<PAGE>
EXHIBIT 4.2
Commonwealth Bank of Australia
ACN 123 123 124
Servicer
Securitisation Advisory Services Pty. Limited
ACN 064 133 946
Manager
Perpetual Trustee Company Limited
ACN 000 001 007
Trustee
Series 2000-2G Medallion Trust
Series Supplement
Levels 23-35 No 1 O'Connell Street Sydney NSW 2000 Australia
PO Box H3 Australia Square Sydney NSW 1215 DX 370 Sydney
Tel + 61 2 9353 4000 Fax + 61 2 9251 7832
Our ref - 174/642/1545256 Contact - Edward Nicholas
Sydney . Melbourne . Brisbane . Perth . Canberra . Darwin
Liability is limited by the Solicitors Scheme under the Professional Standards
Act 1994 NSW
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Table of Contents
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1. Definitions and interpretation.............................................................................. 1
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1.1 Definitions........................................................................................... 1
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1.2 Interpretation........................................................................................ 31
--- --------------
1.3 Master Trust Deed Definitions......................................................................... 33
--- -----------------------------
1.4 Business Day Convention............................................................................... 33
--- -----------------------
1.5 Master Trust Deed Inconsistency....................................................................... 34
--- -------------------------------
1.6 Exclusion of Master Trust Deed Definitions and Provisions............................................. 34
--- ---------------------------------------------------------
1.7 Support Facilities.................................................................................... 36
--- ------------------
1.8 Security Trust Deed................................................................................... 36
--- -------------------
1.9 Nominated Seller and Nominated Servicer............................................................... 36
--- ---------------------------------------
1.10 Binding on Securityholders and the Residual Unitholder................................................ 36
---- ------------------------------------------------------
1.11 Relationship between Trustee and Securityholders...................................................... 36
---- ------------------------------------------------
1.12 Incorporated Definitions and other Transaction Documents and provisions............................... 36
---- -----------------------------------------------------------------------
2. The CBA Trust............................................................................................... 36
-- -------------
2.1 Constitution of CBA Trust............................................................................. 36
--- -------------------------
2.2 Declarations of Trust for the CBA Trust............................................................... 37
--- ---------------------------------------
2.3 Name of the CBA Trust................................................................................. 37
--- ---------------------
2.4 Entitlement of Seller to the CBA Trust................................................................ 37
--- --------------------------------------
2.5 Bare Trust............................................................................................ 37
--- ----------
2.6 Duration of the CBA Trust............................................................................. 37
--- -------------------------
2.7 Early Termination of the CBA Trust.................................................................... 37
--- ----------------------------------
2.8 Dealing with CBA Trust Assets of the Series Trust..................................................... 37
--- -------------------------------------------------
2.9 Proceeds.............................................................................................. 38
--- --------
2.10 CBA Trust Not Part of Assets of the Series Trust...................................................... 38
---- ------------------------------------------------
2.11 Shared Securities..................................................................................... 38
---- -----------------
2.12 Trustee's Duties...................................................................................... 38
---- ----------------
2.13 Substitute Trustee.................................................................................... 38
---- ------------------
2.14 Transfer of the CBA Trust Assets to Seller on termination of CBA Trust................................ 39
---- ----------------------------------------------------------------------
2.15 Seller Indemnity...................................................................................... 39
---- ----------------
2.16 Limitation of Liability............................................................................... 39
---- -----------------------
3. Unit in the Series Trust.................................................................................... 40
-- ------------------------
3.1 Beneficial Interest Represented by a Single Unit...................................................... 40
--- ------------------------------------------------
3.2 Initial Holder of the Residual Unit................................................................... 40
--- -----------------------------------
3.3 Registration of CBA as Initial Residual Unitholder.................................................... 40
--- --------------------------------------------------
3.4 Form of Unit Certificate.............................................................................. 40
--- ------------------------
3.5 Form of Unit Transfer................................................................................. 40
--- ---------------------
3.6 No Other Relationship................................................................................. 40
--- ---------------------
4. Assignment of Mortgage Loan Rights.......................................................................... 40
-- ----------------------------------
4.1 Approved Financial Assets of the Series Trust......................................................... 40
--- ---------------------------------------------
4.2 Sale Notice........................................................................................... 40
--- -----------
4.3 Requirements of Sale Notice........................................................................... 40
--- ---------------------------
4.4 Mortgage Loan Schedule................................................................................ 41
--- ----------------------
4.5 Sale Notice Constitutes an Offer...................................................................... 41
--- --------------------------------
4.6 Sale Notice Revocable................................................................................. 42
--- ---------------------
4.7 Acceptance of Offer................................................................................... 42
--- -------------------
4.8 Timing of Acceptance.................................................................................. 42
--- --------------------
4.9 Seller Not Obliged to Make, and Trustee Not Obliged to Accept, Offer.................................. 42
--- --------------------------------------------------------------------
4.10 Can Only Accept all Mortgage Loan Rights in Loan Pool................................................. 42
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4.11 Effect of Acceptance....................................................................................... 42
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4.12 Sale in Equity Only........................................................................................ 43
---- -------------------
4.13 Sale Not to Amount to Assumption of Obligations............................................................ 43
---- -----------------------------------------------
4.14 Future Advances............................................................................................ 43
---- ---------------
4.15 Future Receivables......................................................................................... 43
---- ------------------
4.16 Power to Acquire Mortgage Loans in Arrears................................................................. 43
---- ------------------------------------------
5. The Securities................................................................................................... 43
-- --------------
5.1 Securities divided into Classes............................................................................. 43
--- -------------------------------
5.2 Form, constituent documents and denomination of the Securities.............................................. 44
--- --------------------------------------------------------------
5.3 Trustee must Issue the Notes................................................................................ 44
--- ----------------------------
5.4 Issue of Redraw Bonds....................................................................................... 44
--- ---------------------
5.5 Initial Invested Amount of the Securities................................................................... 44
--- -----------------------------------------
5.6 Interest on the Securities.................................................................................. 44
--- --------------------------
5.7 Redemption of the Securities................................................................................ 45
--- ----------------------------
5.8 Interest on Overdue Interest on the Securities.............................................................. 46
--- ----------------------------------------------
5.9 Rounding of Payments on the Securities...................................................................... 46
--- --------------------------------------
5.10 Securities Rank Equally Except for Special Rights.......................................................... 46
---- -------------------------------------------------
5.11 Transfer of Securities..................................................................................... 46
---- ----------------------
6. Conditions precedent to acceptance of Sale Notice and issue of Notes............................................. 46
-- --------------------------------------------------------------------
6.1 General Conditions Precedent................................................................................ 46
--- ----------------------------
6.2 Other Conditions Precedent.................................................................................. 49
--- --------------------------
6.3 No Liability for Insufficient Moneys........................................................................ 49
--- ------------------------------------
6.4 Manager's Certificate....................................................................................... 49
--- ---------------------
7. Division of Mortgage Loan Rights between the CBA Trust and the Series Trust...................................... 50
-- ---------------------------------------------------------------------------
7.1 CBA Trust Assets............................................................................................ 50
--- ----------------
7.2 Mortgages and First Layer of Collateral Securities.......................................................... 50
--- --------------------------------------------------
7.3 Treatment of Shared Securities.............................................................................. 51
