on such advice. Any such opinion, advice or
information may be sent or obtained by letter, telex or facsimile
transmission and the Class A-1 Note Trustee will not be liable to any
Class A-1 Noteholder, amongst others, for acting on any opinion, advice
or information conforming with any applicable requirements of the Class
A-1 Note Trust Deed or the Trust Indenture Act and purporting to be
conveyed by such means even though it contains some error which is not a
manifest error or is not authentic.
11. Notices
11.1 General
All notices, other than notices given in accordance with the following
paragraph and Condition [ ] 11.2, to Class A-1 Noteholders will be deemed
given if in writing and mailed, first-class, postage prepaid to each
Class A-1 Noteholder, at his or her address as it appears on the Class A-
1 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-1 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-1 Noteholder will affect the sufficiency of such
notice with respect to other Class A-1 Noteholders, and any notice that
is mailed in the manner herein provided will conclusively be presumed to
have been duly given.
A notice may be waived in writing by the relevant Class A-1 Noteholder,
either before
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or after the event, and such waiver will be the equivalent of such
notice. Waivers of notice by Class A-1 Noteholders will be filed with the
Class A-1 Note Trustee but such filing will not be a condition precedent
to the validity of any action taken in reliance upon such a waiver.
Any such notice will 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 is impractical to mail
notice of any event to Class A-1 Noteholders when such notice is required
to be given, then any manner of giving such notice as the Issuer directs
the Class A-1 Note Trustee will be deemed to be a sufficient giving of
such notice.
11.2 Class A-1 Note Information
Any notice specifying a Distribution Date, a Interest Rate in relation to
the Class A-1 Notes, a Class A-1 Interest Amount, a Class A-1 Principal
Amount (or the absence of a Class A-1 Principal Amount), an Invested
Amount, a Stated Amount, a Class A-1 Note Factor in relation to the Class
A-1 Notes, or any other matter permitted to be given in accordance with
this Condition [ ] 11.2, will be deemed to have been duly given if the
information contained in the notice appears on the relevant page of the
Reuters Screen or the electronic information system made available to its
subscribers by Bloomberg, L.P. or another similar electronic reporting
service approved by the Class A-1 Note Trustee in writing and notified to
Class A-1 Noteholders pursuant to Condition [ ] 11.1 (the "Relevant
Screen"). Any such notice will 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 will
be given in accordance with Condition [ ] 11.1.
11.3 Quarterly Servicing and Other Reports
The Manager must deliver a Quarterly Servicing Report for each Accrual
Period to the Class A-1 Note Trustee, the Principal Paying Agent, the
Issuer and each Class A-1 Noteholder on the Business Day preceding the
Distribution Date on the last day of the Accrual Period in accordance
with Condition 11.1 and, for so long as the Class A-1 Notes are listed on
the Official List of the London Stock Exchange file each Quarterly
Servicing Report with the London Stock Exchange as and when required by
the rules of the London Stock Exchange.
The Issuer and the Manager must, to the extent required by the rules and
regulation of the Securities and Exchange Commission, forward to Class A-
1 Noteholders, and such other persons as are required by the Trust
Indenture Act , such summaries of any information, documents and reports
required to be filed by the Issuer or the Manager in accordance with the
Securities and Exchange Act 1934 of the United States of America or the
rules and regulations of the Securities and Exchange Commission.
"Quarterly Servicing Report" in relation to an Accrual Period and the
Distribution
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Date at the end of that Accrual Period means a report which contains the
following information:
. the aggregate Invested Amounts and the aggregate Stated Amounts of
each class of Securities on the first day of the Accrual Period;
. the amounts to be applied towards payment of interest and
principal on each class of Securities on the Distribution Date;
. the Available Income Amount (as defined in the Series Supplement)
on the Distribution Date;
. the aggregate of all Seller Advances made during the preceding
Collection Period;
. the Redraw Shortfall (as defined in the Standby Redraw Facility
Agreement) in relation to the preceding Determination Date;
. the Income Shortfall (as defined in the Series Supplement) in
relation to the preceding Determination Date;
. the Liquidity Facility Advance (as defined in the Series
Supplement) in relation to that Distribution Date and the
Liquidity Facility Principal (as defined in the Series Supplement)
in relation to the preceding Determination Date;
. the Available Principal Amount (as defined in the Series
Supplement) in relation to that Distribution Date;
. the Principal Collections in relation to that Distribution Date;
. the Standby Redraw Facility Advance in relation to that
Distribution Date;
. the Redraw Bond Amount (as defined in the Series Supplement) in
relation to the preceding Determination Date;
. the Principal Charge-Off in relation to the preceding
Determination Date;
. the Other Principal Amounts (as defined in the Series Supplement)
in relation to the preceding Determination Date;
. the Principal Charge-Off Reimbursement in relation to the
preceding Determination Date;
. the Principal Charge-offs allocated to each class of Securities
and the Standby Redraw Facility Principal with effect from that
Distribution Date;
. the Principal Charge-off Reimbursement allocated to each class of
Securities and the Standby Redraw Facility Principal with effect
from that Distribution Date;
. the Class A-1 Note Factor and the Note Factor (as defined below)
for each other
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class of Securities
. if the Basis Swap (as defined in the Series Supplement) has
terminated, the Threshold Rate (as defined in the Series
Supplement) on the preceding Determination Date;
. the Interest Rate (as defined in the Series Supplement with
respect to the Class A-2 Notes, the Class B Notes and the Redraw
Bonds) applying to each class of Securities for that Accrual
Period;
. scheduled payments of principal and prepayments of principal
received on the Mortgage Loans forming part of the Assets of the
Series Trust during the preceding Collections Period;
. aggregate outstanding principal balance of the Mortgage Loans
forming part of the Assets of the Series Trust being charged a
fixed rate of interest and the aggregate outstanding principal
balance of the Mortgage Loans forming part of the Assets of the
Series Trust being charged a variable rate of interest as at
opening of business on the preceding Determination Date;
. delinquency, mortgagee in possession and loss statistics, as
determined by the Manager, with respect to the Mortgage Loans
forming part of the Assets of the Series Trust as at opening of
business on the preceding Determination Date.
"Note Factor" in relation to a class of Securities and a Distribution
Date, means the aggregate of the Invested Amount of the class of
Securities less all principal payments on that class of Securities to be
made on that Distribution Date, divided by the aggregate initial Invested
Amount of that class of Securities.
[[ ] Further details of the cashflows of the Series Trust and the manner
of determination of the defined terms relevant to those cashflows and set
out in the Quarterly Servicing Report are contained in "Description of
the Class A-1 Notes" of this prospectus.]
11.4 Consents in Writing
All consents and approvals in these Conditions must be given in writing.
12. Limitation of Liability of the Issuer
(a) The Issuer enters into the Transaction Documents, and issues the
Class A-1 Notes, only in its capacity as trustee of the Series
Trust and in no other capacity (except where the Transaction
Documents provide otherwise). A liability arising under or in
connection with the Class A-1 Notes, the Transaction Documents or
the Series Trust is limited to and can be enforced against the
Issuer only to the extent to which it can be satisfied out of the
assets and property of the Series Trust out of which the Issuer is
actually indemnified for the liability. This limitation of the
Issuer's liability applies despite any other provision of the
Transaction Documents (other than paragraph (c) below) and extends
to all liabilities and obligations of the Issuer in any way
connected with any representation, warranty, conduct, omission,
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agreement or transaction related to the Transaction Documents, the
Class A-1 Notes or the Series Trust.
(b) No person may sue the Issuer in respect of liabilities incurred by
the Issuer in its capacity as trustee of the Series Trust other
than as trustee of the Series Trust or seek the appointment of a
receiver (except under the Security Trust Deed), a liquidator, an
administrator or any similar person to the Issuer or prove in any
liquidation, administration or similar arrangements of or
affecting the Issuer (except in relation to the assets or property
of the Series Trust).
(c) The provisions of this Condition [ ] 12 will 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 or property of
the Series Trust as a result of the Issuer's fraud, negligence or
wilful default.
(d) The Relevant Parties are responsible under the Transaction
Documents for performing a variety of obligations relating to the
Series Trust. No act or omission of the Issuer (including any
related failure to satisfy its obligations under the Transaction
Documents or the Class A-1 Notes) will be considered fraud,
negligence or wilful default of the Issuer for the purpose of
paragraph (c) to the extent to which the act or omission was
caused or contributed to by any failure by any Relevant Party or
any other person appointed by the Issuer under any Transaction
Document (other than a person whose acts or omissions the Issuer
is liable for in accordance with any Transaction Document) to
fulfil its obligations relating to the Series Trust or by any
other act or omission of a Relevant Party or any other such
person.
(e) In exercising their powers under the Transaction Documents, each
of the Security Trustee, the Class A-1 Note Trustee and the Class
A-1 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 wilful default of the Issuer for the purpose
of paragraph (c).
(f) The Issuer is not obliged to enter into any commitment or
obligation under these Conditions or any other Transaction
Document unless the Issuer's liability is limited in a manner
which is consistent with this Condition [ ] 12. The Issuer agrees
and acknowledges that its liability for any commitment or
obligation it has entered into under these Conditions is limited
in a manner which is consistent with this Condition [ ] 12.
(g) The Issuer is not obliged to enter into any commitment or
obligation contemplated by but not contained in these Conditions
or any other Transaction Document unless the Issuer's liability in
relation to that commitment or obligation is limited in a manner
satisfactory to the Issuer in its absolute discretion.
"Relevant Parties" means each of the Manager, the Seller, the Servicer,
the Agent
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Bank, each Paying Agent, the Class A-1 Note Trustee and the Hedge
Providers (as those parties, which are not defined in these Conditions,
are defined in the Series Supplement).
The expression "fraud, negligence or wilful default" is to be construed
in accordance with the Security Trust Deed.
[[ ] A summary of the definition of "wilful default" and further details
of the manner in which the Issuer's liability is limited in relation to
the Class A-1 Notes and the Series Trust are contained in "Description of
the Transaction Documents - The Issuer Trustee" of this prospectus.]
13. Governing Law
The Class A-1 Notes and the Transaction Documents are governed by, and
will be construed in accordance with, the laws of the State of New South
Wales of the Commonwealth of Australia, except for the Underwriting
Agreement and each credit support annex to the Currency Swap Agreements
which are governed by, and will be construed in accordance with, New York
law. Each of the Issuer and the Manager has in the Class A-1 Note Trust
Deed irrevocably agreed for the benefit of the Class A-1 Note Trustee and
the Class A-1 Noteholders that the courts of the State of New South Wales
are to have non-exclusive jurisdiction to settle any disputes which may
arise out of or in connection with the Class A-1 Note Trust Deed and the
Class A-1 Notes.
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Agents
Principal Paying Agent: The Bank of New York, New York Branch
101 Barclay Street, 21W
New York, New York, 10286
Class A-1 Notes Registrar: The Bank of New York, New York Branch
101 Barclay Street, 21W
New York, New York, 10286
or
48th Floor
One Canada Square
London E14 5AL
Agent Bank: The Bank of New York, New York Branch
101 Barclay Street, 21W
New York, New York, 10286
Paying Agent: The Bank of New York, London Branch
48th Floor
One Canada Square
London E14 5AL
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SCHEDULE 2
Terms and Conditions of the Class A-1 Notes
The following, subject to amendments, are the terms and conditions of the
Class A-1 Notes, substantially as they will appear on the reverse of any
Class A-1 Notes. Class A-1 Notes will initially be issued in book entry
form. Class A-1 Notes in definitive form will only be issued in limited
circumstances. While the Class A-1 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-1 Notes in definitive form. [[ ] A
summary of the provisions applicable to the Class A-1 Notes while in book
entry form, including the circumstances in which Class A-1 Notes in
definitive form will be issued, is set out in "Description of the
Class A-1 Notes -Form of the Class A-1 Notes" of this prospectus.]
[[ ]Sections in italics are included by way of explanation only and do
not constitute part of the terms and conditions of the Class A-1 Notes.]
1. General
The issue of the US$[[ ]1,000,000,000] Class A-1 Mortgage Backed Floating
Rate Notes due [ ] July 2031 (the "Class A-1 Notes"), the A$[[
]300,000,000] Class A-2 Mortgage Backed Floating Rate Notes due [ ] July
2031 (the "Class A-2 Notes" and together with the Class A-1 Notes, the
"Class A Notes") and the A$[[ ]15,000,000] Class B Mortgage Backed
Floating Rate Notes due [ ] July 2031 (the "Class B Notes") (together the
"Notes") by Perpetual Trustee Company Limited, ACN 000 001 007,
("Perpetual") in its capacity as trustee of the Series 2000-1G Medallion
Trust (the "Series Trust") (Perpetual in such capacity, the "Issuer") was
authorised by a resolution of the board of directors of Perpetual passed
on [[ ]].
The Class A-1 Notes: (a) are constituted by a Class A-1 Note Trust Deed
(the "Class A-1 Note Trust Deed") dated [[ ]] made between the Issuer,
Securitisation Advisory Services Pty Limited, ACN 064 133 946, (the
"Manager") and The Bank of New York, New York Branch (the "Class A-1 Note
Trustee") as trustee for the several persons who are for the time being
registered holders of the Class A-1 Notes (each a "Class A-1 Noteholder"
and together the "Class A-1 Noteholders"); and (b) are issued subject to,
and with the direct or indirect benefit of, amongst other things (i) a
Master Trust Deed (the "Master Trust Deed") dated 8 October 1997 made
between the Manager and Perpetual, as amended from time to time; (ii) a
Series Supplement (the "Series Supplement") dated [[ ]] made between
Commonwealth Bank of Australia, ACN 123 123 124 (generally the "Bank" and
in its respective capacities under the Series Supplement the "Seller" and
the initial "Servicer"), the Manager and the Issuer; (iii) a Security
Trust Deed (the "Security Trust Deed") dated [[ ]] made between the
Issuer, the Manager, the Class A-1 Note Trustee and P.T. Limited, ACN 004
454 666 (the "Security Trustee"); (iv) the Class A-1 Note Trust Deed; (v)
these terms and conditions (the "Conditions"); and (vi) the Agency
Agreement (as defined below).
Certain provisions of these Conditions (including the definitions herein)
are summaries of the Transaction Documents (as defined in Condition [ ]
3) and are subject to the detailed provisions of the Transaction
Documents, a copy of which may be inspected as indicated in Condition [ ]
3.
Payments of interest and principal, and the calculation of certain
amounts and rates, under these Conditions in respect of the Class A-1
Notes will be made pursuant to an Agency Agreement (the "Agency
Agreement") dated [.] made between the Issuer, the Class A-1 Note
Trustee, the Manager, The Bank of New York, New York Branch, as the
initial principal paying agent (the "Principal Paying Agent") (together
with any other paying agent appointed from time to time under the Agency
Agreement, the "Paying Agents"), as the initial agent bank (the "Agent
Bank") and as the initial Class A-1 note registrar (the "Class A-1 Note
Registrar") and The Bank of New York, London Branch as an initial paying
agent.
The Issuer has entered into ISDA Master Agreements (each a "Currency Swap
Agreement") with Merrill Lynch Capital Services Inc. and Commonwealth
Bank of Australia (each a "Currency Swap Provider") and the Manager, each
together with a schedule and a credit support annex and a confirmation
relating thereto in respect of the Class A-1 Notes (each such
confirmation documenting a "Class A-1 Currency Swap").
The Class A-1 Notes will on issue be listed on the London Stock Exchange
Limited (the "London Stock Exchange").
"US$" means the lawful currency for the time being of the United States
of America and "A$" means the lawful currency for the time being of the
Commonwealth of Australia.
2. Definitions and Interpretation
2.1 Incorporated Definitions and other Provisions
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Where in these Conditions a word or expression is defined by reference to
its meaning in another Transaction Document or there is a reference to
another Transaction Document or to a provision of another Transaction
Document, any amendment to the meaning of that word or expression, to
that other Transaction Document or to that provision (as the case may be)
will be of no effect for the purposes of these Conditions unless and
until the amendment: (a) if it does not effect a Payment Modification (as
defined in Condition 10.3) is either: (i) if the Class A-1 Note Trustee
is of the opinion that the amendment will not be materially prejudicial
to the interests of the Class A-1 Noteholders, consented to by the Class
A-1 Note Trustee; or (ii) otherwise, approved by a Special Majority (as
defined in Condition 10.3) of the Class A-1 Noteholders under the Class
A-1 Note Trust Deed; or (b) if the amendment does effect a Payment
Modification (as defined in Condition 10.3), is consented to by each
Class A-1 Noteholder.
2.2 Interpretation
In these Conditions, unless the context otherwise requires: (a) a
reference to a party includes that party's executors, administrators,
successors, substitutes and assigns, including any person replacing that
party by way of novation; (b) a reference to any regulation or to any
section or provision thereof includes any statutory modification or re-
enactment or any statutory provision substituted therefor and all
ordinances, by-laws, regulations and other statutory instruments issued
thereunder; (c) subject to Condition [ ] 2.1, a reference to any document
or agreement is a reference to such document or agreement as amended,
varied, supplemented or replaced from time to time; (d) words importing
the singular include the plural (and vice versa); (e) words denoting a
given gender include all other genders; and (f) headings are for
convenience only and do not affect the interpretation of these
Conditions.
2.3 Calculations
Except as expressly provided otherwise in these Conditions, all
calculations in a given currency under these Conditions will be rounded
down to the nearest cent in that currency and all other calculations and
percentages determined hereunder will be rounded down to the nearest 4
decimal places.
3. Class A-1 Noteholders Bound
The Class A-1 Noteholders are bound by, and are deemed to have notice of,
all the provisions of the Transaction Documents. A copy of each
Transaction Document is available for inspection during normal business
hours on New York business days at the registered office for the time
being of the Class A-1 Note Trustee (which is, at the date of these
Conditions, 101 Barclay Street, 21W, New York, New York, 10286 ).
"Transaction Documents" means the Master Trust Deed in so far as it
relates to the Series Trust, the Series Supplement, the Currency Swap
Agreements, the Interest Rate Swap Agreement, the Liquidity Facility
Agreement, the Standby Redraw Facility Agreement, the GEMICO Mortgage
Insurance Policies, the Security Trust Deed, the Dealer Agreement, the
Underwriting Agreement, the Class A-1 Note Trust Deed, these
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Conditions, the Agency Agreement and any other document which is agreed
by the Manager and the Issuer to be a Transaction Document in relation to
the Series Trust.
"Dealer Agreement", "GEMICO Mortgage Insurance Policies", "Interest Rate
Swap Agreement", "Liquidity Facility Agreement", "Standby Redraw Facility
Agreement" and "Underwriting Agreement" have the same respective meanings
as in the Series Supplement. [[ ] Further details of these documents are
contained in "The Mortgage Insurance Policies", "Description of the Class
A-1 Notes - The Interest Rate Swaps", "Description of the Transaction
Documents - The Liquidity Facility, - The Standby Redraw Facility", "Plan
of Distribution" and "Listing and General Information - Transaction
Documents Available for Inspection" of this prospectus.]
4. Form, Denomination and Title of and to, and the issue of definitive,
Class A-1 Notes
4.1 Form and Denomination
The Class A-1 Notes will be issued in registered form, without interest
coupons, in minimum denominations of US$100,000 or integral multiples
thereof. The initial principal amount of each Class A-1 Note (the
"Initial Invested Amount" in relation to that Class A-1 Note) will be
stated on its face.
4.2 Title
Title to the Class A-1 Notes will only be shown on, and will only pass by
registration in, the register (the "Class A-1 Note Register") maintained
by the Class A-1 Note Registrar in accordance with the Agency Agreement.
Class A-1 Notes may be transferred, or may be exchanged for other Class
A-1 Notes in any authorised denominations and a like Invested Amount (as
defined in Condition [ ]6.4), upon the surrender of the Class A-1 Notes
to be transferred or exchanged duly endorsed with or accompanied by a
written instrument of transfer and exchange duly executed (with such
execution guaranteed by an eligible guarantor institution) and the
provision of such other documents as the Class A-1 Note Registrar may
reasonably require, to a specified office of the Class A-1 Note Registrar
(as set out at the end of these Conditions or otherwise notified to Class
A-1 Noteholders) subject to and in accordance with the Agency Agreement.
No service charge may be made for any transfer or exchange, but the Class
A-1 Note Registrar may require payment by the Class A-1 Noteholder of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Class A-1 Notes.
The Class A-1 Note Registrar need not register transfers or exchanges of
Class A-1 Notes for a period of 30 days preceding the due date for any
payment with respect to the Class A-1 Notes or for a period, not
exceeding 30 days, specified by the Class A-1 Note Trustee prior to any
meeting, which includes Class A-1 Noteholders, under the Master Trust
Deed or the Security Trust Deed. The Issuer, the Class A-1 Note Trustee,
the Manager, the Agent Bank and each Paying Agent may accept the
correctness of the Class A-1 Note Register and any information provided
to it by the Class A-1 Note Registrar and is not required to enquire into
its authenticity. None of the Issuer, the Class A-1 Note Trustee, the
Manager, the Agent Bank, any Paying Agent or the Class A-1 Note Registrar
is liable for any mistake in the Class A-1 Note Register or in any
purported copy except to the extent that the mistake is attributable to
its own fraud, negligence or
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wilful default.
5. Status, Security and Relationship between the Class A-1 Notes, the Class
A-2 Notes, the Class B Notes and the Redraw Bonds
5.1 Status of the Securities
The Notes and the Redraw Bonds (as defined in Condition [ ] 5.6)
(together the "Securities") are direct, secured (as described in
Condition [ ] 5.2) limited recourse (as described in Condition [ ] 5.3)
obligations of the Issuer.
5.2 Security
The obligations of the Issuer under the Securities are (amongst the other
payment obligations of the Issuer comprising the Secured Moneys (as
defined below)) secured, pursuant to the Security Trust Deed, in favour
of the Security Trustee as trustee for the Secured Creditors (as defined
below), by a floating charge (the "Charge") over all of the assets and
property, real and personal (including choses in action and other
rights), tangible and intangible, present or future, of the Series Trust
(the "Charged Property"). The Charged Property includes an equitable
interest in certain mortgage loans, and related mortgages, acquired by
the Issuer from the Seller. The Charge is a first ranking security,
subject only to the Prior Interest in the Charged Property.
[[ ] Further details regarding the Charged Property are contained in
"Description of the Assets of the Trust" of this prospectus]
"Class A Noteholders" means the Class A-1 Noteholders and the Class A-2
Noteholders (as defined in the Series Supplement).
"Invested Amount" in relation to a Class A-1 Note is defined in Condition
[ ]6.4 and in relation to a Class A-2 Note, Class B Note or Redraw Bond
means (as defined in the Series Supplement) A$100,000 less the aggregate
of all amounts previously paid in relation to that Note or Redraw Bond on
account of principal pursuant to clause [ ]10.3(c) of the Series
Supplement.
"Prior Interest" means the lien over, and right of indemnification from,
the Charged Property held by the Issuer under, and calculated in
accordance with, the Master Trust Deed for the fees, costs, charges and
expenses incurred by or payable to the Issuer (in its capacity as trustee
of the Series Trust) in accordance with the Master Trust Deed and the
Series Supplement (other than the Secured Moneys) which are unpaid or
paid by the Issuer but not reimbursed to the Issuer from the assets and
property of the Series Trust.
"Secured Creditors" means the Class A-1 Note Trustee (in its personal
capacity and as trustee of the Class A-1 Trust established under the
Class A-1 Note Trust Deed), each Paying Agent, each Securityholder, each
Hedge Provider, the Liquidity Facility Provider (as defined in the Series
Supplement), the Standby Redraw Facility Provider (as defined in the
Series Supplement), the Servicer and the Seller.
"Secured Moneys" means, without double counting, the aggregate of all
moneys owing
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to the Security Trustee or to a Secured Creditor under any of the
Transaction Documents, whether such amounts are liquidated or not or are
contingent or presently accrued due, and includes all rights sounding in
damages only provided that:
(a) the amount owing by the Issuer in relation to the principal
component of a Security is to be calculated by reference to the
Invested Amount of that Security;
(b) the amount owing by the Issuer in relation to the principal
component of the Standby Redraw Facility Agreement is to be
calculated by reference to the aggregate of the Standby Redraw
Facility Principal and the Unreimbursed Principal Charge-offs in
relation to the Standby Redraw Facility Principal; and
(c) the Secured Moneys do not include any fees or value added tax
payable to the Class A-1 Note Trustee or an Agent referred to in
clause [ ]12.7 of the Class A-1 Note Trust Deed or Clause
[ ]12.6 of the Agency Agreement.
"Securityholders" means the Class A Noteholders, the Class B Noteholders
(as defined in the Series Supplement) and the Redraw Bondholders (as
defined in the Series Supplement).
5.3 Limited Recourse
The liability of the Issuer to make interest and principal payments on
the Class A-1 Securities is limited, except in certain circumstances
described in Condition [ ]12, to the assets and property of the Series
Trust available for this purpose in accordance with, and subject to the
order of priority of payments in, the Series Supplement (prior to
enforcement of the Charge) or the Security Trust Deed (following
enforcement of the Charge).
The net proceeds of realisation of the assets and property of the Series
Trust (including following enforcement of the Charge) may be insufficient
to pay all amounts due to the Class A-1 Noteholders and any other amounts
ranking in priority to or equally with amounts due to the Class A-1
Noteholders. Except in the limited circumstances described in Condition
[ ]12, the assets of Perpetual held in its personal capacity will not be
available for payment of any shortfall arising and all claims in respect
of such shortfall will be extinguished. The assets of Perpetual held in
its capacity as trustee of any other trust (including any other series
trust established pursuant to the Master Trust Deed) will not in any
circumstances be available to pay any amounts due to Class A-1
Noteholders.
None of the Bank, the Manager, the Class A-1 Note Trustee, the Security
Trustee, any Agent, each Currency Swap Provider or the Managers (as
defined in the Underwriting Agreement), amongst others, has any
obligation to any Class A-1 Noteholder for payment of any amount owed by
the Issuer in respect of the Class A-1 Notes.
5.4 No Preference within the Class A-1 Notes
The Class A-1 Notes rank equally and rateably and without any preference
or priority among themselves.
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5.5 Ranking of Class A-1 and Class A-2 Notes
Prior to the enforcement of the Charge, under the Series Supplement the
Class A-1 Notes and Class A-2 Notes will rank equally and rateably in
relation to the payment of interest and the repayment of principal (the
amounts payable by the Issuer under the Series Supplement in relation to
the Class A-1 Notes will be calculated by reference to the applicable
Australian dollar amounts payable by the Issuer to the Currency Swap
Providers, which rank equally and rateably with amounts payable in
respect of the Class A-2 Notes, which in turn will be applied to meet the
payment of interest and the repayment of principal (as applicable) on the
Class A-1 Notes as explained, respectively, in Conditions [ ] 6.9 and
7.2). Following enforcement of the Charge, under the Security Trust Deed
the payment of amounts owing in relation to the Class A-1 Notes and the
Class A-2 Notes will rank rateably (the amounts owing in respect of the
Class A-1 Notes will, for the purposes of determining distributions to,
and allocations between, the Class A-1 Noteholders, the Class A-2
Noteholders and the other Secured Creditors, be converted into A$ in
accordance with the Security Trust Deed).
5.6 Issue of Redraw Bonds
Under the Series Supplement, the Issuer is entitled to issue debt
securities ("Redraw Bonds") from time to time at the direction of the
Manager. If prior to a Determination Date, the Manager considers that
the aggregate of:
(a) the Principal Collections, the Principal Charge-Off Reimbursements
(as defined in Condition [ ] 7.10) and the Other Principal Amounts
for the Collection Period ending on the Determination Date; and
(b) the Standby Redraw Facility Advance (as hereinafter defined) (if
any) to be made on the next Distribution Date (as defined in
Condition [ ] 6.2),
as estimated by the Manager are likely to be insufficient to meet in full
the aggregate of:
(c) the Seller Advances; and
(d) the Standby Redraw Facility Principal,
that the Manager estimates will be outstanding on the Determination Date,
the Manager may direct the Issuer to issue Redraw Bonds for a principal
amount specified in the direction. The maximum Stated Amount (as
hereinafter defined) of the Redraw Bonds outstanding on any Distribution
Date (after taking into account any expected repayment of principal on
the Redraw Bonds on that Distribution Date) must not exceed the Redraw
Bond Principal Limit.
"Collection Period", "Determination Date", "Other Principal Amount",
"Principal Collections", "Redraw Bond Principal Limit", "Seller Advance",
"Standby Redraw Facility Advance", "Standby Redraw Facility Principal"
and "Stated Amount" in
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relation to the Redraw Bonds have the same respective meanings as in the
Series Supplement. [[ ] For a description of these, see "Description of
the Class A-1 Notes - Key Dates and Periods, - Determination of the
Available Principal Amount and - Redraws" and "Glossary" of this
prospectus.]
Prior to the enforcement of the Charge, under the Series Supplement: (i)
the payment of interest on the Redraw Bonds will rank equally and
rateably with the payment of interest on the Class A Notes (or, in the
case of the Class A-1 Notes, equally and rateably with the payment of the
relevant A$ amount by the Issuer to the Currency Swap Providers which in
turn will be applied to meet the payment of interest on the Class A-1
Notes as explained in Condition [ ] 6.9); and (ii) the repayment of
principal on the Redraw Bonds will rank ahead of the repayment of
principal on the Class A Notes (or, in the case of the Class A-1 Notes,
ahead of the payment of the relevant A$ amount by the Issuer to the
Currency Swap Providers which in turn will be applied to meet the
repayment of principal on the Class A-1 Notes as explained in Condition [
] 7.2).
Following the enforcement of the Charge, under the Security Trust Deed
the payment of amounts owing in relation to the Redraw Bonds will rank
rateably with the payment of amounts owing in relation to the Class A
Notes (the amounts owing in respect of the Class A-1 Notes will, for the
purposes of determining distributions to, and allocations between, the
Class A-1 Noteholders and Redraw Bondholders and other Secured Creditors,
be converted into A$ in accordance with the Security Trust Deed).
5.7 Subordination of Class B Notes
Prior to the enforcement of the Charge, the payment of interest in
relation to the Class B Notes is subordinated to, amongst other things,
the payment of interest on the Class A Notes and the Redraw Bonds in
accordance with the Series Supplement; and the repayment of the principal
on the Class B Notes is, to a certain extent, subordinated to, amongst
other things, the repayment of the principal on the Class A Notes and the
Redraw Bonds in accordance with the calculations to be made of the
amounts to be paid by the Issuer under the Series Supplement (in the case
of the Class A-1 Notes, the subordination of the Class B Notes is in
respect of the relevant A$ amounts payable by the Issuer to the Currency
Swap Providers which in turn will be applied to meet the payment of
interest and the repayment of principal on the Class A-1 Notes as
explained, respectively, in Conditions [ ] 6.9 and 7.2.). [[ ] For a
description of the order of application of available proceeds under the
Series Trust, the consequent subordination of the payment of interest and
repayment of principal on the Class B Notes, see "Description of the
Class A-1 Notes -Distribution of the Available Income Amount, -
Distribution of the Available Principal Amount and - Allocation of
Principal to Class A Notes and Class B Notes" of this prospectus]
Following the enforcement of the Charge, in the distribution of the net
proceeds (if any) arising from the enforcement of the Charge, any payment
in relation to the Class B Notes will be subordinated to, amongst other
things, payment of all amounts due in relation to the Class A Notes and
the Redraw Bonds (the amounts owing in respect of the Class A-1 Notes
will, for the purposes of determining distributions to, and allocations
between, the Class A-1 Noteholders, and Class B Noteholders and other
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Secured Creditors, be converted into A$ in accordance with the Security
Trust Deed). [[ ] For a description of the order of application of the
proceeds of the enforcement of the Charge under the Security Trust Deed,
see "Description of the Transaction Documents - The Security Trust Deed -
Priorities under the Security Trust Deed" of this prospectus.]
The Security Trust Deed contains provisions requiring the Security
Trustee, subject to other provisions of the Security Trust Deed, to give
priority to the interests of the Class A Noteholders and the Redraw
Bondholders if there is a conflict between the interests of the Class A
Noteholders and the Redraw Bondholders (on the one hand) and any other
Secured Creditor, including the Class B Noteholders (on the other hand).
In determining the interests of the Class A-1 Noteholders, the Security
Trustee may rely on a determination of the Class A-1 Note Trustee.
5.8 The Securities Rank Equally Except as Provided in the Transaction
Documents
The Securities enjoy the same rights, entitlements, benefits and
restrictions except as expressly provided in the Transaction Documents.
6. Interest
6.1 Period of Accrual
Each Class A-1 Note accrues interest from (and including) [[ ]] (the
"Closing Date") and ceases to accrue interest on (but excluding) the
earliest of:
(a) the date on which the Stated Amount (as hereinafter defined) of
the Class A-1 Note is reduced to zero and all accrued but
previously unpaid interest, is paid in full;
(b) the date on which the Class A-1 Note is redeemed or repaid in full
in accordance with Condition [ ] 7 (other than Condition [ ] 7.6)
unless, upon presentation, payment is improperly withheld or
refused in which case the Class A-1 Note will continue to bear
interest in accordance with this Condition [ ] 6 (both before and
after judgment) until (but excluding) whichever is the earlier of:
(i) the day on which all sums due in respect of the Class A-1
Note up to that day are received by or on behalf of the
Class A-1 Noteholder; and
(ii) the seventh day after notice is given to the Class A-1
Noteholder (either in accordance with Condition [ ] 11.1 or
individually) that, where required by Condition 8.2, upon
presentation thereof being duly made, such payment will be
made, provided that upon such presentation payment is in
fact made; and
(c) the date on which the Class A-1 Note is deemed to be redeemed in
accordance with Condition [ ] 7.6.
"Stated Amount" in relation to:
(a) a Class A-1 Note at any given time means the Initial Invested
Amount of that Class
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A-1 Note less the sum of:
(i) the aggregate of all amounts previously paid in relation to
that Class A-1 Note on account of principal pursuant to
Condition [ ] 7.2(c); and
(ii) the aggregate of all then Unreimbursed Principal Charge-
offs (as defined in Condition [ ] 7.10) in relation to that
Class A-1 Note; and
(b) any other Security at any given time means (as defined in the
Series Supplement) A$100,000 less the sum of:
(i) the aggregate of all amounts previously paid in relation to
that A$ Security on account of principal pursuant to clause
[ ]10.3 of the Series Supplement; and
(ii) the aggregate of all then Unreimbursed Principal
Charge-Offs (as defined in the Series Supplement) in
relation to that A$Security.
[[ ] For a description of how the Stated Amount is determined for the
Securities see "Description of the Class A-1 Notes - Distribution of the
Available Principal Amounts - Allocations of Principal to Class A Notes
and Class B Notes and - Principal Charge-Off" and "Glossary" of this
prospectus.]
6.2 Accrual Periods
The period that a Class A-1 Note accrues interest in accordance with
Condition [ ] 6.1 is divided into periods (each an "Accrual Period").
The first Accrual Period for a Class A-1 Note commences on (and includes)
the Closing Date and ends on (but does not include) the first
Distribution Date thereafter. Each succeeding Accrual Period for a Class
A-1 Note commences on (and includes) a Distribution Date and ends on (but
does not include) the next Distribution Date. The final Accrual Period
for a Class A-1 Note ends on (but does not include) the date on which
interest ceases to accrue on the Class A-1 Note pursuant to Condition [ ]
6.1.
"Distribution Date" means the 12th day of [[ ] July, October, January and
April] in each year (or, if such a day is not a Business Day, the next
Business Day). The first Distribution Date is 12 [[ ]July] 2000 (or, if
that day is not a Business Day, the next Business Day).
"Business Day" means any day on which banks are open for business in
Sydney, New York City and London other than a Saturday, a Sunday or a
public holiday in Sydney, New York City or London.
6.3 Interest Rate for the Class A-1 Notes
The rate of interest ("Interest Rate") payable from time to time in
respect of a Class A-1 Note and an Accrual Period is the aggregate of
USD-LIBOR-BBA (as hereinafter defined) for that Accrual Period and the
Issue Margin (as hereinafter defined) in relation to the Class A-1 Note.
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"USD-LIBOR-BBA" for an Accrual Period will be calculated by the Agent
Bank in accordance with paragraph (a) (or, if applicable, paragraph (b))
below (subject, in the case of the first Accrual Period, to paragraph (c)
below):
(a) on the second Banking Day before the beginning of the Accrual
Period (a "Rate Set Date") the Agent Bank will determine the rate
"USD-LIBOR-BBA" as the applicable Floating Rate Option under the
Definitions of the International Swaps and Derivatives
Association, Inc. ("ISDA") (the "ISDA Definitions") being the rate
applicable to any Accrual Period for three-month deposits in US
dollars in the London inter-bank market which appears on the Rate
Page (as hereinafter defined) as of 11.00am, London time, on the
Rate Set Date;
(b) if such rate does not appear on the Rate Page at that time, the
USD-LIBOR-BBA for that Accrual Period will be determined as if the
Issuer and the Agent Bank had specified "USD-LIBOR-Reference
Banks" as the applicable Floating Rate Option under the ISDA
Definitions. For this purpose "USD-LIBOR-Reference Banks" means
that the rate for an Accrual 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 determined by the Agent Bank) at approximately
11.00am, London time, on the Rate Set Date to prime banks in the
London interbank market for a period of three months commencing on
the first day of the Accrual Period and in a Representative Amount
(as defined in the ISDA Definitions). The Agent Bank will request
the principal London office of each of the Reference Banks to
provide a quotation of its rate. If at least two such quotations
are provided, the USD-LIBOR-BBA for that Accrual Period will be
the arithmetic mean of the quotations. If fewer than two
quotations are provided as requested, the USD-LIBOR-BBA for that
Accrual Period will be the arithmetic mean of the rates quoted by
not less than two major banks in New York City, selected by the
Agent Bank and the Currency Swap Providers, at approximately
11.00am, New York City time, on that Rate Set Date for loans in US
dollars to leading European banks for a period of three months
commencing on the first day of the Accrual Period and in a
Representative Amount. If no such rates are available in New York
City, then the USD-LIBOR-BBA for such Accrual Period will be the
most recently determined rate in accordance with paragraph (a);
and
(c) the USD-LIBOR-BBA for the first Accrual Period will be the rate
determined by linear interpolation calculated in accordance with
paragraph (a) or, if applicable, paragraph (b) above with
reference to the duration of the first Accrual Period.
"Banking Day" means any day on which banks are open for business in
London and New York City, other than a Saturday, a Sunday or a public
holiday in London or New York City.
"Rate Page" means Telerate Page 3750 or, if Telerate Page 3750 ceases to
quote the relevant rate, such other page, section or part of Telerate as
quotes the relevant rate and is selected by the Agent Bank or, if there
is no such page, section or part of such other page, section or part of a
different screen information service as quotes the relevant rate selected
by the Agent Bank and approved by the Class A-1 Note Trustee.
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"Issue Margin" in relation to a Class A-1 Note means, subject to the
following:
(a) for the period from, and including, the Closing Date to, but
excluding, the Call Date (as defined in Condition [] 7.3), [[]]%
per annum; and
(b) for the period from, and including, the Call Date to, but
excluding, the date on which that Class A-1 Note ceases to accrue
interest in accordance with Condition [] 6.1, [[]]% per annum.
If on or after the Call Date the Issuer, at the direction of the Manager,
proposes to exercise its option to redeem the Securities at their Stated
Amount in accordance with Condition 7.3 on a Distribution Date but is
unable to do so because, following a meeting of Securityholders convened
under the provisions of the Security Trust Deed by the Manager for this
purpose, the Securityholders have not approved by an Extraordinary
Resolution (as defined in Condition [] 9.1) the redemption of the
Securities at their Stated Amount, then the Issue Margin in relation to
each Class A-1 Note from, and including, that Distribution Date to, but
excluding, the date on which that Class A-1 Note ceases to accrue
interest in accordance with Condition 6.1, is [[]]% per annum.
There is no maximum or minimum Interest Rate for the Class A-1 Notes.
6.4 Calculation of Interest on the Class A-1 Notes
Interest on each Class A-1 Note for an Accrual Period (the "Class A-1
Interest Amount") is calculated by applying the Interest Rate for that
Class A-1 Note for that Accrual Period to the Invested Amount of that
Class A-1 Note on the first day of the Accrual Period (after taking into
account any reductions in the Invested Amount of that Class A-1 Note on
that day), by then multiplying such product by the actual number of days
in the Accrual Period divided by 360 and rounding the resultant figure
down to the nearest cent.
"Invested Amount" in relation to a Class A-1 Note means the Initial
Invested Amount of that Class A-1 Note less the aggregate of all amounts
previously paid in relation to that Class A-1 Note on account of
principal pursuant to Condition [] 7.2(c).
6.5 Determination of Interest Rate and Class A-1 Interest Amount
The Agent Bank will, as soon as practicable after 11.00am (London time
or, if applicable, New York City time) on each Rate Set Date, determine
the Interest Rate in relation to the Class A-1 Notes, and calculate the
Class A-1 Interest Amount, for the immediately succeeding Accrual Period
in accordance with, respectively, Conditions 6.3 and 6.4. The
determination of the Interest Rate, and the calculation of the Class A-1
Interest Amount, by the Agent Bank in accordance with, respectively,
Conditions 6.3 and 6.4 will (in the absence of manifest error, wilful
default or bad faith) be final and binding upon all parties.
6.6 Notification and Publication of Interest Rate and Class A-1 Interest
Amount
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The Agent Bank will cause the Interest Rate and the Class A-1 Interest
Amount for each Accrual Period, and the date of the next Distribution
Date, to be notified to the Issuer, the Manager, the Class A-1 Note
Trustee, the Currency Swap Providers, the Paying Agents and the London
Stock Exchange (for so long as the Class A-1 Notes are listed on the
Official List of the London Stock Exchange) on or as soon as practical
after the Agent Bank has determined the Interest Rate and calculated the
Class A-1 Interest Amount or on such earlier date as the London Stock
Exchange may require (for so long as the Class A-1 Notes are listed on
the Official List of the London Stock Exchange) and will cause the same
to be published in accordance with Condition 11.2 as soon as practical
after that notification. The Class A-1 Interest Amount and the
Distribution Date may subsequently be amended (or appropriate alternative
arrangements made by way of adjustment) without notice in the event of an
extension or shortening of the Accrual Period. If following the
occurrence of an Event of Default (as defined in Condition 9.1), the
Security Trustee declares in accordance with the Security Trust Deed that
the Class A-1 Notes are immediately due and payable, the Class A-1
Interest Amount and the Interest Rate in respect of the Class A-1 Notes
will nevertheless continue to be calculated by the Agent Bank in
accordance with this Condition, but no publication of the Class A-1
Interest Amount or the Interest Rate so calculated or the Distribution
Dates needs to be made unless, in the case of the Class A-1 Interest
Amount or the Interest Rate, the Class A-1 Note Trustee otherwise
requires.
[[] For a description of the expression "Event of Default" see
"Description of the Transaction Documents - The Security Trust Deed" and
"Glossary" of this prospectus.]
6.7 Determination or Calculation by the Class A-1 Note Trustee
If the Agent Bank at any time for any reason does not determine the
Interest Rate in respect of the Class A-1 Notes, or calculate the Class
A-1 Interest Amount, in accordance with this Condition [] 6, the Class A-
1 Note Trustee will do so and each such determination or calculation by
the Class A-1 Note Trustee will be as if made by the Agent Bank. In doing
so, the Class A-1 Note Trustee will apply the foregoing provisions of
this Condition [] 6, with any necessary consequential amendments, to the
extent that it can and in all other respects it will do so in such a
manner as it considers to be fair and reasonable in all the
circumstances.
6.8 Agent Bank
The Issuer will procure that, for so long as any of the Class A-1 Notes
remain outstanding, there will at all times be an Agent Bank. The
Issuer, at the direction of the Manager, may with the prior written
approval of the Class A-1 Note Trustee, terminate the appointment of the
Agent Bank immediately on the occurrence of certain events specified in
the Agency Agreement in relation thereto or, otherwise, by giving not
less than 60 days' notice in writing to, amongst others, the Agent Bank.
Notice of that termination will be given by the Issuer to the Class A-1
Noteholders in accordance with Condition [] 11.1. If any person is unable
or unwilling to continue to act as the Agent Bank, or if the appointment
of the Agent Bank is terminated, the Issuer, at the direction of the
Manager, will appoint a successor Agent Bank to act as such in its place,
provided that neither the resignation nor removal of the Agent Bank will
take effect until a successor approved by the Class A-1 Note Trustee has
been appointed and notice of the appointment of the successor has been
given by the Issuer to the Class A-1 Noteholders in accordance with
Condition [] 11.1. The initial Agent Bank and its specified office are
set out at the end of these Conditions.
6.9 Payment of the Class A-1 Interest Amount
The Class A-1 Interest Amount for each Accrual Period in relation to a
Class A-1 Note is payable in arrear in US$ on the Distribution Date which
is the last day of the Accrual Period. On each Distribution Date prior
to the enforcement of the Charge, the Issuer must:
(a) to the extent that there are funds available for this purpose in
accordance with the Series Supplement pay, in accordance with the
directions of the Manager, the A$ Class A-1 Interest Amount and
any A$ Unpaid Class A-1 Interest Amount in relation to that
Distribution Date rateably to the Currency Swap Providers in
accordance with the Class A-1 Currency Swaps;
(b) direct each Currency Swap Provider (which direction may be
contained in the relevant Class A-1 Currency Swap) to pay the
Class A-1 Interest Payments on each Distribution Date to the
Principal Paying Agent in accordance with the Agency Agreement;
and
(c) direct the Principal Paying Agent (which direction may be
contained in the Agency Agreement) to pay the Class A-1 Interest
Payments received by it from the Currency Swap Providers on a
Distribution Date rateably amongst the Class A-1 Notes based on
their Stated Amounts towards the Class A-1 Interest Amount in
relation to each Class A-1 Note in relation to the Accrual Period
ending on that Distribution Date and any then Class A-1 Unpaid
Interest Amount (as defined in Condition [] 6.10) in relation to
each Class A-1 Note (to the extent included in the Class A-1
Interest Payment) in accordance with, and subject to, these
Conditions and the Agency Agreement.
"A$ Class A-1 Interest Amount" , "A$ Class A-1 Unpaid Interest Amount"
and "Class A-1 Interest Payment" have the same respective meanings as in
the Series Supplement. [[] The method for calculating these, the order of
application of available funds for payment of the $A Class A-1 Interest
Amount and $A Class A-1 Unpaid Interest Amount on a Distribution Date and
other payments ranking in priority to or equally with payment of those
amounts on a Distribution Date under the Series Supplement are explained
in "Description of the Class A-1 Notes -Distribution of the Available
Income Amount and - the Currency Swap - Interest Payments" of this
prospectus].
6.10 Interest on unpaid Interest Amounts
If interest is not paid in respect of a Class A-1 Note on the date when
due and payable, that unpaid interest will itself bear interest at the
Interest Rate in relation to the Class A-1 Notes applicable from time to
time until (but excluding the date of payment) the unpaid interest, and
interest on it, is paid in accordance with Condition [] 6.9 (the unpaid
interest and interest on that unpaid interest, in relation to a Class A-1
Note, is a "Class A-1 Unpaid Interest Amount").
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7. Redemption of the Class A-1 Notes
7.1 Final redemption of the Class A-1 Notes
Unless previously redeemed (or deemed to be redeemed) in full, the Issuer
will redeem the Class A-1 Notes at their then Stated Amount, together
with all then accrued but unpaid interest, on the Distribution Date
occurring in July 2030 (the "Scheduled Maturity Date").
7.2 Part Redemption of Class A-1 Notes
Subject to Conditions [] 7.3, 7.4 and 7.6, on each Distribution Date
prior to the enforcement of the Charge until the Stated Amount of the
Class A-1 Notes is reduced to zero the Issuer must :
(a) pay, in accordance with the directions of the Manager, the A$
Class A-1 Principal Amount (if any) in relation to that
Distribution Date to the Currency Swap Providers in accordance
with the Class A-1 Currency Swaps;
(b) direct each Currency Swap Providers (which instruction may be
contained in the relevant Class A-1 Currency Swap) to pay on each
Distribution Date to the Principal Paying Agent in accordance with
the Agency Agreement the US$ Equivalent of the amount of the A$
Class A-1 Principal Amount (such US$ Equivalent of the A$ Class A-
1 Principal Amount being the "Class A-1 Principal Amount")
received by the Currency Swap Provider from the Issuer on that
Distribution Date; and
(c) direct the Principal Paying Agent (which direction may be
contained in the Agency Agreement) to pay Class A-1 Principal
Amount received from the Currency Swap Providers equally amongst
the Class A-1 Notes towards the repayment of the Stated Amount on
the Class A-1 Notes in accordance with, and subject to, these
Conditions and the Agency Agreement. Such a payment of the Stated
Amount on a Class A-1 Note will constitute a redemption of the
Class A-1 Note in part to the extent of such repayment and, upon
such repayment, the obligation of the Issuer with respect to the
Class A-1 Note will be discharged to the extent of such repayment.
"A$ Class A-1 Principal Amount" and "US$ Equivalent" have the same
respective meanings as in the Series Supplement. [[] The method for
calculating these and the other payments ranking in priority to or
equally with the payment of the A$ Class A-1 Principal Amount on a
Distribution Date under the Series Supplement are described in
"Description of Class A-1 Notes - Distribution of the Available Principal
Amount, - Allocation of Principal to Class A Notes and Class B Notes and
- The Currency Swap - Principal Payments of this prospectus.]
7.3 Call Option
The Issuer will, subject to the other provisions of this Condition 7 and
prior to the enforcement of the Charge, when directed by the Manager (at
the Manager's option), redeem all, but not some only, of the Securities
at their then Invested Amount, subject to the following, together with
all accrued but unpaid interest in respect of the Securities to (but
excluding) the date of redemption, on any Distribution Date falling on or
after the earlier of:
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(a) the date on which the aggregate Mortgage Loan Principal (as
defined in the Series Supplement) expressed as a percentage of the
aggregate Mortgage Loan Principal at the beginning of business
(Sydney time) on [[]] falls below 10%; and
(b) the Distribution Date falling in [[]] (the "Call Date").
Notwithstanding the foregoing, the Issuer may redeem the Securities at
their Stated Amount, instead of at their Invested Amount, together with
accrued but unpaid interest in respect of the Securities to (but
excluding) the date of redemption, if so approved by an Extraordinary
Resolution (as defined in Condition [] 9.1) of the Securityholders
together.
The Manager will not direct the Issuer to, and the Issuer will not, so
redeem the Securities on such a Distribution Date unless the Issuer is in
a position on the Distribution Date to repay in respect of the Securities
their then Invested Amount or Stated Amount, as required, together with
all accrued but unpaid interest to (but excluding) the date of redemption
and to discharge all its liabilities in respect of amounts which are
required under the Security Trust Deed to be paid in priority to or
equally with the Securities of all classes if the Charge were enforced.
The Issuer will give not more than 60 nor less than 45 days' notice
(which will be irrevocable) of the Distribution Date on which a proposed
redemption under this Condition 7.3 will occur to the Seller, the Class
A-1 Note Trustee, the Principal Paying Agent, the Agent Bank and to the
Class A-1 Noteholders in accordance with Condition 11.1.
7.4 Redemption for Taxation or Other Reasons
If the Manager satisfies the Issuer and the Class A-1 Note Trustee
immediately prior to giving the notice referred to below that by virtue
of a change in law of the Commonwealth of Australia or any of its
political subdivisions or any of its authorities or any other
jurisdiction to which the Issuer becomes subject (or the application or
official interpretation thereof) (a "Relevant Jurisdiction") from that in
effect on the Closing Date, either:
(a) on the next Distribution Date the Issuer will be required to
deduct or withhold from any payment of principal or interest in
respect of the Class A-1 Notes or any other class of the
Securities 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 a
Relevant Jurisdiction; or
(b) the total amount payable in respect of interest in relation to any
of the Mortgage Loans (as defined in the Series Supplement) for a
Collection Period ceases to be receivable (whether or not actually
received) by the Issuer during such Collection Period by reason of
any present or future taxes, duties, assessments or governmental
charges of whatever nature imposed, levied, collected, withheld or
assessed by a Relevant Jurisdiction,
and, in each case, such obligation cannot be avoided by the Issuer taking
reasonable measures available to it, the Issuer must, when so directed by
the Manager (at the
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Manager's option), redeem all, but not some only, of the Securities on
any subsequent Distribution Date at their then Invested Amount, subject
to the following, together with accrued but unpaid interest in respect of
the Securities to (but excluding) the date of redemption. Notwithstanding
the foregoing, the Issuer may redeem the Securities at their Stated
Amount, instead of at their Invested Amount, together with accrued but
unpaid interest in respect of the Securities to (but excluding) the date
of redemption, if so approved by an Extraordinary Resolution (as defined
in Condition [] 9.1) of the Securityholders together.
The Manager will not direct the Issuer to, and the Issuer will not, so
redeem the Securities unless the Issuer is in a position on such
Distribution Date to repay in respect of the Securities their then
Invested Amount or Stated Amount, as required, together with all accrued
but unpaid interest to (but excluding) the date of redemption and to
discharge all its liabilities in respect of amounts which are required
under the Security Trust Deed to be paid in priority to or equally with
the Securities of all classes if the Charge were enforced.
The Issuer will give not more than 60 nor less than 45 days' notice
(which will be irrevocable) of the Distribution Date on which a proposed
redemption under this Condition [] 7.4 will occur to the Class A-1 Note
Trustee, the Seller, the Principal Paying Agent, the Class A-1 Note
Registrar, the Agent Bank and the Class A-1 Noteholders in accordance
with Condition [] 11.1.
If an event referred to in paragraph (a) of this Condition 7.4 occurs in
respect of only the Class A-1 Notes (and not any other Securities) and as
a result thereof the Issuer gives notice in accordance with this
Condition 7.4 that it proposes to redeem all of the Securities on the
Distribution Date referred to in that notice, the Class A-1 Noteholders
may by a Special Majority (as defined in Condition 10.3) in accordance
with the Class A-1 Note Trust Deed elect that they do not require the
Issuer to redeem the Class A-1 Notes. If the Class A-1 Noteholders make
such an election they (or the Class A-1 Note Trustee on their behalf)
must notify the Issuer and the Manager not less than 21 days before the
proposed Distribution Date for the redemption of the Class A-1 Notes.
Upon receipt of such a notice, the Issuer must not so redeem the
Securities.
7.5 Certification
For the purpose of any redemption made under Condition [] 7.3 or 7.4, the
Issuer and the Class A-1 Note Trustee may rely on any certificate of an
Authorised Officer (as defined in the Master Trust Deed) of the Manager
that the Issuer will be in a position to repay in respect of the
Securities their then Invested Amount or Stated Amount, as applicable,
together with all accrued but unpaid interest to (but excluding) the date
of redemption and to discharge all its liabilities in respect of amounts
required under the Security Trust Deed to be paid in priority to or
equally with the Securities if the Charge were enforced.
7.6 Redemption on Final Payment
Upon a final distribution being made in respect of the Class A-1 Notes
under clause []26.12 of the Series Supplement or clause []13.1 of the
Security Trust Deed, the Class
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A-1 Notes will thereupon be deemed to be redeemed and discharged in full
and any obligation to pay any accrued but then unpaid Class A-1 Interest
Amount or any Class A-1 Unpaid Interest Amount or any then unpaid
Invested Amount, Stated Amount or other amounts in relation to the Class
A-1 Notes will be extinguished in full.
[[] For a description of the circumstances in which a final distribution
will be made in respect of the Class A-1 Notes see "Description of the
Class A-1 Notes - Termination of the Trust" and "Description of the
Transaction Documents -The Security Trust Deed" of this prospectus.]
7.7 Cancellation
All Class A-1 Notes redeemed in full (or deemed to be redeemed in full)
pursuant to the above Conditions will be cancelled and may not be resold
or reissued.
7.8 No Payment in excess of Stated Amount
Subject to Conditions []7.3 and 7.4, no amount of principal will be
repaid in respect of a Class A-1 Note in excess of the Stated Amount of
the Class A-1 Note.
7.9 Application of Principal Charge-offs
If on a Determination Date (as hereinafter defined) any Principal Charge-
off is allocated to the Class A-1 Notes in accordance with the Series
Supplement, it will reduce the Stated Amount of the Class A-1 Notes
(equally and rateably according to their Stated Amount) by an amount
equal to the US$ Equivalent of the amount so allocated until the Stated
Amount of the Class A-1 Notes is reduced to zero. A reduction in the
Stated Amount of a Class A-1 Note in accordance with the foregoing will
take effect on the next Distribution Date.
"Determination Date" and "Principal Charge-off" have the same respective
meanings as in the Series Supplement. [[] These expressions, the method
of calculating a Principal Charge-off and the application of a Principal
Charge-off amongst the Securities (and others) are explained in
"Description of the Class A-1 Notes - Key Dates and Periods and -
Principal Charge-offs" of this prospectus.]
7.10 Principal Charge-offs Reimbursement
If on a Determination Date any Principal Charge-off Reimbursement is
allocated to the Class A-1 Notes in accordance with the Series
Supplement, it will reduce the Unreimbursed Principal Charge-offs of the
Class A-1 Notes (rateably according to their amount of Unreimbursed
Principal Charge-offs) by an amount equal to the US$ Equivalent of the
amount so allocated until the Unreimbursed Principal Charge-offs in
respect of the Class A-1 Notes are reduced to zero. A reduction in the
Unreimbursed Principal Charge-offs in respect of the Class A-1 Notes in
accordance with the foregoing, and the resultant increase in the Stated
Amount of the Class A-1 Notes, will take effect on the next Distribution
Date.
"Principal Charge-off Reimbursement" has the same meaning as in the
Series
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Supplement. [[] This expression, the method of calculating a Principal
Charge-off Reimbursement and the allocation of a Principal Charge-off
Reimbursement amongst the Securities (and others) is explained in
"Description of the Class A-1 Notes - Principal Charge-offs" of this
prospectus.]
"Unreimbursed Principal Charge-offs" in relation to a Class A-1 Note at
any time means the aggregate of the US$ Equivalent of the Principal
Charge-offs up to and including that time allocated to the Class A-1 Note
in accordance with Condition [] 7.9 less the aggregate of the US$
Equivalent of the Principal Charge-off Reimbursements prior to that time
allocated to the Class A-1 Note in accordance with this Condition []
7.10.
7.11 Calculation of Class A-1 Principal Amounts, Stated Amounts and other
amounts
(a) No later than two Business Days prior to each Distribution Date,
the Manager will determine: (i) the amount of any Class A-1
Principal Amount payable in respect of each Class A-1 Note on the
Distribution Date; (ii) the Stated Amount and Invested Amount of
each Class A-1 Note as at the first day of the Accrual Period
commencing on the Distribution Date (after deducting any Class A-1
Principal Amounts due to be paid in respect of such Class A-1 Note
on that Distribution Date and after making any other adjustments
to the Stated Amount or the Invested Amount (as the case may be)
of the Class A-1 Note in accordance with these Conditions on or
with effect from that Distribution Date); (iii) the Class A-1 Note
Factor (as defined below) as at that Distribution Date; and (iv)
the amount of the Class A-1 Interest Payment to be made on the
Distribution Date applicable to each Class A-1 Note.
(b) The Manager will notify the Issuer, the Class A-1 Note Trustee,
the Principal Paying Agent, the Agent Bank, the Class A-1 Note
Registrar and the London Stock Exchange (for so long as the Class
A-1 Notes are listed on the Official List of the London Stock
Exchange) as soon as practical (and in any event by not later than
two Business Days prior to the Distribution Date or on such
earlier date as the London Stock Exchange may require (for so long
as the Class A-1 Notes are listed on the Official List of the
London Stock Exchange)) of each determination of an amount or
percentage referred to in Condition [] 7.11(a) and will cause
details of each of those determinations to be published in
accordance with Condition [] 11.2 as soon as practical after that
notification. If no Class A-1 Principal Amount is due to be paid
on the Class A-1 Notes on any Distribution Date the Manager will
cause a notice to be given in accordance with Condition [] 11.2 as
soon as practicable (and in any event by no later than the
relevant Distribution Date).
(c) If the Manager does not at any time for any reason determine a
Class A-1 Principal Amount, the Invested Amount or the Stated
Amount applicable to the Class A-1 Notes in accordance with this
Condition, the Class A-1 Principal Amount, the Invested Amount and
the Stated Amount will be determined by the Agent Bank (or,
failing the Agent Bank, the Class A-1 Note Trustee) in accordance
with this Condition (but based on the information in its
possession) and each such determination will be deemed to have
been made by the Manager.
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"Class A-1 Note Factor" at a given time means the percentage calculated
as follows:
A
CA1NF = ---
B
where:
CA1NF = the Class A-1 Note Factor;
A = the aggregate Invested Amount of the Class A-1 Notes on the last day
of the just ended Accrual Period; and
B = the aggregate Initial Invested Amount of the Class A-1 Notes.
8. Payments
8.1 Method of Payment
Any instalment on account of interest or principal payable on any Class
A-1 Note which is punctually paid or duly provided for by or on behalf of
or at the direction of the Issuer to the Principal Paying Agent on the
applicable Distribution Date shall be paid to the person in whose name
such Class A-1 Note is registered on the relevant Record Date (as defined
below), by wire transfer in immediately available funds to the account
designated by such person or, if such person so requests in writing, by
cheque mailed first-class, postage prepaid, to such person's address as
it appears on the Class A-1 Note Register on such Record Date.
"Record Date" in relation to a Distribution Date or any other date for
any payment to be made in respect of a Class A-1 Note means the day which
is the last day of the prior calendar month.
8.2 Surrender on Final Payment
Prior to a final distribution being made in respect of the Class A-1
Notes under clause []26.12 of the Series Supplement or clause []13.1 of
the Security Trust Deed the Class A-1 Note Trustee must notify the
persons in whose names the Class A-1 Notes are registered on the relevant
Record Date of the date upon which the Class A-1 Note Trustee expects
that final distribution to be made and specify if that such final
distribution will be payable only upon surrender of the relevant Class A-
1 Note to a Paying Agent at its specified office. No such final
distribution will be made other than upon the surrender of the relevant
Class A-1 Notes and none of the Issuer, the Class A-1 Note Trustee, the
Security Trustee or any Paying Agent will be liable to pay any additional
amount to any Class A-1 Noteholder as a result of any delay in payment
due to a Class A-1 Note not having been surrendered in accordance with
this Condition 8.2.
[[] For a description of the circumstances in which a final distribution
will be made in respect of the Class A-1 Notes see "Description of the
Class A-1 Notes - Termination
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of the Trust" and "Description of the Transaction Documents -The Security
Trust Deed" of this prospectus.]
8.3 Paying Agents
The initial Paying Agents and their respective specified offices are set
out at the end of these Conditions.
The Issuer, at the direction of the Manager, may with the prior written
approval of the Class A-1 Note Trustee terminate the appointment of the
Principal Paying Agent and appoint additional or other Paying Agents,
provided that it will at all times maintain a Paying Agent having a
specified office in London and 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 []
11.1.
8.4 Taxation
All payments in respect of the Class A-1 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 any applicable law to make such a withholding
or deduction. In that event the Issuer or that Paying Agent (as the case
may be) will, after making such withholding or deduction, account to the
relevant authorities for the amount so required to be withheld or
deducted. Neither the Issuer nor any Paying Agent nor the Class A-1 Note
Trustee will be obliged to make any additional payments in respect of the
relevant Class A-1 Notes in relation to that withholding or deduction.
Immediately after becoming aware that such a withholding or deduction is
or will be required, the Issuer will notify the Class A-1 Note Trustee,
the Principal Paying Agent and the Class A-1 Noteholders in accordance
with Condition [] 11.1, thereof.
8.5 Prescription
A Class A-1 Note will become void in its entirety unless surrendered for
payment within a period of 10 years from the Relevant Date in respect of
any payment thereon the effect of which would be to reduce the Stated
Amount of that Class A-1 Note to zero. After the date on which a Class
A-1 Note becomes void in its entirety, no claim can be made in respect of
it.
"Relevant Date" in respect of a Class A-1 Note means the date on which a
payment in respect thereof first becomes due or (if the full amount of
the moneys payable in respect of the Class A-1 Notes due on or before
that date has not been duly received by the Principal Paying Agent or the
Class A-1 Note Trustee on or prior to such date) the date on which, the
full amount of such moneys having been so received and notice to that
effect is duly given to the Class A-1 Noteholders in accordance with
Condition [] 11.1.
8.6 Notify Late Payments
In the event of the unconditional payment to the Principal Paying Agent
or the Class A-1 Note Trustee of any sum due in respect of the Class A-1
Notes or any of them being
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made after the due date for payment thereof, the Issuer will forthwith
give or procure to be given notice to the Class A-1 Noteholders in
accordance with Condition [] 11.1 that such payment has been made.
8.7 Rounding of Payments
All payments in respect of the Class A-1 Notes will be rounded down to
the nearest cent.
9. Enforcement following occurrence of Event of Default
9.1 Enforcement
The Security Trust Deed provides that at any time after the Security
Trustee becomes actually aware of the occurrence of an Event of Default,
the Security Trustee will (subject to Condition [] 10.4 and subject to
being appropriately indemnified), if so directed by an Extraordinary
Resolution of the Voting Secured Creditors, declare the Securities
immediately due and payable (in which case, subject to Condition 12, the
Stated Amount of, and all accrued but unpaid interest in relation to, the
Class A-1 Notes will become immediately due and payable) and enforce the
Charge.
Subject to being indemnified in accordance with the Security Trust Deed
and to the provisions of Condition [] 9.2, the Security Trustee will take
all action necessary to give effect to any direction in accordance with
the foregoing and will comply with all such directions.
"Event of Default", "Extraordinary Resolution" and "Voting Secured
Creditors" have the same respective meanings as in the Security Trust
Deed. [[] For a description of these expressions, see "Description of the
Transaction Documents - The Security Trust Deed" and "Glossary" of this
prospectus.]
9.2 Security Trustee May Enforce Charge Without Direction
After the Security Trustee becomes actually aware of the occurrence of an
Event of Default, provided that it has been indemnified to its
satisfaction in accordance with the Security Trust Deed, the Security
Trustee must enforce the Security Trust Deed without an Extraordinary
Resolution of the Voting Secured Creditors if in its opinion, the delay
required to obtain the consent of the Voting Secured Creditors would be
prejudicial to the interests of the Secured Creditors as a class.
9.3 Priority of Payments from Proceeds from the enforcement of the Charge
Following the enforcement of the Charge, all moneys received in
connection with the Security Trust Deed by the Security Trustee or by any
receiver appointed in relation to the Charged Property pursuant to the
provisions of the Security Trust Deed are to be applied, subject to the
Security Trust Deed, in accordance with the order of priority contained
in the Security Trust Deed [[] For a description of the order of priority
contained in the Security Trust Deed and the payment of amounts that rank
in priority to or equally with the Class A-1 Notes, see "Description of
the Transaction Documents
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- The Security Trust Deed - Priorities under the Security Trust Deed" of
this prospectus.]
9.4 Security Trustee and Class A-1 Note Trustee Not Liable for Loss on
enforcement
Except in the case of fraud, negligence or wilful default (in the case of
the Security Trustee) and, subject to the mandatory provisions of the
Trust Indenture Act, fraud, negligence (except as specifically provided
in the Trust Indenture Act), wilful default or breach of trust (in the
case of the Class A-1 Note Trustee), neither the Class A-1 Note Trustee
nor the Security Trustee is liable for any decline in the value, nor any
loss realised upon any sale or other disposition made under the Security
Trust Deed of any Charged 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-1 Notes or relating in any way to the Charged Property.
Without limitation, neither the Class A-1 Note Trustee nor the Security
Trustee will 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 based on advice received by it in accordance
with the applicable requirements of the Class A-1 Note Trust Deed (and
the Trust Indenture Act) or the Security Trust Deed, as the case may be.
"Trust Indenture Act" means the Trust Indenture Act 1939 of the United
States of America as in force at the date of the Class A-1 Note Trust
Deed.
9.5 Directions from Class A-1 Noteholders to Class A-1 Note Trustee following
Event of Default
If an Event of Default or Potential Event of Default has occurred and is
known to the Class A-1 Note Trustee, the Class A-1 Note Trustee must: (a)
notify each Class A-1 Noteholder of the Event of Default or Potential
Event of Default, as the case may be, within 10 days (or such shorter
period as may be required by the rules of the London Stock Exchange, if
the Class A-1 Notes are listed on the London Stock Exchange, or the rules
of any other stock exchange on which the Class A-1 Notes are listed)
after becoming aware of the Event of Default or Potential Event of
Default, provided that except in the case of a default in payment of
principal or interest on any Class A-1 Note, the Class A-1 Note Trustee
may withhold such notice if and so long as the board of directors, the
executive committee or a trust committee of its directors and/or its
authorised officers under the Class A-1 Note Trust Deed in good faith
determine that withholding the notice is in the interest of Class A-1
Noteholders; (b) if a meeting of Voting Secured Creditors is to be held
under the Security Trust Deed, determine whether it proposes to seek
directions from Class A-1 Noteholders as to how to vote at that meeting
and, if so, whether it proposes to instruct the Security Trustee to delay
the holding of that meeting while it obtains such directions from the
Class A-1 Noteholders; and (c) vote at any meeting of Voting Secured
Creditors held under the Security Trust Deed in accordance, where
applicable, with the directions of the Class A-1 Noteholders (whether or
not solicited and whether or not all Class A-1 Noteholders have provided
such directions) and otherwise in its absolute discretion. In acting in
accordance with the directions of Class A-1 Noteholders the Class A-1
Note Trustee must exercise its votes for or against any proposal to be
put to a meeting of Voting Secured Creditors under the Security Trust
Deed in the same proportion as that of the
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aggregate Invested Amounts of the Class A-1 Notes held by Class A-1
Noteholders who have directed the Class A-1 Note Trustee to vote for or
against such a proposal.
If any of the Class A-1 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-1 Notes, the Class A-1 Note Trustee must not vote at a meeting of
Voting Secured Creditors under the Security Trust Deed, or otherwise
direct the Security Trustee, to dispose of the Charged Property unless:
(a) a sufficient amount would be realised to discharge in full all
amounts owing to the Class A-1 Noteholders in respect of the Class A-1
Notes and any other amounts owing by the Issuer to any other person
ranking in priority to or with the Class A-1 Notes; (b) the Class A-1
Note Trustee is of the opinion, reached after considering at any time and
from time to time the advice of an investment bank or other financial
adviser selected by the Class A-1 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 (a); or (c) the
Class A-1 Note Trustee is so directed by a Special Majority (as defined
in Condition 10.3) of Class A-1 Noteholders.
Subject to the mandatory provisions of the Trust Indenture Act and
provisions in the Class A-1 Note Trust Deed relating to the deemed
receipt of notices, the Class A-1 Note Trustee will only be considered to
have knowledge or awareness of, or notice of, an Event of Default or
Potential Event of Default by virtue of the officers of the Class A-1
Note Trustee (or any related body corporate of the Class A-1 Note
Trustee) which have the day to day responsibility for the administration
or management of the Class A-1 Note Trustee's (or a related body
corporate of the Class A-1 Note Trustee's) obligations in relation to the
Series Trust, the trust created under the Class A-1 Note Trust Deed or
the Class A-1 Note Trust Deed, having actual knowledge, actual awareness
or actual notice of the occurrence of the events or circumstances
constituting an Event of Default or Potential Event of Default, as the
case may be, or grounds or reason to believe that such events or
circumstances have occurred.
"Potential Event of Default" means an event which, with the giving of
notice or the lapse of time or both, would constitute an Event of
Default.
9.6 Only Security Trustee May Enforce Charge
Only the Security Trustee may enforce the Charge and neither the Class A-
1 Note Trustee nor any Class A-1 Noteholder (nor any other Secured
Creditor) 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-1 Note Trust Deed, the Class A-1 Notes or any other applicable
Transaction Document, except as provided for in the Security Trust Deed,
the Class A-1 Note Trust Deed, the Master Trust Deed and the Series
Supplement. The Security Trustee is not required to act in relation to
the enforcement of the Charge unless its liability is limited in a manner
reasonably satisfactory to it or, if required by the Security Trustee (in
its absolute discretion), it is adequately indemnified from the Charged
Property or the Security Trustee receives from the Voting Secured
Creditors an indemnity in a form reasonably satisfactory to the Security
Trustee (which may be by way of an Extraordinary Resolution of the Voting
Secured Creditors) and is put in funds to the extent necessary.
9.7 Exercise of Class A-1 Noteholder Rights by Class A-1 Note Trustee
The rights, remedies and discretions of the Class A-1 Noteholders under
the Security Trust Deed including all rights to vote or to give an
instruction or consent can only be
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exercised by the Class A-1 Note Trustee on behalf of the Class A-1
Noteholders in accordance with the Security Trust Deed. The Security
Trustee may rely on any instructions or directions given to it by the
Class A-1 Note Trustee as being given on behalf of the Class A-1
Noteholders from time to time and need not inquire whether any such
instructions or directions are in accordance with the Class A-1 Note
Trust Deed, whether the Class A-1 Note Trustee or the Class A-1
Noteholders from time to time have complied with any requirements under
the Class A-1 Note Trust Deed or as to the reasonableness or otherwise of
the Class A-1 Note Trustee.
10. Meetings of Voting Secured Creditors, directions of Class A-1
Noteholders, modifications, consents, waivers and indemnities
10.1 Meetings of Voting Secured Creditors
The Security Trust Deed contains provisions for convening meetings of the
Voting Secured Creditors to, among other things, enable the Voting
Secured Creditors 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 Secured Creditors, following the occurrence of an Event
of Default, to direct the Security Trustee to declare the Securities
immediately due and payable and/or to enforce the Charge.
10.2 Directions of Class A-1 Noteholders
Under the Class A-1 Note Trust Deed the Class A-1 Note Trustee may seek
directions from the Class A-1 Noteholders from time to time including
following the occurrence of an Event of Default. The Class A-1 Note
Trustee will not be responsible for acting in good faith upon a direction
given, or purporting to be given, by Class A-1 Noteholders holding Class
A-1 Notes with an Invested Amount of greater than 50% of the aggregate
Invested Amount of all the Class A-1 Notes.
If the Class A-1 Note Trustee is entitled under the Master Trust Deed or
the Security Trust Deed to vote at any meeting on behalf of Class A-1
Noteholders the Class A-1 Note Trustee must vote in accordance with the
directions of the Class A-1 Noteholders and otherwise in its absolute
discretion. In acting in accordance with the directions of Class A-1
Noteholders the Class A-1 Note Trustee must exercise its votes for or
against any proposal to be put to a meeting in the same proportion as
that of the aggregate Invested Amounts of the Class A-1 Notes held by
Class A-1 Noteholders who have directed the Class A-1 Note Trustee to
vote for or against that proposal.
For the purposes of seeking any consent, direction or authorisation from
Class A-1 Noteholders the Class A-1 Note Trustee may by notice to the
Class A-1 Noteholders specify a date, not earlier than the date of the
notice, upon which the persons who are the Class A-1 Noteholders and the
Invested Amount of the Class A-1 Notes held by them will be determined
based upon the details recorded in the Class A-1 Note Register as at
5.30pm on that date.
10.3 Amendments to Class A-1 Note Trust Deed and the Class A-1 Notes
Pursuant, and subject, to the Class A-1 Note Trust Deed and subject to
any approval required by law, the Class A-1 Note Trustee, the Manager and
the Issuer may together agree, without the consent or sanction of any
Class A-1 Noteholder, by way of supplemental deed to alter, add to or
revoke (each a "modification") any provision of the Class A-1 Note Trust
Deed or the Class A-1 Notes (including these Conditions) so long as such
modification is not a Payment Modification (as defined below) and such
modification in the opinion of the Class A-1 Note Trustee:
(a) is necessary or expedient to comply with the provisions of any
statute or regulation
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or with the requirements of any governmental agency;
(b) is made to correct a manifest error or ambiguity or is of a
formal, technical or administrative nature only;
(c) is appropriate or expedient as a consequence of an amendment to
any statute or regulation or altered requirements of any
governmental agency or any decision of any court (including,
without limitation, a modification which is in the opinion of the
Class A-1 Note Trustee 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 or any decision of any court, 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 Series Trust or
the trust constituted under the Class A-1 Note Trust Deed); or
(d) and the Issuer is otherwise desirable for any reason and:
(i) is not in the opinion of the Class A-1 Note Trustee likely,
upon coming into effect, to be materially prejudicial to
the interests of Class A-1 Noteholders; or
(ii) if it is in the opinion of the Class A-1 Note Trustee
likely, upon coming into effect, to be materially
prejudicial to the interests of Class A-1 Noteholders the
consent of a Special Majority (as hereinafter defined) of
Class A-1 Noteholders is obtained.
For the purpose of determining whether a Special Majority of Class A-1
Noteholders has consented to a modification, Class A-1 Notes which are
beneficially owned by the Issuer or the Manager or by any person directly
or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer or the Manager, will be disregarded. The
Manager must give the Rating Agencies 5 Business Days prior notice of any
such modification. The Class A-1 Note Trustee will be entitled to assume
that any proposed modification, other than a Payment Modification, will
not be materially prejudicial to the interest of Class A-1 Noteholders if
each of the Rating Agencies confirms in writing that if the modification
is effected this will not lead to a reduction, qualification or
withdrawal of the then rating given to the Class A-1 Notes by that Rating
Agency.
Pursuant to the Class A-1 Note Trust Deed, the Class A-1 Note Trustee may
concur with the Issuer and the Manager in making or effecting any Payment
Modification if and only if the consent has first been obtained of each
Class A-1 Noteholder to such Payment Modification.
Any supplemental deed that effects any such modifications must conform to
the requirements of the Trust Indenture Act and copies of any such
supplemental deed must be distributed by the Issuer to the Class A-1
Noteholders in accordance with Condition [] 11.1 as soon as reasonably
practicable after the modifications have been made.
"Payment Modification" means any alteration, addition or revocation of
any provision of the Class A-1 Note Trust Deed or the Class A-1 Notes
(including the Conditions) which modifies: (a) the amount, timing,
place, currency or manner of payment of principal or interest in respect
of the Class A-1 Notes including, without limitation, any modification to
the Stated Amount, Invested Amount, Interest Rate or Scheduled Maturity
Date in respect of the Class A-1 Notes or to Conditions []6.9 and 7.2,
clause []10 of the Series Supplement or clause []13 of the Security Trust
Deed or which would impair the rights of Class A-1 Noteholders to
institute suit for enforcement of such payment on or after the due date
for such payment; (b) the definition of the term "Special Majority",
clause []21.4 of the Class A-1 Note Trust Deed or the circumstances in
which the consent or direction of a Special Majority of Class A-1
Noteholders is required; (c) clause []6.1(a) of the Security Trust Deed;
or (d) the requirements for altering, adding to or revoking any provision
of the Class A-1 Note Trust Deed or the Class A-1 Notes (including the
Conditions).
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"Rating Agency" has the same meaning as in the Series Supplement.
"Special Majority" in relation to the Class A-1 Noteholders means Class
A-1 Noteholders holding Class A-1 Notes with an aggregate Invested Amount
of no less than 75% of the aggregate Invested Amount of all the Class A-1
Notes.
[[] For a further description of the modifications which constitute a
Payment Modification see "Description of the Class A-1 Notes - Amendments
to Class A-1 Notes and Class A-1 Note Trust Deed" of this prospectus]
10.4 Waivers etc
The Security Trustee may, in accordance with the Security Trust Deed and
without the consent or sanction of the Voting Secured Creditors (but not
in contravention of an Extraordinary Resolution of the Voting Secured
Creditors), waive or authorise any breach or proposed breach or determine
that any event that would otherwise be an Event of Default will not be
treated as such if and in so far as in its opinion the interests of the
Secured Creditors will not be materially prejudiced. Any such waiver,
authorisation or determination shall be binding on the Secured Creditors
and, if, but only if, the Security Trustee so requires, any such waiver,
authorisation or determination will be notified to the Secured Creditors
by the Manager in accordance with the Security Trust Deed.