--- ------------------------------
7.4 Trustee's duties............................................................................................ 51
--- ----------------
7.5 Upon Repayment of Mortgage Loan Trustee Holds for CBA Trust................................................. 51
--- -----------------------------------------------------------
7.6 Application Where 2 Mortgage Loans.......................................................................... 52
--- ----------------------------------
7.7 Costs....................................................................................................... 52
--- -----
7.8 Alternative Structure....................................................................................... 52
--- ---------------------
8. Determinations by the Manager.................................................................................... 52
-- -----------------------------
8.1 Applications and payments on Distribution Dates............................................................. 52
--- -----------------------------------------------
8.2 Insufficient principal to meet Seller Advances.............................................................. 52
--- ----------------------------------------------
8.3 Income Shortfall............................................................................................ 53
--- ----------------
8.4 Insufficient principal to meet Seller Advances and Standby Redraw Facility Principal........................ 53
--- ------------------------------------------------------------------------------------
8.5 Netting of Seller Advances and Standby Redraw Facility Advances............................................. 54
--- ---------------------------------------------------------------
8.6 Cash Advance Deposit........................................................................................ 54
--- --------------------
8.7 Break Costs and Break Benefits.............................................................................. 54
--- ------------------------------
8.8 Interest Rate Swap Provider Deposit......................................................................... 55
--- -----------------------------------
9. Chargeoffs....................................................................................................... 55
-- ----------
9.1 Allocation of Principal Chargeoffs.......................................................................... 55
--- ----------------------------------
9.2 Allocation of Principal Chargeoff Reimbursements............................................................ 56
--- ------------------------------------------------
9.3 Loss Recoveries............................................................................................. 56
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10. Payments on Distribution Dates by Trustee......................................................................... 56
--- -----------------------------------------
10.1 Payment of Accrued Interest Adjustment on first Distribution Date........................................... 56
---- -----------------------------------------------------------------
10.2 Application of the Available Income Amount on each Distribution Date........................................ 57
---- --------------------------------------------------------------------
10.3 Application of the Available Principal Amount on each Distribution Date..................................... 58
---- -----------------------------------------------------------------------
10.4 Payment of Interest on the Class A-1 Notes.................................................................. 58
---- ------------------------------------------
10.5 Repayment of Principal on the Securities.................................................................... 59
---- ----------------------------------------
10.6 Repayment of Principal on the Class A-1 Notes............................................................... 59
---- ---------------------------------------------
10.7 Inability to Comply with Order of Priority.................................................................. 59
---- ------------------------------------------
10.8 No Payment in respect of Obligations ranking Equally or after Class A-1 Notes if no payment made to
---- ---------------------------------------------------------------------------------------------------
Currency Swap Provider...................................................................................... 60
----------------------
10.9 Payments in respect of A$ Securities........................................................................ 60
---- ------------------------------------
11. Net Tax Income of the Series Trust................................................................................ 60
--- ----------------------------------
11.1 Net Tax Income of the Series Trust absolutely vested in the Residual Unitholder............................. 60
---- -------------------------------------------------------------------------------
11.2 Excess Distribution......................................................................................... 60
---- -------------------
12. Early termination of Swaps........................................................................................ 61
--- --------------------------
12.1 Early Termination of a Swap................................................................................. 61
---- ---------------------------
12.2 Servicer to Adjust Mortgage Interest Saver Accounts and Mortgage Rates if Basis Swap Terminated............. 61
---- -----------------------------------------------------------------------------------------------
12.3 Determination of Threshold Rate............................................................................. 62
---- -------------------------------
12.4 Trustee to set Mortgage Rate................................................................................ 62
---- ----------------------------
13. Representations and warranties regarding Mortgage Loans........................................................... 62
--- -------------------------------------------------------
13.1 Seller's Representations and Warranties..................................................................... 62
---- ---------------------------------------
13.2 Trustee need not Test Warranties............................................................................ 64
---- --------------------------------
14. Breach of representations and warranties.......................................................................... 65
--- ----------------------------------------
14.1 Manager or Seller Becomes Aware of Incorrect Representations or Warranties.................................. 65
---- --------------------------------------------------------------------------
14.2 If Trustee Becomes Aware of Incorrect Representations or Warranties......................................... 65
---- -------------------------------------------------------------------
14.3 Remedy of Defaults during Prescribed Period................................................................. 65
---- -------------------------------------------
14.4 Holding for CBA Trust during Prescribed Period.............................................................. 65
---- ----------------------------------------------
14.5 Costs....................................................................................................... 66
---- -----
14.6 Payment..................................................................................................... 66
---- -------
14.7 Limitation on Rights of Trustee During Prescribed Period.................................................... 66
---- --------------------------------------------------------
14.8 Limit of Seller's Liability for Mortgage Loans.............................................................. 66
---- ----------------------------------------------
14.9 Seller's Liability for Damages After Prescribed Period...................................................... 66
---- ------------------------------------------------------
14.10 Discharge of obligations.................................................................................... 67
----- ------------------------
14.11 Fraud....................................................................................................... 67
----- -----
14.12 Trustee's Reliance.......................................................................................... 67
----- ------------------
15. Seller's general undertakings..................................................................................... 67
--- -----------------------------
15.1 General Undertakings........................................................................................ 67
---- --------------------
15.2 Seller not bound by Undertaking............................................................................. 69
---- -------------------------------
15.3 Seller Downgrade............................................................................................ 69
---- ----------------
15.4 Reduction or Increase of Seller Deposit..................................................................... 70
---- ---------------------------------------
15.5 Interest on Seller Deposit.................................................................................. 70
---- --------------------------
15.6 Seller Upgrade.............................................................................................. 70
---- --------------
15.7 Termination of Series Trust or Amendments to Mortgage Loans................................................. 70
---- -----------------------------------------------------------
15.8 Withdrawals from the Collections Account.................................................................... 70
---- ----------------------------------------
15.9 Termination of Mortgage Interest Saver Accounts............................................................. 71
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15.10 Gross Up for Mortgage Interest Saver Accounts............................................................... 71
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16. Servicing of Mortgage Loan Rights.................................................................................. 71
--- ---------------------------------
16.1 Appointment of Servicer..................................................................................... 71
---- -----------------------
16.2 Obligation to Act as Servicer until Termination of Appointment.............................................. 71
---- --------------------------------------------------------------
16.3 General Servicing Obligation................................................................................ 71
---- ----------------------------
16.4 Power to Service............................................................................................ 71
---- ----------------
16.5 Exercise of Discretions..................................................................................... 72
---- -----------------------
16.6 Servicer's Undertaking Regarding Mortgage Loan Rights....................................................... 72
---- -----------------------------------------------------
16.7 Interest Rates on Mortgage Loans............................................................................ 74
---- --------------------------------
16.8 Release or Substitution of Security......................................................................... 74
---- -----------------------------------
16.9 Variation or Relaxation of Terms of Mortgage Loans.......................................................... 74
---- --------------------------------------------------
16.10 Release of Debt............................................................................................. 75
----- ---------------
16.11 Waivers, Releases and Compromises........................................................................... 75
----- ---------------------------------
16.12 Consent to subsequent Security Interests.................................................................... 75
----- ----------------------------------------
16.13 Consent to Leases etc....................................................................................... 75
----- ---------------------
16.14 Relief under Binding Provision or on Order of Competent Authority........................................... 76
----- -----------------------------------------------------------------
16.15 Litigation.................................................................................................. 76
----- ----------
16.16 Enforcement Action.......................................................................................... 77
----- ------------------
16.17 Incurring Additional Expenses............................................................................... 77
----- -----------------------------
16.18 Mortgage Insurance and Insurance Policy Claims.............................................................. 77
----- ----------------------------------------------
16.19 Insurance Policy Proceeds................................................................................... 77
----- -------------------------
16.20 Seller Advances............................................................................................. 78
----- ---------------
16.21 Restrictions on Seller Advances............................................................................. 78
----- -------------------------------
16.22 Servicer's Actions Binding on Trustee....................................................................... 79
----- -------------------------------------
16.23 Servicer to Pay its Own Expenses............................................................................ 79
----- --------------------------------
16.24 Servicer to transmit information to Manager................................................................. 79
----- -------------------------------------------
16.25 Proposed amendments to Servicing Guidelines................................................................. 79
----- -------------------------------------------
16.26 Further Servicer Undertakings............................................................................... 80
----- -----------------------------
16.27 Servicer holding Assets of the Series Trust................................................................. 82
----- -------------------------------------------
16.28 Servicer's Power to Delegate................................................................................ 82
----- ----------------------------
16.29 Servicer May Replace or Suspend Attorneys................................................................... 82
----- -----------------------------------------
16.30 Servicer Remains Liable..................................................................................... 83
----- -----------------------
17. Servicer's responsibilities and indemnities........................................................................ 83
--- -------------------------------------------
17.1 Not Liable Where Action Unlawful............................................................................ 83
---- --------------------------------
17.2 Limitation on Servicer's Responsibility..................................................................... 83
---- ---------------------------------------
17.3 Servicer's Liability........................................................................................ 83
---- --------------------
18. Servicer Default and retirement of Servicer........................................................................ 84
--- -------------------------------------------
18.1 Servicer Default............................................................................................ 84
---- ----------------
18.2 Retirement of Servicer...................................................................................... 85
---- ----------------------
18.3 Notice to Securityholders................................................................................... 85
---- -------------------------
18.4 Removal of Servicer......................................................................................... 85
---- -------------------
18.5 Retirement of Servicer...................................................................................... 85
---- ----------------------
18.6 When appointment of Substitute Servicer effective........................................................... 85
---- -------------------------------------------------
18.7 Trustee to Act as Servicer.................................................................................. 86
---- --------------------------
18.8 Trustee May Give Discharges................................................................................. 86
---- ---------------------------
18.9 Servicer May Accept Payment................................................................................. 86
---- ---------------------------
18.10 Servicer and Manager to Provide Full Co-operation........................................................... 86
----- -------------------------------------------------
18.11 Indemnity................................................................................................... 86
----- ---------
18.12 No Liability for Servicer Default........................................................................... 86
----- ---------------------------------
19. Remuneration of Manager, Trustee, Servicer and Security Trustee.................................................... 87
--- ---------------------------------------------------------------
19.1 Management Fee.............................................................................................. 87
---- --------------
19.2 Arranging Fee............................................................................................... 87
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19.3 Trustee's Fee............................................................................................... 87
---- -------------
19.4 Servicer's Fee.............................................................................................. 87
---- --------------
19.5 Security Trustee's Fees and Expenses........................................................................ 87
---- ------------------------------------
19.6 Goods and Services Tax...................................................................................... 88
---- ----------------------
19.7 Adjustments to fees......................................................................................... 88
---- -------------------
20. Manager Default.................................................................................................... 90
--- ---------------
21. Representations and warranties..................................................................................... 90
--- ------------------------------
21.1 General Representations and Warranties by the Seller and the Servicer....................................... 90
---- ---------------------------------------------------------------------
21.2 Repetition of Representations and Warranties................................................................ 92
---- --------------------------------------------
22. Collections Account and investment................................................................................. 92
--- ----------------------------------
22.1 Collections Account......................................................................................... 92
---- -------------------
22.2 Initial Collections Account................................................................................. 92
---- ---------------------------
22.3 Replacement of Collections Account.......................................................................... 92
---- ----------------------------------
22.4 Deposits into Collections Account within 5 Business Days.................................................... 92
---- --------------------------------------------------------
22.5 While Collections Account with Commonwealth Bank............................................................ 92
---- ------------------------------------------------
22.6 Withdrawals from Collections Accounts....................................................................... 93
---- -------------------------------------
22.7 All Transactions through Collections Account................................................................ 93
---- --------------------------------------------
22.8 Title to and Control of Collections Account................................................................. 94
---- -------------------------------------------
22.9 No Deductions by Servicer................................................................................... 94
---- -------------------------
22.10 Prepayments under Liquidity Facility........................................................................ 94
----- ------------------------------------
22.11 Servicer May Retain Income from Collections................................................................. 94
----- -------------------------------------------
22.12 Bank Account Taxes.......................................................................................... 94
----- ------------------
22.13 Opening of additional accounts where Collections Account is with an Eligible Depository..................... 94
----- ---------------------------------------------------------------------------------------
23. Clean-up and extinguishment........................................................................................ 95
--- ---------------------------
23.1 Notification of Trigger Event by Manager to Seller.......................................................... 95
---- --------------------------------------------------
23.2 Response by Seller.......................................................................................... 95
---- ------------------
23.3 Determination of Clean-Up Settlement Date................................................................... 95
---- -----------------------------------------
23.4 Clean-Up Settlement Price................................................................................... 96
---- -------------------------
23.5 Payment of Clean-Up Settlement Price........................................................................ 96
---- ------------------------------------
23.6 Effect of Payment of Clean-Up Settlement Price.............................................................. 96
---- ----------------------------------------------
23.7 Costs....................................................................................................... 97
---- -----
23.8 Alternative Structure....................................................................................... 97
---- ---------------------
23.9 Alternative Funding Arrangements to Permit Redemption....................................................... 97
---- -----------------------------------------------------
24. Perfection of Title................................................................................................ 97
--- -------------------
24.1 Perfection of Title Event................................................................................... 97
---- -------------------------