The Class A-1 Note Trustee may, and if directed to do so by a Majority of
Class A1 Noteholders must, on such terms and conditions as it may deem
reasonable, without the consent of any of the Class A-1 Noteholders, and
without prejudice to its rights in respect of any subsequent breach,
agree to any waiver or authorisation of any breach or proposed breach of
any of the terms and conditions of the Transaction Documents by the
Issuer, the Manager or any other person which, unless the Class A-1 Note
Trustee is acting on the direction of a Majority of Class A-1
Noteholders, is not, in the opinion of the Class A-1 Note Trustee,
materially prejudicial to the interests of the Class A-1 Noteholders as a
class. No such waiver, authorisation or determination may be made in
contravention of any prior directions by a Majority (as hereinafter
defined) of the Class A-1 Noteholders. Any such waiver, authorisation or
determination will, if the Class A-1 Note Trustee so requires, be
notified to the Class A-1 Noteholders in accordance with Condition 11.1
by the Issuer as soon as practicable after it is made.
"Majority" in relation to the Class A-1 Noteholders means Class A-1
Noteholders holding Class A-1 Notes with an aggregate Invested Amount of
greater than 50% of the aggregate Invested Amount of all the Class A-1
Notes.
10.5 Indemnification and Exoneration of the Class A-1 Note Trustee and the
Security Trustee
The Class A-1 Note Trust Deed and the Security Trust Deed contain
provisions for the indemnification of the Class A-1 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 Securities unless indemnified
to their satisfaction. Each of the Class A-1 Note Trustee and the
Security Trustee is entitled, subject in the case of the Class A-1 Note
Trustee to the mandatory provisions of the Trust Indenture Act, 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.
Subject to the mandatory provisions of the Trust Indenture Act, the Class
A-1 Note Trustee shall not be responsible
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for any loss, expense or liability occasioned to the Charged Property or
any other property or in respect of all or any of the moneys which may
stand to the credit of the Collections Account (as defined in the Series
Supplement) from time to time however caused (including, without
limitation, where caused by an act or omission of the Security Trustee)
unless that loss is occasioned by the fraud, negligence, wilful default
or breach of trust of the Class A-1 Note Trustee. The Security Trustee is
not, nor is any receiver appointed in relation to the Charged Property
pursuant to the provisions of the Security Trust Deed, liable or
otherwise accountable for any omission, delay or mistake or any loss or
irregularity in or about the exercise, attempted exercise, non-exercise
or purported exercise of any of the powers of the Security Trustee or of
the receiver under the Security Trust Deed except for fraud, negligence
or wilful default.
Except in the case of fraud, negligence (except as specifically provided
in the Trust Indenture Act), wilful default or breach of trust, and
subject to the mandatory provisions of the Trust Indenture Act, the Class
A-1 Note Trustee may act on the opinion or advice of, or information
obtained from, any lawyer, valuer, banker, broker, accountant or other
expert appointed by the Class A-1 Note Trustee, or by a person other than
Class A-1 Note Trustee, where that opinion, advice or information is
addressed to the Class A-1 Note Trustee or by its terms is expressed to
be capable of being relied upon by the Class A-1 Note Trustee. Except as
provided above, the Class A-1 Note Trustee will not be responsible to any
Class A-1 Noteholder, amongst others, for any loss occasioned by so
acting in reliance on such advice. Any such opinion, advice or
information may be sent or obtained by letter, telex or facsimile
transmission and the Class A-1 Note Trustee will not be liable to any
Class A-1 Noteholder, amongst others, for acting on any opinion, advice
or information conforming with any applicable requirements of the Class
A-1 Note Trust Deed or the Trust Indenture Act and purporting to be
conveyed by such means even though it contains some error which is not a
manifest error or is not authentic.
11. Notices
11.1 General
All notices, other than notices given in accordance with the following
paragraph and Condition [] 11.2, to Class A-1 Noteholders will be deemed
given if in writing and mailed, first-class, postage prepaid to each
Class A-1 Noteholder, at his or her address as it appears on the Class A-
1 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-1 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-1 Noteholder will affect the sufficiency of such
notice with respect to other Class A-1 Noteholders, and any notice that
is mailed in the manner herein provided will conclusively be presumed to
have been duly given.
A notice may be waived in writing by the relevant Class A-1 Noteholder,
either before or after the event, and such waiver will be the equivalent
of such notice. Waivers of notice by Class A-1 Noteholders will be filed
with the Class A-1 Note Trustee but such filing will not be a condition
precedent to the validity of any action taken in reliance upon such a
waiver.
Any such notice will 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 is impractical to mail
notice of any event to Class A-1 Noteholders when such notice is required
to be given, then any manner of giving such notice as the Issuer directs
the Class A-1 Note Trustee will be deemed to be a sufficient giving of
such notice.
11.2 Class A-1 Note Information
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Any notice specifying a Distribution Date, a Interest Rate in relation to
the Class A-1 Notes, a Class A-1 Interest Amount, a Class A-1 Principal
Amount (or the absence of a Class A-1 Principal Amount), an Invested
Amount, a Stated Amount, a Class A-1 Note Factor in relation to the Class
A-1 Notes, or any other matter permitted to be given in accordance with
this Condition [] 11.2, will be deemed to have been duly given if the
information contained in the notice appears on the relevant page of the
Reuters Screen or the electronic information system made available to its
subscribers by Bloomberg, L.P. or another similar electronic reporting
service approved by the Class A-1 Note Trustee in writing and notified to
Class A-1 Noteholders pursuant to Condition [] 11.1 (the "Relevant
Screen"). Any such notice will 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 will
be given in accordance with Condition [] 11.1.
11.3 Quarterly Servicing and Other Reports
The Manager must deliver a Quarterly Servicing Report for each Accrual
Period to the Class A-1 Note Trustee, the Principal Paying Agent, the
Issuer and each Class A-1 Noteholder on the Business Day preceding the
Distribution Date on the last day of the Accrual Period in accordance
with Condition 11.1 and, for so long as the Class A-1 Notes are listed on
the Official List of the London Stock Exchange file each Quarterly
Servicing Report with the London Stock Exchange as and when required by
the rules of the London Stock Exchange.
The Issuer and the Manager must, to the extent required by the rules and
regulation of the Securities and Exchange Commission, forward to Class A-
1 Noteholders, and such other persons as are required by the Trust
Indenture Act , such summaries of any information, documents and reports
required to be filed by the Issuer or the Manager in accordance with the
Securities and Exchange Act 1934 of the United States of America or the
rules and regulations of the Securities and Exchange Commission.
"Quarterly Servicing Report" in relation to an Accrual Period and the
Distribution Date at the end of that Accrual Period means a report which
contains the following information:
. the aggregate Invested Amounts and the aggregate Stated Amounts of
each class of Securities on the first day of the Accrual Period;
. the amounts to be applied towards payment of interest and
principal on each class of Securities on the Distribution Date;
. the Available Income Amount (as defined in the Series Supplement)
on the Distribution Date;
. the aggregate of all Seller Advances made during the preceding
Collection Period;
. the Redraw Shortfall (as defined in the Standby Redraw Facility
Agreement) in relation to the preceding Determination Date;
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. the Income Shortfall (as defined in the Series Supplement) in
relation to the preceding Determination Date;
. the Liquidity Facility Advance (as defined in the Series
Supplement) in relation to that Distribution Date and the
Liquidity Facility Principal (as defined in the Series Supplement)
in relation to the preceding Determination Date;
. the Available Principal Amount (as defined in the Series
Supplement) in relation to that Distribution Date;
. the Principal Collections in relation to that Distribution Date;
. the Standby Redraw Facility Advance in relation to that
Distribution Date;
. the Redraw Bond Amount (as defined in the Series Supplement) in
relation to the preceding Determination Date;
. the Principal Charge-Off in relation to the preceding
Determination Date;
. the Other Principal Amounts (as defined in the Series Supplement)
in relation to the preceding Determination Date;
. the Principal Charge-Off Reimbursement in relation to the
preceding Determination Date;
. the Principal Charge-offs allocated to each class of Securities
and the Standby Redraw Facility Principal with effect from that
Distribution Date;
. the Principal Charge-off Reimbursement allocated to each class of
Securities and the Standby Redraw Facility Principal with effect
from that Distribution Date;
. the Class A-1 Note Factor and the Note Factor (as defined below)
for each other class of Securities
. if the Basis Swap (as defined in the Series Supplement) has
terminated, the Threshold Rate (as defined in the Series
Supplement) on the preceding Determination Date;
. the Interest Rate (as defined in the Series Supplement with
respect to the Class A-2 Notes, the Class B Notes and the Redraw
Bonds) applying to each class of Securities for that Accrual
Period;
. scheduled payments of principal and prepayments of principal
received on the Mortgage Loans forming part of the Assets of the
Series Trust during the preceding Collections Period;
. aggregate outstanding principal balance of the Mortgage Loans
forming part of the Assets of the Series Trust being charged a
fixed rate of interest and the aggregate
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outstanding principal balance of the Mortgage Loans forming part
of the Assets of the Series Trust being charged a variable rate of
interest as at opening of business on the preceding Determination
Date;
. delinquency, mortgagee in possession and loss statistics, as
determined by the Manager, with respect to the Mortgage Loans
forming part of the Assets of the Series Trust as at opening of
business on the preceding Determination Date.
"Note Factor" in relation to a class of Securities and a Distribution
Date, means the aggregate of the Invested Amount of the class of
Securities less all principal payments on that class of Securities to be
made on that Distribution Date, divided by the aggregate initial Invested
Amount of that class of Securities.
[[] Further details of the cashflows of the Series Trust and the manner
of determination of the defined terms relevant to those cashflows and set
out in the Quarterly Servicing Report are contained in "Description of
the Class A-1 Notes" of this prospectus.]
11.4 Consents in Writing
All consents and approvals in these Conditions must be given in writing.
12. Limitation of Liability of the Issuer
(a) The Issuer enters into the Transaction Documents, and issues the
Class A-1 Notes, only in its capacity as trustee of the Series
Trust and in no other capacity (except where the Transaction
Documents provide otherwise). A liability arising under or in
connection with the Class A-1 Notes, the Transaction Documents or
the Series Trust is limited to and can be enforced against the
Issuer only to the extent to which it can be satisfied out of the
assets and property of the Series Trust out of which the Issuer is
actually indemnified for the liability. This limitation of the
Issuer's liability applies despite any other provision of the
Transaction Documents (other than paragraph (c) below) 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, the
Class A-1 Notes or the Series Trust.
(b) No person may sue the Issuer in respect of liabilities incurred by
the Issuer in its capacity as trustee of the Series Trust other
than as trustee of the Series Trust or seek the appointment of a
receiver (except under the Security Trust Deed), a liquidator, an
administrator or any similar person to the Issuer or prove in any
liquidation, administration or similar arrangements of or
affecting the Issuer (except in relation to the assets or property
of the Series Trust).
(c) The provisions of this Condition [] 12 will 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 or property of
the Series Trust as a result of the Issuer's fraud, negligence or
wilful default.
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(d) The Relevant Parties are responsible under the Transaction
Documents for performing a variety of obligations relating to the
Series Trust. No act or omission of the Issuer (including any
related failure to satisfy its obligations under the Transaction
Documents or the Class A-1 Notes) will be considered fraud,
negligence or wilful default of the Issuer for the purpose of
paragraph (c) to the extent to which the act or omission was
caused or contributed to by any failure by any Relevant Party or
any other person appointed by the Issuer under any Transaction
Document (other than a person whose acts or omissions the Issuer
is liable for in accordance with any Transaction Document) to
fulfil its obligations relating to the Series Trust or by any
other act or omission of a Relevant Party or any other such
person.
(e) In exercising their powers under the Transaction Documents, each
of the Security Trustee, the Class A-1 Note Trustee and the Class
A-1 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 wilful default of the Issuer for the purpose
of paragraph (c).
(f) The Issuer is not obliged to enter into any commitment or
obligation under these Conditions or any other Transaction
Document unless the Issuer's liability is limited in a manner
which is consistent with this Condition [] 12. The Issuer agrees
and acknowledges that its liability for any commitment or
obligation it has entered into under these Conditions is limited
in a manner which is consistent with this Condition [] 12.
(g) The Issuer is not obliged to enter into any commitment or
obligation contemplated by but not contained in these Conditions
or any other Transaction Document unless the Issuer's liability in
relation to that commitment or obligation is limited in a manner
satisfactory to the Issuer in its absolute discretion.
"Relevant Parties" means each of the Manager, the Seller, the Servicer,
the Agent Bank, each Paying Agent, the Class A-1 Note Trustee and the
Hedge Providers (as those parties, which are not defined in these
Conditions, are defined in the Series Supplement).
The expression "fraud, negligence or wilful default" is to be construed
in accordance with the Security Trust Deed.
[[] A summary of the definition of "wilful default" and further details
of the manner in which the Issuer's liability is limited in relation to
the Class A-1 Notes and the Series Trust are contained in "Description of
the Transaction Documents - The Issuer Trustee" of this prospectus.]
13. Governing Law
The Class A-1 Notes and the Transaction Documents are governed by, and
will be construed in accordance with, the laws of the
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State of New South Wales of the Commonwealth of Australia, except for the
Underwriting Agreement and each credit support annex to the Currency Swap
Agreements which are governed by, and will be construed in accordance
with, New York law. Each of the Issuer and the Manager has in the Class
A-1 Note Trust Deed irrevocably agreed for the benefit of the Class A-1
Note Trustee and the Class A-1 Noteholders that the courts of the State
of New South Wales are to have non-exclusive jurisdiction to settle any
disputes which may arise out of or in connection with the Class A-1 Note
Trust Deed and the Class A-1 Notes.
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Agents
Principal Paying Agent: The Bank of New York, New York Branch
101 Barclay Street, 21W
New York, New York, 10286
Class A-1 Notes Registrar: The Bank of New York, New York Branch
101 Barclay Street, 21W
New York, New York, 10286
or
48th Floor
One Canada Square
London E14 5AL
Agent Bank: The Bank of New York, New York Branch
101 Barclay Street, 21W
New York, New York, 10286
Paying Agent: The Bank of New York, London Branch
48th Floor
One Canada Square
London E14 5AL
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Exhibit 4.5
Draft: 9 March 2000
Series 2000-1G Medallion Trust
Agency Agreement
Date:
Perpetual Trustee Company Limited
Issuer
Securitisation Advisory Services Pty. Limited
Manager
The Bank of New York, New York Branch
Class A-1 Note Trustee
Class A-1 Note Registrar
Principal Paying Agent
Agent Bank
The Bank of New York, London Branch
Paying Agent
CLAYTON UTZ
Lawyers
Levels 27-35
No.1 O'Connell Street
SYDNEY NSW 2000
AUSTRALIA
(C) Copyright Clayton Utz
Liability is limited by the Solicitors Scheme under the Professional Standards
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Clause Page
<S> <C>
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Series Supplement and Master Trust Deed Definitions 3
1.3 Interpretation 3
1.4 Issuer Capacity 5
1.5 Transaction Document 5
1.6 Incorporated Definitions and other Transaction Documents and provisions 5
2. APPOINTMENT OF PAYING AGENTS 5
2.1 Appointment 5
2.2 Several Obligations of Paying Agents 5
3. PAYMENTS 5
3.1 Payment by Issuer 5
3.2 Payments by Paying Agents 6
3.3 Method of Payment for Class A-1 Book-Entry Notes 6
3.4 Method of Payment for Class A-1 Definitive Notes 6
3.5 Non-Payment 6
3.6 Late Payment 6
3.7 Reimbursement 7
3.8 Payment under Currency Swap 7
3.9 Principal Paying Agent holds funds on trust 7
3.10 Principal Paying Agent may deal with funds 7
3.11 No Set-Off 7
3.12 Holders of Class A-1 Notes 7
3.13 Repayment of Moneys 8
3.14 Paying Agents to Record, Notify Payments and Deliver Surrendered Notes 8
4. APPOINTMENT AND DUTIES OF THE AGENT BANK 8
4.1 Appointment 8
4.2 Determinations by Agent Bank 8
4.3 Notification by Agent Bank 9
4.4 Class A-1 Note Trustee to Perform Agent Bank's Function 9
4.5 Documents to Agent Bank 9
5. APPOINTMENT AND DUTIES OF THE CLASS A-1 NOTE REGISTRAR 9
5.1 Class A-1 Note Registrar 9
5.2 Class A-1 Note Register to be Kept 9
5.3 Transfer or Exchange of Class A-1 Notes 10
5.4 Replacement of Lost or Mutilated Class A-1 Notes 10
5.5 Obligations upon Transfer, Exchange or Replacement of Class A-1 Notes 10
5.6 No Charge for Transfer or Exchange 11
5.7 Restricted Period 11
5.8 Cancellation of Class A-1 Notes 11
5.9 Provision of Information 11
5.10 Correctness of Register and Information 11
5.11 Non-recognition of Equitable Interests 12
5.12 Rectification of Class A-1 Note Register 12
</TABLE>
(i)
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Clause Page
<S> <C>
6. CLASS A-1 NOTE TRUSTEE'S REQUIREMENTS REGARDING AGENTS 12
6.1 Following Enforcement of the Charge or issue of Definitive Notes 12
6.2 Good Discharge to Issuer 13
6.3 Change of Authorised Officers 13
7. REDEMPTION OF CLASS A-1 NOTES 13
7.1 Part Redemption of Class A-1 Notes on Distribution Dates 13
7.2 Early Redemption 14
8. GENERAL PAYING AGENT MATTERS 14
8.1 Notices to Class A-1 Noteholders 14
8.2 Copies of Documents for Inspection 14
8.3 Notice of any Withholding or Deduction 14
9. INDEMNITY 15
9.1 Indemnity by Issuer 15
9.2 Indemnity by Agent 15
10. CHANGES IN AGENTS 15
10.1 Appointment and Removal 15
10.2 Resignation 16
10.3 Limitation of Appointment and Termination 16
10.4 Payment of amounts held by the Principal Paying Agent 16
10.5 Records held by Class A-1 Note Registrar 17
10.6 Successor to Principal Paying Agent, Agent Bank, Class A-1 Note
Registrar 17
10.7 Notice to Class A-1 Noteholders 17
10.8 Change in Specified Office 18
11. MISCELLANEOUS DUTIES AND PROTECTION 18
11.1 Agents are agents of the Issuer 18
11.2 Agency 18
11.3 Reliance 18
11.4 Entitled to Deal 18
11.5 Consultation 19
11.6 Duties and Obligations 19
11.7 Income Tax Returns 19
11.8 Representation by each Agent 19
12. FEES AND EXPENSES 19
12.1 Payment of Fee 19
12.2 Payment of Expenses 19
12.3 No Other Fees 19
12.4 Payment of Fees 19
12.5 No Commission 20
12.6 Issuer Personally Liable for Fees 20
12.7 Timing of Payments 20
13. NOTICES 20
13.1 Method of Delivery 20
13.2 Deemed Receipt 20
</TABLE>
(ii)
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Clause Page
<S> <C>
13.3 Communications through Principal Paying Agent 21
14. ISSUER'S LIMITATION OF LIABILITY 21
14.1 Limitation on Issuer's Liability 21
14.2 Claims against Issuer 21
14.3 Breach of Trust 21
14.4 Acts or omissions 21
14.5 No Authority 22
14.6 No obligation 22
15. GENERAL 22
15.1 Waiver 22
15.2 Written Waiver, Consent and Approval 22
15.3 Severability 22
15.4 Survival of Indemnities 22
15.5 Assignments 22
15.6 Successors and Assigns 23
15.7 Moratorium Legislation 23
15.8 Amendments 23
15.9 Governing Law 23
15.10 Jurisdiction 23
15.11 Counterparts 23
15.12 Limitation of Class A-1 Note Trustee's Liability 23
</TABLE>
(iii)
<PAGE>
THIS AGENCY AGREEMENT is made on 2000
BETWEEN PERPETUAL TRUSTEE COMPANY LIMITED, ACN 000 001 007, a company
incorporated in the State of New South Wales and having an office
at Level 3, 39 Hunter Street, Sydney, Australia, in its capacity
as trustee of the Series Trust (as hereinafter defined)
(hereinafter included in the expression the "Issuer")
AND SECURITISATION ADVISORY SERVICES PTY. LIMITED, ACN 064 133 946, a
company incorporated in the State of New South Wales and having
an office at Level 8, 48 Martin Place, Sydney, Australia
(hereinafter included by incorporation in the expression the
"Manager")
AND THE BANK OF NEW YORK, NEW YORK BRANCH a New York banking
corporation acting through its New York branch at 101 Barclay
Street, 21W, New York, New York, 10286 as trustee of the Class A-
1 Trust (as hereinafter defined) (hereinafter included by
incorporation in the expression the "Class A-1 Note Trustee")
AND THE BANK OF NEW YORK, NEW YORK BRANCH a New York banking
corporation acting through its New York branch at 101 Barclay
Street, 21W, New York, New York 10286 (hereinafter included in
the expression the "Class A-1 Note Registrar")
AND THE BANK OF NEW YORK, NEW YORK BRANCH a New York banking
corporation acting through its New York branch at 101 Barclay
Street, 21W, New York, New York 10286 (hereinafter included in
the expression the "Principal Paying Agent")
AND THE BANK OF NEW YORK, NEW YORK BRANCH a New York banking
corporation acting through its New York branch at 101 Barclay
Street, 21W, New York, New York 10286 (hereinafter included in
the expression the "Agent Bank")
AND THE BANK OF NEW YORK, LONDON BRANCH a New York banking
corporation acting through its London branch at 48th Floor, One
Canada Square, London E14 5AL (hereinafter included in the
expression the "Paying Agent").
RECITALS
A. The Issuer, in its capacity as trustee of the Series Trust, proposes to
issue US$[] Class A-1 Mortgage Backed Floating Rate Notes due 12 July 2031
(the "Class A-1 Notes").
B. The Class A-1 Notes will be constituted pursuant to the Class A-1 Note
Trust Deed.
C. The Issuer wishes to appoint The Bank of New York, New York Branch as the
initial Principal Paying Agent, the initial Class A-1 Note Registrar and
the initial Agent Bank in respect of the Class A-1 Notes and The Bank of
New York, New York Branch has accepted these appointments on the terms and
conditions of this Agreement.
D. The Issuer wishes to appoint The Bank of New York, London Branch as an
initial Paying Agent in respect of the Class A-1 Notes and The Bank of New
York, London Branch has accepted that appointment on the terms and
conditions of this Agreement.
THE PARTIES AGREE as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement, unless the contrary intention appears:
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"Agent" means a several reference to each Paying Agent, the Class A-1 Note
Registrar, and the Agent Bank.
"Agent Bank" means initially The Bank of New York, New York Branch or, if
The Bank of New York, New York Branch resigns or its appointment is
terminated as the Issuer's reference agent in respect of the Class A-1
Notes, the person from time to time appointed in its place to perform the
functions of such reference agent under this Agreement.
"Authorised Officer" in relation to:
(a) the Issuer and the Manager, has the same meaning as in the Master
Trust Deed;
(b) the Class A-1 Note Trustee, and the Class A-1 Note Registrar, the
Agent Bank and the Principal Paying Agent while these are the same
person as the Class A-1 Note Trustee, has the same meaning as the term
"Authorised Officer" in relation to the Class A-1 Note Trustee has in
the Class A-1 Note Trust Deed;
(c) The Bank of New York, London Branch as Paying Agent means a
responsible officer of the Corporate Trust Administration department
of the Paying Agent; and
(d) any other Agent, means the persons appointed from time to time by that
Agent to act as its Authorised Officers for the purposes of this
Agreement as certified in writing by 2 directors or a director and
secretary of that Agent to the other parties to this Agreement.
"Class A-1 Book Entry Note" has the same meaning as in the Class A-1 Note
Trust Deed.
"Class A-1 Definitive Note" has the same meaning as in the Class A-1 Note
Trust Deed.
"Class A-1 Noteholders" has the same meaning as in the Class A-1 Note Trust
Deed.
"Class A-1 Note Register" means the register established in accordance with
clause 5.2.
"Class A-1 Note Registrar" means The Bank of New York, New York Branch or
if The Bank of New York, New York Branch resigns or its appointment is
terminated as note registrar in respect of the Class A-1 Notes, the person
from time to time appointed in its place to perform the functions of such
note registrar under this Agreement.
"Class A-1 Trust" means the trust of that name constituted by the Class A-1
Note Trust Deed.
"Issuer" means initially Perpetual Trustee Company Limited or, if Perpetual
Trustee Company Limited retires or is removed as trustee of the Series
Trust under the Master Trust Deed, the then Substitute Trustee and includes
the Manager when acting as the trustee of the Series Trust in accordance
with the Master Trust Deed.
"Master Trust Deed" means the Master Trust Deed dated 8 October 1997
between the Issuer and the Manager, as amended from time to time.
"Paying Agent" means The Bank of New York, London Branch until it resigns
or its appointment is terminated as paying agent and each other person from
time to time appointed hereunder to perform the functions of a paying agent
and, except where the context otherwise requires, includes the Principal
Paying Agent.
"Principal Paying Agent" means The Bank of New York, New York Branch, or,
if The Bank of New York, New York Branch resigns or its appointment is
terminated as principal paying agent, the person from time to time
appointed in its place to perform the functions of the principal paying
agent under this Agreement.
"Quarterly Servicing Report" has the same meaning as in the Class A-1 Note
Conditions.
"Series Supplement" means a Series Supplement dated [] between
Commonwealth Bank
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<PAGE>
of Australia, ACN 123 123 124 (as Seller and initial Servicer), the Manager
and the Issuer.
"Series Trust" means the trust known as the Series 2000-1G Medallion Trust
established pursuant to the Master Trust Deed and the Series Supplement.
"Specified Office" in relation to:
(a) the Class A-1 Note Registrar, means the offices of the Class A-1 Note
Registrar as specified in the Class A-1 Note Conditions or otherwise
under this Agreement as the offices of the Class A-1 Note Registrar
where surrenders of Class A-1 Notes for transfer, exchange,
replacement or redemption will occur and where, in respect of one of
such offices, the Class A-1 Note Register will be kept, as varied from
time to time in accordance with this Agreement;
(b) a Paying Agent, means the office of the Paying Agent specified in the
Class A-1 Note Conditions or otherwise under this Agreement as the
office at which payments in respect of the Class A-1 Notes will be
made, as varied from time to time in accordance with this Agreement;
and
(c) the Agent Bank, means the office of the Agent Bank specified in the
Class A-1 Note Conditions or otherwise under this Agreement as the
office at which the Agent Bank will carry out its duties under this
Agreement, as varied from time to time in accordance with this
Agreement.
"STAMP" means the Securities Transfer Agents Medallion Program.
"Standby Swap Provider" means each Standby Swap Provider from time to time
as defined in the Currency Swap Agreements.
"UCC" means the Uniform Commercial Code of New York.
1.2 Series Supplement and Master Trust Deed Definitions
Subject to clause 1.6, unless defined in this Agreement, words and phrases
defined in either or both of the Master Trust Deed and the Series
Supplement have the same meaning in this Agreement. Where there is any
inconsistency in a definition between this Agreement (on the one hand) and
the Master Trust Deed or the Series Supplement (on the other hand), this
Agreement prevails. Where there is any inconsistency in a definition
between the Master Trust Deed and the Series Supplement, the Series
Supplement prevails over the Master Trust Deed in respect of this
Agreement. Subject to clause 1.6, where words or phrases used but not
defined in this Agreement are defined in the Master Trust Deed in relation
to a Series Trust (as defined in the Master Trust Deed) and/or an Other
Trust such words or phrases are to be construed in this Agreement, where
necessary, as being used only in relation to the Series Trust (as defined
in this Agreement) and/or the CBA Trust, as the context requires.
1.3 Interpretation
In this Agreement, unless the contrary intention appears:
(a) headings are for convenience only and do not affect the
interpretation of this Agreement;
(b) a reference to this "Agreement" includes the Recitals;
(c) the expression "person" includes an individual, the estate of an
individual, a body politic, a corporation and a statutory or
other authority or association (incorporated or unincorporated);
(d) a reference to a person includes that person's executors,
administrators, successors, substitutes and assigns, including
any person taking by way of novation;
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<PAGE>
(e) subject to clause 1.6, a reference to any document or agreement is to
such document or agreement as amended, novated, supplemented, varied
or replaced from time to time;
(f) a reference to any legislation or to any section or provision of any
legislation includes any statutory modification or re-enactment or any
statutory provision substituted for that legislation and all
ordinances, by-laws, regulations and other statutory instruments
issued under that legislation, section or provision;
(g) words importing the singular include the plural (and vice versa) and
words denoting a given gender include all other genders;
(h) a reference to a clause is a reference to a clause of this Agreement;
(i) a reference to "wilful default" in relation to a party means, subject
to clause 1.3(j), any wilful failure by that party to comply with, or
wilful breach by the that party of, any of its obligations under any
Transaction Document, other than a failure or breach which:
(i) A. arises as a result of a breach of a Transaction Document by
a person other than:
(1) that party; or
(2) any other person referred to in clause 1.3(j); and
B. the performance of the action (the non-performance of which gave
rise to such breach) is a pre-condition to that party performing
the said obligation; or
(ii) is in accordance with a lawful court order or direction or is
required by law; or
(iii) is in accordance with a proper instruction or direction of
Investors given at a meeting convened under any Transaction
Document;
(j) a reference to the "fraud", "negligence" or "wilful default" of a
party means the fraud, negligence or wilful default of the that party
and of its officers, employees, agents and any other person where that
party is liable for the acts or omissions of such other person under
the terms of any Transaction Document;
(k) where any word or phrase is given a defined meaning, any other part of
speech or other grammatical form in respect of such word or phrase has
a corresponding meaning;
(l) where any day on which a payment is due to be made or a thing is due
to be done under this Agreement is not a Business Day, that payment
must be made or that thing must be done on the immediately succeeding
Business Day;
(m) a reference to the "close of business" on any day is a reference to
5.00 pm on that day;
(n) a reference to time is to local time in Sydney;
(o) subject to clause 13, each party will only be considered to have
knowledge or awareness of, or notice of, a thing or grounds to believe
anything by virtue of the officers of that party (or any Related Body
Corporate of that party) having day to day responsibility for the
administration or management of that party's (or a Related Body
4
<PAGE>
Corporate of that party's) obligations in relation to the Series
Trust having actual knowledge, actual awareness or actual notice
of that thing, or grounds or reason to believe that thing (and
similar references will be interpreted in this way); and
(p) a reference to the enforcement of the Charge means that the
Security Trustee appoints (or the Voting Secured Creditors as
contemplated by clause 8.4 of the Security Trust Deed appoint) a
Receiver over any Charged Property, or takes possession of any
Charged Property, pursuant to the Security Trust Deed
(expressions used in this clause have the same meanings as in the
Security Trust Deed).
1.4 Issuer Capacity
In this Agreement, except where provided to the contrary:
(a) (References to Issuer): a reference to the Issuer is a reference
to the Issuer in its capacity as trustee of the Series Trust
only, and in no other capacity; and
(b) (References to assets of the Issuer): a reference to the
undertaking, assets, business or money of the Issuer is a
reference to the undertaking, assets, business or money of the
Issuer in the capacity referred to in paragraph (a).
1.5 Transaction Document
For the purposes of the Master Trust Deed and the Series Supplement,
this Agreement is a Transaction Document.
1.6 Incorporated Definitions and other Transaction Documents and
provisions
Where in this Agreement a word or expression is defined by reference
to its meaning in another Transaction Document or there is a reference
to another Transaction Document or to a provision of another
Transaction Document, any amendment to the meaning of that word or
expression or to that other Transaction Document or provision (as the
case may be) will be of no effect for the purposes of this Agreement
unless and until the amendment is consented to by the parties to this
Agreement.
2. APPOINTMENT OF PAYING AGENTS
2.1 Appointment
The Issuer, at the direction of the Manager, hereby appoints the Principal
Paying Agent as its initial principal paying agent, and each other Paying
Agent from time to time as its paying agent, for making payments in respect
of the Class A-1 Notes pursuant to the Transaction Documents at their
respective Specified Offices in accordance with the terms and conditions of
the Agreement. The Principal Paying Agent, and each other Paying Agent,
hereby accepts that appointment.
2.2 Several Obligations of Paying Agents
While there is more than one Paying Agent, the obligations of the Paying
Agents under this Agreement are several and not joint.
3. PAYMENTS
3.1 Payment by Issuer
Subject to clause 3.8, the Issuer must not later than 10.00 am (New York
time) on each Distribution Date, pay to or to the order of the Principal
Paying Agent to an account specified by the Principal Paying Agent in same
day funds the amount in US$ as may be required (after taking account of any
money then held by the Principal Paying Agent and
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<PAGE>
available for the purpose) to be paid on that Distribution Date in respect
of the Class A-1 Notes under the Class A-1 Note Conditions.
3.2 Payments by Paying Agents
Subject to payment being duly made as provided in clause 3.1 (or the
Principal Paying Agent otherwise being satisfied that the payment will be
duly made on the due date), and subject to clause 6, the Paying Agents
will pay or cause to be paid to the Class A-1 Noteholders on behalf of the
Issuer on each Distribution Date the relevant amounts of principal and
interest due in respect of the Class A-1 Notes in accordance with this
Agreement and the Class A-1 Note Conditions.
3.3 Method of Payment for Class A-1 Book-Entry Notes
The Principal Paying Agent will cause all payments of principal or interest
(as the case may be) due in respect of Class A-1 Book-Entry Notes to be
made to the Depository or, if applicable, to its nominee in whose name the
Class A-1 Book-Entry Notes are registered, to the account or accounts
designated by the Depository or, if applicable, that nominee.
3.4 Method of Payment for Class A-1 Definitive Notes
The Paying Agents will cause all payments of principal or interest (as the
case may be) due in respect of Class A-1 Definitive Notes to be made in
accordance with Condition 8.1 of the Class A-1 Note Conditions.
3.5 Non-Payment
(a) (No obligation on Paying Agents): If the Issuer fails to make any
payment, unless and until the full amount of the payment has been
made under the terms of this Agreement (except as to the time of
making the payment) or other arrangements satisfactory to the
Principal Paying Agent have been made, none of the Principal
Paying Agent nor any of the other Paying Agents is bound to make
any payment in accordance with this clause 3 (but may, in its
discretion, make any such payment).
(b) (Notice of Non-receipt): The Principal Paying Agent will
immediately notify by facsimile the other Paying Agents, the
Class A-1 Note Trustee, the Issuer, the Security Trustee, the
Standby Swap Providers and the Manager if the full amount of any
payment of principal or interest in respect of the Class A-1
Notes required to be made pursuant to the Class A-1 Note
Conditions is not unconditionally received by it or to its order
in accordance with this Agreement.
3.6 Late Payment
(a) (Late Payments to be paid in accordance with this Agreement): If
any payment under clause 3.1 is made late but otherwise in
accordance with the provisions of this Agreement, each Paying
Agent will make the payments required to be made by it in respect
of the Class A-1 Notes as provided in this clause 3.
(b) (Notice): If the Principal Paying Agent does not receive on a
Distribution Date the full amount of principal and interest then
payable on any Class A-1 Note in accordance with the Class A-1
Note Conditions, but receives the full amount later, it will:
(i) forthwith upon receipt of the full amount notify the other
Paying Agents, the Issuer, the Class A-1 Note Trustee, the
Security Trustee and the Manager; and
(ii) as soon as practicable after receipt of the full amount give
notice, in accordance with Condition 11.1 of the Class A-1
Note Conditions, to the Class A-1 Noteholders that it has
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<PAGE>
received the full amount.
3.7 Reimbursement
The Principal Paying Agent will (provided that it has been placed in funds
by the Issuer) on demand promptly reimburse each other Paying Agent for
payments of principal and interest properly made by that Paying Agent in
accordance with the Class A-1 Note Conditions and this Agreement. The
Issuer will not be responsible for the apportionment of any moneys between
the Principal Paying Agent and the other Paying Agents and a payment to the
Principal Paying Agent of any moneys due to the Paying Agents will operate
as a good discharge to the Issuer in respect of such moneys.
3.8 Payment under Currency Swap
The payment by the Issuer of its Australian dollar payment obligations
under the Series Supplement on each Distribution Date to the Currency Swap
Providers will be a good discharge of its corresponding US dollar
obligations under clause 3.1 (but will not relieve the Issuer of any
liability in respect of any default in payment in respect of a Class A-1
Note under any other Transaction Document).
3.9 Principal Paying Agent holds funds on trust
Each Paying Agent will hold in a separate account on trust for the Class A-
1 Note Trustee and the Class A-1 Noteholders all sums held by such Paying
Agent for the payment of principal and interest with respect to the Class
A-1 Notes until such sums are paid to the Class A-1 Note Trustee or the
Class A-1 Noteholders in accordance with the Class A-1 Note Trust Deed or
the Class A-1 Note Conditions or repaid under clause 3.13.
3.10 Principal Paying Agent may deal with funds
Subject to the terms of this Agreement, the Principal Paying Agent is
entitled to deal with moneys paid to it under this Agreement in the same
manner as other moneys paid to it as a banker by its customers. The
Principal Paying Agent is entitled to retain for its own account any
interest earned on such moneys, except as required by law.
3.11 No Set-Off
No Paying Agent is entitled to exercise any right of set-off, withholding,
counterclaim or lien against, or make any deduction in any payment to, any
person entitled to receive amounts of principal or interest on the Class A-
1 Notes in respect of moneys payable by it under this Agreement.
3.12 Holders of Class A-1 Notes
Except as ordered by a court of competent jurisdiction or as required by
law, each Paying Agent is entitled to treat the person:
(a) (Class A-1 Book Entry Notes): who is, while a Class A-1 Book-
Entry Note remains outstanding, the registered owner of that
Class A-1 Book-Entry Note as recorded in the Class A-1 Note
Register as the absolute owner of each Class A-1 Book-Entry Note
and as the person entitled to receive payments of principal or
interest (as applicable) and each person shown in the records of
the Depository as the holder of any Class A-1 Note represented by
a Class A-1 Book-Entry Note will be entitled to receive from the
registered owner of that Class A-1 Book-Entry Note any payment so
made only in accordance with the respective rules and procedures
of the Depository;
(b) (Class A-1 Definitive Notes): who is the registered owner of any
Class A-1 Definitive Note as recorded in the Class A-1 Note
Register as the absolute owner or owners of that Class A-1
Definitive Note (whether or not that Class A-1 Definitive Note is
overdue and despite any notice of ownership or writing on it
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<PAGE>
or any notice of previous loss or theft or of any trust or other
interest in it); and
(b) (Class A-1 Note Trustee): who, when a Class A-1 Book-Entry Note
in respect of any Class A-1 Note is no longer outstanding but
Class A-1 Definitive Notes in respect of the Class A-1 Notes have
not been issued, is for the time being the Class A-1 Note
Trustee, as the person entrusted with the receipt of principal or
interest, as applicable, on behalf of the relevant Class A-1
Noteholders,
in all cases and for all purposes, despite any notice to the contrary, and
will not be liable for so doing.
3.13 Repayment of Moneys
(a) (Prescription): Immediately on any entitlement to receive
principal or interest under any Class A-1 Note becoming void
under the Class A-1 Note Conditions, the Principal Paying Agent
will repay to the Issuer the amount which would have been due in
respect of that principal or interest if it had been paid before
the entitlement became void, together with any fees applicable to
that payment or entitlement (pro rated as to the amount and time)
to the extent already paid under clause 12.
(b) (No Repayment while outstanding amounts due): Notwithstanding
clause 3.13(a) the Principal Paying Agent is not obliged to make
any repayment to the Issuer while any fees and expenses which
should have been paid to or to the order of the Principal Paying
Agent or, if applicable, the Class A-1 Note Trustee, by the
Issuer remain unpaid.
3.14 Paying Agents to Record, Notify Payments and Deliver Surrendered
Notes
Each Paying Agent must:
(a) (Notify Class A-1 Note Registrar): promptly notify the Class A-1
Note Registrar of each payment made by it, or at its direction,
to Class A-1 Noteholders in respect of the Class A-1 Notes;
(b) (Records): keep a full and complete record of each payment made
by it, or at its direction, to Class A-1 Noteholders and provide
copies of such records to the Issuer, the Manager, the Class A-1
Note Trustee or the Class A-1 Note Registrar upon request; and
(c) (Deliver): promptly deliver to the Class A-1 Note Registrar any
Class A-1 Notes surrendered to it pursuant to Condition 8.2 of
the Class A-1 Note Conditions.
A record by a Paying Agent under this clause 3.14 is sufficient evidence,
unless the contrary is proved, of the relevant payments having been made or
not made.
4. APPOINTMENT AND DUTIES OF THE AGENT BANK
4.1 Appointment
The Issuer, at the direction of the Manager, hereby appoints the Agent Bank
as its initial reference agent in respect of the Class A-1 Notes upon the
terms and conditions contained in this Agreement and the Agent Bank hereby
accepts that appointment.
4.2 Determinations by Agent Bank
The Agent Bank must perform such duties, and make such calculations,
determinations, notifications and publications at its Specified Office as
are set forth in the Class A-1 Note Conditions and the Currency Swap
Agreements to be performed or made by it until the Class A-1 Notes are
redeemed (or deemed to be redeemed) in full in accordance with the
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<PAGE>
Class A-1 Note Conditions and must perform any other duties as requested by
the Issuer, the Manager or the Principal Paying Agent which are reasonably
incidental to those duties.
4.3 Notification by Agent Bank
If the Agent Bank fails to perform any duty or to make any calculation,
determination, notification or publication as provided in clause 4.2, it
must forthwith notify the Issuer, the Manager, the Class A-1 Note Trustee,
the Principal Paying Agent and the Currency Swap Providers thereof.
4.4 Class A-1 Note Trustee to Perform Agent Bank's Function
If the Agent Bank at any time for any reason does not determine the
Interest Rate for the Class A-1 Notes, or calculate a Class A-1 Interest
Amount (each as defined in the Class A-1 Note Conditions), the Class A-1
Note Trustee must do so and each such determination or calculation will be
as if made by the Agent Bank for the purposes of the Class A-1 Note
Conditions. In doing so, the Class A-1 Note Trustee will apply the
provisions of Condition 6 of the Class A-1 Note Conditions, with any
necessary consequential amendments, to the extent that it can and, in all
other respects it will do so in such a manner as it considers fair and
reasonable in all the circumstances.
4.5 Documents to Agent Bank
The Manager and the Issuer will provide to the Agent Bank such documents
and other information as the Agent Bank reasonably requires in order for
the Agent Bank to properly fulfil its duties in respect of the Class A-1
Notes and the Currency Swap Agreements.
5. APPOINTMENT AND DUTIES OF THE CLASS A-1 NOTE REGISTRAR
5.1 Class A-1 Note Registrar
The Issuer, at the direction of the Manager, hereby appoints the Class A-1
Note Registrar as its initial note registrar in respect of the Class A-1
Notes upon the terms and conditions contained in this Agreement and the
Class A-1 Note Registrar hereby accepts that appointment.
5.2 Class A-1 Note Register to be Kept
The Class A-1 Note Registrar must keep a register, at one of its Specified
Offices, in which, subject to such reasonable regulations as the Class A-1
Note Registrar may prescribe, the Class A-1 Note Registrar must keep a full
and complete record of:
(a) (Class A-1 Noteholder Details): the name, address and, where
applicable, taxation, social security or other identifying number
of each Class A-1 Noteholder, the details of the Class A-1 Notes
held by that Class A-1 Noteholder and the details of the account
to which any payments due to the Class A-1 Noteholder are to be
made in each case as notified by that Class A-1 Noteholder from
time to time;
(b) (Exchange etc. of Class A-1 Notes): the issue and any exchange,
transfer, replacement, redemption (in whole or part) or
cancellation of a Class A-1 Note;
(c) (Payments): all payments made in respect of the Class A-1 Notes
(as notified to it by each Paying Agent pursuant to clause
3.14(a));
(d) (Principal): the Invested Amount and the Stated Amount of each
Class A-1 Note from time to time (as notified to it by the
Manager pursuant to clause 7.1);
(e) (Other Information): such other information as the Manager
reasonably requires or the Class A-1 Note Registrar considers
appropriate or desirable.
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5.3 Transfer or Exchange of Class A-1 Notes
Class A-1 Notes held by a Class A-1 Noteholder may be transferred or may be
exchanged for other Class A-1 Notes in any authorised denominations and a
like Invested Amount, provided in each case that the requirements of
Section 8-401(a) of the UCC are met, by that Class A-1 Noteholder upon:
(a) (Surrender and Instrument of Transfer or Exchange): the surrender
of the Class A-1 Notes to be transferred or exchanged duly
endorsed with, or accompanied by, a written instrument of
transfer or exchange in the form, in the case of a transfer,
annexed to the Class A-1 Notes or otherwise in a form
satisfactory to the Class A-1 Note Registrar duly executed by the
Class A-1 Noteholder, or its attorney duly authorised in writing,
with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Class A-1 Note
Registrar which requirements include membership of, or
participation in, STAMP or such other "signature guarantee
program" as may be determined by the Class A-1 Note Registrar in
addition to, or in substitution for, STAMP, all in accordance
with the Exchange Act; and
(b) (Other Documents): the provision of such other documents as the
Class A-1 Note Registrar may reasonably require,
to the Class A-1 Note Registrar at a Specified Office of the Class A-1 Note
Registrar.
5.4 Replacement of Lost or Mutilated Class A-1 Notes
If any Class A-1 Note is lost, stolen, mutilated, defaced or destroyed it
may, provided that the requirements of Section 8-405 of the UCC are met, be
replaced with other Class A-1 Notes in any authorised denominations, and a
like Invested Amount, upon surrender to the Class A-1 Note Registrar of the
Class A-1 Notes to be replaced (where the Class A-1 Notes have been
mutilated or defaced) at a Specified Office of the Class A-1 Note
Registrar, the provision of such evidence and indemnities as the Class A-1
Note Registrar or the Issuer may reasonably require and payment of the
Class A-1 Note Registrar's and the Issuer's expenses incurred, and any tax
or governmental charge that may be imposed, in connection with such
replacement.
5.5 Obligations upon Transfer, Exchange or Replacement of Class A-1 Notes
Subject to this Deed, upon compliance by the relevant Class A-1 Noteholder
with the provisions of clauses 5.3 or 5.4, as applicable, in relation to
the transfer, exchange or replacement of any Class A-1 Notes:
(a) (Advise Issuer): the Class A-1 Note Registrar must within 3
Business Days so advise the Issuer and the Class A-1 Note Trustee
(if it is not the Class A-1 Note Registrar) in writing and
provide details of the new Class A-1 Notes to be issued in place
of those Class A-1 Notes;
(b) (Execution and Authentication): the Issuer must, within 3
Business Days of such advice, execute and deliver to the Class A-
1 Note Trustee for authentication in the name of the relevant
Class A-1 Noteholder or the designated transferee or transferees,
as the case may be, one or more new Class A-1 Notes in any
authorised denominations, and a like Invested Amount as those
Class A-1 Notes (in each case as specified by the Class A-1 Note
Registrar) and the Class A-1 Note Trustee must within 3 Business
Days of receipt of such executed Class A-1 Notes authenticate
them and (if it is not the Class A-1 Note Registrar) deliver
those Class A-1 Notes to the Class A-1 Note Registrar; and
(c) (Delivery to Class A-1 Noteholder): the Class A-1 Note Registrar
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must, within 3 Business Days of receipt of such new Class A-1
Notes (or authentication of such Class A-1 Notes if the Class A-1
Note Registrar is the Class A-1 Note Trustee), forward to the
relevant Class A-1 Noteholder (being the transferee in the case
of a transfer of a Class A-1 Note) such new Class A-1 Notes.
5.6 No Charge for Transfer or Exchange
No service charge may be made to a Class A-1 Noteholder for any transfer or
exchange of Class A-1 Notes, but the Class A-1 Note Registrar may require
payment by the Class A-1 Noteholder of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
transfer or exchange of Class A-1 Notes.
5.7 Restricted Period
Notwithstanding the preceding provisions of this clause 5, the Class A-1
Note Registrar need not register transfers or exchanges of Class A-1 Notes,
and the Issuer is not required to execute nor the Class A-1 Note Trustee to
authenticate any Class A-1 Notes, for a period of 30 days preceding the due
date for any payment with respect to the Class A-1 Notes or for such
period, not exceeding 30 days, as is specified by the Class A-1 Note
Trustee prior to any meeting of Relevant Investors, which includes Class A-
1 Noteholders, under the Master Trust Deed or prior to any meeting of
Voting Secured Creditors, which includes Class A-1 Noteholders, under the
Security Trust Deed.
5.8 Cancellation of Class A-1 Notes
The Class A-1 Note Registrar must cancel or destroy all Class A-1 Notes
that have been surrendered to it for transfer, exchange or replacement
(including any Class A-1 Book Entry Notes surrendered pursuant to clause
3.4(b) of the Class A-1 Note Trust Deed) or surrendered to a Paying Agent
for redemption and delivered to the Class A-1 Note Registrar and must, upon
request, provide a certificate to the Issuer, the Class A-1 Note Trustee or
the Manager with the details of all such Class A-1 Notes so cancelled or
destroyed.
5.9 Provision of Information and Inspection of Register
The Class A-1 Note Registrar must:
(a) (Information): provide to the Issuer, the Manager, the Class A-1
Note Trustee and each other Agent such information as is
contained in the Class A-1 Note Register and is required by them
in order to perform any obligation pursuant to a Transaction
Documents;
(b) (Inspection): make the Class A-1 Note Register:
(i) available for inspection or copying by the Issuer, the
Manager, the Class A-1 Note Trustee and each other Agent or
their agents or delegates; and
(ii) available for inspection by each Class A-1 Noteholder but
only in respect of information relating to that Class A-1
Noteholder,
at one of the Class A-1 Note Registrar's Specified Offices during local
business hours.
5.10 Correctness of Register and Information
The Issuer, the Class A-1 Note Trustee, the Manager and each Agent (other
than the Class A-1 Note Registrar) may accept the correctness of the Class
A-1 Note Register and any information provided to it by the Class A-1 Note
Registrar and is not required to enquire into its authenticity. None of the
Issuer, the Class A-1 Note Trustee, the Manager or any Agent (including the
Class A-1 Note Registrar) is liable for any mistake in the Class A-1 Note
Register or in any purported copy except to the extent that the mistake is
attributable
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to its own fraud, negligence or wilful default.
5.11 Non-recognition of Equitable Interests
Except as required by Statute or as ordered by a court of competent
jurisdiction, no notice of any trust, whether express, implied or
constructive, is to be entered in the Class A-1 Note Register and except as
otherwise provided in any Transaction Document, or required by Statute or
ordered by a court of competent jurisdiction, none of the Class A-1 Note
Registrar, the Class A-1 Note Trustee, the Issuer, the Manager or any other
Agent is to be affected by or compelled to recognise (even when having
notice of it) any right or interest in any Class A-1 Notes other than the
registered Class A-1 Noteholder's absolute right to the entirety of them
and the receipt of a registered Class A-1 Noteholder is a good discharge to
the Issuer, the Manager, the Class A-1 Note Trustee and each Agent.
5.12 Rectification of Class A-1 Note Register
If:
(a) (Entry Omitted): an entry is omitted from the Class A-1 Note
Register;
(b) (Entry made otherwise than in accordance with this Deed): an
entry is made in the Class A-1 Note Register otherwise than in
accordance with this Agreement;
(c) (Wrong entry exists): an entry wrongly exists in the Class A-1
Note Registrar;
(d) (Error or defect exists in Register); there is an error or defect
in any entry in the Class A-1 Note Register; or
(e) (Default made): default is made or unnecessary delay takes place
in entering in the Class A-1 Register that any person has ceased
to be the holder of Class A-1 Notes,
then the Class A-1 Note Registrar may rectify the same.
6. CLASS A-1 NOTE TRUSTEE'S REQUIREMENTS REGARDING AGENTS
6.1 Following Enforcement of the Charge or issue of Definitive Notes
At any time after either an Event of Default (unless waived by the Security
Trustee pursuant to clause 9.5 of the Security Trust Deed) or the
enforcement of the Charge or at any time after Class A-1 Definitive Notes
have not been issued when required in accordance with the Class A-1 Note
Trust Deed, the Class A-1 Note Trustee may:
(a) (Require Agents): by notice in writing to the Issuer, the
Manager, and each Agent require any one or more of the Agents
either:
(i) A. to act as the Agent of the Class A-1 Note Trustee on
the terms and conditions of this Agreement in relation
to payments to be made by or on behalf of the Class A-1
Note Trustee under the terms of the Class A-1 Note
Trust Deed, except that the Class A-1 Note Trustee's
liability under any provision of this Agreement for the
indemnification of the Principal Paying Agent, the
Paying Agents and the Agent Bank will be limited to any
amount for the time being held by the Class A-1 Note
Trustee on the trust of the Class A-1 Note Trust Deed
and which is available to be applied by the Class A-1
Note Trustee for that purpose; and
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B. hold all Class A-1 Notes, and all amounts, documents
and records held by them in respect of the Class A-1
Notes, on behalf of the Class A-1 Note Trustee; or
(ii) to deliver up all Class A-1 Notes and all amounts,
documents and records held by them in respect of the
Class A-1 Notes, to the Class A-1 Note Trustee or as
the Class A-1 Note Trustee directs in that notice,
other than any documents or records which an Agent is
obliged not to release by any law; and
(b) (Require Issuer): by notice in writing to the Issuer require
it to make (or arrange to be made) all subsequent payments
in respect of the Class A-1 Notes to the order of the Class
A-1 Note Trustee and not to the Principal Paying Agent and,
with effect from the issue of that notice to the Issuer and
until that notice is withdrawn, clause 6.1(b) of the Class
A-1 Note Trust Deed will not apply.
6.2 Good Discharge to Issuer
The payment by or on behalf of the Issuer of its payment obligations on
each Distribution Date under the Series Supplement and the Class A-1 Note
Conditions to the Class A-1 Note Trustee in accordance with clause 6.1 is
a good discharge to the Issuer and the Issuer will not be liable for any
act or omission or default of the Class A-1 Note Trustee during the period
it is required to make payments to the Class A-1 Note Trustee under clause
6.1.
6.3 Change of Authorised Officers
The Class A-1 Note Trustee will forthwith give notice to the Manager, the
Issuer, the Security Trustee and each Agent of any change in the Authorised
Officers of the Class A-1 Note Trustee.
7. REDEMPTION OF CLASS A-1 NOTES
7.1 Part Redemption of Class A-1 Notes on Distribution Dates
(a) (Manager to Make Determinations etc): Two Business Days
prior to each Distribution Date, the Manager will make the
determinations referred to in Condition 7.11(a) of the
Class A-1 Note Conditions in relation to that Distribution
Date and will give to the Issuer, the Class A-1 Note
Trustee, the Principal Paying Agent, the Agent Bank, the
Class A-1 Note Registrar and the London Stock Exchange the
notifications, and will cause to be made to the Class A-1
Noteholders the publication, required by Condition 7.11(b)
of the Class A-1 Note Conditions. If the Manager does not at
any time for any reason make the determinations referred to
in Condition 7.11(c) of the Class A-1 Note Conditions it
must forthwith advise the Class A-1 Note Trustee and the
Agent Bank and such determinations must be made by the Agent
Bank, or failing the Agent Bank, by the Class A-1 Note
Trustee in accordance with such Condition 7.11(c) of the
Class A-1 Note Conditions (but based on the information in
its possession) and each such determination will be deemed
to have been made by the Manager.
(b) (Notify Depository): If any Class A-1 Book-Entry Notes are
outstanding, on receipt of a notification under Condition
7.11(b) of the Class A-1 Note Conditions, the Principal
Paying Agent must notify the Depository of any proposed
redemption in accordance with the Depository's applicable
procedures, specifying the principal amount of each Class A-
1 Book-Entry Note to be redeemed and the date on which the
redemption is to occur and must provide a copy to the
Depository of the notification received under Condition
7.11(b) of
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the Class A-1 Note Conditions.
7.2 Early Redemption
(a) (Notice to Paying Agent etc): If the Issuer intends to redeem all
(but not some only) of the Class A-1 Notes prior to the Scheduled
Maturity Date (as defined in the Class A-1 Note Conditions)
pursuant to Conditions 7.3 or 7.4 of the Class A-1 Note
Conditions, the Manager will direct the Issuer to give the
requisite notice to the Seller, the Class A-1 Note Trustee, the
Principal Paying Agent, the Class A-1 Note Registrar, the Agent
Bank and the Class A-1 Noteholders in accordance with Conditions
7.3 or 7.4 (as the case may be) of the Class A-1 Note Conditions
and stating the date on which such Class A-1 Notes are to be
redeemed.
(b) (Notice to Depository): The Principal Paying Agent will, on
receipt of a notice under clause 7.2(a), and if any Class A-1
Book Entry Notes are outstanding, notify the Depository of the
proposed redemption in accordance with the Depository's
applicable procedures, specifying the Invested Amount and Stated
Amount of each Class A-1 Book-Entry Note to be redeemed, the
amount of principal to be repaid in relation to each Class A-1
Book-Entry Note and the date on which the Class A-1 Book-Entry
Notes are to be redeemed.
8. GENERAL PAYING AGENT MATTERS
8.1 Notices to Class A-1 Noteholders
(a) (Notices to be given by Class A-1 Note Registrar): At the request
of the Issuer, the Class A-1 Note Trustee, the Manager, the
Security Trustee or any other Agent, and at the expense of the
Issuer, the Class A-1 Note Registrar will arrange for the
delivery of all notices and the Quarterly Servicing Report to
Class A-1 Noteholders in accordance with the Class A-1 Note
Conditions.
(b) (Copy to Class A-1 Note Trustee): The Class A-1 Note Registrar
will promptly send to the Class A-1 Note Trustee one copy of the
form of every notice given to Class A-1 Noteholders in accordance
with the Class A-1 Note Conditions (unless such notice is given
at the request of the Class A-1 Note Trustee).
The Class A-1 Note Registrar will not be responsible for, or liable to any
person in respect of, the contents of any notices or reports delivered by
it at the request of the Issuer, the Class A-1 Note Trustee, the Manager,
the Security Trustee or any other Agent pursuant to this clause 8.1.
8.2 Copies of Documents for Inspection
The Manager will provide to the Class A-1 Note Registrar sufficient copies
of all documents required by the Class A-1 Note Conditions or the Class A-1
Note Trust Deed to be available to Class A-1 Noteholders for issue or
inspection.
8.3 Notice of any Withholding or Deduction
If the Issuer or any Paying Agent is, in respect of any payment in respect
of the Class A-1 Notes, compelled to withhold or deduct any amount for or
on account of any taxes, duties or charges as contemplated by Condition
8.4 of the Class A-1 Note Conditions, the Issuer must give notice to the
Principal Paying Agent, the Class A-1 Note Trustee and the Class A-1
Noteholders in accordance with Condition 11.1 of the Class A-1 Note
Conditions immediately after becoming aware of the requirement to make the
withholding or deduction and must give to the Principal Paying Agent and
the Class A-1 Note Trustee such information as they require to enable each
of them to comply with the requirement.
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9. INDEMNITY
9.1 Indemnity by Issuer
Subject to clause 14, the Issuer undertakes to indemnify each Agent and
its directors, officers, employees and controlling persons against all
losses, liabilities, costs, claims, actions, damages, expenses or demands
which any of them may incur or which may be made against any of them as a
result of or in connection with the appointment of or the exercise of the
powers and duties by the Agent under this Agreement except as may result
from its fraud, negligence or default or that of its directors, officers,
employees or controlling persons or any of them, or breach by it of the
terms of this Agreement and notwithstanding the resignation or removal of
that Agent pursuant to clause 10.
9.2 Indemnity by Agent
Each Agent undertakes to indemnify on a several basis the Issuer, the
Manager and each of their respective directors, officers, employees and
controlling persons against all losses, liabilities, costs, claims,
actions, damages, expenses or demands which any of them may incur or which
may be made against any of them as a result of (but not including any
consequential, indirect, punitive or special damages to the extent
resulting from) its default, negligence or bad faith or that of its
directors, officers, employees or controlling persons or any of them, or
breach by it of the terms of this Agreement.
10. CHANGES IN AGENTS
10.1 Appointment and Removal
The Issuer (on the direction of the Manager) may with the prior written
approval of the Class A-1 Note Trustee (which approval must not be
unreasonably withheld or delayed):
(a) (Appoint new Agents): appoint:
(i) additional or alternative Paying Agents (other than the
Principal Paying Agent); or
(ii) an alternative Agent Bank, Class A-1 Note Registrar or
Principal Paying Agent; and
(b) (Terminate Appointment of Agents): subject to this clause 10,
terminate the appointment of any Agent by giving written notice
to that effect to the Agent whose appointment is to be terminated
copied to each Rating Agency, the Class A-1 Note Trustee and (if
it is not the Agent whose appointment is to be terminated) the
Principal Paying Agent:
(i) with effect immediately on the giving of that notice, if any
of the following occurs in relation to the Agent (as the
case may be):
A. an Insolvency Event;
B. it ceases to conduct business or proposes to cease
conduct of its business or a substantial part of that
business; or
C. it fails to remedy within five Business Days after
prior written notice by the Issuer or Manager any
material breach of this Agreement on the part of the
Agent (as the case may be); and
(ii) otherwise, with effect on a date not less than 60 days' from
that notice (which date must be not less than 30 days before
any due date for payment on any Class A-1 Notes).
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10.2 Resignation
Subject to this clause 10, an Agent may resign its appointment under this
Agreement at any time by giving to the Issuer, the Manager, each Rating
Agency and (where the Agent resigning is not the Principal Paying Agent)
the Principal Paying Agent not less than 90 days' written notice to that
effect (which notice must expire not less than 30 days before, any due date
for payment on any Class A-1 Notes).
10.3 Limitation of Appointment and Termination
Notwithstanding clauses 10.1 and 10.2:
(a) (Principal Paying Agent and Class A-1 Note Registrar): the
resignation by, or the termination of, the appointment of the
Principal Paying Agent or the Class A-1 Note Registrar will not
take effect until a new Principal Paying Agent or Class A-1 Note
Registrar, as the case may be, approved in writing by the Class
A-1 Note Trustee has been appointed on terms previously approved
in writing by the Class A-1 Note Trustee (in each case, the
approval not to be unreasonably withheld or delayed) and with, in
the case of the Class A-1 Note Registrar, Specified Offices in
each of New York and London;
(b) (Appointment by Retiring Agent): if any Agent resigns in
accordance with clause 10.2 but, by the day falling 15 days
before the expiry of any notice under clause 10.2 the Issuer has
not appointed a new Agent, then the relevant Agent may appoint in
its place any reputable bank or trust company of good standing
approved in writing by the Class A-1 Note Trustee and appointed
on terms previously approved in writing by the Class A-1 Note
Trustee (in each case, the approval not to be unreasonably
withheld or delayed);
(c) (Specified Office of Paying Agent in New York and London): the
resignation by, or the termination of the appointment of, any
Paying Agent will not take effect if, as a result of the
resignation or termination, there would not be a Paying Agent
which has a Specified Office in New York City or there would not
be a Paying Agent which has a Specified Office in London;
(d) (Specified Office of Agent Bank): the resignation by, or the
termination of the appointment of the Agent Bank will not take
effect until a new Agent Bank having its Specified Office in
London or New York has been appointed; and
(e) (Terms of Appointment of additional Paying Agents): the
appointment of any additional Paying Agent will be on the terms
and the conditions of this Agreement and each of the parties to
this Agreement must co-operate fully to do all further acts and
things and execute any further documents as may be necessary or
desirable to give effect to the appointment of the Paying Agent
(which will not, except in the case of an appointment under
clause 10.1(a) or a termination under clause 10.1(b)(ii), be at
the cost of the Issuer or Manager).
10.4 Payment of amounts held by the Principal Paying Agent
If the appointment of the Principal Paying Agent is terminated, the
Principal Paying Agent must, on the date on which that termination takes
effect, pay to the successor Principal Paying Agent any amount held by it
for payment of principal or interest in respect of any Class A-1 Note and
must deliver to the successor Principal Paying Agent all records maintained
by it and all documents (including any Class A-1 Notes) held by it pursuant
to this Agreement.
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10.5 Records held by Class A-1 Note Registrar
If the appointment of the Class A-1 Note Registrar is terminated, the Class
A-1 Note Registrar must, on the date on which that termination takes
effect, deliver to the successor Class A-1 Note Registrar the Class A-1
Note Register and all records maintained by it and all documents (including
any Class A-1 Notes) held by it pursuant to this Agreement.
10.6 Successor to Principal Paying Agent, Agent Bank, Class A-1 Note
Registrar
(a) (Appointment and Release): On the execution by the Issuer, the
Manager and any successor Principal Paying Agent, Agent Bank or
Class A-1 Note Registrar of an instrument effecting the
appointment of that successor Principal Paying Agent, Agent Bank
or Class A-1 Note Registrar that successor Principal Paying
Agent, Agent Bank or Class A-1 Note Registrar, as the case may
be, will, without any further act, deed or conveyance, become
vested with all the authority, rights, powers, trusts,
immunities, duties and obligations of its predecessor as if
originally named as Principal Paying Agent, Agent Bank or Class
A-1 Note Registrar, as the case may be, in this Agreement and
that predecessor, on payment to it of the pro rata proportion of
its administration fee and disbursements then unpaid (if any),
will have no further liabilities under this Agreement, except for
any accrued liabilities arising from or relating to any act or
omission occurring prior to the date on which the successor
Principal Paying Agent, Agent Bank or Class A-1 Note Registrar
was appointed.
(b) (Merger): Any corporation:
(i) into which the Principal Paying Agent, Agent Bank or Class
A-1 Note Registrar is merged;
(ii) with which the Principal Paying Agent, Agent Bank or Class
A-1 Note Registrar is consolidated;
(iii) resulting from any merger or consolidation to which the
Principal Paying Agent, Agent Bank or Class A-1 Note
Registrar is a party; or
(iv) to which the Principal Paying Agent, Agent Bank or Class A-
1 Note Registrar sells or otherwise transfers all or
substantially all the assets of its corporate trust
business,
must, on the date when that merger, conversion, consolidation, sale or
transfer becomes effective and to the extent permitted by applicable
law, become the successor Principal Paying Agent, Agent Bank or Class
A-1 Note Registrar, as the case may be, under this Agreement without
the execution or filing of any agreement or document or any further
act on the part of the parties to this Agreement, unless otherwise
required by the Issuer or the Manager, and after that effective date
all references in this Agreement to the Principal Paying Agent, Agent
Bank or Class A-1 Note Registrar, as the case may be, will be
references to that corporation.
10.7 Notice to Class A-1 Noteholders
The Manager on behalf of the Issuer will, within 5 days of:
(a) (Termination): the termination of the appointment of any Agent;
(b) (Resignation): the resignation of any Agent; or
(c) (Appointment): the appointment of a new Agent,
give to the Class A-1 Noteholders notice of the termination, appointment or
resignation in accordance with Condition 11.1 of the Class A-1 Note
Conditions (in the case of a termination under clause 10.1(b)(i) or 10.2
at the cost of the outgoing Agent). Notwithstanding clauses 10.1 and 10.2,
neither the termination of the appointment of an
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Agent, nor the resignation of an Agent, will take effect until notice
thereof is given to the Class A-1 Noteholders in accordance with this
clause 10.7.
10.8 Change in Specified Office
(a) (Agents Change): If any Agent proposes to change its Specified
Office (which must be within the same city as its previous
Specified Office), it must give to the Issuer the Manager, the
Class A-1 Note Trustee and the other Agents not less than 30
days' prior written notice of that change, giving the address of
the new Specified Office and stating the date on which the change
is to take effect. No change of a Specified Office may occur in
the period 30 days before any due date for payment on any Class
A-1 Notes.
(b) (Notice to Class A-1 Noteholders): The Manager must, within 14
days of receipt of a notice under clause 10.8(a) (unless the
appointment is to terminate pursuant to clause 10.1 or 10.2 on
or prior to the date of that change) give to the Class A-1
Noteholders notice in accordance with Condition 11.1 of the
Class A-1 Note Conditions of that change and of the address of
the new Specified Office, but the cost of giving that notice must
be borne by the Agent which is changing its Specified Office and
not by the Issuer or the Manager.
11. MISCELLANEOUS DUTIES AND PROTECTION
11.1 Agents are agents of the Issuer
(a) (Agent of the Series Trust): Subject to clause 6.1, each Agent
is the agent of the Issuer in its capacity as trustee of the
Series Trust only.
(b) (Issuer not responsible for Agents): Notwithstanding any other
provision contained in this Agreement, any other Transaction
Document or at law, the Issuer in its personal capacity is not
responsible for any act or omission of any Agent.
11.2 Agency
Subject to any other provision of this Agreement, each Agent acts solely
for and as agent of the Issuer and does not have any obligations towards or
relationship of agency or trust with any person entitled to receive
payments of principal and/or interest on the Class A-1 Notes and is
responsible only for the performance of the duties and obligations imposed
on it pursuant to clause 11.6.
11.3 Reliance
Each Agent is protected and will incur no liability for or in respect of
any action taken, omitted or suffered by it in reliance upon any
instruction, request or order from the Issuer or the Manager or in reliance
upon any Class A-1 Note or upon any notice, resolution, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been delivered, signed or sent by
the proper party or parties.
11.4 Entitled to Deal
An Agent is not precluded from acquiring, holding or dealing in any Class
A-1 Notes or from engaging or being interested in any contract or other
financial or other transaction with the Issuer or the Manager as freely as
if it were not an agent of the Issuer under this Agreement and in no event
whatsoever (other than fraud, wilful misconduct, negligence or bad faith)
will any Agent be liable to account to the Issuer or any person entitled to
receive amounts of principal or interest on the Class A-1 Notes for any
profit made or fees or commissions received in connection with this
agreement or any Class A-1 Notes.
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11.5 Consultation
Each Agent may, after 5 days prior notice to the Issuer and the Manager,
consult as to legal matters with lawyers selected by it, who may be
employees of or lawyers to the Issuer, the Manager or the relevant Agent.
11.6 Duties and Obligations
Each Agent will perform the duties and obligations, and only the duties and
obligations, contained in or reasonably incidental to this Agreement and
the Class A-1 Note Conditions and no implied duties or obligations (other
than general laws as to agency) will be read into this Agreement or the
Class A-1 Note Conditions against any Agent. An Agent is not required to
take any action under this Agreement which would require it to incur any
expense or liability for which (in its reasonable opinion) either it would
not be reimbursed within a reasonable time or in respect of which it has
not been indemnified to its satisfaction.
11.7 Income Tax Returns
The Principal Paying Agent will deliver to each Class A-1 Noteholder such
information as may be reasonably required to enable such Class A-1
Noteholder to prepare its federal and state income tax returns.
11.8 Representation by each Agent
Each Agent represents and warrants that it is duly qualified to assume its
obligations under this Agreement and has obtained all necessary approvals
required to execute, deliver and perform its obligations under this
Agreement.
12. FEES AND EXPENSES
12.1 Payment of Fee
The Issuer will pay to each Agent during the period that any of the Class
A-1 Notes remain outstanding the administration fee separately agreed by
that Agent and the Issuer. If the appointment of an Agent is terminated
under this Agreement, the Agent must refund to the Issuer that proportion
of the fee (if any) which relates to the period during which the Agent's
appointment is terminated.
12.2 Payment of Expenses
The Issuer must pay or reimburse to each Agent all reasonable costs,
expenses, charges, stamp duties and other Taxes and liabilities properly
incurred by that Agent in the performance of the obligations of that Agent
under this Agreement including, without limitation, all costs and expenses
(including legal costs and expenses) incurred by that Agent in the
enforcement of any obligations under this Agreement. Nothing in this clause
12.2 entitles or permits an Agent to be reimbursed or indemnified for
general overhead costs and expenses (including, without limitation, rents
and any amounts payable by that Agent to its employees in connection with
their employment) incurred directly or indirectly in connection with the
business activities of that Agent or in the exercise of its rights, powers
and discretions or the performance of its duties and obligations under this
Agreement.
12.3 No Other Fees
Except as provided in clauses 12.1 and 12.2, or as expressly provided
elsewhere in this Agreement, neither the Issuer nor the Manager has any
liability in respect of any fees or expenses of any Agent in connection
with this Agreement.
12.4 Payment of Fees
The above fees, payments and expenses will be paid in United States
dollars. The Issuer will in addition pay any value added tax which may be
applicable. The Principal Paying Agent will arrange for payment of
commissions to the other Paying Agents and arrange for
19
<PAGE>
the reimbursement of their expenses promptly upon demand, supported by
evidence of that expenditure, and provided that payment is made as required
by clause 12.1 the Issuer will not be concerned with or liable in respect
of that payment.
12.5 No Commission
Subject to this clause 12, no Paying Agent may charge any commission or
fee in relation to any payment by it under this Agreement.
12.6 Issuer Personally Liable for Fees
Notwithstanding any other provision of this Agreement, the Issuer must pay
to each Agent the fees referred to in clause 12.1, and any value added tax
on such fees, from its own personal funds and will not be entitled to
indemnified from the Assets of the Series Trust with respect to such fees
or value added taxes provided that if The Bank of New York, New York Branch
or The Bank of New York, London Branch resigns or is removed as an Agent
the Issuer will only be liable to pay the fees referred to in clause 12.1,
and any value added tax on such fees, from its own personal funds to the
extent that such fees and value added tax do not exceed the amount that
would have been payable to The Bank of New York, New York Branch or the
Bank of New York, London Branch, as the case may be, if it had remained as
that Agent. The balance of such fees and value added tax, if any, will be
an Expense for which the Issuer is entitled to be indemnified from the
Assets of the Series Trust in accordance with the Series Supplement.
12.7 Timing of Payments
Except as referred to in clause 12.6, all payments by the Issuer to an
Agent under this clause 12 are payable on the first Distribution Date
following demand by that Agent from funds available for this purpose in
accordance with the Series Supplement.
13. NOTICES
13.1 Method of Delivery
Subject to clause 13.3, any notice, request, certificate, approval,
demand, consent or other communication to be given under this Agreement
(other than notices to the Class A-1 Noteholders):
(a) (Execution): must be signed by an Authorised Officer of the party
giving the same;
(b) (In writing): must be in writing; and
(c) (Delivery): must be:
(i) left at the address of the addressee;
(ii) sent by prepaid ordinary post to the address of the
addressee; or
(iii) sent by facsimile to the facsimile number of the addressee,
as notified by that addressee from time to time to the other parties to
this Agreement as its address for service pursuant to this Agreement.
13.2 Deemed Receipt
A notice, request, certificate, demand, consent or other communication
under this Agreement is deemed to have been received:
(a) (Delivery): where delivered in person, upon receipt;
(b) (Post): where sent by post, on the 3rd (7th if outside Australia)
day after posting; and
20
<PAGE>
(c) (Fax): where sent by facsimile, on production by the dispatching
facsimile machine of a transmission report which indicates that
the facsimile was sent in its entirety to the facsimile number of
the recipient.
However, if the time of deemed receipt of any notice is not before 5.30 pm
local time on a Business Day at the address of the recipient it is deemed
to have been received at the commencement of business on the next Business
Day.
13.3 Communications through Principal Paying Agent
All communications relating to this Agreement between the Issuer and the
Agent Bank and any of the other Paying Agents or between the Paying Agents
themselves will, except as otherwise provided in this Agreement, be made
through the Principal Paying Agent.
14. ISSUER'S LIMITATION OF LIABILITY
14.1 Limitation on Issuer's Liability
The Issuer enters into this Agreement only in its capacity as trustee of
the Series Trust and in no other capacity. A liability incurred by the
Issuer acting in its capacity as trustee of the Series Trust arising under
or in connection with this Agreement is limited to and can be enforced
against the Issuer only to the extent to which it can be satisfied out of
the Assets of the Series Trust out of which the Issuer is actually
indemnified for the liability. This limitation of the Issuer's liability
applies despite any other provision of this Agreement (other than clauses
12.6 and 14.3) 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 this Agreement.
14.2 Claims against Issuer
The parties other than the Issuer may not sue the Issuer in respect of any
liabilities incurred by the Issuer acting in its capacity as trustee of the
Series Trust in any capacity other than as trustee of the Series Trust
including seeking the appointment of a receiver (except in relation to the
Assets of the Series Trust) a liquidator, an administrator or any similar
person to the Issuer or prove in any liquidation, administration or similar
arrangements of or affecting the Issuer (except in relation to the Assets
of the Series Trust).
14.3 Breach of Trust
The provisions of this clause 14 will not apply to any obligation or
liability of the Issuer to the extent that it is not satisfied because
under the Master Trust Deed, the Series Supplement or any other Transaction
Document or by operation of law there is a reduction in the extent of the
Issuer's indemnification out of the Assets of the Series Trust as a result
of the Issuer's fraud, negligence or wilful default and will not apply to
any obligation or liability of the Issuer to pay amounts from its personal
funds pursuant to clause 12.6.
14.4 Acts or omissions
It is acknowledged that the Relevant Parties are responsible under the
Transaction Documents for performing a variety of obligations relating to
the Series Trust. No act or omission of the Issuer (including any related
failure to satisfy its obligations or any breach or representation or
warranty under this Agreement) will be considered fraudulent, negligent or
a wilful default for the purposes of clause 14.3 to the extent to which
the act or omission was caused or contributed to by any failure by any
Relevant Party or any other person appointed by the Issuer under any
Transaction Document (other than a person whose acts or omissions the
Issuer is liable for in accordance with any Transaction Document) to fulfil
its obligations relating to the Series Trust or by any other act or
omission of a Relevant Party or any other such person.
21
<PAGE>
14.5 No Authority
No Agent appointed in accordance with this Agreement 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
fraudulent, negligent or wilful default of the Issuer for the purposes of
clause 14.3.
14.6 No obligation
(a) (Obligations under this Agreement or any Transaction Document):
The Issuer is not obliged to enter into any commitment or
obligation under this Agreement or any Transaction Document
unless the Issuer's liability is limited in a manner which is
consistent with this clause 14. For the avoidance of doubt, the
Issuer agrees and acknowledges that its liability for any
commitment or obligation it has entered into under this Agreement
is limited in a manner which is consistent with this clause 14.
(b) (Obligations not contained in this Agreement or any Transaction
Document): The Issuer is not obliged to enter into any commitment
or obligation contemplated by but not contained in this Agreement
or any Transaction Document unless the Issuer's liability in
relation to that commitment or obligation is limited in a manner
satisfactory to the Issuer in its absolute discretion.
15. GENERAL
15.1 Waiver
A failure to exercise or enforce or a delay in exercising or enforcing or
the partial exercise or enforcement of any right, remedy, power or
privilege under this Agreement by a party will not in any way preclude or
operate as a waiver of any further exercise or enforcement of such right,
remedy, power or privilege of the exercise or enforcement of any other
right, remedy, power or privilege under this Agreement or provided by law.
15.2 Written Waiver, Consent and Approval
Any waiver, consent or approval given by a party under this Agreement will
only be effective and will only bind that party if it is given in writing,
or given verbally and subsequently confirmed in writing, and executed by
that party or on its behalf by two Authorised Officers of that party.
15.3 Severability
Any provision of this Agreement which is illegal, void or unenforceable in
any jurisdiction is ineffective in such jurisdiction to the extent only of
such illegality, voidness or unenforceability without invalidating the
remaining provisions of this Agreement.
15.4 Survival of Indemnities
The indemnities contained in this Agreement are continuing, and survive the
termination of this Agreement.
15.5 Assignments
No party may assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of the other parties and
confirmation from the Rating Agencies that such assignment will not lead to
a reduction, qualification or reduction of its then rating of the Class A-1
Notes.
22
<PAGE>
15.6 Successors and Assigns
This Agreement is binding upon and ensures to the benefit of the parties to
this Agreement and their respective successors and permitted assigns.
15.7 Moratorium Legislation
To the fullest extent permitted by law, the provisions of all statutes
whether existing now or in the future operating directly or indirectly:
(a) (To affect obligations): to lessen or otherwise to vary or affect
in favour of any party any obligation under this Agreement; or
(b) (To affect rights): to delay or otherwise prevent or
prejudicially affect the exercise of any rights or remedies
conferred on a party under this Agreement,
are hereby expressly waived, negatived and excluded.
15.8 Amendments
No amendments to this Agreement will be effective unless in writing and
executed by each of the parties to this Agreement. The Manager must give
each Rating Agency 10 Business Days' prior notice of any amendment to this
Agreement.
15.9 Governing Law
This Agreement is governed by and must be construed in accordance with the
laws of the State of New South Wales.
15.10 Jurisdiction
Each party irrevocably and unconditionally:
(a) (Submissions to jurisdiction): submits to the non-exclusive
jurisdiction of the courts of the State of New South Wales;
(b) (Waiver of inconvenient forum): waives any objection it may now
or in the future have to the bringing of proceedings in those
courts and any claim that any proceedings have been brought in an
inconvenient forum; and
(c) (Service of notice): agrees, without preventing any other mode of
service permitted by law, that any document required to be served
in any proceedings may be served in the manner in which notices
and other written communications may be given under clause 13.
15.11 Counterparts
This Agreement may be executed in a number of counterparts and all such
counterparts taken together will constitute one and the same instrument.
15.12 Limitation of Class A-1 Note Trustee's Liability
The Class A-1 Note Trustee is a party to this Agreement in its capacity as
trustee of the Class A-1 Trust. The liability of the Class A-1 Note Trustee
under this Agreement is limited in the manner and to the same extent as
under the Class A-1 Note Trust Deed.
EXECUTED as an agreement
23
<PAGE>
SIGNED for and on behalf of )
PERPETUAL TRUSTEE COMPANY ) ................................
LIMITED, ACN 000 001 007, by ) (Signature)
)
its Attorney under a Power of Attorney )
dated and who )
declares that he or she has not received )
any notice of the revocation of such Power )
of Attorney in the presence of: )
.......................................
(Signature of Witness)
.......................................
(Name of Witness in Full)
SIGNED for and on behalf of )
SECURITISATION ADVISORY ) ................................
SERVICES PTY. LIMITED, ACN 064 ) (Signature)
133 946, by )
)
its Attorney under a Power of Attorney )
dated and who )
declares that he or she has not received )
any notice of the revocation of such Power )
of Attorney in the presence of: )
.......................................
(Signature of Witness)
.......................................
(Name of Witness in Full)
24
<PAGE>
THE COMMON SEAL of THE BANK OF NEW )
YORK, NEW YORK BRANCH was affixed to )
this Agreement in the presence of: )
....................................
(Signature of Witness)
....................................
(Name of Witness in Full)
THE COMMON SEAL of THE BANK OF NEW )
YORK, LONDON BRANCH was affixed to )
this Agreement in the presence of: )
....................................
(Signature of Witness)
....................................
(Name of Witness in Full)
25
<PAGE>
[MAYER, BROWN AND PLATT LETTERHEAD]
Exhibit 5.1
March 14, 2000
Securitisation Advisory Services Pty. Limited
Level 8, 48 Martin Place
Sydney 2000
Australia
Ladies and Gentlemen:
We have acted as your counsel in connection with the preparation of the
Registration Statement on Form S-11 (the "Registration Statement"), and the
Prospectus forming a part thereof (the "Prospectus"), filed by you with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act") relating to the Class A- 1 Notes (as defined
below). The Registration Statement and the Prospectus relate to the offer and
sale of the Class A-1 Mortgage Backed Floating Rate Notes (the "Class A-1
Notes") to be issued by Perpetual Trustee Company Limited in its capacity as
trustee of the Series 2000-1G Medallion Trust (in such capacity, the "Issuer
Trustee") pursuant to the terms of the Master Trust Deed, the Series Supplement,
the Class A-1 Note Trust Deed, the Terms and Conditions of the Class A-1 Notes
and the Agency Agreement (collectively, the "Documents") as described in the
Registration Statement. The Master Trust Deed and forms of certain of the other
Documents are included as exhibits to the Registration Statement. We have
examined the Registration Statement, the Prospectus and such other documents as
we have deemed necessary or advisable for purposes of rendering this opinion.
Additionally, our advice has formed the basis for the description of the
selected Federal income tax consequences of the purchase, ownership and
disposition of the Class A-1 Notes to an original purchaser who is subject to
United States Federal income tax that appears under the heading "United States
Federal Income Tax Matters" in the Prospectus (the "Tax Description"). Except as
otherwise indicated herein, all terms defined in the Prospectus are used herein
as so defined.
We have assumed for the purposes of the opinions set forth below that
the Class A-1 Notes will be issued as described in the Registration Statement
and that the Class A-1 Notes will, at your direction, be sold by the Issuer
Trustee for reasonably equivalent consideration. We have also assumed that the
Documents and the Class A-1 Notes will be duly authorized by
<PAGE>
Securitisation Advisory Services
Pty. Limited
March 14, 2000
Page 2
all necessary corporate action and that the Class A-1 Notes will be duly issued,
executed, authenticated and delivered in accordance with the provisions of the
Documents. In addition, we have assumed that the parties to each Document will
satisfy their respective obligations thereunder.
With respect to the opinion set forth in paragraph 1 of this letter, we
have relied, without independent investigation, on the opinion of Mallesons
Stephen Jaques as to those matters governed by the laws of the Commonwealth of
Australia or the laws of any of the States or Territories thereof.
The opinion set forth in paragraph 2 of this letter is based upon the
applicable provisions of the Internal Revenue Code of 1986, as amended, Treasury
regulations promulgated and proposed thereunder, current positions of the
Internal Revenue Service (the "IRS") contained in published Revenue Rulings and
Revenue Procedures, current administrative positions of the IRS and existing
judicial decisions. This opinion is subject to the explanations and
qualifications set forth under the caption "United States Federal Income Tax
Matters" in the Prospectus. No tax rulings will be sought from the IRS with
respect to any of the matters discussed herein.
On the basis of the foregoing examination and assumptions, and upon
consideration of applicable law, it is our opinion that:
1. When each of the Documents has been duly and validly completed,
executed and delivered by each and every party thereto substantially in the form
filed as an exhibit to the Registration Statement and the Class A-1 Notes have
been duly executed, authenticated, delivered and sold as contemplated in the
Registration Statement, such Class A-1 Notes will be legally and validly issued
and binding obligations of the Issuer Trustee.
2. While the Tax Description does not purport to discuss all possible
Federal income tax ramifications of the purchase, ownership, and disposition of
the Class A-1 Notes, particularly to U.S. purchasers subject to special rules
under the Internal Revenue Code of 1986, we hereby adopt and confirm the
opinions set forth in the Prospectus under the headings "Summary -- U.S. Tax
Status" and "United States Federal Income Tax Matters", which discuss the
material Federal income tax consequences of the purchase, ownership and
disposition of the Class A-1 Notes. There can be no assurance, however, that the
tax conclusions presented therein will not be successfully challenged by the
IRS, or significantly
<PAGE>
Securitisation Advisory Services
Pty. Limited
March 14, 2000
Page 3
altered by new legislation, changes in IRS positions or judicial decisions, any
of which challenges or alterations may be applied retroactively with respect to
completed transactions.
We hereby consent to the filing of this letter as an exhibit to the
Registration Statement and to the references to this firm under the headings
"Summary -- U.S. Tax Status," "United States Federal Income Tax Matters" and
"Legal Matters" in the Prospectus, without admitting that we are "experts"
within the meaning of the Act or the rules and regulations of the Commission
issued thereunder, with respect to any part of the Registration Statement,
including this exhibit.
Very truly yours,
MAYER, BROWN & PLATT
<PAGE>
[Clayton UTZ Letterhead]
Exhibit 8.2
Our Reference: 161/1454036
Your Reference:
Partner/Solicitor Contact:
Stephen Gates - 9353 4161
14 March 2000
Securitisation Advisory Services Pty. Limited
Level 8
48 Martin Place
SYDNEY NSW 2000
Dear Sirs
COMMONWEALTH BANK OF AUSTRALIA: GLOBAL MORTGAGE BACKED SECURITIES
We have acted for Securitisation Advisory Services Pty. Limited ("SAS") in
connection with the Series 2000-1G Medallion Trust (the "Trust") to be
constituted under the Master Trust Deed dated 8 October 1997 (as amended)
between SAS and Perpetual Trustee Company Limited (the "Trustee") (the "Master
Trust Deed") and the draft Series Supplement dated 9 March 2000 between the
Commonwealth Bank of Australia ("CBA"), the Trustee and SAS (the "Series
Supplement").
Definitions in the Prospectus (as defined below) apply in this opinion but
Relevant Jurisdiction means the Commonwealth of Australia or New South Wales. No
assumption or qualification in this opinion limits any other assumption or
qualification in it.
1. Documents
We have examined the following draft documents:
(a) the Master Trust Deed;
(b) the Series Supplement;
(c) the draft Class A-1 Note Trust Deed dated 9 March 2000 between the
Trustee, SAS and Bank of New York, New York Branch;
(d) the draft Security Trust Deed dated 9 March 2000 between SAS, the
Trustee, Bank of New York, New York Branch and P.T. Limited;
(e) the draft Liquidity Facility Agreement dated 9 March 2000 between CBA,
the Trustee and SAS;
(f) the draft Standby Redraw Facility Agreement dated 9 March 2000 between
CBA, the Trustee and SAS;
(g) the draft Basis Swap and Fixed Rate Swap dated 9 March 2000 between CBA,
the Trustee and SAS;
(h) the draft Currency Swaps dated 9 March 2000 between CBA, the Trustee, SAS
and Merrill Lynch Capital Services, Inc.;
(i) the draft Underwriting Agreement dated 5 March 2000 between CBA, the
Trustee, SAS and J.P. Morgan Securities Inc., as representative for the
several underwriters listed in Schedule 1 thereto;
<PAGE>
Securitisation Advisory Services Pty. Limited 14 March 2000
- -------------------------------------------------------------------------------
(j) the draft Agency Agreement dated 9 March 2000 between, among others, SAS
and the Trustee; and
(k) a copy of the Prospectus which forms part of the Registration Statement
on Form S-11 (Registration No.333-93721) filed with the Securities and
Exchange Commission (the Commission) under the US Securities Act of 1933
(the "Prospectus").
2. Assumption
For the purposes of giving this opinion we have assumed that where a document
has been submitted to us in draft form it will be executed in the form of that
draft.
3. Qualifications
Our opinion is subject to the following qualifications.
(a) We express no opinion as to any laws other than the laws of each Relevant
Jurisdiction as in force at the date of this opinion and, in particular
we express no opinion as to the laws of England or the United States.
(b) Our opinion is subject to the explanations and qualifications set forth
under the caption "Australian Tax Matters" in the Prospectus.
4. Opinion
Based on the assumption and subject to the qualifications set out above we are
of the opinion that while the section entitled "Australian Tax Matters" in the
Prospectus does not purport to discuss all possible Australian tax ramifications
of the purchase, ownership, and disposition of the Class A-1 notes, we hereby
adopt and confirm the opinions set forth in the Prospectus under the heading
"Australian Tax Matters" which discuss the material Australian income tax
consequences of the purchase ownership and disposition of the Class A-1 notes.
There can be no assurance, however, that the tax conclusions presented in that
section will not be successfully challenged by the Australian Taxation Office,
or significantly altered by new legislation, changes in Australian Taxation
Office positions or judicial decisions, any of which challenges or alterations
may be applied retroactively with respect to completed transactions.
We consent to the filing of this letter as an exhibit to the Registration
Statement on Form S-11 filed with the Prospectus and to the references to this
firm under the heading "Australian Tax Matters", "Enforcement of Foreign
Judgments in Australia" and "Legal Matters" in the Prospectus, without admitting
that we are "experts" within the meaning of the Securities Act of 1933 of the
rules and regulations of the Commission issued under that Act with respect to
any part of the Registration Statement, including this exhibit.
Yours faithfully
CLAYTON UTZ
/s/ Stephen Gates
Stephen Gates
Partner
2.
<PAGE>
EXHIBIT 10.1
Draft: 9 March 2000
Series 2000-1G Medallion Trust
Standby Redraw Facility Agreement
Date:
Commonwealth Bank of Australia
Standby Redraw Facility Provider
Perpetual Trustee Company Limited
Trustee
Securitisation Advisory Services Pty. Limited
Manager
CLAYTON UTZ
Lawyers
Levels 27-35
No.1 O'Connell Street
SYDNEY NSW 2000
AUSTRALIA
(C) Copyright Clayton Utz
Liability is limited by the Solicitors Scheme under the Professional Standards
Act 1994 NSW
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Clause Page
<S> <C>
1. INTERPRETATION 1
1.1 Definitions 1
1.2 Series Supplement and Master Trust Deed Definitions 4
1.3 Interpretation 4
1.4 Trustee Capacity 5
1.5 Master Trust Deed and Series Supplement 6
1.6 Incorporated Definitions and other Transaction Documents and provisions 6
2. THE FACILITY 6
2.1 Amount 6
2.2 Purpose 6
2.3 Extension of Scheduled Termination Date 6
2.4 Termination of the Facility 6
3. CONDITIONS PRECEDENT 6
3.1 Conditions Precedent to First Advance 6
3.2 Conditions Precedent to all Advances 7
4. DRAWDOWN 7
4.1 Preparation of Drawdown Notices 7
4.2 Service of Drawdown Notices 7
4.3 Requirements of Drawdown Notices 8
4.4 Availability of Facility 8
4.5 Making of Advances 8
4.6 Book Entry Set-off of Advances against Seller Advances 8
5. INTEREST 8
5.1 Interest Period 8
5.2 Calculation of Interest 9
5.3 Payment of Interest 9
5.4 Interest on Unpaid Interest 9
5.5 Interest on Overdue Sums 9
6. REPAYMENT OF STANDBY REDRAW FACILITY PRINCIPAL 9
6.1 Repayment of Standby Redraw Facility Principal during the Availability
Period 9
6.2 Re-Drawing 9
6.3 Repayment on Termination 9
6.4 Payments Under Security Trust Deed 10
6.5 Principal Charge-offs 10
6.6 Principal Charge-off Reimbursement 10
7. PAYMENTS 10
7.1 Time on Due Date and Free of Set-off & Taxes 10
7.2 Certificate 10
8. ILLEGALITY AND INCREASED COST 10
8.1 Illegality 10
8.2 Increased Cost 11
9. FEES 11
10. REPRESENTATIONS AND WARRANTIES 12
10.1 General Representations and Warranties 12
10.2 Corporate Representations and Warranties 12
10.3 Series Trust Representations and Warranties 12
</TABLE>
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Clause Page
<S> <C>
10.4 Representations and Warranties Repeated 13
11. UNDERTAKINGS 13
11.1 General 13
11.2 Manager's Undertakings after Manager Event 13
12. EVENTS OF DEFAULT 14
12.1 Events of Default 14
12.2 Consequences of Event of Default 14
13. TRUSTEE PROVISIONS 14
13.1 Limitation on Trustee's Liability 14
13.2 Claims against Trustee 15
13.3 Breach of Trust 15
13.4 Acts or omissions 15
13.5 No obligation 15
14. ASSIGNMENT 15
14.1 Assignment by Trustee 15
14.2 Assignment by Standby Redraw Facility Provider 16
15. NOTICES 16
15.1 Method of Delivery 16
15.2 Deemed Receipt 16
16. INDEMNITY 16
16.1 Indemnity on Demand 16
16.2 Losses on Liquidation or Re-employment of Deposits 17
16.3 Payment on Distribution Date 17
17. MISCELLANEOUS 17
17.1 Stamp Duties 17
17.2 Waiver 17
17.3 Written Waiver, Consent and Approval 18
17.4 Severability 18
17.5 Survival of Indemnities 18
17.6 Successors and Assigns 18
17.7 Moratorium Legislation 18
17.8 Amendments 18
17.9 Governing Law 18
17.10 Jurisdiction 18
17.11 Counterparts 19
SCHEDULE - DRAWDOWN NOTICE 20
</TABLE>
<PAGE>
THIS STANDBY REDRAW FACILITY AGREEMENT is made in Sydney on 2000
BETWEEN COMMONWEALTH BANK OF AUSTRALIA, ACN 123 123 124, a company
incorporated in the Australian Capital Territory and having an
office at Level 8, 48 Martin Place, Sydney, Australia (the
"Standby Redraw Facility Provider")
AND PERPETUAL TRUSTEE COMPANY LIMITED, ACN 000 001 007, a company
incorporated in the State of New South Wales and having an office
at Level 3, 39 Hunter Street, Sydney, Australia, in its capacity
as trustee of the Series Trust (the "Trustee")
AND SECURITISATION ADVISORY SERVICES PTY. LIMITED, ACN 064 133 946, a
company incorporated in the State of New South Wales and having
an office at Level 8, 48 Martin Place, Sydney, Australia ("SAS"
and also hereinafter included within the expression the
"Manager")
RECITALS:
A. The Trustee and the Manager are respectively the trustee and the manager
of the Series Trust.
B. The Manager has requested the Standby Redraw Facility Provider to provide
the Trustee with the Facility in connection with the Approved Purpose.
C. The Standby Redraw Facility Provider has agreed to provide the Facility
to the Trustee on the terms and conditions contained in this Agreement.
THE PARTIES AGREE:
1. INTERPRETATION
1.1 Definitions
In this Agreement, unless the contrary intention appears:
"Advance" means the principal amount of each advance to the Trustee by
the Standby Redraw Facility Provider in accordance with this Agreement.
"Approved Purpose" means the use of an Advance to meet a Redraw Shortfall
in accordance with the Series Supplement.
"Authorised Officer" in relation to the Standby Redraw Facility Provider
means any person from time to time appointed by the Standby Redraw
Facility Provider to act as its Authorised Officer for the purposes of
this Agreement and notified to the Trustee.
"Availability Period" means the period commencing on the date of this
Agreement and ending on the Termination Date.
"BBSW" in relation to an Interest Period means the rate appearing at
approximately 10.00 am on the first day of that Interest Period on the
Reuters Screen page "BBSW" as being the average of the mean buying and
selling rates appearing on that page for a bill of exchange having a tenor
of three months. If on the first day of a Interest Period fewer than four
banks are quoted on the Reuters Screen page "BBSW" or for any other reason
"BBSW" for an Interest Period cannot be determined in accordance with the
foregoing provisions, then "BBSW" for that Interest Period means such rate
as is specified by the Standby Redraw Facility Provider having regard to
comparable indices then available.
"Drawdown Date" means, in relation to an Advance or proposed Advance, the
Distribution Date immediately following the delivery of the corresponding
Drawdown Notice to the Standby Redraw Facility Provider in accordance
with this Agreement.
1.
<PAGE>
"Drawdown Margin" means 0.15% per annum.
"Drawdown Notice" means a notice given under clause 4.
"Drawing" means, subject to clause 4.6, an Advance by way of deposit by
the Standby Redraw Facility Provider in the Collections Account in
accordance with clause 4.5.
"Effective Control" means:
(a) control of the composition of the board of directors of SAS;
(b) control of more than half of the voting power of SAS; or
(c) control of more than half of the issued share capital of SAS excluding
any part of such issued share capital which carries no right to
participate beyond a specified amount in the distribution of either
profit or capital.
"Event of Default" means any of the events set out or referred to in
clause 12.1 as an Event of Default.
"Facility" means the standby redraw facility granted to the Trustee by
the Standby Redraw Facility Provider on the terms and conditions of this
Agreement.
"Facility Limit" means at any given time the lesser of:
(a) A$50 million; and
(b) the Performing Mortgage Loans Amount at that time;
or such greater or lesser amount from time to time agreed in writing by
the Standby Redraw Facility Provider, the Manager and the Rating Agencies
and notified to the Trustee in writing.
"Interest Period" means each period determined in accordance with clause
5.1.
"Manager" means SAS or if SAS retires or is removed as manager of the
Series Trust, any then Substitute Manager, and includes the Trustee when
acting as the manager of the Series Trust in accordance with the
provisions of the Master Trust Deed.
"Manager Event" means:
(a) SAS ceases to be a body over which the Standby Redraw Facility
Provider has Effective Control; or
(b) SAS ceases to be the manager of the Series Trust.
"Master Trust Deed" means the Master Trust Deed dated 8 October 1997
between the Trustee and SAS, as amended from time to time.
"Obligations" means all of the liabilities of the Trustee to the Standby
Redraw Facility Provider under this Agreement and, without limiting the
generality of the foregoing, includes any liabilities which:
(a) are liquidated;
(b) are present, prospective or contingent;
(c) relate to the payment of money or the performance or omission of any
act;
(d) sound in damages only; or
(e) accrue as a result of any Event of Default.
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"Performing Mortgage Loans Amount" means at any time the aggregate of the
following:
(a) the amount outstanding under Mortgage Loans forming part of the Assets
of the Series Trust in relation to which no payment due from the
relevant Borrower has been in arrears by more than 90 days; and
(b) the amount outstanding under Mortgage Loans forming part of the Assets
of the Series Trust in relation to which a payment due from the
relevant Borrower has been in arrears by more than 90 days and which
are insured under a Mortgage Insurance Policy.
"Prescribed Rate" in relation to an Interest Period means the sum of:
(a) BBSW for that Interest Period; and
(b) the Drawdown Margin,
or such rate as is otherwise agreed by the Trustee, the Manager and the
Standby Redraw Facility Provider provided that each Rating Agency is given
not less than 3 Business Days prior notice by the Manager of any variation
to the Prescribed Rate and the Prescribed Rate will not be varied if such
variation would result in a reduction in any then current credit rating of
a Security.
"Receiver" means a person appointed under or by virtue of the Security
Trust Deed as a receiver or receiver and manager.
"Redraw Amount" in relation to a Determination Date means the lesser of:
(a) the then un-utilised portion of the Facility Limit; and
(b) the Redraw Shortfall on that Determination Date.
"Redraw Shortfall" in relation to a Determination Date means the amount (if
any) by which the Principal Collections, Principal Charge-off
Reimbursements and Other Principal Amounts for the Collection Period just
ended are insufficient to meet in full the repayment of Seller Advances
made during or prior to that Collection Period which have not previously
been repaid.
"Scheduled Termination Date" means the date which is 364 days after the
date of this Agreement or such later date specified by the Standby Redraw
Facility Provider pursuant to clause 2.3.
"Series Supplement" means the Series Supplement dated on or about the
date of this Agreement between the Standby Redraw Facility Provider (as
Seller and Servicer), SAS and the Trustee.
"Series Trust" means the trust known as the Series 2000-1G Medallion
Trust established pursuant to the Master Trust Deed and the Series
Supplement.
"Specified Rate" means, on any day, the sum of:
(a) BBSW for the Interest Period that includes that day (or if the day is
not within an Interest Period, BBSW for the first Business Day of the
month that includes that day as if that month were an Interest
Period);
(b) the Drawdown Margin; and
(c) 0.10% per annum.
"Standby Redraw Facility Principal" means at any given time, the
aggregate of all the then Advances less:
(a) any then repayments of Standby Redraw Facility Principal pursuant
to this
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Agreement; and
(b) any amounts previously allocated pursuant to clause 9.1 of the Series
Supplement to reduce the then Standby Redraw Facility Principal and
not then reinstated pursuant to clause 9.2 of the Series Supplement.
"Termination Date" means the earlier of:
(a) the Scheduled Termination Date; and
(b) the date on which the Standby Redraw Facility Provider declares or
appoints the Facility terminated in accordance with this Agreement.
1.2 Series Supplement and Master Trust Deed Definitions
Subject to clause 1.6, unless defined in this Agreement, words and phrases
defined in either or both of the Master Trust Deed and the Series
Supplement have the same meaning in this Agreement. Where there is any
inconsistency in a definition between this Agreement (on the one hand) and
the Master Trust Deed or the Series Supplement (on the other hand), this
Agreement prevails. Where there is any inconsistency in a definition
between the Master Trust Deed and the Series Supplement, the Series
Supplement prevails over the Master Trust Deed in respect of this
Agreement. Subject to clause 1.6, where words or phrases used but not
defined in this Agreement are defined in the Master Trust Deed in relation
to a Series Trust (as defined in the Master Trust Deed) and/or an Other
Trust such words or phrases are to be construed in this Agreement, where
necessary, as being used only in relation to the Series Trust (as defined
in this Agreement) and/or the CBA Trust, as the context requires.
1.3 Interpretation
In this Agreement, unless the contrary intention appears:
(a) headings are for convenience only and do not affect the interpretation
of this Agreement;
(b) a reference to this "Agreement" includes the Recitals and the
Schedule;
(c) the expression "person" includes an individual, the estate of an
individual, a body politic, a corporation and a statutory or other
authority or association (incorporated or unincorporated);
(d) a reference to a person includes that person's executors,
administrators, successors, substitutes and assigns, including any
person taking by way of novation;
(e) subject to clause 1.6, a reference to any document or agreement is to
such document or agreement as amended, novated, supplemented, varied
or replaced from time to time;
(f) a reference to any legislation or to any section or provision of any
legislation includes any statutory modification or re-enactment or any
statutory provision substituted for that legislation and all
ordinances, by-laws, regulations and other statutory instruments
issued under that legislation, section or provision;
(g) words importing the singular include the plural (and vice versa) and
words denoting a given gender include all other genders;
(h) a reference to a clause is a reference to a clause of this Agreement;
(i) the expression "certified" means, in respect of a person, certified in
writing by two Authorised Officers of that person and "certify" and
like expressions will be construed accordingly;
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(j) a reference to "wilful default" in relation to the Trustee or the
Manager, means, subject to clause 1.3(k), any wilful failure by the
Trustee to comply with, or wilful breach by the Trustee or the Manager
(as the case may be) of, any of its obligations under any Transaction
Document, other than a failure or breach which:
(i) A. arises as a result of a breach of a Transaction Document
by a person other than:
(1) the Trustee or the Manager (as the case may be);
or
(2) any other person referred to in clause 1.3(k);
and
B. the performance of the action (the non-performance of which
gave rise to such breach) is a pre-condition to the Trustee
or the Manager (as the case may be) performing the said
obligation; or
(ii) is in accordance with a lawful court order or direction or is
required by law; or
(iii) is in accordance with a proper instruction or direction of
Investors given at a meeting convened under any Transaction
Document;
(k) a reference to the "fraud", "negligence" or "wilful default" of the
Trustee means the fraud, negligence or wilful default of the Trustee
and of its officers, employees, agents and any other person where the
Trustee is liable for the acts or omissions of such other person under
the terms of any Transaction Document.
(l) where any word or phrase is given a defined meaning, any other part of
speech or other grammatical form in respect of such word or phrase has
a corresponding meaning;
(m) where any day on which a payment is due to be made or a thing is due
to be done under this Agreement is not a Business Day, that payment
must be made or that thing must be done on the immediately succeeding
Business Day;
(n) a reference to the "close of business" on any day is a reference to
5.00 pm on that day;
(o) a reference to time is to local time in Sydney; and
(p) subject to clause 15.2, each party will only be considered to have
knowledge or awareness of, or notice of, a thing or grounds to believe
anything by virtue of the officers of that party (or any Related Body
Corporate of that party) having day to day responsibility for the
administration or management of that party's (or a Related Body
Corporate of that party's) obligations in relation to the Series Trust
having actual knowledge, actual awareness or actual notice of that
thing, or grounds or reason to believe that thing (and similar
references will be interpreted in this way). In addition, notice,
knowledge or awareness of an Event of Default, Manager Default,
Trustee Default, Servicer Default or Perfection of Title Event means
notice, knowledge or awareness of the occurrence of the events or
circumstances constituting an Event of Default, Manager Default,
Trustee Default, Servicer Default or Perfection of Title Event (as the
case may be).
1.4 Trustee Capacity
In this Agreement, except where provided to the contrary:
(a) (References to Trustee): a reference to the Trustee is a
reference to the Trustee in its capacity as trustee of the Series
Trust only, and in no other capacity; and
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(b) (References to assets of the Trustee): a reference to the undertaking,
assets, business or money of the Trustee is a reference to the
undertaking, assets, business or money of the Trustee in the capacity
referred to in paragraph (a).
1.5 Master Trust Deed and Series Supplement
For the purposes of the Master Trust Deed and the Series Supplement:
(a) (Transaction Document): this Agreement is a Transaction Document; and
(b) (Support Facility): the Facility made available pursuant to the terms
of this Agreement is a Support Facility.
1.6 Incorporated Definitions and other Transaction Documents and provisions
Where in this Agreement a word or expression is defined by reference to its
meaning in another Transaction Document or there is a reference to another
Transaction Document or to a provision of another Transaction Document, any
amendment to the meaning of that word or expression or to that other
Transaction Document or provision (as the case may be) will be of no effect
for the purposes of this Agreement unless and until the amendment is
consented to by the parties to this Agreement.
2. THE FACILITY
2.1 Amount
Subject to this Agreement, the Standby Redraw Facility Provider agrees to
make Advances to the Trustee up to an aggregate principal amount equal to
the Facility Limit.
2.2 Purpose
The Manager will direct the Trustee to use, and the Trustee will use, the
proceeds of each Advance under the Facility exclusively for the Approved
Purpose.
2.3 Extension of Scheduled Termination Date
(a) (Manager to request extension): Not less than 60 days before the then
Scheduled Termination Date, the Manager may deliver a notice in
writing to the Standby Redraw Facility Provider (with a copy to the
Trustee) requesting the Standby Redraw Facility Provider to extend the
Scheduled Termination Date.
(b) (Standby Redraw Facility Provider may extend): Following receipt by
the Standby Redraw Facility Provider of the notice referred to in
paragraph (a), the Standby Redraw Facility Provider may, in its
absolute discretion, send the Trustee a notice in writing (copied to
the Manager) extending the then Scheduled Termination Date to the new
Scheduled Termination Date specified in the notice (which must not be
more than 364 days after the date of the notice).
2.4 Termination of the Facility
The Facility will terminate on the Termination Date.
3. CONDITIONS PRECEDENT
3.1 Conditions Precedent to First Advance
The Standby Redraw Facility Provider is not obliged to make the first
Advance to the Trustee unless the Standby Redraw Facility Provider has
received each of the following, in form and substance acceptable to the
Standby Redraw Facility Provider:
(a) (This Agreement): this Agreement duly executed and delivered by the
Trustee and the Manager;
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(b) (Power of attorney): a copy of each power of attorney under which this
Agreement has been or will be executed by the Trustee and the Manager,
certified as a true copy by the Trustee and the Manager respectively;
(c) (Authorised Officers): a certificate setting out in full the name and
specimen signature of each Authorised Officer of the Manager;
(d) (Security Trust Deed): a copy of the Security Trust Deed executed by
the parties thereto and certified as a true copy by the Manager;
(e) (GEMICO Mortgage Insurance Policy): an executed original counterpart
of the GEMICO Mortgage Insurance Policy together with a letter from
GEMICO confirming that it has accepted for insurance under the GEMICO
Mortgage Insurance Policy the Mortgage Loans referred to in the
certificate attached to the letter; and
(f) (Legal opinion): a legal opinion addressed to the Standby Redraw
Facility Provider from the Trustee's solicitors in form and substance
satisfactory to the Standby Redraw Facility Provider.
3.2 Conditions Precedent to all Advances
The obligation of the Standby Redraw Facility Provider to make each
Advance is subject to the further conditions precedent that:
(a) (Representations and warranties true): the representations and
warranties made or deemed to be made by the Trustee in any Transaction
Document are true and correct as of the date of the corresponding
Drawdown Notice and the relevant Drawdown Date as though made at that
date;
(b) (No Event of Default): no Event of Default is subsisting at the date
of the relevant Drawdown Notice and the relevant Drawdown Date or will
result from the provision or continuation of the Advance; and
(c) (No notice of Security Interests): other than in respect of priorities
granted by statute, the Standby Redraw Facility Provider has not
received notice from any person that it claims to have a Security
Interest ranking in priority to or equal with the Security Interest
held by the Standby Redraw Facility Provider under the Security Trust
Deed.
4. DRAWDOWN
4.1 Preparation of Drawdown Notices
If on a Determination Date the Manager determines in accordance with the
Series Supplement that a Redraw Shortfall has occurred in respect of the
Collection Period just ended the Manager must:
(a) (Prepare Drawdown Notice): prepare a Drawdown Notice in accordance
with clause 4.3 requesting an Advance on the next Distribution Date;
and
(b) (Deliver Drawdown Notice): deliver the Drawdown Notice to the Trustee
no later than the close of business on the Business Day which is not
less than 3 Business Days before the proposed Drawdown Date.
4.2 Service of Drawdown Notices
If the Trustee receives a Drawdown Notice from the Manager pursuant to
clause 4.1, it must:
(a) (Sign Drawdown Notice): sign the Drawdown Notice in accordance with
clause 4.3(b); and
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(b) (Deliver Drawdown Notice): deliver the signed Drawdown Notice to the
Standby Redraw Facility Provider by the time specified in clause
4.4(a).
4.3 Requirements of Drawdown Notices
A Drawdown Notice must:
(a) (Form): be in the form of the Schedule (or in such other form as from
time to time agreed amongst the Standby Redraw Facility Provider, the
Manager and the Trustee);
(b) (Authorised Officer): be signed by an Authorised Officer of the
Trustee;
(c) (Specify Drawdown Date): specify the proposed Drawdown Date for the
requested Advance which must be the next Distribution Date;
(d) (Irrevocable): be irrevocable;
(e) (Redraw Amount): specify the Redraw Amount; and
(f) (Calculation): provide details of the calculation of the Redraw
Amount.
4.4 Availability of Facility
The Trustee may make a Drawing on any Distribution Date during the
Availability Period provided that:
(a) (Receipt of Drawdown Notice): the Standby Redraw Facility Provider has
received not later than 11.00 am on the Business Day which is not less
than 2 Business Days before the proposed Drawdown Date (or such later
time as the Standby Redraw Facility Provider may agree), a duly
completed Drawdown Notice; and
(b) (Conditions precedent): the requirements of clause 3 have been
satisfied or waived in writing by the Standby Redraw Facility Provider
before the Drawdown Notice is given.
4.5 Making of Advances
After receipt of a Drawdown Notice the amount of the Advance requested in a
Drawdown Notice will, subject to clause 4.6 but otherwise without set-off
or deduction on any other account, be deposited by the Standby Redraw
Facility Provider in the Collections Account in immediately available funds
no later than 10.00 am on the Drawdown Date.
4.6 Book Entry Set-off of Advances against Seller Advances
The Standby Redraw Facility Provider may make an Advance on a Drawdown Date
by way of a book entry in its records provided that it also makes a book
entry in its records reducing the amount of the outstanding Seller Advances
to be repaid by such Advance on that Drawdown Date by the amount of such
Advance.
5. INTEREST
5.1 Interest Period
(a) (Duration): The duration of the Facility is divided into successive
Interest Periods.
(b) (First Interest Period): The first Interest Period commences on (and
includes) the first Drawdown Date and ends on (but excludes) the next
following Distribution Date.
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(c) (Succeeding Interest Periods): Each succeeding Interest Period
commences on (and includes) a Distribution Date and ends on (but
excludes) the next following Distribution Date.
(d) (Last Interest Period): The last Interest Period ends on (but
excludes) the first Distribution Date that:
(i) follows the Termination Date; and
(ii) upon which all moneys the payment or repayment of which form part
of the Obligations are paid or repaid in full to the Standby
Redraw Facility Provider.
5.2 Calculation of Interest
Interest on the Standby Redraw Facility Principal accrues from day to day
in respect of each Interest Period at the Prescribed Rate for that Interest
Period on the amount of the Standby Redraw Facility Principal on that day
and based on a 365 day year.
5.3 Payment of Interest
The Trustee at the direction of the Manager will on each Distribution Date
pay to the Standby Redraw Facility Provider so much of the then accrued
interest on the Standby Redraw Facility Principal as is available for this
purpose in accordance with the Series Supplement.
5.4 Interest on Unpaid Interest
If any payment by the Trustee on a Distribution Date pursuant to clause 5.3
is insufficient to pay the full amount of the then accrued interest on the
Standby Redraw Facility Principal, such unpaid accrued interest will in
turn accrue interest (as a separate and independent obligation) until paid
at the Prescribed Rate for each succeeding Interest Period and if not paid
on the Distribution Date at the end of each such succeeding Interest
Period, will itself bear interest in accordance with this clause.
5.5 Interest on Overdue Sums
If the Trustee fails to pay any amount due and payable by it under or in
respect of this Agreement at the time and in the manner required under this
Agreement and the Series Supplement that amount will bear interest in
accordance with this clause. Such interest is payable on demand and will
accrue on such amount from day to day at the Specified Rate for that day
from the date such amount is due for payment up to the date of actual
payment, before and (as a separate and independent obligation) after
judgment and if not paid at the end of a 30 day period will itself bear
interest in accordance with this clause.
6. REPAYMENT OF STANDBY REDRAW FACILITY PRINCIPAL
6.1 Repayment of Standby Redraw Facility Principal during the Availability
Period
The Trustee will on each Distribution Date repay so much of the Standby
Redraw Facility Principal on the previous Determination Date as is
available for this purpose in accordance with the Series Supplement.
6.2 Re-Drawing
Amounts repaid pursuant to clause 6.1 may be redrawn by the Trustee in
accordance with the terms of this Agreement.
6.3 Repayment on Termination
Notwithstanding clause 6.1, on the Distribution Date immediately following
the Termination Date, the Trustee will pay or repay so much of the
aggregate of all Standby Redraw Facility Principal together with interest
accrued thereon and all other money, the payment or repayment of which
forms part of the Obligations, as is available for this
9.
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purpose in accordance with the Series Supplement. If all amounts due in
accordance with this clause 6.3 are not paid or repaid in full on the
Distribution Date immediately following the Termination Date, on each
succeeding Distribution Date the Trustee will pay or repay so much of such
amounts as is available for this purpose in accordance with the Series
Supplement until such amounts are paid or repaid in full.
6.4 Payments Under Security Trust Deed
Without prejudice to clause 13, the limitation of the Trustee's liability
to make payments in clauses 6.3, 8.2, 9 and 16.3 will not apply for the
purposes of calculating any amounts payable out of the Assets of the Series
Trust to the Standby Redraw Facility Provider pursuant to the Security
Trust Deed.
6.5 Principal Charge-offs
A Principal Charge-off in relation to the Standby Redraw Facility Principal
pursuant to clause 9.1 of the Series Supplement reduces the amount of the
Standby Redraw Facility Principal immediately prior to such Principal
Charge-off by the amount of the Principal Charge-off with effect from the
Distribution Date following the Determination Date upon which the Principal
Charge-off was determined.
6.6 Principal Charge-off Reimbursement
A Principal Charge-off Reimbursement in relation to the Standby Redraw
Facility Principal pursuant to clause 9.2 of the Series Supplement
increases the amount of the Standby Redraw Facility Principal immediately
prior to such Principal Charge-off Reimbursement with effect from the
Distribution Date following the Determination Date upon which the Principal
Charge-off Reimbursement was determined.
7. PAYMENTS
7.1 Time on Due Date and Free of Set-off & Taxes
All payments to be made by the Trustee under this Agreement will:
(a) (Due date): be made not later than close of business on the due date
for payment and all such payments will be made in the manner and to
such account as the Standby Redraw Facility Provider directs in
writing; and
(b) (Set-off): be made without set-off or counterclaim and free and clear
of and without deduction for or on account of present or future Taxes,
levies, imposts, duties, charges, fees, deductions, withholdings,
restrictions or conditions of any nature.
7.2 Certificate
A certificate signed by an Authorised Officer of the Standby Redraw
Facility Provider stating any amount or rate for the purposes of this
Agreement will, in the absence of manifest error on its face, constitute
prima facie evidence of the amount or rate stated therein.
8. ILLEGALITY AND INCREASED COST
8.1 Illegality
If any change in applicable law, regulation, treaty or official directive
or in the interpretation or administration thereof by any Governmental
Agency charged with the administration thereof makes it, in the reasonable
opinion of counsel to the Standby Redraw Facility Provider evidenced in
writing and addressed to the Trustee, unlawful or impossible for the
Standby Redraw Facility Provider to maintain or give effect to its
obligations under this Agreement, the Standby Redraw Facility Provider may
by written notice to the Trustee (with a copy to the Manager) appoint a
date as the Termination Date which date must not be prior to 30 days (or
such shorter period required by law) after the date of receipt by the
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Trustee of written notice from the Standby Redraw Facility Provider
appointing the Termination Date.
8.2 Increased Cost
(a) (Change in law): If by reason of any change in law or in its
interpretation or administration or because of compliance with any
request from or requirement of any fiscal, monetary or other
Governmental Agency:
(i) the Standby Redraw Facility Provider incurs a cost as a
result of its having entered into or performing its
obligations under this Agreement or as a result of any
Advance being outstanding hereunder;
(ii) there is any increase in the cost to the Standby Redraw
Facility Provider of funding or maintaining any Advance;
(iii) the amount of principal, interest or other amount payable
to the Standby Redraw Facility Provider or the effective
return to the Standby Redraw Facility Provider under this
Agreement is reduced; or
(iv) the Standby Redraw Facility Provider becomes liable to make
any payment (not being a payment of Tax on its overall net
income) on or calculated by reference to the amount of
Advances made under this Agreement,
then from time to time on notification by the Standby Redraw
Facility Provider (copied to the Manager) the Trustee will on the
Distribution Date following such notification and on each
succeeding Distribution Date until the Standby Redraw Facility
Provider is paid in full pay to the Standby Redraw Facility
Provider so much of the amounts sufficient to indemnify the
Standby Redraw Facility Provider against such cost, increased
cost, reduction or liability that is available for this purpose in
accordance with the Series Supplement.
(b) (No defence): If the Standby Redraw Facility Provider has acted
in good faith it will not be a defence to the Trustee, in the
event of any failure by the Trustee to comply with its payment
obligations under clause 8.2(a), that any such cost, increased
cost, reduction or liability could have been avoided. However, the
Standby Redraw Facility Provider will negotiate in good faith with
the Trustee and the Manager with a view to finding a means by
which such cost, increased cost, reduction or liability may be
minimised.
(c) (Certificate conclusive): The Standby Redraw Facility Provider's
certificate as to the amount of, and basis for arriving at, any
such cost, increased cost, reduction or liability is conclusive
and binding on the Trustee in the absence of manifest error on the
face of the certificate.
9. FEES
The Trustee will pay to the Standby Redraw Facility Provider a commitment
fee of 0.05% per annum of the then un-utilised portion of the Facility
Limit. The commitment fee will be calculated daily from the date the
Facility becomes available on the basis of a 365 day year and will be
paid quarterly in arrears on each Distribution Date in accordance with
the Series Supplement. The amount of the commitment fee may be varied by
agreement between the Trustee, the Manager and the Standby Redraw
Facility Provider provided that each Rating Agency is given not less than
3 Business Days prior notice by the Manager of any variation to the
amount of the commitment fee and the amount of the commitment fee will
not be varied if such variation would result in a reduction,
qualification or withdrawal in any then current credit rating of a
Security.
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10. REPRESENTATIONS AND WARRANTIES
10.1 General Representations and Warranties
The Trustee in its capacity as trustee of the Series Trust represents and
warrants to the Standby Redraw Facility Provider that:
(a) (Execution, delivery and performance): the execution, delivery
and performance of this Agreement and each other Transaction
Document in relation to the Series Trust to which it is a party
does not violate any existing law or regulation or any document or
agreement to which it is a party or which is binding upon it or
any of its assets;
(b) (Corporate power and authorisation): the Trustee has the power to
enter into, and to perform its obligations, and has taken all
corporate and other action necessary to authorise the entry into
of, and performance of its obligations under, this Agreement and
each other Transaction Document in relation to the Series Trust
and to which it is a party;
(c) (Legally binding obligation): this Agreement and each of the
other Transaction Documents to which it is a party constitute its
valid and legally binding obligations subject to stamping and any
necessary registration except as such enforceability may be
limited by any applicable bankruptcy, insolvency, reorganisation,
moratorium or trust or other similar laws affecting creditors'
rights generally; and
(d) (No Event of Default): to the best of the Trustee's knowledge no
Event of Default or event which with the giving of notice, lapse
of time or other applicable condition would become an Event of
Default has occurred which has not been waived or remedied in
accordance with this Agreement.
10.2 Corporate Representations and Warranties
The Trustee in its capacity as trustee of the Series Trust represents and
warrants in respect of itself to the Standby Redraw Facility Provider
that:
(a) (Due incorporation): it is duly incorporated and has the
corporate power to own its own property and to carry on its
business as is now being conducted;
(b) (Execution, delivery and performance): the execution, delivery
and performance of this Agreement and each other Transaction
Document in relation to the Series Trust to which it is a party
does not violate its constitution.
10.3 Series Trust Representations and Warranties
The Trustee in its capacity as trustee of the Series Trust represents and
warrants to the Standby Redraw Facility Provider in relation to the
Series Trust as follows:
(a) (Series Trust validly created): the Series Trust has been validly
created and is in existence at the date of this Agreement;
(b) (Sole trustee): the Trustee has been validly appointed as trustee
of the Series Trust and is presently the sole trustee of the
Series Trust;
(c) (No proceedings to remove): no notice has been given to the
Trustee and to the Trustee's knowledge no resolution has been
passed or direction or notice has been given, removing the Trustee
as trustee of the Series Trust;
(d) (Trustee's power): the Trustee has power under the Master Trust
Deed to enter into the Transaction Documents to which it is a
party in its capacity as trustee of the Series Trust; and
(e) (Good title): the Trustee is the lawful owner of the Assets of
the Series Trust
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and has power under the Master Trust Deed to mortgage or charge
them in the manner provided in the Security Trust Deed.
10.4 Representations and Warranties Repeated
Each representation and warranty contained in clauses 10.1, 10.2 and
10.3 will be deemed to be repeated on each Drawdown Date with reference
to the facts and circumstances then subsisting, as if made on each such
day.
11. UNDERTAKINGS
11.1 General
The Trustee undertakes to the Standby Redraw Facility Provider that it
will:
(a) (Act continuously): act continuously as trustee of the Series
Trust in accordance with the Master Trust Deed and the Series
Supplement until the Series Trust is terminated or until it has
retired or been removed in accordance with the Master Trust Deed;
(b) (Do all things necessary): do everything and take all such
actions which are necessary (including, without limitation,
obtaining all such authorisations and approvals as are
appropriate) to ensure that it is able to exercise all its powers
and remedies and perform all its obligations under this Agreement,
other arrangements entered into by the Trustee pursuant to this
Agreement and each Transaction Document to which it is a party;
(c) (Maintain authorisations): ensure that each authorisation
required for it to maintain its status as trustee of the Series
Trust is obtained and promptly renewed and maintained in full
force and effect; and
(d) (Not amend or resolve): not consent to amend or revoke provisions
of the Master Trust Deed, the Series Supplement or the Security
Trust Deed in respect of payments or the order of priorities of
payments to be made thereunder without the prior written consent
of the Standby Redraw Facility Provider.
11.2 Manager's Undertakings after Manager Event
At any time after a Manager Event occurs the Manager will:
(a) (Notify Standby Redraw Facility Provider): immediately notify the
Standby Redraw Facility Provider as soon as it becomes actually
aware of the occurrence of:
(i) any Event of Default, Servicer Default, Trustee Default,
Perfection of Title Event or Manager Default; or
(ii) any litigation, arbitration, criminal or administrative
proceedings relating to any of the Trustee's property,
assets or revenues that involves a claim against it in
excess of A$1 million or that, if decided adversely to it,
could have a material adverse effect on its ability to
perform the Obligations,
and in each case advise the Standby Redraw Facility Provider of
what steps it has taken and what steps it proposes to take in
relation to such occurrences; and
(b) (Deliver Materials): deliver to the Standby Redraw Facility
Provider:
(i) as soon as practicable and in any event not later than 120
days after the close of each of the Series Trust's
financial years, a copy of the audited Accounts of the
Series Trust;
(ii) as soon as practicable and in any event not later than 90
days after the first half of each of the Series Trust's
financial years, a copy of a statement setting out the
Assets and Liabilities of the Series Trust for
13.
<PAGE>
that half-year;
(iii) as soon as practical and in any event not later than 90
days after each half of each financial year of the Series
Trust, a copy of the written report prepared by the Auditor
in accordance with clause 21.9 of the Master Trust Deed;
(iv) as and when required by the Standby Redraw Facility
Provider, a certificate executed by two Authorised Officers
on behalf of the Manager stating to the best of the
knowledge of the Manager whether or not an Event of
Default, Servicer Default, Trustee Default, Perfection of
Title Event or Manager Default has occurred and if the same
has occurred, setting out the details of such event and the
steps (if any) taken by the Manager to remedy or cure the
same; and
(v) promptly, such further information regarding the Series
Trust's financial condition and business operations within
the knowledge of the Manager as the Standby Redraw Facility
Provider from time to time reasonably requires.
12. EVENTS OF DEFAULT
12.1 Events of Default
Each of the following events is an Event of Default whether or not caused
by any reason whatsoever outside the control of the Trustee or any other
person:
(a) (Failure to repay or pay): the Trustee fails to pay any amount in
accordance with this Agreement within 10 Business Days of the due
date for payment of such amount;
(b) (Other Breach): the Trustee breaches its undertaking in clause
11.1(d); and
(c) (Event of Default under Security Trust Deed): an Event of Default
(as defined in the Security Trust Deed in relation to the Series
Trust) occurs and any action is taken by the Security Trustee,
pursuant to clause 10 of the Security Trust Deed, to appoint a
Receiver in respect of the Assets of the Series Trust or to sell
and realise the Assets of the Series Trust or the Security Trustee
takes any action pursuant to clause .11 of the Security Trust
Deed.
12.2 Consequences of Event of Default
At any time after the occurrence of an Event of Default the Standby
Redraw Facility Provider may, without being obliged to do so and
notwithstanding any waiver of any previous default, by written notice to
the Trustee:
(a) (Declare Advances due): declare the Advances, accrued interest
and all other sums which have accrued due under this Agreement
(whether or not presently payable) to be due, whereupon they will
become immediately due and payable; and/or
(b) (Declare Facility terminated): declare the Facility terminated in
which case the obligations of the Standby Redraw Facility Provider
under this Agreement will immediately terminate from the date of
receipt by the Trustee of such written notice.
13. TRUSTEE PROVISIONS
13.1 Limitation on Trustee's Liability
The Trustee enters into this Agreement only in its capacity as trustee of
the Series Trust and in no other capacity. A liability incurred by the
Trustee acting in its capacity as trustee of the Series Trust arising
under or in connection with this Agreement is limited to and can be
enforced against the Trustee only to the extent to which it can be
satisfied out of the Assets of the Series Trust out of which the Trustee
is actually indemnified for the liability. This limitation of the
Trustee's liability applies despite any other provision of this Agreement
14.
<PAGE>
(other than clause 13.3) 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.
13.2 Claims against Trustee
The parties other than the Trustee may not sue the Trustee in respect of
any liabilities incurred by the Trustee acting in its capacity as trustee
of the Series Trust in any capacity other than as trustee of the Series
Trust including seeking the appointment of a receiver (except in relation
to the Assets of the Series Trust) a liquidator, an administrator or any
similar person to the Trustee, or prove in any liquidation,
administration or similar arrangements of or affecting the Trustee
(except in relation to the Assets of the Series Trust).
13.3 Breach of Trust
The provisions of this clause 13 will not apply to any obligation or
liability of the Trustee to the extent that it is not satisfied because
under the Master Trust Deed, the Series Supplement, any other Transaction
Document in relation to the Series Trust or by operation of law there is
a reduction in the extent of the Trustee's indemnification out of the
Assets of the Series Trust as a result of the Trustee's fraud, negligence
or wilful default.
13.4 Acts or omissions
It is acknowledged that the Relevant Parties are responsible under the
Transaction Documents for performing a variety of obligations relating to
the Series Trust. No act or omission of the Trustee (including any
related failure to satisfy its obligations or any breach or
representations or warranties under this Agreement) will be considered
fraud, negligence or wilful default of the Trustee for the purpose of
clause 13.3 to the extent to which the act or omission was caused or
contributed to by any failure by any Relevant Party or any other person
appointed by the Trustee under any Transaction Document (other than a
person whose acts or omissions the Trustee is liable for in accordance
with any Transaction Document) to fulfil its obligations in relation to
the Series Trust or by any other act or omission of a Relevant Party or
any other such person.
13.5 No obligation
(a) (Obligations under this Agreement or any Transaction Document):
The Trustee is not obliged to enter into any commitment or
obligation under this Agreement or any Transaction Document unless
the Trustee's liability is limited in a manner which is consistent
with this clause 13. The Trustee agrees and acknowledges that
its liability for any commitment or obligation it has entered into
under this Agreement is limited in a manner which is consistent
with this clause 13.
(b) (Obligations not contained in this Agreement or any Transaction
Document): The Trustee is not obliged to enter into any commitment
or obligation contemplated by but not contained in this Agreement
or any Transaction Document unless the Trustee's liability in
relation to that commitment or obligation is limited in a manner
satisfactory to the Trustee in its absolute discretion.
14. ASSIGNMENT
14.1 Assignment by Trustee
The Trustee will not assign or otherwise transfer the benefit of this
Agreement or any of its rights, duties or obligations under this
Agreement except to a Substitute Trustee acceptable to the Standby Redraw
Facility Provider (whose consent is not to be unreasonably withheld).
15.
<PAGE>
14.2 Assignment by Standby Redraw Facility Provider
The Standby Redraw Facility Provider may at any time assign or otherwise
transfer all or any part of the benefit of this Agreement or any of its
rights, duties and obligations under this Agreement to another Bank or
financial institution. The Standby Redraw Facility Provider may disclose
to a proposed assignee or transferee information in the possession of the
Standby Redraw Facility Provider relating to the Trustee and the Manager.
An assignment or transfer by the Standby Redraw Facility Provider
pursuant to this clause 14.2 shall not be of any effect until the
Standby Redraw Facility Provider has notified the Trustee in writing of
the assignment or transfer, as the case may be.
15. NOTICES
15.1 Method of Delivery
Any notice, request, certificate, approval, demand, consent or other
communication to be given under this Agreement:
(a) (Execution): must be signed by 2 Authorised Officers of the party
giving the same;
(b) (In writing): must be in writing; and
(c) (Delivery): must be:
(i) left at the address of the addressee;
(ii) sent by prepaid ordinary post to the address of the
addressee; or
(iii) sent by facsimile to the facsimile number of the addressee,
notified by that addressee from time to time to the other parties
to this Agreement as its address for service pursuant to this
Agreement.
15. Deemed Receipt
A notice, request, certificate, demand, consent or other communication
under this Agreement is deemed to have been received:
(a) (Delivery): where delivered in person, upon receipt;
(b) (Post): where sent by post within Australia, on the 3rd day after
posting, and where sent by post to, from or outside Australia, on
the 7th day after posting; and
(c) (Fax): where sent by facsimile, on production by the dispatching
facsimile machine of a transmission report which indicates that
the facsimile was sent in its entirety to the facsimile number of
the recipient.
However, if the time of deemed receipt of any notice is not before 5.30
pm on a Business Day at the address of the recipient it is deemed to have
been received at the commencement of business on the next Business Day.
16. INDEMNITY
16.1 Indemnity on Demand
Subject to clause 13, the Trustee will on demand indemnify the Standby
Redraw Facility Provider against any loss, cost or expenses which the
Standby Redraw Facility Provider may sustain or incur as a consequence
of:
(a) (Overdue sums): any sum payable by the Trustee under this
Agreement not being paid when due;
16.
<PAGE>
(b) (Event of Default): the occurrence of any Event of Default;
(c) (Failure to provide Advance): an Advance requested in a Drawdown
Notice not being provided for any reason including failure to
fulfil any condition precedent but excluding any matter within the
control of the Standby Redraw Facility Provider; or
(d) (Payment of principal): the Standby Redraw Facility Provider
receiving payments of principal other than on the last day of the
relevant Interest Period for any reason.
16.2 Losses on Liquidation or Re-employment of Deposits
The losses, costs or expenses referred to in clause 16.1 will include the
amount determined in good faith by the Standby Redraw Facility Provider
as being any loss (other than an amount for loss of profit other than
loss of margin) including:
(a) (Liquidation and re-employment): loss of margin, cost or expense
incurred by reason of the liquidation or re-employment of deposits
or other funds acquired or contracted for by the Standby Redraw
Facility Provider to fund or maintain any such Advance or amount;
and
(b) (Other arrangements): losses, costs, damages, charges or expenses
incurred by the Standby Redraw Facility Provider in relation to
the variation, termination or making of any other arrangements in
relation to any arrangement ancillary or related to this Agreement
including, without limitation, any swap or derivative agreement
entered into by the Standby Redraw Facility Provider in connection
with or in order to fund any Advances.
16.3 Payment on Distribution Date
Any payments to be made by the Trustee pursuant to this clause 16 will
only be made on the Distribution Date following demand by the Standby
Redraw Facility Provider and on each succeeding Distribution Date until
the Standby Redraw Facility Provider is paid in full by payment of so
much of the amount sufficient to indemnify the Standby Redraw Facility
Provider as is available for this purpose in accordance with the Series
Supplement.
17. MISCELLANEOUS
17.1 Stamp Duties
(a) (Trustee must pay): The Trustee will pay all stamp, loan
transaction, registration and similar Taxes including fines and
penalties (except such fines and penalties incurred through the
act, neglect or omission of the Standby Redraw Facility Provider
after the Standby Redraw Facility Provider has requested and been
put in funds to pay such Taxes), financial institutions duty and
debits tax which may be payable or required to be paid by any
appropriate authority or determined to be payable in connection
with the execution, delivery, performance or enforcement of this
Agreement.
(b) (Trustee must indemnify): Subject to clause 13, the Trustee will
indemnify and keep indemnified the Standby Redraw Facility
Provider against any loss or liability incurred or suffered by it
as a result of the delay or failure by the Trustee to pay such
Taxes.
17.2 Waiver
A failure to exercise or enforce or a delay in exercising or enforcing or
the partial exercise or enforcement of any right, remedy, power or
privilege under this Agreement by the Standby Redraw Facility Provider
will not in any way preclude or operate as a waiver of any further
exercise or enforcement of such right, remedy, power or privilege or the
exercise or enforcement of any other right, remedy, power or privilege
under this
17.
<PAGE>
Agreement or provided by law.
17.3 Written Waiver, Consent and Approval
Any waiver, consent or approval given by the Standby Redraw Facility
Provider under this Agreement will only be effective and will only bind
the Standby Redraw Facility Provider if it is given in writing, or given
verbally and subsequently confirmed in writing, and executed by the
Standby Redraw Facility Provider or on its behalf by two Authorised
Officers of the Standby Redraw Facility Provider.
17.4 Severability
Any provision of this Agreement which is illegal, void or unenforceable
in any jurisdiction is ineffective in such jurisdiction to the extent
only of such illegality, voidness or unenforceability without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of the provisions in any other jurisdiction.
17.5 Survival of Indemnities
The indemnities contained in this Agreement are continuing obligations of
the Trustee, separate and independent from the other obligations of the
Trustee and will survive the termination of this Agreement.
17.6 Successors and Assigns
This Agreement is binding upon and enures to the benefit of the parties
to this Agreement and their respective successors and permitted assigns.
17.7 Moratorium Legislation
To the fullest extent permitted by law, the provisions of all statutes
whether existing now or in the future operating directly or indirectly:
(a) (To affect obligations): to lessen or otherwise to vary or affect
in favour of the Trustee any obligation under this Agreement; or
(b) (To affect rights): to delay or otherwise prevent or
prejudicially affect the exercise of any rights or remedies
conferred on the Standby Redraw Facility Provider under this
Agreement,
are hereby expressly waived, negatived and excluded.
17.8 Amendments
No amendment to this Agreement will be effective unless in writing and
executed by each of the parties to this Agreement. The Manager must give
each Rating Agency not less than 10 Business Days' prior notice of any
amendment to this Agreement.
17.9 Governing Law
This Agreement is governed by and construed in accordance with the laws
of the State of New South Wales.
17.10 Jurisdiction
Each of the parties irrevocably and unconditionally:
(a) (Submission to jurisdiction): submits to the non-exclusive
jurisdiction of the courts of the State of New South Wales;
(b) (Waiver of inconvenient forum): waives any objection it may now
or in the future have to the bringing of proceedings in those
courts and any claim that any proceedings have been brought in an
inconvenient forum; and
18.
<PAGE>
(c) (Service of notice): agrees, without preventing any other mode of
service permitted by law, that any document required to be served
in any proceedings may be served in the manner in which notices
and other written communications may be given under clause 15.
17.11 Counterparts
This Agreement may be executed in a number of counterparts and all such
counterparts taken together will constitute one and the same instrument.
19.
<PAGE>
SCHEDULE
DRAWDOWN NOTICE
To: Commonwealth Bank of Australia, ACN 123 123 124
[Address]
Attention: Head of Securitisation
From: Perpetual Trustee Company Limited, ACN 000 001 007
[Date]
In our capacity as trustee of the Series Trust, we hereby irrevocably request
you to make us an Advance on the Drawdown Date specified below for an amount
equal to the Redraw Amount specified below in accordance with clause 4 of the
Standby Redraw Facility Agreement dated [ ] between ourselves, Commonwealth
Bank of Australia, ACN 123 123 124 and Securitisation Advisory Services Pty.
Limited, ACN 064 133 946 as amended, novated or supplemented from time to time
(the "Standby Redraw Facility Agreement"):
(a) Drawdown Date [ ]
(b) Redraw Amount A$[ ]
(c) Details of the calculation of the Redraw Amount [ ]
Words used and not otherwise defined herein have the same meaning as in the
Standby Redraw Facility Agreement.
SIGNED on behalf of PERPETUAL
TRUSTEE COMPANY LIMITED as trustee
of the Series 2000 1-G Medallion
Trust by:
__________________________________
(Authorised Officer)
__________________________________
(Name)
__________________________________
(Title)
20.
<PAGE>
EXECUTED as an agreement.
SIGNED for and on behalf of ) ______________________________
COMMONWEALTH BANK OF ) (Signature of Attorney)
AUSTRALIA ACN 123 123 124, by its )
Attorney under a Power of Attorney dated )
) ______________________________
in the presence of: ) (Name of Attorney in Full)
__________________________________________
(Signature of Witness)
__________________________________________
(Name of Witness in Full)
SIGNED for and on behalf of ) ______________________________
PERPETUAL TRUSTEE COMPANY ) (Signature of Attorney)
LIMITED, ACN 000 001 007, by its )
Attorney under a Power of Attorney dated )
)
and who declares that he or she has not ) ______________________________
received any notice of the revocation of ) (Name of Attorney in Full)
such Power of Attorney in the presence of: )
__________________________________________
(Signature of Witness)
__________________________________________
(Name of Witness in Full)
SIGNED SEALED AND DELIVERED for )
and on behalf of SECURITISATION ) ______________________________
ADVISORY SERVICES PTY. LIMITED, ) (Signature of Attorney)
ACN 064 133 946, by its Attorney under a )
Power of Attorney dated )
) ______________________________
and who declares that he or she has not ) (Name of Attorney in Full)
received any notice of the revocation of )
such Power of Attorney in the presence of: )
__________________________________________
(Signature of Witness)
___________________________________________
(Name of Witness in Full)
21.
<PAGE>
EXHIBIT 10.2
Draft: 9 March 2000
Series 2000-1G Medallion Trust
Liquidity Facility Agreement
Date:
Commonwealth Bank of Australia
Liquidity Facility Provider
Perpetual Trustee Company Limited
Trustee
Securitisation Advisory Services Pty. Limited
Manager
CLAYTON UTZ
Lawyers
Levels 27-35
No.1 O'Connell Street
SYDNEY NSW 2000
AUSTRALIA
(C)Copyright Clayton Utz
Liability is limited by the Solicitors Scheme under the Professional Standards
Act 1994 NSW
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Clause Page
<S> <C>
1. INTERPRETATION 1
1.1 Definitions 1
1.2 Series Supplement and Master Trust Deed Definitions 4
1.3 Interpretation 4
1.4 Trustee Capacity 5
1.5 Master Trust Deed and Series Supplement 6
1.6 Incorporated Definitions and other Transaction Documents and provisions 6
2. THE FACILITY 6
2.1 Amount 6
2.2 Method of Making Advances 6
2.3 Purpose 6
2.4 Termination of the Facility 6
3. CONDITIONS PRECEDENT 6
3.1 Conditions Precedent to first Advance 6
3.2 Conditions Precedent to all Advances 7
4. DRAWDOWN 7
4.1 Preparation of Drawdown Notices 7
4.2 Service of Drawdown Notices 7
4.3 Requirements of Drawdown Notices 7
4.4 Availability of Drawing 8
4.5 Payment of Drawing 8
5. INTEREST 8
5.1 Interest Period 8
5.2 Calculation of Interest 9
5.3 Payment of Interest 9
5.4 Interest on Unpaid Interest 9
5.5 Interest on Overdue Sums 9
6. REPAYMENT OF DRAWINGS AND ADVANCES 9
6.1 Repayment of Drawings during the Availability Period 9
6.2 Re-Drawing 9
6.3 Repayment on Termination 9
6.4 Payments Under Security Trust Deed 10
7. CASH ADVANCE DEPOSIT PERIOD 10
7.1 Cash Advance Deposit Upon Ratings Downgrade 10
7.2 Withdrawal from the Collections Account 10
7.3 Drawings During the Cash Advance Deposit Period 10
7.4 Liquidity Facility Provider Upgrade 11
7.5 Reduction in Facility Limit During Cash Advance Deposit Period 11
7.6 Termination of Agreement 11
7.7 Interest on Cash Advance Deposit 11
8. PAYMENTS 11
8.1 Time on Due Date and Free of Set-off & Taxes 11
8.2 Certificate 11
</TABLE>
(i)
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Clause Page
<S> <C>
9. ILLEGALITY AND INCREASED COST 12
9.1 Illegality 12
9.2 Increased Cost 12
10. FEES 12
11. REPRESENTATIONS AND WARRANTIES 13
11.1 General Representations and Warranties 13
11.2 Corporate Representations and Warranties 13
11.3 Series Trust Representations and Warranties 13
11.4 Liquidity Facility Provider 14
11.5 Representations and Warranties Repeated 14
12. UNDERTAKINGS 14
12.1 General 14
12.2 Manager's Undertakings after Manager Event 15
12.3 Liquidity Facility Provider Undertaking 15
13. EVENTS OF DEFAULT 15
13.1 Events of Default 15
13.2 Consequences of Event of Default 16
14. TERMINATION BY TRUSTEE 16
14.1 Trustee may declare a Termination Date 16
14.2 Requirements for termination 16
15. TRUSTEE PROVISIONS 16
15.1 Limitation on Trustee's Liability 16
15.2 Claims against Trustee 17
15.3 Breach of Trust 17
15.4 Acts or omissions 17
15.5 No obligation 17
16. ASSIGNMENT 17
16.1 Assignment by Trustee 17
16.2 Assignment by Liquidity Facility Provider 17
17. NOTICES 18
17.1 Method of Delivery 18
17.2 Deemed Receipt 18
18. INDEMNITY 18
18.1 Indemnity on Demand 18
18.2 Losses on Liquidation or Re-employment of Deposits 19
18.3 Payment on Distribution Date 19
19. MISCELLANEOUS 19
19.1 Stamp Duties 19
</TABLE>
(ii)
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Clause Page
<S> <C>
19.2 Waiver 19
19.3 Written Waiver, Consent and Approval 19
19.4 Severability 20
19.5 Survival of Indemnities 20
19.6 Successors and Assigns 20
19.7 Moratorium Legislation 20
19.8 Amendments 20
19.9 Governing Law 20
19.10 Jurisdiction 20
19.11 Counterparts 21
SCHEDULE - FORM OF DRAWDOWN NOTICE 22
</TABLE>
(iii)
<PAGE>
THIS LIQUIDITY FACILITY AGREEMENT is made at Sydney on 2000
BETWEEN COMMONWEALTH BANK OF AUSTRALIA, ACN 123 123 124, a company
incorporated in the Australian Capital Territory and having an
office at Level 8, 48 Martin Place, Sydney, Australia (the
"Liquidity Facility Provider")
AND PERPETUAL TRUSTEE COMPANY LIMITED, ACN 000 001 007, a company
incorporated in the State of New South Wales and having an office
at Level 3, 39 Hunter Street, Sydney, Australia, in its capacity
as trustee of the Series 2000-1G Medallion Trust (the "Trustee")
AND SECURITISATION ADVISORY SERVICES PTY. LIMITED, ACN 064 133 946, a
company incorporated in the State of New South Wales and having an
office at Level 8, 48 Martin Place, Sydney, Australia ("SAS" and
also hereinafter included within the expression the "Manager")
RECITALS:
A. The Trustee and the Manager are respectively the trustee and the manager
of the Series Trust.
B. The Manager has requested the Liquidity Facility Provider to provide the
Trustee with the Facility in connection with the Approved Purpose.
C. The Liquidity Facility Provider has agreed to provide the Facility to the
Trustee on the terms and conditions contained in this Agreement.
THE PARTIES AGREE:
1. INTERPRETATION
1.1 Definitions
In this Agreement, unless the contrary intention appears:
"Advance" means the principal amount of each advance to the Trustee by
the Liquidity Facility Provider in accordance with this Agreement or so
much of each such advance as remains outstanding from time to time.
"Approved Purpose" means the use of a Drawing to meet an Income Shortfall
in accordance with the Series Supplement or to fund a Cash Advance
Deposit in accordance with this Agreement.
"Authorised Officer" in relation to the Liquidity Facility Provider means
any person from time to time appointed by the Liquidity Facility Provider
to act as its Authorised Officer for the purposes of this Agreement and
notified to the Trustee.
"Availability Period" means the period commencing on the date of this
Agreement and ending on the Termination Date.
"BBSW" in relation to an Interest Period means the rate appearing at
approximately 10.00 am on the first day of that Interest Period on the
Reuters Screen page "BBSW" as being the average of the mean buying and
selling rates appearing on that page for a bill of exchange having a
tenor of three months. If on the first day of an Interest Period fewer
than four banks are quoted on the Reuters Screen page "BBSW" or for any
other reason "BBSW" for an Interest Period cannot be determined in
accordance with the foregoing provisions, then "BBSW" for that Interest
Period means such rate as is specified by the Liquidity Facility Provider
having regard to comparable indices then available.
"Cash Advance Deposit" means at any time that amount of the Collections
Account of the Series Trust that comprises at that time Advances by way
of deposits by the Liquidity Facility Provider to the Collections Account
of the Series Trust in accordance with clause
1.
<PAGE>
7.1 (after taking into account any application of the Cash Advance
Deposit in accordance with clause 7.3 or repayment of it in accordance
with either of clauses 7.4 or 7.5).
"Cash Advance Deposit Period" means each period commencing immediately
following a Cash Advance Deposit and ending on the date on which the
Trustee is obliged to repay to the Liquidity Facility Provider the Cash
Advance Deposit pursuant to clause 7.4.
"Designated Credit Rating" means a short term credit rating of A-1+ by
S&P, P1 by Moody's and F1+ by Fitch IBCA or such other credit rating
agreed to between the Trustee, the Manager and the relevant Rating
Agency.
"Direct Advance" means an Advance by way of a deposit by the Liquidity
Facility Provider to the Collections Account of the Series Trust in
accordance with clause 4.5(a).
"Drawdown Date" means, in relation to a Drawing or proposed Drawing, the
Distribution Date immediately following the delivery of the corresponding
Drawdown Notice to the Liquidity Facility Provider in accordance with
this Agreement.
"Drawdown Notice" means a notice given under clause 4.
"Drawing" means:
(a) other than during the Cash Advance Deposit Period, a Direct
Advance or a proposed Direct Advance (as the case may be); and
(b) during the Cash Advance Deposit Period, a withdrawal or proposed
withdrawal (as the case may be) from the Cash Advance Deposit in
the Collections Account of the Series Trust by the Trustee in
accordance with clause 7.3.
"Effective Control" means:
(a) control of the composition of the board of directors of SAS;
(b) control of more than half of the voting power of SAS; or
(c) control of more than half of the issued share capital of SAS
excluding any part of such issued share capital which carries no
right to participate beyond a specified amount in the distribution
of either profit or capital.
"Event of Default" means any of the events set out or referred to in
clause 13.1 as an Event of Default.
"Facility" means the standby liquidity facility granted to the Trustee by
the Liquidity Facility Provider on the terms and conditions of this
Agreement.
"Facility Limit" means at any given time the least of the following:
(a) A$48 million;
(b) the Performing Mortgage Loans Amount at that time; and
(c) the amount from time to time agreed in writing between the
Manager, the Liquidity Facility Provider and the Rating Agencies.
"Interest Period" means each period determined in accordance with clause
5.1.
"Liquidity Amount" means, for a Drawdown Date, the lesser of:
(a) the then un-utilised portion of the Facility Limit or if the
Drawdown Date is during the Cash Advance Deposit Period, the then
un-utilised portion of the Cash Advance Deposit; and
(b) the Income Shortfall on the preceding Determination Date.
2.
<PAGE>
"Manager" means SAS or if SAS retires or is removed as manager of the
Series Trust, any then Substitute Manager, and includes the Trustee when
acting as the manager of the Series Trust in accordance with the
provisions of the Master Trust Deed.
"Manager Event" means:
(a) SAS ceases to be a body over which the Liquidity Facility Provider
has Effective Control; or
(b) SAS ceases to be the manager of the Series Trust.
"Master Trust Deed" means the Master Trust Deed dated 8 October 1997
between the Trustee and SAS, as amended from time to time.
"Obligations" means all of the liabilities of the Trustee to the
Liquidity Facility Provider under this Agreement and, without limiting
the generality of the foregoing, includes any liabilities which:
(a) are liquidated;
(b) are present, prospective or contingent;
(c) relate to the payment of money or the performance or omission of
any act;
(d) sound in damages only; or
(e) accrue as a result of any Event of Default.
"Performing Mortgage Loans Amount" means at any time the aggregate of the
following:
(a) the amount outstanding under Mortgage Loans forming part of the
Assets of the Series Trust in relation to which no payment due
from the relevant Borrower has been in arrears by more than 90
days; and
(b) the amount outstanding under Mortgage Loans forming part of the
Assets of the Series Trust in relation to which a payment due from
the relevant Borrower has been in arrears by more than 90 days and
which are insured under a Mortgage Insurance Policy.
"Prescribed Rate" in relation to an Interest Period means the sum of:
(a) BBSW for that Interest Period; and
(b) 0.20% per annum,
or such rate as is otherwise agreed by the Trustee, the Manager and the
Liquidity Facility Provider provided that each Rating Agency is given not
less than 3 Business Days prior notice by the Manager of any variation to
the Prescribed Rate and the Prescribed Rate will not be varied if such
variation would result in a reduction, qualification or withdrawal by a
Rating Agency of its then current credit rating of a Security.
"Receiver" means a person appointed under or by virtue of the Security
Trust Deed as a receiver or receiver and manager.
"Series Supplement" means the Series Supplement dated on or about the
date of this Agreement between the Liquidity Facility Provider (as Seller
and Servicer), SAS and the Trustee.
"Series Trust" means the trust known as the Series 2000-1G Medallion
Trust established pursuant to the Master Trust Deed and the Series
Supplement.
"Specified Rate" means, on any day, the sum of:
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(a) BBSW for the Interest Period that includes that day (or if the day
is not within an Interest Period, BBSW for the first Business Day
of the month that includes that day as if that month were an
Interest Period); and
(b) 0.30 % per annum.
"Termination Date" means the earliest of:
(a) the Scheduled Maturity Date;
(b) the date declared or appointed by the Liquidity Facility Provider
or the Trustee to be the Termination Date in accordance with this
Agreement;
(c) the date which is one month after the date on which all Securities
have been redeemed in full in accordance with the Series
Supplement or the Class A-1 Note Conditions (as the case may be);
and
(d) the date on which the Facility Limit is reduced to zero in
accordance with this Agreement.
1.2 Series Supplement and Master Trust Deed Definitions
Subject to clause 1.6, unless defined in this Agreement, words and
phrases defined in either or both of the Master Trust Deed and the Series
Supplement have the same meaning in this Agreement. Where there is any
inconsistency in a definition between this Agreement (on the one hand)
and the Master Trust Deed or the Series Supplement (on the other hand),
this Agreement prevails. Where there is any inconsistency in a definition
between the Master Trust Deed and the Series Supplement, the Series
Supplement prevails over the Master Trust Deed in respect of this
Agreement. Subject to clause 1.6, where words or phrases used but not
defined in this Agreement are defined in the Master Trust Deed in
relation to a Series Trust (as defined in the Master Trust Deed) and/or
an Other Trust such words or phrases are to be construed in this
Agreement, where necessary, as being used only in relation to the Series
Trust (as defined in this Agreement) and/or the CBA Trust, as the context
requires.
1.3 Interpretation
In this Agreement, unless the contrary intention appears:
(a) headings are for convenience only and do not affect the
interpretation of this Agreement;
(b) a reference to this "Agreement" includes the Recitals and the
Schedule;
(c) the expression "person" includes an individual, the estate of an
individual, a body politic, a corporation and a statutory or other
authority or association (incorporated or unincorporated);
(d) a reference to a person includes that person's executors,
administrators, successors, substitutes and assigns, including any
person taking by way of novation;
(e) subject to clause 1.6, a reference to any document or agreement is
to such document or agreement as amended, novated, supplemented,
varied or replaced from time to time;
(f) a reference to any legislation or to any section or provision of
any legislation includes any statutory modification or re-
enactment or any statutory provision substituted for that
legislation and all ordinances, by-laws, regulations and other
statutory instruments issued under that legislation, section or
provision;
(g) words importing the singular include the plural (and vice versa)
and words denoting a given gender include all other genders;
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(h) a reference to a clause is a reference to a clause of this
Agreement;
(i) the expression "certified" means, in respect of a person,
certified in writing by two Authorised Officers of that person and
"certify" and like expressions will be construed accordingly;
(j) a reference to "wilful default" in relation to the Trustee or the
Manager, means, subject to clause 1.3(k) any wilful failure by the
Trustee to comply with, or wilful breach by the Trustee or the
Manager (as the case may be) of any of its obligations under any
Transaction Document, other than a failure or breach which:
(i) A. arises as a result of a breach of a Transaction
Document by a person other than:
1) the Trustee or the Manager (as the case may be);
or
2) any other person referred to in clause 1.3(p);
B. the performance of the action (the non-performance of
which gave rise to such breach) is a pre-condition to
the Trustee or the Manager (as the case may be)
performing the said obligation; or
(ii) is in accordance with a lawful court order or direction or
is required by law; or
(iii) is in accordance with a proper instruction or direction of
Investors given at a meeting convened under any Transaction
Document;
(k) a reference to the "fraud", "negligence" or "wilful default" of
the Trustee means the fraud, negligence or wilful default of the
Trustee and of its officers, employees, agents and any other
person where the Trustee is liable for the acts or omissions of
such other person under the terms of any Transaction Document.
(l) where any word or phrase is given a defined meaning, any other
part of speech or other grammatical form in respect of such word
or phrase has a corresponding meaning;
(m) where any day on which a payment is due to be made or a thing is
due to be done under this Agreement is not a Business Day, that
payment must be made or that thing must be done on the immediately
succeeding Business Day;
(n) a reference to the "close of business" on any day is a reference
to 5.00 pm on that day;
(o) a reference to time is to local time in Sydney; and
(p) subject to clause 16.2, each party will only be considered to
have knowledge or awareness of, or notice of, a thing or grounds
to believe anything by virtue of the officers of that party (or
any Related Body Corporate of that party) which have day to day
responsibility for the administration or management of that
party's (or a Related Body Corporate of that party's) obligations
in relation to the Series Trust or the Liquidity Facility having
actual knowledge, actual awareness or actual notice of that thing,
or grounds or reason to believe that thing (and similar references
will be interpreted in this way). In addition, notice, knowledge
or awareness of an Event of Default, Manager Default, Servicer
Default or Perfection of Title Event means notice, knowledge or
awareness of the occurrence of the events or circumstances
constituting an Event of Default, Manager Default, Servicer
Default or Perfection of Title Event (as the case may be).
1.4 Trustee Capacity
In this Agreement, except where provided to the contrary:
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(a) (References to Trustee): a reference to the Trustee is a reference
to the Trustee in its capacity as trustee of the Series Trust
only, and in no other capacity; and
(b) (References to assets of Trustee): a reference to the undertaking,
assets, business or money of the Trustee is a reference to the
undertaking, assets, business or money of the Trustee in the
capacity referred to in paragraph (a).
1.5 Master Trust Deed and Series Supplement
For the purposes of the Master Trust Deed and the Series Supplement:
(a) (Transaction Document): this Agreement is a Transaction Document;
and
(b) (Support Facility): the Facility made available pursuant to the
terms of this Agreement is a Support Facility.
1.6 Incorporated Definitions and other Transaction Documents and provisions
Where in this Agreement a word or expression is defined by reference to
its meaning in another Transaction Document or there is a reference to
another Transaction Document or to a provision of another Transaction
Document, any amendment to the meaning of that word or expression or to
that other Transaction Document or provision (as the case may be) will be
of no effect for the purposes of this Agreement unless and until the
amendment is consented to by the parties to this Agreement.
2. THE FACILITY
2.1 Amount
Subject to this Agreement, the Liquidity Facility Provider agrees to make
Advances to the Trustee up to an aggregate principal amount equal to the
Facility Limit.