24.2 Declaration of Perfection of Title Event.................................................................... 98
---- ----------------------------------------
24.3 Perfection of Title......................................................................................... 98
---- -------------------
24.4 Trustee to lodge Caveats.................................................................................... 98
---- ------------------------
24.5 Trustee to hold Legal Title or lodge Caveats................................................................ 99
---- --------------------------------------------
24.6 Powers of Attorney.......................................................................................... 99
---- ------------------
24.7 Other Loans................................................................................................. 99
---- -----------
24.8 Indemnity................................................................................................... 99
---- ---------
25. Seller as custodian of the Mortgage Loan documents................................................................. 99
--- --------------------------------------------------
25.1 Seller as Custodian......................................................................................... 99
---- -------------------
25.2 Application of the Balance of this Clause................................................................... 99
---- -----------------------------------------
25.3 Seller's Covenants as Custodian............................................................................. 99
---- -------------------------------
25.4 Update of Computer Diskette................................................................................. 100
---- ---------------------------
25.5 Indemnity in respect of Incorrect Information on Computer Diskette.......................................... 100
---- ------------------------------------------------------------------
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25.6 Document Custody Audit Report............................................................................... 100
---- -----------------------------
25.7 Details of Document Custody Audit Report.................................................................... 100
---- ----------------------------------------
25.8 Document Custody Audit Report............................................................................... 101
---- -----------------------------
25.9 Timing of Document Custody Audit Reports.................................................................... 102
---- ----------------------------------------
25.10 Adverse Document Custody Audit Report....................................................................... 102
----- -------------------------------------
25.11 Document Transfer Event..................................................................................... 102
----- -----------------------
25.12 Failure to comply with clause 25.11......................................................................... 103
----- ------------------------------------
25.13 Emergency Document transfer................................................................................. 103
----- ---------------------------
25.14 Exceptions to Transfer...................................................................................... 103
----- ----------------------
25.15 Indemnity by Seller......................................................................................... 104
----- -------------------
25.16 Trustee to co-operate with Servicer......................................................................... 104
----- -----------------------------------
25.17 Specific performance........................................................................................ 104
----- --------------------
25.18 Trustee's Duty While Holding Mortgage Documents............................................................. 104
----- -----------------------------------------------
25.19 Reappointment of Seller as Custodian........................................................................ 104
----- ------------------------------------
26. Termination of the Series Trust.................................................................................... 105
--- -------------------------------
26.1 Potential Termination Events................................................................................ 105
---- ----------------------------
26.2 Determination of Termination Payment Date................................................................... 105
---- -----------------------------------------
26.3 Realisation of Assets....................................................................................... 105
---- ---------------------
26.4 Conditions of Sale During 180 days.......................................................................... 106
---- ----------------------------------
26.5 Right of Refusal to Seller.................................................................................. 106
---- --------------------------
26.6 Sale at Lower Price......................................................................................... 106
---- -------------------
26.7 Conditions of Sale After 180 days........................................................................... 107
---- ---------------------------------
26.8 Further Conditions of Sale After 180 days................................................................... 107
---- -----------------------------------------
26.9 Procedures Pending Winding-Up............................................................................... 107
---- -----------------------------
26.10 Costs on Winding-up of the Series Trust..................................................................... 108
----- ---------------------------------------
26.11 Calculation of Final Distributions.......................................................................... 108
----- ----------------------------------
26.12 Final Distributions......................................................................................... 108
----- -------------------
26.13 Insufficient Funds.......................................................................................... 108
----- ------------------
26.14 Excess Funds................................................................................................ 108
----- ------------
26.15 Distribution to Residual Unitholder in Specie............................................................... 108
----- ---------------------------------------------
26.16 Terms of In Specie Distributions............................................................................ 109
----- --------------------------------
27. General............................................................................................................ 109
--- -------
27.1 Required Credit Rating...................................................................................... 109
---- ----------------------
27.2 Distribution of information................................................................................. 109
---- ---------------------------
27.3 Electronic Reporting of Pool Performance Data............................................................... 109
---- ---------------------------------------------
27.4 Claim for Damages........................................................................................... 109
---- -----------------
27.5 Allocation of Damages....................................................................................... 110
---- ---------------------
27.6 Additional Expenses......................................................................................... 110
---- -------------------
27.7 Form of Transfers and Certificates.......................................................................... 110
---- ----------------------------------
27.8 Incur Costs Without Approval................................................................................ 110
---- ----------------------------
27.9 Adverse Effect.............................................................................................. 110
---- --------------
27.10 Notification to Rating Agencies of Redemption of Securities................................................. 111
----- -----------------------------------------------------------
27.11 Further Support Facilities.................................................................................. 111
----- --------------------------
27.12 Supplementary Trustee Powers................................................................................ 111
----- ----------------------------
27.13 Trustee's power to delegate................................................................................. 112
----- ---------------------------
28. Limitation of Trustee's duties..................................................................................... 112
--- ------------------------------
28.1 Trustee May Rely............................................................................................ 112
---- ----------------
28.2 No Duty to Investigate...................................................................................... 112
---- ----------------------
28.3 Trustee not Liable.......................................................................................... 112
---- ------------------
29. Trustee's limitation of liability.................................................................................. 113
--- ---------------------------------
29.1 Limitation on Trustee's liability........................................................................... 113
---- ---------------------------------
29.2 Claims against Trustee...................................................................................... 113
---- ----------------------
29.3 Breach of trust............................................................................................. 113
---- ---------------
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29.4 Acts or Omissions........................................................................................... 113
---- -----------------
29.5 No obligation............................................................................................... 113
---- -------------
29.6 CBA Trust................................................................................................... 114
---- ---------
30. Consumer Credit Code............................................................................................... 114
--- --------------------
30.1 Breach of Consumer Credit Code.............................................................................. 114
---- ------------------------------
30.2 Right of Indemnity - Consumer Credit Code................................................................... 114
---- -----------------------------------------
31. Notices............................................................................................................ 115
--- -------
31.1 Method of Delivery.......................................................................................... 115
---- ------------------
31.2 Deemed Receipt.............................................................................................. 115
---- --------------
31.3 Notice to Investors......................................................................................... 116
---- -------------------
32. Confidentiality.................................................................................................... 116
--- ---------------
32.1 General Restriction......................................................................................... 116
---- -------------------
32.2 Exceptions.................................................................................................. 116
---- ----------
33. Miscellaneous...................................................................................................... 117
--- -------------
33.1 Amendments.................................................................................................. 117
---- ----------
33.2 Governing Law............................................................................................... 117
---- -------------
33.3 Jurisdiction................................................................................................ 117
---- ------------
33.4 Notify Rating Agencies...................................................................................... 117
---- ----------------------
33.5 Severability of Provisions.................................................................................. 117
---- --------------------------
33.6 Counterparts................................................................................................ 117
---- ------------
33.7 No Revocation of Power of Attorney.......................................................................... 117
---- ----------------------------------
33.8 Certifications.............................................................................................. 117
---- --------------
33.9 Payments.................................................................................................... 118
---- --------
33.10 Waiver...................................................................................................... 118
----- ------
33.11 Entire Understanding........................................................................................ 118
----- --------------------
33.12 Survival of Indemnities..................................................................................... 118
----- -----------------------
33.13 Successors and Assigns...................................................................................... 118
----- ----------------------
33.14 Moratorium Legislation...................................................................................... 118
----- ----------------------
Schedule 1 Form of Sale Notice.......................................................................................... 119
------------------------------
Schedule 2 Forms of Power of Attorney (other than for Queensland and Western Australia)................................. 121
---------------------------------------------------------------------------------------
Schedule 3 Form of Power of Attorney (For Queensland)................................................................... 126
-----------------------------------------------------
Schedule 4 Form of Power of Attorney (for Western Australia)............................................................ 130
------------------------------------------------------------
Schedule 5 Eligibility Criteria......................................................................................... 134
-------------------------------
Schedule 6 Form of Security Certificate A$ Securities.................................................................. 135
------------------------------------------------------
Schedule 7 Form of Security Transfer.................................................................................... 137
------------------------------------
Schedule 8 Quarterly Certificate........................................................................................ 141
--------------------------------
Schedule 9 Form of Residual Unit Certificate............................................................................ 151
--------------------------------------------
Schedule 10 Stepdown Percentage......................................................................................... 153
-------------------------------
</TABLE>
vii.
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This Series Supplement made at on
Parties Commonwealth Bank of Australia, ACN 123 123 124, of Level 8, 48
Martin Place, Sydney (the "Seller" and hereinafter included in the
expression the "Servicer")
Securitisation Advisory Services Pty. Limited, ACN 064 133 946, of
Level 8, 48 Martin Place, Sydney, Australia (hereinafter included
in the expression the "Manager")
Perpetual Trustee Company Limited, ACN 000 001 007, of Level 3, 39
Hunter Street, Sydney, Australia (hereinafter include din the
expression the "Trustee")
Recitals
A. This Deed relates to the Series 2000-2G 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.
The parties agree
________________________________________________________________________________
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:
N
CA1IA = ACA1IA x CA1IR x ---
365
where:
CA1IA = the A$ Class A-1 Interest Amount for the Accrual Period;
ACA1IA = the 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
1
<PAGE>
N = the number of days in the Accrual Period.
"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 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
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<PAGE>
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.
"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.
"Arranging Fee" means the fee payable to the Manager on each Distribution
Date calculated in accordance with clause 19.2.
"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 Chargeoff 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:
SDP
ADP = ------
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,
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<PAGE>
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:
SDP
ADP = -----
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:
(d) on the first day of an Accrual Period fewer than 4 banks are quoted
on the Reuters Screen page "BBSW"; or
(e) 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, GEMI, PMI 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.
4
<PAGE>
"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.
"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 Chargeoff Percentage" in relation to a Determination Date means
the amount (expressed as a percentage) calculated as follows:
CA1SA
CA1CP = ---------------------------
CA1SA + CA2SA + RBSA + SRFP
where:
CA1CP = the Class A-1 Chargeoff 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.
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<PAGE>
"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 annexed to the Class A-1 Notes.
"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:
CA1IA
CA1P = --------------
CA1IA + CA21IA
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 Chargeoff Percentage" in relation to a Determination Date means
the amount (expressed as a percentage) calculated as follows:
CA2SA
CA2CP = ------------------------------
CA1SA + CA2SA + RBSA + SRFP
where:
CA2CP = the Class A-2 Chargeoff 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
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<PAGE>
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.
"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:
ISA
CAP = -----
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:
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<PAGE>
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:
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:
SAB
CBAS = ------------
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:
IIA
CBRS = -----
AIIA
where:
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<PAGE>
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:
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
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<PAGE>
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 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
International (Australia) Limited, ACN 002 892 846 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:
DMLP
DP = -----
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.
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<PAGE>
"Determination Date" means the first day of the calendar month in which
each Distribution Date occurs. The first Determination Date is [1
December] 2000.
"Distribution Date" means the [18th] day of each [December, March, June
and September] (or if such a day is not a Business Day, the next Business
Day). The first Distribution Date is [18 December] (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 and includes the Servicer to
the extent that:
(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 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(o).
"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
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<PAGE>
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)-(o) (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:
(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" means Fitch, Inc.
"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.
"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:
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<PAGE>
GUPA = OPA + PCOR + RBA + SRFA
where:
GUPA = the Gross Unscheduled Principal Amount;
OPA = the Other Principal Amounts on that Determination Date;
PCOR = the Principal Chargeoff Reimbursement on that Determination Date;
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.
"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).
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<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), double the
margin referred to in paragraph (i) in relation to that
Class A-2 Note,
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
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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
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<PAGE>
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
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<PAGE>
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 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.
"Management Fee" means the fee payable to the Manager on each Distribution
Date in accordance with clause 19.1.
"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.
"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;
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<PAGE>
(d) the original or duplicate of the First Layer of Collateral
Securities documents (other than the Insurance Policies) in
relation to the Mortgage Loan;
(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 PMI Mortgage Insurance Policy; and
(b) any primary mortgage insurance policy granted by GEMI 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.
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<PAGE>
"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).
"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:
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<PAGE>
NBR = the Net Break Receipt;
BB = the Break Benefits in relation to that Determination Date; and
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:
NSPA = 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;
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<PAGE>
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 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:
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<PAGE>
(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;
(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 5.9 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.
"PMI" means PMI Mortgage Insurance Ltd, ACN 000 511 071.
"PMI Mortgage Insurance Policy" means the policy issued by PMI in relation
to the Mortgage Loans from time to time forming part of the Assets of the
Series Trust pursuant to the Lenders' Mortgage Insurance Provisions dated
on or about the date of this Deed between PMI, the Trustee and the Seller.