2.2 Method of Making Advances
Advances under the Facility will be by way of either Direct Advances or
Cash Advance Deposits.
2.3 Purpose
The Manager will direct the Trustee to use, and the Trustee will use, the
proceeds of each Drawing under the Facility exclusively for the Approved
Purpose.
2.4 Termination of the Facility
The Facility will terminate on the Termination Date.
3. CONDITIONS PRECEDENT
3.1 Conditions Precedent to first Advance
The Liquidity Facility Provider is not obliged to make the first Advance
to the Trustee unless the Liquidity Facility Provider has received each
of the following, in form and substance acceptable to the Liquidity
Facility Provider:
(a) (This Agreement): this Agreement duly executed and delivered by
the Trustee and the Manager;
(b) (Power of attorney): a copy of each power of attorney under which
this Agreement has been or will be executed by the Trustee and the
Manager, certified as a true copy by the Trustee and the Manager
respectively;
(c) (Authorised Officers): a list of the Authorised Officers of the
Manager;
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(d) (Security Trust Deed): a copy of the Security Trust Deed executed
by the parties thereto and certified as a true copy by the
Manager;
(e) (GEMICO Mortgage Insurance Policy): an executed original
counterpart of the GEMICO Mortgage Insurance Policy together with
a letter from GEMICO confirming that it has accepted for insurance
under the GEMICO Mortgage Insurance Policy the Mortgage Loans
referred to in the certificate attached to the letter; and
(f) (Legal opinion): a legal opinion addressed to the Liquidity
Facility Provider from the Trustee's solicitors in form and
substance satisfactory to the Liquidity Facility Provider.
3.2 Conditions Precedent to all Advances
The obligation of the Liquidity Facility Provider to make each Advance is
subject to the further conditions precedent that:
(a) (Representations and Warranties true): the representations and
warranties made or deemed to be made by the Trustee or the Manager
in any Transaction Document are true and correct as of the date of
the corresponding Drawdown Notice and Drawdown Date as though made
at that date;
(b) (No Event of Default): no Event of Default is subsisting at the
date of the corresponding Drawdown Notice and Drawdown Date or
will result from the provision or continuation of the Advance; and
(c) (No Notice of Security Interests): other than in respect of
priorities granted by statute, the Liquidity Facility Provider has
not received notice from any person that it claims to have a
Security Interest ranking in priority to or equal with the
Security Interest held by the Liquidity Facility Provider under
the Security Trust Deed.
4. DRAWDOWN
4.1 Preparation of Drawdown Notices
If on a Determination Date the Manager determines in accordance with the
Series Supplement that an Income Shortfall has occurred in respect of the
Collection Period just ended the Manager must:
(a) (Prepare Drawdown Notice): prepare a Drawdown Notice in
accordance with clause 4.3 requesting a Drawing on the next
Distribution Date; and
(b) (Deliver Drawdown Notice): deliver the Drawdown Notice to the
Trustee no later than the close of business on the Business Day
which is not less than 3 Business Days before the proposed
Drawdown Date.
4.2 Service of Drawdown Notices
If the Trustee receives a Drawdown Notice from the Manager pursuant to
clause 4.1, it must:
(a) (Sign Drawdown Notice): sign the Drawdown Notice in accordance
with clause 4.3(b); and
(b) (Deliver Drawdown Notice): deliver the signed Drawdown Notice to
the Liquidity Facility Provider by the time specified in clause
4.4(a).
4.3 Requirements of Drawdown Notices
A Drawdown Notice must:
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(a) (Form): be in the form of the Schedule (or in such other form as
from time to time agreed amongst the Liquidity Facility Provider,
the Manager and the Trustee);
(b) (Authorised Officer): be signed by an Authorised Officer of the
Trustee;
(c) (Specify Drawdown Date): specify the proposed Drawdown Date for
the requested Advance which must be the next Distribution Date;
(d) (Irrevocable): be irrevocable;
(e) (Liquidity Amount): specify the Liquidity Amount; and
(f) (Calculation): provide details of the calculation of the
Liquidity Amount.
4.4 Availability of Drawing
The Trustee may make a Drawing on any Distribution Date during the
Availability Period provided that:
(a) (Receipt of Drawdown Notice): the Liquidity Facility Provider has
received, not later than 11.00 am on the Business Day which is not
less than 2 Business Days before the proposed Drawdown Date (or
such later time as the Liquidity Facility Provider may agree), a
duly completed Drawdown Notice; and
(b) (Conditions precedent): the requirements of clause 3 have been
satisfied or waived in writing by the Liquidity Facility Provider
before the Drawdown Notice is given.
4.5 Payment of Drawing
After receipt of a Drawdown Notice:
(a) (Deposit to Collections Account): other than during a Cash Advance
Deposit Period, the amount of a Drawing requested in a Drawdown
Notice will be deposited by the Liquidity Facility Provider in the
Collections Account in immediately available funds no later than
10.00 am on the Drawdown Date; and
(b) (Satisfied from Cash Advance Deposit): during a Cash Advance
Deposit Period, the amount of a Drawing requested in a Drawdown
Notice will be satisfied from the Cash Advance Deposit in
accordance with clause 7.
5. INTEREST
5.1 Interest Period
(a) (Duration): The duration of the Facility is divided into
successive Interest Periods.
(b) (First Interest Period): The first Interest Period commences on
(and includes) the first Drawdown Date and ends on (but excludes)
the next Distribution Date.
(c) (Succeeding Interest Periods): Each succeeding Interest Period
commences on (and includes) a Distribution Date and ends on (but
excludes) the next following Distribution Date.
(d) (Last Interest Period): The last Interest Period ends on (but
excludes) the first Distribution Date that:
(i) follows the Termination Date; and
(ii) upon which all moneys the payment or repayment of which
form part of the Obligations are paid or repaid in full to
the Liquidity Facility Provider.
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5.2 Calculation of Interest
Interest in respect of a Drawing accrues from day to day in respect of
each Interest Period at the Prescribed Rate for that Interest Period on
the amount of the Drawing on that day and based on a 365 day year.
5.3 Payment of Interest
The Trustee at the direction of the Manager will on each Distribution
Date pay to the Liquidity Facility Provider so much of the then accrued
interest on each Drawing as is available for this purpose in accordance
with the Series Supplement.
5.4 Interest on Unpaid Interest
If any payment by the Trustee on a Distribution Date pursuant to clause
5.3 is insufficient to pay the full amount of the then accrued interest
on a Drawing, such unpaid accrued interest will in turn accrue interest
(as a separate and independent obligation) until paid at the Prescribed
Rate for each succeeding Interest Period and if not paid on the
Distribution Date at the end of each such succeeding Interest Period,
will itself bear interest in accordance with this clause.
5.5 Interest on Overdue Sums
If the Trustee fails to pay any amount due and payable by it under or in
respect of this Agreement at the time and in the manner required under
this Agreement and the Series Supplement that amount will bear interest
in accordance with this clause. Such interest is payable on demand and
will accrue on such amount from day to day at the Specified Rate for that
day from the date such amount is due for payment up to the date of actual
payment, before and (as a separate and independent obligation) after
judgment and if not paid at the end of a 30 day period will itself bear
interest in accordance with this clause.
6. REPAYMENT OF DRAWINGS AND ADVANCES
6.1 Repayment of Drawings during the Availability Period
The Trustee will on each Distribution Date repay so much of each
outstanding Drawing as at the previous Determination Date as is available
for this purpose in accordance with the Series Supplement. If a
repayment of all or part of a Drawing in accordance with the foregoing
falls on a Distribution Date within the Cash Advance Deposit Period, such
repayment will be made by way of allocation to the Cash Advance Deposit
in accordance with clause 7.3(c).
6.2 Re-Drawing
Amounts repaid pursuant to clause 6.1 may be redrawn by the Trustee in
accordance with the terms of this Agreement.
6.3 Repayment on Termination
Notwithstanding clause 6.1, on the Distribution Date immediately
following the Termination Date (or if the Termination Date is on a
Distribution Date, then on that Distribution Date), the Trustee will pay
or repay so much of the aggregate of all Advances together with interest
accrued thereon and all other money, the payment or repayment of which
forms part of the Obligations, as is available for this purpose in
accordance with the Series Supplement. If all amounts due in accordance
with this clause 6.3 are not paid or repaid in full on the Distribution
Date in accordance with the foregoing, on each succeeding Distribution
Date the Trustee will pay or repay so much of such amounts as there are
funds available for this purpose in accordance with the Series Supplement
until such amounts are paid or repaid in full.
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6.4 Payments Under Security Trust Deed
Without prejudice to clause 14, the limitation of the Trustee's
liability to make payments in clauses 6.3, 9.2, 10 and 18.3 will not
apply for the purposes of calculating any amounts payable out of the
Assets of the Series Trust to the Liquidity Facility Provider pursuant to
the Security Trust Deed.
7. CASH ADVANCE DEPOSIT PERIOD
7.1 Cash Advance Deposit Upon Ratings Downgrade
(a) (Rating Downgrade): If at any time the Liquidity Facility
Provider ceases to have the Designated Credit Rating, the
Liquidity Facility Provider must within 5 Business Days thereafter
(or such longer period as the Rating Agencies may agree), in
satisfaction of its obligation to make Advances during the Cash
Advance Deposit Period, deposit in the Collections Account of the
Series Trust, as an Advance under the Facility, an amount equal to
the then un-utilised portion of the Facility Limit.
(b) (Subsequent Rating Downgrade following Upgrade): If at any time
following the application of clause 7.4 the Liquidity Facility
Provider ceases to have the Designated Credit Rating, the
Liquidity Facility Provider must within 5 Business Days (or such
longer period as the Rating Agencies may agree) make a deposit in
the Collections Account in the manner, and on the same terms as,
provided in clause 7.1(a).
7.2 Withdrawal from the Collections Account
The Manager may only direct the Trustee to, and the Trustee may only,
make withdrawals from the Cash Advance Deposit in the Collection Account
as follows:
(a) (For a Drawing): for the purposes of a Drawing pursuant to clause
4.5(b) of a Liquidity Amount for the Approved Purpose and
otherwise upon and subject to the terms of this Agreement;
(b) (Repay Cash Advance Deposit): to repay to the Liquidity Facility
Provider the Cash Advance Deposit pursuant to clauses 7.4, 7.5 and
7.6; or
(c) (If new Collections Account): to be paid into a new Collections
Account opened in accordance with the Series Supplement.
7.3 Drawings During the Cash Advance Deposit Period
During a Cash Advance Deposit Period:
(a) (Drawing to be satisfied from Cash Advance Deposit): any Drawing
pursuant to a Drawdown Notice must be satisfied from the Cash
Advance Deposit deposited in the Collections Account;
(b) (Amount applied constitutes a Drawing): the amount applied from
the Cash Advance Deposit in accordance with clause 7.3(a)
constitutes a Drawing, and the provisions of this Agreement
(including, but not limited to, clauses 5 and 6 of this Agreement)
will apply accordingly;
(c) (Cash Advance Deposit to be credited): any full or partial
repayment of a Drawing required to be made by the Trustee in
accordance with this Agreement will, following receipt by the
Trustee of a written direction from the Manager, be applied in
accordance with clause 6.1 by way of allocation by the Trustee of
the relevant amount for credit of that part of the Collections
Account comprising the Cash Advance Deposit; and
(d) (Effect of allocation): an allocation by the Trustee in
accordance with clause 7.3(c) will, to the extent of the amount so
allocated, satisfy the obligation of
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the Trustee under this Agreement as regards the repayment of the
Drawing in respect of which the deposit is made, but will not
reduce or affect the obligations of the Trustee to pay to the
Liquidity Facility Provider the Cash Advance Deposit in accordance
with clauses 6.3, 7.4, 7.5, 7.6 and 13.2.
7.4 Liquidity Facility Provider Upgrade
If, at any time during a Cash Advance Deposit Period, the Liquidity
Facility Provider obtains the Designated Credit Rating, the Manager will
direct the Trustee to repay (and upon the receipt of such direction the
Trustee will repay) from the Collections Account of the Series Trust the
then Cash Advance Deposit (which has not previously been utilised in
accordance with this Agreement) together with all accrued, but unpaid,
interest on that amount determined in accordance with clause 7.7.
7.5 Reduction in Facility Limit During Cash Advance Deposit Period
If immediately prior to any Distribution Date during a Cash Advance
Deposit Period the then un-utilised portion of the Cash Advance Deposit
plus the amount of all outstanding Drawings exceeds the then Facility
Limit, the Manager will direct the Trustee to repay (and upon receipt of
such direction the Trustee will repay) from the Cash Advance Deposit on
the Distribution Date to the Liquidity Facility Provider the amount of
the excess.
7.6 Termination of Agreement
If the Termination Date occurs during a Cash Advance Deposit Period the
Manager will direct the Trustee to repay (and within 2 Business Days of
receipt of such direction the Trustee will repay) from the Collections
Account of the Series Trust the then Cash Advance Deposit (which has not
previously been utilised in accordance with this Agreement) together with
all accrued, but unpaid, interest on that amount determined in accordance
with clause 7.7 and any other amounts then due under this Agreement.
7.7 Interest on Cash Advance Deposit
The Cash Advance Deposit will accrue interest at the rate and in
accordance with the manner of determination of interest then applicable
for amounts deposited to the Collections Account during the Cash Advance
Deposit Period. Such interest will be paid to the Liquidity Facility
Provider, in accordance with the Series Supplement, on each Distribution
Date during such period.
8. PAYMENTS
8.1 Time on Due Date and Free of Set-off & Taxes
All payments to be made under this Agreement will:
(a) (Due date): be made not later than close of business on the due
date for payment and all such payments will be made in such manner
and to such account as the party receiving the payment directs in
writing; and
(b) (Set-off): be made without set-off or counterclaim and free and
clear of and without deduction for or on account of present or
future Taxes, levies, imposts, duties, charges, fees, deductions,
withholdings, restrictions or conditions of any nature.
8.2 Certificate
A certificate signed by an Authorised Officer of the Liquidity Facility
Provider stating any amount or rate for the purposes of this Agreement
will, in the absence of manifest error on its face, constitute prima
facie evidence of the amount or rate stated therein.
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9. ILLEGALITY AND INCREASED COST
9.1 Illegality
If any change in applicable law, regulation, treaty or official directive
or in the interpretation or administration thereof by any Governmental
Agency charged with the administration thereof makes it, in the
reasonable opinion of counsel to the Liquidity Facility Provider
evidenced in writing and addressed to the Trustee, unlawful or impossible
for the Liquidity Facility Provider to maintain or give effect to its
obligations under this Agreement, the Liquidity Facility Provider may by
written notice to the Trustee (with a copy to the Manager) appoint a date
as the Termination Date which date must not be prior to 30 days (or such
shorter period required by law) after the date of receipt by the Trustee
of written notice from the Liquidity Facility Provider appointing the
Termination Date.
9.2 Increased Cost
(a) (Change in law): If by reason of any change in law or in its
interpretation or administration or because of compliance with any
request from or requirement of any fiscal, monetary or other
Governmental Agency:
(i) the Liquidity Facility Provider incurs a cost as a result
of its having entered into or performing its obligations
under this Agreement or as a result of any Advance being
outstanding hereunder;
(ii) there is any increase in the cost to the Liquidity Facility
Provider of funding or maintaining any Advance;
(iii) the amount of principal, interest or other amount payable
to the Liquidity Facility Provider or the effective return
to the Liquidity Facility Provider under this Agreement is
reduced; or
(iv) the Liquidity Facility Provider becomes liable to make any
payment (not being a payment of Tax on its overall net
income) on or calculated by reference to the amount of
Advances made under this Agreement,
then from time to time on notification by the Liquidity Facility
Provider (with a copy to the Manager) the Trustee will on the
Distribution Date following such notification and on each
succeeding Distribution Date until the Liquidity Facility Provider
is paid in full pay to the Liquidity Facility Provider so much of
the amounts sufficient to indemnify the Liquidity Facility
Provider against such cost, increased cost, reduction or liability
that is available for this purpose in accordance with the Series
Supplement.
(b) (No defence): If the Liquidity Facility Provider has acted in
good faith it will not be a defence to the Trustee, in the event
of any failure by the Trustee to comply with its payment
obligations under clause 9.2(a), that any such cost, increased
cost, reduction or liability could have been avoided. However, the
Liquidity Facility Provider will negotiate in good faith with the
Trustee and the Manager with a view to finding a means by which
such cost, increased cost, reduction or liability may be
minimised.
(c) (Certificate conclusive): The Liquidity Facility Provider's
certificate as to the amount of, and basis for arriving at, any
such cost, increased cost, reduction or liability is conclusive
and binding on the Trustee in the absence of manifest error on the
face of the certificate.
10. FEES
The Trustee will pay to the Liquidity Facility Provider a commitment fee
of 0.10% per annum of the then un-utilised portion of the Facility Limit.
The commitment fee will be calculated daily from the date the Facility
becomes available on the basis of a 365 day year and will be paid in
arrears on each Distribution Date in accordance with the Series
Supplement. The amount of the commitment fee may be varied by agreement
between the Trustee, the Manager and the Liquidity Facility Provider
provided that each Rating Agency is given not less than 3 Business Days
prior notice by the Manager of any variation to the
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amount of the commitment fee will not be varied if such variation would
result in a reduction, qualification or withdrawal by a Rating Agency of
its then current credit rating of a Security. To the extent that such
funds are not sufficient to pay the fee in full, the fee must be paid from
the funds available on each succeeding Distribution Date until paid in
full.
11. REPRESENTATIONS AND WARRANTIES
11.1 General Representations and Warranties
The Trustee in its capacity as trustee of the Series Trust represents and
warrants to the Liquidity Facility Provider that:
(a) (Execution, delivery and performance): the execution, delivery and
performance of this Agreement and each other Transaction Document in
relation to the Series Trust to which it is a party does not violate
any existing law or regulation or any document or agreement to which
it is a party or which is binding upon it or any of its assets;
(b) (Corporate power and authorisation): the Trustee has the power to
enter into, and to perform its obligations, and has taken all
corporate and other action necessary to authorise the entry into of,
and performance of its obligations under, this Agreement and each
other Transaction Document in relation to the Series Trust and to
which it is a party;
(c) (Legally binding obligation): this Agreement and each of the other
Transaction Documents to which it is a party constitute its valid and
legally binding obligations subject to stamping and any necessary
registration except as such enforceability may be limited by any
applicable bankruptcy, insolvency, reorganisation, moratorium or
trust or other similar laws affecting creditors' rights generally;
and
(d) (No Event of Default): to the best of the Trustee's knowledge, no
Event of Default or event which with the giving of notice, lapse of
time or other applicable condition would become an Event of Default
has occurred which has not been waived or remedied in accordance with
this Agreement.
11.2 Corporate Representations and Warranties
The Trustee in its capacity as trustee of the Series Trust represents and
warrants in respect of itself to the Liquidity Facility Provider that:
(a) (Due incorporation): it is duly incorporated and has the corporate
power to own its own property and to carry on its business as is now
being conducted; and
(b) (Execution, delivery and performance): the execution, delivery and
performance of this Agreement and each other Transaction Document in
relation to the Series Trust to which it is a party does not violate
its constitution.
11.3 Series Trust Representations and Warranties
The Trustee in its capacity as trustee of the Series Trust represents and
warrants to the Liquidity Facility Provider in relation to the Series
Trust as follows:
(a) (Series Trust validly created): the Series Trust has been validly
created and is in existence at the date of this Agreement;
(b) (Sole trustee): the Trustee has been validly appointed as trustee of
the Series Trust and is presently the sole trustee of the Series
Trust;
(c) (No proceedings to remove): no notice has been given to the Trustee
and to the Trustee's knowledge no resolution has been passed or
direction or notice has
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been given, removing the Trustee as trustee of the Series Trust;
(d) (Trustee's power): the Trustee has power under the Master Trust Deed
to enter into the Transaction Documents to which it is a party in its
capacity as trustee of the Series Trust; and
(e) (Good title): the Trustee is the lawful owner of the Assets of the
Series Trust and has power under the Master Trust Deed to mortgage or
charge them in the manner provided in the Security Trust Deed.
11.4 Liquidity Facility Provider
The Liquidity Facility Provider represents and warrants to the Trustee
that:
(a) (Execution, delivery and performance): the execution, delivery and
performance of this Agreement and each other Transaction Document in
relation to the Series Trust to which it is a party does not violate
any existing law or regulation or any document or agreement to which
it is a party or which is binding upon it or any of its assets;
(b) (Corporate power and authorisation): the Liquidity Facility Provider
has the power to enter into, and to perform its obligations, and has
taken all corporate and other action necessary to authorise the entry
into of, and performance of its obligations under, this Agreement and
each other Transaction Document in relation to the Series Trust and
to which it is a party; and
(c) (Legally binding obligation): this Agreement and each of the other
Transaction Documents to which it is a party constitute its valid and
legally binding obligations subject to stamping and any necessary
registration except as such enforceability may be limited by any
applicable bankruptcy, insolvency, reorganisation, moratorium or
trust or other similar laws affecting creditors' rights generally.
11.5 Representations and Warranties Repeated
Each representation and warranty contained in clauses 11.1, 11.2, 11.3
and 11.4 will be deemed to be repeated on each Drawdown Date with
reference to the facts and circumstances then subsisting, as if made on
each such day.
12. UNDERTAKINGS
12.1 General
The Trustee undertakes to the Liquidity Facility Provider that it will :
(a) (Act continuously): act continuously as trustee of the Series Trust
in accordance with the Master Trust Deed and the Series Supplement
until the Series Trust is terminated or until it has retired or been
removed in accordance with the Master Trust Deed;
(b) (Do all things necessary): do everything and take all such actions
which are necessary (including, without limitation, obtaining all
such authorisations and approvals as are appropriate) to ensure that
it is able to exercise all its powers and remedies and perform all
its obligations under this Agreement, other arrangements entered into
by the Trustee pursuant to this Agreement and each Transaction
Document to which it is a party;
(c) (Maintain authorisations): ensure that each authorisation required
for it to maintain its status as trustee of the Series Trust is
obtained and promptly renewed and maintained in full force and
effect; and
(d) (Not amend or resolve): not consent to amend or revoke the provisions
of the Master Trust Deed, the Series Supplement or the Security Trust
Deed in respect
14.
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of payments or the order of priorities of payments to be made
thereunder without the prior written consent of the Liquidity
Facility Provider.
12.2 Manager's Undertakings after Manager Event
At any time after a Manager Event occurs the Manager will:
(a) (Notify Liquidity Facility Provider): immediately notify the Liquidity
Facility Provider as soon as it becomes actually aware of the
occurrence of:
(i) any Event of Default, Servicer Default, Trustee Default,
Perfection of Title Event or Manager Default; or
(ii) any litigation, arbitration, criminal or administrative
proceedings relating to any of the Trustee's property, assets or
revenues that involves a claim against it in excess of A$1
million or that, if decided adversely to it, could have a
material adverse effect on its ability to perform the
Obligations,
and in each case advise the Liquidity Facility Provider of what steps
it has taken and what steps it proposes to take in relation to such
occurrences; and
(b) (Deliver Materials): deliver to the Liquidity Facility Provider:
(i) as soon as practicable and in any event not later than 120 days
after the close of each of the Series Trust's financial years,
a copy of the audited Accounts of the Series Trust;
(ii) as soon as practicable and in any event not later than 90 days
after the first half of each of the Series Trust's financial
years, a copy of a statement setting out the Assets and
Liabilities of the Series Trust for that half-year;
(iii) a soon as practical and in any event not later than 90 days
after each half year of each financial year of the Series
Trust, a copy of the written report prepared by the Auditor in
accordance with clause 21.9 of the Master Trust Deed;
(iv) as and when required by the Liquidity Facility Provider, a
certificate executed by two Authorised Officers on behalf of
the Manager stating to the best of the knowledge of the Manager
whether or not an Event of Default, Servicer Default, Trustee
Default, Perfection of Title Event or Manager Default has
occurred and if the same has occurred, setting out the details
of such event and the steps (if any) taken by the Manager to
remedy or cure the same; and
(v) promptly, such further information regarding the Series Trust's
financial condition and business operations within the
knowledge of the Manager as the Liquidity Facility Provider
from time to time reasonably requires.
12.3 Liquidity Facility Provider Undertaking
The Liquidity Facility Provider undertakes to the Trustee that it will do
everything and take all such actions which are necessary (including,
without limitation, obtaining all such authorisations and approvals as are
appropriate) to ensure that it is able to exercise all its powers and
remedies and perform all its obligations under this Agreement, other
arrangements entered into by the Liquidity Facility Provider pursuant to
this Agreement and each Transaction Document to which it is a party.
13. EVENTS OF DEFAULT
13.1 Events of Default
Each of the following events is an Event of Default whether or not caused
by any reason whatsoever outside the control of the Trustee or any other
person:
(a) (Failure to repay or pay): the Trustee fails to repay, in accordance
with this
15.
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Agreement, any Advance or fails to pay any interest, fees, costs,
charges, expenses or other moneys payable under this Agreement in each
case within 10 Business Days of the due date for payment of such
amount;
(b) (Breach of undertaking): the Trustee breaches its undertaking in
clause 12.1(d); and
(c) (Event of Default under Security Trust Deed): an Event of Default (as
defined in the Security Trust Deed in relation to the Series Trust)
occurs and any action is taken by the Security Trustee, pursuant to
clause 10 of the Security Trust Deed, to appoint a Receiver in
respect of the Assets of the Series Trust or to sell and realise the
Assets of the Series Trust or the Security Trustee takes any action
pursuant to clause 11 of the Security Trust Deed.
13.2 Consequences of Event of Default
At any time after the occurrence of an Event of Default the Liquidity
Facility Provider may, without being obliged to do so and notwithstanding
any waiver of any previous default, by written notice to the Trustee:
(a) (Declare Advances due): declare the Advances, accrued interest and all
other sums which have accrued due under this Agreement (whether or not
presently payable) to be due, whereupon they will become immediately
due and payable; and/or
(b) (Declare Facility terminated): declare the Facility terminated in
which case the obligations of the Liquidity Facility Provider under
this Agreement will immediately terminate from the date of receipt by
the Trustee of such written notice.
14. TERMINATION BY TRUSTEE
14.1 Trustee may declare a Termination Date
Subject to clause 14.2, the Trustee may at the direction of the Manager,
by not less than 5 Business Days written notice to the Liquidity Facility
Provider and the Manager, declare a Distribution Date as the date on
which:
(a) (Substitute Liquidity Facility Provider): the Liquidity Facility
Provider hereunder will be replaced by a substitute Liquidity Facility
Provider; and
(b) (Termination): the Liquidity Facility will terminate.
14.2 Requirements for termination
On or before the declaration of the Distribution Date by the Trustee in
accordance with clause 14.1, the Trustee must obtain written confirmation
from the Rating Agencies that the termination of the Facility and the
appointment of the proposed substitute Liquidity Facility Provider on that
Distribution Date will not result in a downgrade, qualification or
withdrawal of the credit ratings then assigned by them to the Securities.
15. TRUSTEE PROVISIONS
15.1 Limitation on Trustee's Liability
The Trustee enters into this Agreement only in its capacity as trustee of
the Series Trust and in no other capacity. A liability incurred by the
Trustee acting in its capacity as trustee of the Series Trust arising
under or in connection with this Agreement is limited to and can be
enforced against the Trustee only to the extent to which it can be
satisfied out of the Assets of the Series Trust out of which the Trustee
is actually indemnified for the liability. This limitation of the
Trustee's liability applies despite any other provision of this Agreement
(other than clause 15.3) and extends to all liabilities and obligations of
the Trustee in any way connected with any representation, warranty,
conduct, omission, agreement or
16.
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transaction related to this Agreement.
15.2 Claims against Trustee
The parties other than the Trustee may not sue the Trustee in respect of
liabilities incurred by the Trustee acting in its capacity as trustee of
the Series Trust in any capacity other than as trustee of the Series Trust
including seeking the appointment of a receiver (except in relation to the
Assets of the Series Trust), a liquidator, an administrator or any similar
person to the Trustee, or prove in any liquidation, administration or
similar arrangements of or affecting the Trustee (except in relation to
the Assets of the Series Trust).
15.3 Breach of Trust
The provisions of this clause 15 will not apply to any obligation or
liability of the Trustee to the extent that it is not satisfied because
under the Master Trust Deed, the Series Supplement, any other Transaction
Document in relation to the Series Trust or by operation of law there is a
reduction in the extent of the Trustee's indemnification out of the Assets
of the Series Trust as a result of the Trustee's fraud, negligence or
wilful default.
15.4 Acts or omissions
It is acknowledged that the Relevant Parties are responsible under the
Transaction Documents for performing a variety of obligations relating to
the Series Trust. No act or omission of the Trustee (including any related
failure to satisfy its obligations or any breach or representations or
warranties under this Agreement) will be considered fraud, negligence or
wilful default of the Trustee for the purpose of clause 15.3 to the
extent to which the act or omission was caused or contributed to by any
failure by any Relevant Party or any other person appointed by the Trustee
under any Transaction Document (other than a person whose acts or
omissions the Trustee is liable for in accordance with any Transaction
Document) to fulfil its obligations in relation to the Series Trust or by
any other act or omission of a Relevant Party or any other such person.
15.5 No obligation
(a) (Obligations under this Agreement or any Transaction Document): The
Trustee is not obliged to enter into any commitment or obligation
under this Agreement or any Transaction Document unless the Trustee's
liability is limited in a manner which is consistent with this clause
15. The Trustee agrees and acknowledges that its liability for any
commitment or obligation it has entered into under this Agreement is
limited in a manner which is consistent with this clause 15.
(b) (Obligations not contained in this Agreement or any Transaction
Document): The Trustee is not obliged to enter into any commitment or
obligation contemplated by but not contained in this Agreement or any
Transaction Document unless the Trustee's liability in relation to
that commitment or obligation is limited in a manner satisfactory to
the Trustee in its absolute discretion.
16. ASSIGNMENT
16.1 Assignment by Trustee
The Trustee will not assign or otherwise transfer the benefit of this
Agreement or any of its rights, duties or obligations under this Agreement
except to a Substitute Trustee acceptable to the Liquidity Facility
Provider (whose consent is not to be unreasonably withheld).
16.2 Assignment by Liquidity Facility Provider
The Liquidity Facility Provider will not assign or otherwise transfer all
or any part of the benefit of this Agreement or any of its rights, duties
and obligations under this Agreement except to an assignee or transferee
that has a Designated Credit Rating or, if the assignee
17.
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or transferee does not have a Designated Credit Rating, the assignee or
transferee complies immediately prior to the completion of the assignment
or transfer with clause 7.1(a). The Liquidity Facility Provider may
disclose to a proposed assignee or transferee information in the
possession of the Liquidity Facility Provider relating to the Trustee or
the Manager. An assignment or transfer by the Liquidity Facility Provider
pursuant to this clause 16.2 shall not be of any effect until the
Liquidity Facility Provider has notified the Trustee in writing of the
assignment or transfer, as the case may be.
17. NOTICES
17.1 Method of Delivery
Any notice, request, certificate, approval, demand, consent or other
communication to be given under this Agreement:
(a) (Execution): must be signed by 2 Authorised Officers of the party
giving the same;
(b) (In writing): must be in writing; and
(c) (Delivery): must be:
(i) left at the address of the addressee;
(ii) sent by prepaid ordinary post to the address of the addressee;
or
(iii) sent by facsimile to the facsimile number of the addressee,
notified by that addressee from time to time to the other parties to
this Agreement as its address for service pursuant to this Agreement.
17.2 Deemed Receipt
A notice, request, certificate, demand, consent or other communication
under this Agreement is deemed to have been received:
(a) (Delivery): where delivered in person, upon receipt;
(b) (Post): where sent by post within Australia, on the 3rd day after
posting and where sent by post to, from or outside Australia, on the
7th day after posting; and
(c) (Fax): where sent by facsimile, on production by the dispatching
facsimile machine of a transmission report which indicates that the
facsimile was sent in its entirety to the facsimile number of the
recipient.
However, if the time of deemed receipt of any notice is not before 5.30 pm
on a Business Day at the address of the recipient it is deemed to have
been received at the commencement of business on the next Business Day.
18. INDEMNITY
18.1 Indemnity on Demand
Subject to clause 15, the Trustee will on demand indemnify the Liquidity
Facility Provider against any loss, cost or expenses which the Liquidity
Facility Provider may sustain or incur as a consequence of:
(a) (Overdue sums): any sum payable by the Trustee under this Agreement
not being paid when due;
(b) (Event of Default): the occurrence of any Event of Default;
(c) (Failure to provide Advance): an Advance requested in a Drawdown
Notice not being provided for any reason including failure to fulfil
any condition
18.
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precedent but excluding any matter within the control of the Liquidity
Facility Provider; or
(d) (Payment of principal): the Liquidity Facility Provider receiving
payments of principal other than on the last day of the relevant
Interest Period for any reason.
18.2 Losses on Liquidation or Re-employment of Deposits
The losses, costs or expenses referred to in clause 18.1 will include the
amount determined in good faith by the Liquidity Facility Provider as
being any loss (other than an amount for loss of profit other than loss of
margin) including:
(a) (Loss of margin): loss of margin, cost or expense incurred by reason
of the liquidation or re-employment of deposits or other funds
acquired or contracted for by the Liquidity Facility Provider to fund
or maintain any such Advance or amount;
(b) (Other arrangements): losses, costs, damages, charges or expenses
incurred by the Liquidity Facility Provider in relation to the
variation, termination or making of any other arrangements in relation
to any arrangement ancillary or related to this Agreement including,
without limitation, any swap or derivative agreement entered into by
the Liquidity Facility Provider in connection with or in order to fund
any Advances.
18.3 Payment on Distribution Date
Any payments to be made by the Trustee pursuant to this clause 18 will
only be made on the Distribution Date following demand by the Liquidity
Facility Provider and on each succeeding Distribution Date until the
Liquidity Facility Provider is paid in full by payment of so much of the
amount sufficient to indemnify the Liquidity Facility Provider as is
available for this purpose in accordance with the Series Supplement.
19. MISCELLANEOUS
19.1 Stamp Duties
(a) (Trustee must pay): The Trustee will pay all stamp, loan transaction,
registration and similar Taxes including fines and penalties (except
such fines and penalties incurred through the act, neglect or omission
of the Liquidity Facility Provider after the Liquidity Facility
Provider has requested and been put in funds to pay such Taxes),
financial institutions duty and debits tax which may be payable or
required to be paid by any appropriate authority or determined to be
payable in connection with the execution, delivery, performance or
enforcement of this Agreement.
(b) (Trustee must indemnify): Subject to clause 15, the Trustee will
indemnify and keep indemnified the Liquidity Facility Provider against
any loss or liability incurred or suffered by it as a result of the
delay or failure by the Trustee to pay such Taxes.
19.2 Waiver
A failure to exercise or enforce or a delay in exercising or enforcing or
the partial exercise or enforcement of any right, remedy, power or
privilege under this Agreement by the Liquidity Facility Provider will not
in any way preclude or operate as a waiver of any further exercise or
enforcement of such right, remedy, power or privilege or the exercise or
enforcement of any other right, remedy, power or privilege under this
Agreement or provided by law.
19.3 Written Waiver, Consent and Approval
Any waiver, consent or approval given by the Liquidity Facility Provider
under this Agreement will only be effective and will only bind the
Liquidity Facility Provider if it is
19.
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given in writing, or given verbally and subsequently confirmed in
writing, and executed by the Liquidity Facility Provider or on its behalf
by two Authorised Officers of the Liquidity Facility Provider.
19.4 Severability
Any provision of this Agreement which is illegal, void or unenforceable
in any jurisdiction is ineffective in such jurisdiction to the extent
only of such illegality, voidness or unenforceability without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of the provision in any other jurisdiction.
19.5 Survival of Indemnities
The indemnities contained in this Agreement are continuing obligations of
the Trustee, separate and independent from the other obligations of the
Trustee and will survive the termination of this Agreement.
19.6 Successors and Assigns
This Agreement is binding upon and inures to the benefit of the parties
to this Agreement and their respective successors and permitted assigns.
19.7 Moratorium Legislation
To the fullest extent permitted by law, the provisions of all statutes
whether existing now or in the future operating directly or indirectly:
(a) (To affect obligations): to lessen or otherwise to vary or affect in
favour of the Trustee any obligation under this Agreement; or
(b) (To affect rights): to delay or otherwise prevent or prejudicially
affect the exercise of any rights or remedies conferred on the
Liquidity Facility Provider under this Agreement,
are hereby expressly waived, negatived and excluded.
19.8 Amendments
No amendment to this Agreement will be effective unless in writing and
executed by each of the parties to this Agreement. The Manager must give
each Rating Agency not less than 10 Business Days' prior notice of any
amendment to this Agreement.
19.9 Governing Law
This Agreement is governed by and construed in accordance with the laws
of the State of New South Wales.
19.10 Jurisdiction
Each of the parties irrevocably and unconditionally:
(a) (Submission to jurisdiction): submits to the non-exclusive
jurisdiction of the courts of the State of New South Wales;
(b) (Waiver of inconvenient forum): waives any objection it may now or
in the future have to the bringing of proceedings in those courts
and any claim that any proceedings have been brought in an
inconvenient forum; and
(c) (Service of notice): agrees, without preventing any other mode of
service permitted by law, that any document required to be served in
any proceedings may be served in the manner in which notices and
other written communications may be given under clause 17.
20.
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19.11 Counterparts
This Agreement may be executed in a number of counterparts and all such
counterparts taken together will constitute one and the same instrument.
21.
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SCHEDULE
FORM OF DRAWDOWN NOTICE
To: Commonwealth Bank of Australia, ACN 123 123 124
[Address]
Attention: Head of Securitisation
From: Perpetual Trustee Company Limited, ACN 000 001 007
[Date]
In our capacity as trustee of the Series Trust, we hereby irrevocably request a
Drawing on the Drawdown Date specified below for an amount equal to the
Liquidity Amount specified below in accordance with clause 4 of the Liquidity
Facility Agreement dated [ ] between ourselves, Commonwealth Bank of Australia
and Securitisation Advisory Services Pty. Limited as amended, novated or
supplemented from time to time (the "Liquidity Facility Agreement"):
(a) Drawdown Date [ ]
(b) Liquidity Amount A$[ ]
(c) Calculation of Liquidity Amount [ ]
Words used and not otherwise defined herein have the same meaning as in the
Liquidity Facility Agreement.
SIGNED on behalf of PERPETUAL
TRUSTEE COMPANY LIMITED as
trustee of the Series 2000-1G Medallion Trust by:
....................................................
(Authorised Officer)
....................................................
(Name)
....................................................
(Title)
22.
<PAGE>
EXECUTED as an Agreement.
SIGNED for and on behalf of )
COMMONWEALTH BANK OF ) ...............................
AUSTRALIA, ACN 123 123 124 by its ) (Signature of Attorney)
Attorney under a Power of Attorney dated )
)
in the presence of: ) ...............................
(Name of Attorney in Full)
...........................................
(Signature of Witness)
...........................................
(Name of Witness in Full)
SIGNED for and on behalf of )
PERPETUAL TRUSTEE COMPANY ) ...............................
LIMITED, ACN 000 001 007, by its ) (Signature of Attorney)
Attorney under a Power of Attorney dated )
and who declares that he or she has not )
received any notice of the revocation of )
such Power of Attorney in the presence of: ...............................
(Name of Attorney in Full)
...........................................
(Signature of Witness)
...........................................
(Name of Witness in Full)
SIGNED for and on behalf of )
SECURITISATION ADVISORY ) ...............................
SERVICES PTY. LIMITED, ACN 064 133 ) (Signature of Attorney)
946, by its Attorney under a Power of )
Attorney dated )
and who declares that he or she has not ) ...............................
received any notice of the revocation of ) (Name of Attorney in Full)
such Power of Attorney in the presence of: )
)
...........................................
(Signature of Witness)
...........................................
(Name of Witness in Full)
23.
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EXHIBIT 10.3
(Multicurrency-Cross Border)
ISDA (R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of_______________
- --------------------------------- and ---------------------------------------
have entered and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other confirming
evidence (each a "Confirmation") exchanged between the parties confirming those
Transactions.
Accordingly, the parties agree as follows:-
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions of
the Schedule and the other provisions of this Master Agreement, the Schedule
will prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purpose of the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the
fact that this Master Agreement and all Confirmations form a single agreement
between the parties (collectively referred to as this "Agreement"), and the
parties would not otherwise enter into any Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it subject to the other provisions of this
Agreement.
(ii) Payments under this Agreement will be made on the due date for value
on that date in the place of the account specified in the relevant
Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the
required currency. Where settlement is by delivery (that is, other than by
payment), such delivery will be made for receipt on the due date in the
manner customary for the relevant obligation unless otherwise specified in
the relevant Confirmation or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to
(1) the condition precedent that no Event of Default or Potential Event of
Default with respect to the other party has occurred and is continuing,
(2) the condition precedent that no Early Termination Date in respect of
the relevant Transaction has occurred or been effectively designated and
(3) each other applicable condition precedent specified in this Agreement.
<PAGE>
(b) Change of Account. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a reasonable
objection to such change.
(c) Netting. If on any date amounts would otherwise be payable:--
(i) in the same currency: and
(ii) in respect of the same Transaction.
by each party to the other, then, on such date, each party's obligation to make
payment of any such amount will be automatically satisfied and discharged and,
if the aggregate amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been payable by the other
party, replaced by an obligation upon the party by whom the larger aggregate
amount would have been payable to pay to the other party the excess of the
larger aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount
will be determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be made
in the Schedule or a Confirmation by specifying that subparagraph (ii) above
will not apply to the Transactions identified as being subject to the election,
together with the starting date (in which case subparagraph (ii) above will not,
or will cease to, apply to such Transactions from such date). This election may
be made separately for different groups of Transactions and will apply
separately to each pairing of Offices through which the parties make and receive
payments or deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless such
deduction or withholding is required by any applicable law, as modified by
the practice of any relevant governmental revenue authority, then in
effect. If a party is so required to deduct or withhold, then that party
("X") will:--
(1) promptly notify the other party ("Y") of such requirement:
(2) pay to the relevant authorities the full amount required to be
deducted or withheld (including the full amount required to be
deducted or withheld from any additional amount paid by X to Y under
this Section 2(d)) promptly upon the earlier of determining that such
deduction or withholding is required or receiving notice that such
amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified copy),
or other documentation reasonably acceptable to Y, evidencing such
payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to the
payment to which Y is otherwise entitled under this Agreement, such
additional amount as is necessary to ensure that the net amount
actually received by Y (free and clear of Indemnifiable Taxes, whether
assessed against X or Y) will equal the full amount Y would have
received had no such deduction or withholding been required. However,
X will not be required to pay any additional amount to Y to the extent
that it would not be required to be paid but for:--
(A) the failure by Y to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4(d); or
(B) the failure of a representation made by Y pursuant to Section
3(f) to be accurate and true unless such failure would not have
occurred but for (i) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the
date on which a Transaction is entered into (regardless of
whether such action is taken or brought with respect to a party
to this Agreement) or (II) a Change in Tax Law.
2
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(ii) Liability. If:--
(1) X is required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, to make any
deduction or withholding in respect of which X would not be required
to pay an additional amount to Y under Section 2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly against
X.
then, except to the extent Y has satisfied or then satisfies the liability
resulting from such Tax, Y will promptly pay to X the amount of such
liability (including any related liability for interest, but including
any related liability for penalties only if Y has failed to comply with or
perform any agreement contained in Section 4(a)(i), 4(a)(iii) or 4(d)).
(e) Default Interest; Other Amounts. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant Transaction,
a party that defaults in the performance of any payment obligation will, to the
extent permitted by law and subject to Section 6(c), be required to pay interest
(before as well as after judgment) on the overdue amount to the other party on
demand in the same currency as such overdue amount, for the period from (and
including) the original due date for payment to (but excluding) the date of
actual payment, at the Default Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed. If, prior to
the occurrence or effective designation of an Early Termination Date in respect
of the relevant Transaction, a party defaults in the performance of any
obligation required to be settled by delivery, it will compensate the other
party on demand if and to the extent provided for in the relevant Confirmation
or elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be deemed
to be repeated by each party on each date on which a Transaction is entered into
and, in the case of the representations in Section 3(f), at all times until the
termination of this Agreement) that:--
(a) Basic Representations.
(i) Status. It is duly organised and validly existing under the laws of
the jurisdiction of its organisation or incorporation and, if relevant
under such laws, in good standing;
(ii) Powers. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party, to deliver
this Agreement and any other documentation relating to this Agreement that
it is required by this Agreement to deliver and to perform its obligations
under this Agreement and any obligations it has under any Credit Support
Document to which it is a party and has taken all necessary action to
authorise such execution, delivery and performance;
(iii) No Violation or Conflict. Such execution, delivery and performance do
not violate or conflict with any law applicable to it, any provision of its
constitutional documents, any order or judgment of any court or other
agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets;
(iv) Consents. All governmental and other consents that are required to
have been obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party have been obtained and are in full
force and effect and all conditions of any such consents have been complied
with; and
(v) Obligations Binding. Its obligations under this Agreement and any
Credit Support Document to which it is a party constitute its legal, valid
and binding obligations, enforceable in accordance with their respective
terms (subject to applicable bankruptcy, reorganisation, insolvency,
moratorium or similar laws affecting creditors' rights generally and
subject, as to enforceability, to equitable principles of general
application (regardless of whether enforcement is sought in a proceeding in
equity or at law)).
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(b) Absence of Certain Events. No Event of Default or Potential Event of
Default or, to its knowledge, Termination Event with respect to it has occurred
and is continuing and no such event or circumstance would occur as a result of
its entering into or performing its obligations under this Agreement or any
Credit Support Document to which it is a party.
(c) Absence of Litigation. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or proceeding at
law or in equity or before any court, tribunal, governmental body, agency or
official or any arbitrator that is likely to affect the legality, validity or
enforceability against it of this Agreement or any Credit Support Document to
which it is a party or its ability to perform its obligations under this
Agreement or such Credit Support Document.
(d) Accuracy of Specified Information. All applicable information that is
furnished in writing by or on behalf of it to the other party and is identified
for the purpose of this Section 3(d) in the Schedule is, as of the date of the
information, true, accurate and complete in every material respect.
(e) Payer Tax Representation. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(e) is accurate and true.
(f) Payee Tax Representations. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(f) is accurate and true.
4. Agreements
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party:--
(a) Furnish Specified Information. It will deliver to the other party or in
certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs:--
(i) any forms, documents or certificates relating to taxation specified
in the Schedule or any Confirmation:
(ii) any other documents specified in the Schedule or any Confirmation:
and
(iii) upon reasonable demand by such other party, any form or document that
may be required or reasonably requested in writing in order to allow such
other party or its Credit Support Provider to make a payment under this
Agreement or any applicable Credit Support Document without any deduction
or withholding for or on account of any Tax or with such deduction or
withholding at a reduced rate (so long as the completion, execution or
submission of such form or document would not materially prejudice the
legal or commercial position of the party in receipt of such demand), with
any such form or document to be accurate and completed in a manner
reasonably satisfactory to such other party and to be executed and to be
delivered with any reasonably required certification.
in each case by the date specified in the Schedule or such Confirmation or, if
none is specified, as soon as reasonably practicable.
(b) Maintain Authorisations. It will use all reasonable efforts to maintain in
full force and effect all consents of any governmental or other authority that
are required to be obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party and will use all reasonable efforts to
obtain any that may become necessary in the future.
(c) Comply with Laws. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to comply
would materially impair its ability to perform its obligations under this
Agreement or any Credit Support Document to which it is a party.
(d) Tax Agreement. It will give notice of any failure of a representation made
by it under Section 3(f) to be accurate and true promptly upon learning of such
failure.
(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax
levied or imposed upon it or in respect of its execution or performance of this
Agreement by a jurisdiction in which it is incorporated,
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organised, managed and controlled, or considered to have its seat, or in which a
branch or office through which it is acting for the purpose of this Agreement is
located ("Stamp Tax Jurisdiction") and will indemnify the other party against
any Stamp Tax levied or imposed upon the other party or in respect of the other
party's execution or performance of this Agreement by any such Stamp Tax
Jurisdiction which is not also a Stamp Tax Jurisdiction with respect to the
other party.
5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified Entity
of such party of any of the following events constitutes an event of default (an
"Event of Default") with respect to such party:--
(i) Failure to Pay or Deliver. Failure by the party to make, when due,
any payment under this Agreement or delivery under Section 2(a)(i) or 2(e)
required to be made by it, if such failure is not remedied on or before the
third Local Business Day after notice of such failure is given to the
party;
(ii) Breach of Agreement. Failure by the party to comply with or perform
any agreement or obligation (other than an obligation to make any payment
under this Agreement or delivery under Section 2(a)(i) or 2(e) or to give
notice of a Termination Event or any agreement or obligation under Section
4(a)(i), 4(a)(iii) or 4(d)) to be complied with or performed by the party
in accordance with this Agreement if such failure is not remedied on or
before the thirtieth day after notice of such failure is given to the
party;
(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of such party
to comply with or perform any agreement or obligation to be complied
with or performed by it in accordance with any Credit Support
Document if such failure is continuing after any applicable grace
period has elapsed;
(2) the expiration or termination of such Credit Support Document or
the failing or ceasing of such Credit Support Document to be in full
force and effect for the purpose of this Agreement (in either case
other than in accordance with its terms) prior to the satisfaction of
all obligations of such party under each Transaction to which such
Credit Support Document relates without the written consent of the
other party; or
(3) the party or such Credit Support Provider disaffirms, disclaims,
repudiates or rejects, in whole or in part, or challenges the
validity of, such Credit Support Document;
(iv) Misrepresentation. A representation (other than a representation
under Section 3(e) or (f)) made or repeated or deemed to have been made or
repeated by the party or any Credit Support Provider of such party in this
Agreement or any Credit Support Document proves to have been incorrect or
misleading in any material respect when made or repeated or deemed to have
been made or repeated;
(v) Default under Specified Transaction. The party, any Credit Support
Provider of such party or any applicable Specified Entity of such party (1)
defaults under a Specified Transaction and, after giving effect to any
applicable notice requirement or grace period, there occurs a liquidation
of, an acceleration of obligations under, or an early termination of, that
Specified Transaction, (2) defaults, after giving effect to any applicable
notice requirement or grace period, in making any payment or delivery due
on the last payment, delivery or exchange date of, or any payment on early
termination of, a Specified Transaction (or such default continues for at
least three Local Business Days if there is no applicable notice
requirement or grace period) or (3) disaffirms, disclaims, repudiates or
rejects, in whole or in part, a Specified Transaction (or such action is
taken by any person or entity appointed or empowered to operate it or act
on its behalf);
(vi) Cross Default. If "Cross Default" is specified in the Schedule as
applying to the party, the occurrence or existence of (1) a default, event
of default or other similar condition or event (however
<PAGE>
described) in respect of such party, any Credit Support Provider of such
party or any applicable Specified Entity of such party under one or more
agreements or instruments relating to Specified Indebtedness of any of them
(individually or collectively) in an aggregate amount of not less than the
applicable Threshold Amount (as specified in the Schedule) which has
resulted in such Specified Indebtedness becoming, or becoming capable at
such time of being declared, due and payable under such agreements or
instruments, before it would otherwise have been due and payable or (2) a
default by such party, such Credit Support Provider or such Specified
Entity (individually or collectively) in making one or more payments on the
due date thereof in an aggregate amount of not less than the applicable
Threshold Amount under such agreements or instruments (after giving effect
to any applicable notice requirement or grace period):
(vii) Bankruptcy. The party, any Credit Support Provider of such party or
any applicable Specified Entity of such party:--
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger): (2) becomes insolvent or is unable to pay
its debts or fails or admits in writing its inability generally to
pay its debts as they become due: (3) makes a general assignment,
arrangement or composition with or for the benefit of its creditors:
(4) Institutes or has instituted against it a proceeding seeking a
judgment of insolvency or bankruptcy or any other relief under any
bankruptcy or insolvency law or other similar law affecting
creditors' rights, or a petition is presented for its winding-up or
liquidation, and, in the case of any such proceeding or petition
instituted or presented against it, such proceeding or petition (A)
results in a judgment of insolvency or bankruptcy or the entry of an
order for relief or the making of an order for its winding-up or
liquidation or (B) is not dismissed, discharged, stayed or
restrained in each case within 30 days of the institution or
presentation thereof: (5) has a resolution passed for its winding-
up, official management or liquidation (other than pursuant to a
consolidation, amalgamation or merger); (6) seeks or becomes subject
to the appointment of an administrator, provisional liquidator,
conservator, receiver, trustee, custodian or other similar official
for it or for all or substantially all its assets: (7) has a secured
party take possession of all or substantially all its assets or has
a distress, execution, attachment, sequestration or other legal
process levied, enforced or sued on or against all or substantially
all its assets and such secured party maintains possession, or any
such process is not dismissed, discharged, stayed or restrained, in
each case within 30 days thereafter, (8) causes or is subject to any
event with respect to it which, under the applicable laws of any
jurisdiction, has an analogous effect to any of the events specified
in clauses (1) to (7) (inclusive): or (9) takes any action in
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the foregoing acts; or
(viii) Merger Without Assumption. The party or any Credit Support Provider
of such party consolidates or amalgamates with, or merges with or into, or
transfers all or substantially all its assets to, another entity and, at
the time of such consolidation, amalgamation, merger or transfer:-
(1) the resulting, surviving or transferee entity fails to assume
all the obligations of such party or such Credit Support Provider
under this Agreement or any Credit Support Document to which it or
its predecessor was a party by operation of law or pursuant to an
agreement reasonably satisfactory to the other party to this
Agreement; or
(2) the benefits of any Credit Support Document fails to extend
(without the consent of the other party) to the performance by such
resulting, surviving or transferee entity of its obligations under
this Agreement.
(b) Termination Events. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified Entity
of such party of any event specified below constitutes an illegality if the
event is specified in (i) below, a Tax Event if the event is specified in (ii)
below or a Tax Event Upon Merger if the event is specified in (iii) below, and,
if specified to be applicable, a Credit Event
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Upon Merger if the event is specified pursuant to (iv) below or an Additional
Termination Event if the event is specified pursuant to (v) below:-
(i) Illegality. Due to the adoption of, or any change in, any applicable
law after the date on which a Transaction is entered into, or due to the
promulgation of, or any change in, the interpretation by any court,
tribunal or regulatory authority with competent jurisdiction of any
applicable law after such date, it becomes unlawful (other than as a result
of a breach by the party of Section 4(b)) for such party (which will be the
Affected Party):-
(1) to perform any absolute or contingent obligation to make a
payment or delivery or to receive a payment or delivery in respect of
such Transaction or to comply with any other material provision of
this Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of such party to
perform, any contingent or other obligation which the party (or such
Credit Support Provider) has under any Credit Support Document
relating to such Transaction;
(ii) Tax Event. Due to (x) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the date on which
a Transaction is entered into (regardless of whether such action is taken
or brought with respect to a party to this Agreement) or (y) a Change in
Tax Law the party (which will be the Affected Party) will, or there is a
substantial likelihood that it will, on the next succeeding Scheduled
Payment Date (1) be required to pay to the other party an additional amount
in respect of an Indemnifiable Tax under Section 2(d)(i)(4) (except in
respect of interest under Section 2(e), 6(d)(ii) or 6(e)) or (2) receive a
payment from which an amount is required to be deducted or withheld for or
on account of a Tax (except in respect of interest under Section 2(e),
6(d)(ii) or 6(e)) and no additional amount is required to be paid in
respect of such Tax under Section 2(d)(i)(4) (other than by reason of
Section 2(d)(i)(4)(A) or (B));
(iii) Tax Event Upon Merger. The party (the "Burdened Party") on the next
succeeding Scheduled Payment Date will either (1) be required to pay an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount has been deducted or
withheld for or on account of any Indemnifiable Tax in respect of which the
other party is not required to pay an additional amount (other than by
reason of Section 2(d)(i)(4)(A) or (B)), in either case as a result of a
party consolidating or amalgamating with, or merging with or into, or
transferring all or substantially all its assets to, another equity (which
will be the Affected Party) where such action does not constitute an event
described in Section 5(a)(viii);
(iv) Credit Event Upon Merger. If "Credit Event Upon Merger" is specified
in the Schedule as applying to the party, such party ("X"), any Credit
Support Provider of X or any applicable Specified Entity of X consolidates
or amalgamates with, or merges with or into, or transfers all or
substantially all its assets to, another entity and such action does not
constitute an event described in Section 5(a)(viii) but the
creditworthiness of the resulting, surviving or transferee entity is
materially weaker than that of X, such Credit Support Provider or such
Specified Entity, as the case may be, immediately prior to such action
(and, in such event, X or its successor or transferee, as appropriate, will
be the Affected Party); or
(v) Additional Termination Event. If any "Additional Termination Event"
is specified in the Schedule or any Confirmation as applying, the
occurrence of such event (and, in such event, the Affected Party or
Affected Parties shall be as specified for such Additional Termination
Event in the Schedule or such Confirmation).
(c) Event of Default and Illegality. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes an
Illegality, it will be treated as an Illegality and will not constitute an
Event of Default.
<PAGE>
6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an Event of
Default with respect to a party (the "Defaulting Party") has occurred and is
then continuing, the other party (the "Non-defaulting Party") may, by not more
than 20 days notice to the Defaulting Party specifying the relevant Event of
Default, designate a day not earlier than the day such notice is effective as an
Early Termination Date in respect of all outstanding Transactions. If, however,
"Automatic Early Termination" is specified in the Schedule as applying to a
party, then an Early Termination Date in respect of all outstanding Transactions
will occur immediately upon the occurrence with respect to such party of an
Event of Default specified in Section 5(a)(vii)(1), (3), (5), (6) or, to the
extent analogous thereto, (8), and as of the time immediately preceding the
institution of the relevant proceeding or the presentation of the relevant
petition upon the occurrence with respect to such party of an Event of Default
specified in Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party, specifying the
nature of that Termination Event and each Affected Transaction and will
also give such other information about that Termination Event as the other
party may reasonably require.
(ii) Transfer to Avoid Termination Event. If either an Illegality under
Section 5(b)(i)(1) or a Tax Event occurs and there is only one Affected
Party, or if a Tax Event Upon Merger occurs and the Burdened Party is the
Affected Party, the Affected Party will, as a condition to its right to
designate an Early Termination Date under Section 6(b)(iv), use all
reasonable efforts (which will not require such party to incur a loss,
excluding immaterial, incidental expenses) to transfer within 20 days after
it gives notice under Section 6(b)(i) all its rights and obligations under
this Agreement in respect of the Affected Transactions to another of its
Offices or Affiliates so that such Termination Event ceases to exist.
If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period,
whereupon the other party may effect such a transfer within 30 days after
the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be subject to
and conditional upon the prior written consent of the other party, which
consent will not be withheld if such other party's policies in effect at
such time would permit it to enter into transactions with the transferee on
the terms proposed.
(iii) Two Affected Parties. If an illegality under Section 5(b)(i)(l) or a
Tax Event occurs and there are two Affected Parties, each party will use
all reasonable efforts to reach agreement within 30 days after notice
thereof is given under Section 6(b)(i) on action to avoid that Termination
Event.
(iv) Right to Terminate. If:--
(1) a transfer under Section 6(b)(ii) or an agreement under Section
6(b)(iii), as the case may be, has not been effected with respect to
all Affected Transactions within 30 days after an Affected Party
gives notice under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon
Merger or an Additional Termination Event occurs, or a Tax Event Upon
Merger occurs and the Burdened Party is not the Affected Party.
either party in the case of an Illegality, the Burdened Party in the case
of a Tax Event Upon Merger, any Affected Party in the case of a Tax Event
or an Additional Termination Event if there is more than one Affected
Party, or the party which is not the Affected Party in the case of a Credit
Event Upon Merger or an Additional Termination Event if there is only one
Affected Party may, by not more than 20 days notice to the other party and
provided that the relevant Termination Event is then
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continuing, designate a day not earlier than the day such notice is
effective as an Early Termination Date in respect of all Affected
Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given under
Section 6(a) or (b), the Early Termination Date will occur on the date
so designated, whether or not the relevant Event of Default or
Termination Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early
Termination Date, no further payments or deliveries under Section
2(a)(i) or 2(e) in respect of the Terminated Transactions will be
required to be made, but without prejudice to the other provisions of
this Agreement. The amount, if any, payable in respect of an Early
Termination Date shall be determined pursuant to Section 6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and
will provide to the other party a statement (1) showing, in reasonable
detail, such calculations (including all relevant quotations and
specifying any amount payable under Section 6(e)) and (2) giving
details of the relevant account to which any amount payable to it is
to be paid. In the absence of written confirmation from the source of
a quotation obtained in determining a Market Quotation, the records of
the party obtaining such quotation will be conclusive evidence of the
existence and accuracy of such quotation.
(ii) Payment Date. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day
that notice of the amount payable is effective (in the case of an
Early Termination Date which is designated or occurs as a result of an
Event of Default) and on the day which is two Local Business Days
after the day on which notice of the amount payable is effective (in
the case of an Early Termination Date which is designated as a result
of a Termination Event). Such amount will be paid together with (to
the extent permitted under applicable law) interest thereon (before as
well as after judgment) in the Termination Currency, from (and
including) the relevant Early Termination Date to (but excluding) the
date such amount is paid, at the Applicable Rate. Such interest will
be calculated on the basis of daily compounding and the actual number
of days elapsed.
(e) Payments on Early Termination. If an Early Termination Date occurs,
the following provisions shall apply based on the parties' election in the
Schedule of a payment measure, either "Market Quotation" or "Loss", and a
payment method, either the "First Method" or the "Second Method". If the parties
fail to designate a payment measure or payment method in the Schedule, it will
be deemed that "Market Quotation" or the "Second Method", as the case may be,
shall apply. The amount, if any, payable in respect of an Early Termination Date
and determined pursuant to this Section will be subject to any Set-off.
(i) Events of Default. If the Early Termination Date results from an
Event of Default:--
(1) First Method and Market Quotation. If the First Method and
Market Quotation apply, the Defaulting Party will pay to the Non-
defaulting Party the excess, if a positive number, of (A) the sum
of the Settlement Amount (determined by the Non-defaulting Party)
in respect of the Terminated Transactions and the Termination
Currency Equivalent of the Unpaid Amounts owing to the Non-
defaulting Party over (B) the Termination Currency Equivalent of
the Unpaid Amounts owing to the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply,
the Defaulting Party will pay to the Non-defaulting Party, if a
positive number, the Non-defaulting Party's Loss in respect of
this Agreement.
(3) Second Method and Market Quotation. If the Second Method and
Market Quotation apply, an amount will be payable equal to (A)
the sum of the Settlement Amount (determined by the
<PAGE>
Non-defaulting Party) in respect of the Terminated Transactions and the
Termination Currency Equivalent of the Unpaid Amounts owing to the Non-
defaulting Party less (B) the Termination Currency Equivalent of the
Unpaid Amounts owing to the Defaulting Party. If that amount is a positive
number, the Defaulting Party will pay it to the Non-defaulting Party: if
it is a negative number, the Non-defaulting Party will pay the absolute
value of that amount to the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss apply, an amount
will be payable equal to the Non-defaulting Party's Loss in respect of
this Agreement. If that amount is a positive number, the Defaulting Party
will pay it to the Non-defaulting Party: if it is a negative number, the
Non-defaulting Party will pay the absolute value of that amount to the
Defaulting Party.
(ii) Termination Events. If the Early Termination Date results from a
Termination Event:-
(1) One Affected Party. If there is one Affected Party, the amount
payable will be determined in accordance with Section 6(e)(i)(3), if
Market Quotation applies, or Section 6(e)(i)(4), if Loss applies, except
that, in either case, references to the Defaulting Party and to the Non-
defaulting Party will be deemed to be references to the Affected Party and
the party which is not the Affected Party, respectively, and, if Loss
applies and fewer than all the Transactions are being terminated, Loss
shall be calculated in respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties:-
(A) if Market Quotation applies, each party will determine a
Settlement Amount in respect of the Terminated Transactions and an
amount will be payable equal to (I) the sum of (a) one-half of the
difference between the Settlement Amount of the party with the higher
Settlement Amount ("X") and the Settlement Amount of the party with
the lower Settlement Amount ("Y") and (b) the Termination Currency
Equivalent of the Unpaid Amounts owing to X less (II) the Termination
Currency Equivalent of the Unpaid Amounts owing to Y; and
(B) if Loss applies, each party will determine its Loss in respect
of this Agreement (or, if fewer than all the Transactions are being
terminated, in respect of all Terminated Transactions) and an amount
will be payable equal to one-half of the difference between the Loss
of the party with the higher Loss ("X") and the Loss of the party
with the lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X; if it is a
negative number, X will pay the absolute value of that amount to Y.
(iii) Adjustment for Bankruptcy. In circumstances where an Early Termination
Date occurs because "Automatic Early Termination" applies in respect of a party,
the amount determined under this Section 6(e) will be subject to such
adjustments as are appropriate and permitted by law to reflect any payments or
deliveries made by one party to the other under this Agreement (and retained by
such other party) during the period from the relevant Early Termination Date to
the date for payment determined under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation applies an amount
recoverable under this Section 6(e) is a reasonable pre-estimate of loss and not
a penalty. Such amount is payable for the loss of bargain and the loss of
protection against future risks and except as otherwise provided in this
Agreement neither party will be entitled to recover any additional damages as a
consequence of such losses.
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7. Transfer
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of the
other party, except that:-
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all its assets to, another entity (but without prejudice to any
other right or remedy under this Agreement): and
(b) a party may make such a transfer of all or any part of its interest in any
amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be
void.
8. Contractual Currency
(a) Payment in the Contractual Currency. Each payment under this Agreement
will be made in the relevant currency specified in this Agreement for that
payment (the "Contractual Currency"). To the extent permitted by applicable
law, any obligation to make payments under this Agreement in the Contractual
Currency will not be discharged or satisfied by any tender in any currency
other than the Contractual Currency, except to the extent such tender results
in the actual receipt by the party to which payment is owed, acting in a
reasonable manner and in good faith in converting the currency so tendered into
the Contractual Currency, of the full amount in the Contractual Currency of all
amounts payable in respect of this Agreement. If for any reason the amount in
the Contractual Currency so received falls short of the amount in the
Contractual Currency payable in respect of this Agreement, the party required to
make the payment will, to the extent permitted by applicable law, immediately
pay such additional amount in the Contractual Currency as may be necessary to
compensate for the shortfall. If for any reason the amount in the Contractual
Currency so received exceeds the amount in the Contractual Currency payable in
respect of this Agreement, the party receiving the payment will refund promptly
the amount of such excess.
(b) Judgments. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is rendered
(i) for the payment of any amount owing in respect of this Agreement, (ii) for
the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party is
entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the Contractual
Currency received by such party as a consequence of sums paid in such other
currency and will refund promptly to the other party any excess of the
Contractual Currency received by such party as a consequence of sums paid in
such other currency if such shortfall or such excess arises or results from any
variation between the rate of exchange at which the Contractual Currency is
converted into the currency of the judgment or order for the purposes of such
judgment or order and the rate of exchange at which such party is able, acting
in a reasonable manner in good faith in converting the currency received into
the Contractual Currency, to purchase the Contractual Currency with the amount
of the currency of the judgment or order actually received by such party. The
term "rate of exchange" includes, without limitation, any premiums and costs of
exchange payable in connection with the purchase of or conversion into the
Contractual Currency.
(c) Separate Indemnities. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and independent
causes of action, will apply notwithstanding any indulgence granted by the
party to which any payment is owed and will not be affected by judgement being
obtained or claim or proof being made for any other sums payable in respect of
this Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it will be sufficient
for a party to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
11
<PAGE>
9. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communication and prior writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing evidenced by
a facsimile transmission) and executed by each of the parties or confirmed by an
exchange of telexes or electronic messages on an electronic messaging system.
(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive the
termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative and
not exclusive of any rights, powers, remedies and privileges provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts (including by
facsimile transmission), each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of each
Transaction from the moment they agree to those terms (whether orally or
otherwise). A Confirmation shall be entered into as soon as practicable and
may be executed and delivered in counterparts (including by facsimile
transmission) or be created by an exchange of telexes or by an exchange of
electronic messages on an electronic messaging system, which in each case
will be sufficient for all purposes to evidence a binding supplement to
this Agreement. The parties will specify therein or through another
effective means that any such counterpart, telex or electronic message
constitutes a Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power or
privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege will
not be presumed to preclude any subsequent or further exercise, of that right,
power or privilege or the exercise of any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
10. Offices; Multibranch Parties
(a) If Section 10(a) is specified in the Schedule as applying, each party that
enters into a Transaction through an Office other than its head or home office
represents to the other party that, notwithstanding the place of booking office
or jurisdiction of incorporation or organisation of such party, the obligations
of such party are the same as if it had entered into the Transaction through its
head or home office. This representation will be deemed to be repeated by such
party on each date on which a Transaction is entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the prior
written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office through
which it makes and receives payments or deliveries with respect to a Transaction
will be specified in the relevant Conformation.
11. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including legal fees and
Stamp Tax, incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement or any Credit Support Document
12
<PAGE>
to which the Defaulting Party is a party or by reason of the early termination
of any Transaction, including, but not limited to, costs of collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice or
other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated:--
(i) if in writing and delivered in person or by courier, on the date it
is delivered;
(ii) if sent by telex, on the date the recipient's answerback is received;
(iii) if sent by facsimile transmission, on the date that transmission is
received by a responsible employee of the recipient in legible form (it
being agreed that the burden of proving receipt will be on the sender and
will not be met by a transmission report generated by the sender's
facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or the
equivalent (return receipt requested), on the date that mail is delivered
or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that electronic
message is received.
unless the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered (or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings relating to
this Agreement ("Proceedings"), each party irrevocably:--
(i) submits to the jurisdiction of the English courts, if this Agreement
is expressed to be governed by English law, or to the non-exclusive
jurisdiction of the courts of the State of New York and the United States
District Court located in the Borough of Manhattan in New York City, if
this Agreement is expressed to be governed by the laws of the State of New
York; and
(ii) waives any objection which it may have at any time to the laying of
venue of any Proceedings brought in any such court, waives any claim that
such Proceedings have been brought in an inconvenient forum and further
waives the right to object, with respect to such Proceedings, that such
court does not have any jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be governed
by English law, the Contracting States, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments Act 1982 or any modification, extension or
re-enactment thereof for the time being in force) nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) Service of Process. Each party irrevocably appoints the Process Agent (if
any) specified opposite its name in the Schedule to receive, for it and on its
behalf, service of process in any Proceedings. If for any
13
<PAGE>
reason any party's Process Agent is unable to act as such, such party will
promptly notify the other party and within 30 days appoint a substitute process
agent acceptable to the other party. The parties irrevocably consent to service
of process given in the manner provided for notices in Section 12. Nothing in
this Agreement will affect the right of either party to serve process in any
other manner permitted by law.
(d) Waiver of Immunities. Each party irrevocably waives, to the fullest extent
permitted by applicable law, with respect to itself and its revenues and assets
(irrespective of their use or intended use), all immunity on the grounds of
sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any
court, (iii) relief by way of injunction, order for specific performance or for
recovery of property, (iv) attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment to which it or its
revenues or assets might otherwise be entitled in any Proceedings in the courts
of any jurisdiction and irrevocably agrees, to the extent permitted by
applicable law, that it will not claim any such immunity in any Proceedings.
14. Definitions
As used in this Agreement:--
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control" of
any entity or person means ownership of a majority of the voting power of the
entity or person.
"Applicable Rate" means:--
(a) in respect of obligations payable or deliverable (or which would have been
but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of either
party from and after the date (determined in accordance with Section 6(d)(ii))
on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which would
have been but for Section 2(a)(iii)) by a Non-defaulting Party, the Non-default
Rate; and
(d) in all other cases, the Termination Rate.
"Burdened Party" has the meaning specified in Section 5(b).
"Change in Tax Law" means the enactment, promulgation, execution or ratification
of, or any change in or amendment to, any law (or in the application or official
interpretation of any law) that occurs on or after the date on which the
relevant Transaction is entered into.
"consent" includes a consent, approval, action, authorisation, exemption,
notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is specified as
such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of funding the relevant amount plus 1% per annum.
14
<PAGE>
"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with Section
6(a) or 6(b)(iv).
"Event of Default" has the meaning specified in Section 5(a) and, if applicable,
in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"Indemnifiable Tax" means any Tax other than a Tax that would not be imposed in
respect of a payment under this Agreement but for a present or former
connection between the jurisdiction of the government or taxation authority
imposing such Tax and the recipient of such payment or a person related to such
recipient (including, without limitation, a connection arising from such
recipient or related person being or having been a citizen or resident of such
jurisdiction, or being or having been organised, present or engaged in a trade
or business in such jurisdiction, or having or having had a permanent
establishment or fixed place of business in such jurisdiction, but excluding a
connection arising solely from such recipient or related person having executed,
delivered, performed its obligations or received a payment under, or enforced,
this Agreement or a Credit Support Document).
"law" includes any treaty, law, rule or regulation (as modified, in the case of
tax matters, by the practice of any relevant governmental revenue authority) and
"lawful" and "unlawful" will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which commercial
banks are open for business (including dealings in foreign exchange and foreign
currency deposits) (a) in relation to any obligation under Section 2(a)(i), in
the place(s) specified in the relevant Confirmation or, if not so specified, as
otherwise agreed by the parties in writing or determined pursuant to provisions
contained, or incorporated by reference, in this Agreement, (b) in relation to
any other payment, in the place where the relevant account is located and, if
different, in the principal financial centre, if any, of the currency of such
payment, (c) in relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), in the city specified in the address for
notice provided by the recipient and, in the case of a notice contemplated by
Section 2(b), in the place where the relevant new account is to be located and
(d) in relation to Section 5(a)(v)(2), in the relevant locations for
performance with respect to such Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be its
total losses and costs (or gain, in which case expressed as a negative number)
in connection with this Agreement or that Terminated Transaction or group of
Terminated Transactions, as the case may be, including any loss of bargain, cost
of funding or, as the election of such party but without duplication, loss or
cost incurred as a result of its terminating, liquidating, obtaining or
reestablishing any hedge or related trading position (or any gain resulting from
any of them). Loss includes losses and costs (or gains) in respect of any
payment or delivery required to have been made (assuming satisfaction of each
applicable condition precedent) on or before the relevant Early Termination Date
and not made, except, so as to avoid duplication, if Section 6(e)(i)(1) or (3)
or 6(e)(ii)(2)(A) applies. Loss does not include a party's legal fees and
out-of-pocket expenses referred to under Section 11. A party will determine its
Loss as of the relevant Early Termination Date, or, if that is not reasonably
practicable, as of the earliest date thereafter as is reasonably practicable. A
party may (but need not) determine its Loss by reference to quotations of
relevant rates or prices from one or more leading dealers in the relevant
markets.
"Market Quotation" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an amount,
if any, that would be paid to such party (expressed as a negative number) or by
such party (expressed as a positive number) in consideration of an agreement
between such party (taking into account any existing Credit Support Document
with respect to the obligations of such party) and the quoting References
Market-maker to enter into a transaction (the "Replacement Transaction") that
would have the effect of preserving for such party the economic equivalent of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
by the parties under Section 2(a)(i) in respect of such Terminated Transaction
or group of Terminated Transactions that would, but for the occurrence of the
relevant Early Termination Date, have
<PAGE>
been required after that date. For this purpose, Unpaid Amounts in respect of
the Terminated Transaction or group of Terminated Transactions are to be
excluded but, without limitation, any payment or delivery that would, but for
the relevant Early Termination Date, have been required (assuming satisfaction
of each applicable condition precedent) after that Early Termination Date is to
be included. The Replacement Transaction would be subject to such documentation
as such party and the Reference Market-maker may, in good faith, agree. The
party making the determination (or its agent) will request each Reference
Market-maker to provide its quotation to the extent reasonably practicable as of
the same day and time (without regard to different time zones) on or as soon as
reasonably practicable after the relevant Early Termination Date. The day and
time as of which those quotations are to be obtained will be selected in good
faith by the party obliged to make a determination under Section 6(e), and, if
each party is so obliged, after consultation with the other. If more than three
quotations are provided, the Market Quotation will be the arithmetic mean of the
quotations, without regard to the quotations having the highest and lowest
values. If exactly three such quotations are provided, the Market Quotation will
be the quotation remaining after disregarding the highest and lowest quotations.
For this purpose, if more than one quotation has the same highest value or
lowest value, then one of such quotations shall be disregarded. If fewer than
three quotations are provided, it will be deemed that the Market Quotation in
respect of such Terminated Transaction or group of Terminated Transactions
cannot be determined.
"Non-default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the Non-defaulting Party (as certified by it) if
it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Office" means a branch or office of a party, which may be such party's head or
home office.
"Potential Event of Default" means any event which, with the giving of notice or
the lapse of time or both, would constitute an Event of Default.
"Reference Market-makers" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria that
such party applies generally at the time in deciding whether to offer or to make
an extension of credit and (b) to the extent practicable, from among such
dealers having an office in the same city.
"Relevant Jurisdiction" means, with respect to a party, the jurisdictions (a) in
which the party is incorporated, organised, managed and controlled or considered
to have its seat, (b) where an Office through which the party is acting for
purposes of this Agreement is located, (c) in which the party executes this
Agreement and (d) in relation to any payment, from or through which such payment
is made.
"Scheduled Payment Date" means a date on which a payment or delivery is to be
made under Section 2(a)(i) with respect to a Transaction.
"Set-off" means set-off, offset combination of accounts, right of retention or
withholding or similar right or requirement to which the payer of an amount
under Section 6 is entitled or subject (whether arising under this Agreement,
another contract, applicable law or otherwise) that is exercised by, or imposed
on, such payer.
"Settlement Amount" means, with respect to a party and any Early Termination
Date, the sum of:--
(a) the Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without reference to
any Unpaid Amounts) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation cannot be determined or would not (in
the reasonable belief of the party making the determination ) produce a
commercially reasonable result.
"Specified Entity" has the meaning specified in the Schedule.
16
<PAGE>
"Specified Indebtedness" means, subject to the Schedule, any obligation
(whether present or future, contingent or otherwise, as principal or surety or
otherwise) in respect of borrowed money.
"Specified Transaction" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into between one party to this Agreement (or any Credit Support Provider of such
party or any applicable Specified Entity of such party) and the other party to
this Agreement (or any Credit Support Provider of such other party or any
applicable Specified Entity of such other party) which is a rate swap
transaction, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions), (b) any combination of
these transactions and (c) any other transaction identified as a Specified
Transaction in this Agreement or the relevant confirmation.
"Stamp Tax" means any stamp, registration, documentation or similar tax.
"Tax" means any present or future tax, levy, impost duty, charge, assessment or
fee of any nature (including interest, penalties and additions thereto) that
is imposed by any government or other taxing authority in respect of any payment
under this Agreement other than a stamp, registration, documentation or similar
tax.
"Tax Event" has the meaning specified in Section 5(b).
"Tax Event Upon Merger" has the meaning specified in Section 5(b).
"Terminated Transactions" means with respect to any Early Termination Date (a)
if resulting from a Termination Event, all Affected Transactions and (b) if
resulting from an Event of Default, all Transactions (in either case) in effect
immediately before the effectiveness of the notice designating that Early
Termination Date (or, if "Automatic Early Termination" applies, immediately
before that Early Termination Date).
"Termination Currency" has the meaning specified in the Schedule.
"Termination Currency Equivalent" means, in respect of any amount denominated in
the Termination Currency, such Termination Currency amount and, in respect of
any amount denominated in a currency other than the Termination Currency (the
"Other Currency"), the amount in the Termination Currency determined by the
party making the relevant determination as being required to purchase such
amount of such Other Currency as at the relevant Early Termination Date, or, if
the relevant Market Quotation or Loss (as the case may be), is determined as of
a later date, that later date, with the Termination Currency at the rate equal
to the spot exchange rate of the foreign exchange agent (selected as provided
below) for the purchase of such Other Currency with the Termination Currency at
or about 11:00 a.m. (in the city in which such foreign exchange agent is
located) on such date as would be customary for the determination of such a rate
for the purchase of such Other Currency for value on the relevant Early
Termination Date or that later date. The foreign exchange agent will, if only
one party is obliged to make a determination under Section 6(e), be selected in
good faith by that party and otherwise will be agreed by the parties.
"Termination Event" means an Illegality, a Tax Event or a Tax Event Upon Merger
or, if specified to be applicable, a Credit Event Upon Merger or an Additional
Termination Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean of the
cost (without proof or evidence of any actual cost) to each party (as certified
by such party) if it were to fund or of funding such amounts.
"Unpaid Amounts" owing to any party means, with respect to an Early Termination
Date, the aggregate of (a) in respect of all Terminated Transactions, the
amounts that became payable (or that would have become payable but for Section
2(a)(iii)) to such party under Section 2(a)(i) on or prior to such Early
Termination Date and which remain unpaid as at such Early Termination Date and
(b) in respect of each Terminated Transaction, for each obligation under Section
2(a)(i) which was (or would have been but for Section 2(a)(iii)) required to be
settled by delivery to such party on or prior to such Early Termination Date and
which has not been so settled as at such Early Termination Date, an amount equal
to the fair market
<PAGE>
value of that which was (or would have been) required to be delivered as of the
originally scheduled date for delivery, in each case together with (to the
extent permitted under applicable law) interest, in the currency of such
amounts, from (and including) the date such amounts or obligations were or would
have been required to have been paid or performed to (but excluding) such Early
Termination Date, at the Applicable Rate. Such amounts of interest will be
calculated on the basis of daily compounding and the actual number of days
elapsed. The fair market value of any obligation referred to in clause (b) above
shall be reasonably determined by the party obliged to make the determination
under Section 6(e) or, if each party is so obliged, it shall be the average of
the Termination Currency Equivalents of the fair market values reasonably
determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
- ------------------------------------- --------------------------------------
(Name of Party) (Name of Party)
By:---------------------------------- By:-----------------------------------
Name: Name:
Title: Title:
Date: Date:
12
<PAGE>
Draft: 9 March 2000
Series 2000-1G Medallion Trust
ISDA Master Agreement
(Interest Rate Swap Agreement)
Date:
Commonwealth Bank of Australia
Party A
Perpetual Trustee Company Limited
Party B
Securitisation Advisory Services Pty. Limited
Manager
CLAYTON UTZ
Lawyers
Levels 27-35
No.1 O'Connell Street
SYDNEY NSW 2000
AUSTRALIA
Liability is limited by the Solicitors Scheme under the Professional Standards
Act 1994 NSW
<PAGE>
SCHEDULE
to the
MASTER AGREEMENT
dated as of 2000 between
Commonwealth Bank of Australia
ACN 123 123 124
("Party A")
and
Perpetual Trustee Company Limited
ACN 000 001 007
as trustee of the Series 2000-1G Medallion Trust
("Party B")
and
Securitisation Advisory Services Pty. Limited, ACN 064 133 946
(the "Manager")
Part 1. Termination Provisions
(a) "Specified Entity" in relation to
(i) Party A, is not applicable; and
(ii) Party B, is not applicable.
(b) "Specified Transaction" means - not applicable.
(c) (i) The following provisions of Section 5 will not apply to Party A:
<TABLE>
<S> <C> <C> <C>
Section 5(a)(ii) Section 5(a)(v) Section 5(a)(viii) Section 5(b)(iv)
Section 5(a)(iii) Section 5(a)(vi) Section 5(b)(ii)
Section 5(a)(iv) Section 5(a)(vii) Section 5(b)(iii)
</TABLE>
(ii) The following provisions of Section 5 will not apply to Party B:
<TABLE>
<S> <C> <C> <C>
Section 5(a)(ii) Section 5(a)(v) Section 5(a)(viii) Section 5(b)(iv)
Section 5(a)(iii) Section 5(a)(vi) Section 5(b)(ii)
Section 5(a)(iv) Section 5(a)(vii) Section 5(b)(iii)
</TABLE>
(d) The "Automatic Early Termination" provisions of Section 6(a) will not
apply.
1.
<PAGE>
(e) Payments on Early Termination. For the purpose of Section 6(e) of this
Agreement:
(i) A. in respect of the Basis Swap, Loss will apply;
B. in respect of the Fixed Rate Swap and the Interest Rate
Basis Cap, Market Quotation will apply; and
(ii) A. in respect of the Basis Swap, neither the First Method nor
the Second Method will apply; and
B. in respect of the Fixed Rate Swap and the Interest Rate
Basis Cap, the Second Method will apply;
(iii) the definition of "Loss" is amended by adding the following
sentence at the end of that definition:
"However in relation to a Terminated Transaction that is a
Basis Swap, each party's Loss is deemed to be zero."
(f) "Termination Currency" means Australian dollars.
(g) Additional Termination Event. The following is an Additional Termination
Event in relation to which Party B is the only Affected Party and the
Basis Swap is the only Affected Transaction:
If, on any day on which the weighted average Mortgage Rate applicable to
the Mortgage Loans forming part of the Assets of the Series Trust which
are charged interest at a variable rate is equal to or greater than the
then Threshold Rate, Party A notifies Party B and each Rating Agency of
its intention to terminate the Basis Swap.
Part 2. Tax Representations
(a) Payer Representations. For the purpose of Section 3(e) of this
Agreement, Party A and Party B each make the following representation:
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant
Jurisdiction to make any deduction or withholding for or on account of
any Tax from any payment (other than interest under Section 2(e),
6(d)(ii) or 6(e) of this Agreement) to be made by it to any other party
under this Agreement. In making this representation, it may rely on:
(i) the accuracy of any representations made by the other party
pursuant to Section 3(f) of this Agreement;
(ii) the satisfaction of the agreement contained in Section 4(a)(i) or
4(a)(iii) of this Agreement and the accuracy and effectiveness of
any document provided by the other party pursuant to Section
4(a)(i) or 4(a)(iii) of this Agreement; and
(iii) the satisfaction of the agreement of the other party contained in
Section 4(d) of this Agreement,
provided that it shall not be a breach of this representation where
reliance is placed on clause (ii) and the other party does not deliver a
form or document under Section 4(a)(iii) by reason of material prejudice
to its legal or commercial position.
(b) Payee Representations. For the purpose of Section 3(f) of this
Agreement, Party A will and Party B will make the following
representation:
It is an Australian resident and does not derive the payments
under this Agreement in part or whole in carrying on business in
a country outside Australia at or through a permanent
establishment of itself in that country.
2.
<PAGE>
Part 3. Agreement to Deliver Documents
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver to each other party the following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are:
<TABLE>
<CAPTION>
Party required to deliver Form/Document/Certificate Date by which to be
document delivered
<S> <C> <C>
Party A and Party B Any document or certificate On the earlier of (a)
reasonably required or learning that such
reasonably requested by a party document or certificate is
in connection with its obligations required and (b) as soon as
to make a payment under this reasonably practicable
Agreement which would enable following a request by a
that party to make the payment party.
free from any deduction or
withholding for or on account of
Tax or which would reduce the
rate at which deduction or
withholding for or on account of
Tax is applied to that payment.
</TABLE>
(b) Other documents to be delivered are:
<TABLE>
<CAPTION>
Party required Form/Document/ Date by which to be Covered by
to deliver Certificate delivered Section 3(d)
document Representation
<S> <C> <C> <C>
Party A A certificate from Party A On execution and Yes
(or, if available, Party A's delivery of any
current authorised signature Confirmation unless
book) specifying the names, that certificate has
title and specimen already been
signatures of the Authorised supplied for that
Officers of Party A. purpose and remains
true and in effect
and when the list is
updated or upon request.
Party A, Party B A legal opinion as to the At any time prior to No
and the validity and enforceability the Closing Date.
Manager of that party's obligations
under this Agreement in
form and substance (and
issued by legal counsel)
reasonably acceptable to the
other party.
The Manager A copy (certified by the Not less than 5 Yes
Manager) of the Credit Business Days (or
Support Document and such lesser period as
(without limiting any Party A agrees to)
obligation Party B may have before the Trade
under the terms of the Credit Date of the first
Support Document to notify occurring
Party A of amendments) a Transaction and in
copy (certified by the the case of any
Manager) amending
</TABLE>
3.
<PAGE>
of any document documents entered
that amends in any way the into subsequent to
terms of the Credit Support that date, promptly
Document. after each amending
document (if any)
has been entered
into.
For the purposes of this paragraph (b) a copy of a document is taken to be
certified by the Manager if an Authorised Officer of the Manager has certified
it to be a true and complete copy of the document of which it purports to be a
copy.
Part 4. Miscellaneous
(a) Addresses for Notices. For the purpose of Section 12(a) of this
Agreement, the address for notices or communications to a party is the
address notified by that party to the other parties for this purpose
from time to time.
(b) Process Agent. For the purpose of Section 13(c) of this Agreement:
Party A appoints as its Process Agent - Not Applicable
Party B appoints as its Process Agent - Not Applicable
(c) Offices. The provisions of Section 10(a) will not apply to this
Agreement.
(d) Multibranch Party. For the purpose of Section 10(c) of this Agreement.
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is the Manager.
(f) Credit Support Document. Details of any Credit Support Document:
(i) in relation to Party A: Nil;
(ii) in relation to Party B: the Security Trust Deed.
(g) Credit Support Provider.
(i) In relation to Party A: Not Applicable.
(ii) In relation to Party B: Not Applicable.
(h) Governing Law. This Agreement will be governed by and construed in
accordance with the laws in force in New South Wales and Section
13(b)(i) is deleted and replaced by the following:
"(i) submits to the non-exclusive jurisdiction of the courts of New
South Wales and courts of appeal from them; and"
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) of this Agreement
will apply in respect of the following groups of Transactions:
Group 1 - all Transactions being swaps
Group 2 - all Transactions being interest rate options
(j) "Affiliate" will have the meaning specified in Section 14 of this
Agreement. For the purposes of Section 3(c), Party A and Party B are
deemed not to have any Affiliates.
4.
<PAGE>
Part 5. Other Provisions.
(1) Payments: In Section 2:
(a) In Section 2(a)(i) add the following sentence:
"Each payment will be by way of exchange for the corresponding
payment or payments payable by the other party".
(b) In Section 2(a)(ii) the first sentence is deleted and replaced
with the following sentence:
"Unless specified otherwise in this Agreement, payments under
this Agreement will be made by 10.00am on the due date for value
on that date in the place of the account specified in the
relevant Confirmation or otherwise pursuant to this Agreement, in
freely transferable funds, free of any set-off, counterclaim,
deduction or withholding (except as expressly provided in this
Agreement) and in the manner customary for payment in the
required currency".
(c) Insert a new paragraph (iv) in Section 2(a) immediately after
Section 2(a)(iii) as follows:
"(iv) The condition precedent in Section 2(a)(iii)(1) does not
apply to a payment due to be made to a party if it has
satisfied all its payment obligations under Section
2(a)(i) of this Agreement and has no future payment
obligations, whether absolute or contingent under Section
2(a)(i)."
(d) Add the following new sentence to Section 2(b):
"Each new account so designated will be in the same tax
jurisdiction as the original account."
(e) In Section 2(c) insert the following words at the end of the
first paragraph:
"Subject to Section 2(f), the aggregate amount that would
otherwise be payable will not take into account amounts
due on that Payment Date pursuant to Sections 2(g), 17, 18
or 19."
(f) Delete Section 2(d)(i)(4) in its entirety.
(g) In Section 2(d)(ii)(1) delete the following where they appear:
"in respect of which X would not be required to pay an additional
amount to Y under Section 2(d)(i)(4)".
(h) Insert new Sections 2(f) and 2(g) as follows:
"(f) If on a Payment Date an amount would otherwise be payable
by Party A pursuant to Section 2(c) in respect of a Fixed
Rate Swap, then such amount will, unless otherwise agreed
between Party A and Party B, be satisfied in part, or
whole, from the then Fixed Rate Prepayment Balance.
(g) On each Payment Date that a Fixed Rate Swap is existing:
(i) Party B will pay Party A any Net Break Payment
determined by the Manager on the preceding
Determination Date in accordance with the Series
Supplement; and
(ii) Party A will pay Party B any Net Break Receipt
determined by the Manager on the preceding
Determination Date in accordance with the Series
Supplement."
5.
<PAGE>
(2) Representations: In Section 3:
(a) Section 3(a)(v) is amended by inserting immediately after the
words "creditors' rights generally" the following:
"(including in the case of a party being an ADI (as that term is
defined in the Reserve Bank Act, 1969 (Cth) and section 13A(3) of
the Banking Act, 1959 (Cth)))."
(b) Relationship Between Parties. Each party will be deemed to
represent to the other parties on the date on which it enters into
a Transaction that (absent a written agreement between the parties
that expressly imposes affirmative obligations to the contrary for
that Transaction):-
(i) Non-Reliance. It is acting for its own account (in the
case of Party B, as trustee of the Series Trust), and it
has made its own independent decisions to enter into that
Transaction and as to whether that Transaction is
appropriate or proper for it based upon its own judgment
(and in the case of Party B, also upon the judgment of the
Manager) and upon advice from such advisers as it has
deemed necessary. It is not relying on any communication
(written or oral) of any other party as investment advice
or as a recommendation to enter into that Transaction; it
being understood that information and explanations related
to the terms and conditions of a Transaction will not be
considered investment advice or a recommendation to enter
into that Transaction. No communication (written or oral)
received from any other party will be deemed to be an
assurance or guarantee as to the expected results of that
Transaction.
(ii) Evaluation and Understanding. It is capable of evaluating
and understanding (on its own behalf or through independent
professional advice), and understands and accepts, the
terms, conditions and risks of that Transaction. It is
also capable of assuming, and assumes, the risks of that
Transaction.
(iii) Status of Parties. No other party is acting as a fiduciary
or an adviser to it in respect of that Transaction.
(c) after "Section 3(f)" in line 2 insert "3(g), 3(h) and 3(i)";
(d) insert the following new paragraphs (g), (h) and (i) in Section 3
immediately after Section 3(f):
"(h) Series Trust: By Party B, in respect of Party B only:
(i) Trust Validly Created. The Series Trust has been
validly created and is in existence at the date of
this Agreement.
(ii) Sole Trustee. It has been validly appointed as
trustee of the Series Trust and is presently the
sole trustee of the Series Trust.
(iii) No Proceedings to Remove. No notice has been given
to it and to its knowledge no resolution has been
passed, or direction or notice has been given,
removing it as trustee of the Series Trust.
(iv) Power. It has power under the Master Trust Deed to:
(A) enter into this Agreement and the Credit
Support Documents in its capacity as trustee
of the Series Trust; and
(B) mortgage or charge the Assets of the Series
Trust in the manner provided in the Credit
Support Document in relation to Party B.
6.
<PAGE>
(v) Good Title. It is the lawful owner of the Assets of
the Series Trust and, subject only to the Credit
Support Document in relation to Party B and any
Security Interest permitted under the Credit Support
Document in relation to Party B, those Assets are
free of all other Security Interests (except for
Party B's right of indemnity out of the Assets of
the Series Trust).
(e) Non Assignment. It has not assigned (whether absolutely, in
equity, by way of security or otherwise), declared any trust over
or given any charge over any of its rights under this Agreement or
any Transaction except, in the case of Party B, for the Security
Interests created under any Credit Support Document specified in
relation to Party B.
(f) Contracting as principal. Each existing Transaction has been
entered into by that party as principal and not otherwise."
(3) Failure to Pay or Deliver: In Section 5(a)(i) delete the words "third
Local" where they appear in line 3 and replace them with the word
"tenth".
(4) Termination: In Section 6:
(i) Add the following sentence at the end of the first paragraph of
Section 6(b)(ii):
"However, if Party B is the Affected Party, then Party B will only
be obliged to make such efforts to effect a transfer in accordance
with this Section 6(b)(ii) as it is able to make by application of
funds held by it as trustee of the Series Trust being funds
available for such application in accordance with the provisions
of the Master Trust Deed and the Series Supplement."
(ii) Add the following sentence at the end of the second paragraph of
Section 6(b)(ii):
"However, if Party A is that other party it must, if so requested
by the Manager with the prior consent of the Rating Agencies, use
reasonable efforts to make such a transfer to an Affiliate (as
that expression is defined in Section 14 disregarding any
modification made by this Agreement)."
(iii) Add the following sentence at the end of the last paragraph of
Section 6(b)(ii):
"However, consent may be withheld if the other party considers
that its credit exposure to the transferee would be adversely
affected by the transfer."
(iv) Section 6(e) is amended by deleting the last sentence of the first
paragraph.
(5) Facsimile Transmission: In Section 12:
(a) Delete the following words where they appear on lines 2 and 3 of
Section 12(a):
"(except that a notice or other communication under Section 5 or
Section 6 may not be given by facsimile transmission or electronic
messaging system)";
(b) Replace Section 12(a)(iii) with:
"(iii) if sent by facsimile transmission, on the date a
transmission report is produced by the machine from which
the facsimile was sent which indicates that the facsimile
was sent in its entirety to the facsimile number of the
recipient notified for the purpose of this Section unless
the recipient notifies the sender within one Local Business
Day of the facsimile being sent that the facsimile was not
received in its entirety in legible form;";
(c) Insert a new paragraph (vi) in Section 12(a) immediately after
Section 12(a)(v) as follows:
7.
<PAGE>
"(vi) if sent by ordinary mail, on the third (seventh, if posted
to or from a place outside Australia) day after posting."
(6) Definitions: In this Agreement, unless the contrary intention appears:
(a) Master Trust Deed and Series Supplement: Subject to Part
5(6)(h), unless otherwise defined in this Agreement, words and
phrases defined in the Master Trust Deed or the Series Supplement
have the same meaning in this Agreement. Where there is any
inconsistency in a definition between this Agreement (on the one
hand) and the Master Trust Deed or the Series Supplement (on the
other hand), this Agreement prevails. Subject to Part 5(6)(h),
where there is any inconsistency in a definition between the
Master Trust Deed and the Series Supplement, the Series Supplement
prevails over the Master Trust Deed in respect of the Series
Trust. Where words or phrases used but not defined in this
Agreement are defined in the Master Trust Deed in relation to a
Series Trust (as defined in the Master Trust Deed) and/or an Other
Trust such words or phrases are to be construed in this Agreement,
where necessary, as being used only in relation to the Series
Trust (as defined in the Series Supplement) and/or the CBA Trust,
as the context requires.
(b) Trustee Capacity:
(i) a reference to Party B is a reference to Party B in its
capacity as trustee of the Series Trust only, and in no
other capacity; and
(ii) a reference to the undertaking, assets, business or money
of Party B is a reference to the undertaking, assets,
business or money of Party B in the capacity referred to in
paragraph (i) only.
(c) Definitions: in Section 14:
(i) replace the definitions of "Affected Transactions" and
"Local Business Day" with the following:
""Affected Transactions" means, with respect to a
Termination Event:
(a) where an Early Termination Date is designated
pursuant to Section 19(a), the Basis Swap; and
(b) where an Early Termination Date is designated
following the occurrence of any other Termination
Event, all Transactions."
"Local Business Day" has the same meaning as "Business
Day".
(ii) insert the following new definitions:
"Amounts Outstanding" in relation to a Mortgage Loan means,
at any given time, the amount recorded at that time as the
balance of the Mortgage Loan in the Mortgage Loan System
which balance includes amounts which have been charged to
the Mortgage Loan but excludes amounts which have been or
are, accrued against the Mortgage Loan.
"Basis Swap Administered Rate" means, in relation to a
Distribution Date, the amount determined in accordance with
the following calculation and expressed as a percentage:
BSA
(SII x ------------------) + VCI
( FRSA + OFRSA + BSA) 365
BSAR= -------------------------------- x ---
BSA n
where:
8.
<PAGE>
BSAR = the Basis Swap Administered Rate for that
Distribution Date;
SII = the Short-Term Investment Income in relation to
that Distribution Date;
FRSA = the Fixed Rate Swap Amount for the Calculation
Period ending immediately before that Distribution
Date;
OFRSA = the Other Fixed Rate Swap Amount for the
Calculation Period ending immediately before that
Distribution Date;
BSA = the Basis Swap Amount for the Calculation Period
ending immediately before that Distribution Date;
VCI = the Variable Charged Interest in relation to that
Distribution Date; and
n = the number of days in the Collection Period
immediately preceding that Distribution Date.
"Basis Swap" means the Transaction entered into between
Party A, Party B and the Manager on the terms specified in
the form of the Confirmation set out in Annexure 1 (or as
otherwise agreed between Party A, Party B and the Manager).
"Basis Swap Amount" in relation to a Calculation Period
means the aggregate Amounts Outstanding in relation to all
Mortgage Loans being charged a variable rate as at the
opening of business on the Determination Date falling
within the preceding Calculation Period.
"Conversion" means the conversion of a Mortgage Loan
forming part of the Assets of the Series Trust which is
being charged interest at a variable rate to a Mortgage
Loan which is being charged interest at a fixed rate.
"Eligible Account" means an account in the name of the
Trustee as trustee of the Series Trust held with a
financial institution with short term credit ratings of P-1
by Moody's, F-1+ by Fitch IBCA and A-1+ by Standard &
Poor's and includes the Collections Account to the extent
that the holder of the Collections Account is rated in this
manner.
"End Date" means the date on which a Mortgage Loan is to
cease being charged interest at a fixed rate.
"Fixed Charged Interest" in relation to a Distribution Date
means the aggregate of all debit entries made during the
Collection Period immediately preceding that Distribution
Date to the accounts established in the Servicer's records
for the Mortgage Loans forming part of the Assets of the
Series Trust representing interest charged at a fixed rate
(plus any interest off-set benefits in respect of Mortgage
Interest Saver Accounts which represents amounts which, if
not for the terms of the Mortgage Interest Saver Accounts,
would have been so debited during that Collection Period to
those accounts to the extent paid by the Seller pursuant to
clause 15.10 of the Series Supplement and deposited to the
Collections Account prior to that Distribution Date).
"Fixed Swap Administered Rate" means in relation to a
Distribution Date, the amount determined in accordance with
the following calculation and expressed as a percentage:
FRSA + OFRSA
(SII x ------------------) + FCI
( FRSA + OFRSA + BSA) 365
FSAR= -------------------------------- x ---
FRSA n
9.
<PAGE>
where:
FSAR = the Fixed Swap Administered Rate for that
Distribution Date;
SII = the Short Term Investment Income in relation to
that Distribution Date;
FRSA = the Fixed Rate Swap Amount for the Calculation
Period ending immediately before that Distribution
Date; and
OFRSA = the Other Fixed Rate Swap Amount for the
Calculation Period ending immediately before that
Distribution Date;
BSA = the Basis Swap Amount for the Calculation Period
ending immediately before that Distribution Date;
FCI = the Fixed Charged Interest in relation to that
Distribution Date; and
n = the number of days in the Collection Period
immediately preceding that Distribution Date.
"Fixed Rate Prepayment Balance" means the amount then
standing to the credit of the Eligible Account in respect
of prepayments by Party A pursuant to Sections 17(a)(iii),
(d)(i) or (f) and which has not been utilised pursuant to
Section 2(f) or repaid to Party A pursuant to Sections
17(d)(ii) or (g).
"Fixed Rate Swap Amount" in relation to a Calculation
Period means:
(a) the aggregate Amounts Outstanding in relation to all
Mortgage Loans (excluding Mortgage Loans being
charged a variable rate) as at the opening of
business on the Determination Date falling within the
preceding Calculation Period;
(b) less the Other Fixed Rate Swap Amount in relation to
that Calculation Period.
"Fixed Rate Swap" means the Transaction entered into
between Party A, Party B and the Manager on the terms
specified in the form of the Confirmation set out in
Annexure 2 (or as otherwise agreed between Party A, Party B
and the Manager) and each Transaction entered into pursuant
to Section 16.
"Fixed Swap Rate" means that the rate for a Reset Date will
be the rate calculated by taking the weighted average of
the interest rates charged in respect of each account
established in the Mortgage Loan System for the Mortgage
Loans charged a fixed rate of interest on that Reset Date,
rounded up to four decimal places.
"Interest Rate Basis Cap" means the interest rate cap, if
any, entered into between Party A, Party B and the Manager
on or prior to the Closing Date.
"Master Trust Deed" means the Master Trust Deed dated 8
October 1997 between Party B (as Trustee) and the Manager,
as amended from time to time.
"Other Fixed Rate Swap Amount" in relation to a Calculation
Period means the aggregate Amounts Outstanding as at the
opening of business on the Determination Date falling
within the preceding Calculation Period in respect of each
Mortgage Loan where a further Fixed Rate Swap has been
10.
<PAGE>
entered into, and is then current, to hedge the interest
rate risk in respect of the Mortgage Loan pursuant to
Section 16(b).
"Prescribed Rating" means:
(a) in respect of the Fixed Rate Swaps, a long term
rating of A2 or higher by Moody's, a short term
rating of F1 + by Fitch IBCA and either a long term
rating of AA- or a short term rating of A-1+ by S&P;
and
(b) in respect of the Basis Swap, short term ratings of
P-1 by Moody's and F1+ by Fitch IBCA and either a
long term rating of AA- or a short term rating of A-
1+ by S&P.
"Series Supplement" means the Series Supplement dated on or
about the date of this Agreement between Party A, Party B
and the Manager.
"Series Trust" means the Series 2000-1G Medallion Trust
constituted by the Master Trust Deed and the Series
Supplement.
"Short-Term Investment Income" in relation to a
Distribution Date means interest and other income received
by the Trustee during the Collection Period immediately
preceding that Distribution Date in respect of:
(a) the moneys standing to the credit of the Collections
Account (other than interest earned on the
Collections Account during the Collections Period in
respect of the Cash Advance Deposit, the Seller
Deposit or the Interest Rate Swap Provider Deposit
as calculated, respectively, in accordance with
clauses 8.6, 15.5 and 8.8 of the Series
Supplement);
(b) amounts representing interest paid by the Servicer
pursuant to clause 22.5 of the Series Supplement;
and
(c) Authorised Short-Term Investments held by the Series
Trust (whether or not reinvested).
"Variable Charged Interest" in relation to a Distribution
Date means the aggregate of all debit entries made during
the Collection Period immediately preceding that
Distribution Date to the accounts established in the
Servicer's records for the Mortgage Loans forming part of
the Assets of the Series Trust representing interest
charged at a variable rate (plus any interest off-set
benefits in respect of Mortgage Interest Saver Accounts
which represents amounts which, if not for the terms of the
Mortgage Interest Saver Accounts, would have been so
debited during that Collection Period to those accounts to
the extent paid by the Seller pursuant to clause 15.10 of
the Series Supplement and deposited to the Collections
Account prior to that Distribution Date).
"Variable Swap Rate" means that the rate for a Reset Date
will be the rate calculated by taking the weighted average
of the interest rates charged in respect of each account
established in the Mortgage Loan System for the Mortgage
Loans charged a variable interest rate on that Reset Date,
rounded up to four decimal places.
"Weighted Margin" in relation to a Distribution Date means
the amount, expressed as a percentage, determined by the
following calculation:
(CA1 ) (CA2 ) (CB ) (RB ) (SR )
WM =(--- x CA1M) + (--- x CA2M) + (--- x CBM) + (--- x RBM) + (--- x SRM)
(TSA ) (TSA ) (TSA ) (TSA ) (TSA )
11.
<PAGE>
where:
WM = the Weighted Margin;
CA1 = the A$ Equivalent of the aggregate Stated Amounts
of the Class A-1 Notes on the Determination Date
immediately preceding that Distribution Date;
CA1M = the Spread specified in paragraph 5.2 of the
confirmations for the Class A-1 Currency Swaps
on that Distribution Date;
CA2 = the aggregate of the Stated Amounts of the
Class A-2 Notes on the Determination Date
immediately preceding that Distribution Date;
CA2M = the Issue Margin in respect of the Class A-2 Notes
during the Accrual Period ending immediately prior
to that Distribution Date;
CB = the aggregate of the Stated Amounts of the Class B
Notes on the Determination Date immediately
preceding that Distribution Date;
CBA = the Issue Margin in respect of the Class B Notes;
RB = the aggregate of the Stated Amounts of the Redraw
Bonds on the Determination Date immediately
preceding that Distribution Date;
RBM = the weighted average of the Issue Margins in
respect of the Redraw Bonds outstanding on the
Determination Date immediately prior to that
Distribution Date during the Accrual Period ending
immediately prior to that Distribution Date (based
on the Stated Amounts of those Redraw Bonds);
SR = the Standby Redraw Facility Principal on the
Determination Date immediately preceding that
Distribution Date; and
SRM = the Drawdown Margin as defined in the Standby
Redraw Facility Agreement.
TSA = the sum of CA1, CA2, CB, RB and SR.
(d) Interpretation:
(i) references to time are references to Sydney time;
(ii) a reference to "wilful default" in relation to Party B
means, subject to Part 5(6)(d)(iii) of this Schedule, any
wilful failure by Party B to comply with, or wilful breach
by Party B of, any of its obligations under any Transaction
Document, other than a failure or breach which:
A. 1) arises as a result of a breach of a Transaction
Document by a person other than Party B or other
than any other person referred to in Part
5(6)(d)(iii); and
2) the performance of the action (the non-performance
of which gave rise to such breach) is a
precondition to Party B performing the said
obligation;
B. is in accordance with a lawful court order or
direction or is otherwise required by law; or
12.
<PAGE>
C. is in accordance with any proper instruction or
direction of:
(i) the Secured Creditors given at a meeting (or
deemed meeting) of Secured Creditors
convened under the Security Trust Deed; or
(ii) the Investors given at a meeting convened
under the Master Trust Deed;
(iii) a reference to the "fraud", "negligence" or "wilful
default" of Party B means the fraud, negligence or wilful
default of Party B and of its officers, employees, agents
and any other person where Party B is liable for the acts
or omissions of such other person under the terms of any
Transaction Document;
(iv) a reference to "neither party" will be construed as a
reference to "no party"; and
(v) a reference to "other party" will be construed as a
reference to "other parties".
(e) ISDA Definitions: The 1991 ISDA Definitions (as published by the
International Swaps and Derivatives Association, Inc ("ISDA")), as
supplemented by the 1998 Supplement to the 1991 ISDA Definitions
(as published by ISDA) (the "1991 ISDA Definitions") as at the
date of this Agreement are incorporated into this Agreement and
each Confirmation.
(f) Inconsistency: Subject to Part 5(6)(a), unless specified
otherwise, in the event of any inconsistency between any two or
more of the following documents in respect of a Transaction they
will take precedence over each other in the following order in
respect of that Transaction:
(i) any Confirmation;
(ii) the Series Supplement;
(iii) the Master Trust Deed;
(iv) this Agreement; and
(v) the 1991 ISDA Definitions.
(g) Swap Transaction: Any reference to a:
(i) "Swap Transaction" in the 1991 ISDA Definitions is deemed
to be a reference to a "Transaction" for the purpose of
interpreting this Agreement or any Confirmation; and
(ii) "Transaction" in this Agreement or any Confirmation is
deemed to be a reference to a "Swap Transaction" for the
purpose of interpreting the 1991 ISDA Definitions.
(h) Incorporated Definitions and other Transaction Documents and
provisions: Where in this Agreement a word or expression is
defined by reference to its meaning in another Transaction
Document or there is a reference to another Transaction Document
or to a provision of another Transaction Document, any amendment
to the meaning of that word or expression or to that other
Transaction Document or provision (as the case may be) will be of
no effect for the purposes of this Agreement unless and until the
amendment is consented to by the parties to this Agreement.
(7) Limitation of Liability: Insert the following Section 15, after Section
14:
"15. Party B's Limitation of Liability
(a) (Limitation on Party B's liability): Party B enters into this
Agreement only in its capacity as trustee of the Series Trust and
in no other capacity. A liability incurred
13.
<PAGE>
by Party B acting in its capacity as trustee of the Series Trust
arising under or in connection with this Agreement is limited to
and can be enforced against Party B only to the extent to which it
can be satisfied out of the Assets of the Series Trust out of
which Party B is actually indemnified for the liability. This
limitation of Party B's liability applies despite any other
provision of this Agreement (other than Section 15(c)) and extends
to all liabilities and obligations of Party B in any way connected
with any representation, warranty, conduct, omission, agreement or
transaction related to this Agreement.
(b) (Claims against Party B): The parties other than Party B may not
sue Party B in respect of liabilities incurred by Party B acting
in its capacity as trustee of the Series Trust in any capacity
other than as trustee of the Series Trust, including seek the
appointment of a receiver (except in relation to Assets of the
Series Trust), or a liquidator, or an administrator, or any
similar person to Party B or prove in any liquidation,
administration or similar arrangements of or affecting Party B
(except in relation to the Assets of the Series Trust).
(c) (Breach of Trust): The provisions of this Section 15 will not
apply to any obligation or liability of Party B to the extent that
it is not satisfied because under the Master Trust Deed, the
Series Supplement or any other Transaction Document or by
operation of law there is a reduction in the extent of Party B's
indemnification out of the Assets of the Series Trust, as a result
of Party B's fraud, negligence or wilful default.
(d) (Acts or omissions): It is acknowledged that the Relevant Parties
are responsible under the Transaction Documents for performing a
variety of obligations relating to the Series Trust. No act or
omission of Party B (including any related failure to satisfy its
obligations or any breach of a representation or warranty under
this Agreement) will be considered fraudulent, negligent or a
wilful default of Party B for the purpose of paragraph (c) of this
Section 15 to the extent to which the act or omission was caused
or contributed to by any Relevant Person or any other person
appointed by Party B under any Transaction Document (other than a
person whose acts or omissions Party B is liable for in accordance
with any Transaction Document) to fulfil its obligations relating
to the Series Trust or by any other act or omission of a Relevant
Party or any other such person.
(e) No Obligation
(i) (Obligations under this Agreement or any Transaction
Document): The Trustee is not obliged to enter into any
commitment or obligation under this Agreement or any
Transaction Document unless the Trustee's liability is
limited in the manner which is consistent with this Section
15. The Trustee agrees and acknowledges that its liability
for any commitment or obligation it has entered into under
this Agreement is limited in a manner which is consistent
with this Section 15.
(ii) (Obligations not contained in this Agreement or any
Transaction Document): The Trustee is not obliged to enter
into any commitment or obligation contemplated by but not
contained in this Agreement or any Transaction Document
unless the Trustee's liability in relation to that
commitment or obligation is limited in a manner
satisfactory to the Trustee in its absolute discretion.
(8) Quarterly Swap Statement: Prior to each Distribution Date the Manager
will prepare and deliver to Party A and Party B a quarterly payment
notice containing the information specified in Annexure 3 of this
Agreement.
(9) Further Assurances: Each party will, upon request by the other party (the
"requesting party") at the expense of the requesting party, perform all
such acts and execute all such agreements, assurances and other documents
and instruments as the requesting party reasonably requires (and, in the
case of Party B, are within the powers granted to Party B under the
Master Trust Deed) to assure and confirm the rights and powers afforded,
created or intended to be afforded or created, under or in relation to
this Agreement and each
14.
<PAGE>
Transaction or other dealing which occurs under or is contemplated by it.
(10) Interest Rate Swap Agreement: The parties acknowledge and agree that for
the purposes of the Transaction Documents that this Agreement is an
Interest Rate Swap Agreement and Party A is an Interest Rate Swap
Provider.
(11) Procedures for Entering into Transactions
(a) For the purposes of Section 9(e)(ii), Party A will, by or promptly
after the relevant Trade Date, send Party B and the Manager two
Confirmations substantially in the form set out in Annexure 1 and
2 respectively (or in such other form as may be agreed between
Party A, Party B and the Manager), and Party B and the Manager
must promptly then confirm the accuracy of and sign and return, or
request the correction of each such Confirmation.
(b) Party B will enter into each Transaction in its capacity as
trustee of the Series Trust.
(12) Authorised Officer: Each party will be entitled to assume, in the
absence of any knowledge to the contrary, that any person signing any
Confirmation, notice or other written communication issued in respect of
this Agreement on behalf of a party is an Authorised Officer of that
party.
(13) Recorded Conversations: Each party:
(a) consents to the electronic recording of its telephone
conversations with the other party (or any of its associated
persons) with or without the use of an automatic tone warning
device;
(b) will provide transcripts of such recordings (if any) upon
reasonable request by the other party (at the reasonable cost of
the party requesting);
(c) acknowledges that such recordings and transcripts can be used as
evidence by either party in any dispute between them; and
(d) acknowledges that neither is obligated to maintain copies of such
recordings and transcripts for the benefit of the other party.
(14) Further Fixed Rate Swaps and Downgrading of Party A: Insert the following
new Sections 16, 17, 18 and 19 after Section 15:
"16. Further Fixed Rate Swaps
(a) If, pursuant to clause 16.6(j) of the Series Supplement,
in order for the Servicer to permit a Conversion the
Servicer requests the Manager (and the Manager directs
Party B) to enter into a Fixed Rate Swap in accordance with
this Section 16 for a maximum term not exceeding 10 years,
Party B and the Manager will be deemed to have satisfied
their respective obligations to enter into such Fixed Rate
Swap if the calculation of the Fixed Rate Swap Amount for
the purposes of a Fixed Rate Swap then existing includes
the Amounts Outstanding in relation to the Mortgage Loans
the subject of the Conversion.
(b) If Section 16(a) does not apply and Party B and the Manager
enter into one or more further Fixed Rate Swaps pursuant to
clause 16.6(j) of the Series Supplement to hedge the
interest rate risk of one or more Mortgage Loans the
subject of a Conversion, each such further Fixed Rate Swap
must:
(i) (Notional Amount): have a Notional Amount for each
Calculation Period at least equal to the aggregate
Amounts Outstanding as at
15.
<PAGE>
the first day of the relevant Calculation Period in
relation to the Mortgage Loans the subject of the
Conversion which have the same fixed rate and End
Date;
(ii) (Effective Date): have as an Effective Date the
Distribution Date immediately following the last day
of the Collection Period in which the Conversion
occurs;
(iii) (Termination Date): have a scheduled Termination
Date on or prior to the tenth anniversary of its
Trade Date unless the Rating Agencies confirm that
entering into the Fixed Rate Swap for a longer
period will not result in a reduction, qualification
or withdrawal of the credit ratings then assigned by
them to the Securities; and
(iv) (Confirmation): in all other respects be confirmed
as a Fixed Rate Swap in accordance with this
Agreement and the sample Confirmation for Fixed Rate
Swaps set out in Annexure 2 to this Agreement.
The Spread applicable to the Floating Amounts, if any, in respect
of each Fixed Rate Swap entered into following a Conversion shall
be []% per annum.
17. Ratings Downgrade of Party A - Fixed Rate Swaps:
(a) (Downgrade): If, as a result of the reduction or withdrawal
of its credit rating by a Rating Agency, Party A does not
have the Prescribed Rating in relation to the Fixed Rate
Swaps, Party A must:
(i) within 30 Business Days of Party A ceasing to have
the Prescribed Rating if and while Party A has a
short term credit rating of A-1 or a long term
credit rating of A- by S&P and a long term credit
rating of at least A3 by Moody's and a short term
credit rating of at least F1 by Fitch IBCA; or
(ii) otherwise, and if sooner, within 5 Business Days of
Party A ceasing to have a short term credit rating
of at least A-1 or a long term credit rating of at
least A- by S&P or ceasing to have a long term
credit rating of at least A3 by Moody's and a short
term credit rating of at least F1 by Fitch IBCA;
(or such greater period as is agreed to in writing by each
relevant Rating Agency), at its cost alone and at its
election:
(iii) provided that Party A then has assigned to it a
short term credit rating of at least A-1 or a long
term credit rating of at least A-by S&P and a short
term credit rating of at least F1 by Fitch IBCA,
lodge in an Eligible Account as a prepayment of its
obligations in respect of the Fixed Rate Swaps an
amount equal to the Fixed Rate Prepayment Amount as
defined in Section 17(b); or
(iv) enter into an agreement novating its rights and
obligations under this Agreement in respect of the
Fixed Rate Swaps to a replacement counterparty
acceptable to the Manager and which the Rating
Agencies confirm in writing will not result in a
reduction, qualification or withdrawal of the credit
ratings then assigned by them to the Securities; or
(v) enter into such other arrangements in respect of all
Fixed Rate Swaps which are satisfactory to the
Manager and which the Rating Agencies confirm in
writing will not result in a reduction,
qualification or withdrawal of the credit ratings
then assigned by them to the Securities.
16.
<PAGE>
Notwithstanding that Party A has elected to satisfy its
obligations pursuant to this Part 5(17)(a) in a particular
manner, it may subsequently and from time to time vary the
manner in which it satisfies its obligations pursuant to
this Part 5(17)(a) (but will not be entitled to any
additional grace period in relation to such a variation).
(b) (Fixed Rate Prepayment Amount): For the purpose of this
Section 17 the Fixed Rate Prepayment Amount will be an
amount equal to the greater of the following:
(i) zero;
(ii) CR; and
(ii) an amount acceptable to Moody's and Fitch IBCA and
sufficient to maintain the credit ratings assigned
to the Securities by Moody's and Fitch IBCA
immediately prior to the review of Party A's credit
rating.
Where:
CR = MM + V
MM means the aggregate of the mark-to-market value (whether
positive or negative) of all Fixed Rate Swaps determined in
accordance with Section 17(c) no earlier than 3 Business
Days prior to the date that the Fixed Rate Prepayment
Amount is lodged.
V means the volatility buffer, being the value calculated
by multiplying the aggregate Notional Amounts (as defined
in the relevant Confirmations) of the Fixed Rate Swaps at
the most recent Distribution Date by the relevant
percentage obtained from the following table:
<TABLE>
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Party A's S&P Where the period Where the period Where the period
long term credit between the date of between the date of between the date of
rating recalculation and the recalculation and the recalculation and the
weighted average of weighted average of the weighted average of the
the maturity dates of maturity dates of the maturity dates of the
the then fixed rate then fixed rate periods in then fixed rate periods
periods in respect of respect of Mortgage in respect of Mortgage
Mortgage Loans Loans forming part of Loans forming part of
forming part of the the Assets of the Series the Assets of the Series
Assets of the Series Trust which are charged Trust which are charged
Trust which are a fixed rate of interest is a fixed rate of interest is
charged a fixed rate of greater than 5 years and greater than 10 years
interest is less than or less than or equal to 10
equal to 5 years years
- ---------------------------------------------------------------------------------------------------------------
A+ 1.05 1.75 3.0
- ---------------------------------------------------------------------------------------------------------------
A 1.35 2.45 4.5
- ---------------------------------------------------------------------------------------------------------------
A- 1.5 3.15 6
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
(c) (Mark to Market Value): Party A must calculate the mark-to-
market value of the Fixed Rate Swaps by obtaining 2 bids
from counterparties with the Prescribed Ratings willing to
provide the Fixed Rate Swaps in the absence of Party A. The
mark-to-market value may be a positive or a negative
amount. A bid has a negative value if the payment to be
made is from the counterparty to Party A and has a positive
value if the payment to be made is from Party A to the
counterparty. The mark-to-market value is the higher of
the bids (on the basis that any bid of a positive value is
higher than any bid of a negative value).
(d) (Weekly Recalculation): Party A must recalculate the Fixed
Rate Prepayment Amount (including the CR and the mark-to-
market value) on a weekly basis. If:
17.
<PAGE>
(i) the recalculated Fixed Rate Prepayment Amount is
greater than the immediately preceding Fixed Rate
Prepayment Amount, Party A must make an additional
prepayment in accordance with Section 17(a)(iii)
within 3 Business Days of such recalculation so that
the Fixed Rate Prepayment Balance equals the
recalculated Fixed Rate Prepayment Amount; or
(ii) the recalculated Fixed Rate Prepayment Amount is
less than the immediately preceding Fixed Rate
Prepayment Amount, Party B must upon the direction
of the Manager withdraw an amount from the Eligible
Account referred to in Section 17(a)(iii) and pay it
to Party A within 3 Business Days of receiving
notice of such recalculation so that the remaining
Fixed Rate Prepayment Balance after such withdrawal
equals the recalculated Fixed Rate Prepayment
Amount.
(e) (Interest): Interest will be payable by Party B on any
prepayment by Party A under this Section 17 in accordance
with clause 8.8 of the Series Supplement.
(f) (Utilisation): If the Fixed Rate Prepayment Balance is
applied towards an amount payable by Party A in accordance
with Section 2(f) Party A must within 3 Business Days make
an additional prepayment in accordance with section
17(a)(iii) equal to the amount so applied.
(g) (Repayment): If Party A regains the Prescribed Rating in
respect of the Fixed Rate Swaps Party B must, upon the
direction of the Manager, repay to Party A the then Fixed
Rate Prepayment Balance.
18. Downgrading of Party A - Basis Swap
If, as a result of the reduction or withdrawal of its credit
rating by a Rating Agency, Party A does not have the Prescribed
Rating in respect of the Basis Swap, Party A must:
(a) (30 Business Days): within 30 Business Days of Party A
ceasing to have the Prescribed Rating if and while Party A
has short term credit ratings of A-1 by S&P and P-1 by
Moody's and a long term credit rating of at least A- by
Fitch IBCA; or
(b) (5 Business Days): otherwise, and if sooner, within 5
Business Days of Party A ceasing to have a short term
credit rating of at least A-1 by S&P or P-1 by Moody's or
ceasing to have a long term credit rating of at least A- by
Fitch IBCA;
(or such greater period as is agreed to in writing by each
relevant Rating Agency) (the "Posting Period"), at its cost alone
and at its election:
(c) (Prepayment):
(i) on or before the last day of the Posting Period, pay
to Party B as a prepayment of its obligations under
the Basis Swap for the then Calculation Period, the
net amount (if any) that is expected to be due by
Party A to Party B at the end of that Calculation
Period; and
(ii) on each of the following Distribution Dates, pay to
Party B as a prepayment of its obligations under the
Basis Swap for the Calculation Period commencing on
each such Distribution Date, the net amount (if any)
that is expected to be due by Party A to Party B at
the end of that Calculation Period,
as determined by the Manager, by depositing such net amount
(if any) into
18.
<PAGE>
the Collections Account in cleared funds; or
(d) (Other arrangements): enter into some other arrangement
satisfactory to the Manager and Party B which the Rating
Agencies confirm will not result in a reduction,
qualification or withdrawal of the credit ratings then
assigned by them to the Securities.
A prepayment on the first day of any Calculation Period by Party A
under Section 18(c) will constitute a prepayment of Party A's
payment obligations (to the extent thereof) in respect of the
Basis Swap for the Calculation Period commencing on that
Distribution Date. Notwithstanding that Party A has elected to
satisfy its obligations pursuant to this Part 5(18) in a
particular manner, it may subsequently and from time to time vary
the manner in which it satisfies its obligations pursuant to this
Part 5(18) (but will not be entitled to any additional grace
period in relation to such a variation). Interest will be payable
by Party B on any prepayment by Party A under this Section 18 in
accordance with clause 8.8 of the Series Supplement.
19. Securities Repaid
On the date that the Invested Amount in respect of the Securities
has been reduced to zero, or the Securities are redeemed in full
or are deemed to have been redeemed in full under the Series
Supplement, whichever is the earlier, Party A's obligations under
Sections 17 and 18 will cease and Party B must repay to Party A
on that date any remaining prepayments made pursuant to Sections
17 and 18 and interest on such prepayments."
(15) Transfer: Section 7 is replaced with:
"7. Essential term: Transfer
(a) Neither the interests nor the obligations of either party in or
under this Agreement (including any Transaction) are capable of
being assigned or transferred (whether at law, in equity or
otherwise), charged or the subject of any trust (other than the
Series Trust or the trusts created pursuant to any Credit Support
Document in relation to Party B) or other fiduciary obligation.
Any action by a party which purports to do any of these things is
void.
(b) Nothing in this Section 7:
(i) restricts a transfer by a party after the other party has
agreed to the variation of this Agreement to the extent
necessary to permit such transfer;
(ii) restricts a novation of the interests and obligations of a
party in or under this Agreement (including any
Transaction) including, but not limited to, for the
purposes of giving effect to a transfer under Section
6(b)(ii);
(iii) restricts a transfer by a party of all or any part of its
interest in any amount payable to it from a Defaulting
Party under Section 6(e); or
(iv) restricts Party B from granting security over a Transaction
or this Agreement pursuant to any Credit Support Document
in relation to Party B,
provided that the Rating Agencies have confirmed that such
transfer, variation or assignment by way of security (as the case
may be) will not result in a reduction, qualification or
withdrawal of the credit ratings then assigned by them to the
Securities.
(c) Each party acknowledges that the other party enters into this
Agreement and each Transaction on the basis that this Section 7
must be strictly observed and is essential to the terms of this
Agreement (including each Transaction)."
19.
<PAGE>
(16) Addenda
The following addendum to the Schedule to the Master Agreement of
International Swap Dealers and Derivative Association, Inc in the form of
the copy attached to this Agreement is incorporated in this Agreement:
. September 1991 Australian Addendum No. 1 (as amended in September
1992 and March 1997) - Interest Rate Caps, Collars and Floors.
(17) Knowledge or Awareness: Subject to Section 12(a), each party will only
be considered to have knowledge or awareness of, or notice of, a thing or
grounds to believe anything by virtue of the officers of that party or
any Related Body Corporate of that party which have the day to day
responsibility for the administration or management of that party's (or a
Related Body Corporate of that party's) obligations in relation to the
Series Trust or the Transactions entered into under this Agreement having
actual knowledge, actual awareness or actual notice of that thing, or
grounds or reason to believe that thing (and similar references will be
interpreted in this way).
(18) Interest Rate Basis Cap: The parties agree that any Interest Rate Basis
Cap entered into between them pursuant to clause 16.6(k) of the Series
Supplement will be entered into as a transaction governed by the terms of
this Agreement.
Executed in Sydney.
Attorney for Attorney for
...............................................................
Commonwealth Bank of Australia, Perpetual Trustee Company Limited,
ACN 123 123 124 ACN 000 001 007, as trustee of the
Series 2000-1G Medallion Trust
Attorney for
.........................................
Securitisation Advisory Services Pty. Limited,
ACN 064 133 946
20.
<PAGE>
ANNEXURE 1
FORM OF CONFIRMATION FOR BASIS SWAP - SERIES 2000-1G
MEDALLION TRUST
[Commonwealth Bank of Australia Letterhead]
[DATE]
To: Perpetual Trustee Company Limited Securitisation Advisory Services Pty.
ACN 000 001 007 Limited
as trustee of the Series Trust ACN 064 133 946
Level 7 Level 8
39 Hunter Street 48 Martin Place
SYDNEY NSW 2000 SYDNEY NSW 2000
Attention: Manager, Securitisation Attention: Manager, Securitisation
Services
SWAP CONFIRMATION - BASIS SWAP
The purpose of this letter is to confirm the terms and conditions of the
Transaction entered into between us on the Trade Date specified below (the
"Transaction"). This letter constitutes a "Confirmation" as referred to in the
Master Agreement specified below.
This Confirmation supplements, forms part of, and is subject to, the 1992 ISDA
Master Agreement dated as of [ ], as amended, novitiate or
supplemented from time to time (the "Agreement"), between Commonwealth Bank of
Australia, ACN 123 123 124 ("Party A"), Perpetual Trustee Company Limited as
trustee of the Series Trust ("Party B") and Securitisation Advisory Services
Pty. Limited (the "Manager"). All provisions contained in the Agreement govern
this Confirmation except as expressly modified below.
The terms of the particular Transaction to which this Confirmation relates are
as follows:
Our Reference: [ ]
Trade Date: [ ]
Effective Date: [ ]
21.
<PAGE>
Termination Date: Means the earlier of:
(a) the Call Date but only if:
(i) the Issue Margins (as defined
in the Class A-1 Note
Conditions in respect of the
Class A-1 Notes) in respect of
the Class A-1 Notes and Class
A2 Notes increase as and from
the Call Date; and
(ii) the weighted average Mortgage
Rate applicable to the
Mortgage Loans forming part of
the Assets of the Series Trust
which are charged interest at
a variable rate is equal to or
greater than the then
Threshold Rate.
(b) the date that all the Securities
have been redeemed in full; and
(c) the Termination Date for the Series
Trust,
subject to the Following Business Day
Convention
Notional Amount: With respect to each Calculation
Period means the Basis Swap Amount
for that Calculation Period
Floating Administered Rate
Amounts:
Floating Administered Rate Payer: Party B
Floating Administered Rate Payer Each Distribution Date
Payment Dates:
Floating Rate Option: Basis Swap Administered Rate in
relation to the Distribution Date
Floating Rate Day Count Fraction: Actual/365 (Fixed)
Floating BBSW Weighted Rate
Amounts:
Floating BBSW Rate Payer: Party A
Floating BBSW Rate Payer Each Distribution Date
Payment Dates:
Floating Rate Option: Bank Bill Rate for the Accrual Period
corresponding to the Calculation Period
Spread: Weighted Margin in respect of the
relevant Distribution Date plus
[0.71]% per annum
Floating Rate Day Count Actual/365 (Fixed)
Fraction:
22.
<PAGE>
Business Day: Sydney
Business Day Convention: Following
Calculation Agent: The Manager
Other Provisions: For the purposes of the Agreement, the
Transaction to which this Confirmation
relates is the Basis Swap
Please confirm that the above correctly sets out the terms of our agreement in
respect of the Transaction to which this Confirmation relates by signing and
returning this Confirmation to us by facsimile today.
Executed documents will follow by mail.
Yours sincerely
SIGNED for and on behalf of SIGNED for and on behalf of
PERPETUAL TRUSTEE COMPANY COMMONWEALTH BANK OF
LIMITED, ACN 000 001 007, AUSTRALIA, ACN 123 123 124
as trustee of the Series 2000-1G
Medallion Trust
By: _____________________________ By: ________________________________
(Authorised Officer) (Authorised Officer)
Name: ___________________________ Name: ______________________________
Title: __________________________ Title: _____________________________
SIGNED for and on behalf of
SECURITISATION ADVISORY
SERVICES PTY. LIMITED,
ACN 064 133 946
By: _____________________________
(Authorised Officer)
Name: ___________________________
Title: __________________________
23.
<PAGE>
ANNEXURE 2
FORM OF CONFIRMATION FOR FIXED RATE SWAPS - SERIES 2000-1G
MEDALLION TRUST
[Commonwealth Bank of Australia Letterhead]
[DATE]
To: Perpetual Trustee Company Limited Securitisation Advisory Services Pty.
ACN 000 001 007 Limited
as trustee of the Series Trust ACN 064 133 946
Level 7 Level 8
39 Hunter Street 48 Martin Place
SYDNEY NSW 2000 SYDNEY NSW 2000
Attention: Manager, Securitisation Attention: Manager, Securitisation
Services
SWAP CONFIRMATION - FIXED RATE SWAP
The purpose of this letter is to confirm the terms and conditions of the
Transaction entered into between us on the Trade Date specified below (the
"Transaction"). This letter constitutes a "Confirmation" as referred to in the
Master Agreement specified below.
This Confirmation supplements, forms part of, and is subject to, the 1992 ISDA
Master Agreement dated as of [ ], as amended, novitiate or
and supplemented from time to time (the "Agreement"), between Commonwealth Bank
of Australia, ACN 123 123 124 ("Party A"), Perpetual Trustee Company Limited as
trustee of the Series Trust ("Party B") and Securitisation Advisory Services
Pty. Limited (the "Manager"). All provisions contained in the Agreement govern
this Confirmation except as expressly modified below.
The terms of the particular Transaction to which this Confirmation relates are
as follows:
Our Reference: [ ]
Trade Date: [ ]
Effective Date: [ ]
Termination Date: Means the earlier of:
(a) the date that all the Securities
have been redeemed in full; and
(b) the Termination Date for the Series
Trust,
subject to the Following Business Day
Convention
Notional Amount: With respect to each Calculation
Period means the Fixed Rate Swap
Amount for that Calculation Period
Fixed Amounts:
Fixed Rate Payer: Party B
Fixed Rate Payer Payment Each Distribution Date
24.
<PAGE>
Dates:
Fixed Rate: The Fixed Swap Administered Rate in
relation to the Distribution Date
Fixed Rate Day Count Fraction: Actual/365 (Fixed)
Floating Amounts:
Floating Rate Payer: Party A
Floating Rate Payer Payment Each Distribution Date
Dates:
Floating Rate Option: Bank Bill Rate for the Accrual Period
corresponding to the Calculation
Period
Spread: Weighted Margin in respect of the
relevant Distribution Date plus
[0.71]% per annum
Floating Rate Day Count
Fraction: Actual/365 (Fixed)
Business Day: Sydney
Business Day Convention: Following
Calculation Agent: The Manager
Other Provisions: For the purposes of the Agreement,
the Transaction to which this
Confirmation relates is a Fixed Rate
Swap
Please confirm that the above correctly sets out the terms of our agreement in
respect of the Transaction to which this Confirmation relates by signing and
returning this Confirmation to us by facsimile today.
Executed documents will follow by mail.
Yours sincerely
SIGNED for and on behalf of SIGNED for and on behalf of
PERPETUAL TRUSTEE COMPANY, COMMONWEALTH BANK OF
LIMITED, ACN 000 001 007, AUSTRALIA, ACN 123 123 124
as trustee of the Series 2000-1G
Medallion Trust
By: _________________________ By: __________________________
(Authorised Officer) (Authorised Officer)
Name: _______________________ Name: ________________________
Title: _____________________ Title: _______________________
25.
<PAGE>
SIGNED for and on behalf of
SECURITISATION ADVISORY
SERVICES PTY. LIMITED,
ACN 064 133 946
By: ________________________________
(Authorised Officer )
Name: _______________________________
Title: ______________________________
26.
<PAGE>
ANNEXURE 3
Monthly quarterly Payment Notice - Series 2000-1G Medallion Trust
To: COMMONWEALTH BANK OF AUSTRALIA, ACN 123 123 124 ("Party A")
And To: PERPETUAL TRUSTEE COMPANY LIMITED, ACN 000 001 007 as trustee of the
Series Trust, ("Party B")
From: SECURITISATION ADVISORY SERVICES PTY. LIMITED, ACN 064 133 946 (the
"Manager")
ISDA MASTER AGREEMENT dated [ ] between Party A, Party B and the Manager
(the "Agreement")
Determination Date:
The Manager has determined and gives notice of the following:
1. Basis Swap
(a) Notional Amount for the current Calculation Period:
(b) Basis Swap Administered Rate for the current Calculation Period just
ended:
2. Fixed Rate Swap
(a) Notional Amount for the current Calculation Period:
(b) Fixed Rate Administered Rate for the current Calculation Period just
ended:
3. Rate Set
Bank Bill Rate for the current Calculation Period:
Weighted Margin for the current Calculation Period:
4. Net Break Receipts and Payments
(a) The Net Break Receipt (if any) in respect of the Determination Date:
(b) The Net Break Payment (if any) in respect of the Determination Date:
5. Net Amount
(a) Net amount due for payment by Party A on the immediately following
Payment Date:
(b) Net amount due for payment by Party B on the immediately following
Payment Date:
Terms used and not otherwise defined in this notice have the same meaning as in
the Agreement, as amended, supplemented or novitiate from time to time.
SIGNED for and on behalf of
SECURITISATION ADVISORY SERVICES PTY.
LIMITED, ACN 064 133 946
By: ___________________________________
(Authorised Officer)
Name: _________________________________
Title: _______________________________
27.
<PAGE>
EXHIBIT 10.4
(Multicurrency-Cross Border)
ISDA (R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of_______________
- --------------------------------- and ---------------------------------------
have entered and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other confirming
evidence (each a "Confirmation") exchanged between the parties confirming those
Transactions.
Accordingly, the parties agree as follows:-
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions of
the Schedule and the other provisions of this Master Agreement, the Schedule
will prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purpose of the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the
fact that this Master Agreement and all Confirmations form a single agreement
between the parties (collectively referred to as this "Agreement"), and the
parties would not otherwise enter into any Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it subject to the other provisions of this
Agreement.
(ii) Payments under this Agreement will be made on the due date for value
on that date in the place of the account specified in the relevant
Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the
required currency. Where settlement is by delivery (that is, other than by
payment), such delivery will be made for receipt on the due date in the
manner customary for the relevant obligation unless otherwise specified in
the relevant Confirmation or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to
(1) the condition precedent that no Event of Default or Potential Event of
Default with respect to the other party has occurred and is continuing,
(2) the condition precedent that no Early Termination Date in respect of
the relevant Transaction has occurred or been effectively designated and
(3) each other applicable condition precedent specified in this Agreement.
<PAGE>
(b) Change of Account. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a reasonable
objection to such change.
(c) Netting. If on any date amounts would otherwise be payable:--
(i) in the same currency: and
(ii) in respect of the same Transaction.
by each party to the other, then, on such date, each party's obligation to make
payment of any such amount will be automatically satisfied and discharged and,
if the aggregate amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been payable by the other
party, replaced by an obligation upon the party by whom the larger aggregate
amount would have been payable to pay to the other party the excess of the
larger aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount
will be determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be made
in the Schedule or a Confirmation by specifying that subparagraph (ii) above
will not apply to the Transactions identified as being subject to the election,
together with the starting date (in which case subparagraph (ii) above will not,
or will cease to, apply to such Transactions from such date). This election may
be made separately for different groups of Transactions and will apply
separately to each pairing of Offices through which the parties make and receive
payments or deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless such
deduction or withholding is required by any applicable law, as modified by
the practice of any relevant governmental revenue authority, then in
effect. If a party is so required to deduct or withhold, then that party
("X") will:--
(1) promptly notify the other party ("Y") of such requirement:
(2) pay to the relevant authorities the full amount required to be
deducted or withheld (including the full amount required to be
deducted or withheld from any additional amount paid by X to Y under
this Section 2(d)) promptly upon the earlier of determining that such
deduction or withholding is required or receiving notice that such
amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified copy),
or other documentation reasonably acceptable to Y, evidencing such
payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to the
payment to which Y is otherwise entitled under this Agreement, such
additional amount as is necessary to ensure that the net amount
actually received by Y (free and clear of Indemnifiable Taxes, whether
assessed against X or Y) will equal the full amount Y would have
received had no such deduction or withholding been required. However,
X will not be required to pay any additional amount to Y to the extent
that it would not be required to be paid but for:--
(A) the failure by Y to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4(d); or
(B) the failure of a representation made by Y pursuant to Section
3(f) to be accurate and true unless such failure would not have
occurred but for (i) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the
date on which a Transaction is entered into (regardless of
whether such action is taken or brought with respect to a party
to this Agreement) or (II) a Change in Tax Law.
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(ii) Liability. If:--
(1) X is required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, to make any
deduction or withholding in respect of which X would not be required
to pay an additional amount to Y under Section 2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly against
X.
then, except to the extent Y has satisfied or then satisfies the liability
resulting from such Tax, Y will promptly pay to X the amount of such
liability (including any related liability for interest, but including
any related liability for penalties only if Y has failed to comply with or
perform any agreement contained in Section 4(a)(i), 4(a)(iii) or 4(d)).
(e) Default Interest; Other Amounts. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant Transaction,
a party that defaults in the performance of any payment obligation will, to the
extent permitted by law and subject to Section 6(c), be required to pay interest
(before as well as after judgment) on the overdue amount to the other party on
demand in the same currency as such overdue amount, for the period from (and
including) the original due date for payment to (but excluding) the date of
actual payment, at the Default Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed. If, prior to
the occurrence or effective designation of an Early Termination Date in respect
of the relevant Transaction, a party defaults in the performance of any
obligation required to be settled by delivery, it will compensate the other
party on demand if and to the extent provided for in the relevant Confirmation
or elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be deemed
to be repeated by each party on each date on which a Transaction is entered into
and, in the case of the representations in Section 3(f), at all times until the
termination of this Agreement) that:--
(a) Basic Representations.
(i) Status. It is duly organised and validly existing under the laws of
the jurisdiction of its organisation or incorporation and, if relevant
under such laws, in good standing;
(ii) Powers. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party, to deliver
this Agreement and any other documentation relating to this Agreement that
it is required by this Agreement to deliver and to perform its obligations
under this Agreement and any obligations it has under any Credit Support
Document to which it is a party and has taken all necessary action to
authorise such execution, delivery and performance;
(iii) No Violation or Conflict. Such execution, delivery and performance do
not violate or conflict with any law applicable to it, any provision of its
constitutional documents, any order or judgment of any court or other
agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets;
(iv) Consents. All governmental and other consents that are required to
have been obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party have been obtained and are in full
force and effect and all conditions of any such consents have been complied
with; and
(v) Obligations Binding. Its obligations under this Agreement and any
Credit Support Document to which it is a party constitute its legal, valid
and binding obligations, enforceable in accordance with their respective
terms (subject to applicable bankruptcy, reorganisation, insolvency,
moratorium or similar laws affecting creditors' rights generally and
subject, as to enforceability, to equitable principles of general
application (regardless of whether enforcement is sought in a proceeding in
equity or at law)).
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(b) Absence of Certain Events. No Event of Default or Potential Event of
Default or, to its knowledge, Termination Event with respect to it has occurred
and is continuing and no such event or circumstance would occur as a result of
its entering into or performing its obligations under this Agreement or any
Credit Support Document to which it is a party.
(c) Absence of Litigation. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or proceeding at
law or in equity or before any court, tribunal, governmental body, agency or
official or any arbitrator that is likely to affect the legality, validity or
enforceability against it of this Agreement or any Credit Support Document to
which it is a party or its ability to perform its obligations under this
Agreement or such Credit Support Document.
(d) Accuracy of Specified Information. All applicable information that is
furnished in writing by or on behalf of it to the other party and is identified
for the purpose of this Section 3(d) in the Schedule is, as of the date of the
information, true, accurate and complete in every material respect.
(e) Payer Tax Representation. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(e) is accurate and true.
(f) Payee Tax Representations. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(f) is accurate and true.
4. Agreements
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party:--
(a) Furnish Specified Information. It will deliver to the other party or in
certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs:--
(i) any forms, documents or certificates relating to taxation specified
in the Schedule or any Confirmation:
(ii) any other documents specified in the Schedule or any Confirmation:
and
(iii) upon reasonable demand by such other party, any form or document that
may be required or reasonably requested in writing in order to allow such
other party or its Credit Support Provider to make a payment under this
Agreement or any applicable Credit Support Document without any deduction
or withholding for or on account of any Tax or with such deduction or
withholding at a reduced rate (so long as the completion, execution or
submission of such form or document would not materially prejudice the
legal or commercial position of the party in receipt of such demand), with
any such form or document to be accurate and completed in a manner
reasonably satisfactory to such other party and to be executed and to be
delivered with any reasonably required certification.
in each case by the date specified in the Schedule or such Confirmation or, if
none is specified, as soon as reasonably practicable.
(b) Maintain Authorisations. It will use all reasonable efforts to maintain in
full force and effect all consents of any governmental or other authority that
are required to be obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party and will use all reasonable efforts to
obtain any that may become necessary in the future.
(c) Comply with Laws. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to comply
would materially impair its ability to perform its obligations under this
Agreement or any Credit Support Document to which it is a party.
(d) Tax Agreement. It will give notice of any failure of a representation made
by it under Section 3(f) to be accurate and true promptly upon learning of such
failure.
(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax
levied or imposed upon it or in respect of its execution or performance of this
Agreement by a jurisdiction in which it is incorporated,
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organised, managed and controlled, or considered to have its seat, or in which a
branch or office through which it is acting for the purpose of this Agreement is
located ("Stamp Tax Jurisdiction") and will indemnify the other party against
any Stamp Tax levied or imposed upon the other party or in respect of the other
party's execution or performance of this Agreement by any such Stamp Tax
Jurisdiction which is not also a Stamp Tax Jurisdiction with respect to the
other party.
5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified Entity
of such party of any of the following events constitutes an event of default (an
"Event of Default") with respect to such party:--
(i) Failure to Pay or Deliver. Failure by the party to make, when due,
any payment under this Agreement or delivery under Section 2(a)(i) or 2(e)
required to be made by it, if such failure is not remedied on or before the
third Local Business Day after notice of such failure is given to the
party;
(ii) Breach of Agreement. Failure by the party to comply with or perform
any agreement or obligation (other than an obligation to make any payment
under this Agreement or delivery under Section 2(a)(i) or 2(e) or to give
notice of a Termination Event or any agreement or obligation under Section
4(a)(i), 4(a)(iii) or 4(d)) to be complied with or performed by the party
in accordance with this Agreement if such failure is not remedied on or
before the thirtieth day after notice of such failure is given to the
party;
(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of such party
to comply with or perform any agreement or obligation to be complied
with or performed by it in accordance with any Credit Support
Document if such failure is continuing after any applicable grace
period has elapsed;
(2) the expiration or termination of such Credit Support Document or
the failing or ceasing of such Credit Support Document to be in full
force and effect for the purpose of this Agreement (in either case
other than in accordance with its terms) prior to the satisfaction of
all obligations of such party under each Transaction to which such
Credit Support Document relates without the written consent of the
other party; or
(3) the party or such Credit Support Provider disaffirms, disclaims,
repudiates or rejects, in whole or in part, or challenges the
validity of, such Credit Support Document;
(iv) Misrepresentation. A representation (other than a representation
under Section 3(e) or (f)) made or repeated or deemed to have been made or
repeated by the party or any Credit Support Provider of such party in this
Agreement or any Credit Support Document proves to have been incorrect or
misleading in any material respect when made or repeated or deemed to have
been made or repeated;
(v) Default under Specified Transaction. The party, any Credit Support
Provider of such party or any applicable Specified Entity of such party (1)
defaults under a Specified Transaction and, after giving effect to any
applicable notice requirement or grace period, there occurs a liquidation
of, an acceleration of obligations under, or an early termination of, that
Specified Transaction, (2) defaults, after giving effect to any applicable
notice requirement or grace period, in making any payment or delivery due
on the last payment, delivery or exchange date of, or any payment on early
termination of, a Specified Transaction (or such default continues for at
least three Local Business Days if there is no applicable notice
requirement or grace period) or (3) disaffirms, disclaims, repudiates or
rejects, in whole or in part, a Specified Transaction (or such action is
taken by any person or entity appointed or empowered to operate it or act
on its behalf);
(vi) Cross Default. If "Cross Default" is specified in the Schedule as
applying to the party, the occurrence or existence of (1) a default, event
of default or other similar condition or event (however
<PAGE>
described) in respect of such party, any Credit Support Provider of such
party or any applicable Specified Entity of such party under one or more
agreements or instruments relating to Specified Indebtedness of any of them
(individually or collectively) in an aggregate amount of not less than the
applicable Threshold Amount (as specified in the Schedule) which has
resulted in such Specified Indebtedness becoming, or becoming capable at
such time of being declared, due and payable under such agreements or
instruments, before it would otherwise have been due and payable or (2) a
default by such party, such Credit Support Provider or such Specified
Entity (individually or collectively) in making one or more payments on the
due date thereof in an aggregate amount of not less than the applicable
Threshold Amount under such agreements or instruments (after giving effect
to any applicable notice requirement or grace period):
(vii) Bankruptcy. The party, any Credit Support Provider of such party or
any applicable Specified Entity of such party:--
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger): (2) becomes insolvent or is unable to pay
its debts or fails or admits in writing its inability generally to
pay its debts as they become due: (3) makes a general assignment,
arrangement or composition with or for the benefit of its creditors:
(4) Institutes or has instituted against it a proceeding seeking a
judgment of insolvency or bankruptcy or any other relief under any
bankruptcy or insolvency law or other similar law affecting
creditors' rights, or a petition is presented for its winding-up or
liquidation, and, in the case of any such proceeding or petition
instituted or presented against it, such proceeding or petition (A)
results in a judgment of insolvency or bankruptcy or the entry of an
order for relief or the making of an order for its winding-up or
liquidation or (B) is not dismissed, discharged, stayed or
restrained in each case within 30 days of the institution or
presentation thereof: (5) has a resolution passed for its winding-
up, official management or liquidation (other than pursuant to a
consolidation, amalgamation or merger); (6) seeks or becomes subject
to the appointment of an administrator, provisional liquidator,
conservator, receiver, trustee, custodian or other similar official
for it or for all or substantially all its assets: (7) has a secured
party take possession of all or substantially all its assets or has
a distress, execution, attachment, sequestration or other legal
process levied, enforced or sued on or against all or substantially
all its assets and such secured party maintains possession, or any
such process is not dismissed, discharged, stayed or restrained, in
each case within 30 days thereafter, (8) causes or is subject to any
event with respect to it which, under the applicable laws of any
jurisdiction, has an analogous effect to any of the events specified
in clauses (1) to (7) (inclusive): or (9) takes any action in
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the foregoing acts; or
(viii) Merger Without Assumption. The party or any Credit Support Provider
of such party consolidates or amalgamates with, or merges with or into, or
transfers all or substantially all its assets to, another entity and, at
the time of such consolidation, amalgamation, merger or transfer:-
(1) the resulting, surviving or transferee entity fails to assume
all the obligations of such party or such Credit Support Provider
under this Agreement or any Credit Support Document to which it or
its predecessor was a party by operation of law or pursuant to an
agreement reasonably satisfactory to the other party to this
Agreement; or
(2) the benefits of any Credit Support Document fails to extend
(without the consent of the other party) to the performance by such
resulting, surviving or transferee entity of its obligations under
this Agreement.
(b) Termination Events. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified Entity
of such party of any event specified below constitutes an illegality if the
event is specified in (i) below, a Tax Event if the event is specified in (ii)
below or a Tax Event Upon Merger if the event is specified in (iii) below, and,
if specified to be applicable, a Credit Event
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Upon Merger if the event is specified pursuant to (iv) below or an Additional
Termination Event if the event is specified pursuant to (v) below:-
(i) Illegality. Due to the adoption of, or any change in, any applicable
law after the date on which a Transaction is entered into, or due to the
promulgation of, or any change in, the interpretation by any court,
tribunal or regulatory authority with competent jurisdiction of any
applicable law after such date, it becomes unlawful (other than as a result
of a breach by the party of Section 4(b)) for such party (which will be the
Affected Party):-
(1) to perform any absolute or contingent obligation to make a
payment or delivery or to receive a payment or delivery in respect of
such Transaction or to comply with any other material provision of
this Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of such party to
perform, any contingent or other obligation which the party (or such
Credit Support Provider) has under any Credit Support Document
relating to such Transaction;
(ii) Tax Event. Due to (x) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the date on which
a Transaction is entered into (regardless of whether such action is taken
or brought with respect to a party to this Agreement) or (y) a Change in
Tax Law the party (which will be the Affected Party) will, or there is a
substantial likelihood that it will, on the next succeeding Scheduled
Payment Date (1) be required to pay to the other party an additional amount
in respect of an Indemnifiable Tax under Section 2(d)(i)(4) (except in
respect of interest under Section 2(e), 6(d)(ii) or 6(e)) or (2) receive a
payment from which an amount is required to be deducted or withheld for or
on account of a Tax (except in respect of interest under Section 2(e),
6(d)(ii) or 6(e)) and no additional amount is required to be paid in
respect of such Tax under Section 2(d)(i)(4) (other than by reason of
Section 2(d)(i)(4)(A) or (B));
(iii) Tax Event Upon Merger. The party (the "Burdened Party") on the next
succeeding Scheduled Payment Date will either (1) be required to pay an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount has been deducted or
withheld for or on account of any Indemnifiable Tax in respect of which the
other party is not required to pay an additional amount (other than by
reason of Section 2(d)(i)(4)(A) or (B)), in either case as a result of a
party consolidating or amalgamating with, or merging with or into, or
transferring all or substantially all its assets to, another equity (which
will be the Affected Party) where such action does not constitute an event
described in Section 5(a)(viii);
(iv) Credit Event Upon Merger. If "Credit Event Upon Merger" is specified
in the Schedule as applying to the party, such party ("X"), any Credit
Support Provider of X or any applicable Specified Entity of X consolidates
or amalgamates with, or merges with or into, or transfers all or
substantially all its assets to, another entity and such action does not
constitute an event described in Section 5(a)(viii) but the
creditworthiness of the resulting, surviving or transferee entity is
materially weaker than that of X, such Credit Support Provider or such
Specified Entity, as the case may be, immediately prior to such action
(and, in such event, X or its successor or transferee, as appropriate, will
be the Affected Party); or
(v) Additional Termination Event. If any "Additional Termination Event"
is specified in the Schedule or any Confirmation as applying, the
occurrence of such event (and, in such event, the Affected Party or
Affected Parties shall be as specified for such Additional Termination
Event in the Schedule or such Confirmation).
(c) Event of Default and Illegality. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes an
Illegality, it will be treated as an Illegality and will not constitute an
Event of Default.
<PAGE>
6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an Event of
Default with respect to a party (the "Defaulting Party") has occurred and is
then continuing, the other party (the "Non-defaulting Party") may, by not more
than 20 days notice to the Defaulting Party specifying the relevant Event of
Default, designate a day not earlier than the day such notice is effective as an
Early Termination Date in respect of all outstanding Transactions. If, however,
"Automatic Early Termination" is specified in the Schedule as applying to a
party, then an Early Termination Date in respect of all outstanding Transactions
will occur immediately upon the occurrence with respect to such party of an
Event of Default specified in Section 5(a)(vii)(1), (3), (5), (6) or, to the
extent analogous thereto, (8), and as of the time immediately preceding the
institution of the relevant proceeding or the presentation of the relevant
petition upon the occurrence with respect to such party of an Event of Default
specified in Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party, specifying the
nature of that Termination Event and each Affected Transaction and will
also give such other information about that Termination Event as the other
party may reasonably require.
(ii) Transfer to Avoid Termination Event. If either an Illegality under
Section 5(b)(i)(1) or a Tax Event occurs and there is only one Affected
Party, or if a Tax Event Upon Merger occurs and the Burdened Party is the
Affected Party, the Affected Party will, as a condition to its right to
designate an Early Termination Date under Section 6(b)(iv), use all
reasonable efforts (which will not require such party to incur a loss,
excluding immaterial, incidental expenses) to transfer within 20 days after
it gives notice under Section 6(b)(i) all its rights and obligations under
this Agreement in respect of the Affected Transactions to another of its
Offices or Affiliates so that such Termination Event ceases to exist.
If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period,
whereupon the other party may effect such a transfer within 30 days after
the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be subject to
and conditional upon the prior written consent of the other party, which
consent will not be withheld if such other party's policies in effect at
such time would permit it to enter into transactions with the transferee on
the terms proposed.
(iii) Two Affected Parties. If an illegality under Section 5(b)(i)(l) or a
Tax Event occurs and there are two Affected Parties, each party will use
all reasonable efforts to reach agreement within 30 days after notice
thereof is given under Section 6(b)(i) on action to avoid that Termination
Event.
(iv) Right to Terminate. If:--
(1) a transfer under Section 6(b)(ii) or an agreement under Section
6(b)(iii), as the case may be, has not been effected with respect to
all Affected Transactions within 30 days after an Affected Party
gives notice under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon
Merger or an Additional Termination Event occurs, or a Tax Event Upon
Merger occurs and the Burdened Party is not the Affected Party.
either party in the case of an Illegality, the Burdened Party in the case
of a Tax Event Upon Merger, any Affected Party in the case of a Tax Event
or an Additional Termination Event if there is more than one Affected
Party, or the party which is not the Affected Party in the case of a Credit
Event Upon Merger or an Additional Termination Event if there is only one
Affected Party may, by not more than 20 days notice to the other party and
provided that the relevant Termination Event is then
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continuing, designate a day not earlier than the day such notice is
effective as an Early Termination Date in respect of all Affected
Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given under
Section 6(a) or (b), the Early Termination Date will occur on the date
so designated, whether or not the relevant Event of Default or
Termination Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early
Termination Date, no further payments or deliveries under Section
2(a)(i) or 2(e) in respect of the Terminated Transactions will be
required to be made, but without prejudice to the other provisions of
this Agreement. The amount, if any, payable in respect of an Early
Termination Date shall be determined pursuant to Section 6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and
will provide to the other party a statement (1) showing, in reasonable
detail, such calculations (including all relevant quotations and
specifying any amount payable under Section 6(e)) and (2) giving
details of the relevant account to which any amount payable to it is
to be paid. In the absence of written confirmation from the source of
a quotation obtained in determining a Market Quotation, the records of
the party obtaining such quotation will be conclusive evidence of the
existence and accuracy of such quotation.
(ii) Payment Date. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day
that notice of the amount payable is effective (in the case of an
Early Termination Date which is designated or occurs as a result of an
Event of Default) and on the day which is two Local Business Days
after the day on which notice of the amount payable is effective (in
the case of an Early Termination Date which is designated as a result
of a Termination Event). Such amount will be paid together with (to
the extent permitted under applicable law) interest thereon (before as
well as after judgment) in the Termination Currency, from (and
including) the relevant Early Termination Date to (but excluding) the
date such amount is paid, at the Applicable Rate. Such interest will
be calculated on the basis of daily compounding and the actual number
of days elapsed.