"Pool Factor" in relation to a Security at any given time means the amount
(expressed as a
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<PAGE>
percentage to 7 decimal places) calculated as follows:
A
PF = -
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 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.
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"Principal Chargeoff" in relation to a Determination Date means an amount
calculated as follows:
PCO = PL MIPP PD
where:
PCO = the Principal Chargeoff 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);
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 Chargeoff 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 Chargeoff 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 Chargeoff 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 Chargeoffs as at the previous Determination Date plus the
Principal Chargeoffs calculated as at the current Determination Date, the
Principal Chargeoff 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,
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<PAGE>
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 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
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<PAGE>
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.
"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 Chargeoff Percentage" in relation to a Determination Date
means the amount (expressed as a percentage) calculated as follows:
RBSA
RBCP = -----------------------------
CA1SA + CA2SA + RBSA + SRFP
where:
RBCP = the Redraw Bond ChargeOff 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.
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"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 the Trustee).
"Scheduled Balance" in relation to a Mortgage Loan means the amount that
would be owing on the Mortgage Loan at the date of determination if the
Borrower had made, prior to that date, the minimum payments required under
the Mortgage Loan.
"Scheduled Maturity Date" means the Distribution Date occurring on [ ]
(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
19.5(b).
"Security Trustee's Fee" means the fee payable to the Security Trustee on
each Distribution Date in accordance with clause 19.5(a).
"Seller Advance" means an advance made by the Seller to a Borrower
pursuant to clause
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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 clauses 15.3(a)
and 15.4(b) which have not been utilised pursuant to clause 15.8(b) or
repaid pursuant to clauses 15.4(a), 15.6 and 15.7.
"Series Trust" means the trust known as the Series 2000-2G 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 19.4.
"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 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 of BBB.
"Standby Redraw Chargeoff Percentage" in relation to a Determination Date
means the amount (expressed as a percentage) calculated as follows:
SRFP
SCRP = ---------------------
CA1SA + RBSA + SRFP
where:
SRCP = the Standby Redraw Chargeoff 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;
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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.
"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 Chargeoffs 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.
"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.
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"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 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 19.3.
"Underwriting Agreement" means the Underwriting Agreement dated after the
date of this Deed between the Trustee, the Manager, Commonwealth Bank of
Australia and Merrill Lynch, Pierce, Fenner & Smith, Incorporated as
representative for the Underwriters named therein
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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 Chargeoffs" 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 Chargeoffs 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 Chargeoff 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 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.
"Waiver of Set-Off" means in relation to a Mortgage Loan, a provision, in
the related Mortgage or Loan Agreement or otherwise, by which, inter alia,
the Borrower agrees to make all payments in respect of the Mortgage Loan
without set-off or counterclaim unless prohibited by law.
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;
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(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) 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
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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 .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.
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.
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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, 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
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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.
(d) (Rights of Investors): Nothing in clause 7.1(i) of the Master Trust
Deed limits any right of Class A-1 Noteholders under the Class A-1
Note Trust Deed to compel the Trustee, the Manager or the Class A-1
Note Trustee to comply with their respective obligations under the
Class A-1 Note Trust Deed.
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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:
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(a) (Execution of this Deed): the execution of this Deed by the Trustee,
the Manager, the Servicer and the Seller; and
(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 2000-2 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.
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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 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:
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(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 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.
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________________________________________________________________________________
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.
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:
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(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 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 PMI
Mortgage Insurance Policy);
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(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.
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.
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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 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;
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(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.
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):
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(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 5.6(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 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$
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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.
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
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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) (PMI Mortgage Insurance Policy): an executed original counterpart
of the PMI Mortgage Insurance Policy together with a letter from
PMI confirming that it has accepted for insurance under the PMI
Mortgage Insurance Policy the Mortgage Loans referred to in the
certificate attached to the letter and that the Trustee has paid
the premium in respect of the PMI 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
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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 and the Class B Notes have been assigned a
provisional rating of AA- (in the case of S&P) and AA (in
the case of Fitch);
(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 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) Hickson Wisewoulds as to the validity and
enforceability of the obligations of PMI under the
PMI Mortgage Insurance Policy;
(iv) 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;
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(v) Emmet, Marvin & Martin, LLP as to due execution by The
Bank of New York of the Transaction Documents to which
The Bank of New York is a party; and
(vi) internal counsel of Merrill Lynch International
(Australia) Ltd, ACN 002 892 846, as to the due
execution by Merrill Lynch International (Australia) Ltd
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:
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
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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.
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
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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
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:
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(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 11 am
(Sydney time) on the Business Day prior to each Distribution Date in
relation to the payments and allocations to 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 Chargeoff Reimbursement
and the Other Principal Amounts for the Collection Period then
ended is insufficient to meet in full the Seller Advances
referred to in
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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
Chargeoff 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 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.
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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, the Trustee must:
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(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. Chargeoffs
9.1 Allocation of Principal Chargeoffs
If there is a Principal Chargeoff 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 Chargeoff remaining after
the application of clause 9.1(a) will be allocated as follows:
(i) the Class A-1 Chargeoff 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 Chargeoff Percentage of such balance amongst
the Class A-2 Notes equally;
(iii) the Redraw Bond Chargeoff Percentage of such balance
rateably amongst the Redraw Bonds according to the Stated
Amount of each Redraw Bond; and
(iv) the Standby Redraw Chargeoff 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.
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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.
9.2 Allocation of Principal Chargeoff Reimbursements
If there is a Principal Chargeoff 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 Chargeoffs on that Determination Date, in the case of
the Class A-2 Notes and the Redraw Bonds, their respective
aggregate Unreimbursed Principal Chargeoffs on that Determination
Date and, in the case of the Standby Redraw Facility Principal,
its Unreimbursed Principal Chargeoffs on that Determination Date)
as follows:
(i) rateably amongst the Class A-1 Notes according to the
Unreimbursed Principal Chargeoff 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 Chargeoff of each Redraw Bond; and
(iv) the Standby Redraw Facility Principal,
in reduction of, respectively, the amount of the Unreimbursed
Principal Chargeoffs on the Class A-1 Notes (in accordance with
the Class A-1 Note Conditions) and the Unreimbursed Principal
Chargeoffs on the Class A-2 Notes, the Redraw Bonds and the
Standby Redraw Facility Principal, until such Unreimbursed
Principal Chargeoffs are reduced to zero; and
(b) secondly, equally amongst the Class B Notes until the amount of
Unreimbursed Chargeoffs on the Class B Notes are reduced to zero.
A reduction of an Unreimbursed Principal Chargeoff 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.
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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.
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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:
(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) (Management Fee): fourthly, in or towards payment to the Manager of
the Management 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
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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;
(m) (Principal Chargeoff Reimbursement): thirteenthly, subject to clause
10.8, the amount of the Principal Chargeoff Reimbursement for the
Determination Date as an allocation to the Available Principal Amount
to be paid in accordance with clause 10.3;
(n) (Arranging Fee): fourteenthly, subject to clause 10.8, in payment to
the Manager rateably of the Arranging Fee due on that Distribution
Date and any Arranging Fee outstanding from a prior Distribution
Date; and
(o) (Distribution): fifteenthly, 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
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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 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.
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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)-(o) (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)(i) 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.
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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 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(o)
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(o) 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(o) 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(o) 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.
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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).
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
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(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
(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.
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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;
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(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 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;
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(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;
(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
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13.1 and is entitled to accept them conclusively at all times (unless it
is actually aware of any breach).
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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),
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,
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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).
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
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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.
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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;
(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:
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(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 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.
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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 of lower than
BBB (or such other rating as is agreed between the Manager, the Trustee,
the Seller and Fitch) then (whether or not clause 15.6 has previously
applied) the Seller must:
(a) (Make a Seller Deposit):
(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 (as
applicable), unless otherwise agreed by Moody's or Fitch (as the
case may be), an amount equal to whichever of paragraphs (A) or
(B) below applies:
A. if the Seller is the legal owner of the Mortgage Loans, 125%
of the aggregate of the credit balances of the Mortgage
Interest Saver Accounts then existing in respect of the
Mortgage Loans which do not have a Waiver of Set-Off and
which 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, 125% of the aggregate of the credit balances of the
Mortgage Interest Saver Accounts then existing in respect of
each Mortgage Loan which does not have a Waiver of Set-Off
and which is 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; or
(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 (in the case of a lower rating by Fitch) (and
notified by the Seller to the Trustee and the Manager) so as to
ensure that S&P, Moody's or Fitch (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 (as the case may be), the Seller must comply
with clause 15.3(a) in relation to S&P, Moody's or Fitch, as the case
may be),
provided that the Seller will not have any obligation pursuant to this
clause 15.3 if all Mortgage Loans which are Assets of the Series Trust
have a Waiver of Set-Off.
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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 of BBB (or such other rating as is agreed between the
Manager, the Trustee, the Seller and Fitch), 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 or Amendments to Mortgage Loans
On the earlier of:
(a) the date upon which all Mortgage Loans which are Assets of the Series
Trust have a Waiver of Set-Off, and
(b) 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
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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 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
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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.
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, 3 and
4) 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
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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 PMI, as the case may be, has
rejected a claim made by the 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
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(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.
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
any 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
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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 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.
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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 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
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(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 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).
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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 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.
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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 19.4 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 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
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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;
(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
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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;
(t) (Collect all moneys due): make reasonable efforts to collect all
moneys due under
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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.
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16.30 Servicer Remains Liable
The Servicer at all times remains liable for:
(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
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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).
(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.
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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
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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
(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
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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.
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 19.4 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.
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________________________________________________________________________________
19. Remuneration of Manager, Trustee, Servicer and Security Trustee
19.1 Management 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 a fee (the
"Management Fee") as 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 Management
Fee and the Management 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 Arranging Fee
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 a fee for arranging the issue of the Securities (the
"Arranging Fee") as 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.
19.3 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 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.
19.4 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.
19.5 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
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following the Accrual Period to which such fees, costs and expenses
were earned or incurred, as the case may be.
19.6 Goods and Services Tax
Notwithstanding any other provision of this Deed or the Master Trust
Deed, where any of the Trustee, the Manager, the Servicer or the
Seller is or 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 19.7).
19.7 Adjustments to fees
(a) (GST Tax Change): For the purposes of this clause, "GST Tax
Change" means:
(i) the abolition of GST;
(ii) an increase or decrease in the rate of GST; or
(iii) any amendment to the GST Act.
(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 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 19.7(o),
be adjusted according to the procedure in this clause 19.7 so
that, from the commencement date or dates of the GST Tax Change,
the Trustee is neither economically advantaged nor 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 and the Manager may, by written notice to the Trustee,
require the commencement of negotiations by the Manager and the
Trustee in accordance with the succeeding provisions of this
clause 19.7.
(e) (Time Bar): If neither the Trustee nor the Manager issues a
notice under clause 19.7(d) within 12 months after a GST Tax
Change has come into effect, then each of the Trustee and the
Manager will be taken to have unconditionally and irrevocably
waived its rights under clause 19.7(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 19.7(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 and the Manager's rights
under clause 19.7(c).
(g) (Manager and Trustee to give effect to outcome of negotiations):
Subject to clause 19.7(o), if the negotiations result in the
parties agreeing on any adjustments
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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 19.7(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
and the Manager's rights under clause 19.7(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 19.7(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 and the Manager's rights under
clause 19.7(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 the 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 19.7 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.
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________________________________________________________________________________
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 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
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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;
(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
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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
(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/F1+ 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), 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/P1/F1 Rating): the Servicer does not have all the applicable
credit ratings
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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), 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), 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;
(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.
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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
(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,
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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 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
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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 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,
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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 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)).
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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.
24.4 Trustee to lodge Caveats
If the Trustee does not hold the Mortgage Documents necessary to vest
fully and effectively in
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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.
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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 6.1(k));
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(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:
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(i) the Mortgage Documents forming part of the Assets of
the Series 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
PMI 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
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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.
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
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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 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
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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.
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
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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.
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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 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 60 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:
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(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:
(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
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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 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;
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(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.
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
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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): the Required Credit Rating required by Fitch in respect
of Authorised Short-Term Investments of the Series Trust is a
short-term rating of 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.
27.2 Distribution of information
The Manager will on or before the date which is 1 Business Day 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
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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.
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;
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(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 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;
(i) (Hold Assets Other Trusts): if provided for in any Transaction
Document, to hold any property or any interest in any property
both as trustee of the Series Trust and as trustee on behalf of
one or more persons in accordance with the provisions of the
relevant Transaction Document;
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(j) (Additional Fees and Expenses): in accordance with the
Transaction Documents, to pay or reimburse to any person any
fees, liabilities, losses, costs, claims, actions, damages,
expenses, demands, charges, stamp duties and other Taxes in
relation to the exercise by the Trustee of the above powers; and
(k) (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.
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
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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.
29.5 No obligation
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 (including
incur any further liability) unless the Trustee's liability is limited
in a manner which is consistent with this clause 29 or otherwise 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.
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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 29.6 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.
(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.
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(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:
(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.
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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);
(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
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(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.
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
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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.
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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 2000-2G 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 PMI 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.
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For and on behalf of
Commonwealth Bank of Australia
__________________
Authorised Officer
Date:
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Schedule 2
Forms 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:
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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.
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2. Appointment and Powers
2.1 Appointment
With effect from the assignment to the Trustee of the Mortgage Loans in
accordance with 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.