(e) Payments on Early Termination. If an Early Termination Date occurs,
the following provisions shall apply based on the parties' election in the
Schedule of a payment measure, either "Market Quotation" or "Loss", and a
payment method, either the "First Method" or the "Second Method". If the parties
fail to designate a payment measure or payment method in the Schedule, it will
be deemed that "Market Quotation" or the "Second Method", as the case may be,
shall apply. The amount, if any, payable in respect of an Early Termination Date
and determined pursuant to this Section will be subject to any Set-off.
(i) Events of Default. If the Early Termination Date results from an
Event of Default:--
(1) First Method and Market Quotation. If the First Method and
Market Quotation apply, the Defaulting Party will pay to the Non-
defaulting Party the excess, if a positive number, of (A) the sum
of the Settlement Amount (determined by the Non-defaulting Party)
in respect of the Terminated Transactions and the Termination
Currency Equivalent of the Unpaid Amounts owing to the Non-
defaulting Party over (B) the Termination Currency Equivalent of
the Unpaid Amounts owing to the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply,
the Defaulting Party will pay to the Non-defaulting Party, if a
positive number, the Non-defaulting Party's Loss in respect of
this Agreement.
(3) Second Method and Market Quotation. If the Second Method and
Market Quotation apply, an amount will be payable equal to (A)
the sum of the Settlement Amount (determined by the
<PAGE>
Non-defaulting Party) in respect of the Terminated Transactions and the
Termination Currency Equivalent of the Unpaid Amounts owing to the Non-
defaulting Party less (B) the Termination Currency Equivalent of the
Unpaid Amounts owing to the Defaulting Party. If that amount is a positive
number, the Defaulting Party will pay it to the Non-defaulting Party: if
it is a negative number, the Non-defaulting Party will pay the absolute
value of that amount to the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss apply, an amount
will be payable equal to the Non-defaulting Party's Loss in respect of
this Agreement. If that amount is a positive number, the Defaulting Party
will pay it to the Non-defaulting Party: if it is a negative number, the
Non-defaulting Party will pay the absolute value of that amount to the
Defaulting Party.
(ii) Termination Events. If the Early Termination Date results from a
Termination Event:-
(1) One Affected Party. If there is one Affected Party, the amount
payable will be determined in accordance with Section 6(e)(i)(3), if
Market Quotation applies, or Section 6(e)(i)(4), if Loss applies, except
that, in either case, references to the Defaulting Party and to the Non-
defaulting Party will be deemed to be references to the Affected Party and
the party which is not the Affected Party, respectively, and, if Loss
applies and fewer than all the Transactions are being terminated, Loss
shall be calculated in respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties:-
(A) if Market Quotation applies, each party will determine a
Settlement Amount in respect of the Terminated Transactions and an
amount will be payable equal to (I) the sum of (a) one-half of the
difference between the Settlement Amount of the party with the higher
Settlement Amount ("X") and the Settlement Amount of the party with
the lower Settlement Amount ("Y") and (b) the Termination Currency
Equivalent of the Unpaid Amounts owing to X less (II) the Termination
Currency Equivalent of the Unpaid Amounts owing to Y; and
(B) if Loss applies, each party will determine its Loss in respect
of this Agreement (or, if fewer than all the Transactions are being
terminated, in respect of all Terminated Transactions) and an amount
will be payable equal to one-half of the difference between the Loss
of the party with the higher Loss ("X") and the Loss of the party
with the lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X; if it is a
negative number, X will pay the absolute value of that amount to Y.
(iii) Adjustment for Bankruptcy. In circumstances where an Early Termination
Date occurs because "Automatic Early Termination" applies in respect of a party,
the amount determined under this Section 6(e) will be subject to such
adjustments as are appropriate and permitted by law to reflect any payments or
deliveries made by one party to the other under this Agreement (and retained by
such other party) during the period from the relevant Early Termination Date to
the date for payment determined under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation applies an amount
recoverable under this Section 6(e) is a reasonable pre-estimate of loss and not
a penalty. Such amount is payable for the loss of bargain and the loss of
protection against future risks and except as otherwise provided in this
Agreement neither party will be entitled to recover any additional damages as a
consequence of such losses.
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7. Transfer
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of the
other party, except that:-
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all its assets to, another entity (but without prejudice to any
other right or remedy under this Agreement): and
(b) a party may make such a transfer of all or any part of its interest in any
amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be
void.
8. Contractual Currency
(a) Payment in the Contractual Currency. Each payment under this Agreement
will be made in the relevant currency specified in this Agreement for that
payment (the "Contractual Currency"). To the extent permitted by applicable
law, any obligation to make payments under this Agreement in the Contractual
Currency will not be discharged or satisfied by any tender in any currency
other than the Contractual Currency, except to the extent such tender results
in the actual receipt by the party to which payment is owed, acting in a
reasonable manner and in good faith in converting the currency so tendered into
the Contractual Currency, of the full amount in the Contractual Currency of all
amounts payable in respect of this Agreement. If for any reason the amount in
the Contractual Currency so received falls short of the amount in the
Contractual Currency payable in respect of this Agreement, the party required to
make the payment will, to the extent permitted by applicable law, immediately
pay such additional amount in the Contractual Currency as may be necessary to
compensate for the shortfall. If for any reason the amount in the Contractual
Currency so received exceeds the amount in the Contractual Currency payable in
respect of this Agreement, the party receiving the payment will refund promptly
the amount of such excess.
(b) Judgments. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is rendered
(i) for the payment of any amount owing in respect of this Agreement, (ii) for
the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party is
entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the Contractual
Currency received by such party as a consequence of sums paid in such other
currency and will refund promptly to the other party any excess of the
Contractual Currency received by such party as a consequence of sums paid in
such other currency if such shortfall or such excess arises or results from any
variation between the rate of exchange at which the Contractual Currency is
converted into the currency of the judgment or order for the purposes of such
judgment or order and the rate of exchange at which such party is able, acting
in a reasonable manner in good faith in converting the currency received into
the Contractual Currency, to purchase the Contractual Currency with the amount
of the currency of the judgment or order actually received by such party. The
term "rate of exchange" includes, without limitation, any premiums and costs of
exchange payable in connection with the purchase of or conversion into the
Contractual Currency.
(c) Separate Indemnities. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and independent
causes of action, will apply notwithstanding any indulgence granted by the
party to which any payment is owed and will not be affected by judgement being
obtained or claim or proof being made for any other sums payable in respect of
this Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it will be sufficient
for a party to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
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9. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communication and prior writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing evidenced by
a facsimile transmission) and executed by each of the parties or confirmed by an
exchange of telexes or electronic messages on an electronic messaging system.
(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive the
termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative and
not exclusive of any rights, powers, remedies and privileges provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts (including by
facsimile transmission), each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of each
Transaction from the moment they agree to those terms (whether orally or
otherwise). A Confirmation shall be entered into as soon as practicable and
may be executed and delivered in counterparts (including by facsimile
transmission) or be created by an exchange of telexes or by an exchange of
electronic messages on an electronic messaging system, which in each case
will be sufficient for all purposes to evidence a binding supplement to
this Agreement. The parties will specify therein or through another
effective means that any such counterpart, telex or electronic message
constitutes a Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power or
privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege will
not be presumed to preclude any subsequent or further exercise, of that right,
power or privilege or the exercise of any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
10. Offices; Multibranch Parties
(a) If Section 10(a) is specified in the Schedule as applying, each party that
enters into a Transaction through an Office other than its head or home office
represents to the other party that, notwithstanding the place of booking office
or jurisdiction of incorporation or organisation of such party, the obligations
of such party are the same as if it had entered into the Transaction through its
head or home office. This representation will be deemed to be repeated by such
party on each date on which a Transaction is entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the prior
written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office through
which it makes and receives payments or deliveries with respect to a Transaction
will be specified in the relevant Conformation.
11. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including legal fees and
Stamp Tax, incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement or any Credit Support Document
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<PAGE>
to which the Defaulting Party is a party or by reason of the early termination
of any Transaction, including, but not limited to, costs of collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice or
other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated:--
(i) if in writing and delivered in person or by courier, on the date it
is delivered;
(ii) if sent by telex, on the date the recipient's answerback is received;
(iii) if sent by facsimile transmission, on the date that transmission is
received by a responsible employee of the recipient in legible form (it
being agreed that the burden of proving receipt will be on the sender and
will not be met by a transmission report generated by the sender's
facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or the
equivalent (return receipt requested), on the date that mail is delivered
or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that electronic
message is received.
unless the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered (or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings relating to
this Agreement ("Proceedings"), each party irrevocably:--
(i) submits to the jurisdiction of the English courts, if this Agreement
is expressed to be governed by English law, or to the non-exclusive
jurisdiction of the courts of the State of New York and the United States
District Court located in the Borough of Manhattan in New York City, if
this Agreement is expressed to be governed by the laws of the State of New
York; and
(ii) waives any objection which it may have at any time to the laying of
venue of any Proceedings brought in any such court, waives any claim that
such Proceedings have been brought in an inconvenient forum and further
waives the right to object, with respect to such Proceedings, that such
court does not have any jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be governed
by English law, the Contracting States, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments Act 1982 or any modification, extension or
re-enactment thereof for the time being in force) nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) Service of Process. Each party irrevocably appoints the Process Agent (if
any) specified opposite its name in the Schedule to receive, for it and on its
behalf, service of process in any Proceedings. If for any
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<PAGE>
reason any party's Process Agent is unable to act as such, such party will
promptly notify the other party and within 30 days appoint a substitute process
agent acceptable to the other party. The parties irrevocably consent to service
of process given in the manner provided for notices in Section 12. Nothing in
this Agreement will affect the right of either party to serve process in any
other manner permitted by law.
(d) Waiver of Immunities. Each party irrevocably waives, to the fullest extent
permitted by applicable law, with respect to itself and its revenues and assets
(irrespective of their use or intended use), all immunity on the grounds of
sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any
court, (iii) relief by way of injunction, order for specific performance or for
recovery of property, (iv) attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment to which it or its
revenues or assets might otherwise be entitled in any Proceedings in the courts
of any jurisdiction and irrevocably agrees, to the extent permitted by
applicable law, that it will not claim any such immunity in any Proceedings.
14. Definitions
As used in this Agreement:--
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control" of
any entity or person means ownership of a majority of the voting power of the
entity or person.
"Applicable Rate" means:--
(a) in respect of obligations payable or deliverable (or which would have been
but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of either
party from and after the date (determined in accordance with Section 6(d)(ii))
on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which would
have been but for Section 2(a)(iii)) by a Non-defaulting Party, the Non-default
Rate; and
(d) in all other cases, the Termination Rate.
"Burdened Party" has the meaning specified in Section 5(b).
"Change in Tax Law" means the enactment, promulgation, execution or ratification
of, or any change in or amendment to, any law (or in the application or official
interpretation of any law) that occurs on or after the date on which the
relevant Transaction is entered into.
"consent" includes a consent, approval, action, authorisation, exemption,
notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is specified as
such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of funding the relevant amount plus 1% per annum.
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"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with Section
6(a) or 6(b)(iv).
"Event of Default" has the meaning specified in Section 5(a) and, if applicable,
in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"Indemnifiable Tax" means any Tax other than a Tax that would not be imposed in
respect of a payment under this Agreement but for a present or former
connection between the jurisdiction of the government or taxation authority
imposing such Tax and the recipient of such payment or a person related to such
recipient (including, without limitation, a connection arising from such
recipient or related person being or having been a citizen or resident of such
jurisdiction, or being or having been organised, present or engaged in a trade
or business in such jurisdiction, or having or having had a permanent
establishment or fixed place of business in such jurisdiction, but excluding a
connection arising solely from such recipient or related person having executed,
delivered, performed its obligations or received a payment under, or enforced,
this Agreement or a Credit Support Document).
"law" includes any treaty, law, rule or regulation (as modified, in the case of
tax matters, by the practice of any relevant governmental revenue authority) and
"lawful" and "unlawful" will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which commercial
banks are open for business (including dealings in foreign exchange and foreign
currency deposits) (a) in relation to any obligation under Section 2(a)(i), in
the place(s) specified in the relevant Confirmation or, if not so specified, as
otherwise agreed by the parties in writing or determined pursuant to provisions
contained, or incorporated by reference, in this Agreement, (b) in relation to
any other payment, in the place where the relevant account is located and, if
different, in the principal financial centre, if any, of the currency of such
payment, (c) in relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), in the city specified in the address for
notice provided by the recipient and, in the case of a notice contemplated by
Section 2(b), in the place where the relevant new account is to be located and
(d) in relation to Section 5(a)(v)(2), in the relevant locations for
performance with respect to such Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be its
total losses and costs (or gain, in which case expressed as a negative number)
in connection with this Agreement or that Terminated Transaction or group of
Terminated Transactions, as the case may be, including any loss of bargain, cost
of funding or, as the election of such party but without duplication, loss or
cost incurred as a result of its terminating, liquidating, obtaining or
reestablishing any hedge or related trading position (or any gain resulting from
any of them). Loss includes losses and costs (or gains) in respect of any
payment or delivery required to have been made (assuming satisfaction of each
applicable condition precedent) on or before the relevant Early Termination Date
and not made, except, so as to avoid duplication, if Section 6(e)(i)(1) or (3)
or 6(e)(ii)(2)(A) applies. Loss does not include a party's legal fees and
out-of-pocket expenses referred to under Section 11. A party will determine its
Loss as of the relevant Early Termination Date, or, if that is not reasonably
practicable, as of the earliest date thereafter as is reasonably practicable. A
party may (but need not) determine its Loss by reference to quotations of
relevant rates or prices from one or more leading dealers in the relevant
markets.
"Market Quotation" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an amount,
if any, that would be paid to such party (expressed as a negative number) or by
such party (expressed as a positive number) in consideration of an agreement
between such party (taking into account any existing Credit Support Document
with respect to the obligations of such party) and the quoting References
Market-maker to enter into a transaction (the "Replacement Transaction") that
would have the effect of preserving for such party the economic equivalent of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
by the parties under Section 2(a)(i) in respect of such Terminated Transaction
or group of Terminated Transactions that would, but for the occurrence of the
relevant Early Termination Date, have
<PAGE>
been required after that date. For this purpose, Unpaid Amounts in respect of
the Terminated Transaction or group of Terminated Transactions are to be
excluded but, without limitation, any payment or delivery that would, but for
the relevant Early Termination Date, have been required (assuming satisfaction
of each applicable condition precedent) after that Early Termination Date is to
be included. The Replacement Transaction would be subject to such documentation
as such party and the Reference Market-maker may, in good faith, agree. The
party making the determination (or its agent) will request each Reference
Market-maker to provide its quotation to the extent reasonably practicable as of
the same day and time (without regard to different time zones) on or as soon as
reasonably practicable after the relevant Early Termination Date. The day and
time as of which those quotations are to be obtained will be selected in good
faith by the party obliged to make a determination under Section 6(e), and, if
each party is so obliged, after consultation with the other. If more than three
quotations are provided, the Market Quotation will be the arithmetic mean of the
quotations, without regard to the quotations having the highest and lowest
values. If exactly three such quotations are provided, the Market Quotation will
be the quotation remaining after disregarding the highest and lowest quotations.
For this purpose, if more than one quotation has the same highest value or
lowest value, then one of such quotations shall be disregarded. If fewer than
three quotations are provided, it will be deemed that the Market Quotation in
respect of such Terminated Transaction or group of Terminated Transactions
cannot be determined.
"Non-default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the Non-defaulting Party (as certified by it) if
it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Office" means a branch or office of a party, which may be such party's head or
home office.
"Potential Event of Default" means any event which, with the giving of notice or
the lapse of time or both, would constitute an Event of Default.
"Reference Market-makers" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria that
such party applies generally at the time in deciding whether to offer or to make
an extension of credit and (b) to the extent practicable, from among such
dealers having an office in the same city.
"Relevant Jurisdiction" means, with respect to a party, the jurisdictions (a) in
which the party is incorporated, organised, managed and controlled or considered
to have its seat, (b) where an Office through which the party is acting for
purposes of this Agreement is located, (c) in which the party executes this
Agreement and (d) in relation to any payment, from or through which such payment
is made.
"Scheduled Payment Date" means a date on which a payment or delivery is to be
made under Section 2(a)(i) with respect to a Transaction.
"Set-off" means set-off, offset combination of accounts, right of retention or
withholding or similar right or requirement to which the payer of an amount
under Section 6 is entitled or subject (whether arising under this Agreement,
another contract, applicable law or otherwise) that is exercised by, or imposed
on, such payer.
"Settlement Amount" means, with respect to a party and any Early Termination
Date, the sum of:--
(a) the Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without reference to
any Unpaid Amounts) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation cannot be determined or would not (in
the reasonable belief of the party making the determination ) produce a
commercially reasonable result.
"Specified Entity" has the meaning specified in the Schedule.
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<PAGE>
"Specified Indebtedness" means, subject to the Schedule, any obligation
(whether present or future, contingent or otherwise, as principal or surety or
otherwise) in respect of borrowed money.
"Specified Transaction" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into between one party to this Agreement (or any Credit Support Provider of such
party or any applicable Specified Entity of such party) and the other party to
this Agreement (or any Credit Support Provider of such other party or any
applicable Specified Entity of such other party) which is a rate swap
transaction, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions), (b) any combination of
these transactions and (c) any other transaction identified as a Specified
Transaction in this Agreement or the relevant confirmation.
"Stamp Tax" means any stamp, registration, documentation or similar tax.
"Tax" means any present or future tax, levy, impost duty, charge, assessment or
fee of any nature (including interest, penalties and additions thereto) that
is imposed by any government or other taxing authority in respect of any payment
under this Agreement other than a stamp, registration, documentation or similar
tax.
"Tax Event" has the meaning specified in Section 5(b).
"Tax Event Upon Merger" has the meaning specified in Section 5(b).
"Terminated Transactions" means with respect to any Early Termination Date (a)
if resulting from a Termination Event, all Affected Transactions and (b) if
resulting from an Event of Default, all Transactions (in either case) in effect
immediately before the effectiveness of the notice designating that Early
Termination Date (or, if "Automatic Early Termination" applies, immediately
before that Early Termination Date).
"Termination Currency" has the meaning specified in the Schedule.
"Termination Currency Equivalent" means, in respect of any amount denominated in
the Termination Currency, such Termination Currency amount and, in respect of
any amount denominated in a currency other than the Termination Currency (the
"Other Currency"), the amount in the Termination Currency determined by the
party making the relevant determination as being required to purchase such
amount of such Other Currency as at the relevant Early Termination Date, or, if
the relevant Market Quotation or Loss (as the case may be), is determined as of
a later date, that later date, with the Termination Currency at the rate equal
to the spot exchange rate of the foreign exchange agent (selected as provided
below) for the purchase of such Other Currency with the Termination Currency at
or about 11:00 a.m. (in the city in which such foreign exchange agent is
located) on such date as would be customary for the determination of such a rate
for the purchase of such Other Currency for value on the relevant Early
Termination Date or that later date. The foreign exchange agent will, if only
one party is obliged to make a determination under Section 6(e), be selected in
good faith by that party and otherwise will be agreed by the parties.
"Termination Event" means an Illegality, a Tax Event or a Tax Event Upon Merger
or, if specified to be applicable, a Credit Event Upon Merger or an Additional
Termination Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean of the
cost (without proof or evidence of any actual cost) to each party (as certified
by such party) if it were to fund or of funding such amounts.
"Unpaid Amounts" owing to any party means, with respect to an Early Termination
Date, the aggregate of (a) in respect of all Terminated Transactions, the
amounts that became payable (or that would have become payable but for Section
2(a)(iii)) to such party under Section 2(a)(i) on or prior to such Early
Termination Date and which remain unpaid as at such Early Termination Date and
(b) in respect of each Terminated Transaction, for each obligation under Section
2(a)(i) which was (or would have been but for Section 2(a)(iii)) required to be
settled by delivery to such party on or prior to such Early Termination Date and
which has not been so settled as at such Early Termination Date, an amount equal
to the fair market
<PAGE>
value of that which was (or would have been) required to be delivered as of the
originally scheduled date for delivery, in each case together with (to the
extent permitted under applicable law) interest, in the currency of such
amounts, from (and including) the date such amounts or obligations were or would
have been required to have been paid or performed to (but excluding) such Early
Termination Date, at the Applicable Rate. Such amounts of interest will be
calculated on the basis of daily compounding and the actual number of days
elapsed. The fair market value of any obligation referred to in clause (b) above
shall be reasonably determined by the party obliged to make the determination
under Section 6(e) or, if each party is so obliged, it shall be the average of
the Termination Currency Equivalents of the fair market values reasonably
determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
- ------------------------------------- --------------------------------------
(Name of Party) (Name of Party)
By:---------------------------------- By:-----------------------------------
Name: Name:
Title: Title:
Date: Date:
12
<PAGE>
Draft: 14 March 2000
Series 2000-1G Medallion Trust
ISDA Master Agreement
(Currency Swap Agreement)
Date:
Securitisation Advisory Services Pty. Limited
Manager
Commonwealth Bank of Australia
CBA and Party A
Perpetual Trustee Company Limited
Party B
Merrill Lynch Capital Services Inc.
MLCS and Standby Swap Provider
CLAYTON UTZ
Lawyers
Levels 27-35
No.1 O'Connell Street
SYDNEY NSW 2000
Liability is limited by the Solicitors Scheme under the Professional Standards
Act 1994 NSW
<PAGE>
SCHEDULE
to the
MASTER AGREEMENT
dated as of 2000 between
Securitisation Advisory Services Pty. Limited
ACN 064 133 946
("Manager")
and
Commonwealth Bank of Australia
ACN 123 123 124
("CBA" and "Party A")
and
Perpetual Trustee Company Limited
ACN 000 001 007
as trustee of the Series 2000-1G Medallion Trust
("Party B")
and
Merrill Lynch Capital Services Inc.
("MLCS" and "Standby Swap Provider")
Part 1. Termination Provisions.
In this Agreement:
(a) "Specified Entity" does not apply in relation to Party A or Party B.
(b) The definition of "Specified Transaction" is not applicable.
(c) (i) The following provisions of Section 5 will not apply to Party A:
Section 5(a)(ii) Section 5(a)(v)
Section 5(a)(iii) Section 5(a)(vi)
Section 5(a)(iv) Section 5(b)(iv)
(ii) The following provisions of Section 5 will not apply to Party B:
Section 5(a)(ii) Section 5(a)(v) Section 5(a)(viii)
Section 5(a)(iii) Section 5(a)(vi) Section 5(b)(iv)
Section 5(a)(iv) Section 5(a)(vii)
(iii) Section 5(b)(ii) will not apply to Party A as the Affected Party
(subject to Part [_]5(6)(b) of this Schedule) and Section
5(b)(iii) will not apply to Party A as the Burdened Party.
(d) The "Automatic Early Termination" provisions in Section 6(a) will not
apply to Party A or Party B.
<PAGE>
(e) Payments on Early Termination. For the purposes of Section 6(e) of this
Agreement:
(i) Market Quotation will apply; and
(ii) the Second Method will apply.
(f) "Termination Currency" means US$ provided that if an amount due in
respect of an Early Termination Date will be payable by Party B to Party
A the Termination Currency for the purpose of calculating and paying
that amount is Australian Dollars.
(g) "Additional Termination Event" applies. The following is an Additional
Termination Event in relation to which both Party A and Party B are
Affected Parties:
"An Event of Default (as defined in the Security Trust Deed) occurs and
the Security Trustee has declared, in accordance with the Security Trust
Deed, the Class A-1 Notes immediately due and payable."
For the purposes of calculating a payment due under Sections 6(d) and
(e) when an Early Termination Date is designated under Section 6(b) as a
result of such Additional Termination Event, Party B will be the only
Affected Party.
Part 2. Tax Representations
(a) Payer Tax Representations. For the purpose of Section 3(e) of this
Agreement, Party A and Party B each make the following representation:
It is not required by any applicable law, as modified by the practice of
any relevant government revenue authority, of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any Tax from
any payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of
this Agreement) to be made by it to any other party under this
Agreement. In making this representation, it may rely on:
(i) the accuracy of any representation made by that other party
pursuant to Section 3(f) of this Agreement;
(ii) the satisfaction of the agreement contained in Section 4(a)(i) or
4(a)(iii) of this Agreement and the accuracy and effectiveness of
any document provided by that other party pursuant to Section
4(a)(i) or 4(a)(iii) of this Agreement; and
(iii) the satisfaction of the agreement of that other party contained in
Section 4(d) of this Agreement,
PROVIDED THAT it shall not be a breach of this representation where
reliance is placed on clause (ii) and the other party does not deliver a
form or document under Section 4(a)(iii) by reason of material prejudice
to its legal or commercial position.
(b) Payee Tax Representations. For the purpose of Section 3(f) of this
Agreement:
MLCS as Standby Swap Provider and (on and from the Novation Date) as
Party A makes the following representation:
It is fully eligible for the benefits of the "Business Profits" or
"Industrial and Commercial Profits" provision, as the case may be, the
"Interest" provision or the "Other Income" provision (if any) of the
Specified Treaty with respect to any payment described in such
provisions and received or to be received by it in connection with this
Agreement and no such payment is attributable to a trade or business
carried on by it through a permanent establishment in the Specified
Jurisdiction.
"Specified Treaty" means the income tax treaty between the United States
and the Commonwealth of Australia.
"Specified Jurisdiction" means Commonwealth of Australia.
Party B and CBA as Party A each makes the following representation:
2.
<PAGE>
It is fully eligible for the benefits of the "Business Profits" or
"Industrial and Commercial Profits" provision, as the case may be, the
"Interest" provision or the "Other Income" provision (if any) of the
Specified Treaty with respect to any payment described in such
provisions and received or to be received by it in connection with this
Agreement and no such payment is attributable to trade or business
carried on by it through a permanent establishment in the Specified
Jurisdiction.
Part 3. Agreement to Deliver Documents
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver to each other party the following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are:
<TABLE>
<S> <C> <C>
Party required to deliver Form/Document/Certificate Date by which to be delivered
document
Party A, Party B, and the Any document or certificate reasonably On the earlier of (a) learning
Standby Swap Provider required or reasonably requested by a that such document or certificate
party in connection with its obligations is required and (b) as soon as
to make a payment under this Agreement which reasonably practicable following a
would enable that party to make the payment request by a party.
free from any deduction or withholding for
or on account of Tax or which would reduce the
rate at which deduction or withholding for or
on account of Tax is applied to that payment
(including, without limitation, in the case of
Party B, a duly executed and completed United
States Internal Revenue Form W-8 BEN and W-8EC1
(or any successor thereto) as requested by Party
A with respect to any payments received by Party B.
(b) Other documents to be delivered are:
Party required to deliver Form/Document/Certificate Date by which to be delivered
document
Party A, Party B, the A certificate specifying the names, On the execution of this
Standby Swap Provider and title and specimen signatures of the Agreement and each Confirmation
the Manager persons authorised to execute this unless that certificate has
Agreement and each Confirmation or already been supplied and remains
other communication in writing made true and in effect and when the
pursuant to this Agreement on its behalf. certificate is updated.
Party A, Party B, the A legal opinion as to the validity Prior to the Closing Date.
Standby Swap Provider and and enforceability of its obligations
the Manager under this Agreement in form and substance
(and issued by legal counsel) reasonably
acceptable to each other party.
Party B A certified copy to Party A Not less than 5 Business Days (or
of each Credit Support Document such lesser period as Party A
specified in respect of Party B agrees to) before the Trade Date
and (without limiting any of the first occurring
obligation Party B may have under Transaction and in the case of
the terms of that Credit Support Document any amending documents
to notify Party
</TABLE>
3.
<PAGE>
<TABLE>
<S> <C> <C>
A of amendments thereto) a entered into subsequent to
certified copy to Party A of any document that date, promptly after each
that amends in any way the terms of that amending document (if any) has
Credit Support Document. been entered into.
Standby Swap Provider A certified copy to Party B, Not less than 5 Business Days
Party A and the Manager of each (or such lesser period as Party
Credit Support Document (if any) B and the Manager agree to) before
specified in respect of Standby Swap the Trade Date of the first
Provider and (without limiting any occurring Transaction and in the
obligation Standby Swap Provider may case of any amending documents
have under the terms of that Credit entered into subsequent to that
Support Document to notify Party B, Party date, promptly after each amending
A or the Manager of amendments thereto) document (if any) has been entered into.
a certified copy to Party B, Party A and
the Manager of any document that amends in
any way the terms of that Credit Support
Document.
</TABLE>
Other than the legal opinions, any Credit Support Document or any document
amending a Credit Support Document (but including any certifications in relation
to such documents), all documents delivered under this Part 3(b) are covered by
the Section 3(d) representation. For the purposes of this Part 3(b), a copy of a
document is taken to be certified if a director or secretary of the party
providing the document, or a person authorised to execute this Agreement or a
Confirmation on behalf of that party or a solicitor acting for that party has
certified it to be a true and complete copy of the document of which it purports
to be a copy.
4.
<PAGE>
Part 4. Miscellaneous
(a) Addresses for Notices. For the purpose of Section 12(a) of this
Agreement:
Address for notices or communications to MLCS as Standby Swap Provider
and (on and from the Novation Date) as Party A:
Address: Merrill Lynch World Headquarters, World Financial
Center, North Tower, 22nd Floor, 250 Vesey Street, New
York, New York 10281-1322, U.S.A.
Attention: Swap Group
Telex No: 6716341
Answerback: MLB SCTR
Facsimile No.: 212 449-1788
Telephone No.: 212 449-0291
Additionally, a copy of all notices pursuant to Sections 5, 6 and 7 as
well as any changes to counterparty's address, telephone number or
facsimile number should be sent to:
Address: CICG Counsel
Merrill Lynch World Headquarters, World Financial
Center, North Tower, 12th Floor,
250 Vesey Street, New York, New York 10281-1323, U.S.A.
Attention: Swaps Legal
Facsimile No.: 212 449-6993
Address: Merrill Lynch International (Australia) Limited
Level 49, 19-29 Martin Place, Sydney NSW 2000.
Attention: Swaps Group
Facsimile No.: 612 9225 6767
Address for notices or communications to Party B:
Address: Perpetual Trustee Company Limited
Level 3
39 Hunter Street
Sydney NSW 2000
AUSTRALIA
Attention: Manager, Securitisation Services
Facsimile No.: 612 9221 7870
Additionally, a copy of all notices as well as any changes to
counterparty's address, telephone number or facsimile number should be
sent to:
Address: Securitisation Advisory Services Pty. Limited
Level 8
48 Martin Place
Sydney NSW 2000
AUSTRALIA
5.
<PAGE>
Attention: Manager, Securitisation
Facsimile No.: 612 9378 2481
Address for notices or communications to CBA as Party A:
Address: Commonwealth Bank of Australia
Level 8
48 Martin Place
Sydney NSW 2000
AUSTRALIA
Attention: Manager, Securitisation
Facsimile No.: 612 9378 2481
Additionally, a copy of all notices pursuant to Sections 5, 6 and 7 as
well as any changes to counterparty's address, telephone number or
facsimile number should be sent to the Standby Swap Provider at the
addresses set out above.
(b) Process Agent. For the purpose of Section 13(c) of this Agreement:
MLCS as Standby Swap Provider and (on and from the Novation Date) as
Party A appoints as its Process Agent: Merrill Lynch International
(Australia) Limited, Level 49, 19-29 Martin Place, Sydney NSW 2000.
Party B appoints as its Process Agent: not applicable.
CBA as Party A appoints as its Process Agent: not applicable.
(c) Offices. The provisions of Section 10(a) will apply to this Agreement.
(d) Multibranch Party. For the purpose of Section 10(c) of this Agreement:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) Calculation Agent.
(i) The Calculation Agent is:
(A) in respect of all notices, determinations and calculations
in respect of amounts denominated in US$, the Agent Bank;
and
(B) in respect of all other notices, determinations and
calculations, the Manager.
(ii) All determinations and calculations by the Calculation Agent will:
(A) be made in good faith and in the exercise of its commercial
reasonable judgment; and
(B) be determined, where applicable, on the basis of then
prevailing market rates or prices.
All such determinations and calculations will be binding on Party A and
Party B in the absence of manifest error. Party B and the Manager
covenant in favour of Party A to use reasonable endeavours (including,
without limitation, taking such action as is reasonably necessary to
promptly enforce the obligations of the Agent Bank under the Agency
Agreement) to ensure that the Agent Bank performs its obligations as
Calculation Agent under this Agreement.
6.
<PAGE>
(f) Credit Support Document. Details of any Credit Support Document:
(i) In relation to MLCS as Standby Swap Provider and (on and from the
Novation Date) as Party A: A Guarantee from Merrill Lynch & Co.
Inc ("M L & Co.") in the form attached hereto as Annexure 2.
(ii) In relation to Party B: the Security Trust Deed dated on or about
the date of this Agreement, between the Class A-1 Note Trustee,
Party B, the Security Trustee and the Manager (the "Security Trust
Deed").
(iii) In relation to CBA as Party A: not applicable.
(g) Credit Support Provider.
(i) In relation to MLCS as Standby Swap Provider and (on and from the
Novation Date) as Party A: M L & Co.
(ii) In relation to Party B: None.
(iii) In relation to CBA as Party A: none.
(h) Governing Law. This Agreement will be governed by and construed in
accordance with the laws in force in New South Wales, except the Credit
Support Annex, which will be governed by and construed in accordance with
the laws in force in the State of New York as provided in Paragraph
[_]13(m)(iv) of the Credit Support Annex. Section 13(b)(i) is deleted
and replaced by the following:
"(i) submits to the non-exclusive jurisdiction of the courts of
New South Wales and courts of appeal from them; and".
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) of this Agreement
will apply in respect of all Transactions.
(j) "Affiliate" will have the meaning specified in Section 14 of this
Agreement. However, for the purposes of Section 3(c) Party B is deemed
not to have any Affiliates.
7.
<PAGE>
Part 5. Other Provisions
(1) Payments: In Section 2:
(a) In Section 2(a)(i) add the following sentence:
"Each payment will be by way of exchange for the corresponding
payment or payments payable by the other party (if any)".
(b) In Section 2(a)(ii) the first sentence is deleted and replaced
with the following sentence:
"Unless specified otherwise in this Agreement, payments under this
Agreement by:
(i) Party A, will be made by 10.00 am (New York time); and
(ii) Party B, will be made by 4.00pm (Sydney time),
on the due date for value on that date in the place of the account
specified in the relevant Confirmation or otherwise pursuant to
this Agreement, in freely transferable funds, free of any set-off,
counterclaim, deduction or withholding (except as expressly
provided in this Agreement) and in the manner customary for
payment in the required currency.".
(c) Insert a new paragraph (iv) in Section 2(a) immediately after
Section 2(a)(iii) as follows:
"(iv) The condition precedent in Section 2(a)(iii)(1) does not
apply to a payment due to be made to a party if it has
satisfied all its payment obligations under Section 2(a)(i)
of this Agreement and has no future payment obligations,
whether absolute or contingent under Section 2(a)(i)."
(d) Add the following new sentence to Section 2(b):
"Each new account so designated shall be in the same tax
jurisdiction as the original account."
(e) Amend Section 2(d) as follows:
(i) Delete the word "if" at the beginning of Section 2(d)(i)(4)
and insert the following words instead:
"if and only if X is Party A and".
(ii) In Section 2(d)(ii) insert the words "(if and only if Y is
Party A)" after the word "then" at the beginning of the
last paragraph.
Without prejudice to the above amendments, it is agreed that Party
B:
(iii) is not obliged to pay:
(1) any additional amount to Party A under Section
2(d)(i)(4); or
(2) any amount to Party A under Section 2(d)(ii); and
(iv) will not receive payments under this Agreement or any
Transaction from which deductions or withholdings have been
made.
(2) Party B's Payment Instructions: Party B irrevocably authorises and
instructs Party A to
8.
<PAGE>
make payment of:
(i) the Initial Exchange Amount due from Party A to Party B in respect
of the Initial Exchange Date by paying that amount direct to the
account notified in writing by Party B to Party A for that
purpose; and
(ii) any other amount due from Party A to Party B under this Agreement
by paying that amount direct to the Principal Paying Agent to the
account notified in writing by the Principal Paying Agent to Party
A for that purpose.
(3) Party A's Payment Instructions: Party A irrevocably authorises and
instructs Party B to make payment of:
(i) any amount denominated in A$ due from Party B to the account in
Sydney notified in writing by Party A to Party B from time to
time; and
(ii) any amount denominated in US$ due from Party B to the account
notified in writing by Party A to Party B from time to time.
(4) Representations: In Section 3:
(a) Section 3(a)(v) is amended by inserting immediately after the
words "creditors' rights generally" the following:
"(including in the case of a party being an ADI (as that term is
defined in the Reserve Bank Act, 1959 (Cth)) and section 13A(3) of
the Banking Act, 1959 (Cth)).";
(b) Relationship Between Parties. Each party will be deemed to
represent to the other parties on the date on which it enters into
a Transaction that (absent a written agreement between the parties
that expressly imposes affirmative obligations to the contrary for
that Transaction):-
(i) Non-Reliance. It is acting for its own account (in the
case of Party B, as trustee of the Series Trust), and it
has made its own independent decisions to enter into that
Transaction and as to whether that Transaction is
appropriate or proper for it based upon its own judgment
(and in the case of Party B, also on the judgment of the
Manager) and upon advice from such advisers as it has
deemed necessary. It is not relying on any communication
(written or oral) of any other party as investment advice
or as a recommendation to enter into that Transaction; it
being understood that information and explanations related
to the terms and conditions of a Transaction will not be
considered investment advice or a recommendation to enter
into that Transaction. No communication (written or oral)
received from any other party will be deemed to be an
assurance or guarantee as to the expected results of that
Transaction.
(ii) Evaluation and Understanding. It is capable of evaluating
and understanding (on its own behalf or through independent
professional advice), and understands and accepts, the
terms, conditions and risks of that Transaction. It is
also capable of assuming, and assumes, the risks of that
Transaction.
(iii) Status of Parties. No other party is acting as a fiduciary
or an adviser to it in respect of that Transaction.
(c) insert the following new paragraphs (g), (h) and (i) in Section 3
immediately after Section 3(f):
9.
<PAGE>
(g) Series Trust. By Party B, in respect of Party B only:
(i) Trust Validly Created. The Series Trust has been
validly created and is in existence at the date of
this Agreement.
(ii) Sole Trustee. It has been validly appointed as
trustee of the Series Trust and is presently the
sole trustee of the Series Trust.
(iii) No Proceedings to Remove. No notice has been given
to it and to its knowledge no resolution has been
passed, or direction or notice has been given,
removing it as trustee of the Series Trust.
(iv) Power. It has power under the Master Trust Deed to:
(A) enter into and perform its obligations under
this Agreement and each Credit Support
Document in relation to Party B in its
capacity as trustee of the Series Trust; and
(B) mortgage or charge the Assets of the Series
Trust in the manner provided in the Credit
Support Document in relation to Party B,
and its entry into this Agreement and each Credit
Support Document in relation to Party B is in the
interests of the beneficiaries of the Series Trust
and does not constitute a breach of trust.
(v) Good Title. It is the lawful owner of the Assets of
the Series Trust and, subject only to the Credit
Support Document in relation to Party B and any
Security Interest permitted under the Credit Support
Document in relation to Party B, those Assets are
free of all other Security Interests (except for
Party B's right of indemnity out of the Assets of
the Series Trust).
(vi) Eligible Swap Participant. The Series Trust was not
formed for the specific purpose of constituting an
eligible swap participant (as that term is used in
Part 35 of the General Regulations under the
Commodity Exchange Act).
(vii) Total Assets. As at close of business on the
Closing Date, following the issue of the Class A-1
Notes and provided that the aggregate Invested
Amount of the Class A-1 Notes upon issue exceeds
USD10,000,000, the Series Trust will have total
assets exceeding USD10,000,000.
(h) Non-assignment. It has not assigned (whether absolutely,
in equity, by way of security or otherwise), declared any
trust over or given any charge over any of its rights under
this Agreement or any Transaction except, in the case of
Party B, for the Security Interests created under each
Credit Support Document in relation to Party B.
(i) Contracting as principal. Each existing Transaction has
been entered into by that party as principal and not
otherwise."
(5) Event of Default: In Section 5(a):
(a) Failure to Pay or Deliver: delete paragraph (i) and replace it
with the following:
10.
<PAGE>
""(i) Failure to Pay or Deliver. Failure by the party to make,
when due, any payment under this Agreement or delivery
under Section 2(a)(i) or 2(e) required to be made by it if
such failure is not remedied at or before:
(1) where the failure is by Party B, 10.00am on the
tenth day after notice of such failure is given to
Party B;" and
(2) where the failure is by Party A, 10.00am on the
tenth day after notice of such failure is given to
Party A;";
(b) Consequential amendments:
(i) delete "or" at the end of Section 5(a)(vii); and
(ii) replace the full stop at the end of Section 5(a)(viii) with
"; or"; and
(c) Downgrade Obligations: insert the following new paragraph (ix):
"(ix) Downgrade Obligations. In respect of Party A only, Party A
fails to comply with Part 5(23) of the Schedule if such
failure is not remedied on or before the tenth Business Day
(or such later day as Party B and the Manager may agree and
which the Rating Agencies confirm in writing will not
result in a reduction, qualification or withdrawal of the
credit ratings then assigned by them to the Class A-1
Notes) after notice of such failure is given to Party A.".
(6) Termination Events:
(a) Illegality: In respect of each Transaction, the parties agree that
the imposition by any Governmental Agency of an Australian
jurisdiction of any exchange controls, restrictions or
prohibitions which would otherwise constitute an Illegality for
the purposes of Sections 5(b)(i) or 5(c) will not be an event
which constitutes an Illegality for the purposes of those Sections
so that, following the occurrence of that event:
(i) neither Party A nor Party B will be entitled to designate
an Early Termination Date in respect of that Transaction as
a result of that event occurring;
(ii) payment by Party B in accordance with Part 5(3) of the
Schedule will continue to constitute proper performance of
its payment obligations in respect of that Transaction; and
(iii) Party A's obligations in respect of that Transaction or
this Agreement will, to the extent permitted by law, be
unaffected by the occurrence of that event.
(b) Party A's limited rights in relation to Tax Event:
(i) Notwithstanding Part 1(c)(iii) of the Schedule, but subject
to Section 6(b)(ii), Party A may designate an Early
Termination Date if it is an Affected Party following a Tax
Event but only if the Class A-1 Note Trustee has notified
the parties in writing that it is satisfied that all
amounts owing to the Class A-1 Noteholders will be paid in
full on the date on which the Class A-1 Notes are to be
redeemed.
(ii) If a Tax Event occurs where Party A is the Affected Party
and Party A is unable to transfer all its rights and
obligations under this Agreement and the Class A-1 Currency
Swap to an Affiliate pursuant to Section 6(b)(ii), Party A
may, at its cost, transfer all its rights, powers and
privileges and all its unperformed and future obligations
<PAGE>
under this Agreement and the Class A-1 Currency Swap to any
person provided that:
(A) each Rating Agency has confirmed in writing that the
transfer will not result in a reduction,
qualification or withdrawal of the credit ratings
then assigned by them to the Class A-1 Notes; and
(B) that person has a long term credit rating assigned
by each Rating Agency of at least the long term
credit rating assigned by that Rating Agency to CBA
as at the date of this Agreement or, otherwise, the
Standby Swap Provider provides its written consent
to the transfer.
(7) Termination:
(a) Termination by Trustee: Party B must not designate an Early
Termination Date without the prior written consent of the Class A-
1 Note Trustee.
(b) Termination by Class A-1 Note Trustee: If following an Event of
Default or Termination Event, Party B does not exercise its right
to terminate a Transaction, then the Class A-1 Note Trustee may
designate an Early Termination Date in relation to that
Transaction as if it were a party to this Agreement.
(c) Termination Payments by Party B: Notwithstanding Section 6(d)(ii),
any amount calculated as being due by Party B in respect of any
Early Termination Date under Section 6(e) will be payable on the
Distribution Date immediately following the date that such amount
would otherwise be payable under Section 6(d)(ii) (or will be
payable on that date if that date is a Distribution Date) except
to the extent that such amount may be satisfied from an earlier
distribution under the Security Trust Deed or the payment of an
upfront premium in respect of a Replacement Currency Swap in
accordance with Part 5(17)(b).
(d) Transfers to avoid Termination: Section 6(b)(ii) is amended as
follows:
(i) The following sentence is added at the end of the second
paragraph:
"However, if Party A is that other party it must, if so
requested by the Manager, use reasonable efforts (which
will not require Party A to incur a loss, excluding
immaterial, incidental expenses) to make such a transfer to
an Affiliate provided the Rating Agencies have given prior
written confirmation to the Manager that such a transfer
will not result in a reduction, qualification or withdrawal
of the credit ratings then assigned by them to the Class A-
1 Notes."
(ii) The third paragraph is deleted and replaced with the
following:
"Any such transfer by a party under this Section 6(b)(ii)
will be subject to and conditional upon the prior written
consent of the other party, which consent will not be
withheld:
(1) where the other party is Party A, if Party A's
policies in effect at such time would permit it to
enter into transactions with the transferee on the
terms proposed; or
(2) where the other party is Party B, if the Rating
Agencies have confirmed in writing that such
transfer will not result in a reduction,
qualification or withdrawal of the credit ratings
then assigned by them to the Class A-1 Notes.
(e) Notice of Event of Default. For the purposes of Section 6(a) and
(b):
<PAGE>
(i) Party A may only provide a notice specifying an Event of
Default to Party B as the Defaulting Party and may only
designate an Early Termination Date following a Termination
Event where Party A or Party B (or both) is the Affected
Party or the Burdened Party; and
(ii) the Standby Swap Provider may not issue a notice specifying
an Event of Default or designating an Early Termination
Date (except as Party A on or after the Novation Date).
(8) No Set-Off: Section 6(e) is amended by deleting the last sentence of the
first paragraph.
(9) Transfer: Section 7 is replaced with:
"7. Essential term: Transfer
(a) Neither the interests nor the obligations of any party in or under
this Agreement (including any Transaction) are capable of being
assigned or transferred (whether at law, in equity or otherwise),
charged or the subject of any trust (other than the Series Trust
or the trusts created pursuant to the Credit Support Document in
relation to Party B) or other fiduciary obligation. Any action by
a party which purports to do any of these things is void.
(b) Nothing in this Section 7:
(i) restricts a transfer by a party after the other parties
have agreed to the variation of this Agreement in
accordance with Part 5(20) to the extent necessary to
permit such transfer;
(ii) restricts a novation of the interests and obligations of a
party in or under this Agreement (including any
Transaction) for the purposes of giving effect to a
transfer under Section 6(b)(ii);
(iii) restricts a transfer by a party of all or any part of its
interest in any amount payable to it from a Defaulting
Party under Section 6(e);
(iv) restricts a transfer by Party B or the Manager to a
Substitute Trustee or Substitute Manager, respectively, in
accordance with the Master Trust Deed;
(v) restricts Party B from granting security over a Transaction
or this Agreement pursuant to any Credit Support Document
in relation to Party B; or
(vi) limits Parts 5(6)(b)(ii), 5(23), 5(24) or 5(25).
(c) Each party acknowledges that the other party enters into this
Agreement and each Transaction on the basis that this Section 7 must
be strictly observed and is essential to the terms of this Agreement
(including each Transaction)."
(10) Facsimile Transmission: In Section 12:
(a) delete Section 12(a)(ii); and
<PAGE>
(b) replace Section 12(a)(iii) with:
"(iii) if sent by facsimile transmission:
(A) in the case of any notice or other communication
pursuant to Parts 5(24) or (25), on the date that
transmission is received by a responsible employee
of the recipient in legible form (it being agreed
that the burden of proving receipt will be on the
sender and will not be met by a transmission report
generated by the sender's facsimile machine); or
(B) otherwise, on the date a transmission report is
produced by the machine from which the facsimile was
sent which indicates that the facsimile was sent in
its entirety to the facsimile number of the
recipient notified for the purpose of this Section
unless the recipient notifies the sender within one
Business Day of the facsimile being sent that the
facsimile was not received in its entirety in
legible form;".
(11) Definitions
In this Agreement, unless the contrary intention appears:
(a) Master Trust Deed, Class A-1 Note Conditions and Series
Supplement: subject to Part 5(11)(h), unless defined in this
Agreement words and phrases defined in the Master Trust Deed, the
Class A-1 Note Conditions and the Series Supplement have the same
meaning in this Agreement. Subject to Part 5(11)(h), where
there is any inconsistency in a definition between this Agreement
(on the one hand) and the Master Trust Deed, the Class A-1 Note
Conditions or the Series Supplement (on the other hand), this
Agreement prevails. Where there is any inconsistency in a
definition between the Master Trust Deed (on the one hand) and the
Series Supplement or the Class A-1 Note Conditions (on the other
hand), the Series Supplement or the Class A-1 Note Conditions, as
applicable, prevail over the Master Trust Deed in respect of the
Series Trust. Where there is an inconsistency in a definition
between the Class A-1 Note Conditions and the Series Supplement,
the Series Supplement prevails over the Class A-1 Note Conditions.
Where words or phrases used but not defined in this Agreement are
defined in the Master Trust Deed in relation to a Series Trust (as
defined in the Master Trust Deed) and/or an Other Trust such words
or phrases are to be construed in this Agreement, where necessary,
as being used only in relation to the Series Trust (as defined in
the Series Supplement) and/or the CBA Trust, as the context
requires;
(b) Trustee Capacity:
(i) a reference to Party B is a reference to Party B in its
capacity as trustee of the Series Trust only, and in no
other capacity; and
(ii) a reference to the undertaking, assets, business or money
of Party B is a reference to the undertaking, assets,
business or money of Party B in the capacity referred to in
paragraph 11(b)(i) only;
(c) Definitions: in Section 14:
(i) replace the definitions of "Affected Transactions" and
"Local Business Day" with the following:
""Affected Transactions" means, with respect to a
Termination Event, all Transactions."
""Local Business Day" has the same meaning as "Business
Day"."
<PAGE>
(ii) insert the following new definitions:
"A$ Class A-1 Unpaid InterestPayment" means in relation to
a Distribution Date the amount available to be allocated
towards payment to Party A in respect of A$ Class A-1
Unpaid Interest Amounts on that Distribution Date in
accordance with clause 10.2(k)(i) of the Series
Supplement determined on the basis that all amounts
allocated towards payment of A$ Class A-1 Interest Amounts
and A$ Class A-1 Unpaid Interest Amounts pursuant to clause
10.2(k)(i) of the Series Supplement are allocated first
towards payment of A$ Class A-1 Interest Amounts and then,
once the A$ Class A-1 Interest Amounts are paid in full,
towards payment of A$ Class A-1 Unpaid Interest Amounts.
"BBSW" or "AUD-BBR-BBSW" in relation to a Calculation
Period means the rate appearing at approximately 10.00 am
Sydney time on the Reset Date for that Calculation Period
on the Reuters Screen page "BBSW" as being the average of
the mean buying and selling rates appearing on that page
for a bill of exchange having a tenor of three months .
If:
(a) on that Reset Date fewer than 4 banks are quoted on
the Reuters Screen page "BBSW"; or
(b) for any other reason the rate for that day cannot be
determined in accordance with the foregoing
procedures,
then "BBSW" or "AUD-BBR-BBSW" means such rate as is
specified by the Calculation Agent having regard to
comparable indices then available.
"Class A-1 Currency Swap" means the Transaction entered
into between Party A, Party B, the Standby Swap Provider
and the Manager on the terms specified in the Confirmation
set out in Annexure 1 (or as otherwise agreed between Party
A, Party B, the Standby Swap Provider and the Manager).
"Commission" has the same meaning as in the Class A-1 Note
Trust Deed.
"Credit Support Annex" means the Credit Support Annex
annexed to this Agreement.
"Determination Time" in relation to a Distribution Date
means on or about 11.00am Sydney time 1 Business Day prior
to that Distribution Date.
"Inconvertibility Event" means any event beyond the control
of CBA that makes it impossible for CBA to convert to U.S.
Dollars through customary legal channels an amount of
Australian Dollars sufficient to fulfil CBA's obligations
under this Agreement and the Class A-1 Currency Swap.
"Joint Ratings" means the highest possible jointly
supported short term credit rating or long term credit
rating, as applicable, that can be determined in relation
to Party A and the Standby Swap Provider by Moody's, S&P
and Fitch IBCA in accordance with Moody's, S&P's and Fitch
IBCA's respective approaches to jointly supported
obligations provided that if either Party A or the Standby
Swap Provider has a long term credit rating of less than
BBB from S&P the Joint Ratings from S&P will be the credit
ratings of the other party.
<PAGE>
"Master Trust Deed" means the Master Trust Deed dated 8
October 1997 between Party B and the Manager, as amended
from time to time.
"Novation Date" means the date upon which the obligations
of CBA as Party A under this Agreement and the Class A-1
Currency Swap are novated to the Standby Swap Provider
pursuant to Part 5(25)(c).
"Prescribed Rating Period" means in relation to the Joint
Ratings determined by the Rating Agencies:
(a) a period of 30 Business Days from the date of
determination of the relevant credit rating where
any Joint Rating immediately after that
determination is less than the relevant Prescribed
Rating but greater than or equal to a short term
credit rating of A-1 by S&P and long term credit
ratings of A- by S&P, A3 by Moody's and A- by Fitch
IBCA, as the case may be; and
(b) a period of 5 Business Days from the date of
determination of the relevant credit rating where
any Joint Rating immediately after that
determination is less than a short term credit
rating of A-1 by S&P or less than a long term credit
rating of A- by S&P, A3 by Moody's and A- by Fitch
IBCA.
"Prescribed Ratings" means a short term credit rating of
A1+ by S&P or a long term credit rating of AA- by S&P and
long term credit ratings of AA- by Fitch IBCA and A2 by
Moody's.
"Series Supplement" means the Series Supplement dated on or
about the date of this Agreement between CBA, Party B and
the Manager.
"Series Trust" means the Series 2000-1G Medallion Trust
constituted by the Master Trust Deed and the Series
Supplement.
(d) Interpretation:
(i) references to time are references to Sydney time;
(ii) a reference to "wilful default" in relation to Party B
means, subject to Part 5(11)(d)(iii) of this Schedule, any
wilful failure by Party B to comply with, or wilful breach
by Party B of, any of its obligations under any Transaction
Document, other than a failure or breach which:
A. (1) arises as a result of a breach of a Transaction
Document by a person other than:
(a) Party B; or
(b) any other person referred to in Part
5(11)(d)(iii) of this Schedule; and
(2) the performance of the action (the non-
performance of which gave rise to such breach) is
a precondition to Party B performing the said
obligation;
B. is in accordance with a lawful court order or
direction or required by law; or
C. is in accordance with any proper instruction or
direction of the Investors given at a meeting
convened under the Master
<PAGE>
Trust Deed;
(iii) a reference to the "fraud", "negligence" or "wilful
default" of Party B means the fraud, negligence or wilful
default of Party B and of its officers, employees, agents
and any other person where Party B is liable for the acts
or omissions of such other person under the terms of any
Transaction Document;
(iv) a reference to "neither party" will be construed as a
reference to "no party";
(v) a reference to "other party" will be construed as a
reference to "other parties"; and
(vi) a reference to a credit rating of Party A, where Party A is
MLCS, means the higher of the relevant credit ratings of
MLCS and M L & Co.
(e) ISDA Definitions: The 1991 ISDA Definitions (as published by the
International Swaps and Derivatives Association, Inc ("ISDA")), as
supplemented by the 1998 Supplement to the 1991 ISDA Definitions
(as published by ISDA) (the "1991 ISDA Definitions") as at the
date of this Agreement are incorporated into this Agreement and
each Confirmation.
(f) Inconsistency: Subject to Part 5(11)(a), unless specified
otherwise, in the event of any inconsistency between any two or
more of the following documents in respect of a Transaction they
will take precedence over each other in the following order in
respect of that Transaction:
(i) any Confirmation;
(ii) this Schedule and Section 13 ("Elections and Variables") of
the Credit Support Annex (as applicable);
(iii) the 1991 ISDA Definitions; and
(iv) the printed form of the 1992 ISDA Master Agreement and the
printed form of the ISDA Credit Support Annex which form
part of this Agreement.
(g) Swap Transaction: Any reference to a:
(i) "Swap Transaction" in the 1991 ISDA Definitions is deemed
to be a reference to a "Transaction" for the purpose of
interpreting this Agreement or any Confirmation; and
(ii) "Transaction" in this Agreement or any Confirmation is
deemed to be a reference to a "Swap Transaction" for the
purpose of interpreting the 1991 ISDA Definitions.
(h) Incorporated Definitions and other Transaction Documents and
provisions: Where in this Agreement a word or expression is
defined by reference to its meaning in another Transaction
Document or there is a reference to another Transaction Document
or to a provision of another Transaction Document, any amendment
to the meaning of that word or expression or to that other
Transaction Document or provision (as the case may be) will be of
no effect for the purposes of this Agreement unless and until the
amendment is consented to by the parties to this Agreement.
(12) Limitation of Liability: Insert the following Section 15, after Section
14:
"15. Party B's Limitation of Liability
(a) (Limitation on Party B's liability): Party B enters into
this Agreement only in its capacity as trustee of the
Series Trust and in no
<PAGE>
other capacity. A liability incurred by Party B acting in
its capacity as trustee of the Series Trust arising under
or in connection with this Agreement is limited to and can
be enforced against Party B only to the extent to which it
can be satisfied out of the Assets of the Series Trust out
of which Party B is actually indemnified for the liability.
This limitation of Party B's liability applies despite any
other provision of this Agreement (other than Section
15(c)) and extends to all liabilities and obligations of
Party B in any way connected with any representation,
warranty, conduct, omission, agreement or transaction
related to this Agreement.
(b) (Claims against Party B): The parties other than Party B
may not sue Party B in respect of liabilities incurred by
Party B acting in its capacity as trustee of the Series
Trust in any other capacity other than as trustee of the
Series Trust, including seeking the appointment of a
receiver (except in relation to Assets of the Series
Trust), or a liquidator, or an administrator, or any
similar person to Party B or prove in any liquidation,
administration or similar arrangements of or affecting
Party B (except in relation to the Assets of the Series
Trust).
(c) (Breach of trust): The provisions of this Section 15 will
not apply to any obligation or liability of Party B to the
extent that it is not satisfied because under the Master
Trust Deed, the Series Supplement or any other Transaction
Document or by operation of law there is a reduction in the
extent of Party B's indemnification out of the Assets of
the Series Trust, as a result of Party B's fraud,
negligence or wilful default.
(d) (Acts or omissions): It is acknowledged that the Relevant
Parties are responsible under the Transaction Documents for
performing a variety of obligations relating to the Series
Trust. No act or omission of Party B (including any
related failure to satisfy its obligations or any breach of
representation or warranty under this Agreement) will be
considered fraudulent, negligent or a wilful default of
Party B for the purpose of paragraph (c) of this Section 15
to the extent to which the act or omission was caused or
contributed to by any failure by any Relevant Person or any
other person appointed by Party B under a Transaction
Document (other than a person whose acts or omissions Party
B is liable for in accordance with any Transaction
Document) to fulfil its obligations relating to the Series
Trust or by any other act or omission of the Manager or the
Servicer or any other such person.
(e) (No obligation):
(i) (Obligations under this Agreement or any Transaction
Document): Party B is not obliged to enter into any
commitment or obligation under this Agreement or any
Transaction Document unless Party B's liability is
limited in a manner which is consistent with this
Section 15. For the avoidance of doubt, Party B
agrees and acknowledges that its liability for any
commitment or obligation it has entered into under
this Agreement is limited in a manner which is
consistent with this Section 15.
(ii) (Obligations not contained in this Agreement or any
Transaction Document): Party B is not obliged to
enter into any commitment or obligation contemplated
by but not contained in this Agreement or any
Transaction Document unless Party B's liability in
relation to that commitment or obligation is limited
in a manner satisfactory to Party B in its absolute
discretion."
<PAGE>
(13) Further Assurances: Each party will, upon request by the other party (the
"requesting party") at the expense of the requesting party, perform all
such acts and execute all such agreements, assurances and other documents
and instruments as the requesting party reasonably requires (and, in the
case of Party B, are within the powers granted to Party B under the
Master Trust Deed) to assure and confirm the rights and powers afforded,
created or intended to be afforded or created, under or in relation to
this Agreement and each Transaction or other dealing which occurs under
or is contemplated by it.
(14) Procedures for Entering into Transactions
(a) With respect to each Transaction entered into pursuant to this
Agreement and for the purposes of Section 9(e)(ii), Party A will,
by or promptly after the relevant Trade Date, send Party B and the
Manager a Confirmation substantially in the form set out in
Annexure 1 (or in such other form as may be agreed between Party
A, Party B and the Manager), and Party B and the Manager must
promptly then confirm the accuracy of and sign and return, or
request the correction of, such Confirmation; and
(b) Party B will enter into each Transaction in its capacity as
trustee of the Series Trust.
(15) Authorised Officer: Each party will be entitled to assume, in the
absence of any knowledge to the contrary, that any Confirmation, notice
or other written communication, which is issued in respect of this
Agreement and which is purported to be signed on behalf of another party
by a person specified in the certificate provided by that other party
under Part 3(b), is authorised by that other party.
(16) Recorded Conversations: Each party:
(a) consents to the electronic recording of its telephone
conversations with the other party (or any of its associated
persons) with or without the use of an automatic tone warning
device;
(b) will provide transcripts of such recordings (if any) upon
reasonable request by the other party (at the reasonable cost of
the party requesting); and
(c) acknowledges that neither is obligated to maintain copies of such
recordings and transcripts for the benefit of the other party.
(17) Replacement Currency Swap Agreement:
(a) If any Transaction under this Agreement is terminated prior to the
day upon which the Class A-1 Notes are redeemed in full, Party B
may, at the direction of the Manager, enter into one or more
currency swaps which replace that Transaction (collectively a
"Replacement Currency Swap") provided that:
(i) the Rating Agencies confirm in writing that the entry into
the Replacement Currency Swap by Party B does not result in
a reduction, qualification or withdrawal of the credit
ratings then assigned by them to the Class A-1 Notes; and
(ii) the liability of Party B under the Replacement Currency
Swap is limited to at least the same extent that its
liability is limited under that Transaction.
(b) If Party B enters into a Replacement Currency Swap pursuant to
paragraph (a) and a Settlement Amount is payable by Party B to
Party A upon termination of the Transaction referred to in Part
5(17)(a), Party B must direct the Replacement Currency Swap
provider to pay any upfront premium to enter into the Replacement
Currency Swap due to Party B directly to Party A in satisfaction
of and to the extent of Party B's obligation to pay the Settlement
Amount to Party A, and to the extent such premium is not greater
than or equal to the Settlement
<PAGE>
Amount, the balance may be satisfied by Party B as an Expense.
(c) If Party B enters into a Replacement Currency Swap pursuant to
paragraph (a) and a Settlement Amount is payable by Party A to
Party B upon termination of the Transaction referred to in Part
5(17)(a), Party B may direct Party A to pay that amount to the
Replacement Currency Swap provider in satisfaction of or towards
and to the extent of Party B's obligation (if any) to pay an
upfront premium to the Replacement Currency Swap provider to enter
into the Replacement Currency Swap.
(d) The obligations of Party B (and the rights of Party A) under this
Part 5(17) will survive the termination of this Agreement.
(18) Knowledge or Awareness: Subject to Section 12(a), each party will only
be considered to have knowledge or awareness of, or notice of, a thing or
grounds to believe anything by virtue of the officers of that party or
any Related Body Corporate of that party which have the day to day
responsibility for the administration or management of that party's (or a
Related Body Corporate of that party's) obligations in relation to the
Series Trust or the Transactions entered into under this Agreement having
actual knowledge, actual awareness or actual notice of that thing, or
grounds or reason to believe that thing (and similar references will be
interpreted in this way).
(19) Restrictions on Party B's Rights: Party B must at all times act in
accordance with the instructions of the Manager in relation to this
Agreement.
(20) Amendment to this Agreement: None of Party A, Party B, the Standby Swap
Provider or the Manager may amend this Agreement unless the Rating
Agencies have confirmed in writing that the proposed amendment will not
result in a reduction, qualification or withdrawal of the credit ratings
then assigned by them to the Class A-1 Notes.
(21) Appointment of Manager: Party B hereby exclusively appoints the Manager
as its attorney to act on Party B's behalf and exercise all rights and
powers of Party B with respect to this Agreement. Without limiting the
generality of the foregoing, the Manager may issue and receive on behalf
of Party B all notices, certificates and other communications to or by
Party A under this Agreement until such time as Party B serves written
notice on Party A of the revocation of the Manager's authority to act on
behalf of Party B in accordance with this Part 5(21) of the Schedule.
(22) Notifications to Party A: On or before the Determination Time in respect
of each Distribution Date the Manager must notify Party A and the Standby
Swap Provider in writing of:
(a) (A$ Class A-1 Principal Amount): the A$ Class A-1 Principal Amount
which the Manager has directed Party B to pay to Party A on that
Distribution Date pursuant to clause 10.5(b)(i) of the Series
Supplement;
(b) (A$ Class A-1 Interest Payment): the A$ Class A-1 Interest Payment
in relation to that Distribution Date;
(c) (Principal Charge-off): the amounts (if any) allocated to the
Class A-1 Notes in respect of any Principal Charge-off or
Principal Charge-off Reimbursement on the immediately preceding
Determination Date in accordance with Conditions 7.9 and 7.10
of the Class A-1 Note Conditions; and
(d) (A$ Class A-1 Unpaid Interest Payment): the A$ Class A-1 Unpaid
Interest Payment (if any) in relation to that Distribution Date.
(23) Ratings Downgrade:
(a) (Downgrade): If, as a result of the reduction or withdrawal of the
credit rating of Party A or the Standby Swap Provider a Joint
Rating is less than the relevant Prescribed Rating, Party A must
by the expiry of the Prescribed Rating Period in
<PAGE>
relation to the credit ratings assigned by the Rating Agencies to
Party A and the Standby Swap Provider at that time (or such
greater period as is agreed to in writing by each relevant Rating
Agency), at its cost alone and at its election:67
(i) provided that the short term Joint Rating by S&P is greater
than or equal to A-1 or the long term Joint Rating by S&P
is greater than or equal to A- and the long term Joint
Rating by Fitch IBCA is greater than or equal to A-, lodge
collateral in accordance with the Credit Support Annex in
an amount equal to the Collateral Amount as defined in Part
5(23)(b); or
(ii) enter into, and procure that the Standby Swap Provider
enters into, an agreement novating Party A's and/or the
Standby Swap Providers' rights and obligations under this
Agreement and the Class A-1 Currency Swap to a replacement
counterparty acceptable to the Manager and the Standby Swap
Provider and which the Rating Agencies confirm in writing
will not result in a reduction, qualification or withdrawal
of the credit ratings then assigned by them to the Class A-
1 Notes; or
(iii) enter into, or procure that the Standby Swap Provider
enters into, such other arrangements in respect of the
Class A-1 Currency Swap which the Rating Agencies confirm
in writing will not result in a reduction, qualification or
withdrawal of the credit ratings then assigned by them to
the Class A-1 Notes.
Notwithstanding that Party A has elected to satisfy its
obligations pursuant to this Part 5(23)(a) in a particular manner,
it may subsequently and from time to time vary the manner in which
it satisfies its obligations pursuant to this Part 5(23)(a) (but
will not be entitled to any additional grace period in relation to
such a variation).
(b) (Collateral Amount): For the purpose of this Part 5(23) the
Collateral Amount will be an amount equal to the greater of the
following:
(i) zero;
(ii) CCR; and
(iii) an amount acceptable to Moody's and Fitch IBCA and
sufficient to maintain the credit rating assigned to the
Class A-1 Notes by Moody's and Fitch IBCA immediately prior
to the review of the Joint Rating.
Where:
CCR = CR x 1.030
CR = MTM + VB
MTM means the mark-to-market value (whether positive or negative)
of the Class A-1 Currency Swap determined in accordance with
Part 5(23)(c) no earlier than 3 Business Days prior to the date
that the Collateral Amount is lodged.
VB means the volatility buffer, being the value calculated by
multiplying the Calculation Amount specified in paragraph 5.1
of the Class A-1 Currency Swap as at the most recent Distribution
Date by the relevant percentage obtained from the following table:
21.
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------
Party A's and Where the period Where the period Where the period
the Standby between the date of between the date between the date of
Swap recalculation and the of recalculation recalculation and the
Provider's Scheduled Maturity and the Scheduled Scheduled Maturity
jointly Date is less than or Maturity Date is Date is greater than
supported equal to 5 years greater than 5 10 years
long term years and less
credit rating than or equal to 10
by S&P years
------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
A+ 1.05 1.75 3.0
------------------------------------------------------------------------------------------------
A 1.35 2.45 4.5
------------------------------------------------------------------------------------------------
A- 1.5 3.15 6
------------------------------------------------------------------------------------------------
</TABLE>
(c) (Mark to Market Value): Party A must calculate the mark-to-market
value of the Class A-1 Currency Swap by obtaining 2 bids from
counterparties with the Prescribed Ratings willing to provide the
Class A-1 Currency Swap in the absence of Party A. The mark-to-
market value may be a positive or a negative amount. A bid has a
negative value if the payment to be made is from the counterparty
to Party A and has a positive value if the payment to be made is
from Party A to the counterparty. The mark-to-market value is the
higher of the bids (on the basis that any bid of a positive value
is higher than any bid of a negative value).
(d) (Recalculation): Party A must recalculate the Collateral Amount
(including the CCR and the mark-to-market value) on each Valuation
Date. If:
(i) the Value on such Valuation Date of all Posted Credit
Support held by the Secured Party is less than the
recalculated Collateral Amount, the difference is the
Delivery Amount in relation to that Valuation Date; or
(ii) the Value on such Valuation Date of all Posted Credit
Support held by the Secured Party is greater than the
recalculated Collateral Amount, the difference is the
Return Amount in relation to that Valuation Date.
(f) (Definitions): For the purposes of this Part 5(23) "Delivery
Amount", "Posted Credit Support", "Secured Party", "Value" and
"Valuation Date" have the same meaning as in the Credit Support
Annex.
(24) Transfer: Notwithstanding the provisions of Section 7, MLCS as Standby
Swap Provider or (on and from the Novation Date) as Party A may transfer
all its rights powers and privileges and all its unperformed and future
obligations under this Agreement and the Class A-1 Currency Swap to any
subsidiary of ML & Co ("Transferee") by delivering to Party B, the
Manager and (where given prior to the Novation Date) CBA as Party A a
notice expressed to be given under this provision signed by both MLCS as
Standby Swap Provider or as Party A, as applicable, and the Transferee
and an executed guarantee of the Transferee's transferred obligations in
the form of Annexure 2. Upon delivery of those documents to Party B:
(a) (Party A's rights terminate): MLCS's rights powers privileges and
obligations as Standby Swap Provider or as Party A,as applicable,
under this Agreement and the Class A-1 Currency Swap terminate;
(b) (Transfer and Assumption): MLCS will be taken to have transferred
its rights powers and privileges under this Agreement and the
Class A-1 Currency Swap to the Transferee and the Transferee will
be taken to have assumed obligations equivalent to those of the
Standby Swap Provider or Party A,as applicable, had under this
Agreement and the Class A-1 Currency Swap;
(c) (Release): Party B will be taken to have released MLCS as Standby
Swap Provider or as Party A, as applicable, from all its
unperformed and future obligations under this Agreement and the
Class A-1 Currency Swap; and
(d) (Documents): this Agreement and the Confirmation relating to the
Class A-1
22.
<PAGE>
Currency Swap shall be construed as if the Transferee was a party
to it in place of MLCS.
A Transferee may utilise this provision as Standby Swap Provider or Party
A, as applicable. A transfer under this Part 5(24) will be of no force
or effect until each Rating Agency confirms in writing that such transfer
will not result in a reduction, qualification or withdrawal of the credit
ratings then assigned by them to the Class A-1 Notes.
(25) Standby Swap Provider:
(a) (Commitment): Notwithstanding any other provision in this
Agreement to the contrary, if CBA as Party A fails to:
(i) make, when due, any payment required to be made by it to
Party B under the Class A-1 Currency Swap; or
(ii) comply with any obligation under Part 5(23) within the
required period,
then:
(iii) as soon as practicable following such failure but, in
relation to a failure to pay under the Class A-1 Currency
Swap, in any event no later than 11.00 am (New York time)
on the due date for such payment or, in relation to a
failure to comply with an obligation under Part 5(23),
no later than the Business Day following the due date for
compliance with such obligation, Party B must notify CBA as
Party A and the Standby Swap Provider in writing of such
failure and:
(A) the amount of the defaulted payment and the basis of
calculation of the defaulted payment; or
(B) details of the failure to comply with the obligation
under Part 5(23),
as the case may be; and
(iv) as soon as reasonably practicable after its receipt of such
notice (and in any event, in relation to a failure to pay
under the Class A-1 Currency Swap, no later than 2.00 pm
(New York time) on the due date for such payment, and, in
relation to a failure to comply with an obligation under
Part 5(23), no later than 3 Business Days after the
failure to comply with such obligation, provided, in each
case, that notice has been given by Party B by the required
times in accordance with Part 5(25)(a)(iii)) the Standby
Swap Provider must:
(A) in relation to a failure to pay under the Class A-1
Currency Swap, pay to Party B the amount then owing
by CBA as Party A to Party B under the Class A-1
Currency Swap by depositing such amount into the
Collections Account in cleared funds; and
(B) in relation to a failure to comply with an obligation
under Part 5(23), satisfy the obligations of CBA
as Party A under Part 5(23).
(b) (Reimbursement): If on any day the Standby Swap Provider:
(i) makes a payment pursuant to Part 5(25)(a)(iv)(A),
CBA as Party A must by 2.00 pm (New York time) on the
next following Business Day (or such other time as
the Standby Swap Provider may agree in writing) pay
to the Standby Swap Provider an amount equal to that
payment by
23.
<PAGE>
depositing such amount into the account which the
Standby Swap Provider nominates for this purpose in
cleared funds; or
(ii) satisfies the obligations of CBA as Party A pursuant
to Part 5(25)(a)(iv)(B), CBA as Party A must:
(A) within 3 Business Days, fulfil its obligations
under Part 5(23) such that any collateral
lodged by the Standby Swap Provider pursuant to
Part 5(23)(a)(i) or any other arrangement made
by the Standby Swap Provider pursuant to Part
5(23)(a)(iii) may be returned to the Standby
Swap Provider or will cease (but CBA as Party A
will have no obligations to the Standby Swap
Provider under this Part 5(25)(b)(ii)(A) in
relation to any novation pursuant to Part
5(23)(a)(ii)); and
(B) upon demand by the Standby Swap Provider,
indemnify the Standby Swap Provider from and
against any cost or liability incurred by the
Standby Swap Provider in satisfying those
obligations.
(c) (Novation): If:
(i) CBA as Party A defaults in its payment obligations
under Part 5(25)(b)(i) for reasons other than
solely a technical, computer or similar error outside
the control of Party A and such default is not
remedied on or before one Business Day after such
failure; or
(ii) CBA as Party A fails to fulfil its obligations under
Part 5(25)(b)(ii); or
(iii) prior to the Novation Date (as that term is defined
in the MLCS Currency Swap Agreement an
Inconvertibility Event occurs in respect of which
CBA, as Party A, gives written notice to the Standby
Swap Provider, Party B and the Manager prior to the
Novation Date as that term is defined in this
agreement,
then:
(iv) CBA's rights, powers, privileges and obligations as
Party A under this Agreement and the Class A-1
Currency Swap terminate other than its rights,
powers, privileges and obligations pursuant to Part
5(25)(d) and Paragraph 13(m)(vii) of the Credit
Support Annex;
(v) subject to Part 5(25)(c)(vii), CBA will be taken to
have transferred its rights powers and privileges as
Party A under this Agreement and the Class A-1
Currency Swap to the Standby Swap Provider and the
Standby Swap Provider will be taken to have assumed
obligations equivalent to those that CBA as Party A
had under this Agreement and the Class A-1 Currency
Swap;
(vi) Party B and the Standby Swap Provider will be taken
to have released CBA as Party A from all its
unperformed and future obligations under this
Agreement and the Class A-1 Currency Swap other than
its present and future obligations pursuant to Part
5(25)(d);
(vii) this Agreement and the Confirmation relating to the
Class A-1 Currency Swap shall be construed as if the
Standby Swap Provider was a party to it in place of
Party A except that:
24.
<PAGE>
(A) references to "CBA as Party A" will not apply to
the Standby Swap Provider as Party A;
(B) references to any jointly supported credit rating
of Party A and the Standby Swap Provider will be
deemed to be references to the relevant credit
rating of the Standby Swap Provider;
(C) without limiting Part 5(25)(c)(vii)(A), this
Part 5(25) and Paragraph 13(m)(vii) of the
Credit Support Annex will not apply to the
Standby Swap Provider as Party A;
(D) the Standby Swap Provider must (if it has not
already done so) satisfy the obligations of Party
A under Part 5(23)(a) within 10 Business Days
of the Novation Date on the basis that any
collateral lodged by CBA as Party A or any other
arrangements made by CBA as Party A pursuant to
Part 5(23)(a)(iii) will be returned to CBA as
Party A or will cease (but such collateral will
only be returned and such arrangements will only
cease upon compliance by the Standby Swap
Provider with its obligations under this Part
5(25)(c)(vii)(D) and otherwise, where
applicable, in accordance with Paragraph
13(m)(vii) of the Credit Support Annex or the
terms of such arrangements).
(d) (Termination Payment): Following novation under Part
5(25)(c) CBA as Party A must pay the Standby Swap
Provider or the Standby Swap Provider must pay CBA as Party
A an amount (the "Novation Settlement Amount") being:
(i) in the case of payment by CBA as Party A to the
Standby Swap Provider, an amount equal to the amount
(if any) that would be payable by Party A to Party B;
and
(ii) in the case of payment by the Standby Swap Provider
to CBA as Party A, an amount equal to the amount (if
any) that would be payable by Party B to Party A,
if the Class A-1 Currency Swap had been terminated,
calculated and payable in accordance with Sections 6(d) and
(e) on the basis that:
(i) the Novation Date is the Early Termination Date
(ii) in the case of:
(A) novation following an Inconvertibility Event
(whether or not a failure referred to in Part
5(25)(a) has also occurred), the Early
Termination Date has resulted from a Termination
Event and there are two Affected Parties;
(B) otherwise, the Early Termination Date has
resulted from an Event of Default in respect of
which Party A is the Defaulting Party;
(iii) all calculations and determinations which would have
been done by Party B are done by the Standby Swap
Provider and all calculations and determination that
would have been done by Party A are done by CBA;
(iv) a reference to Unpaid Amounts owing to Party B is a
reference to such amounts payable by Party A to the
Standby Swap Provider pursuant to Part 5(23)(b)
and (e) and there are no Unpaid Amounts owing to
Party A;
25.
<PAGE>
(v) without limiting the foregoing, for the purposes of
the definition of "Market Quotation" in Section 14
each Reference Market-maker would be required, upon
entering into a Replacement Transaction, to fulfil
the obligations of Party A under Part 5(23)(a) and
to comply with Section 2(d) as amended by Part
(5)(1)(e); and
(vi) the Termination Currency is U.S. Dollars.
(e) (Default Interest): If CBA as Party A defaults in the
performance of any payment obligations under Part
5(25)(b) or Part 5(25)(d), it must pay interest
(before as well as after judgment) on the overdue amount to
the Standby Swap Provider on demand in the same currency as
such overdue amount, for the period from (and including)
the original due date for payment to (but excluding) the
date of actual payment, at the Default Rate. Such interest
will be calculated on the basis of daily compounding and
the actual number of days elapsed.
26.
<PAGE>
ANNEXURE 1
FORM OF CONFIRMATION FOR CLASS A-1 CURRENCY SWAP
SERIES 2000-1G MEDALLION TRUST
[Letterhead of Party A]
[DATE]
To: Perpetual Trustee Company Limited Securitisation Advisory Services Pty.
as trustee of the Series Trust Limited
Level 3 Level 8
39 Hunter Street 48 Martin Place
Sydney NSW 2000 Sydney NSW 2000
AUSTRALIA AUSTRALIA
Attention: Manager, Securitisation Attention: Manager, Securitisation
Services
Merrill Lynch Capital Services Inc.
Merrill Lynch World Headquarters
World Financial Center, North Tower
22nd Floor
250 Vesey Street
New York, New York 10281-1322
U.S.A.
Attention: Swap Group
CONFIRMATION - CLASS A-1 CURRENCY SWAP
The purpose of this letter is to confirm the terms and conditions of the
Transaction entered into between us on the terms specified below (the
"Transaction"). This letter constitutes a "Confirmation" as referred to in the
Master Agreement specified below.
This Confirmation supplements, forms part of, and is subject to, the 1992 ISDA
Master Agreement dated as of [ ], as amended, novated or
supplemented from time to time (the "Agreement"), between Commonwealth Bank of
Australia, ACN 123 123 124 ("Party A"), Perpetual Trustee Company Limited, ACN
000 001 007 as trustee of the Series Trust ("Party B"), Securitisation Advisory
Services Pty. Limited, ACN 064 133 946 (the "Manager") and Merrill Lynch Capital
Services Inc. (the "Standby Swap Provider"). All provisions contained in the
Agreement govern this Confirmation except as expressly modified below.
The terms of the particular Transaction to which this Confirmation relates are
specified below:
1. Our Reference: [ ]
2. Trade Date: [ ]
3. Effective Date: Issue Date in respect of the Class A-1
Notes
4. Termination Date: The earlier of:
(a) the date that the Class A-1 Notes
have been redeemed in full in
accordance with the Class A-1 Note
Conditions; and
(b) the Scheduled Maturity Date,
27.
<PAGE>
5. Floating Amounts
5.1 Floating Amounts Payable by
Party A (subject to Paragraph 9
of this Confirmation):
Floating Rate Payer: Party A
Calculation Amount: For each Floating Rate Payer Payment
Date, one half of the aggregate Invested
Amount of the Class A-1 Notes as at the
first day of the Calculation Period
ending on but excluding that Floating
Rate Payer Payment Date
Floating Rate Payer Payment Each Distribution Date during the period
Dates: commencing on and including [_] and
ending on and including the Termination
Date, subject to adjustment in
accordance with the Following Business
Day Convention
Floating Rate Option: USD-LIBOR-BBA (except that references to
"London Banking Days" in section
7.1(ag)(ii) and (iv) of the 1998
Supplement to the 1991 ISDA Definitions
will be replaced with references to
"Banking Days" as that expression is
defined in the Class A-1 Note
Conditions)
Designated Maturity: Three months (except that Linear
Interpolation using [_] and [_] months
will apply in respect of the first
Calculation Period)
Spread: In respect of:
(a) Floating Rate Payer Payment Dates
on or prior to [_] (or if that
day is not a Business Day, the next
following Business Day), [
]; and
(b) Floating Rate Payer Payment Dates
after [_] (or if that day is not
a Business Day, the next following
Business Day), [ ].
Floating Rate Day Count Actual/360
Fraction:
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable
Class A-1 Unpaid Coupon On each Floating Rate Payer Payment
Amount Date, Party A will pay to Party B an
amount calculated as follows:
LIBOR
$USUC=$AUCx-----x$USExchange
BBSW
where:
$US UC = the amount to be paid by
Party A;
$A UC = the A$ Class A-1 Unpaid
Interest Payment in relation
to the Distribution Date
which is the same day as that
Floating Rate Payer Payment
Date;
LIBOR = the Floating Rate Option
under this paragraph 5.1 in
respect of the Reset Date
which is the same day as that
Floating Rate Payer Payment
Date;
28.
<PAGE>
BBSW = the Floating Rate Option
under paragraph 5.2 in
respect of the Reset Date
which is the same day as that
Floating Rate Payer Payment
Date.
5.2 Floating Amounts Payable by
Party B (subject to paragraph 9
of this Confirmation):
Floating Rate Payer: Party B
Calculation Amount: For each Floating Rate Payer Payment
Date, the A$ Equivalent of one half of
the aggregate Invested Amount of the
Class A-1 Notes as at the first day of
the Calculation Period ending on but
excluding that Floating Rate Payer
Payment Date
Floating Rate Payer Payment Each Distribution Date during the
Dates: period commencing on and including [_]
and ending on and including the
Termination Date, subject to adjustment
in accordance with the Following
Business Day Convention
Floating Rate Option: AUD-BBR-BBSW
Designated Maturity: Three months (except that Linear
Interpolation using [_] and [_] months
will apply in respect of the first
Calculation Period)
Spread: In respect of:
(a) Floating Rate Payer Payment Dates
on or prior to [_] (or if that
day is not a Business Day, the next
following Business Day), [
]; and
(b) Floating Rate Payer Payment Dates
after [_] (or if that day is not
a Business Day, the next following
Business Day), [
].
Floating Rate Day Count Actual/365 (Fixed)
Fraction:
Reset Dates The first day of each Calculation Period
Compounding: Inapplicable
A$ Class A-1 Unpaid Interest On each Floating Rate Payer Payment Date
Amount Party B will pay to Party A the A$ Class
A-1 Unpaid Interest Payment in relation
to the Distribution Date which is the
same day as that Floating Rate Payer
Payment Date.
6. Exchanges
6.1 Initial Exchange:
Initial Exchange Date: Issue Date
Party A Initial Exchange Amount: The A$ Equivalent of the Party B Initial
Exchange Amount, being A$[ ]
Party B Initial Exchange Amount: One half of the Initial Invested Amount
of the Class A-1 Notes on the Issue
Date, being US$[
]
29.
<PAGE>
Notwithstanding Section 2(a)(ii) of the
Agreement, Party A must pay the Party A
Initial Exchange Amount to Party B by
4.00pm (Sydney time) on the Initial
Exchange Date and Party B must pay Party
A the Party B Initial Exchange Amount by
4.00pm (New York time) on the Initial
Exchange Date.
6.2 Instalment Exchange:
Instalment Exchange Date: Each Distribution Date (other than the
Final Exchange Date)
Party A Instalment Exchange In respect of an Instalment
Amount: Exchange Date means the US$
Equivalent of one half of the A$
Class A-1 Principal Amount in
relation to the Distribution Date
occurring on that Instalment
Exchange Date
Party B Instalment Exchange In respect of an Instalment Exchange
Amount: Date means one half of the A$ Class A-1
Principal Amount in relation to the
Distribution Date occurring on that
Instalment Exchange Date
6.3 Final Exchange:
Final Exchange Date: Termination Date
Party A Final Exchange Amount: The US$ Equivalent of one half of the A$
Class A-1 Principal Amount in relation
to the Distribution Date which is the
Final Exchange Date
Party B Final Exchange Amount: One half of the A$ Class A-1 Principal
Amount in relation to the Distribution
Date which is the Final Exchange Date
7. Exchange Rates:
For the purpose of the
definitions of "A$ Equivalent"
and "US$ Equivalent":
US$ Exchange Rate: [ ]
A$ Exchange Rate: [ ]
8. Account Details:
8.1 Payments to Party A
Account for payments in US$: The account notified in writing by Part
A to Party B in accordance with Part
5(3)(ii) of the Schedule to the
Agreement
Account for payments in A$: The account notified in writing by Party
A to Party B in accordance with Part
5(3)(i) of the Schedule to the
Agreement
8.2 Payments to Party B
Account for payments in US$: The account notified in writing by the
Principal Paying Agent to Party A in
accordance with Part 5(2)(ii) of the
Schedule to the Agreement
30.
<PAGE>
Account for payments in A$ The account notified in writing by Party B to
Party A in accordance with Part 5(2)(i) of the
Schedule to the Agreement
9. Offices: The Office of CBA as Party A for each Transaction
is Sydney.
The office of MLCS (on and from the Novation
Date) as Party A is New York.
The Office of Party B for each Transaction is
Sydney.
Please confirm that the above correctly sets out the terms of our agreement in
respect of each Transaction to which this Confirmation relates by signing and
returning this Confirmation to us by facsimile today.
31.
<PAGE>
Executed documents will follow by mail.
Yours sincerely
SIGNED for and on behalf of
COMMONWEALTH BANK OF AUSTRALIA, ACN 123 123 124
By: __________________________
(Authorised Officer)
Name: _________________________
Title: _______________________
Confirmed as at the date first written above: Confirmed as at the date first
written above:
SIGNED for and on behalf of SIGNED for and on behalf of
PERPETUAL TRUSTEE SECURITISATION ADVISORY SERVICES
COMPANY LIMITED, ACN 000 001 007 PTY. LIMITED, ACN 064 133 946
as trustee of the Series
2000-1G Medallion Trust
By: __________________________ By:_______________________
(Authorised Officer ) (Authorised Officer)
Name: ________________________ Name:_____________________
Title: _______________________ Title:____________________
SIGNED for and on behalf of
MERRILL LYNCH CAPITAL SERVICES
INC.
By: ___________________________
(Authorised Officer )
Name: _________________________
Title: _______________________
32.
<PAGE>
Annexure 2
GUARANTEE OF MERRILL LYNCH & CO., INC.
FOR VALUE RECEIVED, receipt of which is hereby acknowledged, MERRILL LYNCH &
CO., INC., a corporation duly organized and existing under the laws of the State
of Delaware ("ML & Co."), hereby unconditionally guarantees to:
(a) Perpetual Trustee Company Limited, ACN 000 001 007 as trustee of the Series
2000-1G Medallion Trust (the "Company"), the due and punctual payment of
any and all amounts payable by Merrill Lynch Capital Services, Inc., a
corporation organized under the laws of the State of Delaware ("MLCS"), to
the Company under the terms of the ISDA Master Agreement (Currency Swap
Agreement) between the Company, Securitisation Advisory Services Pty.
Limited, ACN 064 133 946, Commonwealth Bank of Australia, ACN 123 123 124
and MLCS, dated as of [20] March 2000 (the "Agreement"), including, in case
of default, interest on any amount due, when and as the same shall become
due and payable, whether on the scheduled payment dates, at maturity, upon
declaration of termination or otherwise, according to the terms thereof;
and
(b) Commonwealth Bank of Australia, ACN 123 123 124 ("CBA") the due and
punctual payment of any and all amounts payable by MLCS to CBA under the
terms of the Agreement, including all amounts due under Part 5(25)(d) of
the schedule to the Agreement.
In case of the failure of MLCS punctually to make any such payment, ML & Co.
hereby agrees to make such payment, or cause such payment to be made, promptly
upon demand made by the Company (in the case amounts referred to in paragraph
(a)) or CBA (in the case amounts referred to in paragraph (b)) to ML & Co.;
provided, however that delay by the Company or CBA (as the case may be) in
giving such demand shall in no event affect ML & Co.'s obligations under this
Guarantee. This Guarantee shall remain in full force and effect or shall be
reinstated (as the case may be) if at any time any payment guaranteed hereunder,
in whole or in part, is rescinded or must otherwise be returned by the Company
or CBA upon the insolvency, bankruptcy or reorganization of MLCS or otherwise,
all as though such payment had not been made.
ML & Co. hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Agreement; the
absence of any action to enforce the same; any waiver or consent by the Company
or CBA concerning any provisions thereof; the rendering of any judgment against
MLCS or any action to enforce the same; or any other circumstances that might
otherwise constitute a legal or equitable discharge of a guarantor or a defense
of a guarantor. ML & Co. covenants that this guarantee will not be discharged
except by complete payment of the amounts payable under the Agreement. This
Guarantee shall continue to be effective if MLCS merges or consolidates with or
into another entity, loses its separate legal identity or ceases to exist.
ML & Co. hereby waives diligence; presentment; protest; notice of protest,
acceleration, and dishonor; filing of claims with a court in the event of
insolvency or bankruptcy of MLCS; all demands whatsoever, except as noted in the
fourth paragraph hereof; and any right to require a proceeding first against
MLCS.
ML & Co. hereby certifies and warrants that this Guarantee constitutes the valid
obligation of ML & Co. and complies with all applicable laws.
This Guarantee shall be governed by, and construed in accordance with, the laws
of the State of New York.
This Guarantee may be terminated at any time by notice by ML & Co. to the
Company and CBA given in accordance with the notice provisions of the Agreement,
effective upon receipt of such notice by each of the Company and CBA or such
later date as may be specified in such notice; provided, however, that this
Guarantee shall continue in full force and effect with respect to any obligation
of MLCS under the Agreement entered into prior to the effectiveness of such
notice of termination.
This Guarantee becomes effective concurrent with the effectiveness of the
Agreement, according to its terms.
33.
<PAGE>
The obligations of ML & Co. to the Company and CBA under this Agreement are
several and may be enforced by each of the Company and CBA without reference to
the other.
IN WITNESS WHEREOF, ML & Co. has caused this Guarantee to be executed in its
corporate name by its duly authorized representative.
MERRILL LYNCH & CO., INC.
By:__________________________
Name:
Title:
Date:_________________________
<PAGE>
Paragraph 13 to New York Law Credit Support Annex
(13) Elections and Variables
(a) Security Interest for "Obligations"
The term "Obligations" as used in this Annex does not include any
additional obligations.
"Base Currency" means US$.
"Eligible Currency" means the Base Currency and any other currency
agreed from time to time between Party A, Party B, the Standby Swap
Provider and each Rating Agency.
(b) Credit Support Obligations
(i) Delivery Amount and Return Amount
"Delivery Amount" for a Valuation Date means the amount of
collateral calculated in accordance with Part 5(23)(d)(i) for
that Valuation Date.
"Return Amount" for a Valuation Date means the amount of
collateral calculated in accordance with Part 5(23)(d)(ii) for
that Valuation Date.
(ii) Eligible Collateral. The following items will qualify as
"Eligible Collateral" for Party A:
Valuation
Percentage
(A) negotiable debt obligations issued 98%
by the U.S. Treasury Department
having a remaining maturity of not
more than one year
(B) negotiable debt obligations issued 95%
by the U.S. Treasury Department
having a remaining maturity of more
than one year but not more than five
years
(C) negotiable debt obligations issued 93%
by the U.S. Treasury Department
having a remaining maturity of more
than five years but not more than
ten years
(D) negotiable debt obligations issued 90%
by the U.S. Treasury Department
having a remaining maturity of more
than ten years
(E) Agency Securities having a remaining 97%
maturity of not more than one year
(F) Agency Securities having a remaining 94%
maturity of more than one year but
not more than five years
<PAGE>
(G) Agency Securities having a remaining 92%
maturity of more than five years but
not more than ten years
(H) Agency Securities having a remaining 89%
maturity of more than ten years.
(I) cash in an Eligible Currency. 100%
(J) other Eligible Credit Support and
Valuation Percentage agreed by the
parties and acceptable to each
Rating Agency
Notwithstanding the foregoing to the contrary, the Valuation
Percentage with respect to all Eligible Credit Support shall be
deemed to be 100% with respect to a Valuation Date which is an Early
Termination Date.
"Agency Securities" means negotiable debt obligations which are
fully guaranteed as to both principal and interest by the Federal
National Mortgage Association, the Government National Mortgage
Corporation or the Federal Home Loan Mortgage Corporation and which
have been assigned a short term credit rating of A-1+ by S&P, but
exclude: (i) interest only and principal only securities; and (ii)
collateralized mortgage obligations, real estate mortgage investment
conduits and similar derivative securities.
(iii) Other Eligible Support
Not applicable.
(iv) Thresholds
(A) "Minimum Transfer Amount" means with respect to both Party A
and Party B: US$100,000.
(B) Rounding. The Delivery Amount and the Return Amount will be
rounded to the nearest integral multiple of US$10,000.
(c) Valuation and Timing
(i) "Valuation Agent" means Party A.
(ii) "Valuation Date" means the last Business Day of each week and, at
the option of either Party A or the Standby Swap Provider, any
Business Day between Valuation Dates.
(iii) "Valuation Time" means the close of business on the Business Day
before the Valuation Date; provided that the calculations of Value
and Exposure will be made as of approximately the same time on the
same date.
(iv) "Notification Time" means 11:00 am New York time on the second
Business Day after the Valuation Date.
(d) Conditions Precedent and Secured Party's Rights and Remedies
There are no "Specified Conditions" applicable to Party A and Party B.
(e) Substitution
(i) "Substitution Date" has the meaning specified in paragraph 4(d)(ii).
36.
<PAGE>
(ii) Consent. Not applicable.
(f) Dispute Resolution
(i) "Resolution Time"" means 11:00 am New York time.
(ii) "Value". Not applicable.
(iii) "Alternative". The provisions of Paragraph 5 will apply.
(g) Holding and Using Posted Collateral
(i) Eligibility to Hold Posted Collateral; Custodians.
Party A: Not Applicable.
Party B is not entitled to hold Posted Collateral. It must appoint a
Custodian to hold Posted Collateral on its behalf pursuant to
paragraph 6(b). Party B may only appoint a Custodian to hold Posted
Collateral on its behalf if the following conditions are satisfied:
(A) Party B is not a Defaulting Party;
(B) Party B's Custodian will always be the Principal Paying Agent,
unless that party is Party A; and
(C) if the Principal Paying Agent is Party A, then Party B must
appoint a Custodian which is a Bank (as defined in the Federal
Deposit Insurance Act, as amended) outside Australia, whose
rating (with respect to its long term unsecured, unsubordinated
indebtedness) is at all times at least Aa2 by Moody's and its
short term debt rating is A-1+/F-1+ (S&P/Fitch IBCA), and Party B
must notify Party A in writing of this appointment and of the
relevant account for Paragraph 13(l).
(D) Posted Collateral may only be held in one or more accounts in the
name of Party B in the United States and any account established
by Party B's Custodian to hold Posted Collateral shall be
established and maintained for the sole purpose of receiving
deliveries of and holding Posted Collateral.
(ii) Use of Posted Collateral. The provisions of paragraph 6(c) will not
apply to Party B and its Custodian. Party B's Custodian will permit
Party B to secure Party B's obligations under the relevant Class A-1
Notes by granting to the Security Trustee the charge under the
Security Trust Deed over Party B's rights in relation to the Posted
Collateral, but subject to Paragraph 13(m)(vi) of this Annex.
(h) Distributions and Interest Amount
(i) Interest Rate. The "Interest Rate", in respect of Posted Collateral
which is denominated in US$, for any day means the Federal Funds
Overnight Rate. For the purposes hereof, "Federal Funds Overnight
Rate" means, for any day, an interest rate per annum equal to the
rate published as the Federal Funds Effective Rate that appears on
Telerate Page 118 for such day. The "Interest Rate" in respect of
Posted Collateral denominated in any other Eligible Currency means
the rate as agreed between the parties.
(ii) Transfer of Interest Amount. The Transfer of Interest Amount will be
made monthly on the second Business Day of each calendar month.
(iii) Alternative to Interest Amount. The provisions of Paragraph
6(d)(ii) will apply.
(i) Additional Representation(s)
None.
(j) Other Eligible Support and Other Posted Support
37.
<PAGE>
"Value" and "Transfer" with respect to Other Eligible Support and Other
Posted Support means: not applicable.
(k) Demands and Notices
All demands, specifications and notices under this Annex will be made
pursuant to the Section 12 of this Agreement; provided, that any such
demand, specification or notice may be made by telephone ("Telephone
Notice") between duly authorised employees of each party if such Telephone
Notice is confirmed by a subsequent written instruction (which may be
delivered via facsimile) by the close of business of the same day that such
Telephone Notice is given.
(l) Addresses for Transfers
Party A: Party A to specify account for returns of collateral.
Party B: Party B must notify Party A of its Custodian's account.
(m) Other Provisions
(i) Paragraph 4(b) of the Annex is replaced by the following:
"(b) Transfer Timing. Subject to Paragraph 4(a) and 5 and unless
otherwise specified, if a demand for the Transfer of Eligible
Credit Support or Posted Credit Support is made by the
Notification Time, then the relevant Transfer will be made
within three Business Days of receipt of the demand; if a
demand is made after the Notification Time, then the relevant
Transfer will be made within four Business Days of receipt of
the demand."
(ii) Event of Default
Joint Ratings below specified levels
Paragraph 7(i) of the Annex is amended, on line 3, by replacing "two
Business Days" with "three Business Days".
(iii) Party B's expenses
Subject to Section 15 of the Agreement, Party B agrees to pay Party
A's costs and expenses in relation to or caused by any breach by
Party B of its obligations under this Annex. Party A acknowledges
and agrees that its obligations under this Annex will not be
affected by a failure by Party B to comply with its obligations
under this paragraph (m)(iii).
(iv) Governing Law notwithstanding
Notwithstanding that the Agreement is expressed to be governed by
the laws of New South Wales, this Annex (but not any other
provisions of the Agreement) shall be governed by and construed in
accordance with the laws of the state of New York without giving
effect to choice of law doctrine and parties hereto agree that
proceedings relating to any dispute arising out of or in connection
with this Annex shall be subject to the non-exclusive jurisdiction
of the federal or state courts of competent jurisdiction in the
Borough of Manhattan in New York City, State of New York.
(v) No trial by jury
Each party waives, to the fullest extent permitted by applicable
law, any right it may have to a trial by jury in respect of any
suit, action or proceeding relating to this Annex.
38.
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(vi) No pooling of Collateral with other Security Trust security
Notwithstanding any provision in the Master Trust Deed, Series
Supplement or Security Trust Deed, but without prejudice to Party
B's rights under Paragraph 8(a) of this Annex, no party shall be
entitled to deal with the Posted Collateral in any manner
inconsistent with the rights of the Pledgor under Paragraph
8(b)(iii) of this Annex, and each party covenants to the other that
it shall not permit any other person to gain any rights in relation
to the Posted Collateral that are inconsistent with the rights of
the Pledgor.
(vii) Rights in Relation to CBA's Posted Collateral Following Novation
(A) The Secured Party will hold its security interest in, lien on
and right of Set-Off against all Posted Collateral Transferred
or received by the Secured Party from CBA as Party A hereunder
on trust for the benefit of:
(1) the Series Trust as security for the Obligations of CBA as
Party A to the Secured Party as trustee of the Series
Trust (other than pursuant to Paragraph 13(m)(vii)(B));
and
(2) the Standby Swap Provider as security for the Obligations
of CBA as Party A to the Standby Swap Provider pursuant to
Parts 5(25)(d) and (e) of the Schedule to this Agreement,
in accordance with the provisions of this Paragraph 13(m)(vii),
and Paragraph 2 is varied accordingly.
(B) CBA as Party A covenants in favour of the Secured Party that it
will duly and punctually pay to the Secured Party all its
Obligations to the Standby Swap Provider pursuant to Parts
5(25)(d) and (e) of the Schedule to this Agreement as and when
the same fall due for payment. Notwithstanding the foregoing,
every payment by CBA as Party A, or the Secured Party in
accordance with Paragraph 13(m)(vii)(C)(2)(b), to the Standby
Swap Provider will operate as a payment by CBA as Party A to
the Secured Party in satisfaction of CBA's obligations as Party
A pursuant to this Paragraph 13(m)(vii)(B). The Secured Party
will hold the benefit of its rights under this Paragraph
13(m)(vii)(B) on trust for the Standby Swap Provider in
accordance with the provisions of this Paragraph 13(m)(vii).
(C) The Secured Party must deal with all Posted Collateral
Transferred or received by the Secured Party from CBA as Party
A hereunder:
(1) prior to the Novation Date, in accordance with the
provisions of this Agreement other than this Paragraph
13(m)(vii);
(2) on or after the Novation Date:
(a) until the date upon which the Standby Swap Provider
has initially fulfilled its obligations as Party A
pursuant to Part 5(23)(a) of the Schedule to this
Agreement, such Posted Collateral must be held by the
Secured Party and not Transferred or otherwise
applied;
(b) on or after the date upon which the Standby Swap
Provider has initially fulfilled its obligations as
Party A pursuant to Part 5(23)(a) of the Schedule
to this Agreement and until CBA as Party A has paid
in full all of its Obligations to the Standby Swap
Provider pursuant to Parts 5(25)(d) and (e) of the
Schedule to this Agreement, the Secured Party must,
upon the instructions of the Standby Swap Provider,
exercise its rights and remedies pursuant to
Paragraph 8(a) in respect of such Posted Collateral
and apply the proceeds of the exercise of such rights
and remedies in
39.
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satisfaction of CBA's Obligations as Party A to the
Standby Swap Provider pursuant to Parts 5(25)(d) and
(e) of the Schedule to this Agreement (and to the
Secured Party pursuant to Paragraph 13(m)(vii)(B))
until all such Obligations have been paid in full; and
(c) on or after the date upon which the Standby Swap
Provider has initially fulfilled its obligations as
Party A pursuant to Part 5(23)(a) of the Schedule to
this Agreement and CBA as Party A has paid in full all
its Obligations to the Standby Swap Provider pursuant
to Parts 5(25)(d) and (e) of the Schedule to this
Agreement (including by virtue of Paragraph
13(m)(vii)(B)(2)(b)), the Secured Party must Transfer
to CBA as Party A all such Posted Collateral and the
Interest Amount in relation to such Posted Collateral,
if any.
(D) The Standby Swap Provider indemnifies the Secured Party from
and against any cost or liability incurred by the Secured
Party in complying with the instructions of the Standby Swap
Provider pursuant to Paragraph 13(m)(vii)(B)(2)(b). The
Standby Swap Provider acknowledges and agrees that the Secured
Party may not, and is not required, to take any action to
exercise its rights and remedies in relation to the Posted
Collateral in respect of the Obligations of CBA as Party A to
the Standby Swap Provider except upon the directions of the
Standby Swap Provider and in accordance with this Paragraph
13(m)(vii).
(E) Following the Novation Date, the Secured Party must ensure
that any Posted Collateral Transferred or received by the
Secured Party from CBA as Party A is held by the Custodian
separately from, and is not co-mingled with, Posted Collateral
Transferred or received by the Secured Party from the Standby
Swap Provider as Party A.
(F) This paragraph 13(m)(vii) applies notwithstanding any other
provision of this Agreement.
(viii) Pledgor and Secured Party
In this Annex:
(a) "Pledgor" means only Party A; and
(b) "Secured Party" means only Party B.
(ix) Non-Australian Assets
CBA as Party A must only Transfer Posted Collateral to the Secured
Party from its assets held outside Australia.
(x) Dispute Resolution
Paragraph 5(i) is amended by:
(A) replacing the word "Exposure" with the words "the Delivery
Amount or the Return Amount, as the case may be" in the first
paragraph of Paragraph 5(i);
(B) adding the word "and" at the end of Paragraph 5(i)(A) and
deleting Paragraph 5(i)(B).
40.
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EXHIBIT 10.5
(Multicurrency-Cross Border)
ISDA (R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of_______________
- --------------------------------- and ---------------------------------------
have entered and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other confirming
evidence (each a "Confirmation") exchanged between the parties confirming those
Transactions.
Accordingly, the parties agree as follows:-
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions of
the Schedule and the other provisions of this Master Agreement, the Schedule
will prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purpose of the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the
fact that this Master Agreement and all Confirmations form a single agreement
between the parties (collectively referred to as this "Agreement"), and the
parties would not otherwise enter into any Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it subject to the other provisions of this
Agreement.
(ii) Payments under this Agreement will be made on the due date for value
on that date in the place of the account specified in the relevant
Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the
required currency. Where settlement is by delivery (that is, other than by
payment), such delivery will be made for receipt on the due date in the
manner customary for the relevant obligation unless otherwise specified in
the relevant Confirmation or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to
(1) the condition precedent that no Event of Default or Potential Event of
Default with respect to the other party has occurred and is continuing,
(2) the condition precedent that no Early Termination Date in respect of
the relevant Transaction has occurred or been effectively designated and
(3) each other applicable condition precedent specified in this Agreement.
<PAGE>
(b) Change of Account. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a reasonable
objection to such change.
(c) Netting. If on any date amounts would otherwise be payable:--
(i) in the same currency: and
(ii) in respect of the same Transaction.
by each party to the other, then, on such date, each party's obligation to make
payment of any such amount will be automatically satisfied and discharged and,
if the aggregate amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been payable by the other
party, replaced by an obligation upon the party by whom the larger aggregate
amount would have been payable to pay to the other party the excess of the
larger aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount
will be determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be made
in the Schedule or a Confirmation by specifying that subparagraph (ii) above
will not apply to the Transactions identified as being subject to the election,
together with the starting date (in which case subparagraph (ii) above will not,
or will cease to, apply to such Transactions from such date). This election may
be made separately for different groups of Transactions and will apply
separately to each pairing of Offices through which the parties make and receive
payments or deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless such
deduction or withholding is required by any applicable law, as modified by
the practice of any relevant governmental revenue authority, then in
effect. If a party is so required to deduct or withhold, then that party
("X") will:--
(1) promptly notify the other party ("Y") of such requirement:
(2) pay to the relevant authorities the full amount required to be
deducted or withheld (including the full amount required to be
deducted or withheld from any additional amount paid by X to Y under
this Section 2(d)) promptly upon the earlier of determining that such
deduction or withholding is required or receiving notice that such
amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified copy),
or other documentation reasonably acceptable to Y, evidencing such
payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to the
payment to which Y is otherwise entitled under this Agreement, such
additional amount as is necessary to ensure that the net amount
actually received by Y (free and clear of Indemnifiable Taxes, whether
assessed against X or Y) will equal the full amount Y would have
received had no such deduction or withholding been required. However,
X will not be required to pay any additional amount to Y to the extent
that it would not be required to be paid but for:--
(A) the failure by Y to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4(d); or
(B) the failure of a representation made by Y pursuant to Section
3(f) to be accurate and true unless such failure would not have
occurred but for (i) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the
date on which a Transaction is entered into (regardless of
whether such action is taken or brought with respect to a party
to this Agreement) or (II) a Change in Tax Law.
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<PAGE>
(ii) Liability. If:--
(1) X is required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, to make any
deduction or withholding in respect of which X would not be required
to pay an additional amount to Y under Section 2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly against
X.
then, except to the extent Y has satisfied or then satisfies the liability
resulting from such Tax, Y will promptly pay to X the amount of such
liability (including any related liability for interest, but including
any related liability for penalties only if Y has failed to comply with or
perform any agreement contained in Section 4(a)(i), 4(a)(iii) or 4(d)).
(e) Default Interest; Other Amounts. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant Transaction,
a party that defaults in the performance of any payment obligation will, to the
extent permitted by law and subject to Section 6(c), be required to pay interest
(before as well as after judgment) on the overdue amount to the other party on
demand in the same currency as such overdue amount, for the period from (and
including) the original due date for payment to (but excluding) the date of
actual payment, at the Default Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed. If, prior to
the occurrence or effective designation of an Early Termination Date in respect
of the relevant Transaction, a party defaults in the performance of any
obligation required to be settled by delivery, it will compensate the other
party on demand if and to the extent provided for in the relevant Confirmation
or elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be deemed
to be repeated by each party on each date on which a Transaction is entered into
and, in the case of the representations in Section 3(f), at all times until the
termination of this Agreement) that:--
(a) Basic Representations.
(i) Status. It is duly organised and validly existing under the laws of
the jurisdiction of its organisation or incorporation and, if relevant
under such laws, in good standing;
(ii) Powers. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party, to deliver
this Agreement and any other documentation relating to this Agreement that
it is required by this Agreement to deliver and to perform its obligations
under this Agreement and any obligations it has under any Credit Support
Document to which it is a party and has taken all necessary action to
authorise such execution, delivery and performance;
(iii) No Violation or Conflict. Such execution, delivery and performance do
not violate or conflict with any law applicable to it, any provision of its
constitutional documents, any order or judgment of any court or other
agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets;
(iv) Consents. All governmental and other consents that are required to
have been obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party have been obtained and are in full
force and effect and all conditions of any such consents have been complied
with; and
(v) Obligations Binding. Its obligations under this Agreement and any
Credit Support Document to which it is a party constitute its legal, valid
and binding obligations, enforceable in accordance with their respective
terms (subject to applicable bankruptcy, reorganisation, insolvency,
moratorium or similar laws affecting creditors' rights generally and
subject, as to enforceability, to equitable principles of general
application (regardless of whether enforcement is sought in a proceeding in
equity or at law)).
3
<PAGE>
(b) Absence of Certain Events. No Event of Default or Potential Event of
Default or, to its knowledge, Termination Event with respect to it has occurred
and is continuing and no such event or circumstance would occur as a result of
its entering into or performing its obligations under this Agreement or any
Credit Support Document to which it is a party.
(c) Absence of Litigation. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or proceeding at
law or in equity or before any court, tribunal, governmental body, agency or
official or any arbitrator that is likely to affect the legality, validity or
enforceability against it of this Agreement or any Credit Support Document to
which it is a party or its ability to perform its obligations under this
Agreement or such Credit Support Document.
(d) Accuracy of Specified Information. All applicable information that is
furnished in writing by or on behalf of it to the other party and is identified
for the purpose of this Section 3(d) in the Schedule is, as of the date of the
information, true, accurate and complete in every material respect.
(e) Payer Tax Representation. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(e) is accurate and true.
(f) Payee Tax Representations. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(f) is accurate and true.
4. Agreements
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party:--
(a) Furnish Specified Information. It will deliver to the other party or in
certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs:--
(i) any forms, documents or certificates relating to taxation specified
in the Schedule or any Confirmation:
(ii) any other documents specified in the Schedule or any Confirmation:
and
(iii) upon reasonable demand by such other party, any form or document that
may be required or reasonably requested in writing in order to allow such
other party or its Credit Support Provider to make a payment under this
Agreement or any applicable Credit Support Document without any deduction
or withholding for or on account of any Tax or with such deduction or
withholding at a reduced rate (so long as the completion, execution or
submission of such form or document would not materially prejudice the
legal or commercial position of the party in receipt of such demand), with
any such form or document to be accurate and completed in a manner
reasonably satisfactory to such other party and to be executed and to be
delivered with any reasonably required certification.
in each case by the date specified in the Schedule or such Confirmation or, if
none is specified, as soon as reasonably practicable.
(b) Maintain Authorisations. It will use all reasonable efforts to maintain in
full force and effect all consents of any governmental or other authority that
are required to be obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party and will use all reasonable efforts to
obtain any that may become necessary in the future.
(c) Comply with Laws. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to comply
would materially impair its ability to perform its obligations under this
Agreement or any Credit Support Document to which it is a party.
(d) Tax Agreement. It will give notice of any failure of a representation made
by it under Section 3(f) to be accurate and true promptly upon learning of such
failure.
(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax
levied or imposed upon it or in respect of its execution or performance of this
Agreement by a jurisdiction in which it is incorporated,
4
<PAGE>
organised, managed and controlled, or considered to have its seat, or in which a
branch or office through which it is acting for the purpose of this Agreement is
located ("Stamp Tax Jurisdiction") and will indemnify the other party against
any Stamp Tax levied or imposed upon the other party or in respect of the other
party's execution or performance of this Agreement by any such Stamp Tax
Jurisdiction which is not also a Stamp Tax Jurisdiction with respect to the
other party.
5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified Entity
of such party of any of the following events constitutes an event of default (an
"Event of Default") with respect to such party:--
(i) Failure to Pay or Deliver. Failure by the party to make, when due,
any payment under this Agreement or delivery under Section 2(a)(i) or 2(e)
required to be made by it, if such failure is not remedied on or before the
third Local Business Day after notice of such failure is given to the
party;
(ii) Breach of Agreement. Failure by the party to comply with or perform
any agreement or obligation (other than an obligation to make any payment
under this Agreement or delivery under Section 2(a)(i) or 2(e) or to give
notice of a Termination Event or any agreement or obligation under Section
4(a)(i), 4(a)(iii) or 4(d)) to be complied with or performed by the party
in accordance with this Agreement if such failure is not remedied on or
before the thirtieth day after notice of such failure is given to the
party;
(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of such party
to comply with or perform any agreement or obligation to be complied
with or performed by it in accordance with any Credit Support
Document if such failure is continuing after any applicable grace
period has elapsed;
(2) the expiration or termination of such Credit Support Document or
the failing or ceasing of such Credit Support Document to be in full
force and effect for the purpose of this Agreement (in either case
other than in accordance with its terms) prior to the satisfaction of
all obligations of such party under each Transaction to which such
Credit Support Document relates without the written consent of the
other party; or
(3) the party or such Credit Support Provider disaffirms, disclaims,
repudiates or rejects, in whole or in part, or challenges the
validity of, such Credit Support Document;
(iv) Misrepresentation. A representation (other than a representation
under Section 3(e) or (f)) made or repeated or deemed to have been made or
repeated by the party or any Credit Support Provider of such party in this
Agreement or any Credit Support Document proves to have been incorrect or
misleading in any material respect when made or repeated or deemed to have
been made or repeated;
(v) Default under Specified Transaction. The party, any Credit Support
Provider of such party or any applicable Specified Entity of such party (1)
defaults under a Specified Transaction and, after giving effect to any
applicable notice requirement or grace period, there occurs a liquidation
of, an acceleration of obligations under, or an early termination of, that
Specified Transaction, (2) defaults, after giving effect to any applicable
notice requirement or grace period, in making any payment or delivery due
on the last payment, delivery or exchange date of, or any payment on early
termination of, a Specified Transaction (or such default continues for at
least three Local Business Days if there is no applicable notice
requirement or grace period) or (3) disaffirms, disclaims, repudiates or
rejects, in whole or in part, a Specified Transaction (or such action is
taken by any person or entity appointed or empowered to operate it or act
on its behalf);
(vi) Cross Default. If "Cross Default" is specified in the Schedule as
applying to the party, the occurrence or existence of (1) a default, event
of default or other similar condition or event (however
<PAGE>
described) in respect of such party, any Credit Support Provider of such
party or any applicable Specified Entity of such party under one or more
agreements or instruments relating to Specified Indebtedness of any of them
(individually or collectively) in an aggregate amount of not less than the
applicable Threshold Amount (as specified in the Schedule) which has
resulted in such Specified Indebtedness becoming, or becoming capable at
such time of being declared, due and payable under such agreements or
instruments, before it would otherwise have been due and payable or (2) a
default by such party, such Credit Support Provider or such Specified
Entity (individually or collectively) in making one or more payments on the
due date thereof in an aggregate amount of not less than the applicable
Threshold Amount under such agreements or instruments (after giving effect
to any applicable notice requirement or grace period):
(vii) Bankruptcy. The party, any Credit Support Provider of such party or
any applicable Specified Entity of such party:--
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger): (2) becomes insolvent or is unable to pay
its debts or fails or admits in writing its inability generally to
pay its debts as they become due: (3) makes a general assignment,
arrangement or composition with or for the benefit of its creditors:
(4) Institutes or has instituted against it a proceeding seeking a
judgment of insolvency or bankruptcy or any other relief under any
bankruptcy or insolvency law or other similar law affecting
creditors' rights, or a petition is presented for its winding-up or
liquidation, and, in the case of any such proceeding or petition
instituted or presented against it, such proceeding or petition (A)
results in a judgment of insolvency or bankruptcy or the entry of an
order for relief or the making of an order for its winding-up or
liquidation or (B) is not dismissed, discharged, stayed or
restrained in each case within 30 days of the institution or
presentation thereof: (5) has a resolution passed for its winding-
up, official management or liquidation (other than pursuant to a
consolidation, amalgamation or merger); (6) seeks or becomes subject
to the appointment of an administrator, provisional liquidator,
conservator, receiver, trustee, custodian or other similar official
for it or for all or substantially all its assets: (7) has a secured
party take possession of all or substantially all its assets or has
a distress, execution, attachment, sequestration or other legal
process levied, enforced or sued on or against all or substantially
all its assets and such secured party maintains possession, or any
such process is not dismissed, discharged, stayed or restrained, in
each case within 30 days thereafter, (8) causes or is subject to any
event with respect to it which, under the applicable laws of any
jurisdiction, has an analogous effect to any of the events specified
in clauses (1) to (7) (inclusive): or (9) takes any action in
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the foregoing acts; or
(viii) Merger Without Assumption. The party or any Credit Support Provider
of such party consolidates or amalgamates with, or merges with or into, or
transfers all or substantially all its assets to, another entity and, at
the time of such consolidation, amalgamation, merger or transfer:-
(1) the resulting, surviving or transferee entity fails to assume
all the obligations of such party or such Credit Support Provider
under this Agreement or any Credit Support Document to which it or
its predecessor was a party by operation of law or pursuant to an
agreement reasonably satisfactory to the other party to this
Agreement; or
(2) the benefits of any Credit Support Document fails to extend
(without the consent of the other party) to the performance by such
resulting, surviving or transferee entity of its obligations under
this Agreement.
(b) Termination Events. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified Entity
of such party of any event specified below constitutes an illegality if the
event is specified in (i) below, a Tax Event if the event is specified in (ii)
below or a Tax Event Upon Merger if the event is specified in (iii) below, and,
if specified to be applicable, a Credit Event
6
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Upon Merger if the event is specified pursuant to (iv) below or an Additional
Termination Event if the event is specified pursuant to (v) below:-
(i) Illegality. Due to the adoption of, or any change in, any applicable
law after the date on which a Transaction is entered into, or due to the
promulgation of, or any change in, the interpretation by any court,
tribunal or regulatory authority with competent jurisdiction of any
applicable law after such date, it becomes unlawful (other than as a result
of a breach by the party of Section 4(b)) for such party (which will be the
Affected Party):-
(1) to perform any absolute or contingent obligation to make a
payment or delivery or to receive a payment or delivery in respect of
such Transaction or to comply with any other material provision of
this Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of such party to
perform, any contingent or other obligation which the party (or such
Credit Support Provider) has under any Credit Support Document
relating to such Transaction;
(ii) Tax Event. Due to (x) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the date on which
a Transaction is entered into (regardless of whether such action is taken
or brought with respect to a party to this Agreement) or (y) a Change in
Tax Law the party (which will be the Affected Party) will, or there is a
substantial likelihood that it will, on the next succeeding Scheduled
Payment Date (1) be required to pay to the other party an additional amount
in respect of an Indemnifiable Tax under Section 2(d)(i)(4) (except in
respect of interest under Section 2(e), 6(d)(ii) or 6(e)) or (2) receive a
payment from which an amount is required to be deducted or withheld for or
on account of a Tax (except in respect of interest under Section 2(e),
6(d)(ii) or 6(e)) and no additional amount is required to be paid in
respect of such Tax under Section 2(d)(i)(4) (other than by reason of
Section 2(d)(i)(4)(A) or (B));
(iii) Tax Event Upon Merger. The party (the "Burdened Party") on the next
succeeding Scheduled Payment Date will either (1) be required to pay an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount has been deducted or
withheld for or on account of any Indemnifiable Tax in respect of which the
other party is not required to pay an additional amount (other than by
reason of Section 2(d)(i)(4)(A) or (B)), in either case as a result of a
party consolidating or amalgamating with, or merging with or into, or
transferring all or substantially all its assets to, another equity (which
will be the Affected Party) where such action does not constitute an event
described in Section 5(a)(viii);
(iv) Credit Event Upon Merger. If "Credit Event Upon Merger" is specified
in the Schedule as applying to the party, such party ("X"), any Credit
Support Provider of X or any applicable Specified Entity of X consolidates
or amalgamates with, or merges with or into, or transfers all or
substantially all its assets to, another entity and such action does not
constitute an event described in Section 5(a)(viii) but the
creditworthiness of the resulting, surviving or transferee entity is
materially weaker than that of X, such Credit Support Provider or such
Specified Entity, as the case may be, immediately prior to such action
(and, in such event, X or its successor or transferee, as appropriate, will
be the Affected Party); or
(v) Additional Termination Event. If any "Additional Termination Event"
is specified in the Schedule or any Confirmation as applying, the
occurrence of such event (and, in such event, the Affected Party or
Affected Parties shall be as specified for such Additional Termination
Event in the Schedule or such Confirmation).
(c) Event of Default and Illegality. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes an
Illegality, it will be treated as an Illegality and will not constitute an
Event of Default.
<PAGE>
6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an Event of
Default with respect to a party (the "Defaulting Party") has occurred and is
then continuing, the other party (the "Non-defaulting Party") may, by not more
than 20 days notice to the Defaulting Party specifying the relevant Event of
Default, designate a day not earlier than the day such notice is effective as an
Early Termination Date in respect of all outstanding Transactions. If, however,
"Automatic Early Termination" is specified in the Schedule as applying to a
party, then an Early Termination Date in respect of all outstanding Transactions
will occur immediately upon the occurrence with respect to such party of an
Event of Default specified in Section 5(a)(vii)(1), (3), (5), (6) or, to the
extent analogous thereto, (8), and as of the time immediately preceding the
institution of the relevant proceeding or the presentation of the relevant
petition upon the occurrence with respect to such party of an Event of Default
specified in Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party, specifying the
nature of that Termination Event and each Affected Transaction and will
also give such other information about that Termination Event as the other
party may reasonably require.
(ii) Transfer to Avoid Termination Event. If either an Illegality under
Section 5(b)(i)(1) or a Tax Event occurs and there is only one Affected
Party, or if a Tax Event Upon Merger occurs and the Burdened Party is the
Affected Party, the Affected Party will, as a condition to its right to
designate an Early Termination Date under Section 6(b)(iv), use all
reasonable efforts (which will not require such party to incur a loss,
excluding immaterial, incidental expenses) to transfer within 20 days after
it gives notice under Section 6(b)(i) all its rights and obligations under
this Agreement in respect of the Affected Transactions to another of its
Offices or Affiliates so that such Termination Event ceases to exist.
If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period,
whereupon the other party may effect such a transfer within 30 days after
the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be subject to
and conditional upon the prior written consent of the other party, which
consent will not be withheld if such other party's policies in effect at
such time would permit it to enter into transactions with the transferee on
the terms proposed.
(iii) Two Affected Parties. If an illegality under Section 5(b)(i)(l) or a
Tax Event occurs and there are two Affected Parties, each party will use
all reasonable efforts to reach agreement within 30 days after notice
thereof is given under Section 6(b)(i) on action to avoid that Termination
Event.
(iv) Right to Terminate. If:--
(1) a transfer under Section 6(b)(ii) or an agreement under Section
6(b)(iii), as the case may be, has not been effected with respect to
all Affected Transactions within 30 days after an Affected Party
gives notice under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon
Merger or an Additional Termination Event occurs, or a Tax Event Upon
Merger occurs and the Burdened Party is not the Affected Party.
either party in the case of an Illegality, the Burdened Party in the case
of a Tax Event Upon Merger, any Affected Party in the case of a Tax Event
or an Additional Termination Event if there is more than one Affected
Party, or the party which is not the Affected Party in the case of a Credit
Event Upon Merger or an Additional Termination Event if there is only one
Affected Party may, by not more than 20 days notice to the other party and
provided that the relevant Termination Event is then
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continuing, designate a day not earlier than the day such notice is
effective as an Early Termination Date in respect of all Affected
Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given under
Section 6(a) or (b), the Early Termination Date will occur on the date
so designated, whether or not the relevant Event of Default or
Termination Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early
Termination Date, no further payments or deliveries under Section
2(a)(i) or 2(e) in respect of the Terminated Transactions will be
required to be made, but without prejudice to the other provisions of
this Agreement. The amount, if any, payable in respect of an Early
Termination Date shall be determined pursuant to Section 6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and
will provide to the other party a statement (1) showing, in reasonable
detail, such calculations (including all relevant quotations and
specifying any amount payable under Section 6(e)) and (2) giving
details of the relevant account to which any amount payable to it is
to be paid. In the absence of written confirmation from the source of
a quotation obtained in determining a Market Quotation, the records of
the party obtaining such quotation will be conclusive evidence of the
existence and accuracy of such quotation.
(ii) Payment Date. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day
that notice of the amount payable is effective (in the case of an
Early Termination Date which is designated or occurs as a result of an
Event of Default) and on the day which is two Local Business Days
after the day on which notice of the amount payable is effective (in
the case of an Early Termination Date which is designated as a result
of a Termination Event). Such amount will be paid together with (to
the extent permitted under applicable law) interest thereon (before as
well as after judgment) in the Termination Currency, from (and
including) the relevant Early Termination Date to (but excluding) the
date such amount is paid, at the Applicable Rate. Such interest will
be calculated on the basis of daily compounding and the actual number
of days elapsed.
(e) Payments on Early Termination. If an Early Termination Date occurs,
the following provisions shall apply based on the parties' election in the
Schedule of a payment measure, either "Market Quotation" or "Loss", and a
payment method, either the "First Method" or the "Second Method". If the parties
fail to designate a payment measure or payment method in the Schedule, it will
be deemed that "Market Quotation" or the "Second Method", as the case may be,
shall apply. The amount, if any, payable in respect of an Early Termination Date
and determined pursuant to this Section will be subject to any Set-off.
(i) Events of Default. If the Early Termination Date results from an
Event of Default:--
(1) First Method and Market Quotation. If the First Method and
Market Quotation apply, the Defaulting Party will pay to the Non-
defaulting Party the excess, if a positive number, of (A) the sum
of the Settlement Amount (determined by the Non-defaulting Party)
in respect of the Terminated Transactions and the Termination
Currency Equivalent of the Unpaid Amounts owing to the Non-
defaulting Party over (B) the Termination Currency Equivalent of
the Unpaid Amounts owing to the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply,
the Defaulting Party will pay to the Non-defaulting Party, if a
positive number, the Non-defaulting Party's Loss in respect of
this Agreement.
(3) Second Method and Market Quotation. If the Second Method and
Market Quotation apply, an amount will be payable equal to (A)
the sum of the Settlement Amount (determined by the
<PAGE>
Non-defaulting Party) in respect of the Terminated Transactions and the
Termination Currency Equivalent of the Unpaid Amounts owing to the Non-
defaulting Party less (B) the Termination Currency Equivalent of the
Unpaid Amounts owing to the Defaulting Party. If that amount is a positive
number, the Defaulting Party will pay it to the Non-defaulting Party: if
it is a negative number, the Non-defaulting Party will pay the absolute
value of that amount to the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss apply, an amount
will be payable equal to the Non-defaulting Party's Loss in respect of
this Agreement. If that amount is a positive number, the Defaulting Party
will pay it to the Non-defaulting Party: if it is a negative number, the
Non-defaulting Party will pay the absolute value of that amount to the
Defaulting Party.
(ii) Termination Events. If the Early Termination Date results from a
Termination Event:-
(1) One Affected Party. If there is one Affected Party, the amount
payable will be determined in accordance with Section 6(e)(i)(3), if
Market Quotation applies, or Section 6(e)(i)(4), if Loss applies, except
that, in either case, references to the Defaulting Party and to the Non-
defaulting Party will be deemed to be references to the Affected Party and
the party which is not the Affected Party, respectively, and, if Loss
applies and fewer than all the Transactions are being terminated, Loss
shall be calculated in respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties:-
(A) if Market Quotation applies, each party will determine a
Settlement Amount in respect of the Terminated Transactions and an
amount will be payable equal to (I) the sum of (a) one-half of the
difference between the Settlement Amount of the party with the higher
Settlement Amount ("X") and the Settlement Amount of the party with
the lower Settlement Amount ("Y") and (b) the Termination Currency
Equivalent of the Unpaid Amounts owing to X less (II) the Termination
Currency Equivalent of the Unpaid Amounts owing to Y; and
(B) if Loss applies, each party will determine its Loss in respect
of this Agreement (or, if fewer than all the Transactions are being
terminated, in respect of all Terminated Transactions) and an amount
will be payable equal to one-half of the difference between the Loss
of the party with the higher Loss ("X") and the Loss of the party
with the lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X; if it is a
negative number, X will pay the absolute value of that amount to Y.
(iii) Adjustment for Bankruptcy. In circumstances where an Early Termination
Date occurs because "Automatic Early Termination" applies in respect of a party,
the amount determined under this Section 6(e) will be subject to such
adjustments as are appropriate and permitted by law to reflect any payments or
deliveries made by one party to the other under this Agreement (and retained by
such other party) during the period from the relevant Early Termination Date to
the date for payment determined under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation applies an amount
recoverable under this Section 6(e) is a reasonable pre-estimate of loss and not
a penalty. Such amount is payable for the loss of bargain and the loss of
protection against future risks and except as otherwise provided in this
Agreement neither party will be entitled to recover any additional damages as a
consequence of such losses.
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7. Transfer
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of the
other party, except that:-
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all its assets to, another entity (but without prejudice to any
other right or remedy under this Agreement): and
(b) a party may make such a transfer of all or any part of its interest in any
amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be
void.
8. Contractual Currency
(a) Payment in the Contractual Currency. Each payment under this Agreement
will be made in the relevant currency specified in this Agreement for that
payment (the "Contractual Currency"). To the extent permitted by applicable
law, any obligation to make payments under this Agreement in the Contractual
Currency will not be discharged or satisfied by any tender in any currency
other than the Contractual Currency, except to the extent such tender results
in the actual receipt by the party to which payment is owed, acting in a
reasonable manner and in good faith in converting the currency so tendered into
the Contractual Currency, of the full amount in the Contractual Currency of all
amounts payable in respect of this Agreement. If for any reason the amount in
the Contractual Currency so received falls short of the amount in the
Contractual Currency payable in respect of this Agreement, the party required to
make the payment will, to the extent permitted by applicable law, immediately
pay such additional amount in the Contractual Currency as may be necessary to
compensate for the shortfall. If for any reason the amount in the Contractual
Currency so received exceeds the amount in the Contractual Currency payable in
respect of this Agreement, the party receiving the payment will refund promptly
the amount of such excess.
(b) Judgments. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is rendered
(i) for the payment of any amount owing in respect of this Agreement, (ii) for
the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party is
entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the Contractual
Currency received by such party as a consequence of sums paid in such other
currency and will refund promptly to the other party any excess of the
Contractual Currency received by such party as a consequence of sums paid in
such other currency if such shortfall or such excess arises or results from any
variation between the rate of exchange at which the Contractual Currency is
converted into the currency of the judgment or order for the purposes of such
judgment or order and the rate of exchange at which such party is able, acting
in a reasonable manner in good faith in converting the currency received into
the Contractual Currency, to purchase the Contractual Currency with the amount
of the currency of the judgment or order actually received by such party. The
term "rate of exchange" includes, without limitation, any premiums and costs of
exchange payable in connection with the purchase of or conversion into the
Contractual Currency.
(c) Separate Indemnities. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and independent
causes of action, will apply notwithstanding any indulgence granted by the
party to which any payment is owed and will not be affected by judgement being
obtained or claim or proof being made for any other sums payable in respect of
this Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it will be sufficient
for a party to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
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9. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communication and prior writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing evidenced by
a facsimile transmission) and executed by each of the parties or confirmed by an
exchange of telexes or electronic messages on an electronic messaging system.
(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive the
termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative and
not exclusive of any rights, powers, remedies and privileges provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts (including by
facsimile transmission), each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of each
Transaction from the moment they agree to those terms (whether orally or
otherwise). A Confirmation shall be entered into as soon as practicable and
may be executed and delivered in counterparts (including by facsimile
transmission) or be created by an exchange of telexes or by an exchange of
electronic messages on an electronic messaging system, which in each case
will be sufficient for all purposes to evidence a binding supplement to
this Agreement. The parties will specify therein or through another
effective means that any such counterpart, telex or electronic message
constitutes a Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power or
privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege will
not be presumed to preclude any subsequent or further exercise, of that right,
power or privilege or the exercise of any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
10. Offices; Multibranch Parties
(a) If Section 10(a) is specified in the Schedule as applying, each party that
enters into a Transaction through an Office other than its head or home office
represents to the other party that, notwithstanding the place of booking office
or jurisdiction of incorporation or organisation of such party, the obligations
of such party are the same as if it had entered into the Transaction through its
head or home office. This representation will be deemed to be repeated by such
party on each date on which a Transaction is entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the prior
written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office through
which it makes and receives payments or deliveries with respect to a Transaction
will be specified in the relevant Conformation.
11. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including legal fees and
Stamp Tax, incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement or any Credit Support Document
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to which the Defaulting Party is a party or by reason of the early termination
of any Transaction, including, but not limited to, costs of collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice or
other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated:--
(i) if in writing and delivered in person or by courier, on the date it
is delivered;
(ii) if sent by telex, on the date the recipient's answerback is received;
(iii) if sent by facsimile transmission, on the date that transmission is
received by a responsible employee of the recipient in legible form (it
being agreed that the burden of proving receipt will be on the sender and
will not be met by a transmission report generated by the sender's
facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or the
equivalent (return receipt requested), on the date that mail is delivered
or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that electronic
message is received.
unless the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered (or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings relating to
this Agreement ("Proceedings"), each party irrevocably:--
(i) submits to the jurisdiction of the English courts, if this Agreement
is expressed to be governed by English law, or to the non-exclusive
jurisdiction of the courts of the State of New York and the United States
District Court located in the Borough of Manhattan in New York City, if
this Agreement is expressed to be governed by the laws of the State of New
York; and
(ii) waives any objection which it may have at any time to the laying of
venue of any Proceedings brought in any such court, waives any claim that
such Proceedings have been brought in an inconvenient forum and further
waives the right to object, with respect to such Proceedings, that such
court does not have any jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be governed
by English law, the Contracting States, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments Act 1982 or any modification, extension or
re-enactment thereof for the time being in force) nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) Service of Process. Each party irrevocably appoints the Process Agent (if
any) specified opposite its name in the Schedule to receive, for it and on its
behalf, service of process in any Proceedings. If for any
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<PAGE>
reason any party's Process Agent is unable to act as such, such party will
promptly notify the other party and within 30 days appoint a substitute process
agent acceptable to the other party. The parties irrevocably consent to service
of process given in the manner provided for notices in Section 12. Nothing in
this Agreement will affect the right of either party to serve process in any
other manner permitted by law.
(d) Waiver of Immunities. Each party irrevocably waives, to the fullest extent
permitted by applicable law, with respect to itself and its revenues and assets
(irrespective of their use or intended use), all immunity on the grounds of
sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any
court, (iii) relief by way of injunction, order for specific performance or for
recovery of property, (iv) attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment to which it or its
revenues or assets might otherwise be entitled in any Proceedings in the courts
of any jurisdiction and irrevocably agrees, to the extent permitted by
applicable law, that it will not claim any such immunity in any Proceedings.
14. Definitions
As used in this Agreement:--
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control" of
any entity or person means ownership of a majority of the voting power of the
entity or person.
"Applicable Rate" means:--
(a) in respect of obligations payable or deliverable (or which would have been
but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of either
party from and after the date (determined in accordance with Section 6(d)(ii))
on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which would
have been but for Section 2(a)(iii)) by a Non-defaulting Party, the Non-default
Rate; and
(d) in all other cases, the Termination Rate.
"Burdened Party" has the meaning specified in Section 5(b).
"Change in Tax Law" means the enactment, promulgation, execution or ratification
of, or any change in or amendment to, any law (or in the application or official
interpretation of any law) that occurs on or after the date on which the
relevant Transaction is entered into.
"consent" includes a consent, approval, action, authorisation, exemption,
notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is specified as
such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of funding the relevant amount plus 1% per annum.
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"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with Section
6(a) or 6(b)(iv).
"Event of Default" has the meaning specified in Section 5(a) and, if applicable,
in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"Indemnifiable Tax" means any Tax other than a Tax that would not be imposed in
respect of a payment under this Agreement but for a present or former
connection between the jurisdiction of the government or taxation authority
imposing such Tax and the recipient of such payment or a person related to such
recipient (including, without limitation, a connection arising from such
recipient or related person being or having been a citizen or resident of such
jurisdiction, or being or having been organised, present or engaged in a trade
or business in such jurisdiction, or having or having had a permanent
establishment or fixed place of business in such jurisdiction, but excluding a
connection arising solely from such recipient or related person having executed,
delivered, performed its obligations or received a payment under, or enforced,
this Agreement or a Credit Support Document).
"law" includes any treaty, law, rule or regulation (as modified, in the case of
tax matters, by the practice of any relevant governmental revenue authority) and
"lawful" and "unlawful" will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which commercial
banks are open for business (including dealings in foreign exchange and foreign
currency deposits) (a) in relation to any obligation under Section 2(a)(i), in
the place(s) specified in the relevant Confirmation or, if not so specified, as
otherwise agreed by the parties in writing or determined pursuant to provisions
contained, or incorporated by reference, in this Agreement, (b) in relation to
any other payment, in the place where the relevant account is located and, if
different, in the principal financial centre, if any, of the currency of such
payment, (c) in relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), in the city specified in the address for
notice provided by the recipient and, in the case of a notice contemplated by
Section 2(b), in the place where the relevant new account is to be located and
(d) in relation to Section 5(a)(v)(2), in the relevant locations for
performance with respect to such Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be its
total losses and costs (or gain, in which case expressed as a negative number)
in connection with this Agreement or that Terminated Transaction or group of
Terminated Transactions, as the case may be, including any loss of bargain, cost
of funding or, as the election of such party but without duplication, loss or
cost incurred as a result of its terminating, liquidating, obtaining or
reestablishing any hedge or related trading position (or any gain resulting from
any of them). Loss includes losses and costs (or gains) in respect of any
payment or delivery required to have been made (assuming satisfaction of each
applicable condition precedent) on or before the relevant Early Termination Date
and not made, except, so as to avoid duplication, if Section 6(e)(i)(1) or (3)
or 6(e)(ii)(2)(A) applies. Loss does not include a party's legal fees and
out-of-pocket expenses referred to under Section 11. A party will determine its
Loss as of the relevant Early Termination Date, or, if that is not reasonably
practicable, as of the earliest date thereafter as is reasonably practicable. A
party may (but need not) determine its Loss by reference to quotations of
relevant rates or prices from one or more leading dealers in the relevant
markets.
"Market Quotation" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an amount,
if any, that would be paid to such party (expressed as a negative number) or by
such party (expressed as a positive number) in consideration of an agreement
between such party (taking into account any existing Credit Support Document
with respect to the obligations of such party) and the quoting References
Market-maker to enter into a transaction (the "Replacement Transaction") that
would have the effect of preserving for such party the economic equivalent of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
by the parties under Section 2(a)(i) in respect of such Terminated Transaction
or group of Terminated Transactions that would, but for the occurrence of the
relevant Early Termination Date, have
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been required after that date. For this purpose, Unpaid Amounts in respect of
the Terminated Transaction or group of Terminated Transactions are to be
excluded but, without limitation, any payment or delivery that would, but for
the relevant Early Termination Date, have been required (assuming satisfaction
of each applicable condition precedent) after that Early Termination Date is to
be included. The Replacement Transaction would be subject to such documentation
as such party and the Reference Market-maker may, in good faith, agree. The
party making the determination (or its agent) will request each Reference
Market-maker to provide its quotation to the extent reasonably practicable as of
the same day and time (without regard to different time zones) on or as soon as
reasonably practicable after the relevant Early Termination Date. The day and
time as of which those quotations are to be obtained will be selected in good
faith by the party obliged to make a determination under Section 6(e), and, if
each party is so obliged, after consultation with the other. If more than three
quotations are provided, the Market Quotation will be the arithmetic mean of the
quotations, without regard to the quotations having the highest and lowest
values. If exactly three such quotations are provided, the Market Quotation will
be the quotation remaining after disregarding the highest and lowest quotations.
For this purpose, if more than one quotation has the same highest value or
lowest value, then one of such quotations shall be disregarded. If fewer than
three quotations are provided, it will be deemed that the Market Quotation in
respect of such Terminated Transaction or group of Terminated Transactions
cannot be determined.
"Non-default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the Non-defaulting Party (as certified by it) if
it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Office" means a branch or office of a party, which may be such party's head or
home office.
"Potential Event of Default" means any event which, with the giving of notice or
the lapse of time or both, would constitute an Event of Default.
"Reference Market-makers" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria that
such party applies generally at the time in deciding whether to offer or to make
an extension of credit and (b) to the extent practicable, from among such
dealers having an office in the same city.
"Relevant Jurisdiction" means, with respect to a party, the jurisdictions (a) in
which the party is incorporated, organised, managed and controlled or considered
to have its seat, (b) where an Office through which the party is acting for
purposes of this Agreement is located, (c) in which the party executes this
Agreement and (d) in relation to any payment, from or through which such payment
is made.
"Scheduled Payment Date" means a date on which a payment or delivery is to be
made under Section 2(a)(i) with respect to a Transaction.
"Set-off" means set-off, offset combination of accounts, right of retention or
withholding or similar right or requirement to which the payer of an amount
under Section 6 is entitled or subject (whether arising under this Agreement,
another contract, applicable law or otherwise) that is exercised by, or imposed
on, such payer.
"Settlement Amount" means, with respect to a party and any Early Termination
Date, the sum of:--
(a) the Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without reference to
any Unpaid Amounts) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation cannot be determined or would not (in
the reasonable belief of the party making the determination ) produce a
commercially reasonable result.
"Specified Entity" has the meaning specified in the Schedule.
16
<PAGE>
"Specified Indebtedness" means, subject to the Schedule, any obligation
(whether present or future, contingent or otherwise, as principal or surety or
otherwise) in respect of borrowed money.
"Specified Transaction" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into between one party to this Agreement (or any Credit Support Provider of such
party or any applicable Specified Entity of such party) and the other party to
this Agreement (or any Credit Support Provider of such other party or any
applicable Specified Entity of such other party) which is a rate swap
transaction, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions), (b) any combination of
these transactions and (c) any other transaction identified as a Specified
Transaction in this Agreement or the relevant confirmation.
"Stamp Tax" means any stamp, registration, documentation or similar tax.
"Tax" means any present or future tax, levy, impost duty, charge, assessment or
fee of any nature (including interest, penalties and additions thereto) that
is imposed by any government or other taxing authority in respect of any payment
under this Agreement other than a stamp, registration, documentation or similar
tax.
"Tax Event" has the meaning specified in Section 5(b).
"Tax Event Upon Merger" has the meaning specified in Section 5(b).
"Terminated Transactions" means with respect to any Early Termination Date (a)
if resulting from a Termination Event, all Affected Transactions and (b) if
resulting from an Event of Default, all Transactions (in either case) in effect
immediately before the effectiveness of the notice designating that Early
Termination Date (or, if "Automatic Early Termination" applies, immediately
before that Early Termination Date).
"Termination Currency" has the meaning specified in the Schedule.
"Termination Currency Equivalent" means, in respect of any amount denominated in
the Termination Currency, such Termination Currency amount and, in respect of
any amount denominated in a currency other than the Termination Currency (the
"Other Currency"), the amount in the Termination Currency determined by the
party making the relevant determination as being required to purchase such
amount of such Other Currency as at the relevant Early Termination Date, or, if
the relevant Market Quotation or Loss (as the case may be), is determined as of
a later date, that later date, with the Termination Currency at the rate equal
to the spot exchange rate of the foreign exchange agent (selected as provided
below) for the purchase of such Other Currency with the Termination Currency at
or about 11:00 a.m. (in the city in which such foreign exchange agent is
located) on such date as would be customary for the determination of such a rate
for the purchase of such Other Currency for value on the relevant Early
Termination Date or that later date. The foreign exchange agent will, if only
one party is obliged to make a determination under Section 6(e), be selected in
good faith by that party and otherwise will be agreed by the parties.
"Termination Event" means an Illegality, a Tax Event or a Tax Event Upon Merger
or, if specified to be applicable, a Credit Event Upon Merger or an Additional
Termination Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean of the
cost (without proof or evidence of any actual cost) to each party (as certified
by such party) if it were to fund or of funding such amounts.
"Unpaid Amounts" owing to any party means, with respect to an Early Termination
Date, the aggregate of (a) in respect of all Terminated Transactions, the
amounts that became payable (or that would have become payable but for Section
2(a)(iii)) to such party under Section 2(a)(i) on or prior to such Early
Termination Date and which remain unpaid as at such Early Termination Date and
(b) in respect of each Terminated Transaction, for each obligation under Section
2(a)(i) which was (or would have been but for Section 2(a)(iii)) required to be
settled by delivery to such party on or prior to such Early Termination Date and
which has not been so settled as at such Early Termination Date, an amount equal
to the fair market
<PAGE>
value of that which was (or would have been) required to be delivered as of the
originally scheduled date for delivery, in each case together with (to the
extent permitted under applicable law) interest, in the currency of such
amounts, from (and including) the date such amounts or obligations were or would
have been required to have been paid or performed to (but excluding) such Early
Termination Date, at the Applicable Rate. Such amounts of interest will be
calculated on the basis of daily compounding and the actual number of days
elapsed. The fair market value of any obligation referred to in clause (b) above
shall be reasonably determined by the party obliged to make the determination
under Section 6(e) or, if each party is so obliged, it shall be the average of
the Termination Currency Equivalents of the fair market values reasonably
determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
- ------------------------------------- --------------------------------------
(Name of Party) (Name of Party)
By:---------------------------------- By:-----------------------------------
Name: Name:
Title: Title:
Date: Date:
12
<PAGE>
Draft: 14 March 2000
Series 2000-1G Medallion Trust
ISDA Master Agreement
(Currency Swap Agreement)
Date:
Securitisation Advisory Services Pty. Limited
Manager
Merrill Lynch Capital Services Inc.
MLCS and Party A
Perpetual Trustee Company Limited
Party B
Commonwealth Bank of Australia
CBA and Standby Swap Provider
CLAYTON UTZ
Lawyers
Levels 27-35
No.1 O'Connell Street
SYDNEY NSW 2000
Liability is limited by the Solicitors Scheme under the Professional Standards
Act 1994 NSW
<PAGE>
SCHEDULE
to the
MASTER AGREEMENT
dated as of 2000 between
Securitisation Advisory Services Pty. Limited
ACN 064 133 946
("Manager")
and
Merrill Lynch Capital Services Inc.
("MLCS" and "Party A")
and
Perpetual Trustee Company Limited
ACN 000 001 007
as trustee of the Series 2000-1G Medallion Trust
("Party B")
and
Commonwealth Bank of Australia
ACN 123 123 124
("CBA" and "Standby Swap Provider")
Part 1. Termination Provisions.
In this Agreement:
(a) "Specified Entity" does not apply in relation to Party A or Party B.
(b) The definition of "Specified Transaction" is not applicable.
(c) (i) The following provisions of Section 5 will not apply to Party A:
Section 5(a)(ii) Section 5(a)(v)
Section 5(a)(iii) Section 5(a)(vi)
Section 5(a)(iv) Section 5(b)(iv)
(ii) The following provisions of Section 5 will not apply to Party B:
Section 5(a)(ii) Section 5(a)(v) Section 5(a)(viii)
Section 5(a)(iii) Section 5(a)(vi) Section 5(b)(iv)
Section 5(a)(iv) Section 5(a)(vii)
(iii) Section 5(b)(ii) will not apply to Party A as the Affected Party
(subject to Part 5(6)(b) of this Schedule) and Section 5(b)(iii)
will not apply to Party A as the Burdened Party.
(d) The "Automatic Early Termination" provisions in Section 6(a) will not
apply to Party A or Party B.
1.
<PAGE>
(e) Payments on Early Termination. For the purposes of Section 6(e) of this
Agreement:
(i) Market Quotation will apply; and
(ii) the Second Method will apply.
(f) "Termination Currency" means US$ provided that if an amount due in
respect of an Early Termination Date will be payable by Party B to
Party A the Termination Currency for the purpose of calculating and
paying that amount is Australian Dollars.
(g) "Additional Termination Event" applies. The following is an Additional
Termination Event in relation to which both Party A and Party B are
Affected Parties:
"An Event of Default (as defined in the Security Trust Deed) occurs and
the Security Trustee has declared, in accordance with the Security
Trust Deed, the Class A-1 Notes immediately due and payable."
For the purposes of calculating a payment due under Sections 6(d) and
(e) when an Early Termination Date is designated under Section 6(b) as
a result of such Additional Termination Event, Party B will be the only
Affected Party.
Part 2. Tax Representations
(a) Payer Tax Representations. For the purpose of Section 3(e) of this
Agreement, Party A and Party B each make the following representation:
It is not required by any applicable law, as modified by the practice
of any relevant government revenue authority, of any Relevant
Jurisdiction to make any deduction or withholding for or on account of
any Tax from any payment (other than interest under Section 2(e),
6(d)(ii) or 6(e) of this Agreement) to be made by it to any other party
under this Agreement. In making this representation, it may rely on:
(i) the accuracy of any representation made by that other party
pursuant to Section 3(f) of this Agreement;
(ii) the satisfaction of the agreement contained in Section 4(a)(i)
or 4(a)(iii) of this Agreement and the accuracy and
effectiveness of any document provided by that other party
pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement; and
(iii) the satisfaction of the agreement of that other party contained
in Section 4(d) of this Agreement,
PROVIDED THAT it shall not be a breach of this representation where
reliance is placed on clause (ii) and the other party does not deliver
a form or document under Section 4(a)(iii) by reason of material
prejudice to its legal or commercial position.
(b) Payee Tax Representations. For the purpose of Section 3(f) of this
Agreement:
MLCS as Party A makes the following representation:
It is fully eligible for the benefits of the "Business Profits" or
"Industrial and Commercial Profits" provision, as the case may be, the
"Interest" provision or the "Other Income" provision (if any) of the
Specified Treaty with respect to any payment described in such
provisions and received or to be received by it in connection with this
Agreement and no such payment is attributable to a trade or business
carried on by it through a permanent establishment in the Specified
Jurisdiction.
"Specified Treaty" means the income tax treaty between the United
States and the Commonwealth of Australia.
"Specified Jurisdiction" means Commonwealth of Australia.
Party B and CBA as Standby Swap Provider and (on and from the Novation
Date) as Party A each makes the following representation:
2.
<PAGE>
It is an Australian resident and does not derive the payments under
this Agreement in part or whole in carrying on business in a country
outside Australia at or through a permanent establishment of itself in
that other country.
Part 3. Agreement to Deliver Documents
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver to each other party the following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are:
<TABLE>
<CAPTION>
Party required to deliver Form/Document/Certificate Date by which to be delivered
document
<S> <C> <C>
Party A, Party B, and the Any document or certificate On the earlier of (a)
Standby Swap Provider reasonably required or reasonably learning that such document
requested by a party in connection or certificate is required
with its obligations to make a and (b) as soon as reasonably
payment under this Agreement practicable following a
which would enable that party to request by a party.
make the payment free from any
deduction or withholding for or on account
of Tax or which would reduce the rate at which
deduction or withholding for or on
account of Tax is applied to that payment
(including, without limitation, in the case
of Party B, a duly executed and
completed United States Internal Revenue
Form W-8 BEN and W-8EC1 (or any
successor thereto) as requested by Party A with
respect to any payments received
by Party B.
</TABLE>
(b) Other documents to be delivered are:
<TABLE>
<CAPTION>
Party required to deliver Form/Document/Certificate Date by which to be delivered
document
<S> <C> <C>
Party A, Party B, the A certificate specifying the names, On the execution of this
Standby Swap Provider title and specimen Agreement and each Confirmation
and the Manager signatures of the persons unless that certificate has
authorised to execute this already been supplied and remains
Agreement and each Confirmation true and in effect and when the
or other communication in certificate is updated.
writing made pursuant to
this Agreement on its behalf.
Party A, Party B, the A legal opinion as to the Prior to the Closing Date.
Standby Swap Provider validity and enforceability of
and the Manager its obligations under this
Agreement in form and substance
(and issued by legal counsel)
reasonably acceptable to each
other party.
Party B A certified copy to Party A of Not less than 5 Business Days (or
each Credit Support Document such lesser period as Party A
specified in respect of Party agrees to) before the Trade Date
B and (without limiting any of the first occurring
obligation Party B may have Transaction and in the case of
under the terms of that Credit any amending documents
Support Document to notify
Party
</TABLE>
3.
<PAGE>
<TABLE>
<S> <C> <C>
A of amendments thereto) a entered into subsequent to that
certified copy to Party A of date, promptly after each amending
any document that amends in document (if any) has been
any way the terms of that Credit entered into.
Support Document.
Party A A certified copy to Party B, Not less than 5 Business Days
the Standby Swap Provider and (or such lesser period as Party B
the Manager of each Credit and the Manager agree to) before the
Support Document (if any) Trade Date of the first occurring
specified in respect of Party A Transaction and in the case of any
and (without limiting any amending documents entered into
obligation Party A may have under subsequent to that date, promptly
the terms of that Credit after each amending document (if any)
Support Document to notify Party B, has been entered into.
the Standby Swap Provider or the
Manager of amendments thereto) a
certified copy to Party B, the Standby
Swap Provider and the Manager
of any document that amends
in any way the terms of that
Credit Support Document.
</TABLE>
Other than the legal opinions, any Credit Support Document or any document
amending a Credit Support Document (but including any certifications in relation
to such documents), all documents delivered under this Part 3(b) are covered by
the Section 3(d) representation. For the purposes of this Part 3(b), a copy of a
document is taken to be certified if a director or secretary of the party
providing the document, or a person authorised to execute this Agreement or a
Confirmation on behalf of that party or a solicitor acting for that party has
certified it to be a true and complete copy of the document of which it purports
to be a copy.
4.
<PAGE>
Part 4. Miscellaneous
(a) Addresses for Notices. For the purpose of Section 12(a) of this
Agreement:
Address for notices or communications to MLCS as Party A:
Address: Merrill Lynch World Headquarters, World Financial
Center, North Tower, 22nd Floor, 250 Vesey Street, New
York, New York 10281-1322, U.S.A.
Attention: Swap Group
Telex No: 6716341
Answerback: MLB SCTR
Facsimile No.: 212 449-1788
Telephone No.: 212 449-0291
Additionally, a copy of all notices pursuant to Sections 5, 6 and 7 as
well as any changes to counterparty's address, telephone number or
facsimile number should be sent to the Standby Swap Provider at the
address set out below and to:
Address: CICG Counsel
Merrill Lynch World Headquarters, World Financial
Center, North Tower, 12th Floor, 250 Vesey Street, New
York, New York 10281-1323, U.S.A.
Attention: Swaps Legal
Facsimile No.: 212 449-6993
Address: Merrill Lynch International (Australia) Limited
Level 49, 19-29 Martin Place, Sydney NSW 2000.
Attention: Swaps Group
Facsimile No.: 612 9225 6767
Address for notices or communications to Party B:
Address: Perpetual Trustee Company Limited
Level 3
39 Hunter Street
Sydney NSW 2000
AUSTRALIA
Attention: Manager, Securitisation Services
Facsimile No.: 612 9221 7870
Additionally, a copy of all notices as well as any changes to
counterparty's address, telephone number or facsimile number should be
sent to:
Address: Securitisation Advisory Services Pty. Limited
Level 8
48 Martin Place
Sydney NSW 2000
AUSTRALIA
5.
<PAGE>
Attention: Manager, Securitisation
Facsimile No.: 612 9378 2481
Address for notices or communications to CBA as Standby Swap Provider
and (on and from the Novation Date) as Party A:
Address: Commonwealth Bank of Australia
Level 8
48 Martin Place
Sydney NSW 2000
AUSTRALIA
Attention: Manager, Securitisation
Facsimile No.: 612 9378 2481
(b) Process Agent. For the purpose of Section 13(c) of this Agreement:
MLCS as Party A appoints as its Process Agent: Merrill Lynch
International (Australia) Limited, Level 49, 19-29 Martin Place,
Sydney NSW 2000.
Party B appoints as its Process Agent: not applicable.
CBA as Standby Swap Provider and (on and from the Novation Date) as
Party A appoints as its Process Agent: not applicable.
(c) Offices. The provisions of Section 10(a) will apply to this
Agreement.
(d) Multibranch Party. For the purpose of Section 10(c) of this Agreement:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) Calculation Agent.
(i) The Calculation Agent is:
(A) in respect of all notices, determinations and calculations
in respect of amounts denominated in US$, the Agent Bank;
and
(B) in respect of all other notices, determinations and
calculations, the Manager.
(ii) All determinations and calculations by the Calculation Agent will:
(A) be made in good faith and in the exercise of its commercial
reasonable judgment; and
(B) be determined, where applicable, on the basis of then
prevailing market rates or prices.
All such determinations and calculations will be binding on Party A
and Party B in the absence of manifest error. Party B and the Manager
covenant in favour of Party A to use reasonable endeavours (including,
without limitation, taking such action as is reasonably necessary to
promptly enforce the obligations of the Agent Bank under the Agency
Agreement) to ensure that the Agent Bank performs its obligations as
Calculation Agent under this Agreement.
6.
<PAGE>
(f) Credit Support Document. Details of any Credit Support Document:
(i) In relation to MLCS as Party A: A Guarantee from Merrill Lynch
& Co. Inc ("M L & Co.") in the form attached hereto as Annexure
2.
(ii) In relation to Party B: the Security Trust Deed dated on or
about the date of this Agreement, between the Class A-1 Note
Trustee, Party B, the Security Trustee and the Manager (the
"Security Trust Deed").
(iii) In relation to CBA as (on and from the Novation Date) Party A:
not applicable.
(g) Credit Support Provider.
(i) In relation to MLCS as Party A: M L & Co.