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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.
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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;
(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.
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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.
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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 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
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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
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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 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.
"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,
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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 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 the
Trustee, 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 Trustee of any
obligation that it 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;
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(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.
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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.
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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
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<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
"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.
"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 titles 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;
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<PAGE>
(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;
(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.
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<PAGE>
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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.
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.
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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.
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
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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$750,000;
. that the Mortgage Loan is sourced from the Seller's mortgage loan
portfolio;
. that the Borrower under the Mortgage Loan is not an employee of the Seller
who is paying a concessional rate of interest under the Mortgage Loan as a
result of such employment;
. that the Mortgage Loan was advanced in, and is repayable in, Australian
dollars;
. that as at the Cut-Off Date no payment due from the Borrower under the
Mortgage Loan is in arrears by more than 30 days;
. that the Mortgage Loan is secured by a Mortgage over Land which has erected
on or within it a residential dwelling or unit and the terms of that
Mortgage require that dwelling or unit to be insured under an Insurance
Policy;
. that the Mortgage Loan is not a loan of a type with only interest payable
during the term and with a "bullet" repayment of all principal at the end
of its term; and
. that the Mortgage Loan is or has been fully drawn,
or such other Eligibility Criteria as the Trustee, the Seller and the Manager
may agree in writing prior to the Closing Date and which the Rating Agencies
have confirmed in writing will not result in a reduction, qualification or
withdrawal of the credit ratings to be assigned by the Rating Agencies to the
Notes on the Closing Date.
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Schedule 6
Form of Security Certificate
A$ 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 2000-2G 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 2000-2G
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:
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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 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 7 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
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<PAGE>
Schedule 7
Form of Security Transfer
_______________
TO: Perpetual Trustee Company Limited, Registry Use Date Lodged
ACN 000 001 007 Only / /
(the "Trustee")
_______________
_________________________________________________
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 2000-2G 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 _____________________________________________________________________
137
<PAGE>
Signature: Authorised Officer
(See notes below)
WITNESS---------------------------------------------------- Date / /
PAYMENTS
(tick where appropriate)
-----------------------------------------------------------------------------
[_] 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 Sevicer) (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:
(a) 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;
(b) the holding of the A$ Securities is subject to investment
risk, including possible delays in payment and loss of
income and principal invested; and
(c) none of the Manager, the Seller, the Servicer, the Bank or,
any other Related Body
138
<PAGE>
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.
. 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),
139
<PAGE>
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]
140
<PAGE>
Schedule 8
Quarterly Certificate
Quarterly Summary Distribution Details
Reporting Dates
---------------
Closing Date
Determination Date
Notice Date
Distribution Date
Start Accrual Period
End Accrual Period
No. of Days in Accrual Period
Start Collection Period
End Collection Period
No. of Days in Collection Period
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------
Securities on Issue No. of Certificates Initial Invested Initial Invested Amount
------------------- ------------------- ---------------- -----------------------
Amount (US$) Amount (A$)
------------ -----------
<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
Total
----------------------------------------------------------------------------------------------------------
</TABLE>
141
<PAGE>
--------------------------------------------------------------------------------
Distribution Payable On Distribution Date Per Cert. Aggregate
----------------------------------------- --------- ---------
Redraw Bond - Series 1
Redraw Bond - Series 2
Total:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Current Distribution
--------------------
Pool Factors Last Distribution Date Date
------------ ---------------------- ----
Class A-1 Notes
Class A-2 Notes
Class B Notes
Redraw Bond - series 1
Redraw Bond - series 2
--------------------------------------------------------------------------------
142
<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
Management Fee
Servicer's 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
Arranging Fee
Payment Allocation Cascade
--------------------------
Preliminary Income Amount
Liquidity Facility Draw
Available Income Amount
Due Available Paid
Taxes
Trustee Fee
Security Trustee Fee
Management Fee
Servicer's Fee
Liquidity Commitment Fee
Redraw Commitment Fee
Support Facility Payments
Support Facility Receipts
Expenses
Liquidity Interest Charge
143
<PAGE>
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
Arranging Fee
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
Class A-2 Notes
Unpaid Security Interest Amount (after last
Distribution Date)
144
<PAGE>
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
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
145
<PAGE>
- 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
146
<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
147
<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
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
148
<PAGE>
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 * 5, 2% Avg Mo. Perc, Unreim C/O Maximum
Year * 5, 4% Avg Mo. Perc, Unreim C/O Maximum
5 ** Year * 6, Unreim C/O Maximum
6 ** Year * 7, Unreim C/O Maximum
7 ** Year * 8, Unreim C/O Maximum
8 ** Year * 9, Unreim C/O Maximum
9 *** Year, Unreim C/O Maximum
Stepdown Condition less than 5 years
Stepdown Condition greater than & equal to 5 years
Year *** 5, 2% Avg Mo. Perc, Unreim C/O Maximum
Year - Stepdown Condition Test
5
6
7
8
9
<TABLE>
<CAPTION>
Year - Stepdown Class A Criteria FALSE TRUE Class A Percentage
<S> <C> <C> <C>
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 -
</TABLE>
* Less than
** Less than or equal to
*** More than or equal to
149
<PAGE>
Stepup Conditions
Step-up Date
Stepup margin - Class A-1 Notes
- Class A-2 Notes
150
<PAGE>
Schedule 9
Form of Residual Unit Certificate
RESIDUAL UNIT CERTIFICATE
Series 2000-2G 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 2000-2G 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
151
<PAGE>
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).
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
152
<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%;
153
<PAGE>
(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:
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 Chargeoffs 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 Chargeoffs 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 of all outstanding Notes is greater
than 10% of the aggregate Initial Invested Amount of all Notes;
(d) 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
154
<PAGE>
(e) the aggregate of all Unreimbursed Principal Chargeoffs 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.
155
<PAGE>
Executed as a deed.
Signed sealed and delivered for and on behalf
of Commonwealth Bank of Australia, ACN 123
123 124, by its Attorney under a Power of
Attorney dated and
registered Book No.
who certifies that he or she is _______________________________
of Commonwealth Bank of Australia in the
presence of: Signature of Attorney
_________________________________ _______________________________
Signature of Witness Name of Attorney in full
_________________________________
Name of Witness in full
Signed sealed and delivered for and on behalf
of Securitisation Advisory Services Limited,
ACN 064 133 946 by its Attorney under a
Power of Attorney dated
and registered 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 Attorney
________________________________ _______________________________
Signature of Witness Name of Attorney in full
________________________________
Name of Witness in full
156
<PAGE>
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 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 Attorney
_______________________________ _______________________________
Signature of Witness Name of Attorney in full
_______________________________
Name of Witness in full
157