(ii) In relation to Party B: None.
(iii) In relation to CBA as (on and from the Novation Date) Party A:
none.
(h) Governing Law. This Agreement will be governed by and construed in
accordance with the laws in force in New South Wales, except the Credit
Support Annex, which will be governed by and construed in accordance
with the laws in force in the State of New York as provided in
Paragraph 13(m)(iv) of the Credit Support Annex. Section 13(b)(i) is
deleted and replaced by the following:
"(i) submits to the non-exclusive jurisdiction of the courts of
New South Wales and courts of appeal from them; and".
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) of this
Agreement will apply in respect of all Transactions.
(j) "Affiliate" will have the meaning specified in Section 14 of this
Agreement. However, for the purposes of Section 3(c) Party B is deemed
not to have any Affiliates.
7.
<PAGE>
Part 5. Other Provisions
(1) Payments: In Section 2:
(a) In Section 2(a)(i) add the following sentence:
"Each payment will be by way of exchange for the corresponding
payment or payments payable by the other party (if any)".
(b) In Section 2(a)(ii) the first sentence is deleted and replaced
with the following sentence:
"Unless specified otherwise in this Agreement, payments under this
Agreement by:
(i) Party A, will be made by 10.00 am (New York time); and
(ii) Party B, will be made by 4.00pm (Sydney time),
on the due date for value on that date in the place of the account
specified in the relevant Confirmation or otherwise pursuant to
this Agreement, in freely transferable funds, free of any set-off,
counterclaim, deduction or withholding (except as expressly
provided in this Agreement) and in the manner customary for
payment in the required currency".
(c) Insert a new paragraph (iv) in Section 2(a) immediately after
Section 2(a)(iii) as follows:
"(iv) The condition precedent in Section 2(a)(iii)(1) does not
apply to a payment due to be made to a party if it has
satisfied all its payment obligations under Section 2(a)(i)
of this Agreement and has no future payment obligations,
whether absolute or contingent under Section 2(a)(i)."
(d) Add the following new sentence to Section 2(b):
"Each new account so designated shall be in the same tax
jurisdiction as the original account."
(e) Amend Section 2(d) as follows:
(i) Delete the word "if" at the beginning of Section 2(d)(i)(4)
and insert the following words instead:
"if and only if X is Party A and".
(ii) In Section 2(d)(ii) insert the words "(if and only if Y is
Party A)" after the word "then" at the beginning of the
last paragraph.
Without prejudice to the above amendments, it is agreed that Party
B:
(iii) is not obliged to pay:
(1) any additional amount to Party A under Section
2(d)(i)(4); or
(2) any amount to Party A under Section 2(d)(ii); and
(iv) will not receive payments under this Agreement or any
Transaction from which deductions or withholdings have been
made.
(2) Party B's Payment Instructions: Party B irrevocably authorises and
instructs Party A
8.
<PAGE>
to make payment of:
(i) the Initial Exchange Amount due from Party A to Party B in respect
of the Initial Exchange Date by paying that amount direct to the
account notified in writing by Party B to Party A for that
purpose; and
(ii) any other amount due from Party A to Party B under this Agreement
by paying that amount direct to the Principal Paying Agent to the
account notified in writing by the Principal Paying Agent to Party
A for that purpose.
(3) Party A's Payment Instructions: Party A irrevocably authorises and
instructs Party B to make payment of:
(i) any amount denominated in A$ due from Party B to the account in
Sydney notified in writing by Party A to Party B from time to
time; and
(ii) any amount denominated in US$ due from Party B to the account
notified in writing by Party A to Party B from time to time.
(4) Representations: In Section 3:
(a) Section 3(a)(v) is amended by inserting immediately after the
words "creditors' rights generally" the following:
"(including in the case of a party being an ADI (as that term is
defined in the Reserve Bank Act, 1959 (Cth)) and section 13A(3) of
the Banking Act, 1959 (Cth)).";
(b) Relationship Between Parties. Each party will be deemed to
represent to the other parties on the date on which it enters into
a Transaction that (absent a written agreement between the parties
that expressly imposes affirmative obligations to the contrary for
that Transaction):-
(i) Non-Reliance. It is acting for its own account (in the
case of Party B, as trustee of the Series Trust), and it
has made its own independent decisions to enter into that
Transaction and as to whether that Transaction is
appropriate or proper for it based upon its own judgment
(and in the case of Party B, also on the judgment of the
Manager) and upon advice from such advisers as it has
deemed necessary. It is not relying on any communication
(written or oral) of any other party as investment advice
or as a recommendation to enter into that Transaction; it
being understood that information and explanations related
to the terms and conditions of a Transaction will not be
considered investment advice or a recommendation to enter
into that Transaction. No communication (written or oral)
received from any other party will be deemed to be an
assurance or guarantee as to the expected results of that
Transaction.
(ii) Evaluation and Understanding. It is capable of evaluating
and understanding (on its own behalf or through independent
professional advice), and understands and accepts, the
terms, conditions and risks of that Transaction. It is
also capable of assuming, and assumes, the risks of that
Transaction.
(iii) Status of Parties. No other party is acting as a fiduciary
or an adviser to it in respect of that Transaction.
(c) insert the following new paragraphs (g), (h) and (i) in Section 3
immediately after Section 3(f):
9.
<PAGE>
(g) Series Trust. By Party B, in respect of Party B only:
(i) Trust Validly Created. The Series Trust has been
validly created and is in existence at the date of
this Agreement.
(ii) Sole Trustee. It has been validly appointed as
trustee of the Series Trust and is presently the
sole trustee of the Series Trust.
(iii) No Proceedings to Remove. No notice has been given
to it and to its knowledge no resolution has been
passed, or direction or notice has been given,
removing it as trustee of the Series Trust.
(iv) Power. It has power under the Master Trust Deed to:
(A) enter into and perform its obligations under
this Agreement and each Credit Support
Document in relation to Party B in its
capacity as trustee of the Series Trust; and
(B) mortgage or charge the Assets of the Series
Trust in the manner provided in the Credit
Support Document in relation to Party B,
and its entry into this Agreement and each Credit
Support Document in relation to Party B is in the
interests of the beneficiaries of the Series Trust
and does not constitute a breach of trust.
(v) Good Title. It is the lawful owner of the Assets of
the Series Trust and, subject only to the Credit
Support Document in relation to Party B and any
Security Interest permitted under the Credit Support
Document in relation to Party B, those Assets are
free of all other Security Interests (except for
Party B's right of indemnity out of the Assets of
the Series Trust).
(vi) Eligible Swap Participant. The Series Trust was not
formed for the specific purpose of constituting an
eligible swap participant (as that term is used in
Part 35 of the General Regulations under the
Commodity Exchange Act).
(vii) Total Assets. As at close of business on the
Closing Date, following the issue of the Class A-1
Notes and provided that the aggregate Invested
Amount of the Class A-1 Notes upon issue exceeds
USD10,000,000, the Series Trust will have total
assets exceeding USD10,000,000.
(h) Non-assignment. It has not assigned (whether absolutely,
in equity, by way of security or otherwise), declared any
trust over or given any charge over any of its rights under
this Agreement or any Transaction except, in the case of
Party B, for the Security Interests created under each
Credit Support Document in relation to Party B.
(i) Contracting as principal. Each existing Transaction has
been entered into by that party as principal and not
otherwise."
(5) Event of Default: In Section 5(a):
(a) Failure to Pay or Deliver: delete paragraph (i) and replace it
with the following:
10.
<PAGE>
""(i) Failure to Pay or Deliver. Failure by the party to make,
when due, any payment under this Agreement or delivery
under Section 2(a)(i) or 2(e) required to be made by it if
such failure is not remedied at or before:
(1) where the failure is by Party B, 10.00am on the
tenth day after notice of such failure is given to
Party B;" and
(2) where the failure is by Party A, 10.00am on the
tenth day after notice of such failure is given to
Party A;";
(b) Consequential amendments:
(i) delete "or" at the end of Section 5(a)(vii); and
(ii) replace the full stop at the end of Section 5(a)(viii) with
"; or"; and
(c) Downgrade Obligations: insert the following new paragraph (ix):
"(ix) Downgrade Obligations. In respect of Party A only, Party A
fails to comply with Part 5(23) of the Schedule if such
failure is not remedied on or before the tenth Business Day
(or such later day as Party B and the Manager may agree and
which the Rating Agencies confirm in writing will not
result in a reduction, qualification or withdrawal of the
credit ratings then assigned by them to the Class A-1
Notes) after notice of such failure is given to Party A.".
(6) Termination Events:
(a) Illegality: In respect of each Transaction, the parties agree that
the imposition by any Governmental Agency of an Australian
jurisdiction of any exchange controls, restrictions or
prohibitions which would otherwise constitute an Illegality for
the purposes of Sections 5(b)(i) or 5(c) will not be an event
which constitutes an Illegality for the purposes of those Sections
so that, following the occurrence of that event:
(i) neither Party A nor Party B will be entitled to designate
an Early Termination Date in respect of that Transaction as
a result of that event occurring;
(ii) payment by Party B in accordance with Part 5(3) of the
Schedule will continue to constitute proper performance of
its payment obligations in respect of that Transaction; and
(iii) Party A's obligations in respect of that Transaction or
this Agreement will, to the extent permitted by law, be
unaffected by the occurrence of that event.
(b) Party A's limited rights in relation to Tax Event:
(i) Notwithstanding Part 1(c)(iii) of the Schedule, but subject
to Section 6(b)(ii), Party A may designate an Early
Termination Date if it is an Affected Party following a Tax
Event but only if the Class A-1 Note Trustee has notified
the parties in writing that it is satisfied that all
amounts owing to the Class A-1 Noteholders will be paid in
full on the date on which the Class A-1 Notes are to be
redeemed.
(ii) If a Tax Event occurs where Party A is the Affected Party
and Party A is unable to transfer all its rights and
obligations under this Agreement and the Class A-1 Currency
Swap to an Affiliate pursuant to Section 6(b)(ii), Party A
may, at its cost, transfer all its rights, powers and
privileges and all its unperformed and future obligations
<PAGE>
under this Agreement and the Class A-1 Currency Swap to any
person provided that:
(A) each Rating Agency has confirmed in writing that the
transfer will not result in a reduction,
qualification or withdrawal of the credit ratings
then assigned by them to the Class A-1 Notes; and
(B) that person has a long term credit rating assigned
by each Rating Agency of at least the long term
credit rating assigned by that Rating Agency to ML &
Co. as at the date of this Agreement or, otherwise,
the Standby Swap Provider provides its written
consent to the transfer.
(7) Termination:
(a) Termination by Trustee: Party B must not designate an Early
Termination Date without the prior written consent of the Class A-
1 Note Trustee.
(b) Termination by Class A-1 Note Trustee: If following an Event of
Default or Termination Event, Party B does not exercise its right
to terminate a Transaction, then the Class A-1 Note Trustee may
designate an Early Termination Date in relation to that
Transaction as if it were a party to this Agreement.
(c) Termination Payments by Party B: Notwithstanding Section 6(d)(ii),
any amount calculated as being due by Party B in respect of any
Early Termination Date under Section 6(e) will be payable on the
Distribution Date immediately following the date that such amount
would otherwise be payable under Section 6(d)(ii) (or will be
payable on that date if that date is a Distribution Date) except
to the extent that such amount may be satisfied from an earlier
distribution under the Security Trust Deed or the payment of an
upfront premium in respect of a Replacement Currency Swap in
accordance with Part 5(17)(b).
(d) Transfers to avoid Termination: Section 6(b)(ii) is amended as
follows:
(i) The following sentence is added at the end of the second
paragraph:
"However, if Party A is that other party it must, if so
requested by the Manager, use reasonable efforts (which
will not require Party A to incur a loss, excluding
immaterial, incidental expenses) to make such a transfer to
an Affiliate provided the Rating Agencies have given prior
written confirmation to the Manager that such a transfer
will not result in a reduction, qualification or withdrawal
of the credit ratings then assigned by them to the Class A-
1 Notes."
(ii) The third paragraph is deleted and replaced with the
following:
"Any such transfer by a party under this Section 6(b)(ii)
will be subject to and conditional upon the prior written
consent of the other party, which consent will not be
withheld:
(1) where the other party is Party A, if Party A's
policies in effect at such time would permit it to
enter into transactions with the transferee on the
terms proposed; or
(2) where the other party is Party B, if the Rating
Agencies have confirmed in writing that such
transfer will not result in a reduction,
qualification or withdrawal of the credit ratings
then assigned by them to the Class A-1 Notes.
(e) Notice of Event of Default. For the purposes of Section 6(a) and
(b):
<PAGE>
(i) Party A may only provide a notice specifying an Event of
Default to Party B as the Defaulting Party and may only
designate an Early Termination Date following a Termination
Event where Party A or Party B (or both) is the Affected
Party or the Burdened Party; and
(ii) the Standby Swap Provider may not issue a notice specifying
an Event of Default or designating an Early Termination
Date (except as Party A on or after the Novation Date).
(8) No Set-Off: Section 6(e) is amended by deleting the last sentence of the
first paragraph.
(9) Transfer: Section 7 is replaced with:
"7. Essential term: Transfer
(a) Neither the interests nor the obligations of any party in or under
this Agreement (including any Transaction) are capable of being
assigned or transferred (whether at law, in equity or otherwise),
charged or the subject of any trust (other than the Series Trust
or the trusts created pursuant to the Credit Support Document in
relation to Party B) or other fiduciary obligation. Any action by
a party which purports to do any of these things is void.
(b) Nothing in this Section 7:
(i) restricts a transfer by a party after the other parties
have agreed to the variation of this Agreement in
accordance with Part 5(20) to the extent necessary to
permit such transfer;
(ii) restricts a novation of the interests and obligations of a
party in or under this Agreement (including any
Transaction) for the purposes of giving effect to a
transfer under Section 6(b)(ii);
(iii) restricts a transfer by a party of all or any part of its
interest in any amount payable to it from a Defaulting
Party under Section 6(e);
(iv) restricts a transfer by Party B or the Manager to a
Substitute Trustee or Substitute Manager, respectively, in
accordance with the Master Trust Deed;
(v) restricts Party B from granting security over a Transaction
or this Agreement pursuant to any Credit Support Document
in relation to Party B; or
(vi) limits Parts 5(6)(b)(ii), 5(23), 5(24), 5(25) or 5(26).
(c) Each party acknowledges that the other party enters into this
Agreement and each Transaction on the basis that this Section 7
must be strictly observed and is essential to the terms of this
Agreement (including each Transaction)."
(10) Facsimile Transmission: In Section 12:
(a) delete Section 12(a)(ii); and
<PAGE>
(b) replace Section 12(a)(iii) with:
"(iii) if sent by facsimile transmission:
(A) in the case of any notice or other communication
pursuant to Parts 5(24), (25) or (26), on the date
that transmission is received by a responsible
employee of the recipient in legible form (it being
agreed that the burden of proving receipt will be on
the sender and will not be met by a transmission
report generated by the sender's facsimile machine);
or
(B) otherwise, on the date a transmission report is
produced by the machine from which the facsimile was
sent which indicates that the facsimile was sent in
its entirety to the facsimile number of the
recipient notified for the purpose of this Section
unless the recipient notifies the sender within one
Business Day of the facsimile being sent that the
facsimile was not received in its entirety in
legible form;".
(11) Definitions
In this Agreement, unless the contrary intention appears:
(a) Master Trust Deed, Class A-1 Note Conditions and Series
Supplement: subject to Part 5(11)(h), unless defined in this
Agreement words and phrases defined in the Master Trust Deed, the
Class A-1 Note Conditions and the Series Supplement have the same
meaning in this Agreement. Subject to Part 5(11)(h), where
there is any inconsistency in a definition between this Agreement
(on the one hand) and the Master Trust Deed, the Class A-1 Note
Conditions or the Series Supplement (on the other hand), this
Agreement prevails. Where there is any inconsistency in a
definition between the Master Trust Deed (on the one hand) and the
Series Supplement or the Class A-1 Note Conditions (on the other
hand), the Series Supplement or the Class A-1 Note Conditions, as
applicable, prevail over the Master Trust Deed in respect of the
Series Trust. Where there is an inconsistency in a definition
between the Class A-1 Note Conditions and the Series Supplement,
the Series Supplement prevails over the Class A-1 Note Conditions.
Where words or phrases used but not defined in this Agreement are
defined in the Master Trust Deed in relation to a Series Trust (as
defined in the Master Trust Deed) and/or an Other Trust such words
or phrases are to be construed in this Agreement, where necessary,
as being used only in relation to the Series Trust (as defined in
the Series Supplement) and/or the CBA Trust, as the context
requires;
(b) Trustee Capacity:
(i) a reference to Party B is a reference to Party B in its
capacity as trustee of the Series Trust only, and in no
other capacity; and
(ii) a reference to the undertaking, assets, business or money
of Party B is a reference to the undertaking, assets,
business or money of Party B in the capacity referred to
in paragraph 11(b)(i) only;
(c) Definitions: in Section 14:
(i) replace the definitions of "Affected Transactions" and
"Local Business Day" with the following:
""Affected Transactions" means, with respect to a
Termination Event, all Transactions."
""Local Business Day" has the same meaning as "Business
Day"."
<PAGE>
(ii) insert the following new definitions:
"A$ Class A-1 Unpaid InterestPayment" means in relation to
a Distribution Date the amount available to be allocated
towards payment to Party A in respect of A$ Class A-1
Unpaid Interest Amounts on that Distribution Date in
accordance with clause 10.2(k)(i) of the Series Supplement
determined on the basis that all amounts allocated towards
payment of A$ Class A-1 Interest Amounts and A$ Class A-1
Unpaid Interest Amounts pursuant to clause 10.2(k)(i) of
the Series Supplement are allocated first towards payment
of A$ Class A-1 Interest Amounts and then, once the A$
Class A-1 Interest Amounts are paid in full, towards
payment of A$ Class A-1 Unpaid Interest Amounts.
"BBSW" or "AUD-BBR-BBSW" in relation to a Calculation
Period means the rate appearing at approximately 10.00 am
Sydney time on the Reset Date for that Calculation Period
on the Reuters Screen page "BBSW" as being the average of
the mean buying and selling rates appearing on that page
for a bill of exchange having a tenor of three months .
If:
(a) on that Reset Date fewer than 4 banks are quoted on
the Reuters Screen page "BBSW"; or
(b) for any other reason the rate for that day cannot be
determined in accordance with the foregoing
procedures,
then "BBSW" or "AUD-BBR-BBSW" means such rate as is
specified by the Calculation Agent having regard to
comparable indices then available.
"Class A-1 Currency Swap" means the Transaction entered
into between Party A, Party B, the Standby Swap Provider
and the Manager on the terms specified in the Confirmation
set out in Annexure 1 (or as otherwise agreed between Party
A, Party B, the Standby Swap Provider and the Manager).
"Commission" has the same meaning as in the Class A-1 Note
Trust Deed.
"Credit Support Annex" means the Credit Support Annex
annexed to this Agreement.
"Determination Time" in relation to a Distribution Date
means on or about 11.00am Sydney time 1 Business Day prior
to that Distribution Date.
"Inconvertibility Event" means any event beyond the control
of CBA that makes it impossible for CBA to convert to U.S.
Dollars through customary legal channels an amount of
Australian Dollars sufficient to fulfil CBA's obligations
under this Agreement and the Class A-1 Currency Swap.
"Joint Ratings" means the highest possible jointly
supported short term credit rating or long term credit
rating, as applicable, that can be determined in relation
to Party A and the Standby Swap Provider by Moody's, S&P
and Fitch IBCA in accordance with Moody's, S&P's and Fitch
IBCA's respective approaches to jointly supported
obligations provided that if either Party A or the Standby
Swap Provider has a long term credit rating of less than
BBB from S&P the Joint Ratings from S&P will be the credit
ratings of the other party.
<PAGE>
"Master Trust Deed" means the Master Trust Deed dated 8
October 1997 between Party B and the Manager, as amended
from time to time.
"Novation Date" means the date upon which the obligations
of MLCS as Party A under this Agreement and the Class A-1
Currency Swap are novated to the Standby Swap Provider
pursuant to Part 5(25)(c).
"Prescribed Rating Period" means in relation to the Joint
Ratings determined by the Rating Agencies:
(a) a period of 30 Business Days from the date of
determination of the relevant credit rating where
any Joint Rating immediately after that
determination is less than the relevant Prescribed
Rating but greater than or equal to a short term
credit rating of A-1 by S&P and long term credit
ratings of A- by S&P, A3 by Moody's and A- by Fitch
IBCA, as the case may be; and
(b) a period of 5 Business Days from the date of
determination of the relevant credit rating where
any Joint Rating immediately after that
determination is less than a short term credit
rating of A-1 by S&P or less than a long term credit
rating of A- by S&P, A3 by Moody's and A- by Fitch
IBCA.
"Prescribed Ratings" means a short term credit rating of
A - 1+ by S&P or a long term credit rating of AA- by S&P
and long term credit ratings of AA- by Fitch IBCA and A2 by
Moody's.
"Series Supplement" means the Series Supplement dated on or
about the date of this Agreement between CBA, Party B and
the Manager.
"Series Trust" means the Series 2000-1G Medallion Trust
constituted by the Master Trust Deed and the Series
Supplement.
(d) Interpretation:
(i) references to time are references to Sydney time;
(ii) a reference to "wilful default" in relation to Party B
means, subject to Part 5(11)(d)(iii) of this Schedule, any
wilful failure by Party B to comply with, or wilful breach
by Party B of, any of its obligations under any Transaction
Document, other than a failure or breach which:
A. (1) arises as a result of a breach of a Transaction
Document by a person other than:
(a) Party B; or
(b) any other person referred to in Part
5(11)(d)(iii) of this Schedule; and
(2) the performance of the action (the non-
performance of which gave rise to such breach)
is a precondition to Party B performing the said
obligation;
B. is in accordance with a lawful court order or
direction or required by law; or
C. is in accordance with any proper instruction or
direction of
<PAGE>
the Investors given at a meeting convened under the
Master Trust Deed;
(iii) a reference to the "fraud", "negligence" or "wilful
default" of Party B means the fraud, negligence or wilful
default of Party B and of its officers, employees, agents
and any other person where Party B is liable for the acts
or omissions of such other person under the terms of any
Transaction Document;
(iv) a reference to "neither party" will be construed as a
reference to "no party";
(v) a reference to "other party" will be construed as a
reference to "other parties"; and
(vi) a reference to a credit rating of Party A, where Party A is
MLCS, means the higher of the relevant credit ratings of
MLCS and M L & Co.
(e) ISDA Definitions: The 1991 ISDA Definitions (as published by the
International Swaps and Derivatives Association, Inc ("ISDA")), as
supplemented by the 1998 Supplement to the 1991 ISDA Definitions
(as published by ISDA) (the "1991 ISDA Definitions") as at the
date of this Agreement are incorporated into this Agreement and
each Confirmation.
(f) Inconsistency: Subject to Part 5(11)(a), unless specified
otherwise, in the event of any inconsistency between any two or
more of the following documents in respect of a Transaction they
will take precedence over each other in the following order in
respect of that Transaction:
(i) any Confirmation;
(ii) this Schedule and Section 13 ("Elections and Variables") of
the Credit Support Annex (as applicable);
(iii) the 1991 ISDA Definitions; and
(iv) the printed form of the 1992 ISDA Master Agreement and the
printed form of the ISDA Credit Support Annex which form
part of this Agreement.
(g) Swap Transaction: Any reference to a:
(i) "Swap Transaction" in the 1991 ISDA Definitions is deemed
to be a reference to a "Transaction" for the purpose of
interpreting this Agreement or any Confirmation; and
(ii) "Transaction" in this Agreement or any Confirmation is
deemed to be a reference to a "Swap Transaction" for the
purpose of interpreting the 1991 ISDA Definitions.
(h) Incorporated Definitions and other Transaction Documents and
provisions: Where in this Agreement a word or expression is
defined by reference to its meaning in another Transaction
Document or there is a reference to another Transaction Document
or to a provision of another Transaction Document, any amendment
to the meaning of that word or expression or to that other
Transaction Document or provision (as the case may be) will be of
no effect for the purposes of this Agreement unless and until the
amendment is consented to by the parties to this Agreement.
(12) Limitation of Liability: Insert the following Section 15, after Section
14:
"15. Party B's Limitation of Liability
(a) (Limitation on Party B's liability): Party B enters into
this
<PAGE>
Agreement only in its capacity as trustee of the Series
Trust and in no other capacity. A liability incurred by
Party B acting in its capacity as trustee of the Series
Trust arising under or in connection with this Agreement is
limited to and can be enforced against Party B only to the
extent to which it can be satisfied out of the Assets of
the Series Trust out of which Party B is actually
indemnified for the liability. This limitation of Party B's
liability applies despite any other provision of this
Agreement (other than Section 15(c)) and extends to all
liabilities and obligations of Party B in any way connected
with any representation, warranty, conduct, omission,
agreement or transaction related to this Agreement.
(b) (Claims against Party B): The parties other than Party B
may not sue Party B in respect of liabilities incurred by
Party B acting in its capacity as trustee of the Series
Trust in any other capacity other than as trustee of the
Series Trust, including seeking the appointment of a
receiver (except in relation to Assets of the Series
Trust), or a liquidator, or an administrator, or any
similar person to Party B or prove in any liquidation,
administration or similar arrangements of or affecting
Party B (except in relation to the Assets of the Series
Trust).
(c) (Breach of trust): The provisions of this Section 15 will
not apply to any obligation or liability of Party B to the
extent that it is not satisfied because under the Master
Trust Deed, the Series Supplement or any other Transaction
Document or by operation of law there is a reduction in the
extent of Party B's indemnification out of the Assets of
the Series Trust, as a result of Party B's fraud,
negligence or wilful default.
(d) (Acts or omissions): It is acknowledged that the Relevant
Parties are responsible under the Transaction Documents for
performing a variety of obligations relating to the Series
Trust. No act or omission of Party B (including any
related failure to satisfy its obligations or any breach of
representation or warranty under this Agreement) will be
considered fraudulent, negligent or a wilful default of
Party B for the purpose of paragraph (c) of this Section 15
to the extent to which the act or omission was caused or
contributed to by any failure by any Relevant Person or any
other person appointed by Party B under a Transaction
Document (other than a person whose acts or omissions Party
B is liable for in accordance with any Transaction
Document) to fulfil its obligations relating to the Series
Trust or by any other act or omission of the Manager or the
Servicer or any other such person.
(e) (No obligation):
(i) (Obligations under this Agreement or any Transaction
Document): Party B is not obliged to enter into any
commitment or obligation under this Agreement or any
Transaction Document unless Party B's liability is
limited in a manner which is consistent with this
Section 15. For the avoidance of doubt, Party B
agrees and acknowledges that its liability for any
commitment or obligation it has entered into under
this Agreement is limited in a manner which is
consistent with this Section 15.
(ii) (Obligations not contained in this Agreement or any
Transaction Document): Party B is not obliged to
enter into any commitment or obligation contemplated
by but not contained in this Agreement or any
Transaction Document unless Party B's liability in
relation to that commitment or obligation is limited
in a manner satisfactory to Party B in its absolute
discretion."
<PAGE>
(13) Further Assurances: Each party will, upon request by the other party (the
"requesting party") at the expense of the requesting party, perform all
such acts and execute all such agreements, assurances and other documents
and instruments as the requesting party reasonably requires (and, in the
case of Party B, are within the powers granted to Party B under the
Master Trust Deed) to assure and confirm the rights and powers afforded,
created or intended to be afforded or created, under or in relation to
this Agreement and each Transaction or other dealing which occurs under
or is contemplated by it.
(14) Procedures for Entering into Transactions
(a) With respect to each Transaction entered into pursuant to this
Agreement and for the purposes of Section 9(e)(ii), Party A will,
by or promptly after the relevant Trade Date, send Party B and the
Manager a Confirmation substantially in the form set out in
Annexure 1 (or in such other form as may be agreed between Party
A, Party B and the Manager), and Party B and the Manager must
promptly then confirm the accuracy of and sign and return, or
request the correction of, such Confirmation; and
(b) Party B will enter into each Transaction in its capacity as
trustee of the Series Trust.
(15) Authorised Officer: Each party will be entitled to assume, in the
absence of any knowledge to the contrary, that any Confirmation, notice
or other written communication, which is issued in respect of this
Agreement and which is purported to be signed on behalf of another party
by a person specified in the certificate provided by that other party
under Part 3(b), is authorised by that other party.
(16) Recorded Conversations: Each party:
(a) consents to the electronic recording of its telephone
conversations with the other party (or any of its associated
persons) with or without the use of an automatic tone warning
device;
(b) will provide transcripts of such recordings (if any) upon
reasonable request by the other party (at the reasonable cost of
the party requesting); and
(c) acknowledges that neither is obligated to maintain copies of such
recordings and transcripts for the benefit of the other party.
(17) Replacement Currency Swap Agreement:
(a) If any Transaction under this Agreement is terminated prior to the
day upon which the Class A-1 Notes are redeemed in full, Party B
may, at the direction of the Manager, enter into one or more
currency swaps which replace that Transaction (collectively a
"Replacement Currency Swap") provided that:
(i) the Rating Agencies confirm in writing that the entry into
the Replacement Currency Swap by Party B does not result in
a reduction, qualification or withdrawal of the credit
ratings then assigned by them to the Class A-1 Notes; and
(ii) the liability of Party B under the Replacement Currency
Swap is limited to at least the same extent that its
liability is limited under that Transaction.
(b) If Party B enters into a Replacement Currency Swap pursuant to
paragraph (a) and a Settlement Amount is payable by Party B to
Party A upon termination of the Transaction referred to in Part
5(17)(a), Party B must direct the Replacement Currency Swap
provider to pay any upfront premium to enter into the Replacement
Currency Swap due to Party B directly to Party A in satisfaction
of and to the extent of Party B's obligation to pay the Settlement
Amount to Party A, and to the extent such premium is not greater
than or equal to the Settlement
<PAGE>
Amount, the balance may be satisfied by Party B as an Expense.
(c) If Party B enters into a Replacement Currency Swap pursuant to
paragraph (a) and a Settlement Amount is payable by Party A to
Party B upon termination of the Transaction referred to in Part
5(17)(a), Party B may direct Party A to pay that amount to the
Replacement Currency Swap provider in satisfaction of or towards
and to the extent of Party B's obligation (if any) to pay an
upfront premium to the Replacement Currency Swap provider to enter
into the Replacement Currency Swap.
(d) The obligations of Party B (and the rights of Party A) under this
Part 5(17) will survive the termination of this Agreement.
(18) Knowledge or Awareness: Subject to Section 12(a), each party will only
be considered to have knowledge or awareness of, or notice of, a thing or
grounds to believe anything by virtue of the officers of that party or
any Related Body Corporate of that party which have the day to day
responsibility for the administration or management of that party's (or a
Related Body Corporate of that party's) obligations in relation to the
Series Trust or the Transactions entered into under this Agreement having
actual knowledge, actual awareness or actual notice of that thing, or
grounds or reason to believe that thing (and similar references will be
interpreted in this way).
(19) Restrictions on Party B's Rights: Party B must at all times act in
accordance with the instructions of the Manager in relation to this
Agreement.
(20) Amendment to this Agreement: None of Party A, Party B, the Standby Swap
Provider or the Manager may amend this Agreement unless the Rating
Agencies have confirmed in writing that the proposed amendment will not
result in a reduction, qualification or withdrawal of the credit ratings
then assigned by them to the Class A-1 Notes.
(21) Appointment of Manager: Party B hereby exclusively appoints the Manager
as its attorney to act on Party B's behalf and exercise all rights and
powers of Party B with respect to this Agreement. Without limiting the
generality of the foregoing, the Manager may issue and receive on behalf
of Party B all notices, certificates and other communications to or by
Party A under this Agreement until such time as Party B serves written
notice on Party A of the revocation of the Manager's authority to act on
behalf of Party B in accordance with this Part 5(21) of the Schedule.
(22) Notifications to Party A: On or before the Determination Time in respect
of each Distribution Date the Manager must notify Party A and the Standby
Swap Provider in writing of:
(a) (A$ Class A-1 Principal Amount): the A$ Class A-1 Principal Amount
which the Manager has directed Party B to pay to Party A on that
Distribution Date pursuant to clause 10.5(b)(i) of the Series
Supplement;
(b) (A$ Class A-1 Interest Payment): the A$ Class A-1 Interest Payment
in relation to that Distribution Date;
(c) (Principal Charge-off): the amounts (if any) allocated to the
Class A-1 Notes in respect of any Principal Charge-off or
Principal Charge-off Reimbursement on the immediately preceding
Determination Date in accordance with Conditions 7.9 and 7.10 of
the Class A-1 Note Conditions; and
(d) (A$ Class A-1 Unpaid Interest Payment): the A$ Class A-1 Unpaid
Interest Payment (if any) in relation to that Distribution Date.
(23) Ratings Downgrade:
(a) (Downgrade): If, as a result of the reduction or withdrawal of the
credit rating of Party A or the Standby Swap Provider a Joint
Rating is less than the relevant Prescribed Rating, Party A must
by the expiry of the Prescribed Rating Period in
<PAGE>
relation to the credit ratings assigned by the Rating Agencies to
Party A and the Standby Swap Provider at that time (or such
greater period as is agreed to in writing by each relevant Rating
Agency), at its cost alone and at its election:
(i) provided that the short term Joint Rating by S&P is greater
than or equal to A-1 or the long term Joint Rating by S&P
is greater than or equal to A- and the long term Joint
Rating by Fitch IBCA is greater than or equal to A-, lodge
collateral in accordance with the Credit Support Annex in
an amount equal to the Collateral Amount as defined in Part
5(23)(b); or
(ii) enter into, and procure that the Standby Swap Provider
enters into, an agreement novating Party A's and/or the
Standby Swap Providers' rights and obligations under this
Agreement and the Class A-1 Currency Swap to a replacement
counterparty acceptable to the Manager and the Standby Swap
Provider and which the Rating Agencies confirm in writing
will not result in a reduction, qualification or withdrawal
of the credit ratings then assigned by them to the Class A-
1 Notes; or
(iii) enter into, or procure that the Standby Swap Provider
enters into, such other arrangements in respect of the
Class A-1 Currency Swap which the Rating Agencies confirm
in writing will not result in a reduction, qualification or
withdrawal of the credit ratings then assigned by them to
the Class A-1 Notes.
Notwithstanding that Party A has elected to satisfy its
obligations pursuant to this Part 5(23)(a) in a particular manner,
it may subsequently and from time to time vary the manner in which
it satisfies its obligations pursuant to this Part 5(23)(a) (but
will not be entitled to any additional grace period in relation to
such a variation).
(b) (Collateral Amount): For the purpose of this Part 5(23) the
Collateral Amount will be an amount equal to the greater of the
following:
(i) zero;
(ii) CCR; and
(iii) an amount acceptable to Moody's and Fitch IBCA and
sufficient to maintain the credit rating assigned to the
Class A-1 Notes by Moody's and Fitch IBCA immediately prior
to the review of the Joint Rating.
Where:
CCR = CR x 1.030
CR = MTM + VB
MTM means the mark-to-market value (whether positive or negative)
of the Class A-1 Currency Swap determined in accordance with
Part 5(23)(c) no earlier than 3 Business Days prior to the date
that the Collateral Amount is lodged.
VB means the volatility buffer, being the value calculated by
multiplying the Calculation Amount specified in paragraph 5.1
of the Class A-1 Currency Swap as at the most recent Distribution
Date by the relevant percentage obtained from the following table:
21.
<PAGE>
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------
Party A's and Where the period Where the period Where the period
the Standby between the date of between the date between the date of
Swap recalculation and the of recalculation recalculation and the
Provider's Scheduled Maturity and the Scheduled Scheduled Maturity
jointly Date is less than or Maturity Date is Date is greater than
supported equal to 5 years greater than 5 10 years
long term years and less
credit rating than or equal to 10
by S&P years
----------------------------------------------------------------------------------------------
<S> <C> <C> <C>
----------------------------------------------------------------------------------------------
A+ 1.05 1.75 3.0
----------------------------------------------------------------------------------------------
A 1.35 2.45 4.5
----------------------------------------------------------------------------------------------
A- 1.5 3.15 6
----------------------------------------------------------------------------------------------
</TABLE>
(c) (Mark to Market Value): Party A must calculate the mark-to-market
value of the Class A-1 Currency Swap by obtaining 2 bids from
counterparties with the Prescribed Ratings willing to provide the
Class A-1 Currency Swap in the absence of Party A. The mark-to-
market value may be a positive or a negative amount. A bid has a
negative value if the payment to be made is from the counterparty
to Party A and has a positive value if the payment to be made is
from Party A to the counterparty. The mark-to-market value is the
higher of the bids (on the basis that any bid of a positive value
is higher than any bid of a negative value).
(d) (Recalculation): Party A must recalculate the Collateral Amount
(including the CCR and the mark-to-market value) on each Valuation
Date. If:
(i) the Value on such Valuation Date of all Posted Credit
Support held by the Secured Party is less than the
recalculated Collateral Amount, the difference is the
Delivery Amount in relation to that Valuation Date; or
(ii) the Value on such Valuation Date of all Posted Credit
Support held by the Secured Party is greater than the
recalculated Collateral Amount, the difference is the
Return Amount in relation to that Valuation Date.
(f) (Definitions): For the purposes of this Part 5(23) "Delivery
Amount", "Posted Credit Support", "Secured Party", "Value" and
"Valuation Date" have the same meaning as in the Credit Support
Annex.
(24) Transfer: Notwithstanding the provisions of Section 7, MLCS as Party A
may transfer all its rights powers and privileges and all its unperformed
and future obligations under this Agreement and the Class A-1 Currency
Swap to any subsidiary of ML & Co ("Transferee") by delivering to the
Standby Swap Provider, Party B and the Manager a notice expressed to be
given under this provision signed by both MLCS as Party A and the
Transferee and an executed guarantee of the Transferee's transferred
obligations in the form of Annexure 2. Upon delivery of those documents
to Party B:
(a) (Party A's rights terminate): MLCS's rights powers privileges and
obligations as Party A under this Agreement and the Class A-1
Currency Swap terminate;
(b) (Transfer and Assumption): MLCS will be taken to have transferred
its rights powers and privileges under this Agreement and the
Class A-1 Currency Swap to the Transferee and the Transferee will
be taken to have assumed obligations equivalent to those Party A
had under this Agreement and the Class A-1 Currency Swap;
(c) (Release): Party B will be taken to have released MLCS as Party A
from all its unperformed and future obligations under this
Agreement and the Class A-1 Currency Swap; and
(d) (Documents): this Agreement and the Confirmation relating to the
Class A-1 Currency Swap shall be construed as if the Transferee
was a party to it in place of MLCS.
22.
<PAGE>
A Transferee may utilise this provision as Party A. A transfer under
this Part 5(24) will be of no force or effect until each Rating Agency
confirms in writing that such transfer will not result in a reduction,
qualification or withdrawal of the credit ratings then assigned by them
to the Class A-1 Notes and until the Standby Swap Provider has given its
written consent to such a transfer (such consent not to be withheld if
the Transferee is willing to enter into collateral arrangements between
the Transferee and the Standby Swap Provider on substantially the same
terms as have been agreed between MLCS and the Standby Swap Provider in
the Supplemental Agreement to ISDA Master Agreement between the Standby
Swap Provider, MLCS and ML & Co. dated on or about the date of this
Agreement).
(25) Standby Swap Provider:
(a) (Commitment): Notwithstanding any other provision in this
Agreement to the contrary, if MLCS as Party A fails to:
(i) make, when due, any payment required to be made by it to
Party B under the Class A-1 Currency Swap; or
(ii) comply with any obligation under Part 5(23) within the
required period,
then:
(iii) as soon as practicable following such failure but, in
relation to a failure to pay under the Class A-1 Currency
Swap, in any event no later than 11.00 am (New York time)
on the due date for such payment or, in relation to a
failure to comply with an obligation under Part 5(23),
no later than the Business Day following the due date for
compliance with such obligation, Party B must notify MLCS
as Party A and the Standby Swap Provider in writing of such
failure and:
(A) the amount of the defaulted payment and the basis of
calculation of the defaulted payment; or
(B) details of the failure to comply with the obligation
under Part 5(23),
as the case may be; and
(iv) as soon as reasonably practicable after its receipt of such
notice (and in any event, in relation to a failure to pay
under the Class A-1 Currency Swap, no later than 2.00 pm
(New York time) on the due date for such payment, and, in
relation to a failure to comply with an obligation under
Part 5(23), no later than 3 Business Days after the
failure to comply with such obligation, provided, in each
case, that notice has been given by Party B by the required
times in accordance with Part 5(25)(a)(iii)) the Standby
Swap Provider must:
(A) in relation to a failure to pay under the Class A-1
Currency Swap, pay to Party B the amount then owing
by MLCS as Party A to Party B under the Class A-1
Currency Swap by depositing such amount into the
Collections Account in cleared funds; and
(B) in relation to a failure to comply with an obligation
under Part 5(23), satisfy the obligations of MLCS
as Party A under Part 5(23).
(b) (Reimbursement): If on any day the Standby Swap Provider:
(i) makes a payment pursuant to Part 5(25)(a)(iv)(A),
MLCS as Party A must by 2.00 pm (New York time) on
the next following Business Day (or such other time
as the Standby
23.
<PAGE>
Swap Provider may agree in writing) pay to the
Standby Swap Provider an amount equal to that payment
by depositing such amount into the account which the
Standby Swap Provider nominates for this purpose in
cleared funds; or
(ii) satisfies the obligations of MLCS as Party A pursuant
to Part 5(25)(a)(iv)(B), MLCS as Party A must:
(A) within 3 Business Days, fulfil its obligations
under Part 5(23) such that any collateral
lodged by the Standby Swap Provider pursuant to
Part 5(23)(a)(i) or any other arrangement made
by the Standby Swap Provider pursuant to Part
5(23)(a)(iii) may be returned to the Standby
Swap Provider or will cease (but MLCS as Party A
will have no obligations to the Standby Swap
Provider under this Part 5(25)(b)(ii)(A) in
relation to any novation pursuant to Part
5(23)(a)(ii)); and
(B) upon demand by the Standby Swap Provider,
indemnify the Standby Swap Provider from and
against any cost or liability incurred by the
Standby Swap Provider in satisfying those
obligations.
(c) (Novation): If:
(i) MLCS as Party A defaults in its payment obligations
under Part 5(25)(b)(i) for reasons other than
solely a technical, computer or similar error outside
the control of Party A and such default is not
remedied on or before one Business Day after such
failure; or
(ii) MLCS as Party A fails to fulfil its obligations under
Part (25)(b)(ii),
then:
(iv) MLCS's rights, powers, privileges and obligations as
Party A under this Agreement and the Class A-1
Currency Swap terminate other than its rights,
powers, privileges and obligations pursuant to Part
5(25)(d) and Paragraph 13(m)(vii) of the Credit
Support Annex;
(v) subject to Part 5(25)(c)(vii), MLCS will be taken to
have transferred its rights powers and privileges as
Party A under this Agreement and the Class A-1
Currency Swap to the Standby Swap Provider and the
Standby Swap Provider will be taken to have assumed
obligations equivalent to those that MLCS as Party A
had under this Agreement and the Class A-1 Currency
Swap;
(vi) Party B and the Standby Swap Provider will be taken
to have released MLCS as Party A from all its
unperformed and future obligations under this
Agreement and the Class A-1 Currency Swap other than
its present and future obligations pursuant to Part
5(25)(d);
(vii) this Agreement and the Confirmation relating to the
Class A-1 Currency Swap shall be construed as if the
Standby Swap Provider was a party to it in place of
Party A except that:
(A) references to "MLCS as Party A" will not apply to
the Standby Swap Provider as Party A;
24.
<PAGE>
(B) references to any jointly supported credit rating
of Party A and the Standby Swap Provider will be
deemed to be references to the relevant credit
rating of the Standby Swap Provider;
(C) without limiting Part 5(25)(c)(vii)(A), Part
5(24), this Part 5(25) and Paragraph 13(m)(vii)
of the Credit Support Annex will not apply to the
Standby Swap Provider as Party A;
(D) the Standby Swap Provider must (if it has not
already done so) satisfy the obligations of Party
A under Part 5(23)(a) within 10 Business Days of
the Novation Date on the basis that any
collateral lodged by MLCS as Party A or any other
arrangements made by MLCS as Party A pursuant to
Part 5(23)(a)(iii) will be returned to MLCS as
Party A or will cease (but such collateral will
only be returned and such arrangements will only
cease upon compliance by the Standby Swap
Provider with its obligations under this Part
5(25)(c)(vii)(D) and otherwise, where applicable,
in accordance with Paragraph 13(m)(vii) of the
Credit Support Annex or the terms of such
arrangements).
(d) (Termination Payment): Following novation under Part
[]5(25)(c) MLCS as Party A must pay the Standby Swap
Provider or the Standby Swap Provider must pay MLCS as
Party A an amount (the "Novation Settlement Amount") being:
(i) in the case of payment by MLCS as Party A to the
Standby Swap Provider, an amount equal to the amount
(if any) that would be payable by Party A to Party B;
and
(ii) in the case of payment by the Standby Swap Provider
to MLCS as Party A, an amount equal to the amount (if
any) that would be payable by Party B to Party A,
if the Class A-1 Currency Swap had been terminated,
calculated and payable in accordance with Sections 6(d) and
(e) on the basis that:
(i) the Novation Date is the Early Termination Date
(ii) the Early Termination Date has resulted from an Event
of Default in respect of which Party A is the
Defaulting Party;
(iii) all calculations and determinations which would have
been done by Party B are done by the Standby Swap
Provider and all calculations and determination that
would have been done by Party A are done by MLCS;
(iv) a reference to Unpaid Amounts owing to Party B is a
reference to such amounts payable by Party A to the
Standby Swap Provider pursuant to Part 5(23)(b)
and (e) and there are no Unpaid Amounts owing to
Party A;
(v) without limiting the foregoing, for the purposes of
the definition of "Market Quotation" in Section 14
each Reference Market-maker would be required, upon
entering into a Replacement Transaction, to fulfil
the obligations of Party A under Part 5(23)(a) and
to comply with Section 2(d) as amended by Part
(5)(1)(e); and
(vi) the Termination Currency is U.S. Dollars.
25.
<PAGE>
(e) (Default Interest): If MLCS as Party A defaults in the
performance of any payment obligations under Part 5(25)(b)
or Part 5(25)(d), it must pay interest (before as well as
after judgment) on the overdue amount to the Standby Swap
Provider on demand in the same currency as such overdue
amount, for the period from (and including) the original
due date for payment to (but excluding) the date of actual
payment, at the Default Rate. Such interest will be
calculated on the basis of daily compounding and the actual
number of days elapsed.
(26) Inconvertibility: If prior to the Novation Date an Inconvertibility Event
occurs the Standby Swap Provider's rights, powers, privileges and
obligations under this Agreement and the Class A-1 Currency Swap will
terminate upon the Standby Swap Provider delivering a notice expressed to
be given under this provision to Party A, Party B and the Manager and
Party B will be taken to have released the Standby Swap Provider from all
its unperformed and future obligations under this Agreement and the
Class A-1 Currency Swap. Following the delivery of such a notice in
accordance with this Part 5(26), references to any jointly supported
credit rating of Party A and the Standby Swap Provider will be deemed to
references to the relevant credit rating of the Party A.
26.
<PAGE>
ANNEXURE 1
FORM OF CONFIRMATION FOR CLASS A-1 CURRENCY SWAP
SERIES 2000-1G MEDALLION TRUST
[Letterhead of Party A]
[DATE]
<TABLE>
<S> <C>
To: Perpetual Trustee Company Limited Securitisation Advisory Services Pty.
as trustee of the Series Trust Limited
Level 3 Level 8
39 Hunter Street 48 Martin Place
Sydney NSW 2000 Sydney NSW 2000
AUSTRALIA AUSTRALIA
Attention: Manager, Securitisation Attention: Manager, Securitisation
Services
</TABLE>
Commonwealth Bank of Australia
Level 8
48 Martin Place
Sydney NSW 2000
AUSTRALIA
Attention: Manager, Securitisation
CONFIRMATION - CLASS A-1 CURRENCY SWAP
The purpose of this letter is to confirm the terms and conditions of the
Transaction entered into between us on the terms specified below (the
"Transaction"). This letter constitutes a "Confirmation" as referred to in the
Master Agreement specified below.
This Confirmation supplements, forms part of, and is subject to, the 1992 ISDA
Master Agreement dated as of [ ], as amended, novated or
supplemented from time to time (the "Agreement"), between Merrill Lynch Capital
Services Inc. ("Party A"), Perpetual Trustee Company Limited, ACN 000 001 007 as
trustee of the Series Trust ("Party B"), Securitisation Advisory Services Pty.
Limited, ACN 064 133 946 (the "Manager") and Commonwealth Bank of Australia, ACN
123 123 124 (the "Standby Swap Provider"). All provisions contained in the
Agreement govern this Confirmation except as expressly modified below.
The terms of the particular Transaction to which this Confirmation relates are
specified below:
1. Our Reference: [ ]
2. Trade Date: [ ]
3. Effective Date: Issue Date in respect of the Class A-1
Notes
4. Termination Date: The earlier of:
(a) the date that the Class A-1 Notes
have been redeemed in full in
accordance with the Class A-1 Note
Conditions; and
(b) the Scheduled Maturity Date,
27.
<PAGE>
5. Floating Amounts
5.1 Floating Amounts Payable by
Party A (subject to Paragraph 9
of this Confirmation):
Floating Rate Payer: Party A
Calculation Amount: For each Floating Rate Payer Payment
Date, one half of the aggregate Invested
Amount of the Class A-1 Notes as at the
first day of the Calculation Period
ending on but excluding that Floating
Rate Payer Payment Date
Floating Rate Payer Payment Each Distribution Date during the period
Dates: commencing on and including [_] and
ending on and including the Termination
Date, subject to adjustment in
accordance with the Following Business
Day Convention
Floating Rate Option: USD-LIBOR-BBA (except that references to
"London Banking Days" in section
7.1(ag)(ii) and (iv) of the 1998
Supplement to the 1991 ISDA Definitions
will be replaced with references to
"Banking Days" as that expression is
defined in the Class A-1 Note
Conditions)
Designated Maturity: Three months (except that Linear
Interpolation using [_] and [_] months
will apply in respect of the first
Calculation Period)
Spread: In respect of:
(a) Floating Rate Payer Payment Dates on
or prior to [ ] (or if that day is
not a Business Day, the next
following Business Day), [ ]; and
(b) Floating Rate Payer Payment Dates
after [ ] (or if that day is not a
Business Day, the next following
Business Day), [ ].
Floating Rate Day Count Actual/360
Fraction:
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable
Class A-1 Unpaid Coupon On each Floating Rate Payer Payment
Amount Date, Party A will pay to Party B an
amount calculated as follows:
LIBOR
$USUC=$AUCx-----x$USExchangeRate
BBSW
where:
$US UC = the amount to be paid by
Party A;
$A UC = the A$ Class A-1 Unpaid
Interest Payment in relation
to the Distribution Date which
is the same day as that
Floating Rate Payer Payment
Date;
LIBOR = the Floating Rate Option under
this paragraph 5.1 in respect
of the Reset Date which is the
same day as that Floating Rate
Payer Payment Date;
28.
<PAGE>
BBSW = the Floating Rate Option under
paragraph 5.2 in respect of
the Reset Date which is the
same day as that Floating Rate
Payer Payment Date.
5.2 Floating Amounts Payable by
Party B (subject to paragraph 9
of this Confirmation):
Floating Rate Payer: Party B
Calculation Amount: For each Floating Rate Payer Payment
Date, the A$ Equivalent of one half of
the aggregate Invested Amount of the
Class A-1 Notes as at the first day of
the Calculation Period ending on but
excluding that Floating Rate Payer
Payment Date
Floating Rate Payer Payment Each Distribution Date during the period
Dates: commencing on and including [ ] and
ending on and including the Termination
Date, subject to adjustment in
accordance with the Following Business
Day Convention
Floating Rate Option: AUD-BBR-BBSW
Designated Maturity: Three months (except that Linear
Interpolation using [ ] and [ ]
months will apply in respect of the
first Calculation Period)
Spread: In respect of:
(a) Floating Rate Payer Payment Dates
on or prior to [ ] (or if that
day is not a Business Day, the next
following Business Day), [ ]; and
(b) Floating Rate Payer Payment Dates
after [ ] (or if that day is not
a Business Day, the next following
Business Day), [ ].
Floating Rate Day Count Actual/365 (Fixed)
Fraction:
Reset Dates The first day of each Calculation Period
Compounding: Inapplicable
A$ Class A-1 Unpaid Interest On each Floating Rate Payer Payment Date
Amount Party B will pay to Party A the A$ Class
A-1 Unpaid Interest Payment in relation
to the Distribution Date which is the
same day as that Floating Rate Payer
Payment Date.
6. Exchanges
6.1 Initial Exchange:
Initial Exchange Date: Issue Date
Party A Initial Exchange Amount: The A$ Equivalent of the Party B Initial
Exchange Amount, being A$[ ]
Party B Initial Exchange Amount: One half of the Initial Invested Amount
of the Class A-1 Notes on the Issue
Date, being US$[
29.
<PAGE>
]
Notwithstanding Section 2(a)(ii) of the
Agreement, Party A must pay the Party A
Initial Exchange Amount to Party B by
4.00pm (Sydney time) on the Initial
Exchange Date and Party B must pay Party
A the Party B Initial Exchange Amount by
4.00pm (New York time) on the Initial
Exchange Date.
6.2 Instalment Exchange:
Instalment Exchange Date: Each Distribution Date (other than the
Final Exchange Date)
Party A Instalment Exchange In respect of an Instalment Exchange
Amount: Date means the US$ Equivalent of one
half of the A$ Class A-1 Principal
Amount in relation to the Distribution
Date occurring on that Instalment
Exchange Date
Party B Instalment Exchange In respect of an Instalment Exchange
Amount: Date means one half of the A$ Class A-1
Principal Amount in relation to the
Distribution Date occurring on that
Instalment Exchange Date
6.3 Final Exchange:
Final Exchange Date: Termination Date
Party A Final Exchange Amount: The US$ Equivalent of one half of the A$
Class A-1 Principal Amount in relation
to the Distribution Date which is the
Final Exchange Date
Party B Final Exchange Amount: One half of the A$ Class A-1 Principal
Amount in relation to the Distribution
Date which is the Final Exchange Date
7. Exchange Rates:
For the purpose of the
definitions of "A$ Equivalent"
and "US$ Equivalent":
US$ Exchange Rate: [ ]
A$ Exchange Rate: [ ]
8. Account Details:
8.1 Payments to Party A
Account for payments in US$: The account notified in writing by Part
A to Party B in accordance with Part
5(3)(ii) of the Schedule to the
Agreement
Account for payments in A$: The account notified in writing by Party
A to Party B in accordance with Part
5(3)(i) of the Schedule to the Agreement
8.2 Payments to Party B
Account for payments in US$: The account notified in writing by the
Principal Paying Agent to Party A in
accordance with Part 5(2)(ii) of the
Schedule to the Agreement
<PAGE>
Account for payments in A$: The account notified in writing by Party B
to Party A in accordance with Part 5(2)(i)
of the Schedule to the Agreement
9. Offices: The Office of Party A for each Transaction
is New York.
The Office of Party B for each Transaction
is Sydney.
Please confirm that the above correctly sets out the terms of our agreement in
respect of each Transaction to which this Confirmation relates by signing and
returning this Confirmation to us by facsimile today.
31.
<PAGE>
Executed documents will follow by mail.
Yours sincerely
SIGNED for and on behalf of
MERRILL LYNCH CAPITAL SERVICES INC.
By: ______________________________
(Authorised Officer)
Name: _____________________________
Title: ____________________________
Confirmed as at the date first written above: Confirmed as at the date first
written above:
SIGNED for and on behalf of SIGNED for and on behalf of
PERPETUAL TRUSTEE SECURITISATION ADVISORY SERVICES
COMPANY LIMITED, ACN 000 001 007 PTY. LIMITED, ACN 064 133 946
as trustee of the Series
2000-1G Medallion Trust
By: _______________________________ By:____________________________
(Authorised Officer ) (Authorised Officer )
Name: _____________________________ Name:__________________________
Title: ___________________________ Title:_________________________
SIGNED for and on behalf of
COMMONWEALTH BANK OF AUSTRALIA,
ACN 123 123 124
By: _______________________________
(Authorised Officer )
Name: _____________________________
Title: ___________________________
32.
<PAGE>
Annexure 2
GUARANTEE OF MERRILL LYNCH & CO., INC.
FOR VALUE RECEIVED, receipt of which is hereby acknowledged, MERRILL LYNCH &
CO., INC., a corporation duly organized and existing under the laws of the State
of Delaware ("ML & Co."), hereby unconditionally guarantees to:
(a) Perpetual Trustee Company Limited, ACN 000 001 007 as trustee of the Series
2000-1G Medallion Trust (the "Company"), the due and punctual payment of
any and all amounts payable by Merrill Lynch Capital Services, Inc., a
corporation organized under the laws of the State of Delaware ("MLCS"), to
the Company under the terms of the ISDA Master Agreement (Currency Swap
Agreement) between the Company, Securitisation Advisory Services Pty.
Limited, ACN 064 133 946, Commonwealth Bank of Australia, ACN 123 123 124
and MLCS, dated as of [20] March 2000 (the "Agreement"), including, in case
of default, interest on any amount due, when and as the same shall become
due and payable, whether on the scheduled payment dates, at maturity, upon
declaration of termination or otherwise, according to the terms thereof;
and
(b) Commonwealth Bank of Australia, ACN 123 123 124 ("CBA") the due and
punctual payment of any and all amounts payable by MLCS to CBA under the
terms of the Agreement, including all amounts due under Parts 5(25)(b), (d)
and (e) of the schedule to the Agreement.
In case of the failure of MLCS punctually to make any such payment, ML & Co.
hereby agrees to make such payment, or cause such payment to be made, promptly
upon demand made by the Company (in the case amounts referred to in paragraph
(a)) or CBA (in the case amounts referred to in paragraph (b)) to ML & Co.;
provided, however that delay by the Company or CBA (as the case may be) in
giving such demand shall in no event affect ML & Co.'s obligations under this
Guarantee. This Guarantee shall remain in full force and effect or shall be
reinstated (as the case may be) if at any time any payment guaranteed hereunder,
in whole or in part, is rescinded or must otherwise be returned by the Company
or CBA upon the insolvency, bankruptcy or reorganization of MLCS or otherwise,
all as though such payment had not been made.
ML & Co. hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Agreement; the
absence of any action to enforce the same; any waiver or consent by the Company
or CBA concerning any provisions thereof; the rendering of any judgment against
MLCS or any action to enforce the same; or any other circumstances that might
otherwise constitute a legal or equitable discharge of a guarantor or a defense
of a guarantor. ML & Co. covenants that this guarantee will not be discharged
except by complete payment of the amounts payable under the Agreement. This
Guarantee shall continue to be effective if MLCS merges or consolidates with or
into another entity, loses its separate legal identity or ceases to exist.
ML & Co. hereby waives diligence; presentment; protest; notice of protest,
acceleration, and dishonor; filing of claims with a court in the event of
insolvency or bankruptcy of MLCS; all demands whatsoever, except as noted in the
fourth paragraph hereof; and any right to require a proceeding first against
MLCS.
ML & Co. hereby certifies and warrants that this Guarantee constitutes the valid
obligation of ML & Co. and complies with all applicable laws.
This Guarantee shall be governed by, and construed in accordance with, the laws
of the State of New York.
This Guarantee may be terminated at any time by notice by ML & Co. to the
Company and CBA given in accordance with the notice provisions of the Agreement,
effective upon receipt of such notice by each of the Company and CBA or such
later date as may be specified in such notice; provided, however, that this
Guarantee shall continue in full force and effect with respect to any obligation
of MLCS under the Agreement entered into prior to the effectiveness of such
notice of termination.
This Guarantee becomes effective concurrent with the effectiveness of the
Agreement, according to its terms.
33.
<PAGE>
The obligations of ML & Co. to the Company and CBA under this Agreement are
several and may be enforced by each of the Company and CBA without reference to
the other.
IN WITNESS WHEREOF, ML & Co. has caused this Guarantee to be executed in its
corporate name by its duly authorized representative.
MERRILL LYNCH & CO., INC.
By:__________________________
Name:
Title:
Date:_________________________
<PAGE>
Paragraph 13 to New York Law Credit Support Annex
(13) Elections and Variables
(a) Security Interest for "Obligations"
The term "Obligations" as used in this Annex does not include any
additional obligations.
"Base Currency" means US$.
"Eligible Currency" means the Base Currency and any other currency
agreed from time to time between Party A, Party B, the Standby Swap
Provider and each Rating Agency.
(b) Credit Support Obligations
(i) Delivery Amount and Return Amount
"Delivery Amount" for a Valuation Date means the amount of
collateral calculated in accordance with Part 5(23)(d)(i) for
that Valuation Date.
"Return Amount" for a Valuation Date means the amount of
collateral calculated in accordance with Part 5(23)(d)(ii) for
that Valuation Date.
(ii) Eligible Collateral. The following items will qualify as
"Eligible Collateral" for Party A:
Valuation
Percentage
(A) negotiable debt obligations issued 98%
by the U.S. Treasury Department
having a remaining maturity of not
more than one year
(B) negotiable debt obligations issued 95%
by the U.S. Treasury Department
having a remaining maturity of more
than one year but not more than five
years
(C) negotiable debt obligations issued 93%
by the U.S. Treasury Department
having a remaining maturity of more
than five years but not more than
ten years
(D) negotiable debt obligations issued 90%
by the U.S. Treasury Department
having a remaining maturity of more
than ten years
(E) Agency Securities having a remaining 97%
maturity of not more than one year
(F) Agency Securities having a remaining 94%
maturity of more than one year but
not more than five years
<PAGE>
(G) Agency Securities having a remaining 92%
maturity of more than five years but
not more than ten years
(H) Agency Securities having a remaining 89%
maturity of more than ten years.
(I) cash in an Eligible Currency. 100%
(J) other Eligible Credit Support and
Valuation Percentage agreed by the
parties and acceptable to each
Rating Agency
Notwithstanding the foregoing to the contrary, the Valuation
Percentage with respect to all Eligible Credit Support shall be
deemed to be 100% with respect to a Valuation Date which is an Early
Termination Date.
"Agency Securities" means negotiable debt obligations which are
fully guaranteed as to both principal and interest by the Federal
National Mortgage Association, the Government National Mortgage
Corporation or the Federal Home Loan Mortgage Corporation and which
have been assigned a short term credit rating of A-1+ by S&P, but
exclude: (i) interest only and principal only securities; and (ii)
collateralized mortgage obligations, real estate mortgage investment
conduits and similar derivative securities.
(iii) Other Eligible Support
Not applicable.
(iv) Thresholds
(A) "Minimum Transfer Amount" means with respect to both Party A
and Party B: US$100,000.
(B) Rounding. The Delivery Amount and the Return Amount will be
rounded to the nearest integral multiple of US$10,000.
(c) Valuation and Timing
(i) "Valuation Agent" means Party A.
(ii) "Valuation Date" means the last Business Day of each week and, at
the option of either Party A or the Standby Swap Provider, any
Business Day between Valuation Dates.
(iii) "Valuation Time" means the close of business on the Business Day
before the Valuation Date; provided that the calculations of Value
and Exposure will be made as of approximately the same time on the
same date.
(iv) "Notification Time" means 11:00 am New York time on the second
Business Day after the Valuation Date.
(d) Conditions Precedent and Secured Party's Rights and Remedies
There are no "Specified Conditions" applicable to Party A and Party B.
(e) Substitution
(i) "Substitution Date" has the meaning specified in paragraph 4(d)(ii).
36.
<PAGE>
(ii) Consent. Not applicable.
(f) Dispute Resolution
(i) "Resolution Time"" means 11:00 am New York time.
(ii) "Value". Not applicable.
(iii) "Alternative". The provisions of Paragraph 5 will apply.
(g) Holding and Using Posted Collateral
(i) Eligibility to Hold Posted Collateral; Custodians.
Party A: Not Applicable.
Party B is not entitled to hold Posted Collateral. It must appoint
a Custodian to hold Posted Collateral on its behalf pursuant to
paragraph 6(b). Party B may only appoint a Custodian to hold Posted
Collateral on its behalf if the following conditions are satisfied:
(A) Party B is not a Defaulting Party;
(B) Party B's Custodian will always be the Principal Paying Agent,
unless that party is Party A; and
(C) if the Principal Paying Agent is Party A, then Party B must
appoint a Custodian which is a Bank (as defined in the Federal
Deposit Insurance Act, as amended) outside Australia, whose
rating (with respect to its long term unsecured,
unsubordinated indebtedness) is at all times at least Aa2 by
Moody's and its short term debt rating is A-1+/F-1+ (S&P/Fitch
IBCA), and Party B must notify Party A in writing of this
appointment and of the relevant account for Paragraph 13(l).
(D) Posted Collateral may only be held in one or more accounts in
the name of Party B in the United States and any account
established by Party B's Custodian to hold Posted Collateral
shall be established and maintained for the sole purpose of
receiving deliveries of and holding Posted Collateral.
(ii) Use of Posted Collateral. The provisions of paragraph 6(c) will not
apply to Party B and its Custodian. Party B's Custodian will permit
Party B to secure Party B's obligations under the relevant Class A-
1 Notes by granting to the Security Trustee the charge under the
Security Trust Deed over Party B's rights in relation to the Posted
Collateral, but subject to Paragraph 13(m)(vi) of this Annex.
(h) Distributions and Interest Amount
(i) Interest Rate. The "Interest Rate", in respect of Posted Collateral
which is denominated in US$, for any day means the Federal Funds
Overnight Rate. For the purposes hereof, "Federal Funds Overnight
Rate" means, for any day, an interest rate per annum equal to the
rate published as the Federal Funds Effective Rate that appears on
Telerate Page 118 for such day. The "Interest Rate" in respect of
Posted Collateral denominated in any other Eligible Currency means
the rate as agreed between the parties.
(ii) Transfer of Interest Amount. The Transfer of Interest Amount will
be made monthly on the second Business Day of each calendar month.
(iii) Alternative to Interest Amount. The provisions of Paragraph
6(d)(ii) will apply.
(i) Additional Representation(s)
None.
(j) Other Eligible Support and Other Posted Support
37.
<PAGE>
"Value" and "Transfer" with respect to Other Eligible Support and Other
Posted Support means: not applicable.
(k) Demands and Notices
All demands, specifications and notices under this Annex will be made
pursuant to the Section 12 of this Agreement; provided, that any such
demand, specification or notice may be made by telephone ("Telephone
Notice") between duly authorised employees of each party if such Telephone
Notice is confirmed by a subsequent written instruction (which may be
delivered via facsimile) by the close of business of the same day that such
Telephone Notice is given.
(l) Addresses for Transfers
Party A: Party A to specify account for returns of collateral.
Party B: Party B must notify Party A of its Custodian's account.
(m) Other Provisions
(i) Paragraph 4(b) of the Annex is replaced by the following:
"(b) Transfer Timing. Subject to Paragraph 4(a) and 5 and unless
otherwise specified, if a demand for the Transfer of Eligible
Credit Support or Posted Credit Support is made by the
Notification Time, then the relevant Transfer will be made
within three Business Days of receipt of the demand; if a
demand is made after the Notification Time, then the relevant
Transfer will be made within four Business Days of receipt of
the demand."
(ii) Event of Default
Joint Ratings below specified levels
Paragraph 7(i) of the Annex is amended, on line 3, by replacing "two
Business Days" with "three Business Days".
(iii) Party B's expenses
Subject to Section 15 of the Agreement, Party B agrees to pay Party
A's costs and expenses in relation to or caused by any breach by
Party B of its obligations under this Annex. Party A acknowledges
and agrees that its obligations under this Annex will not be
affected by a failure by Party B to comply with its obligations
under this paragraph (m)(iii).
(iv) Governing Law notwithstanding
Notwithstanding that the Agreement is expressed to be governed by
the laws of New South Wales, this Annex (but not any other
provisions of the Agreement) shall be governed by and construed in
accordance with the laws of the state of New York without giving
effect to choice of law doctrine and parties hereto agree that
proceedings relating to any dispute arising out of or in connection
with this Annex shall be subject to the non-exclusive jurisdiction
of the federal or state courts of competent jurisdiction in the
Borough of Manhattan in New York City, State of New York.
(v) No trial by jury
Each party waives, to the fullest extent permitted by applicable
law, any right it may have to a trial by jury in respect of any
suit, action or proceeding relating to this Annex.
38.
<PAGE>
(vi) No pooling of Collateral with other Security Trust security
Notwithstanding any provision in the Master Trust Deed, Series
Supplement or Security Trust Deed, but without prejudice to Party
B's rights under Paragraph 8(a) of this Annex, no party shall be
entitled to deal with the Posted Collateral in any manner
inconsistent with the rights of the Pledgor under Paragraph
8(b)(iii) of this Annex, and each party covenants to the other that
it shall not permit any other person to gain any rights in relation
to the Posted Collateral that are inconsistent with the rights of
the Pledgor.
(vii) Rights in Relation to MLCS's Posted Collateral Following Novation
(A) The Secured Party will hold its security interest in, lien on
and right of Set-Off against all Posted Collateral Transferred
or received by the Secured Party from MLCS as Party A hereunder
on trust for the benefit of:
(1) the Series Trust as security for the Obligations of MLCS
as Party A to the Secured Party as trustee of the Series
Trust (other than pursuant to Paragraph 13(m)(vii)(B));
and
(2) the Standby Swap Provider as security for the Obligations
of MLCS as Party A to the Standby Swap Provider pursuant
to Part 5(25)(d) of the Schedule to this Agreement,
in accordance with the provisions of this Paragraph 13(m)(vii),
and Paragraph 2 is varied accordingly.
(B) MLCS as Party A covenants in favour of the Secured Party that
it will duly and punctually pay to the Secured Party all its
Obligations to the Standby Swap Provider pursuant to Part
5(25)(d) of the Schedule to this Agreement as and when the same
fall due for payment. Notwithstanding the foregoing, every
payment by MLCS as Party A, or the Secured Party in accordance
with Paragraph 13(m)(vii)(C)(2)(b), to the Standby Swap
Provider will operate as a payment by MLCS as Party A to the
Secured Party in satisfaction of MLCS's obligations as Party A
pursuant to this Paragraph 13(m)(vii)(B). The Secured Party
will hold the benefit of its rights under this Paragraph
13(m)(vii)(B) on trust for the Standby Swap Provider in
accordance with the provisions of this Paragraph 13(m)(vii).
(C) The Secured Party must deal with all Posted Collateral
Transferred or received by the Secured Party from MLCS as Party
A hereunder:
(1) prior to the Novation Date, in accordance with the
provisions of this Agreement other than this Paragraph
13(m)(vii);
(2) on or after the Novation Date:
(a) until the date upon which the Standby Swap Provider
has initially fulfilled its obligations as Party A
pursuant to Part 5(23)(a) of the Schedule to this
Agreement, such Posted Collateral must be held by the
Secured Party and not Transferred or otherwise
applied;
(b) on or after the date upon which the Standby Swap
Provider has initially fulfilled its obligations as
Party A pursuant to Part 5(23)(a) of the Schedule
to this Agreement and until MLCS as Party A has paid
in full all of its Obligations to the Standby Swap
Provider pursuant to Part 5(25)(d) of the Schedule
to this Agreement, the Secured Party must, upon the
instructions of the Standby Swap Provider, exercise
its rights and remedies pursuant to Paragraph 8(a)
in respect of such Posted Collateral and apply the
proceeds of the exercise of such rights and remedies
in satisfaction of MLCS's Obligations as Party A to
the Standby
39.
<PAGE>
Swap Provider pursuant to Part 5(25)(d) of the
Schedule to this Agreement (and to the Secured Party
pursuant to Paragraph 13(m)(vii)(B)) until all such
Obligations have been paid in full; and
(c) on or after the date upon which the Standby Swap
Provider has initially fulfilled its obligations as
Party A pursuant to Part 5(23)(a) of the Schedule to
this Agreement and MLCS as Party A has paid in full all
its Obligations to the Standby Swap Provider pursuant
to Part 5(25)(d) of the Schedule to this Agreement
(including by virtue of Paragraph 13(m)(vii)(B)(2)(b)),
the Secured Party must Transfer to MLCS as Party A all
such Posted Collateral and the Interest Amount in
relation to such Posted Collateral, if any.
(D) The Standby Swap Provider indemnifies the Secured Party from
and against any cost or liability incurred by the Secured
Party in complying with the instructions of the Standby Swap
Provider pursuant to Paragraph 13(m)(vii)(B)(2)(b). The
Standby Swap Provider acknowledges and agrees that the Secured
Party may not, and is not required, to take any action to
exercise its rights and remedies in relation to the Posted
Collateral in respect of the Obligations of MLCS as Party A to
the Standby Swap Provider except upon the directions of the
Standby Swap Provider and in accordance with this Paragraph
13(m)(vii).
(E) Following the Novation Date, the Secured Party must ensure
that any Posted Collateral Transferred or received by the
Secured Party from MLCS as Party A is held by the Custodian
separately from, and is not co-mingled with, Posted Collateral
Transferred or received by the Secured Party from the Standby
Swap Provider as Party A.
(F) This paragraph 13(m)(vii) applies notwithstanding any other
provision of this Agreement.
(viii) Pledgor and Secured Party
In this Annex:
(a) "Pledgor" means only Party A; and
(b) "Secured Party" means only Party B.
(ix) Non-Australian Assets
CBA must only Transfer Posted Collateral to the Secured Party from
its assets held outside Australia.
(x) Dispute Resolution
Paragraph 5(i) is amended by:
(A) replacing the word "Exposure" with the words "the Delivery
Amount or the Return Amount, as the case may be" in the first
paragraph of Paragraph 5(i);
(B) adding the word "and" at the end of Paragraph 5(i)(A) and
deleting Paragraph 5(i)(B).
40.
<PAGE>
Exhibit 25.1
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
Securitisation Advisory Services Pty. Limited
(Exact name of obligor as specified in its charter)
New South Wales
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
Level 8
48 Martin Place
Sydney, 2000
Australia
(Address of principal executive offices) (Zip code)
_____________
Class A-1 Mortgage Backed Floating Rate Notes
(Title of the indenture securities)
================================================================================
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-
29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 15th day of February, 2000.
THE BANK OF NEW YORK
By: /s/ MICHAEL CULHANE
--------------------------------
Name: MICHAEL CULHANE
Title: VICE PRESIDENT
<PAGE>
________________________________________________________________________________
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1999, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
ASSETS Dollar Amounts
In Thousands
<S> <C>
Cash and balances due from depository
institutions:
Noninterest-bearing balances and currency and $ 6,394,412
coin...........................................
Interest-bearing balances....................... 3,966,749
Securities:
Held-to-maturity securities..................... 805,227
Available-for-sale securities................... 4,152,260
Federal funds sold and Securities purchased
under agreements to resell...................... 1,449,439
Loans and lease financing receivables:
Loans and leases, net of unearned income........ 37,900,739
LESS: Allowance for loan and lease losses....... 572,761
LESS: Allocated transfer risk reserve........... 11,754
Loans and leases, net of unearned income,
allowance, and reserve......................... 37,316,224
Trading Assets................................... 1,646,634
Premises and fixed assets (including capitalized
leases)........................................ 678,439
Other real estate owned.......................... 11,571
Investments in unconsolidated subsidiaries and
associated companies............................ 183,038
Customers' liability to this bank on acceptances
outstanding..................................... 349,282
Intangible assets................................ 790,558
Other assets..................................... 2,498,658
-----------
Total assets..................................... $60,242,491
===========
</TABLE>
<PAGE>
<TABLE>
<S> <C>
LIABILITIES
Deposits:
In domestic offices............................. $26,030,231
Noninterest-bearing............................. 11,348,986
Interest-bearing................................ 14,681,245
In foreign offices, Edge and Agreement
subsidiaries, and IBFs......................... 18,530,950
Noninterest-bearing............................. 156,624
Interest-bearing................................ 18,374,326
Federal funds purchased and Securities sold
under agreements to repurchase.................. 2,094,678
Demand notes issued to the U.S.Treasury.......... 232,459
Trading liabilities.............................. 2,081,462
Other borrowed money:
With remaining maturity of one year or less..... 863,201
With remaining maturity of more than one year
through three years............................ 449
With remaining maturity of more than three years 31,080
Bank's liability on acceptances executed and
outstanding..................................... 351,286
Subordinated notes and debentures................ 1,308,000
Other liabilities................................ 3,055,031
-----------
Total liabilities................................ 54,578,827
===========
EQUITY CAPITAL
Common stock..................................... 1,135,284
Surplus.......................................... 815,314
Undivided profits and capital reserves........... 3,759,164
Net unrealized holding gains (losses) on
available-for-sale securities................... (15,440)
Cumulative foreign currency translation
adjustments..................................... (30,658)
Total equity capital............................. 5,663,664
-----------
Total liabilities and equity capital............. $60,242,491
===========
</TABLE>
<PAGE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Reyni Directors
Alan R. Griffith
Gerald L. Hassell
<PAGE>
[Clayton UTZ Letterhead]
Exhibit 99.1
Our Reference: 174/1454036
Your Reference:
Partner/Solicitor Contact:
Brian Salter - 9353 4174
14 March 2000
Securitisation Advisory Services Pty. Limited
Level 8
48 Martin Place
SYDNEY NSW 2000
Dear Sirs
COMMONWEALTH BANK OF AUSTRALIA: GLOBAL MORTGAGE BACKED SECURITIES
We have acted for Securitisation Advisory Services Pty Limited ("SAS") in
connection with the Series 2000-1G Medallion Trust (the "Trust") to be
constituted under the Master Trust Deed dated 8 October 1997 (as amended)
between SAS and Perpetual Trustee Company Limited (the "Trustee") and the draft
Series Supplement dated 9 March 2000 between the Commonwealth Bank of Australia,
the Trustee and SAS.
Definitions in the Prospectus which forms a part of the Registration Statement
on Form S-11 (Registration No. 333-93721) filed by SAS with the Securities
Exchange Commission under the US Securities Act of 1933, as amended (the
"Prospectus") apply in this opinion. Relevant Jurisdiction means the
Commonwealth of Australia or New South Wales. No assumption or qualification in
this opinion limits any other assumption or qualification in it.
1. Documents
We have examined a copy of the Prospectus.
2. Assumption
For the purposes of giving this opinion we have assumed that where a document
has been submitted to us in draft form it will be executed in the form of that
draft.
3. Qualifications
Our opinion is subject to the qualification that we express no opinion as to any
laws other than the laws of each Relevant Jurisdiction as in force at the date
of this opinion and, in particular we express no opinion as to the laws of
England or the United States.
<PAGE>
Securitisation Advisory Services Pty. Limited 14 March 2000
- -------------------------------------------------------------------------------
4. Opinion
Based on the assumption and subject to the qualification set out above (which,
except where expressly stated, apply equally to each of the opinions below) we
are of the following opinion:
(a) Any final and conclusive judgment of any New York State or United States
Federal Court having jurisdiction recognised by the Relevant
Jurisdiction, in respect of an obligation of SAS in respect of a note,
which is for a fixed sum of money, and which has not been stayed in full,
would be enforceable by action against SAS in the courts of each Relevant
Jurisdiction without a re-examination of the merits of the issues
determined by the proceedings in the New York State or United States
Federal Court, as applicable, unless:
(i) the proceedings in the New York State or United States Federal
Court, as applicable, involved a denial of the principles of
natural justice;
(ii) the judgment is contrary to the public policy of the Relevant
Jurisdiction;
(iii) the judgment was obtained by fraud or duress or was based on a
clear mistake of fact;
(iv) the judgment is a penal or revenue judgment; or
(v) there has been a prior judgment in another court between the same
parties concerning the same issues as are dealt with in the
judgment or the New York State or United States Federal Court, as
applicable.
(b) A judgment by a court in a Relevant Jurisdiction may be given in some
cases only in Australian dollars.
We consent to the filing of this letter as an exhibit to the Registration
Statement on Form S-11 filed with the Prospectus, without admitting that we
are"experts" within the meaning of the Securities Act of 1933 or the rules and
regulations of the Commission issued under that Act with respect of any part of
the Registration Statement, including this exhibit.
Yours faithfully
CLAYTON UTZ
/s/ Brian Salter
Brian Salter
Partner
2.
